Holding

The independence of the judiciary is a basic feature of the Constitution, and while lawyers have standing to challenge actions affecting judicial independence, the circular letter was not invalid, consent is not required for transfer of judges under Article 222, and the transfer of Chief Justice K.B.N. Singh was valid as it was in public interest and after effective consultation.

Summary

The case involved multiple writ petitions challenging the constitutional validity of a circular letter issued by the Law Minister on March 18, 1981, seeking consent from additional judges for appointment to other High Courts, short-term extensions of additional judges, and transfers of Chief Justices. The Court addressed issues of judicial independence, locus standi for public interest litigation, appointment and transfer of judges, and disclosure of documents. The majority held that lawyers have standing in public interest litigation concerning judicial independence, the circular letter was not invalid, consent is not required for transfer of judges under Article 222, and the transfer of Chief Justice K.B.N. Singh was valid. The Court also held that the opinion of the Chief Justice of India does not enjoy primacy in judicial appointments, and that additional judges have a right to be considered for reappointment.

Issues considered

Whether lawyers have locus standi to challenge actions affecting judicial independence
Whether the circular letter dated March 18, 1981 was constitutional
Whether short-term extensions of additional judges were valid
Whether the transfer of Chief Justice K.B.N. Singh was valid
Whether consent is required for transfer of judges under Article 222
Whether documents could be withheld on grounds of privilege
Whether the Chief Justice of India's opinion has primacy in judicial appointments
Whether additional judges have a right to be considered for reappointment

Legislation cited

Constitution of Indias. 124, s. 14, s. 19(1)(a), s. 216, s. 217, s. 222, s. 224, s. 226, s. 32, s. 74
Indian Evidence Act, 1872s. 123, s. 162

Subjects

Judicial independencePublic interest litigationLocus standiTransfer of judgesAdditional judgesConsultationPrivilegeDisclosure of documentsConstitutional lawAppointment of judges

Judgment

365
A

SP. GUPTA & ORS. ETC. ETC.

v.
B
UNION OF INDIA & ORS. ETC. ETC.

December 28, 1981

[ P.N. BHAGWATI, A.C. GUPTA, S. MURTAZA FAZAL Au
V.D. TULZAPURKAR, D.A. DESAI, R.S. PATHAK AND
E.S. VENKATARAMIAH, JJ. ]
c
1, Independence of Judiciary, scope and limitations of the concept-Basic.
structure of the Constitution-Constitution of India, 1950, Preamble, Articles 124,
216, 217 222 and 224.

A.
2. Public interest litigation-Right to challenge executive order/action os D
affecting the independence of judiciary by persons other than the aggrieved party-
Locus standi of lawyers to raise issues like fixation of strength of Judges in each
High Court, appointment and re-appointments, of addtiona/ Judges, short term
appointments, transfer, etc. by means of petitions either under Article 226 or 32
of the Constitution of India, explained.

3. Public law-Protection against disclosure of documents claiming E
privilege-Evidence Act, sections 123 and 162, difference in-Whether the Union
of India could claim privilege in respect of the correspondence between the high
dignitaries which formed the opinion regarding transfer of Judges/gram of exten-
sion to the additional Judges-Constitution of India, Articles 19(1) (a), 14, 217
and 224.
F
4. Freedom of the press-Disc11ssions based on the disclosed materials on
the grounds on which recommendations were made to the President for not grant-
ing extension to the additional Judges, when the matter is sub-judice tan/amounts
'\ to trial by press, not authorised by law-Constitution of India, Articles 19( /)(a)
and 32.

5. Consent to be appointed to any of the three preferred High Courts, as a
G
J11dge, by the proposed appointee and the sitting additional Judges-Validity of
such a circular letter requiring consent, dated March 18, 1981, of the Law
Minister-Constitution of India, 1950, Articles 217 and 222.

6. Constitution of India, Articles 216, 224, and 226-Appointm~nt of High H
Court Ju1ge<-Difference between sitti~.~ flcdifi!ional Jl!d!{e·I q~rf proposed appointee
for initial recruitment. explained.
366 SUPRBMB COURT REPORTS (1982] 2 s.c.R'

A 7. Transfer of a Judge from one High Court to another-Constitution of
India, 1950, Articles 222-Notification dated January 19, 1981 issued by the
President of India transferring Mr. K.B.N. Singh, Chief Justice of Patna to Madras,
validity of.

8. Constilution of India, Article 222(1)-Legal effect of an order of transfer
of a Judge from one High Court to another.
B
9. High Courts-Inter se-status-All High Courts have same status-
Constitution of India, Articles 224 ( 4), 139A (2), 214 (2) & ( 3) before deletion in
1956, 222, 366(14) 376, Schedule VII List I Entry 78, discussed.

10. Constitution of India, Article 222 (])-Power to transfer a Judge,
nature and extent of use, explained.
c
11. Constitution of India, Article 222, power to formulate general po/icy of
transfers of Judges or Chief Justices from one High Court to another-Article 222
vests such power.

12. Constitution of India, Article 222 (/)-The word "Chief Justice" is
included in the expression "a Judge of the High Court"-Transfer of Chief Justice
D of High Court from one State to another, therefore, falls within the purview or
Article 222(1) of the Constitution.

13. Constitution of India, Articles 215, 216 and Proviso (c) to Arlicle 217
(1)-Whether Judges of lhe High Court constitute a single All India cadre for
purpose of appointment and transfer.

E 14. Constitution of India, Article 222-Proposal for transfer of a Judge or
Chief Justice of a High Court-The provisions of Article 222 must necessarily be
complied wir!z irrespective of the fact which authority initiates the proposal.

15. Constitution of India, Article 222 (2)-Transfer of a High Court Judge/
Chief Justice-Simultaneous fixation of compensatory allowance-Transfer order
and an order fixing compensatory allowance need not be simultaneous.
F
16. Constitution of India, Article 217 (/} proviso (e) and Article 222-
Distinction between "transfer" and "appointment"-Taking afresh oath by a trans·
feree Judge does not make a transfer a fresh appoil1tment.

· 17. Onus probandi-Constitution of India, Article 222 (1) read with Evi·
dence Act, sections JOI to 104-0nus of justifying transfer of a Judge is upon the
G State.

18. Constitution of India, Article 222 (1)-Transfer of a Judge-Advice
tendered by the Chief Justice of India must, ordinarily, be accepted by the Presi-
dent of India.
H
19. Transfer af a Judge, on 'mere allegations of misbehaviour or incapacity
whic~ fqrm, subject-matter of gq(i<m under Article 218 read with Article 224-
•1 J J ~
S.P. GUPTA v. UNION 367
Transfer of a Judge under the guise of Article 222 is impermissible and liable to A
be quashed.

20. Transfer of a Judge, exercise of power under Article 222 of the Cons-
titution, should be in public interest and not by way of punishment-The word
"consent" in Article 222 is a case of deliberate omission and not casus
omissus.
0
21. Interpretation of statutes and/or constitutional provi.lions-Duty of the
Supreme Court-Constitution of India, Article 141 and Preamble.

22. Interpretation of Constitution-Preamble to the Constitution-Court
must not bend language of Constitution according to its will.

23. Interpretation of statutes, when language is clear doctrine of casus
c
omissus will cease to be applicable.

24. Interpretation of statutes-External aid, marginal note, reference to
legislative debate, etc. as aid to interpretation of uctions, admissibility of.

25. Interpretation of Constitution, rules regarding-Power conferred by
Constitution upon authority cannot be denied on grounds of its misuse-Constitution
D
of India, 1950.

26. Interpretation of Constitution-Constitutional conventions scope and
~ its use as an aid to interpretation-Constitution of India.

27. Precedence-Judicial precedence-Value of-Ratio and not the con- E
clusion which binds-Constitution of India, Article 141.

28. Constitution of High Courts-Strength of Judges-Whether a writ af
mandamus can be issued against Union of India for fixing the strength of Judges
in each High Court-Constitution of India, Articles 216, 32, 74 and 226, scope a/-
Advice under Article 74 in the matter of appointment of Judges is binding.
F
29. Constitution of India, Articles 224 (2), 227 (2) and 274 (2)-Additional
Judges, their status and functions, explained.
\
30. Appointment of Additional Judges-Conditions precedent-Power of
President when can be exercised-Constitution of India, Articles 217 and 224.
G
31. Appointment of Judges-Appointment must be made by the Central
Government only after effective consultation as required by Articles 124 and 227
read with 74-Whether the opinion of the Chief Justice of India has a
primacy.

32. Appointment of additional Judges-Procedure regarding extension of H
tenure-Initiation well in time and in advance of proposals of recommendations
or otherwise is a must-Constitution of India, Article 217 and 224.

.
.
368 su-Pilllt.til couRt REPokts [1982] 2 s.c.R..

A 33. Words and phrases-"Consultation" -·Meaning of-Consultation
should be meaningful, purposeful and result-oriented-Constitution, Articles,
217, 222 and 224.

34. Additional Judges-Extension of term-Matters to be considered-
Appointment of Judges to High Court being purely an executive function of
President, Court cannot declare a sitting additional Judge to be deemed to have
B become permanent or direct the President to make him permanent.

35. Non-extension of the term of office of Mr. S.N. Kumar as an additional
Judge of the Delhi High Court, validity of

36. Constitution of India, Articles 217 and 224-Additional Judges, a right
c to be considered for fresh appointment-Short term extensions, propriety of justi-
ciability of denial to grant extension.

37. Additional Judge-Non-extension of his term-Principle of natural
justice-There is no necessity to give him opportunity of hearing.

38. Additional JudJ;e of a High Court-Non-extension of the term of the
D Judge as additional Judge of the High Court-Integrity of the Judge doubted by the
Chief Justice of High Court as disclosed before the Court--Judge ready to esta-
blish his innocence :and seeking opportunity from Supreme Court to do so-Supreme
Court cannot grant such opportunity in view of its restricted jurisdiction in such
cases-Constitution of India, Articles 32, 226 and I 39A jurisdiction of the Supreme
Court, explained.

E 39. Appointment of High Court Judges-Initial recruitment-Non-appoint-
ment of a person-Non-appointee aggrieved person has no standing and no writ
of mandamus will issue at his instance.

40. CollStitution of India, Articles 226 and 32-Courts have no powers to
decide questions of pure academic interest.

F 41. Constitution of India, Article 136-Powers of the Supreme Court to
grant Special Leave Petition-High Court rejecring petition under Article 226 in
limine on the ground that the petitioner was unable to produce documents beyond
his reach on which he wanted 10 place reliance-Rejection of the petition if invalid
S.L.P. could be granted.

42. Constitution o( India, Article 226-Writ proceedings-Pleadings in the
G form of affidavits, counter-affidavits, rejoinder-affidavits, etc. filed by the parties
to a writ petition also partakes of the character oi the evidence in the
case.

On March 18, 1981, Honourable Sri P. Shivshankar, Minister for Law,
H Justice and Company Affairs, Government of India addressed a circular letter to
the Governor of Punjab and the Chief Ministers of all the States, except the
S.P. GuPl·A v. UNioN 169
North-Eastern States, requesting them to obtain the consent of additional Judges A
serving in the High Courts to their appointment as permanent Judges of other
High Courts. Such consent was also required from persons who had already
been proposed or may in the future to be proposed for initial appointment.
The additional Judges, the proposed and the would-be-proposed for initial appo-
intment were requested to indicate three High Courts, in order of preference, to
which they would prefer to be appointed. It was made clear by the said circular
letter that the furnishing of the consent or the indication of a prefereJilce would B
not imply any commitment on the part of Government either in regard to their
appointment or in regard to accommodation in accordance witll the preferences
given.

Prior to, as well as after the issuance of the aforesaid circular letter by the
Union Law Minister on March 18, 1981, in several High Courts, including High
Courts of Allahabad, Bombay and Delhi, the President of India acting under C
Article 224 granted short-term extensions for three months, six months or a year
to sitting additional Judges whose initial terms were about to expire. Relying on
the letter dated May 7, 1981 of the Chief Justice of Delhi High Court, Mr. Justice
S.N. Kumar, Additional Judge of the Delhi High Court was finally not given
further appointment. Similarly, Mr. Justice O.N. Vohra. Additional Judge
of the same High Court was also not re-appointed after the expiry of
his tenure of appointment. D

Earlier, in exercise of the power conferred by Ar tide 222 (!)of the Consti-
tution the President of India by his order dated January 19, 1981 transferred
Mr. Justice M.M. Ismail, the then Chief Justice of the Madras High Court as ·
Chief Justice of the Kerala High Court and also Mr. Justice K.B.N. Singh,
Chief fostice of Patna High Court as Chief Justice of the Madras High E
Court with effect from the date they assumed charges of their respective
,, offices.
•
Since such short-term ext~nsions became a frequent phenomenon, parti-
cularly after the issuance of the circular letter dated March 18, 1981, it created
great consternation in the legal and judicial circles in the country.
These two actions of the Union Government, namely, the issuance of F
the circular letter dated March 18, 1981 and the grant of short-term extensions
led to legal action being taken challenging their constitutional validity by indi-
vidual lawyers, by Bar Associations in a representative capacity. Having regard
to their high positions as a constitutional functionary all the sitting Additional
Judges in various High Courts, though agitated by these two actions of the
Union Government understandably felt reluctant to adopt legal steps against
said circular letter as well as the short-term extensions. Mr. Justice O.N. Vohra, G
Additional Judge of the Delhi High Court, did not join issue when he was
dropped outright, while Mr. Justice S.N. Kumar as a party-respondent to the
Writ Petition filed in Delhi High Court actively supported the challenge to these
actions and also the further action of dropping him outright during the pendency
of the petition.
H
Though the transfer order dated January 19, 1981 in respect of the two
Chief Justices was also challenged, Mr. Justice M.M. Ismail refused to take part
SUPREME COURT REPORTS (1982] 2 s.c.R.

A as a party-respondent and chose to resign his high office, while Mr. Justice
K.B.N. Singh actively opposed the orders of transfer by transposing himself as
petitioner No. 3 to the petition.

Details of the several cases filed were :

(i) Transferred case No. 19 of 1981 was filed by Sri S.P. Gupta, an
B Advocate of the High Court at Allahabad. While challenging the validity of the
circular letter of March 18, 1981 it was contended (a) that the President has failed
to appoint the necessary number of permanent and additional Judges of the High
Court of Allahabad in accordance with Article 216 and clause (1) of Article 224 of
the Constitution; (b) the appointments of some of the additional Judges of the
High Court for short-terms of six months only was bad and they shouid have
been appointed as permanent Judges, and (c) a declaration should be issued to the
c effect that three Additional Judges, Mr. Justice Murali Dhar, Mr. Justice
A.N. Verma, Mr. Justice N. N. Mittal be deemed to have been appointed as
permanent Judges.

(ii) Transferred case No. 20 of 1981 was filed by Sri V.M. Tarkunde, a
senior Advocate of the Supreme Court, as a Writ Petition in the High Court of
Delhi assailing the circular and the appointments of three Additional Judges,
D Sri O.N. Vohra, Sri S.N. Kumar and Sri S.B. Wad for a further period of three
months only, It was prayed that the posts of additional Judges in the several
High Courts be converted into permanent posts.

(iii) In Transfer Case No. 21 of 1981, Shri J. L. Kalra and a few other
advocates filed as a Writ Petition in the High Court of Delhi, it was prayed that
E a mandamus be issued to the Union Government to create an adequate
number of posts of permanent and additional Judges and to make appointments
to those posts.

(iv) Transferred Case No. 22 of 1981, was filed as a Writ Petition in the
High Court of Bombay by four advocates, Sri Iqbal M. Chagla, Sri C.R. Dalvi,
Sri M.A. Rana and Sri Sarab K.G. Modi questioning the validity of the circular
F dated March 18, 1981 and have prayed inter alia for a declaration that the circular
letter is ultra vires and void and that the Union Government should be directed
not to act on the consent conveyed by the additional Judges.

These four cases constitute a group raising substantially common points
of consideration arising out of interpretation of Articles 124, 216, 217 and 224
of the Constitution.
G
(v) The Second group also constituted of four cases led by Writ Petition
No. 274 of 1981 filed by Miss Lily Thomas an Advocate practising in the
Supreme Court of India, under Article 32 of the Constitution. She challenged
the transfer of Sri M.M. Ismail, Chief Justice of the Madras High Court, to
Kerala High Court as Chief Justice, Sri M.M. Ismail filed an affidavit stating
H that he has decided not to proceed to Kerala, nor to challenge the validity of the
order of the President transferring him but to proceed on leave preparatory to
retirement. Shri M.M. Ismail has resigned since.
S.P. GUPTA v. UNION 371
(vi) Transfer Case No. 2 of 1981 was filed as a Writ Petition in the High A
Court of Madras by one Mr. A Rajappa, an Advocate, praying for a declaration
that the order of the President transferring Sri M.M. Ismail from the High Court
of Madras and Sri K.B.N. Singh, Chief Justice of the Patna High Court to
Madras High Court was void.

(vii) Transferred Case No. 6 of 1981 was another Writ Petition filed by
Sri P. Subramaniam praying for similar reliefs as Sri Rajappa in Transfer Case 8
No. 2 of 1981.

(viii) Two Advocates Sri D.N. Pandey and Sri Thakur Ramapathi Sinha,
filed Transferred Case No. 24 of 1981 in the High Court at Patna challeging the
order of transfer of Sri M.M. Ismail from the High Court of Madras to the High
Court of Kerala and of Sri K.B.N. Singh from the High Court at Patna to the
High Court of Madras. During the pendency of this Writ Petition, Sri K.B.N. c
Singh, who has been impleaded as a respondent was transposed as a
petitioner; and

(ix) Special Leave Petition No. 1509 of 1981 filed by Ripudaman Prasad
Sinha is directed against an order passed by the . High Court at Patna rejecting
in limine the Writ Petition of the petitioner challenging the constitutional validity
of the order of transfer of Chief Jusctice K.B.N. Singh, on the ground that he D
had not been able to produce the documents on which he wanted to place
reliance.

_,}.. Several contentions raised in these Writ Petitions are :

(i) The actions of the Union Government forming part of a scheme consti- E
tute a direct attack on the independence of judiciary, which is a basic feature
..... of a constitution.
•
(ii) The circular dated March 18, 1981, seeks to effect, in substance and
reality, a mass transfer of sitting ·Additional Judges as also the proposed
appointees based on a policy decision unilaterally taken by the Law Minister/
Union Government and as such violates the requirements of Article 222(1) of F
the Constitution as laid down by the Supreme Court in Sankal Chand's case
[1978] 1 S.C.R. 423 in as much as such mass transfers on alleged grounds of
policy are outside its scope and further it reduces the efficacy of the consulta-
tion with the Chief Justice of India contemplated therein to a meaningless
formality by presenting a transfer proposal to him as a fait accompli, the same
being backed by the consent of the concerned judge or the proposed appointee
to his transfer. G
(iii) The circular letter was without the authority of law.

(iv) The circular letter, as far as the sitting of Additional Judges are con-
cerned, contains by implication a threat to them (a) that if they do not give their
consent they will not be either continued as Additional Judges or confirmed as H
Permanent Judgos: (b) that the Government would watch their performance in
matters to which the Government, Government bodies and Corporations are
372 SUPREME COORT REPORTS (1982) 2 s.c.R

A parties before them and would appoint them as Permanent Judges only if they
were found to toe the Government line and as such it constitutes gross inter-
ference with administration of justice and is subversive of judicial independence.

(v) The circular letter seeks to obtain consent under threat, coercion and
duress and also in advance and in abstract and the same would be no consent in
law •.
B (vi) As regards the proposed appointees it introduces an additional quali-
fication for being appointed as Additional or Permanent Judge not warranted by
the Constitution.

(vii) The circular letter was written ma/a fide for a collateral purpose to
by pass Article 222 and further to exercise the power of appointing additional
c judges not for the purpose for which that power has been confirmed but for the
purpose of carrying out the so-called "policy" of the Government and is therefore
malafide in the sense that the power [is being exercised for a collateral purpose
foreign to the purpose indicated in Article 224.

(viia) The circular letter under which absolute power and discretion
is claimed to the effect that there is no obligation on the part of the Union
Government to continue the sitting additional Judges after th€ expiry of their
D
initial term notwithstanding pendency of arrears of work or to make them
permanent as and when permanent vacancies become available and to appoint
different persons for different periods of additional Judges in the vacancies of
sitting additional Judges after their initial terms have expired, is a clear abuse of
the power conferred by Article 224 (I) of the Constitution, because the power, -L..
being purposive is coupled with a duty to exercise the same when the conditions
E precedent mentioned in provision exist and the circular letter which claims such
absolute power is violative of the provisions of Article 224, in any case the course
of action proposed in the said circular letter in exercise of such absolute power
claimed thereunder is contrary to the established constitutional convention and
practice that has grown over the years in the matter of appointment of Additio-
nal Judges and, therefore, bad in law inasmuch as Article 224 (1) has been inter-
preted and workea having regard to the said convention and practice.
F
(viii) The circular letter is violative of Article 14 of the Constitution inas-
much as it makes invidious discrimination against those who would be refusing
to furnish their consent as they will suffer a disadvantage, while those who would
be furnishing their consent would stand to gain, it gives to the Government -!
unfettered and unguided power or discretion to pick and choose i.e. select some
for being shifted to High Courts other than their home-State High Courts and to
G retain and appoint other in their home.-State High Courts-which power can be
exercised either by way of punishment or by way of favouritism.

(ix) In the appointment of Additional Judges of one High Court as
Permanent Judges of another High Court or in the appointments of the members
of the Bar practising in one High Court as Additional or Permanent Judges of
H another High Court pursuant to the consent obtained under the said circular
letter, the consultation with the Governor of that other State and particularly
with the Chief Justice of that other High Court would be illusory and an empty
s.1'. GUPTA v. t.JNioN 373
formality and as such circular letter is violative of Article 217 of the Con- A
stitution.

(x) The short-term extensions are directly subversive of the independence
of Judiciary and not contemplated by the Constitution.

(xi) A member of th~ Bar who accepts the appointment of an Addi-
tional Judge has legitimate expectation that he will be confirmed as Permanent
B
Judge of that High Court when a vacancy occurs and in the past he has been
confirmed except in the rarest of cases. The power claimed under Article
224 (I) not to continue the Additional Judges, even if temporary increase in
the Court's business persists or pendency of arrears justifies such continuance
after the expiry of the initial term and not to make him permanent even if a
vacancy of permanent post occurs and to appoint another person as Addi-
tional Judge by ignoring the legitimate expectancy of the sitting incumbent
c
whose initial term has expired, apart from involving an unjustified departure
from the well recognised and established practice, amounts to breach of faith
with the concerned Judge and further to ask such Additional Judge who has
given such undertaking to agree in advance to a transfer (or even to accept
. fresh appointment) to other High Courts as a Permanent Judge also involves
similar breach of faith amounts to a clear abuse of power and the purported D
exercise of the power in that manner would be illegal and void.

(xii) The claim made by the Government that Article 224 (1) only fixes
the maximum period of two years at a time, that the Article does not limit the
discretion of the Government in the matter of the period for which an Addi-
tional Judge can be appointed except in regard to the ceiling of two years and
that the appointment can be for a shorter period and that 'period is not justiciable E
is untenable in law and clearly wrong because, apart from involving an unjusti-
fied departure from the well recognised and established practice, it introduces an
element of insecurity of tenure having serious repercussions on the independence
of Judiciary and also undermines people's confidence and faith in it.

(xiii) Article 216 of the Constitution casts a primary obligation upon the F
President mandatorily to provide adequate strength of Permanent Judges to cope
with the normal busines in every High Court so as to ensure its disposal within
reasonable time and to review such strength from time to time so that arrears do
not acoumulate and justice to litigants is not unduly delayed. When the objective
facts unmistakably demonstrate that the increase of business every year or that
the arrears have increased and accumulated to an appreciably disturbing level
with no reasonable prospects of substantialy reducing the same over a period of
years, the President cannot resort to Article 224 (I) but has to increase the per-
G
manent strength by making permanent appointments under Article 217. In any
case Additional Judges cannot be appointed while keeping permanent posts
vacant.

(xiv) To keep a large number of sitting Judges as Additional Judges H
would be arbitrary and unconstitutional and a clear case exists for declaring
them to be deemed to have become permanent.
374 SUPREME COURT il.Ei>oilis (1982) 2 s.c.tl.

A (xv) Article 222 (I) does not refer to a Chief Justice hence the order
dated 19-l-198Jis outside its purview.

(xvi) Since Article 222 (1) properly construed, covers only consensual trans·
fers, the transfer order dated 19-1-1981 which is admittedly non-consensual, is
bad in law.
8
(xvii) The transfer dated 19-1-1981 was not effected in public interest. 1"
(xviii) The transfer has been effected without full and effective consulta·
tion contemplated by Article 222 (1) and therefore the procedure followed in
effecting the same did not ensure fairplay in relation to K.B.N. Singh and the
c transfer is punitive in character.

The contesting respondents raised a preliminary objection as to maintaina-
bility of the petitions inasmuch as the advocates had no locus standi and as to
the request for disclosing certain correspondence in the case of S.N. Kumar,
Additional Judge, of the Delhi High Court, the respondents claimed privilege
under sections 123 and 162 of the Evidence Act.
D
Dismissing the petitions, the Court, while agreeing that (a) the petitioners
being advocates had a 'standing' to challenge the va!idity of circulars; (b) inde-
pendence of Judiciary is the founding faith of the Constitution and the power to
appoint Judges is executive in the nature and the President is bound by the
advice of the Cabinet by virtue of Article 74; (c) As to appointment and exten-
sion of Additional Judges, consultation with constitutional functionaries must be
E meaningful and result-oriented, none of them can exercise veto in the matter
and the proposal can emanate from any of them and (d) transfer must be in
public interest, not by way of punishment and personeal inconvenience, language
problem and other factors should be taken into consideration,

HELD : (Per majority).

F (i) The circular letter of the Law Minister dated 18.3.81 is not
invalid because it is a document without any legal force and does not by
itself of its own force, produce any legal consequence or effect but if any
adverse action is taken against an additional judge because he has not given
his consent for being appointed a permanent judge in another High Court,
such adverse action would be invalid. Since an additional Judge has a right to
G be considered for appointment as an additiona 1 Judge for a further term on the
expiration of his original term, and in case of a vacancy in a permanent post, for
appointment as a permanent Judge in his own High Court, he cannot be dis-
continued as an additional Judge on the ground that be has not given hi; con-
sent for being appointed as a permanent Judge in any other High Court.
Such a ground for discontinuing as an additional Judge would be a
wholly irrelev2nt ground and if an additional Judge is discontinued on any such
H ground, the decision of the President discontinuing him would be unconstitutional
and void. [Vide opinions of P.N. Bhagwati, S.M. Fazal Ali, D.A. Desai and
E.S. Venkataramiah, JJ.]
S.P. GUPTA V, UNION 375
(ii) Among the opinions of the three constitutional consultancies, the A
opinion of the Chief Justice of India does not enjoy primacy over the other two
opinions in the matter of appointment of Judges. (Vide P.N. Bhagwati, S.M.
Fazal Ali, D.A. Desai and E.S. Venkataramiah, JJ.)

(iii) Non-extension of Mr. Justice S.N. Kumar after the expiry of his term
was not invalid. (Vide P.N. Bhagwati, S.M. Fazal Ali, D.A. Desai and E.S.
Venkataramiah, JJ.) B
(iv) "Consent" is not necessary for the transfer of a Judge under
Article 222, (Vide A.C. Gupta, Fazal Ali, V.D. Tulzapurkar, D.A. Desai,
R.S. Pathak and E.S. Venkataramiah, JJ.)

(v) The transfer of Sri K.B.N. Singh, the Chief Justice of the Patna High
Court is in public interest and not vitiated by malafides. (Vide /,,C. Gupta, C
V.D. Tulzapurkar, R.S. Pathak and E.S. Venkataramiah, JJ.)

(vi) No privilege could be claimed in respect of documents which consti-
tuted material for forming the opinions in the matter of either appointment or
transfer of the Judges. (Vide P.N. Bhagwati, A.C. Gupta, V.D. Tulzapurkar,
D.A. Desai, R.S. Pathak and E.S. Venkataramiah, JJ.)
D
Per Bhagwati, J.

I : I. The principle of independence of the judiciary is not an abstract con·
ception but it is a living faith which must derive its inspiration from the constitu-
.4. tional character and in nourishment and sustenance from the constitutional
values. Indian Constitution is a document of social revolution which casts an
obligation on every instrumentality including the judiciary, which is a separate E
but equal branch of the State to transform the status quo ante into a new human
order in which justice, social, economic and political will inform all institutions
of national life and there will be equality of status and opportunity for all. The
judiciary has therefore a socio-economic d~stinat ion and a creative function.
It cannot remain content to act merely as an umpire but it must be functionally
involved in the goal of socio-economic justice. Therefore, what is necessary is
to have Judges who are prepared to fashion new tools, forge new methods, F
innovate new strategies and evolve a new jurisprudence, who are judicial states-
men with a social vision and a creative faculty and who have, above all, a deep
sense of commitment to the Constitution with an activist approach and obligation
for accountability, not to any party in power nor to the opposition nor to the
classes which are vociferous but to the half hungry millions of India who are
continulaly denied their basic human rights. Only Judges who are alive to
the soc10-economic realities of Indian life, who are anxious to wipe every G
tear from every eye, who have faith in the constitutional values and
who are ready to use law as an instrument for achieving the constitutional
objectives are needed. And this has to be the broad blue-print of the appoint-
ment project for the higher echelons of judicial service. It is only if appoint-
ments of Judges are made with these considerations weighing predominently with
the appointing authority that we can have a truly independent judiciary commit- H
\~d only to the <;:onsti!\lti<;m an\! to the people of India.
, ~534' J:I 1 5.35~A-!3 1 536 f-H 1 537 AJ
376 SUPREME COURT REPORTS [1982] 2 S.C.R.

A 1 : 2. The concept of the independence of the judiciary is a noble concept
which inspires the constitutional scheme and constitutes the foundation on which
rests the edifice of our democratic polity. If there is one principle which runs
through the entire fabric of the Constitution, it is the judiciary which is entrusted
with the-task of keeping every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective. It is to aid the judiciary
in this task that the power of judicial review has been conferred upon the judiciary
B & it is by exercising this power which constitutes one of the most potent weapons
in armoury of the law, that the judiciary seeks to protect the citizen against viola-
tion of his constitutional or legal rights or misuse or abuse of power by the State
or its officers. The judiciary stands between the citizen and the State as a bulwark
against executive excesses and misuse or abuse of power by the executive and
therefore it ls absolutely essential that the judiciary must be free from execu-

c tive pressure or influence and this has been secured by the Constitution
makers by making elaborate provisions in the Constitution. The concept of
independence of the judiciary is not limited only to independence from execu-
tive pr~ssure or influence but it is much wider concept which takes within its
sweep independence from many other pressures and prejudices. It has many
dimensions, namely, fearlessness of other power centres economic or p()litical,
and freedom from prejudices acquired and nourished by the class to which the
Judges belong. [537 A-El
D

1 : 3. Judges should be of stern stuff and tough fibre, unbending before
power, economic or political, and they must uphold the core principle of the
rule of law which says "Be you ever so high, the law is above you." This is the
E principle of independence of the judiciary which is vital for the establishment of
real participatory democracy, maintenance of the rule of law as a dynamic
concept and delivery of social justice to the vulnerable sections of the community,
It is this principle of independence of the judiciary which must be kept in mind
while interpreting the relevant provisions of the Constitution. [537H, 538A-B]

F 2 : J. The traditional rule in regard to locus standi is that judicial redress
is available only to a person who has suffered a legal injury by reason of violation
of his legal right or legally protected interest by the impugned action of the
State or a public authority or any other person or who is likely to suffer a legal
injury by reason of threatened violation of his legal right or legally protected
interest by any such action. The basis of entitlement to judicial redress is per-
sonal injury to property, body, mind or reputation arising from violation, actual
G or threatened, of the legal right or legally protected interest of the person
seeking such redress. This is a rule of vintage and it arose during an era when
private law dominated the legal scene and the public law had not been born.
Under this rule, the court concerned only with the question whether the
applicant was an aggrieved person. According to this rule, it is only a person
who has suffered a specific legal injury by reason of actual or threatened viola-
H tion of his legal right or legally protected interest who can bring an action
for judicial redress. This rule in regard to lo~us standi postulates a right-duty
pat!ern. J513A, Sl4A-C,'S15A-BJ
S.P. GUPTA v. UNION 377

2 : 2. But, narrow and rigid though this rule may be, there are a few excep- A
tions to it which have been evolved by the Courts over the [years. They are:
(a) A rate payer of a local authority is accorded standing to challenge an illegal
action of the local authority; (b) if a person is entitled to participate in the
proceedings relating to ·the decision making process culminating in the impugned
decision, he would have locus stiindi to maintain an action challenging the
impugned decision; (c) the !tatute itself may expressly recognise the locus standi
of an applicant, even though no legal right protected interest of the applicant has B
been violated resulting in legal injury to him; and (d) the applicant for judicial
y redress must have suffered a legal wrong or injury in order to entitle him to
maintain an action for such redress. [515B,C,D,F, 516A]

2 : 3. Where a person who ha• suffered a legal wrong or a legal injury or
whose legal right or legally protected interest is violated, is unable to apporach the
court on account of some disability or it is not practicable for him to move the c
-
court for some other sufficient reasons, such as his socially or economically dis-
advantanged position, some other person can invoke assistance of the court for
the pupose of providing judicial redress to the person wronged or injured, so that
the legal wrong or injury caused to such person does not go unredressed and
justice is done to him.[517 A·B]

Ex-parte Sidebotham, 14 Chancery Division 458; Reed Baveri & Comp'lny,
0
19 Q.B. Division 174, K.R. Shenoy v. Udipi Municipality, A.I.R. 1974 SC 2177;
Vaidarajan v. Salem Municipality; A.LR. 1973 Mad. 55; Queen v. Bowman (1898)
Q.B. 633; J.M. Desai v. Roshan Kumar, 1976 3 SCR 58; Rat/am Municipality v.
Vardhi Chand, A.I.R. 1980 SC 1622; United States v. Raines, 362 U.S. 17; 4
L. Ed. 2 d 524; Atwood v. Merry Wether, (1867) 5 Equity 464; Duryappah v.
Fernando, (1967) 2 Appeal Cases 337; Barrows v. Jackson, 346 U.S. 249; Law
Ed. 1586; Suni/ Batra v. Delhi Administration, A.I.R. 1980 SC 1579; Dr. Upendra
E
Baxi v. State of U.P., (1981) 3 Scale 1137, discussed and referred to.

2 : 4. Where a legal wrong or a legal injury is caused to a person or to a
determinate class of persons by reason of violation of any constitutional or legal
right or any burden is· 'imposed in contravention of any constitutional or legal
provision or without authority of law or any such legal wrong or legal injury or F
illegal burden is threatened and such person or determinate class of persons i~
by reason of poverty helplessness or disability or socially or economically

-. ,
disadvantaged position, unable to approach the court for relief any member of
the public can maintain rn application lor an appropriate direction, order or
writ in the High Court under Article 226 and in case of breach of any funda-
mental right of such person or determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal wrong or injury caused to such G
person or determinate class of persons. Where the weaker sections of the
community are concerned, who are helpless victims of an exploitative society
and who do not have easy access to justice, Supreme Court will not insist on a
regular writ petition to be filed by the public spirited individual espousing their
• cause and seeking relief for them. Supreme Court will readily respond even to
a letter addressed by such individual acting pro bono publico. It is true that H
there are rµles made by Supreme c:;ourt prescri\Jin(l the pr<;>C\l\11,lre for movin!I
378 SUPREME COURT REPORTS [1982] 2 s.c.R.
A Supreme Court for relief under Article 32 and they require various formalities
to be gone through by a person seeking to approach Supreme Court. But, proce-
dure is but a handmaiden of justice and the cause of justice can never be allowed
to be thwarted by any procedural technicalities. The Court would therefore
unhesitatingly and without the slightest qualms of conscience cast aside the
technical rules of procedure in the exercise of its dispensing power and treat the
letter of the public minded individual as a writ petition ~nd act upon it. But the
B individual who moves the court for judicial redress in cases of this kind must be
acting bona fide with a view to vindicating the cause of justice and if he is
acting for personal gain or private profit or out of political motivation or other
oblique consideration, the court should not allow itself to be activised at the
instance of such person and must reject his application at the threshhold
whether it be in the form of a letter addressed to the court or even in the form of
a regular writ petition filed in court. As a matter of prudence and not as a
c rule of law, the court may confine this strategic exercise of jurisdiction to cases

-
where legal wrong or legal injury is caused to a determinate class O" group of
persons or legal right of such determinate class or group of persons
is violated and as far as possible, not en.tertain cases of individual wrong
or injury at the instance of a third party, where ·there is an effective legal aid
organisation which can take careof such cases. [520 B-H, 521 ~-Fl

D
2:5. Cases, where the State or a public authority may act in violation of
a constitutional or statutory obligation or fail to carry out such obligation,
resulting in injury to public interest may conveniently be termed as public
injury as distinguished from private injury. (521 H, 522 A]

If the State or any public authority acts beyond the scope of its power and
E thereby causes a specific legal injury to a person or to a determinate class or
group of persons, it would be a case of actionable private injury. If the duty
is owed by the State or any public authority to a person or to a determinate
class or group of persons, it would give rise to a corresponding right in such
person or determinate class or group of persons and they would be entitled to
maintain an action for judicial redress. But if no specific legal injury is caused
to a person or to a determinate class or group of persons by the act or omission
F of the State or any public authority and the injury is caused only to public inte-
rest, and if no one can maintain an action for redress of such public wrong or
public injury, it would be disasterous for the rule of Jaw, for it would be open
to the State or a public authority to act with impunity beyond the scope of its
power or in breach of a public duty owed by it. The courts cannot countenance
<uch a situation where the observance of the law is left to the sweet will of the
authority bound by it, without any redress if the law is contravened. Therefore,
G whenever there is a public wrong or public injury caused by an act or omission
of the State or a public authority which is contrary to the Constitution or the
law, any member of the public acting bona fide and having sufficient interest
can maintain an action for redressal of such public wrong or public injury. The
strict rule of stancting which insists that only a person who has suffered a specific

H
legal injury can maintain an action for judicial redress is relaxed and a broad
rule is evolved which gives standing to any member of the public, who is not a
mere busy-body or a meddlesome interloper, but who has sufficient interest in the
-·
proceedini:. There c1111 be n<;> c;!o\lbt that the ris!< of Iei:al action ai:ainst the State
S,P, GUPTA V, UNION 379

or a public authority by any citizen will induce the State or such public authority A
to act with greater responsibility and care thereby improving the administration
of justice. [522 F-H, 523 A-El

Rex v. Inland Revenue Commissioners, (1981) 2 W.L.R. 722 al 740, quoted
with approval.
B
2:6. If public duties are to be enforced and social collective 'diffused'
rights and interests are to be protected, the initiative and zeal of public-minded
persons and organisations must be utilised by allowing them to move the court
and act for a general or group interest, even though, they may not be directly
injured in their own rights. It is for this reason that in public interest litigation-
litigation undertaken for the purpose of redressing public injury, enforcing pub-
lic duty, protecting social, collective, 'diffused rights and interests or vindicating c
public interest, any citizen who is acting bona fide and who has sufficient interest
has to be accorded standing. What is sufficient interest to give standing to a
member of the public would have to be determined by the Court in each indivi-
dual case. [526 H. 527 A-Bl

2:7. It is not possible for the Court to lay down any hard and fast rule
or any straight jacket formula for the purpose of defining or delimiting 'suffi- D
cient interest'. The Judge who has the correct social perspective and who is on
the same wave-length as the Constitution will be able to decide, without any diffi-
culty and in consonance with constitutional objectives, whether a member of the
public moving the court in a particular case has sufficient interest to initiate the
action. [527 B, D-El

Any member of the public having sufficient interest can maintain an E
action for judicial redress for public injury arising from breach of public duty
or from violation of some provision of the Constitution or the law and seek
enforcement of such public duty and observance of such constitutional or legal
provision. This is absolutely essential for maintaining the rule of law, furthering,
the cause of justice and accelerating the pace of realisation of the constitutional
objective. But care should be taken to see that the member of the public, who
approaches the court in cases of this kind, is acting bona fide and not for per- F
sonal gain or private profit or political motivation or other oblique considera-
tion. The Court must not allow its process to be abused by politicians
and others to delay legitimate administrative action or to gain a political
objective. [530 D-E, 532 B-C]

Data Processing Service v. Camp; 397 U.S. 150: 2d 25 Law Ed. 184; Office G
of Communication of the United Church of Christ v. FCC, U.S. App. DC. 328;
United States v. Richardson, 418 U.S. 166; Warth v. Seldin. 422 U.S. 490; Attor-
ney General v. Independent Broadcasting, Authority, 1973 1 All England Reports
689; Rex v. Greater London Council; Gouriet v. U.P. W., 1978 Appeal Cases 482,
quoted with approval.
B
2:8. There is a vital distinction between "locus standi and "justiciability"
and it is not every default on the p&rt <?f the ~late or a public authoritr that is
380 SUPREME COURT REPORTS (1982) 2 S.C.R.

A justiciable. The Court must take care to see that it does not over-step the limits
of its judicial function and trespass into areas which are reserved to the Execu-
tive and the Legislature by the Constitution. It is a fascinating exercise for the
Court to deal with public interest litigation because it is a new jurisprudence
which the court is evolving, a jurisprudence whkh demands judicial statesman-
ship and high creative ability. [532 D-E]

B 2:9" There can be no doubt that the practising lawyers have a vital interest
in the independence of the judiciary and if any unconstitutional or illegal action is
taken by the State or any public authority which has the effect of impairing
the independence of the judiciary, they would certainly be interested in challeng-
ing the constitutionality or legality of such a.:tion The rrofession of lawyers is an
essential and integral part of the judicial system and lawyers may figuratively be
described as priests in the temple of justice. They assist the court in dispensing
c jusitice and it can hardly be disputed that without their help, it would be well
nigh impossible for the Court to administer justice. They are really and truly
officers of the Court in which they daily sit and practise. They have, therefore, a
special interest in preserving the integrity and independence of the judicial s)stem
and if the integrity or independence of the judiciary is threatened by any act of the
-
State or any public authority they would naturally be concerned about it,
because they are rqual partners with the Judges in the administration of
D justice. [533 C-F]

The circular letter, on the averments ruade in the writ petition, did not
cause any specific legal injury to an individual, but it caused public injury by
prejudicially affecting the independence of the judiciary. The petitioners being
lawyers h d sufficient interest to challenge the cons1itutionality of the circular
leUer and they were, therefore, entitled to file the writ petition as a public
E interest litigation. They had clearly a concern deeper than that of a busy body
and they cannot be told off at the gates. [533 H, 534 A]

Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 344,
applied.

3:1. The Court does not decide issues in the abstract. It undertakes
F determination of a controversy provided it is necessary in order to give relief to
a party and if no relief can be given because none is sought. The Court cannot
take upon itself a theoretical exercise merely for the purpose of deciding acade-
mic issues, howscevcr important they may be. The Court cannot, embark upon
an inquiry whether there was any misuse or abuse of power in a particular case,
unless relief is sought by the person who is said to have been wronged by such
n.isuse or abuse of power. For this reason, the correspondence exchanged bet-
G ween the Law Minister, the Chief Justice of Delhi and the Chief Justice of
India in regard to non-appointment of O.N. Vohra was not relevant to the
issues arising for determim1tion in the writ petition and the Union of India
could not be required to disclose it. [588 H, 589 A]

3:2. But, since the decision of the Central Government not to appoint
H S.N. Kumar as an additional Judge for a further term was assailed, firstly, that
there has been no full and effective consultation bet ween the Central Government
and the constitutional authorities required to be consulted under that Article
s.P. GUPTA v. UNloN 381

and, secondly, that the decision of the Central Government is based on irrelevant
A
grounds, the correspondence exchanged between the Law Minister, the Chief
Justice of Delhi and the Chief Justice of India would be relevant qua both these
grounds. [589 E-F]
3:3. Under our Constitution the President is a constitutional Head and is
bound to act on the aid and advice of the Council of Ministers. The decision of
the President under Article 224 read with Article 217 not to appoint an additional B
Judge for a further term is really a decision of the Council of Ministers and the
reasons which nave weighed with the Council of Ministers in taking such deci-
sion would necessarily be part of the advice tendered by the Council of Ministers
to the President. The Court cannot, having regard to clause (2) of Article 72,
embark upon an inquiry as to whether any and if so what advice was tendered
by the Council of Ministers to the President and since the reasons which have
prevailed with the Council of Ministers in taking a particular decision not to c
continue an additional Judge for a further term would form part of the
advice tendered to the President, they would be beyond the ken of judicial
inquiry. [590 B, E-F, G-H, 591 A]

3:4. There can be no doubt that the advice tendered by Council of Ministers
to the President is protected against judicial scrutiny by reason of clause (2) of
Article 74. But it cannot be said that the views expressed by the Chief Justice D
of the High Court and the Chief Justice of India on consultation form part of
the advice. The advice is given by the Council of Ministers after consultation
with the Chief Justice of the High Court and the Chief Justice of India. The
two Chief Justices are consulted on "full and identical facts" and their views are
obtained and it is after considering ihose views that the Council of Ministers
arrives at its decision and tenders its advice to the President. The views
expressed by the two Chief Justices precede the formation of the advice and
merely because they are referred to in the advice which is ultimately tendered by
E
the Council of Ministers, th~y do not necessarily become part of the advice.
What is protected against disclosure under clause (2) of Article 74 is only the
advice tendered by the Council of Ministers. The reasons which have weighed
with the council of Ministers in giving the advice would certainly form part of
the advice. The material on which the ad,·ice tendered by the Council of
Ministers is based cannot be said to be part of the advice and the correspon-
dence exchanged between the Law Minister, the Chief Justice of Delhi and the F
Chief Justice of India which constituted th~ material forming the basis of the
decision of the Central Government must accordingly be held to be outside the
exclusionary rule enacted in clause (1) of Article 74. [594 E-H. 595 A-Fl

State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371, overruled.

State of Rajasthan v. Union of India, [1978] 1SCR1, referred to. G
3:5. Where a society has chosen to accept democracy as its credal faith, it
is elementary that the citizons ought to know what their government is doing.
The citizens have a right to decide by whom and by what rules they shall be
governed and they are entitled to call on those who govern on their behalf to
account for their conduct. No democratic government can survive without H
accountability and the basic postulate of ac"ountability is that the people should
have information about the functioning of the government. [598 D-F]
382 SUPREME COURT REPORTS (1982] 2 s.c.tl.

3:6. The demand for openness in the government is based principally on
two reasons. It is now widely accepted that democracy does not consist merely
in people exercising their franchise once in five years to choose their rulers and,
once the vole is cast, th:n retiring in p1ssivity and not taking any interest in the
government. Today it is common ground that democracy has a more positive
content and its orchestration has to be continuous and pervasive. This means
inter alia that people should not only cast intelligent and rational votes but should
B also exercise sound judgment on the conduct of the government and the merits of
public policies, so that democracy does not remain merely a sporadic exercise in
voting but becomes a continuous process of government-an attitude and habit
of mind. But this important role people can fulfil in a democracy only if it is an
open government where there is full access to information in regard to the func-
tioning of the government. Now, if secrecy were to be observed in the func-
tioning of government and the processes of government were to be kept hidden
c from public scrutiny, it would tend to promote and encourage oppression,
corruption and misuse or abuse of authority, for it would all be shrouded in the
veil of secrecy without any public accountability. But i( there is an open govern-
ment with means of information available to the public, there would be greater
exposure of the functioning of government and it would help to assure the people
a better and more efficient administration. There can be little doubt that expo-
sure to public gaze and scrutiny is one of the surest mean nf achieving a clean
D and healthy administration. [599 A-C, E-G]

State of Uttar Pradesh v. Raj Narain, [1975] 3 SCR 333 at page 360,
referred to.

3:7. The concept of an open government is the direct emanation from the
right to know which se.ems to be implicit in the right of free speech and expression
guaranteed under Article 19 (1) (a). Therefore, disclosure of information in
E regard to the functioning of Government must be the rule and secrecy an excep-
tion justified only where the strictest requirement of public interest so demands.
The approach of the court must be to attenuate the area of secrecy as much as
possible consistently with 1he requirement of public interest, bearing in mind all.
the time that disclosure also serves an important aspect of public interest.
. [602 B-D]

F 3:8. The court would allow the objection to disclosure if it finds that the
document relates to affairs of State and its disclosure would be injurious to public
interest, but on the other hand, if it reaches the conclusion that the document
does not relate to affairs of State or that the public interest does not compel its
non-disclosure or that the public interest in the administration of justice in the
particular case before it overrides all other aspects of public interest, it will over-
rule the objection and order disclosure of the document. The basic question to
which the court would therefore have to address itself for the purpose of deciding
the validity of the objection would be whether the document relates to affairs of
State or in other words, it is of such a character that its disclosure would be agains 1
the interest of the State or the public service and if so, whether the public interest
in it• non-disclosure is so strong that it must prevail over the public interest in
the administration of justice and un that account, it should not be allowed to be
H disclosed. The final decision in regard to the validity of an objection against
disclosure raised under section 123 would always be with the court by reason o{
section 162. [607 A-DJ
$.1>. GUt>t A v. UNION 383

3:9. Now an objection against the disclosure of a document on the ground A
that it relates to affairs of State may be made before the court either because it
would be against the interest of the State or the public service to disclose its
contents or because it belongs to a class of document which in the public interest
ought not to be disclosed, whether or not it would be harmful to disclose the
contents of the particular document. Where immunity from disclosure is claimed
on the ground that disclosure of the contents of the document would be injurious
to the interest of the State or the public service it would not be difficult to decide
the claim because it would almost invariably be supported by an affidavit made
either by the Minister or by the head of the department and if the Minister or the
head of the department asserts that to disclose the contents of the document
"would or might do to the nation or the public service a grave injury, the court
will be slow to question his opinion or to allow any interest, even that of justice
to prevail over it" unless there can be shown to exist some factor suggesting
either lack of good faith or an error of judgment or an error of law on· the part
of the minister or the head· of the department. But, even in such cases, it is
c
now well-settled that that the court is not bound by the statement made by the
minister or the bead of the department in the affidavit and it retains the power
to balance the injury to the State or the public service against the risk of
injustice, before reaching its decision. But the claim in the present case to
withhold disclosure of the correspondence exchanged between the Law Minister
the Chief Justice of Delhi High Court and the Chief Justice of India in 0
regard to continuance of S.N. Kumar is not based on the ground that the
contents of these particular documents are such that their disclosure would
harm the national interest or the interest of public service. [607 E-H, 609 A-BJ

3 : 10. The court has to balance the detriment to the pubiic interest on
the administrative or executive side which would result from the disclosure of
the document against the detriment to the public interest on the judicial side E
which would result from non-disclosure of the document though relevant to the
proceeding. The court has to decide which aspect of the public interest predo-
minates or in other words, whether the public interest which requires that the
document should not be produced, outweighs the public interest that a court of
justice in performing its function should not be denied access to relevant evidence.
The court has thus to perform a balancing e•ercise and after weighing the one
competing aspect of public interest against the other, decide where the balance F
lies. If the court comes to the conclusion that, on the balance, the disclosure of
the document would cause greater injury to public interest than its non-disclosure
the court would uphold the objec1ion and not allow the document to be disclosed
but if, on the 01her hand, the court finds that the balance between competing
public interest lies the other way, the court would order the disclosure of the
document. This balancing between two competing aspects of public interesi has G
to be performed by the court even where an objection to the disclosure of the
document is taken on the ground that it belongs to a class of documents which
are protected irrespective of their contents, because there is no absolute
immunity for documents belonging to such class. [612 G-H: 613 A-CJ

3 : 11. There is a heavy burden of proof on any authority which makes
the. claim for cla~s immunity. The claim for class immunity is an extraordinary
H
claim because 1t is based not upon the contents of the document in question but
384 stJi>RilMil cobRT kEPORTs [ 1982] 2 s.c.k.

A upon its membership of a class whatever be its contents and therefore the court
should be very slow in upholding such a broad claim which is contradictory, if not
destructive, of the concept of open government. Secondly, classes of documents
which the immunity may be accorded are not closed and in the life of a fast
changing society rapidly growing and developing under the impact of vast scien-
tific and technological advances new class or classes of documents may come into
existence to which the immunity may have to b~ granted in public interest, but
B that should only be as a highly exceptional measure. It is only under the seve-
rest compulsion of the requirement of public interest that the court may extend
the immunity to any other class or classes of document and in the context of
our commitment to an open government with the concommitment right of the
citizen to know what is happening in the government, the court should be
reluctant to expand the classes of documents to which immunity may be granted.
The court must on the contrary move in the direction of attenuating the protec-
c ted class or classes of documents, because by and large secrecy is the badge
of an authoritarian government. (625 C-G]

3 : 12. In cases of this kind where non-appoinment of a additional Judge
for a further term or transfer of a High Court Judge is challenged, the disclosure
of the correspondence exchanged between the Law Minister, the Chief Justice of
D the High Court, the State Government and the Chief Justice of India and the
relevant notings made by them, could not at all be said to be injurious to
public interest. (628 A-BJ

Science Research Council v. Nasse, 1979 All England Reports p. 673, . ;<
quoted with approval.

E
3 : 13. In a proceeding where the transfer of a High Court Judge or Chief
Justice of a High Court is challenged, no immunity can be claimed in respect
of the correspondence exchanged between the Law Minister and the Chief Justice
of India and the notings made by them,. since, on the balance, the non-disclo-
sure of these documents would cause greater injury to public interest than what
may be caused by their disclosure. Further the disclosure of the correspondence
F exchanged between the Law Minister, the Chief Justice of the High Court, the
State Government and the Chief Justice of India and the relevant notes made
by them in regard to non-appointment of an additional Judge for a further term
or transfer of a High Court Judge cannot be considered to be detrimental to
public interest. (631 C-E]

G 3.14. In these circumstances, the injury which would be caused to
the public interest in administration of justice by non-disclosure of the
correspondence between the Law Minister, the Chief Justice of Delhi
and the Chief Justice of India and the relevant notings made by
them in regard to non-appointment of S. N. Kumar and the correspondence bet-
ween the Law Minister and the Government of India and the relevant notings
H made by them in regard to transfer of the Chief Justice of Patna, far outweighs
the injury which may, if at all, be caused to the public interest by their disclo·
sure and hence these documents were liable to be disclosed. (635 G-H; 636 A]
S.P. GUPTA V. UNION 385
A
4: l. There is no constitutional orlegal infirmity or any abuse or misuse
of authority on the part of the Law Minister in issuing the circular letter. The
circular letter dated March 18, 1981 does not violate the provisions of clause (I} of
Article 217 or clause (I) Article 222 nor does it offend against any other constitu·
tional or legal provision and the challenge against the validity of the circular letter
must, therefore, fail. However, since an additional Judge has a right to be consi·
dered for appointment as an additional Judge for a further term on the expiration
of his original term, and in case of a vacancy in a permanent post, for appoint-
B
ment as a permanent Judge in his own High Court, he cannot be discontinued as
an additional Judge on the ground that he has not given his consent for being
appointed as a permanent Judge in any other High Court. Such a ground for
discontinuing an additional Judge would be wholly irrelevant ground and if on
the expiration of his original term, an additional Judge is discountinued on any
such gi'ound, the decision of the President discontinuing him would be uncons-
titut i6nal and void and the Union of India would be liable to be directed to c
reconsider his case on the basis of relevant considerations after excluding the
irrelevant ground. [685 H; 686 A-D]

4:2. The circular letter addressed by the Law Minister is not in the nature
of a public order made by a public authority. The Law Minister is undoubtedly
a member of the Cabinet and in issuing the circu Jar letter he was acting on behalf D
of the Central Government but the circular letter does not appear to have been
issued by the Law Minister in the exercise of any constitutional or legal power.
The circular letter has no constitutional or legal sa11ction behind it and non
compliance with the request contained in it would not proprio vigore entail any
adverse consequence to the additional Judge or to the person recommended for
initial appointment, for not complying with such request. It may be that because
an additional Judge does not give his consent to be appointed as a permanent E
Judge in another High Court, he may not be appointed as a permanent Judge in
his own High Court and may be discontinued as an additional Judge on the
expiration of his term, though this is not within the intendment of the circular
letter and is clearly impermissible, but in that event it would be his non-appoint-
ment as a permanent Judge or discontinuance as an additional Judge which
would, if at all, given him a cause of action and not the circular letter asking
for such consent. The circular letter is a document without any legal force and F
does not by itself of its own force, create or alter any legal relationship or
arrangement or produce any legal consequence or effect. It is no more than
a letter addressed to the Chief Minister of each State asking him to obtain the
consent of the additional Judges as also of those recommended or to be recom-
mended for inititial appointment for being appointed as Judges in a High Court
outside the State The circular letter must be construed from a commonsense
point of view having regard to the clarification, if any given by the author G
of circular letter, namely, the Law Minister. [568 G-H; 569 A-D]

Commississioner of Police v. Gordhandas Bhanfi, [1952] SCR 135, held
inapplicable.
H
4 : 3. The policy of having one third of the Judges in every High Court
from outside the State, which the Law Minister is trying to implement by)ssuiog
386 SUPREME COUR'f REPORTS [1982] 2 S.C.R.
A the circular letter, is n~ither ill-conceived nor mo/a fide nor subversive of the inde- .....
pendence of rhe judiciary. So long as the policy is evolved by the Government
after consultation with the Chief Justice of India and it is not otherwise unconsti-
tutional, the Court cannot pronounce upon the wisdom of the policy or strike it
down because it does not appeal to the court. Here the policy of having one third
of the number of Judges in each High Court from outside the State has been ado-
pted after consultation with the Chief Justice of India and, in fact, it has his
B complete approval and the Law Minister did not therefore act unconstitutionally
or illegally in relying upon the policy in the first paragraph of the circular letter. 'f
Further this is supported by the unanimity of view of all high powered bodies
and Law Associations over several years. [573 B-E] l,'

4 : 4. It is clear from the langu~ge of clause (1) of Article 217 that the
appointment of a Judge of a High Court can be made by the President c•nly after
c consultation with the Chief Justice of the High Court, the Governor of the State
and the Chief Justice of India and consultation within the meaning of this Article
means full and effective consultations with each of the three constitutional func-
tionaries after placing all relevant material before them. Now, if a person who is
an additional kdge in the High Court in one State or who is practising as a law-
yer in that State is to be appointed as a Judge in another State, then obviously
his willingness to be so appointed would be a highly relevant factor and that would
D have to be ascertained and placed before the three constitutional functionaries
who are required to be consulted before an appointment can be made. It is
obvious that the President cannot appoint JI person to be a Judge of a High
Court without first ascertaining his willingness to be appointed as a Judge in that
High Court and someone has to make an inquiry in that behalf in order to ascer-
tain his willingness. It is only if the person concerned is willing to be appointed
as a Judge in that High Court that the question would arise of processing his
E name and consulting the three constimtional functionaries in regard to the ap-
pointment of such person This inquiry has to be made before the process of con-
sultation can start and the Law Minister therefore by addressing the circular letter
requested the Chief Minister of each State to make this inquiry. It is true that
the Law Minister did not state in so many terms in the circular letter that the
Chief Minister may make this inquiry through the Chief Justice of the High
Court but that was clearly implicit in the circular letter, because a copy of the
,
f circular Jetter was also sent to the Chief Justice of each High Court with the
endorsement "for necessary action" and moreover it must he presumed that the
necessary inquiry would be made by the Chief Minister only through the Chief
Justice of the High Court. Therefore, the obtaining of the consent of the person
proposed for appointment in advance for being appointed as a Judge in another
High Court can never have the effect of reducing consultation with the Chief
Justice of India to a mockery or making it ineffective so as to be violative of
G clause (I) of Article 217. [575 A-E; 578 G-H]

4: 5. Further, from the mere use of the word 'obtain' in the circular letter, it
cannot be inferred that there was an implied threat tot he additional Judges that if
they do not give their consent for being appo;nted as Judges in another High Court, ..\. ..
they would be visited with adverse consequences. The word 'obtain' is a transi-
H tive verb and it is obvious that when the Chief Minister of each State \\as asked
by the Law Minister by issuing the circular letter to o\Jtain tlw c;opsent of ttw
S.P. GUPTA V. UNION 387

additional Judges for being appointed as permanent Judges in another High Court
A
• > what was meant was that the Chief Minister should obtain the consent of each
additional Judge if be was willing to give such consent. The use of the wold 'obtain'
ca11not possibly be construed to mean that the person from whom the consent is
to be obtained must be coerced into giving it. To read the word 'obtain' in the
circular letter as meaning that the Chief Minister was expected to coerce the
additional Judges into giving their consent or as conveying an implied threat to the
additional Judges that if they do not give their consent they might be dropped as B
additional Judges on the expiration of their term, would, therefore, be nothing
short of torturing out of the language used in the circular letter, a meaning which
the language does not bear and which could not possibly have been intended by
the Law Minister. [579 D-H]

4 : 6. The circular letter deals with two categories of persons; one is the
category of persons who are recommended may in future be recommended for
c
initial appointment as Judges and the other is the category of additional Judges
who are appointed for a period of two years or less. So far as the first category
of persons is concerned, when a person who is recommended or proposed to be
recommended for initial appointment as a Judge is a;ked whether he is willing
to be appointed as a Judge in another High Court, no transfer is involved in
such process, as such person is not a sitting Judge in any High Court and is D
appointed for the first time in another High Court. The transfer contemplated
in Article 222 clause (1) is not a mere act of physical locomotion or transfer of
residence from one place to another, but it is an act by which a Judge in one
High Court is transferred as a Judge of another High Court. Equally there is
no transfer involved where an additional Judge is, on the expiration of his term,
appointed as a permanent Judge in any other High Court. It is no doubt true
that by reason of his appointment as an additional Judge or permanent Judge in E
another High Court, he has physically to go to that High Court, but it is not while
being a Judge of one High Court that he goes over as a Judge of the other High
Court. His appointment as an additional Judge of one High Court comes to an
·end and be is appointed afresh as an additional or permanent Judge in another
High Court. It is by virtue of a fresh appointment that he becomes a Judge, whe-
ther additional or permanent, of another High Court and he is not transferred

- from one High Court to another within the meaning of clause (I) of Article 222.
[582 G-H; 583 A-DJ
F

4 : 7. Further, the circular did not seek to transfer Judges from one High
Court to another. The expression "transfer" /"transferred" happened to be used
by the Law Minister in an ex-tempore speech made on the floor of the House and
not in a document or letter prepared after much care and dellberation. No undue
reliance can therefore be placed on the use of the expression 'transfer' or 'trans- G
ferred' in the speech of the Law Minister. What was contemplated by the circu-
lar letter was not transfer of additional Judge from one High Court to another
and it did not therefore, have to satisfy the requirements of clause (l) of
Article 222. [584 B, F-G, H; 585 A] .

4 : 8. But quite apart from this consideration, even if the view be taken that H
what the circular Jetter sought to achieve was transfer of additional Judge from
one High Court to another by obtaining consent of the additional Judges in
• ' . ' • • ' ' ~ ,!
388 SUPREME COURT REPORTS {1982] 2 S.C.tl

A advance, the Law Minister would not be circumventing the majority decision in
Sankalchand Sheth's case. [585A-B, G-H]

4 : 9. Even where the consent of the additional Judge has been obtained
in advance, the Chief of India would have to consider whether it is in public
interest to appoint the additional Judge as a permanent Judge in another High
B Court and the consent obtained in advance would not pre-empt the consultative
exercise with the Chief Justice of India. The advance consent obtained from the
additional Judge would have no meaning so far as the Chief Justice of India is
concerned, because irrespective whether the additional Judge has given his con-
sent or not, the Chief Justice of India would have to consider whether it would
be in public interest to allow the additional Judge to be appointed as a permanent
Judge in the other High Court. [585 E-G]
c
5. On a plain reading of Articles 217 (1) and 124 it is clear 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 reside solely and exclusively in the Central
Government. It is not an unfettered power in the sense that the Central
'D Government cannot act arbitrarily without ~onsulting the constitutional functio-
naries specified in the two Articles but it can act only after consulting them and
the consultation must be full and effective consultation. [541 B-D]

6: I. Each of the constitutional functionaries required to be consulted
under Articles 124 (2) and 217 (1) must ha•e for his consideration full and iden-
E tical facts bearing upon appointment or non-appointment of the person concerned
as a Judge and the opinion of each of them taken on identical material must be
considered by the Cenetral Government before it takes a decision whether or
not to appoint the person concerned as a Judge. It is only "consultation" which
is provided by way of fetter upon the power of appointment vested in the Central
Government and "consultation" cannot be equated with "concurrence" [542 D-E]

F
6: 2. On a proper interpretation of clause (2) of Article 124 and clause (I)
-
of Article 217, it is open to the Central Government to take its own decision in
regard to appointment or non-appointment of a Judge in a High Court or the
Supreme Court after taking into account and giving due weight to the opinions
expressed by the constitutional functionaries required to be consulted under these
two Articles. Even if the opinion given by all the constitutional functionaries con-
G sulted by it is identical, the Central Government is not bound to act in accordance
with stich opinion though being a unanimous opinion of all the three constitution
functionaries, it would have great weight and if an appointment is made by the
Central Government in defiance of such unanimous opinion, it may become
vulnerable to attack on ground that it is mala fide or based on irrelevant. grounds.
But, ordinarily the Central Government would not make an appointment of a
H Judge in a High Court, if all the three conslitutional functionaries have expressed
an opinion aiiainst it. [543 A-Cl
s.1>. GUPtA v. IJNtON 389
6 : 3. The contention that where there is difference of opinion amongst the A
constitutional funtionaries required to be consulted, the opinion of the Chief
Justice of India should have primacy, since he is the head of the Indian Judiciary
any paterfamilias of the judicial fraternity, is not sound. On no principle primacy
can be given to the opinion of one constitutional functionary, when clause (I) of
Article 217 places all the three constitutional functionaries on the same pedestal
so far as the process of consultation is concerned and does not make any distinc-
tion between one constitutional functionary and another. Each of the three B
constitutional functionaries occupies a high constitutional office and clause (I)
of Article 217 provides that the appointment of a High Court Judge shall be
made after consultation with all the three constitutional functionaries without
assigning superiority to the opinion of one over that of another. (543 D-F]

It is true that the Chief Justice of India is the head of the Indian Judiciary c
and may be figuratively described as paterfamilias of the brotherhood of Judges
but the Chief Justice of a High Court is also an equally important constitutional
functionary and it is not possible to say that so far as the consultative process is
concerned, be is in any way less importal'lt than the Chief Justice of India. In
fact under the constitutional scheme, the Chief Justice of a High Court is not
subject to the administrative superintendence of the Chief Justice of India nor is
he under the control of supervision of the Chief Justice of India. It is only the 0
power of bearing appeals against the decision of the Chief Justice of a High Court
that is possessed by the Chief Justice of India and there his superiority over the
Chief Justice of the High Court ends. (543 F-H; 544 E]
•
Looking at the raison d'etre of the provision for consultation enacted in
clause (I) of Article 217, it will be obvious that the opinion given by the Chief
Justice of the High Court must have at least equal weight as the opinion of the E
."'-· ......... Chief Justice of India, because ordinarily the Chief Justice of the High Court
would be better in a position to know about the competence, character and integ-
rity of the person recommended for appointment as a Judge in the High Court.
The opinion of the Governor of the State, which means the State Government

- would also be entitled to equal weight, not in regard to the technical competence
of the person recommended and his knowledge and perception of law on which
the Chief Justice of the High Court would be the proper person to express an F
opinion, but in regard to the character and integrity of such person, his antece-
dents and his social philosophy and value-system, the opinion of the Chief Justice
of India would be valuable because he would not be affected by caste, communal
or other parochial considerations and standing outside the turmoil of local
passions and prejudices. he would be able to look objectively at the problem of
appointment. There is therefore, a valid and intelligible purpose for which the.
opinion of each of the three constitutional functionaries is invited before the G
Central Government can take a decision whether or not to appoint a particular
person as a Judge in a High Court. (544A-E]

The opinion of each of the three constitutional functionariei; is entitled to
equal weight and it cannot be said that the opinion of the Chief Justice of India H
must have primacy over the opinions of the other two constitutional functionaries.
If pritnacy were to be given to the opinion of the Chief Justice of India, it would,
396 si:Ji>:REME cotiRt ltEi>oRts (19B2i 2 s.c.il.

A in effect and substance amount to "concurrence", because giving primacy would
mean that his opinion must prevail over that of the Chief Justice of the High Court
and the Governor of the State, which means that the Central Government must
accept his opinion. But it is only "consultation" and not "concurrellee" of the
Chief Justice of India that is provided in clause (1) of Article 217. [544 E-G]

B Where there is a difference of opinion amongst the constitutional functionaries
in regard to appointment of a Judge in a High Court, the opinion of none of the
constitutional functionaries is cmtitled to primacy but after considering the opinion
of each of the constitutional functionaries and giving it due weight, the Contra]
Government is entitled to come to its own decision as to which opinion it should
accept in deciding whether or not to appoint the particular person as a Judge. So
c also where a Judge of the Supreme Court is to be appointed, the Chief Justice of
India is required to be consulted, but again it is not 'concurrence" but only
"consultation" and the Central Government is not bound to act in accordance
with the opinion of the Chief Justice of India. The ultimate power of appoint-
.
ment rests with the Central Government and that is in accord with the constitutio-
nal practice prctvailing in all democratic countries. [545 C-E]

D
6 : 4. Thus the appointment of a Judge belonging to the higher echelons of
Judicial service is wholly in the hands of the Executive. This is, of course, not an
ideal system of appoi11tment of Judges, but the reason why the power of appoint-
ment of Judges is left to the Executive is that the Executive is responsible to
the Legislature and through the Legislature, it is accountable to the people who
are consumers of justice. The power of appointment of Judges is not entrusted to
E the Chief Justice of India or to the Chief Justice of a High Court because they do
not have any accountability to the people and even if any wrong or improper
appointment is made, they are not liable to account t<' anyone for such appoint-
ment. [545 G-H; 546 A-BJ

6 : 5. The appointment of a Judgo of a High Court or the Supreme Court
F does not depend merely upon the professional or functional suitability of the
person concerned in terms of experience or knowledge of Jaw. Though this requi-
rement is certainly important and vital and ignoring it might result in impairment
of the efficiency of administration of justice, but also on several other considera-
tions such as honesty, integrity and general pattern of behaviour which would
ensure dispassionate and objective adjudication with an open mind, free and
·fearless approach to matters in issue, social acceptability of the person concerned
G to the high judicial office in terms of current norms and ethos of the society,
commitment to democracy and th• rule of law, faith in the constitutional objec-
tives indicating his approach towards the Preamble and the Directive Principles
of State Policy, sympathy or absence thereof with the constitutional goals
and the needs of an activist judicial system. These various considera-
tions, apart from professional and functional suitability, have to be taken
II into account while appointing a Judge of a High Court or the
Supreme Conrt and it is on this accotnt that the power of appointment
is entrusted to the Executive, subject to the fetter placed upon the power
U'. GUPtA JI. '7NION 391
A
of appointment by the requirement of consultation with the Chief Justice of
the High Court, the Governor of the State and the Chief Justice of India in
case of appointment of a High Court Judge and with the Chief Justice of India
in case of appointment of a Supreme Court Judge. However, so far as appoint-
ment of Supreme Court Judge is concerned, it is not consultation with the
Chief Justice of India alone that is provided in clause (2) of Article 124, but in
addition "such of the Judges of the Supreme Court and of the High Courts" as B
the Central Government deem necessary are also required to be consulted.
l546 A·H]

6:6. Clause (2) of Article 124, clearly provides for consultation as a
mandatory exercise and the only m~tter which is left to the discretion of the
Central Government is the choice of the Judge of the Supreme Court and the
High Courts who may be consulted. The words "as the President may deem c
-
necessary" qualify only the preceding words "such of the Judges of the Supreme
Court and of the High Courts in the States." Which of the Judges of the
Supreme Court and of the High Courts should be consulted is left to the
tliscretion of the Central Government but consultation there must be with one
or more of the Judges of the Supreme Court and of the High Courts. The
Central Government must consult at least one Judge out of the Judges of the
--._A:,
Supreme Court and of the High Courts before exercising the power of appoint· D
ment conferred by clau~e (2) of Article 124. This requirement is prescribed
obviously because the Constitution makers did not think it desirable that one
person alone, howsoever high and eminent he may be, should have a predomi-
nent voice in the appointment of a Judge of the Supreme Court. But this
requirement is not complied with in making appointments on the Supreme Court
Bench presumably under a misconception that it is not a mandatory but only an
optional provision. The result is that the Chief Justice of India alone is E
consulted in the matter of appointment of a Supreme Court Judge and largely
as a result a healthy practice followed through the years, the recommendation of
the Chief Justice of India is ordinarily accepted by the Central Government, the
consequence being that in a highly important matter like the appointment of a

- Supreme Court Judge, it is the decision of the Chief Justice of India which is
ordinarily, for all practical purposes final. [547 C-H; 548 A]

But, there are no criteria laid down or evolved to guide the Chief Justice!
F

in this respect nor is there any consultation with wider interests. This is, no
a very satisfactory mode of appointment, because wisdom and experience
demand that no power should be vested in a single individual, howsoever high
and great he may be, and howsoever honest and well meaning. We are all
human beings with our own likes and dislikes, our own predilictions and pre- G
judices and our mind is not so comprehensive as to be able to take in all aspects
of a question at one time and more over sometimes, the information on which
we base our judgments may be incorrect or inadequate and our judgment
may also sometimes be imperceptibly influenced by extraneous or
irrelevant considerations. Therefore, it is unwise to entrust power in any
significant or sensitive area to a singal individual howsoever high or important H
may be the office which he is occupying. There must be checks and controls in
the exercise of every power, particularly when it is a power to make important
392 SUPREME COURT REPORTS (1982] 2 s.c.a
A and crucial appointments and it must be exercisable by plurality of hands rather
than be vested in a single individual. Hence, the Constitution Makers introduced
the requirement in clause (2) of Article 124 that one niore Judge out of the
Judges of the Supreme Court and of the High Courts should be consulted in
making appointment of a Supreme Court Judge. But even with this provision
the safeguard is not adequate because it is left to the Central Government to
select any one or more of the Judges of the Supreme Court and of the High
B Courts for the purpose of consultation. [548 A-F]

It is, therefore, suggested that there must be a collegium to make recommen-
dation to the President in regard to appointment of a Supreme Court or High
Court Judge. The recommending authority should be more broad based and
there should be consultation with wider interests. If the collegium is composed
of persons who are expected to have knowledge of the persons who may be fit
c for appointment on the Bench and of qualities required for appointment and
this last requirement is absolutely essential-it would go a long way towards
securing the right kind of Judges, who would be truly independent in the
sense and who would invest the judicial process with significance and meaning
for the deprived and exploited sections of humanity. [548 F-H]

7;1. Article 224 confers power on the President to appoint an additional
D Judge, if by reason of any temporary increase in the business of a High Coutt >-
or by reason of arrears of work therein, it appears to the President
that the number of the judges of that court should be for the time being increased
and in that event he can appoint an additional Judge for such period not
exceeding two years as he may specify. The words "for the time being" clearly
indicate that the increase in the number of judges which the President may make
by appointing additional Judges would be temporary with a view to dealing
E with the temporary increase in the business of the High Court or the arrears of
work in the High Court. Article 224 clause (!) did not contemplate that the
increase in the number of Judges should be for an indefinite duration, the object
being that additional Judge should be appointed for a short period in order to
dispose of the temporary increase of pending cases. The underlying idea was that
there should be an adequate strength of permanent Judges in each High Court to
deal with its normal institutions and so far as the te·mporary increa~e.in the work
F or the arrears of pending cases were concerned, additional Judges appointed for
a period not exceeding two years should assist in disposing of such work. On ·a
true interpretation of clause (l) of Article 224 it was never intended ihat additio-
nal Judges should go on being appointed and reappointed term after term."
[554 G-11, 555 B-E, 557 D-E]

7:2: It is obvious that ·if additional Judges were appointed according to
G the true intendment of clause (I) of Article 224, they would be temporary Judges
appointed for a short duration to dear off the arrears and once the arrears are
cleared off, which was expected by Parliament to be achieved within not more than
·two years they would, on the expiration their term, go back to the Bar or to the
District Judicial service. Their tenure being for a short period limited by the
ii'me expeeted to be taken in clearing off the arrears-such time, in any event,
being hopefully not more than two years they would know that, on the expiration
fl.ll. OtJl>t A v. tJNtON 393

of their term, they Would have to go back. They would have no right to be A
appointed or even to be c1.msidered for appointment as permanent Judges, because
when they accepted appomtment as additional Judges under clause (1) of
Article 224, they would have known that they were appointed only as temporary
Judges for a short period in order to clear off the arrears. [557 E-H]

7;3. But in practice the true intendment and' purpose of clause (I) of B
Article 224 was never carried into effect. The strength of additional Judges was
not fixed realistically and a much lesser number of additional .Tudges than
required for the purpose of clearing off the arrears within a period of about two
years were appointed in the different High Courts from time to time with the
. result that the arrears continued to ·increase and the need for additional Judges
continued to subsist. The entire object and purpose of the introduction of
clause (!) of Article 224 was perverted and additional Judges were appointed
under this Article not as temporary Judges for a short period who would go·back
c
- on the expiration of their term as soon as the arrears are cleared off, but as
Judges whose tenure, though limited to a period not exceeding two years at the
time of each appointment as an addi1ional Judge, would be renewed from time
to time until a berth was found for them in tl1e cadre of permanent Judges.
(557 H, 558 A, E-F, 559 A-CJ
D
7:4. Therefore, far from being aware that on the expiration of their term,
they would have to go back because they were appointed only as temporary
Judges for a short period in order to clear off the arrears-which would have
been the position if clause (1) of Article 224 had been implemented according to
its true intendment and purpose-the additional Judges entered. the High Court
judiciary with a legitimate expectation that they would not have to go back on E
the expiration of their term but they would be either reappointed as additional
Judges for a further term or if in the meanwhile, a vacancy in the post of a
permanent Judge became available, they would be confirmed as permanent
Judges. This expectation which was generated in the minds of additional Judges
by reason of the peculiar manner in which clause (1) of Article 224 was operated,

-
cannot now be ignored by the Government and the Government cannot be
permitted to say that when the term of an additi.onal Judge expires, the Govern- F
!I)ent can drop him at its sweet will. By reason of the expectation raised in his
mind through a practice followed for almost over a quarter of a century, an
additional Judge is entitled to be considered for appointment as an additional
Judge for a further term on the expiration of his original term and if in the
meanwhile, a vacancy in the post of a permanent Judge becomes available to him
on the basis of seniority amongst additional Judges, he has a right to be conside-
red for appointment as a permanent Judge in his high Court. [559 D-H] G

7:5. On a plain reading of Article 217 clause (1) it is clear that when an
additional Judge is to be appointed, the procedure set out in that Article is to be
followed. Clause (1) of Article 217 provides that "Every Judge" of a High Court
shall be appointed after consultation with the Chief Justice of India, the Governor H
of the State and the Chief Justice of the High Court. The expression "Every
Judge' mun on a plain natural COl1$tructi<;>Q jQcluqe J:lOt o!llr a !'ermanen\
394 SUPREME COURT REPORTS [i982] 2 s.c.tt.
A Judge but also an additional Judge. Therefore, no additional Judge can be
appointed without complying with the requirement of clause (1) of Article 217.
(560 A-B, F]
I
7:6. When the term of an additional Judge expires he ceases to be a Judge
and therefore, if he is to continue as Judge, he must be either reappointed as an
B additional Judge or appointed as a permanent Judge. In either case, clause (I)
of Article 217 would operate and no reappointment as an additional Judge or
appointment as a permanent Judge can be made without going through the
procedure set out in Article 21 clause (I). [560 F-G]

7.7. An additional Judge has a right to be considered for such reappoint-

c ment or appointment as the case may be, and the Central Government cannot be
heard to say that the additional Judge need not be considered. The additio-
nal Judge cannot just be dropped without consideration. The name of the addi-
tional Judge would have o go through the procedure clause (I) of Article 217
and after consultation with the Chief Justice of India, the Governor of the State
and the Chief Justice of the High Court, the Central Government would have to
decide whether or not reappoint him as an additional Judge or to appoint him as
permanent Judge. But this is the only right possessed by the additipnal Judge.
D The additional Judge is not entitled to contend that he must automatically and
without any further consideration be appointed as an additional Judge for a
further term or as a permanent Judge. He has to go through the process of
clause (1) of Article 217 and to concede to him the right to be appointed
either as an additional Judge for a further term or as a permanent Judge would
be to fly in the face of Article 217 clause (1 ). The only right he has is to be
considered for such appointment and this right also belongs to him not because
E clause (1) of Article 224 confers such right upon him, but because of the peculiar
manner in which clause (1) of Article 224 has been operated aII these years.
[560 G-H, 561 A, D-H]

7:8. There are no limitations in the language of clause (I) of Article 217
as to what factors shall be considered and what factors shaII not be, but having
F regard to the object and purpose of that provision, namely, appointment of a
High Court Judge, it is obvious that fitness and suitability, physical, inteilectual
and moral, would be the governing considerations to be taken into account in
deciding the question of appointment. Public interest requires that only such
-
person should be appointed as a Judge who is physically, inteIIectually and
morally fit and suitable to be appointed as a Judge and it would be contrary
to public weal to appoint a person, who does not possess the requisite fitneios and
G suitability. The Central Government would, therefore, be under a constitutional
obligation to consider whether the additional Judge, whose term has expired, is
fit and suitable to be reappointed as an additional Judge or appointed as a per-
manent Judge. Of course, at the time when the question of reappointment of
an additional Judge for a further term or his appointment as a permanent Judge
comes-up before the Central Government for consideration, the additional Judge
H would have two weighty circumstances in his favour: one, that he has experience
;is a Judge f9r one term and the other, that it would not be desirable to send an
S. P. GUPTA v. UNION 395

additional Judge back to the Bar. But even with these weighty circumstances in A
his favour, he would have to satisfy the test ·of fitness and suitability, physical,
intellectual and moral, before the Central Government can, consistently with
its constitutional obligation and in public interest, decide to reappoint him as an
additional Judge or appoint him as a permanent Judge. [562 C-H, 563 A-Bl

8
7:9. It is true that the fitness and suitability of the additional Judge must
have been considered by the Central Government at the- time of his original
appointment, hut when the question again comes-up for consideration on the
expiration of his term, the Central Government has. to consider afresh, in the
light of the mate1ial then available save and except material which was already
with the Central Government at the time of original appointment, as to whether
he possesses the requisite fitness and suitability being appointed as a Judge. c
- This would not amount to treating his as if he were on probation. An addi-
tional Judge is certainly not on probation in the sense that his services cannot
be terminated before the expiration of his term, unlike a probationer who can be
sent out at any time during the period of probation. It would also not be open
to the Chief Justice of the High Court or the Governor of !he State or the Chief
Justice of india to sit in judgment over the quality of the work turned out by
,.. ...• the additional Judge during his term, because that would be essentially an D
appellate function which can be discharged only by court entitled to hear
appeals from the decisions of the additional Judge. But every other consideration
which .bears on the physical, .intellectual and moral fitness and suitability of the
additional Judge based on material other than that which was with the Central
l. Government at the time of original appointment can and must be considered and
if the Central Government finds, after consultation with the Chief Justice of the
High Court, the Governor of the State and the Chief Justice of India that the E
additional Judge is not fit and suitable for being appointed as a Judge the
Central Government may decide not to appoint him an additional Judge
for a further .term or as a permanent Judge. [563 B-H]

- 7: IO. So Iong as tl1e case of the . additional Judge is considered by the
Central Government for reappointment or appointment as the case may be, the
decision of the Central Government cannot be questioned except on the ground ·
that it was reached without full and effective consultation with the Chief Justice of
F

the High Court, the Governor of the State and the Chief Ju~tice of India or that
' it was based on irrelevant considerations: Where such a challenge is made, the
burden is on Central Government to show that there was full and effective con-
sultation and the decision was based on relevant considerations. In fact where
an additional Judge is not appointed as an additional Judge for a further term
G
or as a permanent judge despite the unanimous opinion of the Chief Justice of
the High Court and the Chief Justice of India, the decision of the Central
Government would prima facie be liable to attack and the burden would lie
heavily on the Central G wernment to show that it had cogent reasons to disagree
with the Chief Justice of the Hil!'1 <;:ourt and the Chi~f J11stice of India. H
[563H, 564 A-C]
' '
396 SUPREME COURT REPORTS (1982] 2 S.C.R.

A 7:1 I. An additional Judge has a right to be considered for appointment
as an additional Judge for a further term or in case there is a vacancy in a
permanent post, then for appointment as a permanent Judge, and he must there-
fore, be considered by the Government for s·uch reappointment or appointment
·as the case may be, and a decision must be taken in regard to him after consul-
tation with the Chief Justice of the High Court, the Governor of the State and
the Chief Justice of India and if it is found that there was no consultation
B with any of these three constitutional functionaries before the decision was taken
by the Central Government not to appoint him or the decision of the Central
Government is based on irrelevant grounds, it would not be consideration by
the Central Government as required by clause {I) of Article 217 and he would,
therefore, be entitled to challenge the decision ·of the Central Government which
· is based on what may be called 'non-consideration in law' and to require the
Central Government to reqonsider his case in accordance with clause (l) of
Article.217. [564 E-H]

7:12. Clause (1) of Article 224 contemplates appointment of additional
Judges to augment the strength of existing Judges before additional Judges can be
appointed and so long as any post of existing Judges is not filled-up; there can
-
be no question of appointing additional Judges to augment· their strength. When
there is a-vacancy in the post of a permanent Judge, it must first be filled up
before any additional Judge can be appointed under clause (!) of Article 224.
It is, therefore, necessary that the Central Government must periodically review
the strength of permanent Judges in each High Court so that there is a proper
and adequate strength for the purpose of dealing' with the normal institutions.
Since there are large arrears pending almost in every High Court and it is not
humanly possible to dispose of these arrears within a measurable distance
of time even by appointment of additional Judges, it is necessary that instead
E of appointing additional Judges for the purpose of disposing of the arrears, it
would be desfrable to increase the strength of permanent Judges because the
arrears have come to stay and it is not possible to wipe them out for a long
period of time. [565 C-G]

7:13. It is no doubt true that clause (I) of Article 224 fixes the outer
F limit for the term for which an additional Judge may be appointed, but that
has been done because there may be cases where the temporary increase in the
business or the arrears of pending cases are so small that it may be possible
to dispose them of by appointing additional Judges for. a term less then two
years. That is why Parliament provided that an additional Judge may be
appointed for a term not exceeding two years. But, when arre~rs of pending
G cases are so large that it would. not be possible to dispose them of even within a
period of ten years, there can be no justification for appointing additional Judges
for a period of less than two years and that would be plainly outside the scope
of the power conferred under clause (I) of Article 224. When the arrears of
pending cases are such that they cannot possibly be disposed of within a period
·of Jess than two years, additional Judges must be appointed for a tarm of two
years and no less. [566 G-H, 567 A-CJ
H
7:14. The term for which an additional Judge is appointed must not be
Jess than two years~ u~les~ the temporary in~re11~c in busipe~s 9r the arrears of
S. P. GUPTA v. UNION 397

pending cases are so small that they can reasonably be disposed of within a A
shorter period. [567 C-D]

7:15.. An additional Judge cannot be appointed for a perio~ of three
months or six months in order to rnable the Chief Justice of India or tbt;. Central
Government to consider whether the additional Judge should be appointed for a
further term or as a . permanent Judge. That is a matter on which the Chief
Justice of India must come to his opinion well in time and the Government of B
India llilUSt also reach its decision sufficiently in advance so that the additional
Judge would know quite sometime before his term is due to expire whether he is
going to be appointed for a further term or is going to be discontinued. There
is no power in the Central Government to appoint an additional Judge for a
short term in order to enable the Chief Justice of India or the Central Govern-
ment to make enquiries with a view to satisfying itself whether the additional
Judge is fit and suitable for being appointed as an additional Judge or as a c
- permanent Judge. In the instant case, the Chief Justice of India act~d under a
misconceptim:l of the true constitutional position when he recommended the
appointment of 0. N. Vohra, S. N. Kumar and S. B. Wad for a period of six
months and the Central Government was also in error in appointing them only
for a period of three months. [567 D-H]
. ,. .......
8:1. A writ of mandamus cannot be issued against the Union of India for
fixing a particular strength of judges in each High Court. The fixation of the
strength of judges in each High Court is a purely executive function which is
entrusted by Article 216 to the President, that is, the Government oflndia and it
is entirely for the Government of India to decide in the exercise of its judgment
as to what shall be the strength of judges in each High Court. There are no
judicially manageable standards for the purpose~ of controlling or guiding the
discretion of· the Union of India in that respect nor is it possible for the Supreme
Court to lay down any standards or norms on the basis of which it can require E
the Union of India to appoint a certain number of Judges in a particular High
Court. [539 D-E, 540 DJ

- 8:2. The fixatian of the number of Judges necessary to be appointed in a
particular High Court does not depend upon the.· application of a mathematical
formula dividing the number of pending cases by the average rate of disposal
per Judge per year. It is singularly complex . problem and merely increasing the
F

number of Judges in a High' Court would not necessarily solve the problem of
disposal of pending cases. There would be many policy considerations which
would influence the Government of Indi;i in taking a decision as to what number
of judges are necessary to be appointed in a particular High Court, like diffi-
culty in getting competent judges, finding court rooms. availability of other
strategies to clear the arrears,' etc. ·It would not be po~sible to lay down any
judicially mangeable standards with reference to which the Government of India
could be directed to appoint a particular number . of judges in a High Court.
What should be the number of Judges necessary to be appointed in a particular
High Court must essentially remain a matter within the discretion of the
Government of India and if the Government of India does not appoint sufficient H
number uf judges, the appeal !DUS! be to the legislature and not t<;> thQ
Court. [539 E-Hi 540 A-DJ
..
398 SUPREME COURT REPORTS [1982] 2 s.c.R.

A 9:1. The decision not to continue S.N. Kumar as an Additional Judge
was taken by the Central Government "after full and effective consultation"
within the meaning of Article 217, with the Chief Justice of Delhi and the
Chjef Justice oflndia and it was not based on any irrelevant consideration. As
between two conflicting but perfectly bonafide opinions of the two constitutional
authoritles, the Central Government had to choose between them and come to
its own decision. Here it chose that of Chief Justice of Delhi High Court. As
B such the decision does not suffer from constitutional infirmity. [668G·669 B-C]

9:2. It is not open to the court to hold an inquiry and determine for itself
the correctnes.s of the opinion of any of the constitutional authorities required to
be consulted by the President. The opinion given by any such constitutional
. authority may be mis taken or erroneous but the corrective for such mistake or
G error is to be found in the constitutional provision itself and it cannot be
provided by judicial intervention. The Court cannot take evidence for the pur-
pose of determining whether the facts on which the opinion of a constitutional
authority required to be consulted is based are true or not or whether the opinion
expressed by such constitutional authority is well-founded or not. That is a
-
function entrusted by the Constitution to the President, that is, the
Central Government and it is for the Central Government to judge
whether the opinion expressed by the constitutional authority such as the
Chief ~Justice of the High Court is well-founded or not and whether
D it should be accepted or rejected. The court cannot be invited to go into the
question whether the facts on which th~ opinion of the Chief Justice of Delhi
was based were correct or not and whether the op inio~ expressed by him was or
was not justified. The court 1s concerned merely to enquire whether there was
in fact full and effective consultation. [656C-F, 657 DJ
E
9:3. Where the name of a person is proposed for appointment as a Judge
of the High Court for the first time, he having no right to be considered for such
appointment, is not entitled to insist that the proposal for his appointment,
whether initiated by the Chief Justice of the High Court or the State Government

F
or the Chief Justice of India, should be subjected to the process of consultation
set out in Article 217 and his name can be dropped without any such consulta-
tion. But the position is different in c.asc of an additional Judge, for though an
additional Judge has no right, on the expiration of his term, to be appointed an
-
additional Judge for a further term or to be appointed a permanent Judge, be
has still a right to be considered for such appointment and the Central Govern-
ment has to decide whether or not to appoint him after consultation with the
three constitutional functionaries mentioned in Article 217.. [636 D-G]

G 9:4. Article 217 does not require that any particular procedure should be
followed for full and effective consultation nor does it insist that the relevant
facts on which the final decision of the Central Government is based should be
conveyed to the other three constitutional functionaries in any particular manner
or by the Central Government itself. What is necessary to ensure full and
H effective consultati~n within the meaning of Article 217 is that the Central
Qovern!llc;ont as well as eitc~ of the three copstitµtional functiooarie~ require<,\
s.P. GUPTA 11. bNioN 399
to.be consulted "must have for its consideration full and identical facts A
which can at once constitute both the source and foundation of the final decision"
and it is immaterial as to how such "full and identical facts" are conveyed by
one authority to the oth;r. It is sufficient compliance . with the constit~~ion~l
requirement of Article 217 if the self-same facts on which the final dec1s10~ JS
taken by the Central Government are placed before each of the three constlt~
tional functionaries required to be consulted and their opinion is taken on the basis
of such facts whatever be the manner in which those facts are brought to B
their notice. ' [637 C-F]

9:5. It is undoubtedly true that it was constitutionally impossible for the
Central Government to arrive at the decision not to continue S.N. Kumar as an
Additional Judge without consultation with the Chief Justice of Delhi High
Court and the Chief Justice of India as mandatorily required by Article 217~
It was notnecessary that 1he full and identical facts which at once constituted
.'both the source and foundation of the final decision" of the Central Govern-

- ment should be placed before the Chief Justice of Delhi and the Chief Justice of
India by the Central Government itself or that they should be brought to their
notices in any particular order or by following any particular procedure. What
was necessary to constitute full and effective consultation within the meaning of
Article 217 was that the Chief Justice of Delhi and the Chief Justice of India
should have for their consideration "full and identical facts" which ultimately,
formed the basis of the decision of the Central Government. [662 G-H, 663 A]

9:6. The charge of conspiracy is at all times a very serious charge and it
must not be lightly made more particularly when it is· directed against persons
holding high offices. Here it is difficult to see any justification at all for levelling
a charge of conspiracy against the Chief Justice of Delhi and the Law Minister. E
It may be that on full and detailed investigation through an independent and
.... ;.·
efficient investigative machinery, the complaints and doubts against S.N. Kumar
might have been found to be unjustified but such a course would have
been neither practicable nor desirable. In the first place, as pointed by the
Chief Justice of Delhi himself, he had no investigative ~achinery at his

- disposal and if be wanted the complaints and doubts against· S.N. Kumar to be
investigated, be would have bad to ask the Central Government to carry out
such investigation through the .Central Bureau of Investigation or the Intelligence
Bureau or some such investigating agency and that . would have been clearly
subversive of the independence of the judiciary. It would have been most
F

improper for the Chief Justice of Delhi to ask the Central Government to
investigate into complaints or doubts against a sitting Judge of his Court.
Moreover, leaving the investigation of complaints and doubts against a sitting
Judge in the hands of an investigative agency under the Control of a political
Government would not be desirable because, apart from exposing the sitting
Judge to unhealthy political pressures, it may not yield satisfactory result in all
cases because such an investigation would not have the benefit of the guidance
of a mature and experienced person like the Chief Justice who has lived a whole
lifetime. in the courts and who is closely and intimately connected with lawyers
and Judges in the Court over which he presides. It would indeed be impossible H
for any one unfamiliar with the legal profession and the functioning of the courts·
400 SUPREME COURT REPORTS [1982] 2 s.c.a:

A to judge the genuineness or veracity of the sources from which information
might be obtained in regard to a sitting Judge. It must, therefore, necessarily .....
be left to the Chief Justice of the High Court to give his opinion in regard to
the suitability of an additional Judge for further appointment on the basis of such
information as he may gather by making his own inquiries. The Chief
Justice of the High Court would have sufficient opportunities for judging the
suitability of an additional Judge for further appointment, because the additional
B Judge would be· in close contact with the members of the Bar and his own
colleagues and if there is anything wrong with the functioning of the Court or
the Judges, he would be best in a position to know about it,
[638 F ,640 C-H, 641 A-B]

9:7. Where the complaint against an additional Judge is in regard to his
c integrity, the Chief Justice of the High Court is not expected to hold a judicial
or quasi-judicial inquiry for the purpose of adjudicating whether the additional
Judge is, in fact, lacking in honesty and integrity. Such an inquiry against a
Judge whether additional or permanent would not be permissible except in a
proceeding for his removal. What the Chief Justice of the High Court has to do
is merely to assess the suitability of the additional Judge for farther appointment
-
and where Jack of integrity is alleged against him, the assessment can only by ·on
the basis of his reputation for integrity, The integrity of the person under con-
D sideration would undoubtedly be a relevant factor to be taken into account, but
in assessing such factor the Chief Justice of the High Court would not be expected
to hold a judicial or.quasi-judicial inquiry for the purpose of determining whether
the person concerned does, in fact, possess honesty and integrity or is Jacking in
these qualities. The Chief Justice of the High Court would have to proceed on
the basis of the reputation for honesty and integrity enjoyed by the person under
consideration and if, on the basis of the information gathered by him, the Chief
Justice of the High Court comes to the view that such person does not enjoy
good reputation for integrity, the Chief Justice of the High Court would be
justified in not recommending such person for appointment. Where a question
of honesty and integrity of a Judge is concerned, it is almost impossible to come
to a conclusive determination wheiher he is lacking in integrity or not, because
experience shows that most persons are not willing to speak if they knew that
F they may he quoted and that in any event they are not prepared to testify in any
judicial or quasi-judicial inquiry. It is therefore not enough in order to be able
to recommend a person for appointment as a Judge to say that there is no proof
of lack of integrity against him, because, if such were the test to be applied,
there would be grave danger of persons lacking in integrity being appointed as
Judges. The test which must be applied for the purpose of assessing the suitability
of a person for appointment as a Judge must be whether the Chief Justice of
G ths High Court or for the matter of that, any other constitutional authority •
concerned in the appointment, is satisfied about the integrity of the person under
consideration. If the person under consideration does not enjoy reputation for
honesty and integrity, it would not be possible for the Chief Justice of the High
court to say that he is satisfied about the integrity of such person and in such
an event, the Chief iustice of the High Court would be justified is not recommen-
H ding such person for appointment : in fact, it would be his duty not to recommend
911ch person. The public injury Mlich may be caused by appointment of a Judge
Jacking in i11.tegrity would be infinitely more than th~ public injury which may
S.P. GUPtA v. uNlON 401
resuit from non-appointment of a competent Judge possessing integrity. On the A
bona fide view taken by him, the Chief Justice of Delhi did what it was his plainest 1

duty in the circumstances to do. When an additional Judge, whose term has
expired. and who would, therefore, have to return to the Bar or the subordinate
judicial service, is not appointed a permanent Judge or an z.dditional Judge for
afurther term, he he · Is· not removed by the Central Government. If he
is not appointed a permanent Judge or an additional Judge for a further term,
he goes out, but that happens because the term for which he was originally B
appointed has come to an end and not because he is renioved. There, is,
therefore, no question of giving him an opportunity .o be beard before the
decision is taken.not to appoint him as a permanent Judge or an additional
Judge. [643 H, 644 A-H, 645 A-D, 669 F-H, 670 A]

9:8. What the Chief Justice of the High Court is required to c!o is to give c
his opinion in regard to the suitability of the additional Judge for further appoint-

- ment and he has therefore Lo consider various matters relevant to the question
of appointment and give his opinion to the Presi<!ent. He does not hold a
judicial or quasi-judicial inquiry into the honour and integrity of the additional
Judge nor does he arrive at any conclusive finding or determination. l:ll: merely
gives his personal opinion in regard to the suitability of the additional Judge in
discharge of the constitutional duty laid upon him and there is therefore no D
question of any opportunity being afforded to the additiOnal Judge before the
Chief Justice of the High Court arrives at his opinion. When the Chief Justice
of the High Court gives his opinion, it is a confidential communication which
would not ordinarily be known to the public and in the case of S. N. Kumar
too, but for the disclosure of documents vehemently pressed and passionately
sought not only by the counsel for the petitioners but also by the counsel for
s. N. Kumar, the world would never have known that the Chief Justice of Delhi E
has given an adverse opinion against the continuance of S. N. Kumar on the
ground that his integrity was doubtful. It is obvious that in cases of this kind
where the Chief Justice of the High Court gives his personal opinion or assess-
ment on consultation by the President there is neither adjudication nor condem-
nation and hence there is no basis or justification for imporcing the requirement
of fair play or natural justice. [645 F-H, 646 A-Bl
F

(Agreeing with D.A. Desai, J.)

10;!. The transfer of Mr. K.B.N. Singh, Chief Justice of Patna High Court
to the Madras High Court as Chief Justice was made by way of punishment an<!
not in public interest and hence it is unconstitutional and void. (685 G-H] G

10:2. The power of transfer under Article 222 clause (I) cannot be exercised
against a Judge without his consent. It is a highly dangerous power involving
great hardship and injury to the Judge transferred including a stigma on his
reputation in cases where the transfer is not effected pursuant to any policy but 8
the Judge is packed out for transfer on a selective basis and it makes no difference
whether the transfer is made by the Government on its own initiative or it is made
4()2 SUPREME COURT REPORTS [19s2j 2 s.c.a.
.; .
A at the instance of the Chief Justice of India as in the case of Chief Justice K.B.N.
Singh. The power to transfer a Judge from one High Court to another can be
exercised only in public interest and there must be full and effective consultation
between the President, that is, the Central Government and the Chief Jilstice of
India before the decision to transfer a Judge is taken. [673 B-D, E]

B Union of India v. Sankalchand Seth, [1978] 1 SCR 423 followed.

10:3. When a Judge is transferred from one High Court to another by way of
punishment, it can never be in public interest for no public interest would counte·
nance punishment of a Judge except by way of impeachment under proviso (b) to
clause (1) of Article 217 read with clause (4) of Article 124. There is a clear
c antithesis between· a transfer by way of punishment and a transfer in public
interest and therefore, a transfer by way of punishment must be held to be outside
the scope and ambit of Article 222 clause (!). Undoubtedly, when a Judge is
transferred by the Government because he does not toe, the line of the Executive
or gives decisions against the Executive or has for some reason. or the other
fallen from its grace, it would be a transfer by way of punishment. That would
---
be the pli!lnest case of penal transfer. But these are not the only circumstance
D in which a Judge may be transferred from one High Court to another by way of
punishment. The element of punishment is not confined merely to the wrath of
the Government on account of a Judge being inconveniently independent. There
may be cases where a Judge may be transferred because he is not behaving pro-
perly or is conducting himself in a manner not befitting the position of a High
Court Judge and such a transfer grounded on the conduct or behaviour of the
Judge would clearly be punishment, even· if it be on the recommendation of the
E Chief Justice of India. It is also possible that the Chief Justice of India may
find in a given case that a' Judge of a High Court is promoting the interest of
his son or brother in practice or by passive inaction allowing his son or broth1r
to exploit his relationship with the Judge for the purpose of advancing his pro·
fessional interest and in such a case, the Chief Justice of India niay recommend
that the Judge should be transferred to another High Court and the Government
may accept such recommendation. The transfer in such a case would be clearly
by way of punishment. There may also be cases where the recommendation of
the Chief Justice of India for transfer of a Judge may proceed from his disagree-
ment with the social philosophy of the Judge or his unhappiness with the manner
·--
in which he is deciding cases and the Government may unquestioningly accept
such recommendation. This would also he nothing shori of punishment.
Whenever transfer of a Judge is effected for a reason bearing upon the conduct
or behaviour of the Judge, it would be by way of punishment and therefore, not
G permissible under clause (I) of Article 222. Transfer per se is not a punish-
- ment .. It is the reason for which the transfer is made, which makes it penal and
if that reason is related to the cond11ct of behaviour of the Judge, the transfer
would clearly'be a penal transfer not in public interest and hence outside the
scope and ambit of Article 222 clause(!). (67JF-H, 674 A-H]

H
10;4. When a transfer of a Judge of a High Court is challenged in a court
of Law, the burden must lie upon the Government to sustain the validity of the
S.I'. OUl'TA V, UNION 403

transfer. The power of transfer is a drastic power to be exercised only in rare A
case• as it has the effect of destroying the right of the Judge who is transferred,.
to continue as a Judge in the High Court to which be-was ·appointed until be
reaches the age of 62 years and removiO.g him to another High Court where
Possibly lie would not have agreed to go- if be· had been asked at the time of his
original appointment. When an order of transfer· is made, the Judge ha~ a diffi·
cult choice, either to go to the High Court where· he is transferred or to resign
and having burrit his boats and given up his proression Jong back, he would be B
in great difficulty if he chose to resign and therefore, from a practical point of
view, he would have no option but to go to thC -other High Court, bo"'·ever
.r inconvenient it may be to him. Moreover, it would be almost impossible' for the
Judge to successfully chaUenge the order of transfer if the burden of sbowi1:J.g its
invalidity were cast upon him. Even as it is, the Judge would have to wage a tone
,. and unequal battle against the Government when he chatlenges ·the order of
transfer and if the onus of establishing _facts invalidating the order of transfer c
were thrown-upon him. the battle wouJd be rendered still more· ullequal and- the
scales would be weighed heavily against him. TbC result . would be that even an
invalid order of transfer would pass 'muster on account of the inability of the ·
Judge to discharge the burden of showing the invalidity of the ordef of transfei-
and the virtual immunity thUs granted to the order· of transfer would seriously
impair the independence of the judiciary. (675 B-G]
- I' D

Furthermore, having regard to the high st:itus·and dignity Of 3. Judge of a ·
·High Court, it is but fair that when the Governinent is displacing the right of the
Judge to continue in his High Court uptO the age . of 62 years, be should be tOtd
what are the reasons which have weighed with the Government in transferring
him. He must be assured that atl the cOnstitutional requirements have been com-·
plied with. Besides, the facts showing that there was fuII and effective consulta- E
tion between the Governcllent and the Chief Justice of India and the reasons for
making thC transfer would be within the special knowledge of the Government and
the onus must therefore be upon the Government to prove them•. Thus the burden
of sustainin_g the val_idity of the order of transfer must rest on the Government
. and this burden is a heavy burden, which must be satisfactorily discharged by
the Government. [675 G-H, 676 A-BJ

.10:5. There was no full ·-and effective consultatioO bet~een the Ceniral
Government and the Chief Justice of India. The burden of showing that there
was full and effective consultation rests heavil,r on the Government and it is
not possible to say ·that this burden has been discharged by the Government.
There is nothing in the correspondence exch.anged· between the Chief Justice of G
India and the Law Minister which shows that any facts bearing up on the transfer
of Chief Justice K.B.N. Singh were_communicated by tbC Chief Justice of India,
who initiated the transfer, to the Lilw Minister.. The counter-affidavits and the.
affidavit do not indicate the constitutional functionary on behalf of the
PtesiJent, with whom every relevant aspect of the question was discussed. ·unleSs .•
the name of the person i:J mentioned, the correctness of the statement cannot be H
verified or challenged by the other side. It is not enough merely to repeat the

..
constitutional formula_ that every aspect of the quest~on was discussed w~~h the
404 SUPREME COURT REPORTS [19821 2 s.c.tt.

A. President. It is an affidavit which is made by the Chief Justice itnd the affidavit
must contain not mereJy the constitutional incantation but facts giving particulars
stating with whom the Chief Justice of India bad discussion. The affidavit a1so
- .
does not give the date or dates whe~ the discussion took place between the Chier
, Justice of India and the President. The statement made in the affidavit is delight..
fulty vague. Without_furnishing the dates of discussion by. the Chief Justice of
India with the Prime Minister and indicate the nature of the aspects discussed etc.
· in the affidavit of Shri K.B.N. Singh cannot meet vague allegations.
[677 E, 681 B-H, 682 A-C]

It is for the Court to decide whether all relevant facts were diiicussed
between the Chief Justice of India and the Central Government so as to consti-
tute full and effective consultation and this enquiry cannot be pre-empted by the
c Chief Justice of India by asserting in his affidavit that every relevant aspect of
the question was discussed by him with the· Centr"a.J Government. It is not for
the Chief Justice - of India to decide, but it is for the Court to be satisfied, that -
all relevant aspects of the question were discussed by him with the Central
Government. It is possible that the Ghief Justice of India might have considered
some facts as irrelevant and not discussed thCm '.with the Central Government,'
but the C~urt may find that such facts were relevant ·and should have fo'rmed the
D subject matter of discussion and it is equally possible that some facts might have
been discUssCd which the Chief Justice of India considered relevant but the Court
~ might find them to be irrelevant. Absence of these info1mation will lead to the
conclusion that thCre was no fuU and effective consultation betWeen the Chief
Justice of India and the cCntral Government: Further the omission. to com- ·
municatc the difficulty which would be experienced by the Chief Justice K.B.N.
Singh as a result of transfer. is .sufficient to vitiate the process of consultation.
. [682 D-G, 683 D-E]
E \

10:6. To avCr that the transfer Was in pursuance of a "Government Policy,.
is it.correct as it is not borne out by correspondence. Equally the ground of
transferi namely, a necessity ofa senior and experienced Chief Justice is disproved
in the case of the proposed tr"ansfer to._· Rajasthan. These grounds were not
F ·, corr..municate.d to the Law Minister and even assuming that they_were commu~i
. CatCd and it weighed with the Central Government, in making the order of
transfer1 it would have the effect of converting the transfer into a peilal transfer.
• . . [683;684 C-D, G-H, 685 A]

/ Apart from tha·t, this is not the reason_ which weighied with' the Central'
G Government in making thC order of transfer against Chief Justice K.B.N. Singh.
The Central GovernmeD.t stated in_ a note banded over to ~be Court that the reason
.... ___ why the Central Goverriment made- the o~der of trao!)fer was "(1). it was felt th~t
- Ilot agreeing to these transfers may be const~ued as though _the Government 1s
·departing from ttie view of having Chief Justices fro_m _outside; (2) the· policy aspect
could still be pressed into se'rvice later.0 This ~eason which. prevailed. with the
H Central Government was totally different from the reason which induced the
Chief JusticC of India to makC his proposal for transfer and there is nothing to
show tha( this reaso~ which weighed with the Government of India was com· ,
S.i>. Glii>TA v. UNION 40S
municated to the Chief Justice of India for his opinion, There was therefore A
clearly no full and effective consultation even in regard to this aspect. Moreover
this reason given by the Central Government for making the order of transfer
clearly shows that the Central Government did not apply its wind to the question
' whether on the facts, it was necessary or expedient to transfer Chief Justice
K.B.N. Singh, but accepted the recommendation of the Chief Justice of India,
because it thought that if the recommendation of the Chief Justice of India was
accepted and the transfers of Chief Justice M.M. Ismail and Chfef Justice K.B.N. B
Singh were made, it would be easier for the .Central Government thereafter to
· press for acceptance of the government policy by the Chief Justice of India. There
was clearly abdication of its constitutiona I function by the Central Government.
·,_,.<. . [685 B-G]

10:7. The process of consultation whether under Article 217 or under c
Article 222, must be evidenced in writing so that if at any point of time a disput
arises as to whether consultation had in fact taken place or what was the nature
and content of such consultation, there must be documentary evidence to resolve
such dispute and an ugly situation should not arise where the world of one
constitutional authority should be pitted against the word of another and the
Court should be called upon to decide which of Kthem is telling the truth. Oral
talk or discussion may certainly take place between the Central Government and D
any other constitutional authority required to be consulted but it roust be record
ed immediately either in a note or in correspondence. Besides eliminating future
dispute or controversy, the practice of having written communication or record
of oral discussion ensures greater care and deliberation in ei.press1on of views and
considerably reduces the possibility of improper or unjustified recommendations
or unholy confabulations or conspiracies which might be hidden under the veil
of secrecy if there were no written record. Moreover, such a practice would tend E
to promote evenness in society which is the hall-mark of a democratic polity,
It would indeed be highly regrettable if, instead of following· this healthy prac-
tice of having a written record of consultation, the Central Government or the

-
Chief Justice of the High Court or the Chief Justice 0f India were to carry on
the consultation process either on the telephone or by personal discussion without
recording it. [592 C-H, 593 A-C]
F

11 :I. The interpretation of every statutory prov1s1on must keep pace with
changing concepts and values and it must, to the extent to which its language
permits or rather does not prohibit, suffer adjulltments through judicial interpre-
tation so as to accord with' the requirements of the fast changing society which
is undergoing rapid social and economic transformation. The language of a G
statutory provision is not a static vehicle of ideas and concepts and as ideas and
concepts change, as they are bound to do in a country like ours with the estab-
lishment of a democratic structure based on egalitarian ·values and aggressive
developmental strategies, so must the meaning and content of the statutory
provision undergo a change. It is elementary that law does not operate in a
vacuum. It is ilot an antique to be taken down, dusted, admired and put ba~k H
on the shelf, but rather it is a powerful instrument fashioned by society for the
purpose of adjusting conflicts and tensions which arise by reasons of clash
406 SUPRSMI! COURT IU31'01tt$ (19Q2] 2 s.c.R..
A
between conflicting interests. It is therefore intended to serve a social purpose
and it cannot be interpreted without taking in!o account the social economic and
political setting in which it is intended to operate. It is here that the Judge is
called upon to perform a creative function. He has to inject flesh and blood in
the dry skeleton provided by the legislature· and by a process of dynamic inter-
pretation, invest it with a meaning which will harmonise the law with the pre-
B vailing concepts and values and make it an effective instrument for delivery of
justice. [697 E-H, 698 A-CJ

11:2. The Constitution is an organic instrument intended to endure and
its provision must be interpreted having regard to the constitutional objectives
and goals and not in the light of how a particular Government may be acting at
c a given point of time. Judicial response to the pro b!em of constitutional inter-
pretation must not suffer from the fault of emotionalism or sentimentalism which
is likely to cloud the vision when Judges are confronted with issues of momentous
importance. [500 B-C]
...
Northem Security Co, v. United States, (1903] 193 U.S. 197, quoted with
approval.
D
PER GUPTA, J.

1:1. Independence of the judiciary is a cardinal principle ofladiaa Consti-
tution. Independence of the judiciary does not mean freedom of the judges to
act arbitrarily; it means that the judges must have freedom in discharging their
judicial functions. la order to maintain the independence of the judiciary it has
E to be protected against interference direct or indirect; it also follows that the
coastitutio.aal provisions should not be construed in a manner that would tend
to undermine this independence. (686 D-F]

1:2. The independence of the judiciary depends to a great extent on the
security of term or tenure of the judges. If the judge's tenure is uncertain or
F
-
precarious, it will be difficult for him to perform the duties of his office without
fear or favour. The tenure of an Additional Judge is not uncertain or precarious
but it is a conditional on the existence of arrears in. the High Court which is an
objective condition. [689 F-G]

2:1. The decision not to extend Shri Kumar's term of office as an Addi-
G tional Judge of the Delhi High Court was invalid and unconstitutional in as much
as it was not based on a full and effective consultation, as contemplated in
Article 217(1) of the Constitution. [687; 702F]

2:2. When the question before the concerned authorities was whether the
term of an Additional Judge should be extended and the volume of work pending
H in the High Court admittedly require the services of another judge, it was not
permissible to refuse extension on the basis of unconfirmed reports. The scheme
of the constitutional provisions does not warrant such course of action.
[687 F-G]
S.P. GUPTA V, UNION 407

3. It is true that on the expiry of the initial term of an Additional Judge,
A
Article 217(1) is attracted for further appointment. The fitness of the judge
having already been considered at the time of bis initial appointment the scope
of consultation with the appointment of an Additional Judge for another tenr1
is contemplated is limited to an inquiry as to the volume of work pending in the
High Court and the time likely to be required to dispose of the .arrears. If his
initial appointment was not made on probation, the judge's capacity and integrity
cannot come within the scope of the consultation necessary under Article 217(1) B
for giving him another term on the expiry of his previous term of office.
[690A-C]

4. A proper reading of Article 224(1) makes it clear· that the tenure of an
Additional Judge is not uncertain or precarious but is conditional on the existence
· of arrears in the High Court which is an objective condition of fact. The claim
of absolute power for the Government cannot be accepted on the ground that
c
-- Article 224 only fixes an outer limit of time and the President is, therefore free
to appoint additional judges for varying periods of time not exceeding two years
without reference to the volume of work pending in the High Court. Such a
claim is untenable on the language of Articie 224 and militates against the con-
ception of independence of judiciary. [688 B, 689 D-F]
D
5:1. If complaints against the judge -are serious and are from a responsible
source, they cannot certainly be ignored. But, the allegations cannot be presu!ned
or assumed to be true and have to be proved. [690 C-D)

Since the language of Article 224(1) does not permit shqrt term extensions
of the tenure of an Additional Judge to enable the authorities to complete E
investigation into the allegatio,ns against him the only reasonable course open
which does not undermine the independence of judiciary is to appoint the judge
for another term having a rational nexus with the volume of arrears in the High
Court and then proceed with the inquiry into allegations and remove the judge

- if the allegations were found true, in accordance with the procedure laid down in
claµses (4) and (5) of Article 124 read with Article 218. In the case of Shri Kumar
admittedly there has been no real inves ligation in relation to the complaints
against him. [690 F-HJ

5:2. From long practice, an Additional Judge has a legitimate expectancy,
if not a right to be appointed for another term if the pending business in the
High Court require the services of an Additional Judge, or as a permanent Judge
when a vacancy is available, if he is the senior most of the Additional Judges. G
Refusing to appoint him again when the conditions require an appointment to be
made means in substance bis removal. To remove a permanent judge, the pres-
cribed procedure must be followed and the allegations against him proved: drop-
ping an Additional Judge at the end of his initial term of office on the ground
that there are allegations against him without properly ascertaining the truth of
the allegations may be expedient but it is destruotive of the independence of the H
judiciary. This would be an easy way for tl)e e)(ecutive to get rid of an incon-
y~nient judge. [ 691 B-D J · ·
408 SUPREME COURT REPORTS [1982] 2 s.c.R.

A 5:3. Even assnming that the scope of consultation under Article 211(1) is
the same for the initial appointment of an Additional Judge and also for his
appointment for another term, there has been not only no proper consultation in
the case of Shri Kumar but also no full and effective consultation as contemplated
by Article 217(1) of the Constituiion, inasmuch as the relevant material was
withheld from the Chief Justice of India and •his vitiates the decision not to
extend his term of office. [691 F, 692 D-F]
B
5:4. Even assuming that the Chief Justice of Delhi High Court had in-
formed the Chief Justice of India of the allegation of corruption against Shri
Kumar, it is clear that it was not disclosed to Shd Kumar and he was not given
an opportunity to explain the charge against him. Consistent with the principles
of natural justice Shri Kumar who had undoubtedly suffered an injury by his
c term of office not being extended should have been given an opportunity to ex-
plain the charge of corruption against him. The principles of natural justice apply
even to a person who has no legal right. [702 G-H, 703 A-Bl ...
In re H.~ (An Infant); [1967] 2 Queens Bench 617, quoted with approval.

D 6. It is true that under Article 217(1) the President, before appointing a
person as a Judge of a High Court has to consult three functionaries, the Chief
Justice of India, the Governor of the State and the Chief Justice of the High
Court; for the appointment of the Chief Justice of the High Court, the President
bas to consult the Chief Justice of India and the Governor of the State. Assuming
however they are coordinate authorities in the sense that each of them must be
consulted, the scope of consultation is not the same so far as the Governor is
F concerned. He is certainly not in a position to give any opinion on the legal
acumen of the perso~s proposed to be appointed. His opinion k relevant on
matters on which the Chief Justice of the High Court or the Chief Justice of India
are not expected to have any information. (703 D-E, G]

Normally, the Chief Justice of the High Court is likely to know more about
a lawyer practising in that court whose name is proposed for appointment but
where the question is whether or not the tenure of an Additional Judge should
be extended, if all the relevant materials are before both, the Chief Justice of India,
the Chief Justice of the High Court cannot be said to be in a better position than
-
the Chief Justice of India to give a correct opinion. The Chief Justice of India
being the pater fami/ias of the Indian judiciary, the President should accept the
opinion given by the Chief Justice of India in such a case unless the opinion
G suffers from any obvious infirmity, _he cannot act as an umpire and choose
between the two opinions. (703 H, 704 A-C]

Shamsher Singh v. State of Punjab, [1975] 1 SCR 814, followed.

H 7. The letter dated March 18, 1981 of the Law Minister is of no conse-
quence legally and ·can~ot bind or affect anr of those for whom it was intended.
. . . ~~
S.P. GUPTA V. UNION 409
The President may transfer a judge from one High Court to another only A
after consultation with the Chief Justice of India. The policy '"may provide the
President with a ground to suggest the transfer of a Judge, but the Chief Justice
of India must consider in each case whether the proposed transfer in public
·interest because, even granting the validity of the policy, the question would
remain who among the Judges should be transferred and to which High Courts.
(706 C-D]
B
~ Union of India v. Sankal Chand Himatlal Sheth & Anr., (1978) 1 SCR 423,
referred to.

8. The impugned order of transfer of Shri K.B.N. Singh, Chief Justice of
the Patna High Court as Chief Justice of Madras High Court is valid under C
Article 222(1) of the Constitution. [706 G]·
...
OBSERVATION: An order of transfer even if made for administrative
reasons and in public interest is likely to cause some injury to the Judge transfer-
red, though that could not be valid ground for holding that the transfer is by way
of punishment; it is the reason behind the order of transfer that should_ determine D
its nature. It would be only fair not to let the Judge who is being transferred
face more difficulties than are absolutely necessary. If the Judge is wholly un-
familiar with the language of the State to which he is transferred, it is possible in
some cases that it will affect his efficiency. It is desirable, therefote, to transfer
Shri K.B.N. Singh to some High Court, consistent with his position as a Senior
Chief Justice where the language difficulty will not be so acute. [706 H, 707 A-C]

9. As to foe us standi the petitioners who are practising advocates of differ-
ent High Courts are competent to maintain the petitions. (707 E]

- PER FAZAL ALI, J.

1:1. Independence of judiciary is doubtless a bassic structure of the Consti-
F

tution but the said concept of independence has to be confined within the four
corners of the Constitution and.cannot go beyond the Constitution. While this
absolute judicial power has been conceded by the Constitution to the judiciary,
a certain amount of executive control has already been vested in the hlgher
judiciary .in respect of the subordinate judiciary. At the same time, the power G
of appointment of High Court Judges including the Chief Justice or Supreme
Court .Tudges, as also the Chief Justice of India, vests entirely in the executive,
namely, the President of India, who acts on the advice of Council of Ministers.
Here again, this executive power is not absolute and has to be exercised in con-
sultation with the CJI in the case of appointment of Supreme Court Judges, as
also in consultation with the CJI and the Governor of the States concerned in H
case of the appointment of Chief Justice of the High Courts and in the case
.of appointment of High <:;oµrt Jud~es, the Chief Jt1stic;e qf the concerned Hi!1b
410 SUPREME COURT REPORTS [1982} 2 s.c.R.

A Court is also to be consulted. The consultation contemplated by the
Constitution must be full and effective and by co~vention the view of the
concerned CJ a.ad CJI should always prevail unless there are exceptional
circumstances which may impel the President to disagree with the advice given
by these constitutional authorities. Thus, in fine, the doctrine of separation of
powers so far as our Constitution is concerned, reveals an artistic blending and
an adroit admixture of judicial and executive functions. [776 C-H, 777 A]
B
1:2. In the American Conslltution by virtue of the fact that the entire
judicial power is vested in the Supreme Court or other courts, unlike the
provisions of our Constitution where appointments are to be made by the
Appointments have to be made by the Supreme Court, the President in
consultation both with judicial and ex~cutive authorities as indicated above.
Therefore, in expounding the concept of separation, the essential distinctive
c features which differentiate our Constitution from the American Constitution
must be kept in mind. [778 H, 779 A-BJ

1:3. So far as framers of our Constitution are concerned they had deliber-
ately rejected the theory of complete insulation of the judicial system from the
·executive control. During the formative process of our Constitution though
D jurists like Shri B. N. Rau and Dr. Ambedkar wanted to give la1ger powers to
the CJI or to a Council of State which may be appointed so as to be a judicial
Body but these ideas were not accepted and ultimately the Constitution emerged
as a valuable document which vests complete power in the President. The Indian
Constitution has devised a wholesome and effective mechanism for the appoint-
ment of judges which strikes a just balance between the judicial and executive
powers so that while the final appointment vests in the highest authority of the
E executive, the power is subjecMo a mandatory consultative process which by con- I•

vention is entitled to great weight by the President. Anart from these safety
valves, checks and balances at every stage, where the power of the President is
abused or misused or violates any uf the constitutional safeguards, it is always
subject to judicial review. The power of judicial review, which has been conceded

-
by the Constitution to the judiciary is the safest possible safeguard not only to
ensure independence of judiciary but also to prevent it from the vagaries of the
F executive, Another advantage of the method adopted by our Constitution that
by vesting the entire power in the President, the following important elements
are introduced : (i) a popular element in the matter of administration of justice:
(ii) linking with judicial system the dynamic goals of a progressive society by
subjecting the principles of governance to be guided by the Directive Principles of
State policy: (iii) in order to make the judiciary an effective and powerful
machinery, the Constitution contains a most onerous and complicated system by
G which judges can be removed under Article 124(4), which in practice is almost
an impossibility; (iv) in order to create and subserve democratic processes the
power of appointment of the judiciary in the eKecutive has been vested so that
the bead of the executive which functions through the Council of Ministers, which
is a purely elected body, is made ,,ccountable to the people. If absolute powers
were to be vested in the judiciary alone for all its spheres of activities (appoint-
H ments may have crept in, resulting in irreparable harm to the great judicial
institution. Another reason why the power of appointment in the judiciary Wa$
S.P. GUPTA v. UNION 4ii
not vested absolutely was to avoid judicial interference in the day-to-day working A
of the legislative or parliamentary institutions. [779D-F, 780B-H, 781A-B]

1.:4. The Indian Constitution fully safeguards the independence of Judges
as also of the judiciary by a three-fold method : (i) by guaranteeing complete
safety of tenure to judge except removal in cases of incapacity or misbehaviour
which is not only a very complex and complicated procedure but a difficult and B
onerous one; (ii) by giving absolute independence to the Judges to decide the
cases according to their judicial conscience without being influenced by any
extraneous considerati'on ·and without any interference from the executive. Article
50 clearly provides that the State shall1 take steps to separate the judiciary from
the executive in the public service of the State. This important Directive Principle
enshrined in Article 50 has been carried out by the Code of Criminal Procedure,
1973 which seeks to achieve complete separation of judiciary from the executive; c
(iii) so far as the subordinate judiciary is concerned the provisions of Articles
.... 233-236 vest full and complete control over them in the High Court. Only at the
initial stage of the appointment of munsiffs or the District Judges, the Governor
1s the appointing authority and he is to act in consultation with the High Court
but in all other matters like posting, promotion, etc., as interpreted by this
Court in· Shamsher Singh's case [1975) 1 SCR 814, the High Court exercises
absolute and unstinted control over. the subordinate judiciary. Promotion, holding
of disciplinary inquiry, demotion, suspension of Sub-Judges lie with the High
Court .and the Governor has nothing to do with the same. The condition of
consultation which the Governor has to exercise implies that he would have to
i respect the recommendations of the High Court and cannot turn it down without
cogent reasons and even if be does so,' it is manifest that his order is always
subject to judicial review on the ground of ma la fide or exceeding his jurisdiction.
[781 C-H, 782A-E]

Chandra Mohan v. State of UP & Ors., [1967] 1 SCR 77, referred to.

- ~:l : Re : Disclo1ure of Document and plea of Privilege claimed by the
Government-

If the documents are not disclosed, the petition would not suffer serious
F

prejudice because the undisputed facts show that the Chief Justice of Delhi
High Court had fot reasons given by him opined that the term of Justice
Kumar ought not be extended. The CJI, however, expressed a contrary view;
It was, therefore, for the President to choose any of the two views. Thus,
disclosure of details would have undoubtedly caused serious damage to
public interest by exposing not only the petitioner Kumar but also the CJ,
Delhi High Court and the CJI to public gaze and criticism which would be
highly derogatory to the high position that these high constitutional functionaries
hold and would in future deter them from expressing any opinion on the merit
of future appointments which might . result in an insoluble stalemate. Thus,
balancing the two factors, there can be no doubt that the weight is on the side H
of the Union of India. Article 74(2) of the Constitution and sections 123 and
124 of the Evidence Act are expressed in a negative form which is the clearest
412 SUPJl.EMB COURt REPORTS (1982] 2 S.C.I!.

A possible proof of the fact that the legislature has incorporated a direct prohibi-
tion against the use of documents mentioned in these provisions. Thus, a dis-
closure can be allowed only in exceptional circumstances where there is no injury
to public interest because public interest is always paramount to private interest.
In fact, these provisions clearly contain four important attributes of the doctrine
of disclosure, viz., (i) public interest; (ii) confidentiality; (ii) candour; and (iv)
expediency [831F-H, 832A]

State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR 371; Amar Chand
Butail v.Union of India, AIR 1964 SC 1658; State of U.P. v, Raj Narain & Ors.,
[1975) sec 428,followed.

c Duncan v. Cammell Laird & Co., [1942) A.C. 624; Henry Greer Robinson v.
Stale of South Australia. [1931] A.C, 704; Conway v. Rimmer & Anr., [1968] AC
9l0; Rogers v. Home Secretary, [1973] A.C. 388; Sankey v. Whit/am & Ors., 21
Australian L.R. 505; Marconi's Wireless Telegraph Co. Ltd. v. The Common-
wealth, 16 Commonwealth L. R. 178; Alfred Crompton Amusement Machines Ltd.
v. Customs and Excise Co111missioners, [1974] A.C. 405; United States v. Richard
M. Nixon, 41 L. Ed. 2d 1309; United States of America v. Partida J. Rayno/des,
345 US I; Asiatic Petroleum Co. Ltd. v. Anglo-persian Oil Co. Ltd., [1916) 1 KB
D 822/829; Hennessy v. Wright, 21 Q.B.D. 509; The Corporation of the City of
Glasgow v. The Central Land Board, 1956 Sessions Cases 1/18, D. v. National
Society for the Prevention of Cruelty to Children, [1977] 1 A.E.R. 589; Sci911ce
Research Cowtcil v. Nasse, [1980] A.C. 1028; Burmah Oil Co.· Ltd. v. Bank of
England, [1980] A.C. 1090; Neilson v. Laugharne, [1981] 1 All E.R. 829, referred
to.
J!l,
2:2. The doctrine of "candour" or "confidentiality" propounded by the
American Supreme Court cannot be blindly applied to the provisions of the
Indian Constitution which has features of its own and substal)tially differel1t
from that of the American Constitution. The doctrine of "confidentiality" as

F
applied by the American Court is directly opposed to the scope of sections 123
and 124 of the Evidence Act. [835F-G]

2:3. On a parity of reasoning, the statutory provisions of sections 123 and
-
124 of the Evidence Act as also those of Article 74(2) of the Constitution have 'r
fully safeguarded high Government and official secrets and disclosure is pro-
hibited in public interest unless the court is fully satisfied that disclosure will not
harm the public interest. Thus the rule or protection against self discrimination
G as prevalent in the United Kingdom or U.S.A. has never been accepted in India~
[836H, 837A]

e
Before importing the doctrines or the liberal trend of modern cases acro's the
seven seas, the Court cannot overlook the mandatory provisions of the Evidence
Act and the Code of Criminal Procedure. Furthermore, while in England and
-
A.merica the democratic system of Government had been existing for m.ore than
S.P. GUPTA V. UNION 413

two or three centuries, Indian democracy is only three decades old, which is very A
small period in the life of a nation and India had yet to develop its law by a pro-
cess of adaptation and accommodation, rejection or modification or by a trial-
and error method. The Supreme Court while construing sections 123 & 124
of the Evidence Act was fully alive to the conditions prevailing in the
country and the manner in which the public services were run and the Central
Government or the State Governments took important decisions. Any revolu-
tionary decisions so as to expose high confidential matters tc) public gaze by B
following a policy of liberal disclosure of documents ignoring the provisions of
sections 123 & 124 of the Act would not only be detrimental to our progress but
may cause serious obstruction In the practical running of day to day affairs of
the Government or for that matter the Government of the country itself.
[g49F·H, 850A-B]

c
2:4. The cor,ect legal position is tbat whereas mere expediency may not be
a ground to claim privilege so as to avoid production of a document which is
produced, may defeat the defence where the documents consist of highly confi-
dential matters in respect of constitutional functionaries like Chief Justices or
High Court Judges, the Law Minister, the President of India, C.B.I., l,B. and
such other Departments the question of public injury, which may be
caused, becomes a decisive factor in upholding the plea of privilege. The D
Court is, however, not powerless to hold its ·own enquiry in order to test the
bona fide of the plea of privilege. One form of such an enquiry may be the
inspection-of the documents themselves by the court before disclosure. If after
inspe9tion the court finds that the plea of privilege is well grounded and _its dis-
closure will lead to great public injury, it wiH be justified in upholding the plea
of privilege. [839C-E]
E
2:5. Thui, so far as the Supreme Court is concerned it has chosen to follow
the principle of English Law with suitable adjustments and modifications in
determining the plea of privilege under ss. 123 & 124 of the Act. This is, as it
should be, because that since the Evidence Act was enacted during the British
rule and we have generally adopted the English system in procedural matters, we
should not depart from the basic and essential principles of interpretation as laid F
down by the English law. While construing ss. 123 & 12~ and applying the
principles of English law, we must do so against the background of the socialist
State and the egalitarian society which is the goal of our constitution instead of
confining the contours of privilege in a strait-jacket; in suitable cases a liberal
·view can be taken by this Court without violating the express language or the
general spirit of the statutory provisions of Evidence Act. So far no case has.
ever held that ss. 123 & 124 are unconstituticmal an<I this could not be so because G
these provi,ions deal with matters relating to great public interest. [8500-G]

2:6; Another important circumstance that has to be taken into consideration
is that even after more than three decades of our independence, the P~rliament
.despite so many socio-economic chan$e~ a,p 9v~r tile; world has not thought it H
414 SUPREME COURT REPORTS [1982) 2 s.c.R.

A advisable or necessary to amend the provisions of the Evidrnce Act so as to
liberalise or widen the scope or the policy of p1ivilege contained in ss. 123 & 124
of the Act by incorporating the principles laid down in the recent English or
American cases. This intrinsic circumst anee demonstiably proves that the view
taken by the Supreme Court over the years is correct and does not call for any
a'nendment of the Evidence Act by the Parliament. On a parity of reasoninj!,
the irresistibl~ conclusion that follows and the natural presumption that arises is
B that our Jegisfature did not intend to make a departure from the earlier English
decisions either by incorporating or adapting tbe principles of American law on
the subject. It will not be unreasonable to presume that the ft;>unding fathers of
the Constitution and the Parliament thr.reafter having been fully aware of the view
taken by the American courts in recent decisions has affirmatively chosep to
reject the liberal and somewhat dangerous doctrine of candour. [85JB-D l

c
2:7. Coming to the practical side of the dangerous consequences of the
disclosure, and in support of the view that afler inspecting the documents, it was
not in public interest to order disclosure of the contents of the documents, the
following considerations must be kept in mind : (a) appointment of High Courts
Judges are highly confidential matters containing frank and free legal views
expressed by the CJ of the High Court, CJI and the Central Government repre·
D sented by the Law Minister and Council of Ministers. These authorities have
expressed their views in the secret correspondence on the distinct assurance and
belief that for the last two centuries such docu meats have always been treated as
secret, confidential and privileged and uni ii today no disclosure of such documents
has ever been allowed by any court. Thus, any disclosure of the contents
of the documents would be extremely derogatory to the High constitutional
position that these Constitutional functionaries enjoy and would in the Jong
E run prove counter-productive and destroy the sacrosanct consultative process as
envisaged by the Constitution. (b) If disclosure is allowed, it will bring
into disrepute the judicial institution itself and lead to a continual process
of washing of dirty linen and perpetual mudslinging by allowing the so called
wronged persons to make allegations and counter-allegations against the Govern-
ment and CJ concerned as was sought to be done in this very case. It is true that
even after the conteilts of the documents are' disclosed, the petitioners cannot be
F allowed to travel beyond the material disclosed by the documents but even the
material could be exploited and affect the secrecy of such high constitutional
officers and raise a controversy which will ultimalely lead to opening a pandora's
box which is neither in the interest of the judiciary nor even of the lawyers,
[825F-H, 853A-F]

G 3.1. Re. Circular letter of the law Minister-

The circular of Union Law Minister dated March 18, 1981 does not
endanger and erode the independence of the judiciary or intend to do any such
thing. The circular merely seeks to provide an easy and practical, a rough and
H ready and an ingenious and scientific mechanism to achieve the policy of taking
i:me·third of the Jud~es in a Hi~h <;our! from outside the State. (8J3F-H, 814A-Bl
. S. P. GUPTA v. UNION 41~

3:2. The circular d_oes not cover Permanent Judges or
the High Court at J.
all but it applies Only to two.kinds. or JudgCs;· '(i) ·persons w!lO are .abOtit tC)
be aPPoinied as Additional Judges and (ii) persons
who are working -A-ddl-as
tional Jµ'dges and whose term is Jikely to expire. 'The.re is no compulsion On
theril to give their conSeD.t. On. the other· hand, the circular pfovides ·an addi~
tional facility t'o the Ji.idges Who may iike to go out ·or the State !n acCordai:Jc'o
with the policy. (814 G-H, SIS FJ . . .. .
• ' • 1• • •
B
3:3. The tone and the tenor of the circular docs not amount to pressurising
the Judges and putting them under coercion to give their consent at the peril of
their l?eing droPp(d at' the initial sta'ge.· The ple_a of coercion or undue itiftuence
i~ to be pleaded by persons on wboli undlle influenCe "r _Coercic;in is. practised.
N~ne Of ·thC Judgis-b.iVe· either bY any- staterDent -or
affidavit- comPlaine'd · thiit
the1 h,ld ~ive'! t~eir co~sent under duress. [81~ F-H] ·- · c
.. I·

. 3:4.. The circular does not in any way interfere with the supreme authority
of the Chief Justice of India in thC mitter of consultation under Article 222.
There is no question of presenting a fail accompli to the Chief Justice of Icdia,
because he has to consider all the shades~ aspects and problems of the matt.er in
its entirety clD.d would also have to consult the Judge concerned and if he feels D
t~at ~·proper case for transfering the. Additional Judge to other High Court bas
not be-~n made out, he can refuse to give his consent in which case in all pr<>"'
bability the proposal would die a natural death. [816 F-HJ

J:5. No ques,ion of transfer is invoi~ed in the mechanism sought to be
0

devised by ~h·C circular as the Addi tionaf Judges have only to be appointed for E
the firSt timC in.other High.CoUrts and are not to be transferred. They wOUtd
not be transferee J~dges and thCrefore~ not entitled to.the . facilities which are
aVailabtC io trans_feree. Judgc:s compens~tory allowance. visiting bis home State
e•ery.year.· · · ·· [817 B-CJ.

3:6. The circular letter issued by the· Law Mi~~ter is not maridatory but
purely directory..' It is open to the Judges to refuse to answer the queries made
from them by the C~l in pursu3.nce of the Circular and no adverse inference .
ca~ blf
·- taken agai~st them, though the law Will
.- . . . - . . . . . . . -
take
'' .
its..own- course. [817 C-D]

. 4:1. At;t ~Aamination • or the various optntons expressed by the legal G
lumin3'.r_iCs, StateSffieo, politicians aiid jurists from' 1958 to 1981 makes it clear ·
thai the.idea ·or the Cetitral Govi:mnient of a uniform Policy of tCanSrCr of .·CJs~
. sc;i'that.c'ach Sta~ei bits~ ·CJ fr~rll olltside, is a· ~.ery essential, u~~ful, seti.sible 'arid
a· wise· ·o~e \vpich CutS at' .the rOots 'Or sO . inaDY Cvils With_ which·· nOi
O?tY"o~.r CNJniry but~ e~ei;i fhe higher j1:1dicfary is faced. Se~ndly,"' sue_~ a
uniform policy will be in the betier interest 9f the concerned Judge himself H
~Ca~se however disi~terested or ·independ~rlt ~e may be, p.C is ·bo'und t6 'be
~~c~-~ Cith~r f9RS'£!?~~11~r-~p~~~c~~~~Ir1?~ ~qt~~-~~i~4 ~~~o~ whQ. ~~O?~~
416 SUPREME COURT REPORTS [19821 2 s.c.R.
. ' - I ..
A to exp1oit him even ·without his .knOwtedge. Such a policy wou!d enhance the
prestige or
the judiciary, ensure its independence and make the. working of _the
head of the judiciary in the State more efficient and generate a greater confidence
in the people of the new State where he is transferred .. The language problem
also does' not 3ppear to be an insurmountable obstacle because while laying down
the polic}r the Government can start with tran5fers of CJs ·within the Zones as
recoinmended by the Law Commission which will minimise the language
B difficully. (800 D·H, 801 A]

4:2. In making the tranr;.fers,_ there wOuld · be ·no senous objection if the
CJ is allowed to indicate his choice regaring the State where be.- would be· pre-
pared to be transferi'Cd and the same niay be accepted as far as ,practicable. So
far as recruitment of One.-third jlldges at the initial st3gC is coricemed, ·this will
·c~· no doubt. present some difficulties in the beginOirig because~ several Constitutional
authorities would have to be consulted but this difficulty can be overcome either
. by the appropriate method adopted by the Circular or any mechanism similar to
the same. (801 A-CJ ·

The Chief Justice of each High Court should be asked· to Prepare a
0 panel of suitable persons who are considered· for· appointment as High Court
Judges both from the Bar and from the subordinate judiciary. ·Before including
the narm: Of the persons concerned their previous consent for being .appointed
outside the State may be ·obtained by the CJ. This can be done by determining:
the strength of the panel so that it may form one-third of the total strength of
permanent judges already fixed by the Presi4ent or as may be fixed from time to
time.. The Civil.List of Jndges oftbe Supreme Court and High Courts gives the
E ·sa.nctioned· strength of permaiient and· Additional Judges. One-third of the
strength of the permanent judges according to the vacancies that fa11 should be
,.
reserved for the persons found suitable and who are. willing to serve outside the
State;- It would be better if the t>ersons whose ·names are included in the Panel
.. are appointed outside the State as permanent judges which would Provide an
·attractive offer and give a better impetus. to the persons aspiring for judgeship
and would tempt theni to serve outside the State. [801 CF]
f-, ·,
. ID.. fact;iawyers,.Judges pol;ticians;jurists, nlembers of the ~Bai and other
9
·f
statesmen h3ye aJ)plied ~heir minds and expressed .themselves strongly in favour or
thepolicysoughttobeevolved_by the Government. In_view, however, of the
~banged circumstances, such a Policy is not oiity proper but essential as being the-
G prime need of the hour. One should nof be blind to the. fissiparous and parochial
tendencies that have sta.fted raisillg their heads threatening disintegration of the .
country. The dark clouds - of. s1tparatism, · conservatism and paroChialisni'
haYe-started ·casting their shadows- on the entire" Country and it is high
time that SuCh a sacred and sacrosanct institution like the High Courts should
be protected and kept aloof from such evil forces~ It is manifest that a CJ from
H outside will apply an jndepei:ident approach both in discharging his judicial dUties
as a Judge and in recommending appoiiltment of members of the Bar .:or service
io the High Court and his selection will not be inspired or tainted by any local
s. 1>, GUPTA v, tJ~iON 417

or personal consideration because he would be an outsider in the High Court A
of a State where he presides. Further, even the litigant would have much
greater confidence in such a ci than in a local person. [805 B-E]

4:3. Indeed, if we are really concerned that we should build up an inde-
pendent judiciary then it is absolutely essential that new talents from outside B
should be imported in every High Court either to man it or to head it so that
they may generate much greater confidence in the people than the local Judges.
The position of a CJ is indeed a very high constitutional position and our Con-
. stitution contains sufficient safeguards to protect both his decision making ,pro-
cess and his tenure. It is a well-known saying that power corrupts and absolute
power corrupts absolutely. As man is not infallible, so is a Chief Justice,
though a person holding a high judicial post is likely to be incorruptible because
of the quality of sobriety and restraint that the judicial method contains, even
c
so, if a CJ is from outside the State, the chances of misusing his powers are
reduood to the absolute minimum. The power to formulate or evolve this.
policy clearly lies within the four comers of Article 222 itself which contains a
very wide power conditioned only by consultation with CJI who is the highest
judicial authority in the country. It is always open to the President, which in
practice means the Central Government. to lay down a policy, norms and guide- D
lines according to which the presidential powers are to be exercised and once
these norms _are followed, the powe~s of the PresiGent would be beyond judicial
review. [ 805 H, 806 A-DJ

As against policy transfer selective transfers of CJs to High Courts other
•han the one where they are working or may be appointed, contains· the colour E
of discrimination and arbitrariness because however careful the CJI may be if
he starts picking and choosing CJs from outside the High Courts the element
of discrimination or arbifrariness cannot be reasonably excluded. On the other
band, if a general policy applying to all and sundry (CJs) is evolved by which
every state would have a CJ from outside no complaint of discrimination can
ever be made. In fact, the very foundation of discrimination would disappear.
The view taken by the CJI, does not appear to be correct or acceptable and F
perhaps in his o'wn interest selective transfers should not be made because even
if in one or two cases discrimination is made due to oversight or bona fide lapse,
it will amount to a great slur on such a high position as the CJI bolds. On the
other hand, if a uniform policy of appointing or promoting CJs to High Courts
outside the State is followed it will promote national integration. and curb the
fissiparoas and parochial tendencies and preserve and protect the purity of judicial
administration. [806 E-H] G

5:1. Re: Policy of transfer of Judges and Chief Justices:

Article 222 confers an express power on the· President to transfer a judge
(which includes the CJ) fro"m one State to another. This power is not circums- ff
cribed or he<lged by any conditions or stipulations excepting that the CJI has
418 stJPRllMl:l coiJRt RllPOkTS (t 982) 2 S.C.R.

A to be consulted. Jn determining as to how this power can be exercised, the
President undoubtedly possesses an implied power to lay down the norms •. the
principles, the conditions and· the circumsiances under which the said power is to
be exercised so long as ! he does not overstep the limits or confines of the power
enshrined under Article 222. Since the implied power lies •with the President it
is not at all necessary that this power should be regulated by a legislation or an
Act or a Rule or a bye-law or any other instruction. A declaration by the
B President regarding the nature and terms of the policy which virtually means
declaration by the Council of Ministers is quite sufficient and absolutely Jegijl
and constitutional to effectuate the policy decided upon. t809C-FJ

Secondly, as the policy is a general one which applies to all and sundry
wiihout any discrimination or selection, it cannot be violative of Article 14 of the
c Constitution because the policy will operaie equally on all the Judges or the CJs
without any difference or distinction. [809F-G)
....
Thirdly, it is necessary to put the policy beyond the :barge of unreasona-
bleness or arbitrariness that the State policy must be subject to just exceptions
which may be very few, so that the exceptions do not become a rule
D or a ruse to destroy the effect of the main policy itself. For instance, while
evolvilig or formulating a general policy the. following exceptions can be made
by the President-(i) that where the personal circumstances of a judge, purely on
humanitarian grounds, are such as may endanger his life, e.g,, he may be a
heart patient and so he may 'not be transferred to a High Court which is situated
in a hill station or at a particular height or he may be suffering from such
disease which may imperil him there or such other circumstances of a very com-
E pelling or pressing nature·; (ii) where the judge or the CJ concerned is about to
retire and is to serve only for a very short term before retirement, his
transfer to some other court would not serve any useful purpose and would be
very inconvenient to him-such a period may vary from one day to six months
but not more; (iii) where due to some physical infirmity the CJ concerned has
become immobile and cannot be moved beyond his home State, this may be a
just and humanitarian ground for bringing him under the exceptions to 'the
F policy; and (iv) such other circumstances, either siinilat to or idehtical with the
circumsiances mentioned above, which in the opinion of the CJI or the President
requires due consideration on humanitarian grounds. [8090-H, '8JOA-E]

It Is manifest that even if a Policy has been finally evolved and formulated
and transfers are sought to be made in pursuance of the policy, the President
G has to consult the CJI or where the CJJ initiates the proposal he is to consult the
Judge concerned as also the President but the process of consultation would have
to 1'c confined to the four cornets of the ju st exceptions and not beyond the same
which form part of the Policy laid down by the President. At the same time,
. the exceptions should not be so broadly construed as .to destroy the effect and
fruitfulness of the Policy. [8 IOF-G]
H
S. P. GUPTA v. UNION 419

5:2. The President before formulating the Policy should consult the·CJI
A
and have his views because the laying down of the Policy would be under
Article 222 and consultation with the CH being a necessary concomitant of the
said power, even while laying down the Policy, the consultative process is
essential. [819 C-D]

B
6:1. Although it is true that by fixing the strength of permanent and
Additional Judges of each High Court, the Central Government appears to have
created two parallel lines of recruitment so that the appointment of an Additional
Judge was a sort of training ground for being appointed as a Permanent Judge
whenever a permanent vacancy arose. [858 D-F]

c
6:2. If properly read, Article 224 envisages certain conditions precedent
before an appointment under Article 224 can be made and also prescribed the
nature and the term of the judge appointed. In the first rlace, it requires that an
Additional Judge can be appointed only if-(i) there is any temporary increase in
the business of a High Court, for instance where by virtue of some new temporary
law passed, a spate of litigation crops up but that ends with the duration of the
Act or with the completion of the temporary reforms, -etc., contemplated by the D
statute. Such an appointment is a kind of an emergency appointment which is
to last until the temporary increase or arrears are disposed of; (ii) where by
reasons of heavy arrears of work it becomes necessary to appoint an Additional
Judges, the appointment is made under Article 224. The Article, therefore, con-
templates only a tenure appointment to meet a particular contingency and is not
meant to be a permanent feature so as to form a training base for recruiting
judges from the training base to the permanent cadre. [859 C-F] E

6:3. The nature of the appointment under Article'224 is a pure tenure
appointment for a fixed period and once the period expires, there is no question
of extension of that period or reappointment. In other words, once the time for
which a Judge has been appointed expires, the appointment of the Judges ceases
to exist. That being so, whenever a judges is sought to be appointed afresh, the F
constitutional functionary will have to go back to Article 217 even if a judge is
to be appointed under Article 224 and the question ol> suitability would be the
first criterion. As in the case of initial appointment under Article-217, so in
the case of a fresh appointment after the period mentioned in Article 224 expires,
there is no leg~! right to be appointed nor does non-appointment give rise to
any legal or constitutional infirmity so as to be the subject of a judicial review.
It is a different.matter that if an additional judge is consici'ered for a permanent G
appointment afresh, the fact that he has acquired some experience would u·ndoub-
1edly be an important factor to be taken into consideration while judging the
' . suitability of the candidate concerned. At the same time, the constitutional
functionaries cannot shut their eyes to the facts which may have come to their
knowledge either against the Additional Judge or in his favour. [859 H; 860 A-DJ
B
Thus, thc·position is that even if an Add;tional Judge is not appointed
afresh and somebody else is appointed, \lwre~isj no q_uestion of ju<;\;ciat: review
420 SUPREME COURT REPORTS [1982] 2 s.c.~.

A nor is there any question of the non-appointment of an Additional Judge a fresh
casting any reflection or aspersion on the reputation or character of an Addi-
tional Judge because he was appointed only for a particular period and for a
particular purpose and is not on probation. [860 D-EJ

7. Re: Case of Chief Justice K.B.N. Singh-
B
Where two high constitutional functionaries are involved and have given
affidavits and counter-affidavits it is obviously a most difficult and delicate situa-
tion. Jn a matter of such a serious magnitude, the Court has to make a very
careful and cautious approach having regard to ihe respectability of the persons
who have sworn the affidavits. [869 BJ

c 8. Analysing the ratio of the decisions in Seth's case and Chandran.(JU/eshwar
Prasad's case the following necessary concomitants of an effective consultation
may be stated : (i) that the consultation contemplated by Article 222 must be
full and effective and is an essential ingredient of the exercise of power under
Article 222; (ii) that once when the President decides to transfer a judge, he
-
must consult the CJI before transfer, the consultation before transferring a judge
is, as it were; a condition precedent to the actual transfer of the judge;
(iii) if the consultation with the CJI has not been dcine before trans•
ferring a judge, the transfer becomes unconstitutional; (iv) the President
must make the relevant data and the necessary facts available to the CJI ~o that
he (CJI) may arrive at a proper conclusion. In case any facts are wanting the
same should be supplied to the CJI and this is an imperative duty or obligation
cast on the President who initiates the proposal; (v) the fulfilment by the President
of his constitutional obligation and performance of his duty by the CJI are parts
of the same process and after this process is fully complied with, the consulta-
tion becomes full and effective and not formal or unproductive, (vi) that suffi-
cient opportunity should be given to the authorities concerned to express their
views so as to tender advice as deliberation is the quintessence of consultation;
(vii) afte; the date, facts or materials are placed before the consultee and the
consultant, there should be a full and complete application of minds in respect of
F the subject to enable them to reach a satisfactory conclusion. In other words,
the two minds must be able to confer and produce a mutual impact on the
identical facts which would §Onstitute both the source and the foundation· of the
final decision; (viii) the CJI owes a corresponding duty both to the President and
to the Judge who is proposed to be transferred to consider every relevant fact
before tendering his opinion to the President; (ix) before giving his opinion the
CJI must take into consideration all relevant facts and should i;;formally ascer-
tain from the Judge if he bas any personal difficulty or any humanitarian ground
on which his transfer is proposed to be made and having done so, must forward
the same to the President; (x) consultation or deliberation is not complete until
the parties make their points of view known to the other or others and discuss .'
and examine the relative merit of their views. If one party makes a proposal to
the other who has a counter proposal which is not communicated to the proposer,
the direction to give effect to the counter-proposal without anythin!J more wilt
~ot alIJount to consultation. ~873 D-ll, 874 A-HJ
S.P. GtJl>TA v. ONION 421

9. The .constitutional requirements of an effective consultation have not A
been proved beyond reasona_ble doubt inasmuch as-(i) t.he petitioner was not
consulted before the formal proposal recommending him for transfer to Rajasthan
and then to Madras, was sent to the Government; (ii) that there is no mention
.al all in any of the proposals dated 7-12-80 or 20-12-80 regarding any discussion
having been held with the petitioner; (iii) that there is noth'.ng to sbow that the
President or the concerned Constitutional authority had sufficient time to
deliberate over tbe pros and cons of the transfer particularly in view of the B
difficulties placed by the petitioner; factually, as held by the CJI himself, in Sheth'1
case that deliberation is the very quintessence of consultation; (iv) the case .
squarely falls within the.ratio laid down in Chandramouleshwar' s case.
[881 C, 882!0-G]

In view of the circumstances discussed above the consultative process as
contemplated by Article 222 is clearly vitiated which renders the order impugned C
passed by the Presid_ent constitutionally invalid. [882 H]

10. While Article 222(2) does require that on transfer from one High Court
to another, compensatory allowance may be paid, it does not state .that the
Pre•idential Order should issue pari passu the order of transfer. Such an Order
could follow the transfer. Moreover, as the petitioner never cared to join his
new assignment and before· he could do so the wr_it petitions were filed and D
proceedings were stayed, there was no occasion for the President to pass the
order directing compensatory allowance to be paid to him until the validity of the
transrer;of the petitioner was finally a.diudged by Supreme Court. This is not a
case whereJajudge or a~CJ having been transferred had joined his new assignment
and started w<;>rking and still no order of compensatory allowance was made by
the President. [883 F- H]
E
11_. The .presumption un,der section 114 (e) of the Evidence Act, that official
Acts must .deemed to have been actually done applies only where there is no
challenge to the constitutional validity of .an official act. Where an act is found

-
to be per se unconstltutional, the question of raising a .presumption does not arise
because once it :is '.held, that the consultation did not fulfil the constitutional
requirements, the order impugned would become void ab initio and non-est. The
order transferring Mr. K.B.N. Singh to Madras to constitutionaily invalid.
F
[883 B-C, G]

Collector of Customs, Barod~ v. Digvijayasinhji Spinning & Weaving Mills
Ltd., (1962] 1 SCR 896 followed.

12:1. A general and unanimous policy of transfer of Judges and Chief Justices G
of High Courts to promote national integration and suppress fissiparous tenden-
cies, would doubtless be in public interests. Although Art. 222 does not contain
the words 'Public interest' in so many words but tbe very exercise of the power,
which is not a normal power but an exceptional one, it follows as a logical
consequence that public interest is a necessary concomitant of the exercise of this
power. It.cannot be said that on a parity of reasoning that 'consent' also should H
be read as a part and parcel of the exercise of the power under Article 222,

/
422 SUPRBME COURT REPORTS [I 982] 2 s.c.R.

A because if a Judge cannot be transferred without his consent then the power loses
its signiikan~e and becomes an immunity to a judge from transfer by withholding
his consent. Thus, a power which is to be exercised by the President can be
defeated or stalled by a simple act of the Judge in refusing to give bis consent to
the 1ransfer. This could never have been the intention of the founding fathers of
the Constitution. [722 H, 723 A-D]

B 12:2. A perusal of Article 222 unmistakably shows that it is expressed in
absolutely clear, Iexplicit, intelligible, plain and unambiguous language which
admits of no vagueness or ambiguity. It is not the function of the court to supply
words to suit a particular course of action so as to be acceptable to a particular
set of persons as a doctrine of implied consent. The word 'consent' h·as been
dropped by the legislature deliberately or it is a case of deliberate omission

c rather than casus omissus. Whenever the Founding Fathers intended that a
particular expression should be used in an ArtiCle as a condition precedent to the
exercise of a particular power, the same has been mentioned and where no such
intention was there the expressions have not been used. [723 H, 724 A-C, 729 CJ

Chandra Mohan v. State of U.P. & Ors. (1967] I S.C.R. 77, followed.
-
D 12:3. The word 'consent' was never intended to be included ia the powers
to be exercised under Article 222. There is no provision in the Constitution,
empowering the President to appoint for the first time a person as a Judge of a
High Court against his consent and even if he is appointed, th~ person
so appointed, can refuse to act as a Judge and if he does so the matter
ends there and he cannot be compelled to act as a Judge. Once however,
the person decides to accept the appointment of a Judge of a High Court he
E becomes a constitutional functionary and therefore would be subject to the provi-
sions of the Constitution because before deciding to accept the appointment he
must be presull).ed to be aware of the constitutional provision contained in the
·various Articles regarding High Court Judges, viz., the conditions of
of service, the salary and other allowances; the date of retirement and also
the provision .regarding transfer as provided for in Article 222 which does
not contain the word 'consent'. Therefore no Judge can complain that be bad
F been transferred against bis consent or plead that had he known this he may not
have accepted the office of a High Court Judge. As the word 'consent' is conspi-
cuously absent from Article 222, such a plea cannot in th'e very nature of things be
permitted to be taken by the concerned Judge. If he does not want to be trans-
ferred, it is always open to him to resign for which also there is a clear provision
under Proviso (a) to clause (!)·of Article 217. [727 G, 729 G-H, 730 A-DJ

G
Even at the time when Article 222 was taking its birth there was some
talk of making the transfer with the consent of 1be Judge concerned but this was
given up when it was pointed out that in the national interest it may be
necessary to send a compeient Judge to another High Court and this policy may
be stalled by the judge by withholding this consent. In other words, the idea
H of consent having been conceived, discussed and rejected clearly shows that the
Founding Fathers deliberately omitted the word consent from Article 222.
. . · . [766 C-EJ
S.P. ouPtA v. UNtON

12:4. The plain and unambiguous language of Article 217(c) and Article A
222 cannot be stretched to indicate that 'appointment' and 'transfer' are synony·
mous terms when the constitutional provisions make it very clear that the power of
transfer and the ·power of appointment are two different kinds of powers to be
exercised in different ways. [763 A-CJ

Kesavananda Bharati Sripadag'alavaru v. State of Kera/a [1973J Supp. S.C.R. B
1 explained.

12:5 The coastitution has used the word "appointed' in the case of a Judge
·of the Supreme Court and 'transfer' in the case of Jiidge of a High Court. A
perusal of the language of Article 217 (c) leads to the irresistible conclusion and
logical inference that the Founding Fathers have made a clear distinction between c
transfer and appointment. It is true that in both cases the office held by a Judge
is vacated in a fictional sense because there is a complete change in the life of the
Judge but that does mean. that the incidental of both these appointments are
the same. A Judge of the High Court when appointed as a Judge of the Supreme
Court cannot be equated .in any respect' with a Judge of the High
Court who is transferred to another High Court and continues to
poss~ss the same status, position . and emoluments which is essentially D
different from a Judge of the Supreme Court. It is true that on being transferred
to another High Court a Judge ceases to be a Judge but then he ceases to be a
Judge of the transferor court only and does not cease to be a Judge for all times
to come so ·as to make his transfer in the transferee court a fresh appointment.
This is clear from paragraph 11 (iii) to the Second Schedule to the Constitution.
It is true that i.n this schedule joining time is mentioned on transfer from a High
Court to Supreme Court or from one High Court to another and the word E
'appointment' has not been used as such. That however makes no difference
because this schedule only refers to a small matter of joining time which both the
judges. viz., a judge appointed to the Supreme Court and the Judge transferred
are entitled to avail. (761 A-HJ

12:6. When a judge was appointed in the original High Court he had taken F
a
the oath of his office which bound him to act as Judge of that. particular High
Court. Since by virtue of the transfer, the court is chang~d. a fresh oath becomes
necessary as a clerical formality to indicate that although his appointment as a

,
Judge of a High Court does not cease to exist he discharges his duties as a judge
in another court in respect of which be had not taken the oath of office. Io these
circumstances, it cannot be said that merely because a transferee Judge has to
take a fresh oath the transfer becomes a new or a fresh appointment. Moreover G
it is doubtful if the taking of a fresh oath is necessary at all because the warrant
signed by the President appointing a person as a Judge of a High Court bolds
good in the transferee court and the place is indicated by the notification issued
under the authority of the President which really means that after the notification
the warrant would have to be read to indicate that the judge was transferred to
the transferee court where he is to act as a Judge. (762 A-DJ H
424 SUPREME COURT REPORTS [1982] 2 s.c.R.
A 12:7. T ere is no reason to presume that any order Which is passed by .the
President under Article 222 hence forward is bound to be mala fide or colourable
and even if it is in a particular case or cases, it is doubtless subject to judicial
review. Therefore in all cases, constitutional transfers could not amount to a
punishment so as to arm the Government with a weapon to punish a Judge for
not toeing the line of Government. [770 C-E]

B
12:8. Once it is conceded that the power of transfer under Article 222 is
to be exercised in public interest then any inconvenience that is felt by the judge
would have to yield to the larger interest of the community so as to· make the
said article workable. Alth_ough Article 222 is an extraordinary power, whenever
a person accepts judgeship of a High Court he is fully aware that during his

c career as a judge the power under Article 222 could be exercised by the President
without his consent and if knowing this he accepts the position of High Court
Judge, he cannot be heard to say that he ought not to be transferred because be
would suffer lot of inconvenience. [770 P-H]

12:9. The very concept of transfer under Article 222 being a punishment
D is highly derogatory to the high constitutional posit.ion that a High Court judge
holds. Such a constitutional appointment, )'llhich makes a judge a constitutional
· functionary and not a government servant, more·so when he obtains certain special
privileges having regard to the high position he holds, is against .the very concept
of penalty or punishment. It is manifest that when a person is punished .for an
offence or a mistake or an error, then be is to undergo some penal process. In
the case of a Judge who is transferred, no such pei;u,d consequence~ are at all
E visited because on the plain term of Article 222 the Judge _has to get special facili-
ties before being transferred to the transferee High Court. .clause (2) of Art. :222
clearly provides that a tra~sferred judge is only to receive in .addition to bis
salary such compensatory allowance as may be determined by Parliament by law
and until so determined such compensatory allowance as the President may fix.
Thus, the granting of compensatory allowance to a judge in lieu of transfer
completely destroys the concept that the transfer involves a stigma or a punish-
F ment. Apart from the allowances, the High Court Judges (Conditions of Service)
Act and the Rules m~de therein clearly provide that a judge who is transferre.d
from one High Court to l!nother can always avail· of the specia.1 _Ieave concession
rules by visiting his home State, along with his family, at Governinen.t .cost once a
year. The Judges Rules, as amended, further enjoin that the Judge must be
supplied with a free furnished house. which under the Amendment Act of 1981 is
not even to be treated as a perquisite under the Income Tax Act. .It .is true that
some of these facilities are available to a Judge in his original High Court also but
G the totality of the facilities taken into consideration undoubted.ly seek to make
him as comfortable as possible in the transferee court also. [771 B-l;I]

12:10. Far from being a punishment the transfer of a judge does not
H involve any strain or stigma nor even the slightest reflection on his legal function-
ing or his judicial character or integrity. The transfer of a judge contemplated
by Article 222 is in the nature of a response to a call of duty in the larger
batioiial ifiterest ot ihe country in order to fnaihlai~ ahd ensute absoiute purity
A
oftudieial adm iti istratiob. bn beibg transferred the Judge would find himself free
to .\Vbrk in at'I ihdependeht ntmosphere untramelled by any provindal or parochial
eonsideta:tion, undaunted by any external or internal influences or local pulls or
pressures and uninfluenced by the considerati!ins of class, caste or creed. He
would also generate much gfea:ter confidence in the people to whom he imparts
justice which is bound to enhance his judicial prestige and as a logical result
would subserve the concept of independence of judieiary. For a true and
B
conscientious judge there can be no higher honour than to create a feeling
that justice is not actually done but also appears to have been done, the
j latter being more important and fundamental quality of judicial approach.
The apprehension that a judge on being transferred to another State is
likely to face a hostile bar is merely an anathema and an illusion which
has either a factual normal legal existence. If the judge's behaviour towards
· the Bar is polite and courteous and he gives a little accommodation to the c
Bar he is bound to win laurels of the Bar. In fact, the Bar always welcomes an
- outside judge who is likely to build uo a new judicial structure and establish a
a flawless and unblemished reputation This is not merely a pious wish or an
ideal dream out a stark and speaking reality which is evident from the perfor-·
mance and reputation of judges who had been transferred outside their States
and had proved to be not only successful but memorable judges. [772 B-G]
D

12:11. Where a judge is transferred because the envirnoment or the atmos-
phere is not congenial or conducive to administration of impartial justice, he
does so as a conscientious judge responding to a call of duty but where his sons
or relations follow him in the transferee court then it becomes the most cogent
and reliable evidence to show that the judge openly allows himself to be exploited
by his sons or relations and this p~r se would be conclusive proof of misbehaviour
E
for which, he can be impeached under Article 124(4) read with Article 218. If
these facts are proved, then he will have to be removed for no court can ever
accept a plea of the judge that even after he was transferred to some other court
his close relations followed him there without his knowledge. [774 <?-H,775 A-BJ

- 13. I. The Supreme Court which lays down the law of the land under
Art. 141 must be extremely careful and circumspect in interpreting statutes, more
F

so constitutional provisions, so as to obviate the necessity of constitutional
amendment every time. which, is extremely onerous task. Having carefully
interpreted a particular provision of the Constitution, the Court should as
far as possible stick to the doctrine of stare decisis. The function of a- Judge
is jus decere and not jus dart- [731 B-D, E, 737 BJ ·
G

The Bengal Immunity Co. Ltd. v. The State of Bihar and Ors. [1955)2 S.C.R.
603: James v. Commenwea/th, 1936 A.C. 578 referred to.

·ff
13:2. Where the Words ot the language used in a statute ~re clear and
~.loµdless, plai.n !iimple and explicit . uncloude~ !ll!cl 1,1n<;>l;>sc:ured! intelli~ible and'
426 SUPREME COURT REPORTS [1982) 2 S.C.R.
A pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation
there is absolutely no room for deriving support from external aids. In such
cases, the statute should be interpreted on the face of the language itself without
adding, substracting or omitting words therefrom. It is equally well settled that
it is not the duty of the court to import words which have been omitted delibera-
tely or intentionally in order to fill up a gap or supply omissions to fit in with the
ideology or concept of the Judge concerned. The words and the' language used
B must be given their natural meaning and interpreted in their ordinary and popular
sense. [ 7 43 C-F]

There may be a third type of cases which may be on the border line-where
the language may admit of two interpretations in which case the court may
c consider the desirability of resorting to external aids in order to catch ond delve
into the spirit and object of the statute.

In construing a statutory or a constitutional provision, the Court should not
presume that the legislature has either committed a mistake or has omitted
something which was very necessary. It was not for the Court but for others to
-
remedy the defect, if any, found in a statutory provision. To read the word
D "consent" in Art. 222 by supplying the omission, would be violating the cardinal
principle of interpretation. (749 G-H, 750 A)

13:3. On a full and complete consideration of the decisions classified under
the various categories,· the propositions that emerge from the decided cases of
this Court and other foreign courts are as follows:- [754 G-H)

E
(1) Where the language of a statute is clear and unambigous, there is no
room for the application of the doctrine of casus omissus or of pressing into
service external aids or in such a case the words used by the constitution or the
statute speak for themselves and it is not the intention of the court to and words
or expressions merely to suit what the courts think is the supposed intention of
legislature. [755 A-BJ
F
(2) · Where, however, the words or expression used in the constitutional or
or statutory provisions are shrouded in· mystery, clouded with ~mbiguity and
are unclear and unintelligible so that the dominant object and spirit of the
legislature cannot be spelt out from the language, external aids in the nature of
parliamentary debates, immediately proceeding the passing of the statute, the
G report of the select committees or its Chairmar,, the s1atement of objects and
reasons of the statute, if any, or any statement made by the sponsor of the statute
which is in close proximity to the actual introduction or insertion of the statutory
provision so as to become, as it were, a result of the statement made, can be
pressed into service in order to ascertain the real purport, intent and will of the
legislature to make the constitutional provision workable. Such aids may neither
H be decisive nor conclusive but they would certainly assist the courts in interpre-
ting the statute in order to determine the a.vow~d object of t.he Act or the
(:onstitution as the case may be. (755 B-EJ ·
s.i>. oui>h v. UNION 427.
(3) Except in the aforesaid cases, a mere speech of any Member made on A
the floor of the House during the course of a parliamentary or legislative debate
would not be admissible at all because the views expressed by the speaker may
be his individual views which may or may not be accepted by the majority of the
Members present in. the House. [755 F-G]

B
(4) Legislative history of a constitutional provision though not directly
germane for the purpose of consutring a statute may, however, be used in
exceptional cases to denote the beginning of the legislative process which;results
' in the logical end and the finale of the statutory provision but in no case can the
( legislative history take the place of or be a substitute for an interpretation which
is in direct contravention of the statutory provision concerned. [755 G-H, 756 A-B]
c
(5) Where the scheme of a statute clearly shows that certain words or
phrases were deliberately omitted by the legislature for a particular purpose or
motive it is not open to the court' to add those words either by confirming to the
supposed intention of the legislature or because the insertion or the omission
suits the ideology of the Judges deciding the case. Such a course of action would D
amount not to interpretation but to interpolation of the statutory or constitutional
provisions, as the case may be, and is against all the well established canons of
interpretation of statutes. The main reason behind the principles enunciated
above is that the legislature must be presumed to be aware of the expanding
needs of the nation, the requirements of the people and above all, the dominant
object which the legislation seeks to subserve. Thus where the language is plain
and unambiguous the court is not entitled to go behind the language so as to add E
or supply omissions and thus play the role of a political [reformer or of a wise
counsel to the legislature. [756 B-E]

Heydo11's case 76 English Reports 637; A. K. Gopala11 v. The State of Madras
[1950] SCR 88; Kanai Lal Sur v. Paramnidhi Sadhukan [1958] SCR 360; M. F
Pentiah & Ors. v. Muddala Veeramal/appa & Ors. [1961]2 SCR 294; N. V. Joshi v.
M. U, Shimpi & Anr. [1961] 3 SCR 986; Hansraj Gordhandasv. N. H. Da~e,
Asstt. Collector of Central Excise & Customs, Surat & Two Ors. [1969] 2 SCR
253; Commissioner of Income-Tax, Assam & Nagaland, etc. v. Shri G. Hyatt
[1971] 1 sec 466; Senior Superintendent, R. M. S. Cochin & Anr. v. K. V.
Gopinath, Sorter [1972] 3 SCR 530; Shri Umed v. Raj Singh & Ors. [1975] 1 sec
76; Anandji Haridas & Co. P. Ltd. v. Engineering Mazdoor Sangh & Anr, [1975] G
3 seR 542; Mangalore Electric Supply Co. Ltd. v·. The Commissioner of Income
Tax, West Bengal [1978) 3 sec 248; Powell v. The Kempton Park Racecourse
Co. Ltd. [1899] A.C. 143; Commissioner of Income Tax, Gujarat v. Vadilal
r Lallubhai etc. [1973] 1 SCR 1058; State of Mysore v. R. V. Bidap [1974) 3
~- sec· 337; Fagu Shaw & Ors. v. The State of West Bengal [1974] 4 SCC 152;
Anandji Haridas & Co. v. Engineering Mazdoor Sangh & Anr. [1975] 3 sec 862; · H
The Sole Trustee, Lok Shikshana Trust v. Commissioner of Income· Tax, My1~re
[1976) 1 SCC 254; State o/Tamil Nadu v. Pyare Lal Malthotra & Ors; [)97o] 1
SCC 834; Jaisingh Jairam Tyagi & Ors. v. Mamachand Ratilal Agarwal & Ors.'
428 SUPREME COURT REPORTS [1982) 2 S.C.R.

A [1980] 3 SCC 162; M/s. Polestar Electronic (Pvt) Ltd. etc. v. Additional Commis·
sioner, Sales Tax Anr. etc. [197811 SCC 638; Dadafi Alias Dina v. Sukhdeobabu
& Ors. [1980] I SCC 621; Malinakhya Bysack v. Shyam Sunder Haldar & Ors.
[1953] SCR 533; Sri Ram Ram Narain M edhi v. State of Bombay [ 1959] Supp.
I SCR 489; Commissioner of Income Tax, Central Calcutta v National Taj Traders
(1980] I SCC 370; Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab [1980] 2
SCC,565; United States v. Trans Missouri Freight Association; Aswini Kumar
B Ghosh & Anr. v. Arabinda Bose & Anr. (1953] SCR I; State of West Bengal v.
Union of India [ 1964] I SCR 371; Shyamlal Mohanlal v. State of Gujarat (1965] 2
SCR 457 referred to.

Per Tulzapurkar J

c 1. In the task of administration of justice, the role of judges and the role
of lawyers are complementary to each other and the practising lawyers as ciass
are an integral part of justicing 'machinery rendering assistance to the judges in
the discharge of their functicin of reaching justice to the litigants appearing before
the court; in other words the practising lawyers who are nothing short of partners
in the task of administration of justice undertaken by the judges are vitally
interested in the maintenance of a fearless and an independent judiciary to ensure
D fair and fearless justice to the litigants. That being the positio~ it can not be
said that, in the instant case, the petitioners are either in their individual capacity
or as representing some of the Lawyers' Association are wayfarers, interlopers,
officious ioterveners or busy bodies without any interest or concern of their own
in the subject matter. They have not merely sufficient interest but special interest
of their own in the transfer and appointment of judges and, therefore, they
cannot be told off at the gates. The petitions at their instance are clearly
E maintainable. (904 F-H, 905 A-CJ

Municipal Council, Ratlam v. Shri Vardhichand and Ors; [I981] I SCR 97,
and Fertilizer Corpn, Kamgar Union v. Union of India [1982] 2 SCR 52 followed.

F
Dw<frkaoas Srl11ivas v. The Sholapur Spg, & Wvg. Mills Co. Ltd. [1954) SCR
674; Adi P. Gandhi's Case [1971] 1 SCR 863; Dabholkar's Case [1976] SCR 306;
Attorney-General of the Gambia v. Pierra Sarr N:Jie [1961 AC 617], referred to.

2. At the stage of initial recruitment under Art 217(1) no one bas a right
G to be appointed a Judge of the High Court nor the right to be!' considered for
such appointment, and therefore, a writ of Mandamus at the instance of a~
aggrieved persons would not lie, for the. reasons that Judges of the High Court
occupy a high constitutional position and a special machinery is provided for
their app9intment. (i) for obvious reasons, the post of a High Court Judge is not
.piled in liy. inviting applications through advertisements nor by holding test
H '' mtervfows: (ii) .further, the minimum qualifications for appointment as a Judge
(Piescribed in sub-Art. (2) of Art. 217) would be possessed by numerious advo-
eates and by a (air number of service Judges but even so, the special machiriecy
S.P. GUPTA v. UNION 429

for making appointments is indicated in Art. 217 (1), obviously designed to recruit A
. persons of great ability, high character and unquestioned integrity to the Bench.
[906 H, 907 A-C]

3:1. The sitting Additional Judges have an enforceable right not to be
dropped illegally or at the whim or caprice of the appointing authority but to be
considered for their continuance either by extending term or making them perma- B
nent until the practice that has grown over years is changed and a proper, practice
t .is introduced which can be done only after having made a complete and correct
assessment about the requisite strengths of permanent as well as Additional
Judges for every High Court, depending upon statistical data to be collected
throwing tight on 'normal business a 'temporary increase' and 'arrears of work'
after fixing 1'ate of disposal per Judge per year and defining what should be
termed as main cases, miscellaneous cases or interlocutory cases etc. c
3:2. Unlike a Permanent Judge whose tenure is fixed by reference to his
age the tenure of an Additional Judge when appointed under Art. 224 (I) is fixed
by the warrant of his appointment and on the expiry of the period mentioned in
the warrant he ceases to be a Judge of the High Court. The continuance as an
Additional Judge for any further term or as a Permanent Judge in the vacancy D
of a permanent post cannot be thought of unless for continuance as Additional
Judge either one or the other or both the preconditions mentioned in Art. 224 (1)
. obtain in that High Court, and for continuance as a Permanent Judge the normal
business of the High Court justifies the filling up of the vacancy in the permanent
post. In other words 'pendency of work must justify such continuance-te~porary·
increase in the business of the High Court or arrears of work therein both for
extension of his term and normal business (current institutions) for making him E
i, permanent. [907 F-H, 908 A] ·

Kandaswami Pillai v. Mathvenkatacha/a, [1917] 33 Mad. L. J. 787 approved.

3:3. The very purpose and raison d' etre of Art. 224(1) being the existence
of arrears of work and clearance thereof sitting Additional Judges who have . F"·
already been selecied and appointed for the very purpose must be considered for
continued appointments if the arrears obtain and go on mounting in their High
Court. Secondly, a comparison of Arts. 216 and 224(1) clearly shows that the
former deals with the appointment of·permanent Judges to dispose· of tbe normal
business and the latter deals· with appointment Additional Judges, whenever tl:rere
is either a temporary increase in the normal business of a High Court or arrears
of work therein. The work in a High Court has been classified into three G
categories, namely, (a) normal business indicated by the current annual institu-
.tions (suits, writs and other proceedings), (b) sudden temporary increase in
business over and above the normal institutions such as filing of hundreds of
petitions challenging an enactment, like for instance Money Lenders Act, which
will disappear when the validity or otherwise of the enactment is pronounced
upon and (c) arrears of work meaning the normal or ordinary work which the H
permanent strength has not been able to cope with and dispose of within a
llll!.soi:iablc or stated period, say one or two ye.w.s and has accumulated; Art. 216
l. ........... ' '~ . . . . . . . . -. ·' ",, • > • • ... )
430 SUPREME COURT REPORTS (1982] 2 S.C.R.

A has to be resorted to for the first category of work and Art. 224(1) for the other
two categories. But having construed Article 224(1) and worked by all concerned
and resorted to even in situation where Article 216 ought to have been resorted,
and in fact after following such practice over the years and thus putting all the
Additional Judges into the belief that they will be confirmed in normal course it
doas not behove the appointing authority to say that the sitting Additional
Judges have no right to be considered for their continuance either for an extended
B term or for making them permanent. Clearly by reason of the said practice
though followed under some misapprehension, they have such a right. In
the case of the members of the Bar, if the genesis of the convention· or
practice as well as the undertaking is nothing but pub lie interest in the sense that
public interest is served (a) by not permitting them to revert to the Bar on the
expiry or their term, and (b) by not losing or frittering away the experience or
expertise gained by them in administering justice during their initial terms, then
c it is these very aspects of public interest which form the compelling reasons to
consider their cases for their continuance either by extending their term or making
them permanent in preference to outside or freshers. It is not as if that these
two aspects of 'public interest' giving rise to the convention or practice and the
undertaking are merely factors to be taken into account while deciding upon
their, continuance but along with the disability emanating from the undertaking
these aspects confer upon them a legitimate expectancy and the enforceable right
D not to be dropped illegally or at the whim or caprice of the appointing authority
but to be considered for such continuance in the High Court.
[9090-H; 910A-D, E, 911 E-H, 912C-E]

4:1. There is a valid classfication between proposed appointees for· initial
recruitment and the sitting Additional Judges whose cases for their continuance
E after the expiry of their initial term are to be decided and the two are not in th~
same position. [915 F-G]

4:2. Constitutional conventions and practices have importance under·
unwritten as well as written Constitutions and the position that conventions have
a role to play in interpreting Articles of a Constitution is clear. It is true, that
F no constitutional convention or pra~tice can affect, alter or control the operation
of any Article if its meaning is quite plain and clear, but here, Art. 224(1) merely
provides for situations when Additional Judges from duly qualified persons could
be appointed to a High Court, and at the highest reading of the Article with
s. 14 of the General Clauses Act, it can be said that the power conferred by that
Al'licle may be exercised from time to time as occasion requires but on the
question as to whether when the occasion arises to make appointment on expiry
G of the term of a sitting Adgitional Judge whether he should be continued or a
fresher or outsider could be appointed by ignoring the erstwhile incumbent even
when arrears continue to obtain in that High Court, the Article is silent and not
at all clear. On the other liand, it will be proper to invoke in such a situ~tion
the other well settled principle that in construing a constitutional provision the
implications which arise from the structure of the Constitution itself or from its
ff scheme may legitimately be ll)ade aQd looking at· Art. 224(1) from this angle a
S.P. GUPTA v. UNlON 431
wholesome constitutional convention or practice that has grown because of such
A
implications will have to be borne in mind especially when it serves to safeguard
one of the basic features which is the cardinal faith underlying our constitution,
namely, independence of the judiciary. In other words, limitatio11 on the other-
wise absolute power and discretion contained in Art. 224cl) is required to be read
into it because of the clear implication arising from the said cardinal faith which
forms a fundamental pillar supporting the basic structure of the . Constitution, as
otherwise the exercise of the power in the aboslute manner as suggested will be
B
destructive of the same. [913 E-F, 914 B-GJ
+
).. - ..
-
4:3. The aforesaid convention or practice and the undertaking serve the
cause of public interest in two respects and those two aspects of public interest
confer upon these sitting Additional Judges recruited from the Bar a legitmate
expectancy and the enforceable right not to be dropped illegally or at the whim
c
or caprice or tho appointing authority but to be considered for continuance in
.... that High Court either by way of extending their t1:rm ()r making them permanent
in preference to freshers or outsiders. Therefore, it is impossible to construe
Art. 224(1) as conferring upon the appointing authority absolute power and
complete discretion in the matter of appointment of Additional Judges to a High
Court. [915 C-G)
D

KeJhavananda Bhartl's CaJe [1973] [Suppl] SCR; The Lord Mayor Councilors
and Citizens of the City of Melbourne v. The Common Wealth & Anr. (74 C. L.
Reports P. 31;]; State of Victoria v. The Common Wealth of Australia [122 C. L .
Reports 353J referred to.

• E
4:4. If the sitting Additional Judges have this enforceable right to be
considered for their continuance, then the eventual non-continuance, if any, can
become a justiciable issue open to judicial review, if such non-continuance is
based on extraneous or non-germane consideration or is malaficle in law or in

.. fact, and in that sense it will not be a (case of non-appointment as is the case qua
the proposed appointees at the stage of their inital recruitment. [918 F-G] F

4:5. Io substance and reality in extending their term or making them
permanent in their High Court no 'fresh appointment' in the sense of initial or
fresh recruitment is involved, except for the formality of issuing a fresh warrant
of appointment ·and taking a fresh oath. Therefore, logically speaking the
consultative process in so far as suitability under Art. 217(1) is concerned is not G
attracted at all. [918 G-H, 919 A-BJ

Krishna Gopa/ v. P. C. Sethi [1974] 2_S~R 206; The Sp/. Courts Bill 1978
[1979) 2 SCR 476 held in applicable.
H
4:6. Sitting Additional Judges ar(not on probation and cannot be regarded
pr dealtl,with as probationer$, Jtl_i~ !rµe tha(they are not probationer~ iq thcr scrn~9
432 SUPREME COURT REPOllTS [1982] 2 S.C.R.

A that they have an indefeasible tenure though for the periods fixed in their warrants
of appointment and that during-such fixed tenure, like the Permanent Judges, they
can be removed only by following the regular process for it, as -indicated in the
Consthution and the Judges (Inquiry) Act, 1968, but in the context of their
having an enforceable right not to be dropped illegally and to be considered for
their continuance, it will not be possible to confine the concept of .probation to
these two aspects only. Nor does it. mean that for deciding upon their cont!·
B nuance they should be treated as on probation. If the Additional Judges are not
on probation in any sense of the term their continuance either as additional or
Permanent Judges cannot be made to depend upon the evaluation or assessmect
of their suitability as emerging from their work, performance and behaviour
+
during their initial term. If the misbehaviour or lack of integrity is glaringly
self-evident the question of his continuance obviously cannot arise and in all
probabilities will not engage the attention of the appointing authority, for, the
concerned Judge in such a situatiori would himself resign. But since the question
relates to the continuance of a high constitutional functionary like the Additional
Judge of High Court it would be jeopardising his security and judicial indepen-
dence if action is taken on the basis.of merely opinion material. Moreover, no.
machinery having legal sanction -behind it for holding an inquiry disciplinary or
otherwise against the concerned Judge on allegations of misbehaviour and/or
lack of integrity obtains in the constitution or any law made by the Parliament,
0 save and except the regular process of removal indicated in Art 124(4) and (5)
read with Art. 218 and the Judges (Inquiry) Act, 1968. [919C-H, 920A-H;921A·B)

4:7. Io the absence ofutisfactory machinery possessing legal sanction to
reach a positive conclusion on the alleged misbehaviour or an act of corruption
E the decision to drop him shall have been arrived at merely on the basis of
• opinions, reports, rumours or gossip and apart from being unfair and unjust to
him such a course will amount to striking at the root of judicial independence.
The other alternative, namely, to make him permanent if a vacancy is available
and then take action for his removal under regular process indicated in Art. 124(4)
and (5) read with Art. 218 and Judges (Inquiry) Act, 1968 may sound absurd but
is inevitable if judicial independence, a cardinal faith of Constitution, is to be
F preserved and safeguarded. Not to have a corrupt· Judge or a Judge wh_o has
misbehaved is unquestionably in public interest but at. the same time preserving
judicial independence is of the high~st public interest. lt is a question of choosing
lesser evil and the inevitable course has to be adopted not for the protection of
the corrupt or dishonest judge but for protecting several other honest, conscien-
tious and hardwor.Jcing Judges by preserving their independence; it is a price which
G the Society has to pay to avoid the greater evil that will ensure if judicial iode~
pendence is sacrificed. Therefore,' while considering the question of continuance
of the sitting additional Judges on the expiry of their initial term either as
Additional Judge or as Permanent Judge the test of suitability contemplated
within the consultative process under Art. 217(1) should not be invoked-at least
until such time as proper machinery possessing legal sanction is provided for
enabling a proper inquiry against an alleged errant Judge less cumbersome than
H the near impeachment process contemplated by Art. 124(4) and (5) of the
~onstitution. ~921 C·tt; 922 ..\·HJ
S;P. GUPTA v. UNION 433 l>
;~

4:8. Bringing in the suitability test under Art. 217(1) at the state of 'conti-
nuance of the Additional Judge will not affect the quality or character of justice
administered by the sitting Additional Judges during their initial term or towards
the end of their term. In fact, so far on every occasion the consultative ·process
inclusive of the suitabiiity test under Art. 217(1) has been resorted to while
considering the question of granting extension to the Additional Judges or
making them permanent on the expiry of their initial term, it has not been
suggested that because of this their work, performance or behaviour was or has ·B
been guided by the anxiety to keep themselves on the right side of the Chief
Justice of the High Court. the Chief Justice of India or the Appointing, Authority.
Only when the basic assumption made while putting forward .t he argument is well
founded, there will be any question of any violation of Articles 14 and 16 of the
Constitution. [922 B-E]

•'
·c
4:9. At the time of deciding upon the continuance of the sitting Additional
Judges on the expiry of their initial term the consultative ~process should be con-
fined only to see whether the preconditions mentioned in Art. 224(1) exist 'o r ·nO-t
or whether pendency of work justifies their confirmation or not and the test of
suitability contemplated within the consultative process under Article 217(1)
cannot and should not be resorted to at all. [924 A-B]

4:10. The consultative process even of Additional Judges at the time of
deciding upon continuance of Judges either as Additional Judges or as Permanent
Judges must be full complete and effective as is the case with the consultative
prQCess that is required to be gone through under Ai't. 222(1), when the question
of transfer of a Judge from one High Court to another High Court is considered.
Further the procedure to be followed at the time 1>f undertaking such co11sultative
E
process must also ensure fair play qua the concerned sitting Additional_ Judge. Io
other words, though the principle of natural justice in. its full vigour is not contem-
plated, the sitting Additional )udge should not receive a raw deal at the hands of

-
the consulting functionaries and either one or the other or if necessary both should
hear him, especially if any adverse material is weighing in their "minds against him,
just as in the case under Art. 222(1) the personal difficulties and other grounds of
objections of the proposed .transferee are considered by the consulting functionary.
F
In other words, the scope and ambit of the consultative process under Art. 217(1)
are and must be the same. The question whether, in the consultative process
contemplated by Article 217(1) if any primacy is· intended to be given to the
views or advice to be handed by the Chief Justice of India in the matter of a
High Court Judge or whether from amongst these consulting functionaries the
President (Appointing Authority) is entitled to choose or prefer the views or
advice of any ·one to the view of the other, really arises only° in regard to the G
·views or advice tendered on the suitability aspect and ·not on the aspeet touching
the existence of the pre-conditions of Art. 224(1) or pendency of work justifying
confirmation, because the former aspect is a matter of subjective assessment,
while th~ latter depends on objective facts over which no difference is likely to
arise. The said question cannot at all arise in view of the conclusion that the test H
of suitability falling within the consultative process under Art. 217\:t) cannot and
4~4 (1~82) 2 S.C.R.

A should not be resorted to while deciding upon ·the continuance of sitting Addi- ·\-
tional Judges Obviously the question cannot arise in cases of non-appointments
qua proposed appointees at the time of initial recruitment, for such non-appoint-
ments are cases of nan-sequitur. [919 G-H; 930 A-CJ

5.2. l'\ssuming it arises the question of primacy has to be considered not
B only in the light of what this Court has said about the almost binding character
of the resultant advice flowing from the consultative process but also by keeping
in mind the object or purpose of providing for such consultation. The object of
providing for such consultation clearly is that the same should act as a controll-
ing or limiting factor on the discretion vested in the President while performing
his executive function of making appointment of High Court Judges and neither
the President nor the Chief Justice should have power to veco a proposal.
c [925 F-H; 926 D}

Sankalchand v. Union af India [1970) 1 SCR. 423;' Sham Sher Singh v. State of
Punjab [1975) 1 SCR 714 referred to.

5.3. On the question as to whether any primacy is intended to be accorded ·Y
D to the views or advice that would be tendered by the Chief Justice of India during
the consultative process over the views or advice of the other two consulting
functionaries (Governor of the State and the Chief Justice of the High Court)
or whether all the three consulting functionaries are of co-ordinate authority so
as to accord equal efficacy to each one's views or advice, article 217 is clearly
s.ilent. Mere use of the expression 'Consultation' does not mean that the Presi-
dent has absolute authority or discretion in the matter because 'Consultation• has
E been provided with the object of limiting the authority 9r discretion of the
President. [926 F-H; 927 A]

5.4. In the very nature of things all the three consulting functionaries
under Art. 217(1) cannot be rega~ded as of co-ordinate authority Jor the simple
reason that on aspects like capacity, character, merit, efficiency and fitness whieh
converge on the suitability of the person proposed for appointment the Governor
F of the _State will be least informed and will have nothing to say whereas the
Chief Justice of the High Court and Chief Justice of India, being, best informed,
are well equipped to express their views and tender advice; further it is an
accepted position that ii is because of the financial aspect (Salary and emolu-
ments of a High Court Judge being charged on the Consolidated Fund of the
State) and information about the antecedent, local affiliations and like other
matters, capable of objective proof, roncemiog the proposed appointee which
G the State Executive would be possessing, that consultation with the Governor
has been provided for. It is, therefore, difficult to regard the Governor of the
State as being of Co-ordinate authority with the other two consulting function-
aries especially on the aspect of suitability which is the primary thing in the
matter of making appointment of High Court Judges. Conferring a power of
veto on the Chief Justice of India is entirely different · from the primacy being
H given "to his views or advice over and above the views or advice of the other
coniulting functionaries, as a limiting factor on the Presider;its'. discretion.
[927 F-H; 928 A. C-D~
S.P. GUPTA V. UNION 435

5.5. Once it is realised that the scope and ambit of full and effective A
consultation requires that all the material facts and records concerning the propo-
sed candidate must be made available to both these consulting functionaries by
placing the same before each during the consultative process and that each consul-
ting functionary must consider the same or identical material and exchange each
one's views thereon with the other, it will be clear that the Chief Justice of the
High Court does not have a closer opportunity to assess the suitability of the pro-
posed appe>intee; surely it is not a case of watching the demeanour of the witness B
so as,. to put the assessment of the Chief Justice of the High Court on any higher
footing. [928 E-G)
..>

5.6. Article 217 does not expressly suggest that any primacy is to be accor-
. ded to his advice during the con,ultative process undertaken in Art.217(1) but, the
scheme of consultative process co·ntemplated by that Article envisages considera-
c
tion of identical facts and materials bearing on the suitability of the candidate
by both the consulting functionaries namely, the Chief Justice of the High Court
and the Chief Justice of India, as also an exchange of their views on such
material and thereafter placing of the entire material together with each one's
views thereon and the tendering of the advice or final recommendation by the
Chief Justice of India to the President whose decision should be guided by such
advice or final recommendation so tendered. Such being the scheme envisaged
D
by Art. 217(1) clearly by implication primacy is intended to he given to the
advice that would be tendered by the Chief Justice of India to. the President.
In any event, evolving such a scheme regarding the consultative process under
Article 217(1) would be in fitness of things as primacy shall have been given to
the advice or final recommendation to be tendered by the Chief Justice of India
who happens to occupy the highest constitutional position as the head of the
Indian Judiciary. Howevec, giving primacy to the advice of the Chief Justice of
E
India in the matter of appointment of High Court Judge is not to give power to
veto any proposal nor would giving such primacy to his advice mean that the
Chief Justice would be enjoying unfettered arbitrary powers, for, if his advice
has proceeded on extraneous or non-germane considerations, the same shall be
subject to the judicial review just as the President's final decision is so subject if
he were to disregard the advice of the Chief Justice of India unless the same
is justified for cogent and convincing reasons and construing Art. 217(1) as
F
envisaging such a scheme would go a Jong way in preserving judicial indepen-
dence rather than not according primacy to Chief Justice of India's advice and
permitting the President to act as an arbiter between the divergent views of the
two high constitutional functionaries and leaving him to prefer the views of one
to the other. [928 H, 929 A-HJ
G
6:1. It is true that Art. 224(1) confers power on the President to appoint
duly qualified persons to be additional judge of a High Court, if the pre-condi-
tions mentioned therein exist "for such period not exceeding two years as he may
specify". The phrase cannot be construed literally to mean that the term can be
for any short period or that the period is not justiciable or that the period must of H
.
pee\)ssity get corelated to the contiP.\l\:<l c;l\isteµce of the pre·con<Jitions
. relating. to
436 SUPREME COURT REPO'Q.TS [19S2J 2 S.C.R.
A ·t~e. volume of wor~ f~r which the appointments are to be made, because no pro-
v1s10n of the constitution can be interpreted in a manner which will be in conflict ·t--
with any of the basic features of the constitution and the cardinal principle of
independence of Judiciary is one such basic feature; therefore, the construction to
be .put on the phrase in the Article must be consistent with the said principle. Ad-
mittedly security of tenure .ensures judicial independence and tenures for short-
terms like three months, six months or nine months hring insecurity directly im-
B pinging on judicial independence and also tend to shake the faith of the commu-
nity in the administration of justice and, therefore, would be unconstitutional.
[930 E-H; 931 A-BJ ·j-

'~1
· , 6:2. Granting short-term extensions for periods like three months, six
c months, or nine months' pending inquiry into the complaints said to have been
received against some of the sitting Additional Judges, would be clearly outside
the contemplation of the Constitution for no machinery having legal sanction
behind it has been provided for either in the Constitution or any other law
authorising such inquiry or invest iga lion into the complaints against sitting
Additional Judges and must be voided as unconstitutional. [931 B-C]
-
D
"6:3 Assuming that suitability test while deciding upon the continuance of
the sitting Additional Judges, is required to be gone through, the process must be
completed well in advance of the date of expiry of their initial term or if for any
reason it cannot be so completed the concerned Additional Judge must be given
extension for at least one year, as evidenced by constitutional convention or prac-
tice that has grown over the years notwith-standing that phrase in Article 224(1).
Jn any case no extension for less than a year should ever be granted irrespective of
whether volume of work justifies it or not simply with a view to give the Judge
concerned fixity of tenure for that period. Further, it is extremely desirable and
necessary that order granting extensions to sitting Additiona I Judges or making
them permanent are issued and intimated to the concerned Judges and not merely
to the Constitutional authorities well in advance of the date of expiry of their
term and not at the eleventh hour keeping them on tender-hooks till the last
F moment. After all the sitting Additional Judges are high Constitutional function-
aries possessing the same position, powers and privileges as the permanent Judges,
and deserve due consideration and respectful treatment at the bands of thQ
appointing authority. [931 D-H; 932 A-BJ

7:1. On a consideration of the two Articles, namely 216 and 224(1), it is
G clear, that Art. 216 unquestionably casts a mandatory obligation on the President
(appointing authority) to provide adequate strength of permanent Judges in every
High Court to cope with and dispose of its normal business and further to review
periodically such permanent strength. The word 'shall' and the further words
"such other Judges as the President may from time to time deem it necessary to
appoint" occurring in the Article are a clear pointer in that direction. Art. 224(1) v·
H confers power on the President to ap~oint additional Judges only to meet the situ- '
ation arising f;om (a) temporary increase in the business of the High Court, or (b)
a,rrears of work tl\erein. In otber words, if the increase in the work of business of
s.t>. GUPTA v. UNiON 437
A
the High Court is not of a temporary character but a permanent increase every
year resort will have to be made to Art. 216 and not to Art. 224(1). Further,
ordinarily, it will not be proper to appoint an Additional Judge in a High Court
while keeping a permanent post vacant or unfilled. [933 F-H, 934 A-Bl

B
7:2. But, it will not be proper for the Supreme Court to give the directions
or reliefs by way of declaring the sitting Additional Judges to be deemed to have
become permanent nr by way issuing a mandamus to the President to make them
permanent by arpropriately increasing the permanent strength in the concerned
High Courts. It cannot be disputed that appointing Judges to a High Court
either as permanent Judges or Additional Judges is purely an executive function
entrusted by the constitution to the appointing authority and it will not be proper
for the Supreme Court to usurp that function to itself or issue any directions in
c
that behalf unless forced by glaringly compelling circumstances, (ii) no directions
or relief as sought is possible unless a full, complete and correct assessment about
the requisite strengths for every High Court as on a particular date is made avail-
able to the court ; (iii) such assessment about the requisite strengths for every High
Court must depend on statistical data to be collected throwing light on 'normal
business', 'temporary increase' and 'arrears of work' in each High Court after
fixing the rate of disposal per judge per year and defining what should be regarded
D
as 'main cases, miscellaneous cases' or 'interlocutory cases' etc. the norm in
regard to such matters being a variable criterion requiring refixation depending on
facts, circumstances and situation as and when they develop. [934 B-F]

Whell the President lias appointed· a duly qualified person as an Additional
Judge fonwo years the President cannot be deemed to have appointed him as the E
permanent Judge under Art. 216. Though no particular Article is referred to in the
warrant of appointment, reference in the warrant to the fact that the person has
been appointed "an Additional Judge" and the mentioning of the short-periods
therein will clearly negative any intention on 'the part of the President to appoint
him a permanent Judge, notwithstanding the duty having arisen in the circum·
stance of the cases to make a permanent appointment. [934 F-H; 935 Al
F
Shewpujanrai lndrasen Rai Ltd. v. The Collector of Customs & Ors. [1959]
SCR 821 at 840 and 841 ; Y. Mahaboob Sheriff and Ors. v. Mysore State Trpt.
) Authority & Ors. [1960) 2 SCR !46 referred to.

8:1. The safeguard of public interest read into Art. 222( l) is not intended G
for protecting any black-sheep in the judiciary but for protecting the numerous
honest, conscientious hard-working Judges and niether corrupt or dishonest Judge,
nor a Judge, who contrary to his oath of office indulges in any kind or favouritism
. while discharging his duties-who could be likened to a rotten egg, should be tole-
rated in the Judicial basket and he deserves to be dealt with under Art. 218 read
with Art. 124(4) and (5) but not by transferring him to another High Court, fof H
such a transfer would be contrary to public interest. Therefore, a transfer by way
of punishment for misbehaviour is clearly outside the purview of Art. 222(1) and
438 SUPRflME COURT REPORTS [1982] 2 s.c.lt

A similarly, any transfer with an oblique motive or for an oblique purpose, such as
for not toeing the line of the Executive or for rendering decision unpalatable to
the Executive or for having for some reason or the other fallen from the grace of
the Executive, would also be outside its purview and liable to be struck down, if
oblique motive or purpose is established. [942 D-GJ

B 8:2. Transfers under Art. 222(1) have to be made only in public interest,
the ground being convenience of the general administration like a transfer from
one High Court to another in order to strengthen the High Court elsewhere by
importing better talent which may not be locally available (b) transfer to import a
new Chief Justice to a High Court with a view to have a man unaffected by local ..,...
politics or local jealousies and (c) transfer effected for remedying unsatisfactory
working conditions obtaining in a High Court for reasons beyond the control <'f
c the Judge concerned and for which he is not responsible in any manner and (d)
Transfer resorted, if a particular Judge by reason of his nature and temperament
is unable to get along with the Chief Justice or any of colleagues in a High Court.
In the context of tile power to transfer under Article 222, in such cases the power
to transfer a Judge from one High Court to another without his consent would be
appropriate and justified and will not be by way of punishment. [9430-E; 944B-E)

D r
8:3. When it is said that the power to transfer under Art. 222(1) cannot be
and should not be exercised by way of punishment, what is intended to be conve-
yed is that Judge concerned should not be transferred for misbehaviour falling
under Art. 124(4) or with oblique motive or for oblique purpose, which alone
would be by way of punishment in the correct sense of that expression in the
Article and not that be should not be subjected to the kind of punishment which
E is inherent in the transfer. There is a clear distinction between the punishment
involved in making the transfer for misbehaviour or out of oblique motive and
the punishment which is inherent in the order of transfer in the sense of infliction
of personal injury, loss or damage arising out of his moorings being severed, he
being required to have two establishments or his suffering a dislocation in his
family affairs, etc. Further it is not as if this latter aspect of punishment which
is inherent in an order of transfer is being totally ignored before passing the order
F of transfer, for precisely these very aspects concerning the Judge proposed to be
transferred are required to be taken into consideration and given due weight by
the Chief Justice of India during the consultative process which he is required to
undertake for observing the second safeguard of full and effective consultation.
Therefore, the two safeguards of public interest and effective consultation subject
to which the power of transfer is to be exercised are neither illusory nor unreal
and if they afford real protection to the Judge concerned against the abuse of
G power, there would be no need to read consent into Art. 222( 1). Non-consensual
transfers are within the purview of Art. 222(1). [944 F-H; 945 A-C & 947 E]

Sankalchand Sheth v. Union of India [1978) l SCR 423 explained and
followed.

H
8:4. Even if a transfer is effected pursuant to a general policy adopted by
t~e Government, the same must satisfy requirements of Art. 222(1) that is to sa)'.,
S.t>. OuPTA v. ONION 439

it must be in public interest and made after full and effective consultation. A
Ordinarily, no general policy will be adopted unless it clearly serves some public
interest and hence when a transfer is stated to be pursuant to such general policy,
it will be a difficult task for the Judge concerned to establish that it has been
made for extraneous considerations but all the same a transfer based on a general
policy will have to satisfy the requirement of Art.222(1) and if extraneous conside-
B
rations are established the same will have to be struck down. [948 D·E]

8:5. It is true that Art. 222(1) merely refers to consultation of the Chief
Justice of India o,; specific individual proposals for transfer as and when these are
made and nothing is mentioned therein as regards consultation with him on points C
such as whether, and if so what policy or policies should be adopted for effecting
transfer of Judge from one High Court to another. It is also true that ordinarily

- policy matters would be decided upon by the Government. But, propriety requi-
res and perhaps smooth working thereof may necessitate consultation with the
Chiei Justice who is the highest administrative head of the country's Judiciary
especially as the policy or policies to be adopted are in relation to transfor of High
D
Court Judges. But, even after a general policy in the matter of transfers of High
Court Judges is framed and adopted whenever a transfer is to be made in pursu·
ance of such policy the proposal, before it culminates into an order, will have to
satisfy the requirements of Art. 222(1). (948 F-H; 949 A-CJ

E
8:6. A policy transfer, that is to say, a transfer based on or made in
pursuance of a general policy would not necessarily be non-punitive in character
nor would every selective transfer be necessarely punitive. A policy transfer with·
out fixing the requisite mechanism or modality or procedure ensuring complete
insulation against the Executive interference could be a punitive transfer in the
sense of having been effected with some oblique motive. Even with proper

- mechanism or modality of procedure a transfer can be made for extraneous
considerations, and will be liable to be struck down if it so established.
But admittedly no mechanism or modality of procedure of any kind has
·F

been fixed or decided upon so far and, therefore, it cannot be asserted that every
policy transfer made in pursuance of either of these two policies would necessarily
be above board. In other words, merely adopting a general policy, which is or
may be broadly supportable for reasons of public interest would not be sufficient
to insulate transfers of High Court Judges against fa.ecutive interference unless
adequate mechanism or modality of procedure in that behalf is also fixed and
G
followed in practice. Conversely, a selective transfer in an appropriate case for
strictly objective reasons and in public interest of general administration could be
non-punitive. In other words, each case of transfer, whether based on a policy or
a selective transfer, will have to be judged on the facts and circumstances of
its own for deciding whether it is punitive in character in the sense of having been H
effected with some oblique motive or not. (949 E, 950 A-El
44() stJi>ilBMil COtJll'r RBPOR'rS {1982) 2 s.c.a..

A 9:1. Reading it as a whole, the Circular letter clearly exudes an odour of
executive dominance and arrogance intended to have coercive effect on the minds
of the sitting Additional Judges by implying a threat to them that if they do not
furnish their consent to be shifted else where they will not be continued nor made
permanent but would be dropped. The Circular letter, therefore, which seeks to
obtain the consent of the sitting Additional Judges to their transfers from their
own High Court to another High Court induced by threat, coercion or duress
B clearly amounts to Executive interference with the Judiciary and impinges on its
independence and as such is illegal, unconstitutional violative of Article 222(1)
and void and the consent if any either already obtained there under or that may
be obtained, would be equally void. [960 G-H; 961 A-B]
'
9:2. In substance and reality in extending the term of an Additional Judge
c or making him permanent in that High Court no "Fresh appointment" is invol-
ved, except for the formality of issuing a fresh warrant of appointment and taking
a fresh oath. If in the case of such sitting Additional Judge his consent is sought
for being "appointed to" another High Court it is virtually and in substance
seeking his consent for his transfer from his own High Court to another High
Court falling within the concept of transfer contemplated in Art. 222(1). It is true
that para 2 of the Circular letter uses the expression "to be appointed" but it is
not the nomenclature or label used that would be decisive of the matter but one
has to look to the substance and looking at the Circular from this angle, it is
clear, that in so far as sitting Additional Judges are concerned their consent is
sought for transferring them from their own High Court to other High Courts and
the attempt in substance is to transfer them under the guise of making fresh
appointment on the expiry of their initial or extended term. Further, considered
in the light of the historical background, Circular letter is another attempt on the
E part of the Union Government this time to effect mass transfers of sitting Addi-
tional Judges, the previous attempt to effect mass transfers of permanent Judge!!'
during the last Emergency having failed. [954 B-G]

9:3. The transfers of sitting Additional Judges contemplated by the Circu··
lar are based on the policy to have one-third of the Judges of a High Court from
F outside without each invidual being considered on its own facts and merits and
therefore such transfers based on policy accepted or adopted by the Law Minister
and/or the Union Government would be outside the purview of Art. 222(1). In
any case, by procuring ·the consent of the sitting Additional Judges for their trans-
fers from their own High Court to another before undertaking any consultation
with the Chief Justice of India clearly reduces the full and effective consultation
contemplated under that Article to a mere formality, if not to a mockery, for it is,
G obvious that such consultation and the advice which Chief Justice will be tender·
ing following upon such consultation will not be of any use or avail as the con-
sent to such transfer shall have already been procured from the concerned Addi-
tional Judges. The consultation and the resultant advice of the Chief Justice will
be robbed of its real efficacy in face of such pre-obtained consent. The Circular
which has such effect is clearly violative of Art. 222(1); in fact it will have to be
H regarded as having been issued n· ala fide for a collateral purpose namely to bypass
Art. 222(1) and confront the Chief Just ice oflndia with fait accompli when the
proposal to transfer such additional judge would be forwarded to him and as
S.P. GUPTA V, UNION 441
such the same is illegal and unconstitutional and deserves to be struck down.
(961 G-H; 962 A-CJ

9:4. That the Circular letter was not a Dreliminary step in tbe direction of
collecting data and information from sitting Additional Judges which could be
placed before the Chief Justice of India when the consultation process under Art.
217(1) would be gone into but was and is intended to be acted upon forthwith by
conferring.an advantage on those who would be furnishing their consent is clearly B
borne out by the stand taken by the Government in Shri Iqbal Cbagla's petition.
The Circular letter, thus, makes invidious discrimination against those sitting
Additional Judges who would not be furnishing their consent as they will suffer a
disadvantage, while those who would be furnishing their consent will be at an
advantage and thus it is violative of Article 14 of the Constitution.
[963 G-H; 964 C-E]
c
9:5. The Circular Jetter seems to confer unfettered and unguided power on

- the .Government to indulge ill picking and choosing even within the class of those
Additional Judges who shall have furnished their consent in the sense it will be up
to 1he Government to ·select some from that class Jor being shifted to High
Courts other than <heir ·own and to retain and appoint others in their own High
Courts. [964 :E-F] D
9:6. As regards the proposed appointees (either from the Bar or services)
recommended for their initial appointments, there will be no question of discrimi-
nation in the case of those who have not been appointed at all but in the case of
consenting appointees discrimination is bound to arise because of unfettered and
unguided power or discretion vesting in the Government to pick and choose from
amongst the consenting appointees, for in their case also it will be up to the E
Government to decide and select some for being appointed to High Courts other
than their home-State High Courts. Having regard to the aforesaid position it is
abundantly clear that invidious discnmination is writ large on the face of the
Circular Jetter and the same is clearly violative of Art. 14 and as such unconstitu-
tional. (965 A·D]

- 10: I. The disclosure has been ordered by Supreme Court only for the
limited purpose of finding out whether any part of the correspondence between
F

the Chief Justice of Delhi High Court and the Union Law Minister was kept away
from the Chief Justice of India, and not for deciding upon the merits or demerits
of the grounds on which each of the Chief Justices made his own recommendation
is
nor the Court concerned with the truth or otherwise of the facts or materials on
the basis of which each one acted. [967 A-El G

10:2. From the decisions of this Court in Chandramouleshwar Prasad's
case and Sankalchand Sheth' s case it is clear that consultation implies a confe·
...' rence of two or more persons or an impact of two or more minds in respect of a
topic in order to enable them to evolve a correct or at least a satisfactory solution H
and that in order that the two minds may be able to confer and produce a
mutual impact it is essential that ea<;li must liave for its c;onsiqeration_ full an!f
442 SUPREME COURT REPORTS [1982j 2 S.C.R.

A identical facts, which can at once constitute both the sources and foundation of
the final decision. Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of views known to the other
or others and discuss and examine the relative merits of their views. [968 C-E]

10:3. Having regard to the well-settled principles concerning consultation,
B it is clear that both the Union Law Minister as well as Delhi Chief Justice have
failed to discharge their comtitutional obligation in the matter 'of consultatio~
contemplated under Art. 217(1). In the first place, contrary to the principles laid
down by this Court in Sankalchand Sheth's case that the President must make the
relevant data available to the Chief Justice of India for obtaining his considered
opinion, the Union Law Minister did not forward the complaints which be bad
received against Shri S.N. Kumar to the Chief Justice of India (Which he forwar-
c ded to the Delhi Chief Justice); secondly, the Delhi Chief Justice did not forward
"further details" and "concrete facts or materials" touching Shri S.N. Kumar's
integrity to the Chief Justice of India inspite of the latter having specifically called ...
for the same, and thirdly between them the Union Law Minister and the Delhi
Chief Justice saw to it that the communication of May 7, 1981 (from the Delhi
Chief Justice to the Union Law Minister) which contained "further details" and
"concrete facts or material" in regard to the allegations of lack of integrity
D against Shri S.N. Kumar was kept confidential from the Chief Justice of India
and was not shown to him. It is thus amply clear from the record that the facts
which were taken into consideration ly the Union Law Minister and the Delhi
Chief Justice and which provided the basis to the appointing authority to arrive
at the inpugned decision were not placed before the Chief Justice of India, and
therefore, there was neither full nor effective consultation between the President
and the Chief Justice of India as required by Art. 217(1) of the constitution.
E [974 B-G]
y

There is another aspect relating the procedure that has to be followed
while undertaking such full ancl effective consultation, namely, that the procedure
must ensure fair play qua the concerned Judge. That the scope and ambit of

F
consultation includes fair-play qua the concerned Judge is clearly laid down in
Sankalchand Sheth's case in the context of question of the Judge's transfer and
the same position must obtain in regard to consultation under Art. 217(1) in the
-
context of the question of the continuance of an Additional Judge on the expiry
of his initial or extended term, especially Y..hen it has been held that the such
Additional Judge has a legitmate expectancy and a right to be considered for
continuance either for another term or as a Permanent Judge and the considera-
tion of his case would suffer grave infirmity and illegality unless the consultation
G is again full and effective, that is to say, all facts concerning him are before all
the functionaries undertaking the consultation including his version on facts
allegedly adverse to him. In other words the procedure to be followed in such
consultation under Art. 217(1) qua an Additional Judge must ensure fair-play in
relation to him. If a person has a right to be considered such right cannot be
effective unless he has an opportunity to meet or explain the alleged adverse
H material against him. Sans such opportunity his right to be considered will be
iJ!usorl and unreal. [974 G-H; 975 A-CJ
S.1'. OtJt>TA v. UNION 443

10:4. It is clear from the record that "further details" and "concrete
A
facts and material" in regard to the allegations of lack of integrity against Shri
S.N. Kumar were not put to him nor was his explanation thereon sought; The
· question of Chief Justice of India disclosing or putting to him the said material
obviously does not arise, for he himself was not apprised of such "further details"
and "Concrete facts or materials" but the same constituted the basis on which
the Delhi Chief Justice and the Union Law Minister acted leading to the impug- B
ned decision and therefore it was up to the Delhi Chief Justice to have apprised
Shri S.N. Kumar of such material by telling him that the same is likely tn be
held against him and by seeking his explanation or version thereon and it was up
to the Union Law Minister to see to it that such procedure was followed through
the Delhi Chief Justice before advising the appointing authority to act on the same
The record does not show that anything of the kind was done and in that sense
also there was no full and effective consultation which vitiates the impugned
decision. [975 D-H]

- 10:5. In short, in Shri S.N. Kumar's case it is quite clear that both these
high constitutional functionaries namely, the Union Law Minister and the Delhi
Chief Justice abdicated their constitutional responsibility or to use Justice Krishna
lyer's language they utterly failed to discharge their "accountability to the Justice D
constituency." The decision against Shri S. N. Kumar is vitiated by legal ma/a
/ides and as such is void and non-est. [975 G-H; 976A]

11:1. A policy transfer, therefore, without fixing the requisite mechanism
or modality or procedure that ensured complete insulation against executive inter- E
ference, could be a punitive transfer in the sense of having been effected with some
oblique motive whereas a selective transfer in an appropriate case for strictly
objective reasons and in public interest could be non-punitive, with the result that
each case of transfer, whether based on a policy or a selective transfer, will have

- to he Judged on the facts and circumstances of its own for deciding whether it is
punitive in character in the sense of having been effected with some oblique
motive or not. In the case of the transfer of Shri K.B.N. Singh the transfer must
be regarded as a selective transfer and not based on the policy in the contempla-
tion of the Union Government, notwithstanding the reference to "Government
Policy" made by the Chief Justice of India during his telephonic talk with Shri
F

K.B.N. Singh on January 5, 1981. [986 A-D]

11:2. The two considerations, namely, (I) remedying dissatisfactory G
working conditions in a High Court (certain persons exploiting their proximity to
a Judge) and (ii) posting an experienced senior Chief Justice in a High Court, can
not be considered to be "Not in public interest". (988 D-F]

But it will not be correct to draw an inference of the concerned Judge's H
connivance or complicity in every case where persons close to him exploit their
proximity to him while handling their matters in the High Court and in the
444 StJP!lEMll COUkT REPOktS [1982] 2 s.c.a..
A absence of any connivance or complicity on his part, such exploitation of close
proximity would not imply any reflection on the Judge concerned. It is conceiv-
able that undesirable activities are indulged in without his knowledge or con-
sent-may even against his wishes and sometimes despite counter measures adopted
by him, and yet such exploitation of close proximity and the undesirable activities
would spoil the atmosphere and lead to dissatisfactory working conditions io the
High Court. lo such a case if the atmosphere has to be improved and dissatis-
B factory working conditions have to be remedied it may become inevitable to
transfer the concerned Judge without any blame attaching to him whatsoever ; it
is obvious that such a transfer will not carry any reflection on him. Further if the
data or information, which leads to the discovery of dissatisfactory working con-
ditions in th~ High Court, were also to indicate the concerned Judge's connivance
or complicity in the exploitation then only the question of putting the same to him
will arise but not otherwise. In the absence of any connivance or complicity oo
c his part in the matter of the exploitation, no reflection on Shri K.B.N. Singh is
implied simply by reason of his transfer, which must be regarded as having been
made, with a view to remedying the dissatisfactory working conditions in that
High Court and no unfair play was involved in the procedure followed by the
Chief Justice of India. lo the circumstances, it is clear that the impugned transfer
-
has been in public interest and not by way of punishment. [988 G-H; 989 A-G]

D
11:3. It is true that a mere recital in the impugned Notification dated
19th January, 1981 about such consultation will not be of much avail especially
when the factum of such full and effective consultation has been put in issue but
sufficient materials have been produced on record to show that there was full and
effective consultation as contemplated by Article 222(1) before the transfer order
E was made. [989 H; 990 A-B]
y

11 :4.· Io writ proceedings the affidavits, counter-affidavits and rejoinder-

-
affidavits filed by the parties constitute not merely their pleadings but also partake
of the character of evidence in the case and it is from this angle that the counter-
affidavits filed on behalf of the contesting respondents, particularly that of the
F Chief Justice of India, a party to the consultative process, will have to be
examined. [990 C-D]

11 :5. From the material produced on record, therefore, it is abundantly
clear that there was full and effective consultation between the transferring autho-
rity on the one hand and the Chief Justice of India oo the other in regard to the
G impugned transfer as contemplated by Art.222(1) before the effective decision there
on was taken, and if the consultation has been full and effective as contemplated
by Art. 222(1), as is shown by the material produced on record, the contention
that the normal procedure ought not to have been reversed and the proposal
should have emanated from the President and not from the Chief Justice of India
is
as the case here loses its significance. Moreover, there is !10 hard and fast rule
H as to from whom a proposal for transfer should emanate. [992 F.-G]
S.P. GUPTA v. UNION 445

11:6. The material on record clearly shows that the Chief Justice of India A
had discussed all the relevant aspects concerning the impugned transfer with Shri
K.B.N. Singh including his personal difficulty pertaining to his mother's advanced
age and serious illness. That the Chief Justice of India took a different view
about it does not mean that any unfair-play was involved. After all in his view
public interest outweighed the considerations of personal difficulty as well as the
language difficulty which were put before him. There being no charge nor any
imputation against Shri K.B.N. Singh, there was no question of giving him an B
opportunity to meet any. It is thus clear, that the procedure that was followed
ensured complete fair-play qua Shri K.B.N. Singh. [992 G-H; 993 A·B]

11:7. Art. 222(2) does not provide that the order fixing compensatory
allowance to the transferee Judge has to be is~ued simultaneously alongwith the
transfer order ; all that it provides is that when a Judge has been or is transferred
after complying with the requirement of Sub-Art.(!) he shall, during the period
c
he serves as a Judge of other High Court, be entitled to receive, in addition to his
salary, such compensatory allowance as may be determined, by Parliament
by law and, until so determined, such compensatory allowance as
the President may by order fix. It is obvious that such an order
fixing the compensatory allowance could follow and would have followed, in the
insiant case, within reasonable time but here the occasion to make such order got D
postponed because of the stay of transfer that was ordered by this Court.
[993 G-H; 994 A-B]

12. A section of the Press, while reporting the proceedings of this Court
in this case seems to have, without fully realising the scope and purpose of the
disclosure ordered by the Court, exceeded its limits of fair reporting and fair E
comme.nt by discussing the merits and demerits of the grounds on which recom-
mendations were made concerning the Judges or the truth or falsity of the disclo-
sed material; assuming that this Court was intending to adjudicate on the merits
or demerits of the grounds of the recommendations made or on truth or falsity of
the materials even then the Press could not have, before this Court has finally
adjudicated upon the issues involved, pronounce its verdict-which it almost did-
on the high constitutional functionaries involved by holding a trial by Press. The F
disclosure, which became necessary in the highest public interest of administration
of Justice-for seeing that injustice was not perpetrated and justice was meted out
to high judicial functionaries under the Constitution, was not intended for being
used for such purpose. Such behaviour of a section of the Press has been most
distressing and has unnecessarily affected the image of Judiciary and the hi~h
coustitutional functionaries involved. [995 A-El
G
Per Desai J.

1:1. Independence of Judiciary under the constitution has to be ascertai-
ned within the frame work and the parameters of the constitution. There are

-
....... ~ various provisions in the constitution which indicate that the constitution has not H
provided something like a "hands off attitude" to the judiciary. The power of
appointment of High Court Judges and the Judges of the Supreme Court vests in
,..• the Presi\:lent and the President. \>~in~ a Constitutional Head, he is constitutioµ-
"'
...
\
446 SUPREME COURT REPORTS (1982] 2 S.C.11.

A ally bound to act according to the advice of the Council of Ministers. Articles
32(3), 133(3), 138, 139, 140, 130, 230, 234, 237, 225, 126, 127(i), 128 confer such
power on other constitutional institutions such as the executive which when it acts
within the limits of power will have a direct impact on the functioning of the
judiciary. This conspectus of Articles, not meant to be exhaustive do indicate
that Parliament has power to regulate court's jurisdiction. Undoubtedly, judiciary
the third branch of the Government cannot act in isolation. They are ensured
total freedom of course, after entering the Office, from any overt or cowrt pressure
or interference in the process of adjudicating causes brought before them and to
this end they are ensured tenure, pay, pension, ·privileges and certain basic condi-
tions of service. The judiciary like any other constitutional instrumentality has,
however, to act towards attainment of constitutional goals. The independence of
judiciary is not to be determined in all its ramifications, as some a priori concept
but it has to be determined within the frame work of the constitution. True, the
c thrust is to ensure that adjudications are untrammelled by external pressures or
controls and independence of judiciary under the constitution is confined to the
adjudicatory functions of the courts and tribunals and they are insulated from
executive control in that behalf. It is not unlikely that the total insulation may
breed ivory tower attitude. It is not as if judicial independence is an absolute
thing like a brooding omnipresence. One need not too much idolise the indepen-
dence of judiciary so as to become counter-productive.
[1008 G-H; 1009 A-H; 1010 A, 1010 D-G]
D

1:2. While undoubtedly political packing must be abh~rred, in putting
the independence of the judiciary on pedestal, one cannot lose sight o:f the fact,
that the judiciary must keep pace with the changing mores of the day, its decisions
must be informed by values enshrined in the constitution, the goals set forth in
E the fundamental Law of the land, peoples' yearnings desire for a chanc:e for the
better and the promised millenium. An actvist role in furtherence of the same is
sine qua non for the judiciary. If value packing connotes appointment of the y
persons otherwise well qualified as required by the constitu1ion, having a.dditional
qualifications, of awareness of a high priority task of eradication of poverty,
removal of economic disparity, destroying the curse of ii literary, ignorance, exploi-
tation, feudal overlordship, coupled with conscious commitment, to administer-
F ring socio-economic justice, establishment of a just social order, and egalitarian
society, then not only the value packing is not to be frowned upon nor thwarted
by entrenched establishments, prone people but it must be advocati'd with a
I
I
crusador's zeal, as judiciary can not stand aloof and apart from the mainstream
_I
of the society., This will ensure its broad accour:tablity to injustice ridden masses
and therefore, it is not unnatural that the status quoists can enter their caveat to )-
value packing but which does not commend. While appointing
(
G each individual the constitutional philosophy of each individual
ought to be a vital consideration and if this is labelled as value packing it is neit- \
her unethical nor unconstitutional nor a weapon to strike at independence of
judiciary. [1011., E-H; 1012 A-BJ {')
H 2:1. Undoubtedly Sec. 123 of evidence act, a century old provision enac-
1I
'~
ted to some extent, keeping in view the needs of empire builders must change in
1'1~ context of the Republican Goven1meqt 11nd the open society which in India
j
I
I
I -
~.!>, OUttA-•. UNION. 447

we have set up. Undoubtedly there must be such affair of state involving security
of the nation and foreign affairs where public interest necessitates security but fair
or
administration justice is itself a matter or vital public interest Therefore, if
two public interests conflict the Court will have to decide.whether the public inter•
est which formed ~he foundation for claiming the privilege would be jeopardised.
if the disclosure is ordered and on the other hand whether fair administration of
. 'justice would suffer by non~disclosure and decide which way the balance. tilts; In
the ultimate analysis the approach. of the. court, while· deciding thC question of B
privilege would be that it has to balance public interest in . just justice and just
administration of justice and state affairs at high level in respect of appointment
to high constitutional offices and then decide which way the balance tilts. Having
formulated this test, the answer is that the disclosure in the interest of· justice far
outweighs the possible embarrassment felt by disclosing certain aspe~ts.

l:t. In the democracies the world over till· today there are two known
c
methods or recruitments, nomination and election~. Under the Indian Constitu..
tion the power to appoint judges vests in the executive. The methodology adOJ>-
ted by various democratic countries in the matter of appointment Of judges reveals
that the power to aPpoint judges where election method is eschewed always vested
in the executive and it has not been found tO be subversive of independence· of
judiciarY. The contention cannot be accepted in view of the frank admissiOn,
/
D
in the SOth report of Law Commission that. by and large the existing system of
appointment of judges is sound. [1014 C.E]

3:2. Further the constituent assembly in terms. rejected- any veto to be
vested in the Chief Justice of India in the matter of appointment of a High Court
Judge. What is specifically moved and rejected while drafting the constitution E
·cannot be introduced by the backdoor through the process of interpretation. It
is too late in the day to Contend that debates in the constituent assembly· do not
provide an aid to construction of articles of constitution or it is impermissible to
refer to them. [1015 A-B; 1016 A·C] ·

F
State of Mysore v. R.V. Bldap [1974] 1 SCR 589; Union of India v. G.S.
Dhillon (1972] 2 SC' R 33 relied on; Sagnata lnvestmentJ Ltd. v, Norwich Corpo·
ration [1971) 3WLR 133 quoted with approval.

3:3. The President is a constitutional or formal bead and he must exercise
his powers and functions conferred on him by 6r under the Constitution on the
aid and advice of his council of Ministers. The power to appoint Judges confer· G
red oD the President by Articles 217(1) and 124 is an executive power, and. in the
absence of a provisiOn in the constitution which permits the President to act in his
discretion, bereft of the advice of the council of Ministers, it is not possible to
hold that in the matter of appointment of Judges of High Court and Supreme
Court, the advice offered under Article 74 is not binding on the President. Where
the President is not expected to act on the advice of the council of Ministers a
clear indication is given in the constitution. It cannot be said that while exerci·
.sing _the power Of appQi.Q.tm.ent .or Jud~es or SupremC? Co~rt a;n'=1 Hi~b Court! thq
448 SUPREMI! CoURT REPORTS (1982) 2 s.c.R

A President is either perfoTrning a ju'dicial or quasi ·judicial ·function. It is admit·
tedly an executive function, and howsoeVer, one· i:nay like to wish away the inter-
ference of the council ··or· Ministers· in the matter of· 8ppointinent of Judges or
High Court and Supreme Court, the frarriers of cOnstitution, after having' exami-
ned various aspeCts of the matter conferred" power on the President rejecting
· :-- simultaneOusly the vetO of Chief Justice of India~- Once this :iunCtion of appoint-
. ment of Judges is held to be an executiVe function, Article 74 would· come -into
operation with all its rigours and the President will have tO' act on the advice of
council of Ministers. [1016 G, 1019 C-E, 1020 C-E)

, . Slzamsher Singh v. State of Punjab (1975) I SCR 814 followed; Ramjawaya
Kapur v. State of Punjab (1955) 2 SCR 236-237, A. Sanjee.i Naidu v. State of
Madr., (1970) 2 SCR SOS at 511 UNR Rao v. Indira Gandhi [1971) Supp,
c SCR 46, Sardari/a/ v. Union of India & Ors. (1971) 3 SCR 461, Jayantlla/ Amrit
la/ Shedan v. F.N. Rana & Ors. [1964) S SCR 294; Union of India v. Jyoti Prakash
Mitter [1971) 3 SCR .483 referred to.

_3:4. Looking at the language of Article 217, there is no distinctJon In the
use of the two expressions. namely, after consultation with ,"and'" in· considera..
tion with, which may have an impact on the construction or the Article. The
D power is 1the power to appoint and the limitations on the power is to consult the
three functionaries. Ultimate power of appointment unquestionably vests in tho
President. [1025 A-B, DJ

3:5. Participation of the execulive in the decision making process of
appointment of a judge would not be su!rversive of, the iridependence of the
E _judiciary~ Even a body like the Law Commission was of the considered opinion,
that it would not be conducive to appointment of suitable persons, to totally
exclude the state executive in the decision making process for. appointment of a
'Judge of a High Court. The power to appoint a judge of a High Court is in the
President. When appointed by the President the judge would be working as a
- , _judge of the High Court to which be is appointed His salary, pension, allowan..
ces. etc: would be chargeable on the consotidated fund of the state. Influenced
F by these Considerations the constitution itself provides for giving a share to the
.... ""',--............ state executive in the decision making process and it would be contrary to the
intendment of the constitution to exclude it by process of interpretation.
' '-,,. [1026 E-H; 1027AJ
--,..-_
3:6-, Once some one is appointed as a judge of the High Court under
Art. 217, he is to be suffered even though h(s continuance may not be conducive
G to the fair administration of justice. Extreme care was, therefore, focussed on
the question of the initial appointment probably in order to see -that error of
judgement of one or the other, constitutional functionary may not go unnoticed.
-....___;__ Three high constitutional functionaries were involved in the process of appoint·
. ment of a judge of the High court, and each one, namely, the Chief Justice· of thC
High Court, the Governor of the State, are the highest judicial and excutive func·
H tionaries in the State and the Chief Justice of India holder of the highest office in
the country, were to be consulted bCfore the President took the step of making an
~ppointment under Article 217. When three such high constitutional function..
S.1>, GUPTA V. UNION 449
aries participate in the process of consultation there would be a remote or mini- A
•• mal chance of some infirmity being over-looked or any vital consideration rele-
vant to the process of ap;iointmen t being ignored and the best man will be selec-
ted. In the u l!imate analysis consumers of justice are interested in securing
undiluted justice free not only from bias or subservience but free from predilec-
tions, aberrations, preconceived notions and personal philosophies of incumbent
of the office of a judge. In a country by rule of law, respect for the law is a
sine qua non and the respect for law would increase and enhance directly in the B
proportion to the work of judges in law courts which would inspire confidence.
Actuated with a burning desire that the best one is selected for appointment,
while vesting the power in the highest executive of the country three high consti-
T tutional functionaries were involved in the decision making process. The State
executive, thei·efore, must participate as intended by the Constitution in this pro-
cess and its role cannot be minimised by the specious plea that it might erode
independence of judiciary. [1027 C-G, 1028 B-C] c
- 3:7. There is nothing in the language of Article 217 that the proposal
cannot be initiated by any of the four constitutional functionaries set out in the
article. If elaborate provision was made for appointment of a High Court judge
with a view to securing the appointment of the best available man for the time
being it would not be conducive to effectuating the purpose underlying the article
if the proposal can be initiated by the Chief Justice of the High Court alone. The D
Chief Justice of India can also initiate a proposal and there could not be a blan-
ket embargo on the state executive initiating the proposal. But the state execu-
tive should not make its own recommendation and forward it directly to the
Centre. The State Executive initiating the proposal must first forward it to the
Chief Justice of the High Court who would be better informed about the practi-
sing advocates as well as the District Judges subordinate to the High Court, and
seek the views of the Chief Justice. The process of consultation must go on E
whatever new facts relevant to the consideration are elicited or obtained by any
of the constitutional functionaries and this may ultimately lead to a possible con-
sensus amongst all the constitutional functionaries and translate the purpose
underlying Article 217 into reality by appointing the best man to this High Office.
The submission that any proposal from the State Executive or even from the
Central Executive for consideration of the other two constitutional functionaries
would make a serious inroad on the independence of judiciary is to ignore the role
F
assigned to these two constitutional functionaries in the process of appointment.
However, the consultation must be not merely formal but of substance.
[1032 H, 1033 A-G]

4: I. It cannot be said that the Chief Justice of India when consulted
under Article 217 would have primacy over the view of the Chief Justice of the G
H.igh Court. (1029 G-H]

... 4:2. The President is under constitutional obligation to consult the three
constitutional functionaries. Each is on par. They are co-ordinate authorities.
There is no relative hierarchy. At any rate, the appellate jurisdiction of the Chief H
Justice of India functioning as a judge of the Supreme Court over a decision of
the Chief Justice of the High Court would not provide an indicia that the view of
450 SUPREME COURT REPORTS [1982) 2 s.c.R.

A the Chief Justice of India in administrative matters has predominance or overri-
. ding effect over the view of the Chief Justice of the High Court. In the process
of drafting the Constitution there was some suggestion that the Supreme Court
shall have administrative supervision over the High Court and this suggestion was
rejected. Initiation of proposal for appointment of High Court judge is not a
judicial function of the Chief Justice of the High Court. While performing this
function Chief Justice of the High Court is not under the administrative subordi-
B nation of the Chief Justice of India. Further as the system functions, proposal,
for appointment of a High Court Judge is initiated by the Chief Justice of the
High Court, The person recommended may be a member of the Bar or from the
subordinate judiciary, say a District judge. As the High Court has both adminis-
trative and judicial control over the subordinate judiciary, the Chief Justice of the
High Court is more knowledgeable about the capacity, ability and eligibility of a
District Judge for being considered for the post of High Court Judge. Chief
c Justice of India will have very little information about the capacity, eligibility and

-
quality of a District Judge. Similarly, while recommending a person from the
Bar in the State, Chief Justice of the High Court is more advantageously placed
compared to Chief Justice of India. And, Chief Justice of India will have to
depend upon his sources of information which may not either exclude grapevine
or hearsay. He has little or no opportunity of seeing the member of the Bar
functioning as a lawyer in the Court Cumulatively, therefore, Chief Justice of
0 the High Court is more advantageously placed compared to the Chief Justice of
India in this behalf. About the various other factors which enter into the verdict,
the State executive will be more favourably placed than the Chief Justice of India
becauseJt bas its own instrumentalities for inquiry and information. Therefore,
the view of the Chief Justice of India cannot have any primacy in this behalf.
[1029 A-G]

E
Shamsher Singh v. State of Punjab [1975] 1 SCR P. 814 Union of India v.
Jyoti Prakash Mitter [1971] 3 SCR 493 distinguished.

4:3. To say that high constitutional functionaries like the Chief Justice of
f a High Court would not be free from several such shorccomings and that the
Chief Justice of India would be free from such shortcomings is not basically
sound to over reach the plain intendment of Article 217. There was no question
of primacy to be accorded to the view of the Chief Justice of India with regard to
the advi~ preferred by him when consulted under Article 222 because he is the
only constitutional functionary required to be consulted. The very expression
"Primacy" envisages two or more coordinate authorities, one having a preferen-
G tial position over the other. Such a situation does not arise under Article 222
and, therefore, torn out of context the use of the expression pater familias would
not help. Therefore, the view of the Chief Justice of India when consulted under
Article 217 would not have primacy over the view of the Chief Justice of the High
Court. P1imacy has the flavour of veto and if conceded the authority to be con-
sulted would become the final decision making authority. No canon of construc-
H tion permits such a thing to be done. The Court cannot assign to one authority
powers explicitly granted to another. [1030 E-H, 1031 C-E, 1032 B-C]
S.P. GUPTA V. UNION 451

5:1. The framers' of the constitution envisaged appointment of an addi- A
.tional Judge ·in the High Court in contradistinction to a permanent judge or
acting judge. A retired judge of a High Court who is requested to sit and act as a
judge of the High Court is not deemed to be a judge of the High Court, and can
be given no lab)e or nomenclature and is certainly not an additional judge as con-
templated by Article 224. An additional judge can only be appointed either by
reason of temporary increase in the business of the High Court or by reason of
arrears of work therein. If one or both of the' requisites are satisfied the Presi-
B
dent may proc.:ed to appoint an additional judge but in the absence of both there
·~··. is no power in the President to appoint an additional judge in the High Court.
Appointment cannot be made for a period exceeding two years and before or
l while making the appointment the number of Judges in the High Court may be
increased for the time being, f.e. not permanently. The expression judge in
Article 217 includes an additional judge. [1034 E-G, 1035 A-D,E]
c

- Krishan Gopal v. Shri Parkash Chandra and Others [1974] 2 SCR 206.,
explained.

5:2. An additional judge before entering upon his office has to make and D
subscribe an oath or affirmation according to the form set out in the Third sche-
dule. Article 224 obliges the President to specify the tenure of the additional
judge for such period not exceeding two years. Now, therefore, if the additional
judge with the knowledge of the specified period of tenure enters upon his office,
makes and subscribes to the oath and starts functioning as a judge of the High
Court, undoubtedly when the period expires, if nothing else takes place he ceases
to be a judge of the High Court. Assuming that he has to be appointed again,
E
the whole gamut of consultation as constitutionally ordained in Article 217 bas to
be gone through over again. ·Harsh though this may appear, it is an inescapable
situation flowing from the provisions of the Constitution. Now if the process of
consultation starts over again undoubtedly the various constitutional functionaries
are bound to express their. opinion on the relevant merits and demerits of the
judge and the expression of opinion would be more or less on the same lines as
when a person is being appointed for the first time as a judge of the High Court.
F
Whatever canon of construction one may resort to, it is not possible to hold that
the consultation in respect of an additional judge who has been once appointed
and whose tenure has expired and being eligible, is·being considered for appoint-
ment afresh for a fresh tenure, the relevant consideration which would govern the
decision for appointment would be different, save and except saying that the cons_
titutional functionaries will have the additional benefit of the experience of the
person concerned as a judge of .the High Court for the period he was appointed
G
am! he worked. (1039 C'H, 1040 A]

6:1. In a parliamentary democracy with a written Constitution in which
three organs of the Government are clearly marked out, it becomes a primary H
duty of the Ste.te to provide for fair and efficient administration of justice .. Justice
must be within the easy reach of the \QW~st of the Jowlies\, Raqcour of injustic~
452 SUPREME COURT RBpORTS [1982) 2 s.c.R
hurts an individual leading to bitterness resentment and frustration and rapid
A evaporation of the faith in the institution of judiciary. Two vital limbs of the
justice system are that justice must be within the easy reach of the weaker sections
of the society and that it must be attaintable within a reasonably short-time, in
other words, speedily. Leaving aside other factors contributing to the arrears in
courts, it cannot be gainsaid that in each High Court adequate number ·of judges
must be appointed and the situation in each High Court must be regularly review-
ed by the President so as to efficiently discharge the duty cast on him by
B
Article 216. [1042 G-H, 1043 A]

6:2. All short-comings and infirmities in the system cannot be remedied
by judicial process. Courts cannot cope with all infirmities in the system. Failure
to perform duty of appointing adequate number of judges in High Courts cast on
c the President by Article 216 would make him answerable to the Parliament and
not to the Court. [1044 A-D]

6:3. Denial of extension of tenure to Additional Judge without comple-
ting process of consultation in letter and spirit can be challenged i~ Court.

D

6:4. Article 224 was not meant to provide an entry door for becoming a
judge of a High Court under Article 217. Article 224 was for a specific purpose.
Article 224 was meant to confer power on the President to increase for the time
being the number of Judges in a High Court and to appoint additional judges to
E fill in the increased strength. This power can be exercised if one or the other of
two pre-requisites set out in Article 224 is satisfied. The article was worked as if
an entry in the High Court for a permanent judgeship is via Article 224, namely,
by first being appointed as an additional judge and then when a vacancy occurs in
the permanent strength of the High Court, to be appointed as a permanent judge,
This has been invariably the practice save in rare cases ascertainable by micro-
scope. Every one was ordinarily first _appointed as an additional judge and in
F course of time even after once, twice or thrice being appointed as an additional
judge till the vacancy occurred in the permanent strength that one became a
permanent judge. This is clearly contrary to the intendment of Article 224, and
the present malaise arises out of this impermissible, yet without exception or with
rare exception, use of Article 224 both by the executive and judiciary. This has
also led to inaction on the part of the President in not reviewing regularly and at ------- .
-·
regular intervals the permanent strength of the High Courts. Even Chief Justices
G were unconcerned ab_out the undesirable situation in that they have asked for
increase in the strength of additional judges. If permanent strength was reviewed
from time to time the renewal of tenure of an additional judge twice orthrice could
have been avoided. If an additional judge was appointed to deal with temporary
increase in work and his term is renewed twice or thrice and the temporary
increase ha~ become a permanent feature of the High Court, what was needed was
fl increase in the permanent strength of the High Court. It is unbecoming for a
Jii~h Court judlle to b~ on two years tenure repeatedly. That is clearly contrary
S.P. GUPTA V. UNION 453
to what was intended by Article 224. Ordinarily an additional judge save in rare A
cases was always offered a permanent judgeship unless he himself wanted to opt
out. From this invariable practice, a firm belief, therefore,' developed that an
additional judge enters upon office with almost an unwritten albeit incontrovertible
assurance to b~ appointed a permanent judge. Howsoever strong the belief may
be, it is not borne out by the constitutional provision. After all, the appointment
was as an additional judge within the constraints and limitation of Art. 224 and
no canon of construction would permit the .court to treat the appointment as one B
under Article 217. If, therefore, the tenure was of two years, on the expiry of it
the appointment will have to be a fresh appointment and for making such a fresh
appointment, consultation as ordained by Article 217 is inescapable. Once the
consultation starts, all possible hazards in the process of consultation cannot be
wished away and the appointment has to be afresh. [1045E-H, 1046A-H,1047A-E]

c·
6:5. A practice has grown up for over last quarter of a century (1956-81)·
that whenever an additional judgeship is offered to a person, he accepts it in the
reasonable belief that in course of time he would get a berth as a permanent
judge. It may generate hope in him and his expectations could be said to be well-
founded and reasonable more so it is, save in rarest of rare cases, invariably done
so far. At the minimal most he is entitled to be first considered for a fresh tenure
of two years or when the permanent vacancy arises for appointment to the perma- D
nent vacancy before any rank outsider is considered, given the situation that the
pre-requisites which necessitated his initial appointment continue to exist. There
is no gainsaying the fact that a practice was followed for over 25 years th~t an
additional judge was always first considered and he was entitled to be considered
for a fresh tenure if there was no permanent vacancy and if there was a vacancy
in the permanent strength for being appointed as a permanent judge.
. [1054 F-H, 1055 B-C] E

6:6. Constitutional conventions grow around and upon the principles of
the written constitution and where the power of the government are vested in
. different persons or bodies or where there is a written constitution. But conven-
tions do presuppose the law and any convention contrary to the written context is
of no validity. The conventions are built, in the first instance, on the foundation F
of law but once they are established they tend to form the basis for the law. These
rules of law which are conventions are a mere matter of practice and their effect
must change with the changing circumstances of national life. That apart, what
is sought, is not enforcement of the convention in the court but 'its being invoked
as an aid to construction of Article 224. Implications arising from the provisions
of the constitution, constitutional conventions and constitutional practice all
stand on a different footing. A constitutional convention when spread over a G
long period, of immemorial antiquity, followed.invariably becomes entrenched as
a rule of law but any convention contrary to the written provision is of no vali·
dity. Implications may arise from the context in which a provision is placed or
the use of the language in the provision ~r from the nature of the power claimed
vis-a-vis the whole constitutional scheme. Constitutional practice may be spelt
out as a course of conduct over a reasonably long period which may indicate how H
the authorities charged with a duty to implement the constitution have worked
cut or implemented. a certain provi~iQP. '?f t~e ~~J?;S\itution,. c A, ~oi;i.~tit1,1tim;1a\
454 SUPREME COURT REPORTS [ 1982) 2 S.C.R.

A conventio~ must be founded on some provision of law. Any convention contrary
to the provision of, the constitution and its basic intendment cannot be given
effect to as a convention. Its genesis must be in the provision itself,.
[ 1053 A-B, E-F, H, 1054 A-CJ

Commonwealth v. Colonial Combing etc. etc. Co. Ltd. [1922] 31 CLR p.
438-439 Quoted with approval.
B
H.H. Keshavananda Bharati v. Union of India [1973] Supp. SCR p. I refered to.

6:7. If Art. 224 conferred power on the President to appoint additional
judge only in the specified situation set out in the article and for a fixed limited
duration beyond which even the President had no power to appoint, it cannot be
said that because the way in which the article has been worked, a constitutional
c conventio~ has grown up that every additional judge right from the day of bis
·entry irrespective of his two years' tenure would be deemed to be appointed as a
permanent judge or would be entitled as a matter of right to a renewal of his
tenure till a permanent vacancy arose. Such a construction of Article 224 would
run counter to the plain intendment of the constitution and no such convention
can be spelt out as would pro tanto amend Article 224. Nor any such implication
can be raised that an additional ~udge is deem::d to be appointed as a permanent
D judge or be is entitled as of right to a' renewal of his tenure till a permanent berth
is found for him. [1054 C-F]

6:8. The constitutional scheme is that ordinarily there would be perma-
nent judges of the High Court. Article 224 is an enabHng provision conferring
power on the President to appoint additiQnal judge to meet a specific situation,
namely, a temporary increase in the work of the High Court or the arrears in the
High Court. Ordinarily, therefore, the constitution envisages appointment of
permanent judges. Permanent judges are appointed to deal with the regular work
of the High Court and the strength is fixed keeping in view the institutions and
disposals and the minimum work-load which each judge is supposed to handle.
When permanent strength of the High Court is fixed and there is a vacancy, it
F would mean that for the routine work of the High Court the number of judges is
inadequate and, therefore, it is incumbent upon the President to fill in the vacancy
unless it can be made out that the work-load in the High Court does not justify
the appointment. But if the permanent vacancy is not filled in and the President
proceeds to appoint an additional judge, which can only be done if there is a
temporary increase in the work of the High Court or if there are arrears, it would
mean that the regular work is not sufficient for the sanctioned. strength of perma-
G nent judges and vacancy may remain unfilled, an additional judge is necessary as
if temporary increase in the work of High Court or arrears cannot be dealt with
by permanent judges. Two situations cannot co-exist. Additional judges can be.
appointed when the permanent judges wqile dealing with the regular work of the
High Court are unable to deal with such temporary increase in the work of the
High Court or clear the arrears. If the permanent strength is reduced by not
H filling in a vacancy and it is considered not necessary to fill in such vacancy it
would only imply that not only regular work of the High Court is being adequa-
tely handled but an~ other work in the High Court can also be handled by the
S.i>. OtJi>tA v. UNION

number of judges then working in the High Court. In such a situation appoint- A
ment of additional judge cannot be justified and in the absence of pre-condition
set out in Article 224 the appointment of an additional judge would be plainly
outside the purview of Article 224 and contrary to the intendment of Article 224.
Therefore, when a permanent post is vacant an additional judge cannot be appoin- -
ted. An additional judge even if appointed, could not be deemed to be a perma-
nent judge. If the President appoints an additional judge and specifies his tenure
as tw~ yearn in the warrant of appointment, it is not open to the appointee to B
ignore the tenure and to _accept' the appoiritment,-as being of a permanent judge.
Undoubtedly consultation for the purposes of Article 224 and for appointing a
permanent judge under Article 217 is of the same width' and dimension and the
constitutional functionaries involved in the process of appointment are all the
same, nonetheless power of the President to appoint for a fixed duration in a
given situation even if the situation is shown not to exist, cannot be understood to
mean that the President had some other power under some other Article and is c
deemed to have acted under that Article. Here the President has specifically set
out in the warrant of appqintment tbat the Judge is appointed as "additional
judge" for "a period of two years". Even if the pre-requisite for exercise of power
was absent and therefore, it was an impermissible exercise of power under Art.
224 there was.no intention to appoint a permanent judge which this Court by a
deeming fiction can enforce. Doctrine of severability is no_t attracted.
- [1055 F-H, 1056 A-F, 1057 C-E, 1058 D-E] D

Waterside Workers Federation of Australia v. J. W. Alexander Ltd. 25
C.L.R. 434 ; Shewpujan Rai v. Collector of Customs [1959) 2 S.C.R. 821 ; Y.
Mehboof Sheriff and Ors. v. Mysore State Transport Authority & Ors. [1960] 2
S.C.R. 146 held inapplicable.
E

6:9. Article 224 provides for a tenure not exceeding two years. It may
be that the problem may not be wholly solved within the period of two years but
the reasonable expectation was that a period of two years would provide adequate
length of time to the additional judge to deal with the problem for tackling which
he is appointed. It was assumed that a period of reasonable duration such as two F
years would give adequate opportunity to an additional judge appoir.ted for a
specific task an.d the approach in appointment would be a result oriented
approach. If this was the underlying assumption in enacting Article 224, the
appointment of short-term duration of six months or in the two cases here, of
three months, is inconsistent with the intendment of Art 224 and unbecoming of
the dignity of a High Court Judge. The appointment for such a ridiculously short
duration of three months or six months is not only an exercise in futility but is G
inconsistent with the intendment of Article 224. Further such appointment cannot
be made for the purpose of making inquiries into the suitability, eligibility or
fitness of the incumbent additional judge at the time of consideration of bis
appointment for a fresh term. [1058 G-H, 1059 A, C-G]

H
6:10. Whenever the tenure of an additional judge is about to expire,
sufficiently in advance ihe process of consultation for considering his case for
456 SUPREM)i COURT REPORTS (1982] 2 s.C.lt.

A appointment as envisaged by Article 217 must start and it must proceed along the
hitherto chalked out lines. It has to be completed sufficiently in advance before
the tenure is to expire and a decision has to be taken. If the incumbent of the
office is considered suitable for a fresh tenure, keeping in view the only two rele-
vant considerations, namely, the existence of the temporary increase in the work
of the Court or the continued existence of the arrears for resolving or tackling
which the judge was appointed, his fresh tenure should be fixed. If on objective
B consideration it appears that the situation is not likely to improve even within a
period of two years, normally the fresh tenure should be of two years unless a
contrary legitimate decision verifiable on objective facts is reached that the prob-
lem can be resolved within a short period ·which should in no case be less than one
year. It violently hurts the dignity of a Judge of a High Court to be appointed for
a period of six months or three months and that during this period he is not
supposed to clear the arrears to deal with l!Vhich he was appointed but during the
c period of three months either the executive or the Chief Justice of India will be
holding their inquisition to consider his future suitability, a decision which· these
two high constitutional functionaries could not reach within a period of two years
for which initially the additional judge was appointed. There can be a short-term
appointment when in a near future a vacancy in the permanent cadre of the High
Court is likely to occur. That approach is hardly relevant because even if the
additional judge is appointed, say for a period of one year, and vacancy occurs
D within three months of his appointment, there is no bar in law in offering him the
permanent appointment and if the workload still justifies, to appoint someone
else as an additional judge. [1060 D-H, 1061 A, C-D]

7:1. The word 'Consultation' has been used in different contexts and
different authorities are required to be consufted for different purposes before
E exercise of certain power. The scope and content of consultation may vary from
situation to situation. The word 'consult' would take its colour and its content
and scope will depend upon the context in which it is used. If the consultation
is for appointment all those relevant considerations which enter the verdict before
an appointment is mad.e would be· the subject-matter of consultation. If the consul-
tation is for transfer of a High Court Judge under Article 222(1) the word 'con-
F sultation' would mean examination of all those relevant aspects to be presently
mentioned including the consequences of transfer. [1062 D-G]

Chandramouleshwar Prasad v. Patna High Court & Ors. [1970] 2 S.C.R.
666; Sakal Chand Sheth v. Union of India [1978] I S.C.R. 423 applied;
G- R. Pushpam & Another v. State of Madras AIR 1953 Mad. 392 approved.

7:2. Under Article 217(1) the consultation is for the purpose of appoint·
ment of a judge of a High Court. The constitutional functionaries to be consul·
ted are the Chief Justice of the High Court, Governor of the State and the Chief
Justice of India. The consultation has to be meaningful, purposeful, result· ·
oriented and of sul:stance. Wherever the President can exercise the power in
consultation with the Chief Justice of India or other constitutional functionaries,
the consultation has to be o~ all relevant aspects which would enter the final.
8.1'. GtJ1''l'A V. UNION 457

of
verdict. All the parties involved in the process consultation must put all the A
material at its command relevant io the subject under discussion before all other
authorities to be consulted. Nothing can be kept back. Nothing can be withheld.
Nothing can be left for the eye of any particular constitutional functionary. Th•
President has, however, a right upon consideration of all relevant facts to differ
from the other constitutional functionaries for cogent reas~ns and take a contrary
view. [1063 H, 1064A, 1065 A-B]
B

7:3. The non-appointment is the end product of a process of appoint-
ment. There is nothing like an independent process of non-appointment. When
the four constitutional functionaries are involved in the decision making process
of appointment, differences of opinion are inevitable. The President may ultima-
tely adopt the proposal or drop the proposal resulting in non-appointment.
[1066 E-F, C-D] c
- 7:4. The Chief Justice of the High Court does not have veto sub-siltntio
over other constitutional functionaries. It must be the obligatory duty of the
Chief Justice to initiate the proposal. May be, his initiation of the proposal may
start with a recommendation that. he is not in favour of a fresh term for the con
cerned additional judge. He is entitled to express his opinion. .Proposal has, D
however, to be proceeded further and must be sent to the Governor of the State
who with his own opinion endorsed in. the proceeding .should forward the same to
the Minister of Justice and who in turn must send it to the Chief Justice of India.
No constitutional functionary merely entitled to be. consulted has a right to kill
the proposal on his own. When there are differences of opinion·· qua a· person
amongst the three constitutional functionaries entitled to be consulted, it is inevi-
table in the very scheme of things that the PresideLt will have to choose keeping E
in view the fundamental assumption underlying this complex scheme that the best
must be appointed and the doubtful must be eliminated. Therefore, there is
nothing like a process of non-appointment in respect of which consultation can be
eschewed. [1066 B-H] ·

7:5. Whenever a proposal for· appointment is initiated by any of the cons-
titutional functionaries before it can be killed·at any stage the process of consul- F
tation must go through in its entirety~ [1071 C-D]

8:1. The Circular letter dated March 18, 1981 is constitutionally valid. It
is impossible to read any overt or covert attempt at transferring judges from one
High Court to another. There is not even a whisper of transfer in the circular.
' [1074 A-BJ G

8:2. Fresh appointment cannot be bracketed with transfer. Consent is
sought from an additional judge whose tenure is about to expire and to whom a
fresh tenureif,to be offered. Ipso facto it will be a fresh appointment. Initial
tenure having come to a close, he is offered a fresh appointment, it is being dono H
with his consent. In case of such a fresh appointment one cannot say that tho
additional judge is transferred on the expiry of bis first temlfe, to another High
SUJ.>REMll COURT REPORtS p982] i s.c.lt
A Court where he is appointed afresh with a fresh tenure. The concep,t of transfer v
is foreign to the situation. (1075 B-D]

8:3. If every little thing is looked upon with s_uspicion and as an attack
on t~e independence of judiciary, it becomes absolutely misleading. The expres·
sion obtained would only mean request to the judge to give consent, if he so
desires. If he gives the consent, we11 and gbod, and if he does not give, no evil
B consequences are likely to ensue. (1075 F, H, 1076 A]

· 8:4. No positive advantage was tO accrue to one who gives his consent.
If any positive advantage was to be given to one who gives consent and if it had
been spelt out, there W-Ould have been some force in this submission bui mere
omission to mention any evil consequences flowing from not giving consent would
c not necessarily imply that such would be the case. Similarly, the statement in the
circular that giving an opportunity to indicate preferences would not imply that
the Government would be bound to give the additional judge an appointment or
he would be at least given a station of. his choice out· of the three preferences
-
indicated by him would mean that while unilaierally obtaining consent on one
hand, there was no quid pro quo that the appointment would be. given. This is
clearly reading the circular with coloured glasses and the submission is unwarran-
D ted by the language used in it. If an option to indicate preferences is given and
option is exercised, undoubtedly that by itself cannot obligate the Government to
appoint an additional judge for a fresh term or a new entrant either as additional
or a permanent judge, because varfous factors will have to be taken into conside- .
ration over and above his consent and preferences in making the appointment.
Consent is asked for at a stage prior to the decision to appoint is taken. There-
fore, this caution was absolutely necessary and has been rightly stated that it
E implies no promise to do a certain thing. (1076 D-H]

· 8:5. In every appointmeni of an additional judge as permanent judge in

-
any High Court, the Chief Justice of India is to be consulted and his view would
always receive the weight they enjoy. Therefore, once Chief Justice of India
gives his considered opinion with respect to every proposal, the element of picking
and choosing is effectively curbed ?t c;;ontrolled. · -

9. The non-extension of the tenure of Mr. S.N. Kumar as an additional
judge is in order. There was full and effective consultation on all relevant points
including those set out in the letter dated May 7, 1981. Non showing of the I:tter
of May 7, 1981 to the Chief Justice oflndia would not detract from the fullness
G of consultation as required under Article 217. (1085 D-F]

10:1. The expression 'transfer' is used in Article 222 to mean ~nsfer from
ope High Court to anot!ier High -Court. The person so transferred l:'l;htinuing to
H be a High Court Judge with continuity of service and there is no break. Undoub-
!edly the oath to which a judge of the High Court must subscribe provided that
S.I>. GUPTA v. UNION 459

y he takes oath as judge on being appointed to a designated High Court and, there- A
fore, on transfer when he goes to another High Court he has to subscribe to a
fresh oath as being appointed to tha! High Court. But in service jurisprudence
appointment by transfer is a well recognised concept involving continuity of office
without break. Thus fresh oath does not imply that his appointment as High
Court judge comes to an end. What comes to an end is his appointment as a
judge of a particular High Court and not the holder of the constitutional office of
High Court judge and Article 217(1) provides for appointment of a B
High Court judge and not judge of a particular High Court.
He continues to hold office even when transferred. But when he reaches the
other High Court he subscribes to an oath to be a judge of that High Court, not
that he subscribes to an oath to be a judge. The jurisdiction to function as a
High Court judge is not ambivalent but the judge functions as a judge of a parti-
cular High Court and enjoys the jurisdiction of a High Court judge in relation to
the High Court to which he is thereby attached. [1105 B-F] c
10:2. Interpretation of a constitutional provision is both an art and a
science but while resorting to well-known canons of construction uttwittingly the
pet theory that the independence of judiciary is prized so high that in order to
achieve it if it becomes a compelling necessity the provision of a constitution may
be rewritten, no canon of construction permits this to be done. The constitution D
makers clearly euvisaged a power to transfer a High Court judge and conferred
it on the President. By reading the words "With consent" in Article 222, not
only the power of the President is totally taken away but the power is reallotted
to the judge ·who is to be transferred, namely he cannot be ordered to be
transferred but he can be requested, a request which can be finally turned down.
Such a construction would be contrary to Jurisprudential concept of power.
[1107 A-D, G-H, 1108 A] E

Edward Mills v. Ajmere (1956] S.C.R. 735; Manohar v. Maruti Rao
A.I.R.1979 S.C. 1084 referred to.

..... 10:3. It is true that the power to transfer a High Court judge is an extra-
ordinary power. But, the three safeguards, namely, full and effective consulta•
F
tion, with the Chief Justice of India, that the power to transfer can be exercised
in public interest, and judicial review would certainly insulate independence of
judiciary against an attempt by the executive to control it. While transfer in the
public interest is conducive to independence of judiciary, such power when exercis-
ed with a view to punishing a judge becomes counter-productive. To punish a
High, Court judge by an impermissible method _is not in public interest. And if G
a judge is uprootedfrom one place because he has made himself obnoxious, the
transfer itself may inflict punishment [1109 A, 1110 CD, G-H, 1111 A-BJ

10;4. Selective transfer of individual judge for something improper. in his
behaviour or cllnduct would certainly cast a slur or attach a stigma and would
leave such indelible mark on the character of the judge that even in the High
Court to which he is transferred he would be shunned and the consumers of
justice would have Utile or no faith in his judicial integrity. This is an inevitable
460 StJPIU!Ml! COtJkT kEPOkTS (19821 2 s.c.a.
A outcome of selective transfer on the ground of some improper streak in the con·
y
duct or behaviour of the judge. It is true that the procedure for impeachment is
rather very cumbersome and it ought to be so because the ultimate power to
impeach rests with the Parliament. And in a Parliamentary democracy the execu-
tive which controls a majority in Parliament would he able to carry out the threat
of impeachment. It may be that the judge may behave in an impechable manner
but there are others functioning in the court who would render judge's task of
B judicial justice impossible. Tile power conferred by Art. 222(1) cannot be exercis-
ed with a view to punishing the judge for anything improper in bis behaviour or
conduct. Whenever the transfer answers to some objective norms eveil if it
causes personal inconvenience and hardship, it can be said to be in public interest:
1
The transfer of a judge not answering to any objective norms but selectively made
and founded upon complaints and grievances relatable to the conduct or behavi-
our of the judge would certainly cast stigma or slur and would be by way of
c punishment and that cannot be inflicted by exercise of power under Art. 222(1).
If transfer can be effected because there are complaints and grievances against a
judge of a High Court .on account of his behaviour or conduct it would permit
the executive after going through the process ·of consultation to rotate· inconve-
..
nient judges and this rotation causes such character assassination on one hand and
hardship and inconvenience on the other that it will be sufficient to drive out even
a strong willed judge. Therefore, a transfer on account of any complaint or
D grievance against a judge referable to his conduct or behaviour is impermissible .
in exercise of power under Art. 222(1). (1114 E-H, 1115 A-F]

10:5. Undoubtedly the power is in the President to transfer and as a pre·
condition the Chief Justice is required to be consulted. But on that account
alone it cannot be said that the Chief Justice of Iildia cannot initiate the proposal.
Where power to do a thing is vested in a certain constitutional functionary it is
E immaterial who draws the attention of the constitutional functionary, the reposi-
tory of power, for exercise of the same: If the power is exercised after fulfilling
ail pre-conditions, the mere fact that somebody invited the repository of power to
exercise power which may tantamount to saying that someone initiated the prooo·
sal for exercise of the power, such initiation of proposal would not be unconstitu·
tional or contrary to the constitutional mandate. The only caution that must be

F
required to be administered is and it has assume.d importance in this case, that if
Chief Justice or India who is the authority to be consulted in respect of a propo-
sal for transfer himself becomes the initiator of the proposal, the whole process of
consultation must move in such a manner as to ensure that the President who is
-
invited to exercise the power at the instance of the Chief Justice of India has to
apprise himself of all relevant considerations and has to fully inform himself of
all the aspects of the matter and then the power is to be exercised. [1116 A-Fl

G 10:6. While testing the validity or otherwise of an order of transfer of a
High Court judge made by the President in exercise of the power conferred by
Art. 221(1), below mentioned tests will have to be applied : ·

(i) Po.;.,er to transfer a Judge of High Court is conferred on the Presi·
H 'd~nt which as part of the executive function of the President he
would, in view of Art. 74, discharge according to the. aid and
11dvice received by him from the Council of Ministers ;
S.1'. GuPTA V. UNION 461

'f (ii) The power to transfer a High Court Judge thus is' n the executive A
which is the litigant in a very large number of cases coming before
a judge of a High Court ;

(iii) The power to transfer a High Court Judge is extraordinary power ;

(iv) The limitation on the exercise of power is a full, effective and
meaningful consultation with the Chief Justice of India :
B
(v) The power to transfer can be exercised only in public interest and
not according to the whim, caprice or fancy of the executive or to
remove an inconvenient judge not toeing its line :

(vi) The consultation to be effective must be focussed upon such very
personal factors as the family problems of the judge, which include
c
.... the position of his wife and children and parents, the reasons for
transfer whether the transfer is actuated on account of anything in.
the conduct or behaviour of the judge, whether the injury, incon-
. venience and difficulties experienced by the judge consequent upon
his transfer are such as to be inconsequential in view of the larger
public interest for which the transfer is being ordered ; D
(vii) Would the transfer cast a slur or stigma on the judge proposed to
be transferred ;

(viii) The policy universally followed till 1976 of not transferring a
judge of High Court without his consentis being shelved for achiev-
ing some larger public interest or the so-called public interest .is a - E
cloak or device to strike at an inconvenient judge ;

(ix) ls the transfer intended to inflict punishment for misbehaviour not

- of adequate magnitude to invoke proceedings analogous to
impeachment as contemplated by Art. 124(4) and (5) read with
Art. 218 and Judges (Inquiry) Act, 1968. ·

In the instant case, the transfer of Shri K.B.N. Singh to Madras as Chief Justice
F

't is invalid and based on extraneous considerations. [1117 G-H,1118A-H, 1119A-B]

11. Section 123 of the Indian Evidence Act must be construed on its own
terms. Undoubtedly, a century old provision enacted to some extent keeping in G
view the needs of Empire builders must change in the context of the Republican
Government and the open society which we have set up. There must be such
affairs of the State involving security of the nation and foreign affairs where
public interest requires that disclosure should not be ordered. It is, however,
equally well recognised that fair administration of justice is itself a matter of vital
public interest. Therefore, if the two public interest conflict, the Court will have H
to decide whether the public interest which formed the foundation for claiming •
privilege would be jeopardised if disclosure is ordered and on the other hand
I
462 SUPREME COUR.1' R.El>Olt1'S [1982] 2 s.c.a.
A whether fair administration· of justice would suffer by non-disclosure and decide'
which may the balance tilts. (1150 B-D]

State of Punjab v. Sodhi Sukhdev Singh [1961] 2 SCR 371; Duncan v.
Gammell Laird & Co. Ltd. '[1942] A.C. 624; Conway v. Rimmer [1968] A.C. 910;
Science Research Council -v. Nasse [1980] A.C. 1028; Burma Oil Co. Ltd. v.
8 Governor & Co. of the Bank of England & Anr. (1980] A.C..1090, referred to.

12. It is a well receognised pithet of cons ti tut ional wisdom that in cons- 1
titutional matters the Courts do not decide what is not brought before it nor would
it proffer advice except in a reference under Art. 143, on the wisdom or validity of
a future action. .If there is no policy till today it would be unwise to pronounce
upon a future policy without knowing what form and shape it would take. No
c carte blanche can be given in this behalf. If the policy were to be laid down by
the executive that a judge of the High Court who decides the matter against the
Government will be transferred it would be an objective norm because it can be
easily ascertained whether ajudge has decided a matter against the Government.
Such a policy if at all laid down, would be complele anti-thesis of the indepen-
. dence of judiciary. (1144 B-D]

Per Pathak J:

1. Public confidence in the administration of justice is imperative to its
effectiveness, because ultimately the ready acceptance of a judicial verdict alone
gives relevance to the judicial system. While the administration of justice draws
its legal sanction from the Constitution, its credibility rests in the faith of the
E people. An independent and impartial judiciary supplies the reason for the
judicial institution, it also gives character and content to the constitutional miliue.
The framers of the Constitution took great pains to ensure that a better and more
effective judicial structure was incorporated in the Constitution, one which would

-
meet the highest expectations of judicial independence to ensure the Rule of law
and with the intention that the widest aml'litude of remedial action should be
F available to every person throughout the territorial jurisdiction of the High
Courts. [1155 G-H, 1156 A, €, D-HJ

2:1. The rules now developed by the Supreme Court relatinjJ to the
disclosure of documents need to be carefully applied. The balance between the
conflicting claims of public interest represented by officialdom and the public
interest flowing from the administration of justice often calls for a delicate assess-
ment, into which perforce must enter consideration vital to the operations of
Government on the one hand and the demands ·of adjudication on the other. Yet
no court can shirk its duty if it finds that its power has been rightly invoked.
(1210 G-H, 1211 A-C]

2:2. It is the advice and its reasons tendered by the Council of Ministers
to the l>resident which are proteCted from enquiry by a court and no such protec-
tion extends to· the material from which the advice proceeds. fl 211 C-D)
•H
!l.P. GUPTA V. UNION 463

3:1. The circi1lar letter cannot be acted on and any consent given pursuant A
.to the Circular letter is not binding in law on those who have given it. [1210C-D]

3:2. An appointment of a person as a Judge of a High Court must be an
appointment to a particular High Court. For the purpose of making such appoint-·
ment, the Constitutional process must be initiated with respect to a particular
High Court. The Constitution does not contemplate a single process in relation
to several High Courts, collecting as many persons as there are vacancies all over B
India, and then in the discretion of the Government appointing each of them
where the Government pleases. To adopt this procedure will be to equate the
appointment of Judges with the appointment of members of an All India Service,
a position which cannot constitutionally be countenanced. There must be a
separate and distinct process in regard to appointment to each High Court. The
Governor of the particular State and the Chief Justice of the particular High
Court have to be involved in that process, bes ides the Chief Justice of India. It c
is in the course of such a process that a proposal for appointment is made to the

- person intended for appointment. In other words, a valid proposal, as part of
a
the constitutional process, is one which offers an appointment .to particular
High Court. It is only when consent is given to such a proposal, that is to say,
consent to appointment in a particular High Court, that it can be said in law to
be binding and effective. Tlie Circular letter .has invited the consent of the
additional judges in the most general terms, to appointment to any High Court D
other than the High Court in which they are serving as additional Judges. If it
is intended to bind the additional Judges, it has 'failed in its purpose. A concrete
proposal can contemplate appointment only in accordance with the procedure
prescribed in clause(!) .of Article 217. [1209 D-H, 1210 A & C]

4:1. The transfer of Shri K.B.N. Singh as Chief Justice of Madras High E
Court is in order and there· is no violation of clause I of Article 222. The consi-
derations on which the transfer was made must be regarded as falling within the
expression "public interest". The provisions of the Memorandum issued by the
Ministry of Home Affairs in the Government of India have been complied with.
F.ven the language problem which might cause some difficulties has been consider-
ed. A fair. procedure was adopted and all that could reasonably be done in the
circumstances of the case was done, including full and effective consultation. F
[ 1203 A-B, 1207 F-G]

'f Union of India v. Sakal Chand Himatlal Sheth & Anr. (1978] I SCR 423
. referred to.

4:2. When a Judge permits his judgment in a case to be influenced by G
the irrelevant consideration of caste and creed, of relationship or friendship, of
hostility or enmity, he commits a breach of his oath. It is a case where Justice
is not done and is denied. It is a case of misbehaviour, to which the provisions
of Article 218 read with clauses (4) and (5) of Article 124 are attracted. There
is another kind of case where a Judge acts in accordance with his conscience on
the basis of the facts and the law as he bona fide understands them, and yet H
because of surrounding circumstance it may appe(lr that justice has not been done
even though in f!!~t it ma~ have been done, Where there is a dan!ler that Justi9~
464 SUPREME COURT REPORTS [1982) 2 S.C.R

A will not appear to be done, and the prevailing environment is linked with the
Person of the Judge notwithstanding that he may have done nothing to promote
'
it, the injury to the 'administration of justice can be as serious as a case where the
Judge has consciously deviated from the standards of impartial judgment.· Where
there is a genuine apprehension that justice may not appear to be done, the
ordinary rule is that the case pending before the Judge should be transferred to
another Judge. But where the apprehension is rooted in local association on
B links with members of the Bar or influences present in close proximity to the
Judge and the circumstances are such that, notwithstanding that the conduct of
the Judge has done nothing to promo~e it, there is grave and bona fide fear in the
minds of honest citizens that the fount of justice may be polluted its effect is not
confined to a single case but spreads widely endangering the purity of the entire
administration of Justice. Inasmuch as the administration of justice relies fodts
vitality on the strength of public confidence, it must range supreme, and, there·
c fore, if the Judge is transferred in these circumstances it must be regarded as a
transfer in the public interest. [120S B-H, 1206 A-CJ
....
4:3. The considerations which prevailed with the Chief Justice of India
and the Government in the transfer of Shri K.B.N. Singh were substantially
identical, that for the purposes of this transfer the Government had agreed that
having regard to the reasons for the transfer it was prepared to consider. the case
D on its individual merits and not to insist on the making of transfers generally for
}·
the time being. (1207 E-F]

4:4. The power to transfer a Judge from one High Court to another -~
under clause (I) of Article 222 is a:n extraordinary power. Inasmuch as it can be
exercised without the consent of the Judge, it can constitute a threat to the sense
E of independence and impartiality of the Judge. It must be most sparingly used
and only for good reason. The onus of justifying the transfer lies heavily on
the State. [1197 F-G]

4:5. Any policy governing the application of clause (I) of Article 222
F must conform in all respects to the scope and content of clause (l) of Article 222.
The power to transfer is to be found in that clause, and every act of the Govern-
ment, be it the framing and adoption of a policy or the actual order of transfer,
must fall completely within the scope of that provision. The entire content of
power vested in the President respecting the transfer of Judges of the High Courts
must be traced to the confines of the clause. Accordingly, any policy framed and
adopted in this behalf must be tested on the criterion of public interest, and it
G must be clearly understood that "public interest" means, here, the interest of the
· administration of justice. That is the sole purpose of the grant of the power
under clause (1) of Article 222. No~, if the framing and adoption of a policy is
an act of the President under the power conferred by clause (1) of Article 222, it
must be subjected to consultation with the Chief, Justice of India. That is an
imperative co_ndition grafted on the exercise of all power relating to the transfer
H of Judges of the High Courts. That the framing and adoption of a policy should
be governed>by that condition is ~asily explicable if it is appreciated that the
policy constitutes the basic consideration entering the order .of tr1111sfer. All
S.P. GUPTA v. UNION 465

considerations controlling the transfer of a Judge of a High Court must fall with· A
in the scope of the cOnsultative process. The Constitution intends that the Chief
Justice of India should be consulted before a tra"nsfer is ordered by the President.
The consultation must travel over thC entire area of consideration , which~pro.mpts
· the tranSfer•. The scope of consultation is not limited to any particular. , It must
be remembered that the Constitution bas insistCd on consultation with the Chief
Justice of India in order J:o protect the administration of. justice and its central
prlociplc, the independence of thC judiciary, froni arbitrary encroachment b)r B
executive power. [1198 A·FJ . ! __ · , ·· '

4:6. Having regard to the plain terms or clause (i) or .Article 222; policy
making, cannot be accepted as the exclusive and ·absolute preserve of govern-
mental Power. , The fraining or a policy is ·an· administre.iive exercise. and calls
for making a choice of one or more considerations for execu,tive action'. within the c
field or several considerations. When the Chief Jllstice or India is coDsulted 9n
the formation-of a Policy by the President, the consultation involves an adminis.
trative choice operating on an administrative plane. When the President consults
the Chief Justice or India uD.der clause (1), of Article 222. it is consultation in
relation to an executive act. (1198 F-H, U99 A·B] ., ,

4:7. There is DO All India Service or High Court Judges. Article 215 D
Speaks ~r a High Court for each State. and Article 216 plainly 'declares that.-- the
High Court shall consist of a Chier Justice. and other Judges. · The Chief Justice
is a Chief Justice\ or that High Court 1 only and so are the other Judges. The
Judges of a High Court -owe their responsibilities and discharge their functions in
relation to that High Court only. -They have no .constitutional connection and
DO legal relationship with th,e body orJudges or any other High Court. [H9QC.E]
E
4:8. \A Judge appointed to .a High cOurt is entitled to continue aS a
Judge of ihat High Cocirt until be attains the age of 62 yearS. unless or course he
·resigns Lis 'office or is removed from it. His transfer to another fligh Court
involves the vacation of his office in that High Court. that is to say. his appoint..
mellt as a Judge of_ that High Court stands terminated. This is confirmed by
clause (c) of the proviso to _Clause (1) of Article 217. Alt order of transfer of a·
Judge of a High Court under Clause (1) of Article 222, therefore. is a transaction
F
in two parts9 the termination of bis ~ppointment as Judge of the original High
Court and hill simultaneous appointment as a judge of the othef..High Court. -
.. UIW&~

4:9. Clause (1) or Art. 222 Wal enacted Specifically in the Indiai::t ConstitutiOn.
tor the purpose of empowering the President to transfer a Judge without necessa- G
rily securing his consent. .The power Was intended to be in the widest terms and ·
subject only to the obligation to consult ·the Chief Justice of India. If transfer
_was conditioned further by the imperative of secufing the Consent of the Judge
concerned. theD. having regard to past practice there was in fact no need to enact
Art. 222. A Judge can always be moved from one High Court to another with
his conSent But the framers of the Constitution intendCd a departure from that
9
• H
positiori.. By clause (1) of Article 222 in the terms enacted. they did not include
lhe conditioq !h~t !IJe Jud~ c~n'°~~<;~ m.u!t ~o~s~nt to his transf~r. {1193 1)-EJ

•
466 SUPREME COURT REPORTS (1982] 2 s.c.il.

A 4:t0. · Unless cJauSe (J) of.Article 222 had been enacted. it was not. possi·
: bie for the President to transfer a JudgC from one High Court to another without_
bis consent: If a transfer only with the consent was contemplated, it would have
be~n sufficient to rely on the power .of the Preside.D.t Under clause. (1) of Article
217 to' appoint the Judge to anoth.er High Court, and clause (c) of the p.ioviso to
I clauSe (1) or Ariicle 217 would remove any doubt that by·· suC:h-_appointment the
. ·Judge vacated his office in the original High Court. There is· no need to confer
B a
-power in express: terms to-do specific act wbiCh cci.n be done with the ccinsent or
the parties under the ·umbrella of a general power. [1193 F-H,'1194 AJ · · '

,.r, . 4:tl •. If_~ tr~nsfe~Cd Judge refuses lo make: and. ~ubSCribe an oath or
affirmation in Order tO assunle" Officeas a Judge of the High Court to. which he is
transferred he Coutd be rCgarded, it seems ·as guilty of misbeb3:viour warfanting
c - bis removal. [11. 94 G-H.J ' .' .. , . .. ' -..- - . . , .
. -,. /_ - .. .•

; ,·.. 4:12. aause (1) or Article 222 does not mention th~ g;ound~· on ~biCh
the'Judge inay be transferred. Plainly, inasmuch as it is in the nature ·or a publiC ·
power .Vested in a functionary of the StatC, it can be exercised only in the public .,.
D interest~ _:r:~blic interest is the touch-stonit on which every transfef·must be tested.
. That is thd necessary limitation implicitly. circumscribing the eXercise of power
under clause (I) of Article 222. All grounds which can be said to fall within that
rubric may be entertained._ But no ground which falls within the scope of Article
218 read with clauses (4) and (5) of Article 124 can be brought within that scope.
The groun.ds envisaged by those provisions are ••proved misbehaviour or incapa:..
.city,._ -In relation to "them expre~s provision has been made by the -Constitution,
- the grourids being sO grave that if established they can result in one penalty only,
that of removal pf the Judge. [1193 B-D]
' . ;_

, _·4:13. The grollnds of,misbehaviou~ or incapa'city are clearly ruled out
from the scope of clause (1) of Article 222. The transfer of a Judge under that

.
f '-... _ provision canriot be made for thC purpose of punishing him." Ir was never inten··
. ._ '-----ded that the power should_ be exercised to impose a penalty by way of punish·
meD.t. _ To permit that would be to permit a violation of the principle of. judicial
indeperldence, for the only grounds envisaged by the Constitution for ··punisbmerit
are grounds Constituting misbehaviour and the penalty for which is removal from
office.-[1194 0-H, 1195 A·B] '

G
4:14. Iri the transfer of a Judge frorD ·one: High Coui-t to.'aO:other'ihe
principle of ju"diCial inde_pen~encC aD~ the rightS of the Judge are protected by
- .__,_two safeguards.' -The first is that incorporatCd in clause (1) or Art. 222, 'that is to
say. the obligation of the President to consult the Chief Justice of India. - The
Constitution expects the Chief Justice of India to ensure in the' process of consul·
H · tation that the power to transfer is not usCd arbitrarily aga.inst a Judge of a High
Court, that it is not employed as a di~~ise foi punishirlg him,· and that, even if •
the ~round f9r the proposed transfer is made out, it wi11 be in the public interest

•
_s,p, GUPTA v.. UNION 467

A
to effect the transfer. In this regard, the consultation, with the Chief Justice of
India must, extend to the entire ·gam11t of the grounds on which the transfer is
proposed, even where the grounds are incorporated in a policy. The protection
afforded to the Judge by the obligation of consultation with the Chief Justice of
India is intended to be a co~plete protection. The Judge concerned is· entitled to
continue in the High Court to which he has been appointed for the full period 0 f
B
his tenure. To properly discharge his responsibility in the matter, the Chief
Justice of India must consider himself obliged to entertain not only the material
furnished by the President to him but he must also make as full an enquiry as he
conveniently can for the purpose of determining whether a transfer should be
. advised. In that process, he must determine not ·only whether the grounds of
which the transfer proposed are made out but he must also consider as relevant C
the personal circumstances of the Judge concerned. It is ultimately in the public

-
interest that the personal circumstances of the Judge should be taken into consi-
deration, for there may be a case where they may hinder the proper discharge of
his duties in- the High Court to which he is transferred. In that connection it is
only right that the Chief Justice of India should satisfy himself by enquiring from
the J\)dge himself about what he has to say in the matter of his transfer, both in D
regard to the ground for the transfer as well as in regurd to any hardship or
inconvenience which may be suffered l'>y him by such transfer. (1195B-H,l196A]

4:15. As a sitting Judge he is entitled to be informed of the proposed
transfer and of the grounds therefor because his right to continue as a Judge of E
the High' Court is placed in jeopardy. It is a very different case from the trans-
fer of an officer who is a member of a service and is ordinarily transferable. The
Judge does not have a right of hearing in the sense in which that right is generally
understood in law.. The scope and degree of inquiry by the Chief Justice of India
must rest ill his discretion. All that is necessary is that the 'Judge should know
why bis transfer is proposed and. be should be able to. acquaint the Chief Justice F
of India of any reason why be should not be transferred. The process of consul-
tation envisaged under clause (I) of Article 222 requires that all· the material in
. '
the possession of the President must be placed before the Chief Justice of India,
as well as such other information which he may need and may call for in order to
render his advice. [1196 A-DJ
G

Union of India v. Sakalchand Himmatlal 'iheth [1978] I SCR 423;
' ,
Shamsher Singh v. State of Punjab [1975] 1 SCR 814 referred to.

H
5. The decision of the Union Government not to appoint Sbri S.N.
Kumar as an additional Judge fo~ !I fyfther ~erm w~~ vi~l~tive of tpe co11stitq-
468 SUPRBMll COURT RllPORTS (1982) 2 S.C.ll.

A tional requirement mandated by clause (I) of Article 217. The process of consul-
tation with the Chief Justice of India was not full and effective and the withhol-
ding of important and relevant material from the Chief Justice of India has vitia-
ted the process. The Government was deciding ag~inst a further term to Shri
Kumar solely on the ground of doubtful integrity and clearly the allegations,
contained in the letter of May 7, 1981, were strongly influencing that decision.
B [1184 B·D]

6:1. While the President is vested with the power to appoint Judges, he
is also under a constitutional obligation to ensure that the High Court is fully
constituted. It is fully constituted when it consists of Judges sufficient in number
c to regularly cope with and dispose of the work falling within its jurisdiction.·
From the terms of Art. 216 it. is also plain that the constitutional obligation impo
sed on the President extends to ensuring from time to time that the High Court
consists of a sufficient number of Judges. The responsibility imposed by Article
216 requires the making of a periodic review of the annual institution of cases and
the pending strengt!t of arrears resulting in a reasonable assessment of the number
D of Judges needed in each High Court. Serious injury is possible to a constitu-
tional democracy where this is not done, a~d the judiciary remains insufficiently
manned and pending cases continue to accumulate for long periods. A continu-
ing imbalance in the proper operation of the constitutional system ranging over a
long period of time by reason of one of its primary organs remaining ill-equipped
to discharge its essential responsibilities· is a matter for grave concern.
E [1158P-H,1159 A]

6:2. A fixed tenure unaffected by the discretion of the executive safeguards
the principle of judicial independence. In special circumstances, however, and in
special circumstances only, the appointment of additional Judges or acting Judges
F is contemplated under Article 224. The number of Judges is increased only for
the time being, and the appointment of an additional Judge is, therefore, envisa-
ged for a limited period which, by clause (1) of Article 224 · lllllst got ~x~ei;<) \WQ
years. [1159 C-D, El T

G 6:3. The appointment of a Judge is an executive act. The power to
appoint is vested in the President, who by virtue of clause (I) of Article 74 is
required to act in accordance with the advice of the Council of Ministers. The
President may require the Council of Ministers to reconsider such advice, either
generally or otherwise, but he must act in accordance with the advice tendered
H after such reconsideration. While there can be no doubt that the appointment of
a Judge of a High Court lies in the executive power of the President; it is not an
absolute and unfettered power, it is conditioned by the obligation imposed on the
S.P. GbPtA v. tJNioN

President to consult the Chief Justice of India, the Governor of the State and in A
the case of an appointment of a Judge other than the Chief Justice, the Chief
Justice of the High Court. ·The consultation is a constitutional imperative and
the process of consultation "must precede the appointment. Three constitutional
functiOnaries are required to be consulted, the Chief Justice of India and the
Chief Justice of the High Court, who are judicial functionaries and the· Governor
of the State who is the executive head of the State in respect of which the High
B
--~ Court has jurisdiction. The Constitution itself. bas imposed the obligation to
consult . .[1161 A-C, D-F, 1162 A]

6:4. Clause (I) of Art. 217 prescribes that besides the Governor of the
State, the Chief Justice of India and the Chief Justice of the High Court must be
c
consulted in the appointment of a Judge of a High Court. Three distinct constitu-
tional functionaries are involved in the consultative process, and each plays a
distinct role and the nature and scope of the role arc indicated by the character
and status of their respective offices. [1162 G-H]

D
6:5. The President is obliged to consider the advice tendered by the three
constitutional functionaries under Clause (1) of Article 217, and in the evaluation
of the advice from each be must bear in mind that the appointment under consi-
deration is the appointment of a Judge of a High• Court, that is to say, a judicial
appointment. Io ·order that the person recommended is of desirable personal E
character and reputation, the greatest value should be attached .to the advice
tendered by the.Chief Justice of the High Court and the ·Chief Justice of India.
The advice tendered by the two judicial functionaries possesses a quality peculiarly
pertinent to the appointment of .an able and efficient Judge. It is, in a sense,
"expert" advice, and where the Chief Justice of the High Court and the Chief
Justice of India agree on the recommendation it is within reason to bold that the F
President will ordinarily accept the recommendation, unless there .jg streng and
cogent reason for not doing so, which must ,be a reason directly relevant to the
purpose of the appointment. [1164 D·GJ

6:6. Nothing expressly is laid down on the matter whether the advice
G
given by the Chief Justice of India will·have primacy over that rendered by the
Chief Justice of the High Court in express terms in clause (I) of Article 217. If by
"primacy is.meant that the opinion.of the Chief Justice of India supersedes that
of the Chief Justice of the High Court and .can alone be considered, it is clearly H
against the provisions·of clause (1) ·of Article 217, for the.clause intends that the
President should consult both judicial functionaries, besides the Governor. The
476 stJPlU!ME couat tl.Ei>oa'rs [i982i 2 s.c.tt.
A advice of each, the Chief Justice of India and the Chief Justice of the High Court,
has to be considered by the President. The Chief Justice of India does not sit in
appellate judgment over the advice of the. Chief Justice of the High Court, and
the fact that the former has given his advice cannot imply to that the advice of the
latter must be ignored. But, the advice by the Chief Justice of India tak'es into
account not only the primary material before him but also the assessment made
8 by the Chief Justice of the High Court, and therefore when he renders advice the
assessment by the Chief Justice of the High Court has also been considered by -j-
him. In other words, in formi;g his opinion and giving his a(lvice, the Chief
Justice of India will take all the facts and circumstances into consideration, inclu- '*
dihg the material circumstance that the advice of the Chief Justice of the High
Court is the advice of an authority possessing the advantage of direct and intimate
c knowledge of the requirements of the Court and generally also of the person
recommended, and there after he will advise 'whether he .endorses the recommen-
dation. In that sense, it can be said that the recommendation of the Chief
Justice of the High Court is screened through the assessment made by the Chief
Justice of India. The screening is allogical result of the Chief Justice of India
D being brought in to express his opinion on the recommendation. If any material
comes into the possession of the Chief Justice of India which was not before the
Chief Justice of the High Court, it should be communicated to the Chief Justice
of the High Court for his comments. W.hen the advice of the Chief Justice of the
High Court and of the Chief Justice of India is placed before the President., the ·~-
President will consider both and assess them in the light of the positions held, and
Ill the advantages possessed, by the respective functionaries in relation to the recom-
mendation, and also bear in mind that while the Chief Justice of the High Court
bas the advantage of proximity in relation to the High court and generally in
assessing the ability and efficiency of the person recommended the Chief Justice
of India enjoys the advantageous position of being able to apply a more objective
judgment and also of taking into account a national perspective and present
F standards and trends in other High Courts. In the ultimate analysis, it would
be unrealistic to suppose that the advice rendered by the Chief Justice of India
enjoys mere parity with that of the Chief Justice of the High Court. If the Chief
Justice of India was intended to eojoy equal status merely with the Chief Justice "f
of the High Court in this regard, the Chief Justice of India would riot have been
brought in at all, especially when the advice expected of a judicial functionary for
G appointing a Judge of a High Court could be obtained from the Chief Justice of
the High Court alone. The constitutional schem~ indicates that in matters concer-
ning the High Courts there is a close consultative relationship .between the Presi-
dent and the Chief Justice of India. In matters so serious as transfer of Judges
and the determination of the age of Judges, the Constitution has appointed the
H Chief Justice of India as the sole functionary to be consulted by the President.
S.P. GtJPtA·v. ttNtON "· 411
In that.Capacity,. the Chief Justice· of India functions under the Constitution as a A
constitutional check on the exercise of arbitrary power and protects the indepen-
dence of the Judiciary. [1165 F-H, 1166 A-H, 1167A-C]

6:7. Under clause (1) of Article 224, an additional Judge may be appoint-
ted where by reason of the temporary increase in the business of a High Court or B
by reason of the arrears of work therein it appears to the President that the
number of Judges should for the time being be increased. [il67 E-F]

6:8. The two conditions control the exercise of the power, and if neither
is satisfied there can
be no case for appointing an additional Judge, The increase C
in the business of the High Court must be tempora'ry and should be capable of
being disposed of wiihin a short p~riod. Likewise, the arrears of work should
be such that they cannot be expecte<fto endure long. Inasmuch as the period of

oniy where
.
' .
appointment of 'additional Judges is prescribed as a maximuin of two years, it is
the disposal of' the temporary
. .
increase. in the
. business of the High
Court or the pending a~ears of worlc is expected to take about two years at the D
most that a case for 'appointing additional Judges' arises. if the increase in the
business of the · High Court or the volume of arrears of work is of a
magnitude which cannot. ordinarily be disposed of within two years, it is a case
where the business of work must be regarded as an accretion to the regular
business or work of the High Court, calling for an increase in the strength of.
p~rmanent Judges. [1167 F~H, 1168 A-Bl E

6:9. -· An additional Judge discharges functions of the same ·character as a
permanent Judge. There is no difference whatever -between the two in status and
the other incide~ts of office, except that an additional Judge can hold office only F
for the period specified in the warrant of his .appointment. There is nothing in
clause (1) of Article 224 to suggest that the temporary increase ii) the business of
the High Court or the pending arrears of work ·can alone.. be entrusted to addi- ·
tional Judges. All that the clause provides is that either or both conditions can
constitute a reason for temporarily increasing the nunlb('.r of Judges of the High
Court. Which work should be assigned to permanent Judges and which to addi- G
tional Judges is a matter normally falling within the discretion of the Chief Justice
of the High Court.. (1168. C-E]

Krishan Gop•I v.'Shri Prakash Chandra, [1974) 2 SCR 206, referred to. ff
. -~.
. ..
412 (1982} ~· s.c.tt

A 6:10. The period prescribed by clause (I) of Article 224 for the appoint-
ment of an additional Judge is put a maximum of tw•> years, but th'at docs not
mean that in every case the appointment must be for two years. The appoint·
ment of an additional Judge may be for a period less than two years, and the
period will be determined with reference to the time estimated for disposing of
the te!11porary increase in the business or the pending arrears of work '!hich
B occasioned the appointment. The period of appointment cannot be fixed on the
basis of any other factor . . Where, the work or business is not completed within
two years and calls for a further appointment of additional Judges, the duration
f
of the further appointment will be conditioned again by the time assessed for
disposing of the remaining business or work. · Bnt additional Judges can be

c appointed only where the temporary increase in the business of the high Court or
the arrears of work can be expected to be disposed or wi.t hin a .period of two years
and not very much more. If additional Judges are appointed for successive
periods of two years or more it is clearly a case where the increase in the business
of the High Court or the volume of the arrears of ~ork does not call for the
appointment of additional Jud~es but for a review df. the number of permanent
Judges. _Appointments of additioQal Judges for successive periods of two years
D
or more constitute a violation of the safeguard afforded by the appointment of
permanetlt Judges for the protection of the principal of judicial independence.
·'
(1169 A·B]

E 6:11 . The warrant of appointment issued .by the P.resident recites that the
appointment is of an additional Judge for the limited period specified therein. ' ~
The intention was to appoint an additional Judge and for the period specified. It
is not open to the court to alter the terms of the warrant. Although it may be
generally possible to say that the circumstances require an increase in the number
of permanent Judges and not the appointment of additional Judges, it is for the
F President under Article 216 to determine what should be the number of pcrma·
·-
nent Judges. The Court cannot by judicial ver<lict decide how many permanent
Judges are required for the 'High Court. And if the court .is not competent to do
so, it can neither regard .the appointment of additional Judges nor can ·it issue a
direction to the Government that the additional Judges ·should be appointed now
as permanent Judges. [1171 .F-H; 1172 A-Bl
G

6:12. While an additional Judge may not b~ve a right to be deemed to
be a permanent Judge or be entitled to a direction that he be so appointed,
nontheless he has, a right to be considered• for such appointment. His case
H
must be distinguisded from the case of a person considered for direct appointment
as a permanent Judge. The latter bas no right to be considered for appointment.
$.P. GUPTA' v. UNION 473

The additional Judge, however, bas accepted office within the framework of a
A
definite and consisent practice practically always followed and leading him to
believe that he would be considered for appointment in accordance with that
practice. [1172 B-C]

The practice of additional Judges being appointed permanent Judges, the B
senior most additional Judge being invariably appointed first, bas been followed
in India almost without exception. Where no present vacancy of permanent
Judge was available, the additional Judge was, on the expiry of his term, always
appointed for a further term as additional Judge. This practice bas been uni-
formly and consistently followed and has crystallised into a positive rule of con-
duct. It is a rule of conduct followed by the Government regularly and without c
interruption, almost entirely without exception, and bas. operated consistently
... for twenty-five years ob the basis of precisely defined norms in respect of a gene-
ral 'class. And it flows from the power of the State. It prescribes a channel of
appointing Judges and is not inconsistent with clause (I) of Article 217. So long
as it is not varied or superseded, it will operate as a rule· of conduct, binding on
the ~resident. [1171 A-DJ
D

All the additional Judges accepted judicial office on the assumption that
)
the practice clothed with all the status of constitutional reality would operate in
their cases and that they would in their turn be considered for appointment as E
permanent Judges. AU of them certainly ~lleved that. Inspired by that trust,
they abandoned their positions at the Bar and law practices assiduously built up
over many years. Therefore, the additional Judges ·must be held entitled to •
consideration for appointment as permanent Judges or to consideration for fur-
ther appoi~tment as additional Judges. [1172 F-H; 1173 A-BJ
F
6:13. The provisions of clause (I) of Article 217 come into play when an
y additional Judge is to be considered for appointment as permanent Judge or even.
for further appointment as additional Judge. The process involves the considera-
tion of all the concomitant elements and factors which entered into the process of G
consultation at tLe time of appointment earlier as an additi~nal Judge, but no
account can be tak;:n of the merits of judgments, decree; and orders rendered by
him or administrative orders or directions made in tbe bonafide exercise of bis
functions as an additional Judge. In the consideration of matters under clause
(1) of Article 217 there will be a somewhat varied approach. The difference, and H
inevitably there will be a difference because the process bas already been applied
earlier in the case of that person, will UQ i111!1e reduced emphasis with which the;
474 SUPREME COURT REPORTS [1982] 2 s.c.R.

A consider.ation will be exercised. Ordinarily, the presumption will be that a person
found suitable for appointment as an additional Judge continues to be suitable
for appointment as a permanent Judge. But circumstances may arise ar.d events
may take place meanwhile which bear adversely on the mental and physical
capacity, character and· integrity or other matters rendering it unwise to appoint
h_im as a permanent Judge. There mus!, however, be relevant and pertinent
B material before it can be said that such a person has forfeited the badge of
suitability for appointment .as a permanent Judge. There must be material which
sufficiently convinces the reasonable mind that the person is no longer suitable to
fill the li'igh office of a Judge. (1173 F-H, 1174 A·C]

G 6:14. It is difficult to define precisely the nature and quality of such
material. If I he reputation of the person is in doubt, the doubt must be rooted
in reasonable foundation. It must not be forgotten that ii is a case of a person
who has a right to be considered for appointment. It is a right to be considered
fairly. The exercise of arbitrary judgment· is clearly ruled out While such a
D person is not entitled as of right to be heard in regard 10 material discovered
against him, for the purpose of discharging responsibilities involved in the. pro-
cess of consultation the Chief Justice of the High Court and the Chief Justice of
India will find it desirable in their (!iscretion to ascertain from him whether there
is any substance in what has been conveyed to them. In doing so, the two judicial
functionaries will not be conceding a right of bearing to such a person. For a
F. right to be heard involves an enquiry of certain ·dimensions well known to the
law. In doing so, the two judicial functionaries will be acting within the scope
of their legitimate duty of giving advice to the President if for that purpose they
• acquaint themselves fully and truly, so far as they reasonably conceive it necessary,
to collect all available relevant information. Surely if it is open to them to gather
information from other sources there is no valid reason why they shquld exclude
F the one person who would be in personal possession of material concerning infor-
mation operating to his qetriment. But must will depend on the circumstances
of each case. What needs to be considered is that the constitutional duty to
tender advice necessarily involved the obligation of ensuring that the advice, in
the judgment of the functionary tendering it, is accurate· and proceeds on the
basis of reliable material. Whatever verification is possible, there is no doubt
G that recourse should be had to it. There can be no half measures, and in the
discharge of that constimtional duty the te~pose must be equal to the respotlsibi·
lity. A continuous process of consultation between all three autho1ities is manda·
ted, resulting ultimately in advice tendered to the President by the Chief Justice
of the High Court and the Chief Justice of India, (1174 C-H; 1175 A]
ff
S.P. GUPTA v. UNION 475
f
6:15. An additional Judge, however, is entitled to serve for the full period A
specified in his appointment, and can be removed only under Article 218 read
with clause (4) and clause (5) of Article 124. (1175 CD]

Per Venkataramiah; J.
B
l. A constitution of a country is a living document and cannot, there-
fore, be interpreted in a narrow pedantic sense. A broad and liberal spirit should
inspire those who are called upon to interpret the Constitution; They are not free
to stretch or pervert the language of the Constitution. The broad purposes and
the general scheme of every provision in the Constitution, its history, its objects C
and the result which it seeks to achieve should always be kept in view. Current

- usage and a priori reasoning should also be used as the tools of interpretation of
the constitutional provisions. [1222 G-H, 1223 A]

2:1. The petitioners, in the instant c'.lse, have a standing to file the peti- D
tions .. It is no doubt true that the power to fix the number of permanent Judges
0

to be appointed in each High Court is within the discretion of the President. But
\
that power is coupled with a duty which the President owes to the public "in gene-
/l ral and to the lawyers and litigants in particular. If at any given point of time
it is found that the nu~ber of Judges in a High Court is absolutely inadequate to
meet its requirements, the members of the Bar who are vitally interested in the E
administration of justice can file a petition before the High Court to compel the
Government to review the strength of the permanent Judges of that Court and to
appoint adequate number of Judges. The members of the Bar are not called
officers of courts only to impose obligations on them: they have certain rights

- too. Article 124 (3) (b), Article 217 (2) (b) and Article 233 (2) of the Constitution
specifieally state that the legal profession is a source of recruiiment of Judges of
the Supreme ~ourt, High Courts and District Courts. Entries 77 and 78 of List
I of the Seventh Schedule to the Constitution specifically refer to person entitled
F

to practise before the Supreme Court and the High Court. Section 29 of the
Advocates Act, 1961, provides that only one class of persons can practise the G
profession of law. namely, advocates. Members of the Bar have a vital stake in
the functioning of the judiciary. Members of the Bar and even litigants whose
cases have remained undisposed for a long number of ye'lirs on account of the
Government not appointing sufficient number of Judges can therefore file a peti-
tion demanding appointment of sufficie~t J:\U!llber of permanent Judges in High
ff,
-'f Courts, (1238 C-H]
476 SUPREME COURT REPORTS [ 1982) 2 s.c.R.

A 2:2. The power under Article 216 of the Constitution is an administra-
tive power which can be regulated in an appropriate way by the courts like any >-
other administrative power. It is not a matter of policy simpliciter. The ques-
tion of appointment of sufficient number of additional Judges unber Article 224
(1) of the Constitution for the required period having regard to the arrears or the
quantum of business in a High Court can also be agitat~d by lawyers and litigants.
B
It is true that the Court should not ordinarily issue a mandamus in such cases un-
less it is satisfied that there has been a gross deriliction of duty on the part of the
Government. That however is a point to be considered before granting or refus-
ing to grant the relief. But it cannot in any event be said that a petition filed
by lawyers for the above-said reliefs is liable to be dismissed at the thres!iold

c merely on the ground of locus standi. (1239 A-CJ

Gouriet v. Union of Post Office Workers, (1978) A.C. 435; Gouriet v. Union
of Post Office Workers & Ors., [1977] l All E.R. 696; Attorney-Ge11eral and
Attorney General ex rel. Mc. Whirler v. lndependent Broadcasting Authority [1971]
-
D 1 W.L.R. 1037 & (1973] Q.B. 629; R.V. Gotham (1898] 1 Q.B. 802 at 804; Ex
parte Stott [1916] 1 K.B. 7 at 9; Inland Revenue Commissioners v. National r
Federation of Self-Emp/Oyed and Small Businesses Ltd., (1981] 2 All E.R. 93;
Thorson v. Attorney General of Canada, [1974] 43 D.L.R. (3d) l; Godde Venkates-
wara Rao v. Government of Andhra Pradesh & Ors., [1966] 2 S.C.R. 172; Adi J...
Pherozshah Gandhi v. H.M. Serrvai, Advocate General of Maharashtra, Bombay,
E (1971] 1 S.C.R. 863; Attorney General of the Gambia v. Pierre, Sarr N' lie [1961].
A.C. 617; Bar Council of Maharashtra v. N.V. Dabholkar etc. etc., [1976) 1 S.C.R.
306; Jasbhai Motibhai Desai v. Roshan Kumar v. Haji Bashir Ahmed & Ors., [1976] »
3 S.C.R. 58; Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v. Union
of India & Ors., [1981] 2 S.C.R. 52 at pp. 65-66; Municipal Council, Rat/am v.
Shri Vardhichand & Or.1. [1981] 1 S.C.R. 97 at pp 99-100; Mumbai Kamgar Sabha,
F Bombay v. M/s. Addulbhai Faizullabhai & Ors., [1976] 3 S.C.R. 591 at pp 596-~97;
referred to. -
State of Gujarat & Anr. v. Sim' Amblca Mills Ltd., Ahmedabad etc., [1974)
G 3 S.C.R. 760; held inapplicable.

2:3. Lawyers only because they have right to practise in. a court cannot
be said to have locus standi to file petitions in respect of every matter concerning
H Judges, courts and administration of justice. The.re are many such matters· in
which they have no locus stan:li to a';k for relief. For example, lawyers cannot
question the establishment of a new court on th~ ~rouQd thiit their professoinal
S.P. GUPTA V. UNION 477
I

prospects would be affected thereby. Even in these cases on the question of non- A
appointment of Mr. S.N. Kumar and on the question of transfer of Mr. K.B.N.
Singh, the lawyer-petitioners may have no voice. But for the active participation
of these two persons, the writ petitions regarding reliefs concerning them indivi-
dually would have probably become liable to be dismissed on the ground that
lawyers have no locus standi to make these prayers. The question of locus standi
B
in the field of administrative law is still in a fluid state and it is not possible to lay
down in any one case the principles which can govern all situations.
[1244 C-F; G-H, 1245 A]

V.R. Mudvedkar & Ors. v. State of Mysore, A.I.R. 1971 Mysore 2020; C
approved.

- 3:1. Supreme Court cannot decline to go into the questions agitated in
the petitions on the ground that they are political questions or questions within
the exclusive domain ~f executive discretion. [1245 B-C]
D

3:2. In India which is also governed by a written Constitution many
I
questions which appear to haye a purely political colour are bound to assume the
/ character of judicial questions. .Therefore, the questions involved in these peti-
tions cannot be rejected as non-justiciable merely on the ground that they are
political in character. [1248 F-G] E

3:3. But it is made clear that the courts are not entitled to enquire into
every sort of question without any limitation. There is still a certain class of ques~
lions such as international relations, national security, which cannot be entertain-
ed by the Court. It is for the Court to ·determine in each case whether a parti- F
cular question should be debated before it or not. [1246 F-GJ

y
1 Baker v. Carr., 369 U.S. 186 : .7 Led 2d. 663; Powell v. Mc Cormack, 395
U.S. 486 : 23 L ed 2d. 49; quoted with approval.
G
.State of Rajasthan & Ors. etc. etc. v. Union of India etc. etc., [1978] I
S.C.R. 1; followed.

4. All the High Courts organically form integral parts of a sin.gle system H
although their territorial jurisdiction are defined. No High Court can claim any
superiority over the other either on the basis of its situation or on th~ l;>asis th!!I
478 SUPREME COURT REPORTS (1982) 2 S,C.R.

A it is a successor to a High Court which was functioning in any Province immedia-
y·
tely before the commencement. of the Constitution or on the basis of the extent
of its territorial jurisdiction. All the High Courts have the same status under the
Constitution. (1255 D-E]

B 5:1. The words prescribing the consultation machinery in Article 2i7 (1)
of the Constitution have to be construed in the context of the broad purposes and
the general scheme of that provision; its history, its object, and the result which
it seeks to achieve. It is equally necessary that the Court while construing a
constitutional provision should bear in mind that it is a part of the organic law
of the country and not just an ordinary piece of legislation. A High Court is the
C highest judicial authority in a State and is the Court of the last resort for the
majority of cases. Along with the Supreme Court at the apex, the High Courts
have to play the role of protectors of the rights and liberties of the people and, ....
should, therefore, be manned by independent and efficient Judges. Realising the
importance of the High Court in a democratic country with a federal form of
Government the constitution states that the Judges should be appointed after
D following the consultative machinery provided in Article 217 (1).
[1259 F-H 1260 Al

\
J<..c
Biswa11ath Khemka v. The King Emperor, [1945] F.C.R. 99; State of Uttar
Pradesh v. Manbodhan Lal Srivastava, [1958] S.C.R. 533 referred to.
E
.
5:2. An advocate who is left out of consideration '
cannot make a grievance
of it before a court of Jaw and claim that his case should be considered for such
appointment. The paramount public importance attached to the post prevents
institution of such action by a member of the Bar. From the nature of the provi-
F sions contained in Article 217 (1) of the Constitution, it is also clear that any
appointment made without following the procedure of consultation with the
authorities mentioned therein, which appears to be mandatory, would not· be
valid one. [1260 D-E]

G 5:3. From the scheme of the constitutional provisions, it appears that
each of the three functionaries mentioned in Article 217 (I) of the Constitution
who have to be consulted before a Judge of a High Court is appointed has a
distinct and separate role to play. The Chief Justice of the f!igh Court is the --.:
H most competent person to evaluate the merit and efficiency of a person recom-
mended for the judgeship. The Governor is the proper authority who through
the executive agency available to him may be able to report iibout the local posi-
s.P'. oui>TA v. uNroN 479
tion of the person proposed, bis character and integrity, bis affiliations, and the A
like, which have a considerable bearing on the working of the person proposed
for· appointment as a Judge. The Chief Justice of India is brought into the
picture to prevent any vagaries on the part of the Chief Justice of the High Court
who may be moved on occasions by petty considerations such as comrnunalism
and favouritism or who may even be capricious in proposing names 'bf persons
for judgeship. The Chief Justice of India will naturally be able to assess the
B
qualities of persons proposed having in view the standard of efficiency of Judges
in all the High Courts in India and also to prev_ent unsatisfactory appointments
being made on the basis of faulty recommendations made by the Chief Justice of
High Courts. The position of the Chief Justice of India under Article 217 (1),
however, is not that of an appellate authority or that of the highest administra- C
tive authority having the power to over rule the opinion of any other authority.
- From the specific roles attributed to each of them, which may to some extent be
overlapping also, it cannot be said that the Chief Justice of India bas been given
any position of primacy amongst tlie three persons who have to be consulted
under Article 217 (I) of the Constitution. Ther~ are no express-words conveying
that meaning. The President has to take into consideration the opinions of all of D
them and he should not accept the opinion of any of them only on the sole
principle of primacy. He has to take a decision on the question of appointment of
Judges of the Higli Courts oil the basis of all relevant materials before him.
[1261 F-H, 1262 A-C]

E
- 5:4. The power of appointment of a Judge of a High Court is an execu-
tive power. In principle an appointment under Article 217 (1) cannot be different
from an appointment under Article 234. [1265 C, 1268 C]

5:5. From clause (2) of Article 124, it is obvious that when the appoint- F
ment is to the post of the Chief.Justice of India, it is not obligatory on the part
of the President to consult any specified functionary. But he has to -consult such
of the Judges· of the Supreme Court each one of whom may himself be an aspi-
rant to the post and such other Judges of the High Courts he may consider neces-
sary. Io this situation, it is quite evident that the opinion of any one of the Judges
who may be consulted cannot be treated as binding on the President. The power
G
of appointment rests with the President who bas no doubt to take the decision on
the advice given by the Council of Ministers after making the necessary eonsulta-
·1 tion. When the 'primacy of judicial opinion' doctrine thus fails in the case of the
appointment of the Chief Justice of India, it would not be appropriate to hold H
that it prevails in the case of appointment of other Judges of the Supreme Court
and the Judges of the High Courts. [1269 E-H]
480 SUPRBME OOURT REPORTS. [I 982.l 2 s.c.l\.

A State of W~st Bengal v. Nripendra Nath Bagchi, [1966] 1 S.C:.R. 771
at pp. 789-790; Chandramouleshwar Prasad v. Patna High Court & Ors., [1970] 2 ··
S.C.R. 666; Shamsher Singh & Anr. v. State of Punjab, (1975] 1 S.C.R. 814;
referred to .

•
5:6. Under Article 217 (1) of the Constitution the President should,
B
· therefore, while making an appointment of a High Court Judge act on the advice
of his Council of Ministers having d_ue regard to the opinions expressed by the
functionaries mentioned therein after a full and effective consultation. There is no +
scope for holdin~ that either the Council of Ministers cannot advice the President
on this matter or that the opinion of the Chief Justice of India is binding on the
C President although such opinion should be given due respect and regard.
[1270 A-BJ
...
5:7. Merely because the power of appointment is with the executive, the
independence of the judiciary would not become impaired. The true principle
is that after such appointment the executive should have no scope to interference
D with the work of a Judge. The process of consultation prescribed by Article 217
(!) acts as a sufficient safeguard against the appointment of undesirable persons
as Judges of the High Courts. The independence of the judiciary bas not in any
way been impaired by reason of the President appointing Judges on the advice of
bis Council of Ministers after following the process of consultation prescribed in
E Article 217 (1). This method has been adopted so that the appointments of Judges
may have ultimately the sanction of the people whom the Council of Ministers re-
present in a Parliamentary form of Government. In that way only the Judges may
be called people's Judges. If the appointments of Judges are to be made on the
basis ~f the recommendations of Judges only then they will be Judges' Judges and
· such appointments may not fit into the scheme of popular democracy.
F [1270 C-D; 1273 D-H]

S:S. Article 217 of the Constitution does not say in terms that the pro- Y
posal for appointment of a person as Judge should be initiated by the Chief
Justice of the High Court. Under the scheme of Article 217 the power to appoint
G a Judge of a High Court is vested in the President. While he is bound to consult
the authorities mentioned therein and take into consideration their opinion, he
is not bound by their opinions. Ordinarily one does not expect the President to
make an appointment by ignoring all the adverse opinions expressed by the )
functionaries mentioned in Article 217. If there are,conflicting opinions the
.H President has to weigh them after giving due consideration to each of them and
s.P. GUPTA v. UNION 48i
take a decision on the question. In any event an advoca~e or a member of the A
Subordinate Judiciary whose name is approved by the Chief Justice of a High
Court and the Chief Justice of India does not get a vested right to be appointed
as a Judge of a High Court. In fact he has no justiciable right at all. If for any
reason he is not appointed he cannot move the Court to appoint him as Judge of
the High Court.. The position of an additional Judge who is currently holding
office and who is not reappointed stands on a slightly different footing. B
[1274 B·F]

•.
6:1. The two occasions when an additional Judge can be appointed
mentioned in Article 224 (1) of the Constitution are: (i) a temporary increase in
its business or (ii) accumulation of arrears of work in the High Court concerned. C
·Article 224 (1) is not, therefore, intended for meeting a situation where the work
- of the High Court is gradually on the increase requiring the appointment of more
number of permanent Judges. [1282 A-C]

6:2. Article 216 imposes a duty on the President to review the strength 0
of Judges in each High Court from ti'me to time and to increase the number of
Judges as and when it is necessary. [1288 C-D]

6:3. Article 224 (1) was never intended for appointing almost every Judge
first as an additional Judge and then as a permanent Judge. A Judge who is not E
assured of the office after the specified period and whose continuance in office is
subject to the will of any other authority generally does not inspire confidence in
the litigant public also. [1289 E-F, G-H, 1290 A]

F
Krlshan Gopal v. Shri Prakash Cl/andra & Ors., [1974] 2 S.C.R. 206; In re.
The Special Courts Biil, [1979] 2 S.C.R. 476; applied.

6:4. The present practice of appointing almost all the High Court Judges
initially under Article 224 (1) and later on as permanent Judges is not conducive
G
to the independen<;e of judiciary. The independence of the judiciary is one of the
central values on which our Constitution is based. No other constitutional
agency is shielded as are the superior courts in.our country with so many built-in
safeguards. Thf Judges can, if they choose to, be guided by the doctrine of
conscience only while discharging their duties. They are not expected to be under H
any kind of external pressure. They are circumscribed by 'expectations of neutra-
lity and impartiality' and by the traditions of the' legal profession which.is always
,,
482 SUPREME COURT REPORTS
' ~

[19821 2 s.c.k
' I
A keeping a watchful eye on every action of a Judge. In all countries where the
rule of law prevails and the power to adjudicate upon disputes between a man
and a man, a man and the State, a State and a State, and a State and the Centre,
is entrusted to a judicial bo~y, it is natural that such body should be assigned a
status free from capricious or whimsical interfenence from outside and the judges
who cpnstitute it should be granted a security of tenure that lifts them above the
B
fear of acting against. their·conscience. (1292 E-F, G-H, 1293 A-Bl

6:5. Ordinarily wherever there is a right there should ·~e a remedy, other- +
wise the right would be without meaning. On a fair construction of Article 224
C (1) of the Constitution which enables the President to appoint an additional
Judge for a period not exceeding two years and of Article 217 (1) of the Constitu-
tion which limits the tenure of a additional Judge appointed to the period speci-
fied under Article 224 (1), it is not possible to make a declaration that an addi-
tional Judge should be deemed to have been appointed as a permanent Judge on
-
the ground that ·when his appointment was made under Article 224 (1) it was
D necessary for the President to appoint a permanent Judge in view of the quantum
of work pendlng in the High Court concerned and not an additional Judge. The
warrant of appointment has to be construed in accordance with the unequivocal
language in which it is couched and nothing more can be read into it.. The cons-
titution does not confer any right upon an additional Judge to claim, as of right,
that he should be appointed again either as a permanent Judge or as an additio-
E nal Judge. There is no such enforceable right. A Court of law has no power to
give effect to any right not recognised by law. It is 'also not the function of a
court of justice to enforce or give effect to moral obligations which do not carry
with them legal or equitable rights. No court has a right to enforce what may
seem to be just, apart from the Constitution and the laws. [1296 H, 1297 A·E]
\

F
Terrell v. Secretary of State for the Colonies & Anr., [1953] 2 Q.B. 482;
quoted with approval.
f
6:6. Constitutional con~entions, understandings or practice therefore, .-
G constitute a source of constitutional law or binding rule of conduct though not
enforced by courts. Articles 74, 75, 77, 85 and 117 contain some of the British
constitutional conventions in a modified form. But apart from those conventions
which are incorporated in the Constitution, there may be some conventions which
are followed by those in office out of political necessity. The latter,iiowever are ,.._,.
H not capable of enforcement in court. The courts are not concerned with the
s.1>. out>T~ v. uNmN 483

constitutional practices' which are outside the Constitution.. It is, therefore, A
difficult to mak'e a declaration on the basis of any constitutional convention not
found in the Constitution that an additional Judge who was appointed after follow-
ing the. same procedure prescribed for appointment of a permanent Judge
should be deemed to have b.;;;n appointed as a permanent Judge because the
circumstances warranted the appointment of a permanent Judge at the time of his
B
app<;>intment, contrary to the express and unequivocal language of the warrant of
his appointment. [1301 D-F]

6:7. ,Since invariably an additional Judge has been appointed as a perma·
nent Judge, every member who is appointed as an additional Judge expects that c
he will be made permanent as and when a vacancy arises in the permanent
... strength. In addition to such settled e.xpectatioil on the part of the additional
Judge, even on the part of the Governmet there has always been reluctance to
send back an additional Judge to the Bar after the completion of his term speci-
fied under Article 224 (1) and to lose the services of a Judge with experience.
These. twin factors namely the expectation on the part ·of the additional Judge D
and the reluctance on the part or the Government distinguish the case of an addi-
tional Judge from the case of a new member who may be a competitor for the
_,. same post at the termination of the tenure of the additional Judge. Ordinarily
the additional Judge is continued in service as a Judge or as an additional Judge
unless there are any relevant circumstances which would outweigh! the above
.
"!
mentioned factors. In the absence of any cogent reasons for not appointing hi!D E
"f again the appointment of some body else in his place would be an unreasonabl~
or perverse act which entitles an additional Judge to move the Court for approp-
I\

r...
•I
riate relief in the peculiar circumstances in which Article 224 (!) is being operated
till now. [1304 G-H, 1305 B-D]

F
1( 6:8. The wide discretionary power of appointment exercisable by the
I
President in the public interest under Article 217 (1) is indicative of the absence
I ~
• of an obligation to act judicially. It is seen from the language of that Article .
-~-
that the Constitution has evinced an intention to exclude the operation of the rule
--'
of audi alteram partem. by conferring on the President lmfettered discretionary
power subject only to the prescribed procedure of consultation mentioned therein. G
Having regard to the high office to which appointment has to be made under
Article 217 (1) of the Constitution and lo the association of the high dignitaries
r who. have to be consulted before any such appointment is made the application of
principles of natural justice as of right is ruled out and non-compliance with such H
t principles woµId not vitiate the decision. But it may still be shown on the availa-
l ble material thilt there was no cogent reason for the decision. [1305 E-H, 1306 A]
'
484 SUPREME COURT REPORTS {1982] 2 S.C.R.
A 6:9. The Supreme Court, howev.er, is under a duty to do complete
justice when a matter comes before it. If the problem is a new one, a· new solu-
tion has to be evolved. A Judge who has cultivated assiduously a sense of right
and wrong sometimes may even depend upon ·his hunch while moulding the relief
to be granted in a given case. It is a part of the judging process. (1306 C-D]

B
Candler v. Crane, Christmas & Co., (1951] 2 K.B. 164; quoted with
approval. i
7:1. ~rticle 222 does not state in express terms that the. consent of the
Judge concerned is a pre-requisite for his transfer. It cannot be said that any
c transfer or shifting of a Judge without his consent would amount to a punishment
and would interfere with the independence of the Judge concerned or of the judi-
ciary. If the requirement of the consent of the Judge in question is read into
Article 222 then the power conferred on the President ceases to be a p,ower in the
-
jurisprudential sense. Powers are either iiublic or private. The former are those
which are vested in a person as an agent or instrument of the functions of the
State. If Article 222 is construed as ·requiring the consent of a Judge to be trans·
ferred then the power of the President can be neutralised by the Judge witholding
consent. Such a construction would virtually confer on an unwilling Judge an
immunity against the exercise of the power by the President under Article 222
even though public interest demands the transfer of the Judge. Article 222 would
in that case become almost in effective. That being so, such a construction has to
E be avoided. [1312 D, 1313 C-F]

Union of India v. Sakal Chand Sheth [1978] 1 SCR 423; V.B. Raju v.
State of Gujarat & Anr., [1981] 1SCR 613; referred to.
F
7:2. The Court while construing a statute has to read both the marginal
notes and the body of its provisions. Whether the mar~inal notes would be
useful to interpret the provisions and if so to what extent depends upon the
circumstances of eacli case. No settled principles applicable to all cases can be y
laid down in this fluctuating state of the law as to the degree of importance to be
attached to a marginal note in a statute. ·If the relevant provisions in the body
G of the statute firmly point towards a construction which would conflict with the
marginal note, the marginal note has to yield. If there is any ambiguity in the
meaning of the provisions in the body of the statute the marginal note may be
looke~ into as an aid to construction. [1323 D-F]

H Bhinka & Ors. v. Charan Singh, [1959] Supp. 2 SCR 798 at 809; Indian
Aluminium Co'mpany etc. v. Kera/a S~ate Electricity Board, [1976] I SCR 70 at
86-87 applied.
s.il. ouPTA v. tJNioN 485
7:3. The constitution has used the word 'appointment' and 'transfer' to A
convey two different senses, tlie first meaning the initial induction of a person
into a post and the latter meaning the shifting of a person from one post to ano-
ther equivalent post. If the Constituent Asse.mbly had thought that 'appointed'
and 'transferred' were interchangeable, there would have been no· need for the
amendment of Article 222 in the Revised Draft Constitution by substituting
'transferred' iii the place of 'appointed'. If in spite of this amendment, the Cons- B
tituent Assembly has allowed paragrah 11 (b) (iii) in the Second Schedule. to the
Constitution to remain as it is, it only means that it thought that the word 'trans-
fer; had been used there;n in a broad sense meaning a physical 'transfer' of the
Judges concerned which included both appointment to the Supreme Court and
transfer to another High Court and that is clear by the use of a common expres- C

-
sion 'transfer' in respect of both the events which following it in that clause. Any
other construction will run counter to Article 222 of the Constitution which is a
complete code on the topic of transfer of a High Court Judge. If transfer is a
fresh appointment, Article 217 (1) of the Constitution would immediately be
attracted and that provision contains an entirely different procedure of consulta-
tion from what is contained in Article 222. [1326 D-B, 1327 B-H, 1328 A] D

State of Bombay v. He'man Sant/al Alreja, AIR 1952 Bombay 16; held
in applicable.

7:4. An oath is taken by a Judge in order to show bis allegience to the E
'' Constitution and to affirm that he will faithfully discharge his duties as a Judge
without fear or favour, affection cir ill-will and that he will l!Phold the Constitu-
tion. The essential part of it is what he swears or affirms to do. The words
"having been appointed Chief Justice (or a Judge) of the High Court at (or of)"
... in the form of oath are only descriptive of the person who takes the oath. The
oath i~ not confined to the High Court where he enters his office. It will operate
F
as long as he discharges judicial duties either.in that HlSh Court or in any other
High Court to which he may be transferred under Article 222 of the Constitution
or even when he discharges any other duty which he may be requested to do by
the President as provided in paragraph 11 (b) (i) of the Second Schedule to the
Constitution. The oath binds him even after his. retirement where be is asked to G
function as a Judge under Art. 224A. [1329 C-F]

7:5. No fresh oath need be taken by a Judge who is transferred before
entering upon duties as a Judge in the High Court to which he is transferred si~ce
the oath already taken continues to bfod him and the transfer ls only traceable to
H
486 SUP.RilMil COURT REPORTS iI 982) 2 s.c.i.
A the status which he had acquired ·after taking the oath earlier in the Court to
which he was initially appointed: It is not correct to state that the effect of that
oath comes to an end because he vacates his post on his transfer. Since there is
no necessity for a fresh oath after his transfer, even though as a matter of abun-
dant caution the practice of taking fresh oath is prevailing now a days, it cannot
B be said that he is appointed afresh as a Judge in the Court to which he is trans-
ferred. [1331 F-H, 1332 A]

Hari Singh & Ors. v. Jai Singh & Ors. AIR 1937 A!l.588: (FB) referred to.

c 7:6. The transfer does not :esult in a fresh appointment. If it is a fresh
appointment in a new High Court with bis consent, payment of an additional
compensation under Article 222 (2) of the Constitution to the Judge who becotnes
a Judge of that High Court under an order of transfer under Article 222 (1) would
become anam.olous as the other Judges of that Court who are initially appointed
to that Court would be getting the usual salary, allowances and other perquisites
D allowable in the case of a High Court Judge. It is only when a Judge is trans- ·•
ferred in the public interest without bis volition it can be said that the payment
under Art. 222 (2) would not be discriminatory as then he would be belonging to
a different class. The payment under Article 222 (2) can be justified only by hol-
ding that the transfer under Article 222 (1) does not result in a fresh appointment·
in another High Court to which a Judge is transferred. [1332 B-D]
E

7:7. If a Judge who is transferred under Article 222 of the Constitution is
to be treated as having been appointed afresh in the High Court to which he is

F
transferred then he will have to' be assigned a rank below all the other judges who
were working in that Court before he was transferred. It is only if it is held that
he goes there as a person already appointed as a Judge though in another High
-
Court then he can reasonabiy be assigned seniority over others who were appoin-
ted after he was appointed initially as a High Court Judge. [1332 D-F] · y
~-

7:8. · A transfer under cla!!se (1) of Article 222 of the Constimtion could
G not ever have been considered to be a punishment in disguise, the transfer being
in the ·public interest. The transfer may not be on account of any conduct of a ·
Judge which is not relished by the transferring authority. It may be on account
of th~ public interest such as providing another High. Court with a competent
H Judge who is able to discharge his duties effectively in that court. Payment of
such compensatory allowance does not imply that a transfer involves an ele!I)ent
of punishment. Article 222 was not enacted by the Constituent Assembly as a
S.P. GUPTA V. UNION 487

measure of punishment to an erring Judge. It may be that when a Judge is trans· A
ferred in the public interest, he suffers. some i.nconvenience but such inconvenience
cannot be termed as a punishment. [1333 B~D)
•

7:9. An order of transfer made under Article 222 is liable to be struck
down by the Court if it is shown that it has been made for an extraneous reason, 8
that is, on a ground falling outside the scope of that Article. Under that Article
' ~-
a Judge can be. transferred when such transfer subserves public interest and the
' President "has no power to transfer a High Court Judge for reasons· not bearing
on public interest but arising out of whim, caprice, or fancy of the executive or
·its desire to bend a Judge to its own way of thinking." [1334 G-H, 1335 A)

• c
- Union of India v. Sakal Chand Sheth, [1978] 1 SCR 423; applied.

7:10. People accept the decision of a Judge not because his decision is
always coHect but because it is rendered by a person known for his wisdom,
integrity, character and impartiality. It is only on account of these qualities of a D
Judge, people have faith in the judiciary. The litigants naturally expect the presi-
ding officer of a Court to be a virtuous person. If there is a slight rumour which
would adversely affect his reputation, he ceases to command the respect of the
people. Even a correct judgment given by a Judge who is transferred would be
viewed with suspicion, if it is known that a Judge, whose character and E
conduct are not above reproach is liable ·to 'be transferred from. one High
Court to another High Court, even when his transfer is effected in the Pl!blic
interest and not on the ground of his character or conduct. Then, a Judge who
ls transferred cannot _command the respect of the·Bar and the people in the
State to which he is transferred when his moral personality stands destroyed by
the very act of transfer unless the order of transfer carries a postscript that he is F
not being trimsferred on any ground of misbehaviour or incapacity.
[1337H, 1338 A-D]

7:11 . A construction by reading down Article 222 as not conferring 'on
the President the power to transfer a Judge on the basis of untested allegations or
G
· rumours about acts of misbehaviour or incapacity of the Judge, would not merely
be in conformity with Article 218 and 124 (4) and but also would be consistent
with the independence of the judiciary. As the law now stands it is not open to
any single individual, whether it is the President or the Chief Justice of India or
anybody else to take cognizance of any allegations of misbehaviour or of incapa- H
city of a Judge and to take any legal action on their basis under the Judges
(Inquiry} Act, 1968. One hundre~ m~m~ers of the Lo~ Sabha or fifty Member~
488 SUPREME COURT REPORTS (1982] 2 s.C. ll.

A of the Rajya Sabha alone. can initiate any action on such allegations. Naturally,
all others are excluded from taking cognizance of them and acting on them. In
0
the absence of any categorisation of acts of misbehaviour or incapacity into diffe-
rent classes-like those on the basis of which Parliamentary proceedings for the
removal of a Judge may be initiated and those on the basis of which an order of
transfer under Article 222 of the Constitution can be passed, it would be incorrect
B to hold that a transfer of a Judge can be made under Article 222 on mere allega-
tions of misbehaviour or incapacity of a Judge. Article 218 and Article 124 (4)
and (5) of the Constitution make it clear that Article 222 cannot be resorted to in
any such case, and if it is utilised by the President in that way, the transfer would
· have to be set aside on the ground of excess of jurisdiction.
[1338 G-H, 1339 A·D]
c ..
7:12. When a transfer of a Judge cannot be made at all on the. ground of
allegations of misbehaviour or of incapacity and can only be made in the public
interest, the reputation of a transferred Judge would remain unsullied and no evil
-
D consequences would follow. A transfer made in the public interest in accordance
with Article 222 but without the consent of the Judge who is transferred is unas-
sailable. (1339 D, E, F]

7:13. The expression 'Judge' cannot be construed as not including a
E 'Chief Justice.' Otherwise anamolous results follow. (1339 G]

· To avoid-several anamolies, the reasonable way to construe the relevant
Articles of the Constitution is to interpret the word 'Judge' wherever it appears in
the .constitutjon as including the 'Chief Justice' also except where a particular
F provision expressly or by necessary implication distinguishes a Chief Justice from
a Judge. In all other places, the word 'Judge' should be considered as having·
been used in a generic sense. (1341 E-FJ

Article 222 _'!f the Constitution, therefore, applies to all Judges of High
Courts including a Chief Justice. Of course, a Chief Justice can only be trans-
G ferred as a Chief Justice of another High Court and not as a Judge. (1341 FJ

· 7:14. Ev_en where a transfer is made pursuant to a valid transfer policy,
each transfer should receive adequate consideration at the hands of the authori-
H ties concerned. All other relevant matters in relation to the Judge who is propo-
sed to be transferred pursuant to the policy should be considered before ordering
!iis transfer. If on such consideration it is found that he should not be transferred,
S.P. GUPTA v. UNION 489
the proposal should he given up and the question of transferring another Judge A
in furtherance of the policy may be taken up for consideration. By doing so the
policy remains unaffected and the public interest to be served by the policy also
would not suffer. [1352 A·C]

7:15. Therefore, and also in view of the opm1ons expressed by several B
expert bodies an~ transfer of a Judge of a High Court under Arttt:le 222 .of the
Constitution in order to implement the policy of appointing the Chief Justice of
every High Court from outside the State concerned and of having at least Ol)e·
third of the Judges of every High Court from outside the State, of course, after
consultation witb the Chief Justice of India would not be unconstitutional.
[1352 B·F] c

- 8:1. The tendency in all the democratic countries in recent times is to
liberalise the restrictions placed on the right of the citizens to know what is
happening in the various public offices. The.emphasis now is more on the right
of a citizen to know, than on his 'need to know' the contents of official D
documents. [1376 E-F]

Duncan & Anr. v. Cammell, Laird & Company Ltd., [1942] AC 624;
Robinson v. State of South Australia, JO 2 [1931] AC 704; Merricks v. Nott-Bower,
[1964] 1 All ER 717; Re Grosvener Hotel, London (No. 2) [1964] 3 All ER 354;
Wednesbury Corporation v. Ministry of Housing & Local Government, [1965] l E
All ER 186; Conway v. Rimmer, [1967] 2 All ER 1260; Conway v. Rimmer [1968]
I All ER 874; (HL); Rogers v. Home Secretary, [1973] AC · 388; Burmah Oil Co.
Ltd. v. Bank of England, [1979] 3 All ER 700; Science Research Council v. Nasse,
[1980) AC 1028; Sankey v. Whit/am & Ors., 21 ALR 505; Regina v. Snider [1954]
4 DLR 483 at p. 489; Marb~ry v. Madison 5 US 137; United States v. Burr, 25
·Fed. Cas. 187; (No. 14694) Cir. Ct. Va. 1807; State of Punjab v. Sodhi Sukhdev F
Singh, [1961) 2 SCR 371; State of U.P. v. Raj Narain & Ors., [1975] 3 SCR 333;
discussed:

8:2. The documents which included the correspondence between the

-
'(

Chief Justice of the High Court of Delhi, ihe Chief J.ustice of India and the
-- Minister of Law and Justice and some official notings pertaining to the question G
of appointment of Shri S.N. Kumar as a Judge of the Delhi High Court, had no
concern with either the security of the State or with the diplomatic relations bet-
ween' our country and any foreign country. They no doubt related to a 'high
level' appoir:.tment, but that fact by itself was not s~fficient in the circumstances
of the case to prevent the Court from directi.ng the Government to produce the H
docµments for its inspection before deciding the question of discovery.
-. - . , . . . · .
.
[1387-G-H, 1388 A-BJ
. . - ~
490 SUPREME COURT REPORTS (1982} 2·S.C.R.

A 8:3. The documents in question were 'high level' documents relating to
the appointment of a Judge of a High Court and any order to be made on the
question of disclosure had to be made after considering the pros and cons of all
relevant matters, like, whether their disclosure would create or fan · ill-informed
or {;aptious, public or political criticism or whether the business of the Govern-
ment would be exposed to.the gaze of those ready to criticise without adequate
knowledge of the backgrOU!Jd or perhaps those who have some axe to grind;
B and whether the disclosure would lead to any other further consequence of any
body taking any further action on the basis of these documents. The Court must
·strike a balance between the public interest in the proper functioning of the pub-
lic service and the public interest in the adminisiration of justice.
[1388 C-D, F-G]

c Riddick v. Thames Board Mills Ltd., [1977] 3 WLR 63; referred to.

8:4. Ours is an open society which has a government of the people,
which has to be run according to the Constitution and the laws. The expression
'affairs of State' should, therefore, receive a very narrow meaning. Any claim
for interpreting it with a wider connotation may expose section 123 of the
-
Evidence Act to l:e challenged as being unconstitutional. An additional .iudge
who was not reappointed could move the Court for .a direction to the Govern-
D ment to consider the question of his reappointment in a fair way. Here, the issue
involved the performance of a duty which was judicially .identified and its breach
was capable of judicial determination. and that it was possible to grant relief,
though in a limited way,"if circumstances warranted it. Considering the contP.n-
tions of the parties against the background of the facts .and the important ques-
tions of constitutional law and their application involved in this case, a decision
not to direct disclosure of the documents·would result in graver public prejudice
E than the decision to direct such disclosure and that the public interest involved in
the administration of justice should prevail over the public interest of the public
service in the peculiar circumstances of case •. [1389 F-G, 1390 C-E]

..
9:1. Article 217 (1) of the Constitution which empo'wers the President to
appoint Judges of High Courts does not make any distinction between the tests
F that should be applied in the case of appointment of a permanent Judge and the
tests to be applied in the case of the appointment of an additional 'Judge, as to
the fitness of the person to be appointed. The same tests have to be applied even
when a person who has already been appointed as an additional Judge y

G
is to be considered for appointment as a permanent Judge or for appoint-
ment as an additional Judge for another period although an additional
Judge has two factors in his favour which have to be taken into consideration by
the appolnting authority in the context of the manner in which Article 224 of the
-
Constitution has been operated all these days. Since the appointment in question
is to the post of a Judge, questions of integrity and of character of th~ person
proposed for the post do assume large importance in taking a decision. The
appointing aµthority cannot merely act on mere absence of evidence of lack of
integrity or character of the person concerned. The appointing authority should
H on the other hand feel positively assured about the integrity and good character
of such person. Having regard to the importance of the office of a Judge of a
Jii~h Court, the constitµtional and Iei:al immunities that a Judge enjoys and the ·
S.P. GUPTA V, UNION 491
need· for infusing confidence .in the mind of the people who approach courts
seeking impartical justice, the appointing authority has to take sometimes hard
A
i decisions and it is likely that in that process some person who is really honest
may not be appointed on account of some doubt expressed by one or. the other
amongst the functionaries who have to be consulted under Article 217 (l) of the
Constitution or on account of some other relevant material that may be available
to the appointing authority. Hence if a person i$ not appointed as a Judge after
the usual process of consultation is over it do~s not necessarily mean that in fact B
he lacks integrity or character. [1390 H, 1391 A-Fl ·

9:2. Conspiracy presupposes the existence of a voluntary combination of
two or more persons to achieve some unlawful object or to bring about some
result injurious to some other person or persons. If there were only two in a
given case and one of them had exerted pressure .on the ·Other to secure some
information it would not be a case of conspiracy but a case of extortion of some · C
information by one from the other. [1393 B-D]

- 9:3. There is no allegation in the case that either the Chief Justice of the
Delhi High Court or the Law Minister had any personal ill-will against Sbri S N.
Kumar. There is no allegation also to the effect' that the Chief Justice of the
Delhi High Court had anything to gain by colluding with the Law Minister. · 'He
had been appointed as the Chief Justice of the Delhi High Court before February D
19, 1981 on which date he wrote the first letter expre.ssing his opinion against the
reappointment of Shri S.N. Kumar. Further the Chief Justice of the Delhi High
Court is not impleaded as a respondent in the case. It is wholly improper and
opposed to all canons of judicial process to make any comment against him with-
out giving him an opportunity to defend himself. Under the Constitution, he is
under a duty to express his opinion en the question of appointment ofa Judge in
the High Court of Delhi. Such opinion should be about all relevant aspects E
includin1; the reputation and integrity of the person concerned. Jn discharge of
his constitutional obligation, the Chief Justice of the Delhi High Court wrote to
the Law Minister on February 19, 1981. [1393 E~H] ·

.. · 9:4. A reading of the aforesaid letter shows that it was being written in
anguish and with a feeling of sincerity. It is not shown that the Chief Justice of
the Delhi High Court had made any statement which was false to his knowledge-,
or which he did not believe to be true or which he believed to be untrue. A
F

Chief Justice of a High Court has no machinery to investigate into complaints
but be has got to state about the fitness of the person to be appointed as a Judge.
It. is seen that he has relied on the statement of some of his colleagues and some
of the members of the Bar. He has no doubt not given their names, having
regard to the constraints of law which applies to persons who make such state- G
ments. It is significant that even the Chief Justice of India has not given the
names of Judges and of lawyers who were consulted by him as stated in his letter
dated May 22, 1981. There is no reason to disbelieve the statement of the' Chief
Justice of the Delhi High Court that he had heard some statements whichr sugges-
teo that the integrity of Shri S.N. Kumar was in doubt. The said statement may
be in fact not true. The Supreme Court cannot go into the correctness or other- H
wise of those statements in proceeding of this character. It is not shown that
the Chief Justice of the Delhi High <;:ourt bad not heard such statements at all.
492 SUPREME COURT REPORTS [1982) 2 s.c.R.

A In this situation if the Chief Justice of the Delhi High Court had conveyed what-
ever he had heard and had not recommended continuance of Shri S.N. Kumar he t
cannot be considered as having committed any act of impropriety even though
Shri Kumar had not in fact done anything which was improper as a Judge. If
Shri Kumar is a victim of false rumour he deserves sympathy but it is not open
to condemn the action of the Chief Justice of the Delhi High Court which he had
to discharge in the public interest' and true to his oath of office.
B - -[1395 D-H, 1396 A]

9:5. In the case of the High Court of Delhi which is situated in the Union
Territory of Delhi, consultation with the Governor does not arise (vide section 4
of the Delhi High Court Act, 1966). The only two authorities who have to be
consulted by the President are the Chief Justice of the Delhi High Court and the
Chief Justice of India. The process of consultation referred to in Article 217 (1)
c requires that the authorities concerned should be given sufficient information and
also sufficient opportunity to furnish their opinion. In the instant case letter
dated February 19, 1981 written by the Chief Justice of the Delhi High Court
was made available to the Chief Justice of India. [1396 B·D]

9:6. That there was full and frank discussion between the Chief Justice
D of India and the Delhi Chief Justice with reference to the very particulars referred
to in the letter of May 7, 1981 is clear by the following facts : (i) Tho statement
"with regard to the complaints about Justice Kumar's integrity and general con- ·
duct, the matter has already been discussed between us" which is found in the
letter of March 28, 1981 written by the Delhi Chief Justice to the Chief Justice of
India, (ii) the reference to the meeting in the letter of the same date addressed by
the Delhi Chief Justice to the Law Minister enclosing a copy of the above said
E letter dated March 28, 1981, (iii) the reference to the meeting in the letter of the
Law Minister to the Chief Justice of India dated May 21, 1981 and (iv) the refe-
rence to the meeting in the letter of the Chief Justice of India dated May 22, 1981
written from Simla. This is further supported by the affidavit dated July 17, 1981
of Shri S.N. Kumar himself which had been filed long before the date on which
documents in question were directed to be disclosed by the Court i.e. in October

F
1981. That means that the Chief Justice of India had been furnished all the
particulars by the Delhi Chief Justice earlier at the meeting which took place on
March 26, 1981 and the Chief Justice of India had also the explanation of Shri
S.N. Kumar. Sufficient information was available with the Chief Ju.stice ofJndia
to record his opinion on the question of appointment of Shri S.N. Kumar and no
material of ~ny substantial importance had been kept back from the knowledge
-
of the Chief Justice of India. It cannot, therefore, be said that· the process of
consultation had become defective or that Shri S.N. Kumar had been prejudiced
G by reason of the Government keeping back the letter dated May 7, 1981 from the
knowledge of the Chief Justice of India out of respect to the wishes of the Chief
Justice of the Delhi High Court. [1418 C-F, 1420 C-H]
.
9:7. There does not appear to be any undue haste or impropriety on the
part of the Law Minister in making his recommendation ·not to appoint Shri
H Kumar on May 27, 1981 for two reasons : (1) that the Government had to take a
decision on that'.question on or before May 27, 1981 as directed by the interim
orderLof the 1 Suprem~;eourt and (2) tht1t th~ Law Minist~r IJad_ expressly kept out

..
,,, \ ., !

S.P. GUPTA v._UNION
1
I
.
493
of consideration the I.B. reports while taking his decision, as can be:seen from A
the note of May 27, 1981 on which alone the Chief Justice of India had reserved
his opinion in his letter dated May 22, 1981 which showed that on the other ques-
tions he had finally_ expressed his opinion. The granting of extension to a Judge
pending enquiry into a materil!l aspect of the case may not strictly be in conso-
nance with the Constitution. It may be irregular to issue a warrant of appoint-
ment pending inquiry into tbe fitness of.the person to be appointed as a Judge.
Hence it cannot be said that there was any transgression of ordinary rules of B
official conduct on the part of the Government in finally processing the file by
May 27, 1981. [1421 F-H, 1422A]

9:8. The 'President has taken bis decision on a consideration of the mate-
rial before him and in doing so he is not shown to have relied on any irrelevant
ground. He is not, however, bound by the opinion of any of them although he
is expected to give due regard to the opinions expressed by them. The President
c
in the instant case has, out of prudence decided not to reappoint Shri S.N.
Kumar as the opinions of the two constitutional dignitaries were conflicting on
the question of integrity, a question vital to the appointment of a Judge. There
is no constitutional impropriety in the !lecision of the President. The reason for
reappointing Sbri Kumar is not an irrelevant one. Moreover there is a distinc-
tion between the appointment of a Judge without proper and effective consulta-
tion as required by Article 217 (1) and non-appointment of a person as a Judge
D
preceded by defective oonsultation. la the former case, the validity of the appoint-
ment may be open to question but in the latter case ordinarily no petition will lie
except under an extraordinary case like the one here where the scope of Article
224 of the Constitution was not correctly understood by the authorities. Every one
of the authorities viz. the Law Minister, the Chief Justice of India and the Chief
Justice of the Delhi High Court has discharged his duties in this case with a sense
of responsibility. [1422 B-F] E
9:9. But unfortunately the Court cannot undertake the function of gran-
ting an opportunity to the Judge to prove his ianocenc: in view of the restricted
scope of the jurisdiction of this Court in ihis. case. The Court, cannot proceed
further in this case and try to find out the truth or otherwise of the complaints
said to have been made against Shri S.N. Kumar. It is true that if the complaints
are really untrue, then Sbri Kumar bas paid the penalty for no fault committed F
by him. The deeision of the President not to appoint Shri S.N. Kumar as an
additional Judge of the High Court of Delhi cannot, however be interfered with.
[1422 H, 1423 C·E]

10:1. If as a matter of policy the Government proposes to appoint some
Judges in every High Court from outside the State, it is a matter within the realm G
of the Government, It is not constitutionally impermissible to do so. [1429 C]

10:2. The Reports of the Committees of the Law Commission are entit-
led to great respect as they are prepared by experienced person after taking into
consideration all relevant aspects and sometimes the evidence collected by them
from several sources. If they are. to be excluded many opinions expressed in many H
of the books relied on by the petitioners themselves have to be excluded. Reports
of the Law Commission can be looked into to ~nderstand the history of the legis-
494 SUPREMll COURT REPORTS [1982] :i s.c.R..

A lation, the object with which certain legal provisions are enacted and what advan-
tages m'ay be derived by adopting a particular policy. Reports of the Law Com-
mission have been made use of by this Court earlier to understand the history of
the legislation which was under consideration and the object with which it was
passe~. [1429 F-H]

B Bala~hand Jain v. State of Madhya Pradesh, [1977] 2 SCR 52; followed,

10;3. In the context of Article 217, the functionaries who have to express
opinion under that Article can ascertain all relevant information about a person
proposed for the appointment by any reasonable means and thel'. need not know
them personally. ·Any other view would result in the exclusion of a large body
of lawyers who are not practising before the High Courts from consideration for
c appointment as High Court Judges, which certainly could not have been the
intention of the Constitution makers. (!430 C-D]

i0:4. The letter dated March 18, 1981 cannot be an indirect attempt to.
transfer some additional Judges from one High Court to another, for the reason
that the transfer bf an additional Judge (appointed under Article 224 (1) unless
D the arrears have been cleared off) and the transfer of an acting Judge (appointed
unde~ Article 224 (2) (in any event would not be possible at all. An additional
Judge is appointed for a term not. exceeding two years only with a view to clear-
ing off the arrears in a High Court. If tl)at is the sole object of appointing him,
he cannot be transferred as an additional Judge in the public interest from that
Court to another Court unless the purpose for which be is appointed is achieved
namely, clearing off the arrears. Moreover when bis stay as an additional Judge
E is very short it would not subserve the interest of efficiency of public service if be
is made to work in more than one High Court during that short period unless
there isnot sufficient work to be assigned to him in the High Court in 'which he
is initially appointed as an additional Judge. The case of an acting Judge appoint-
ed under Article 224 (2) of the Constitution is a self-evident one. An acting
Judge is appointed to act as· a Judge until the permanent Judge in whose place he
F is appointed bas resumed his office. He cannot, therefore, be transferred under
Article 222 contrary to the .express terms of Article 224 (2)., In view of this decla-
ration the petitioners cannot entertain any suspicion that the circular lett.er has
been issued to achieve the object of transferring additional Judges, during their
tenure fixed under .Article 224 (1). This, however, does not come in the way of
an additional Judge or an.acting Judge being appointed as a permanent Judge
either in ·bis own High Court or in any other High· Court before the tenure
G specified under Article 224 (I) or Article 224 (2), ·as the case may be, comes to
an end. [1430.E-H, 1431 A-CJ

10:5. The circular letter of the Law Minister does not suggest that the
additional Judges who have not given their consent would be under a disadvan-
tage in the matter of their continuance as additional Judges or of their appoint-
H ment as permanent Judges in their own Court The portion in paragraph 3 of the
letfer, namely, 'it may be made clear to them that the furnishing of the consent or
the indication of a preference does not imply any commitment on the part of
S.l'. GUPTA v. UNION 495

Government either in regard to their appointment or in regard to .accoll)moda- A
tion in accordance with the preference given' does not carry with it any sinister
design. [1431 C-F]

10:6. The circular letter is not violative of Artide 217 (I) and Article 222
of the .Constitution on the ground that it bad been addressed without the previous
consultation of the Chief Justice of India. The letter as can be seen from its tenor B
is intended to find out whether any additional Judge is willing to be· appointed as
a Judge in any other Higli Court. Such appointment has to be made only in
accordance with Article 21T(1) of the Constitution. Before making such appoint-
ment, the President has to consult all the functionaries mentioned in Article 217
(1) including the Chief Justice of India. Article 222 of the Constitution does not
·come into picture at all as no transfer is contemplated under the letter. Th.e
letter relates to initial appointments only. In the circumstances there is no error c
-
commited by the Law Minister in writing the impugned letter to the Chief
Ministers. [1431 G-H, 1432 A-BJ

11:1. The order transferring Shri K.B.N. Singh to Madras High Court
is an administrative order which is passed by the President in accordance with the
opinion expressed by the Chief Justice of India, who is the sole authority to be
consulted under Article 222. [1432 E] D
11 :2. Article 222 does not Jay down the procedure to be followed for
effecting a transfer. Even granting that the proceedings for transfer of a Judge
are initiated.by the Chief Justice of India the order of transfer would not be bad
as under Article 217 (1) of the Constitution which is couched in almost the same
languages, an appointment of a Judge would not be bad only because the (jhief E
Justice of a High Court who is one of the authorities to be consulted initiate~ the
proposal. In fact the practice has been that the Chief Justice of the High Cc;iurt
invariably initiates it. [1432 G-HJ

- ll:3. A fair reading of the letter of the Chief Justice of India dated
-December 7, 1980 shows that there was prior discussion about the question of .
transfers of Chief Justices of High Courts and that there was a suggestion by the
Government that there should be a transfer of all Chief Justices of High .Courts
F
a
so ·that in every High Court there. was Chief Justice .. who hailed from out~ide
the State. This.suggestion sterns from the proposed policy of the Government
whiCh is clear from the statement of the Law Minister in the Lok Sabha on
July 24, 1980. [1433 B-D] ,

G
11 :4. There is no doubt that a policy decision should ultimately be
applicable to all High Courts. ·But it can be applied by stages. A policy or for
that matter a law may have to be.applied by stages in different areas 11nd in the
case of different institutions or bodies by reason of administrative cornpulsions
and such application cannot be considered as either arbitra~y or capricious or
unconstitutional. Some times the application of a policy of a law in all areas'or H
in respect of all institutions to which it is ultimately intended to apply simultane-
ously may defeat the very policy or Jaw, even though it may be otherwise benefi-
496 sui>RilME COURT REPORTS [19821 2 s.c.it.
A cial. Moreover a policy is not something which should take the form of a formal
statute or a written code. It can be gathered from a course of action or conduct
and it can take its birth when the fint step is taken in its direction.
[1436 F-H, 1437A]
'
11:5. The question of policy is a matter entirely for the ~es.ident to
decide. Even though the Chief Justice of India is consulted in that behalf by the
President since the policy relates to the High Courts, his -opinion is not binding on
the President. It is open to the President to adopt any policy which is subject
only to the judicial review by the Court. Under Article 222 of the Constitution
the Chief Justice of India has to be consulted on the question whether a particular
Judge should be transferred and where he should be transferred while implcmen-
0 ting the said policy. If the Government requests the Chief Justice of India to give
his opinion on a transfer to implement the said policy which is really in the public
interest he cannot decline to do so. Even though the Chief Justice was opposed to
the 'wholesale transfers' of Judges there is no bar for the Government treating the
-
recommendation for transfers made by the Chief Justice of l!ldia as a part of the
implementation of its policy. [1437 !I-BJ
D
11:6. The policy of having the Chief Justice in every High Court from
outside the State is not unconstitutional and it could be achieved by resorting to· "--
Article 222 of the Constitution. The transfer ordered pursuant to that policy
cannot, therefore, be considered as either discriminatory or not being in the
E public interest. In fact such transfers are in the public interest. Here, the Chief
Justice of India had never formed an opinion that there was any error committed
by Shri K.B.N. Singh. Hence there can be no basis for the apprehension in the
mind of Shri K.B.N. Singh that the transfer was being used as a measure of puni-

F
shment in his case. If it had been a selective transfer ordered without regard to
the public interest it would have been unconstitutional. But this is not such a
transfer. The order docs not attach an stigma to Shri K.B.N. Singh. It is a bona-.
fide one made in implementation of a perfectly valid policy which may be imple-
-
mented in instalments. [1437 H, 1438 G-HJ

11:7. The expression 'President" should be understood here in the
...
consti\utional sense. The discussion must have taken place with the Minister
G concerned. A discussion in fact did take place after Shri K.B.N. Singh met the
Chief Justiee -of India on the evening of-January 8, 1981. From the records
produced, it is seen that discussion gone on between the authorities concerned
sometimes over telephone and sometimes at a meeting. No minutes are kept of
H many such discussions. It cannot, therefore, be said that either there was no time
to discuss or no such discussion had taken place at all. It has to be borne in mind
that the Chief Justice of India asked Shri K.B.N. Singh to meet hini at New Delhi
S.P. GUPTA v. UNION 496-A

·to discuss the matter further and accordingly Shri K.B.N. Singh met him oti A
January 8, 1981. If the Chief Justice of India had-felt that any repressentation to
be'made by Shri K.B.N. Singh was irrelevant he would not have called him for
discussion at New Delhi. After discussing the matter with him he must have dis-
cussed the ll;!atter before the decision was taken on January 9, 1981 with· the other·
authority concerned. In the course of the discussion referred to above all matters
B
which had come te the knowledge of the Chief Justice of India· must have been
placed before the person with whom the discussion .had taken place. All official
r acts must deemed to have been done in 11ccordance with law. [1443 B-FJ

.1

11:8. The question of policy is within the realm of the Government.
Therefore, even if the Chief Justice of India consider~d that the recommendation
c

- made by him was one of six or seven transfers suggested by him which would mean •
for the time being a partial implementation of the. policy, it cannot be said that
the transfer of Shri K.B.N. Singh is bad for all aspects relating to Shri K.B.N.
Singh were considered by the appropriate authority before ordering the transfer.
(1443 H, 1444 A-B]
D
11 :9. Article 222 of the Constitution is not confi!1ed only to policy transfer
involving all Judges. Even individual Judges may be transferred for administra-
·"' tive reasons in the public interest. In the circumstances_ of the case, it is
difficult to hold that the transfer was an act of victimisation. [1444 C-D]

11:10. The decision to transfer a Judge under Article 222 of the Consti- E
tution, is an administrative one. In this case it is not alleged that there was mala
tides on the part of any authority. On the other hand the material available i~
the case clearly es_tablishes that due proceC!ure had been followed and all facts

-
that justify the transfer have been affirmatively proved. It is shown that the
authorities concerned felt satisfied about the need for the transfer. On the facts
F
and in the circumstances of the case the order of transfer of Shri K.B.N. Singh
as the Chief Justice of the High Court of Madras is legal. [1444 E, 144~5 A-C]

l E.P. Royappa v. State a/Tamil Nadu & Anr. [1974] 2 S.C.R. 348 at p. 390
referred to'.

Barium Chemicals Ltd.' & Anr. v. The Company Law Board & Ors., [1966] G
Suppl S.C.R. 31 l; Rohtas Industries Ltd. v. S./J. Agarwal & Anr. [1969] 3 S.C.R.
108 held not relevant.

12:1. If it is the constitutional or statutory duty of a Governor or the
President to exercise his discretion with respect to a certain matter he may be H
required by mandamus to do so but the manner in which he has ·to discharge
that dut.Y canl)oi 9e directed by the <;O\Jf!~. A statutory discretion is not nece~·
496B SUPREME COURT REPORTS [1982] 2 S.C.R.
A sarily or indeed usualy absolute and it may be qualified by express and implied
legal duties to comply with substantive and procedural requirements before a
decision is taken, whether to ·act and how to act. [1451 B-D]

R. Tithe Com71issioners case, [1849] 14 Q.B. 459 at 474; Julius v. Bishop of
B Oxford, [1880]·5 A. C. 214 at pp 222-223; Paidfield & Ors. v. Minister of Agri-
culture Fisheries and Food & Ors., [1968] I AU E.R. 694; Breen v. Amalgamated
E~[fineerin[! Union [1971] 2 Q.B. 175 at 190, referred to,

'
12:2. The power conferred on the President by Article 216.ofthe Consti-
c tution to appoint sufficient number' of Ju<lges is a power coupled with a duty and
is not merely a political function. In the instant case ordinari.ly the court would
have been reluctant to issue any mandamus to the Government to con:iply with
the duty of determination of the strength of Judges of High Courts. B'ut having
regard to the undisputed total inadequacy of the strength of Judges in many High
Courts, ii appears to be inevitable that the Union Government should be directed
to determine within a reasonable time the strength of permanent Judges recorded
-
for the .disposal of cases instituted in them and to take steps to fi!l up the vacan-
D cies after making such determination. [1451 D-F)

It is true that the Judges of the High Courts and the Supreme Court
hold their tenure not at the pleasure of the President but till they atlain
the prescribed age of retirement; that their removal is po~sible only after follow-
E ing an elaborate procedure; that their salaries and allowances and pension
are charged on the consolidated funds of the States qr of the Union; that no
discussion can take place in the legislatures with respect to their conduct in .the
discharge of their duties except on the motion for their removal that they have the
power to punish a person for contempt of court and they are proteckd by a host

-
of other provisions of Jaw which are intended to make them feel and to remain
independent of any external agency such as the executive. These, as far as they
F go, are necessary for ensuring the lnd'ependcnce of the judiciary. But if the
judiciary should be really independent something more is necessary and that we
have to seek in the Judge himself and not outside. A Judge should be inaepen-
dent of himself, A Judge is a human being who is- a bundle of passions and
prejudices, likes and dislikes, affection and ill-will, hatred and contempt and fear 1
and recklessness. In order to be successful Judge these elements· should be
curbed and kept under restraint and that is possible only by education, training,
G continued practice and cultivation of a sense of humility r..nd dedication to duty.
These curbs can neither be bought in the market nor injected into human system
by the written or unwritten laws. In these things are there even if any of the
protective measures provided by the Constitution and the laws go the indepen-

H
dence of the judiciary will .not suffer. B,ut with all these measures being· there
still a Judge may not be independent. It ;s the inner strength of Judges alone
that can save the judiciary. .The life of a Judge does not really call for great
" .

acts of self-sacrifice: but it does insist upon sm:ill acts of self-denial almost every
~ar. (1453 G-H, 1454 A·E]
S.P. GUPTA v. UNION 497
ORIGINAL JURISDICTION : Transferred Case Nos. 19, 20, 21, A
22, 2, 6~ and 24 of 1981.
{l\Jnder_Article, l39A (l) of1 the Constitution of India)

AND
/
WRfT PETITION NO. 2'74 OF 198•1 B
(,Under Article 32 o( the Constitution o( Indiai)

AND

SPECIAL LEAVB PETITION (CIVtL) NO. 1509' OF 19'81
c
From the judgment and order dated the 2nd February 1981 of
the Patna High Court in CWJC No. 312/81.
1 . In Transferred Cases Nos. 19, 20, 21 & 22/81-
S.P: Gupta-Petitioner in person - and H.K. Puri in T.C. D
No. 19/81.

Soli J. Sorabjee, P. H. Parekh and Miss M'anik Tarkunde for-
'JI, the Petitioner in T.C. No. 20/81.
P.P. Rao, G.C. Kumar, R. Venkatar,amani, Mahesh R'. Choudhary
and G.D. G~pta for the Petitioner in T.C. No. 21/81.

, H.M. Seer,vai, K.C. Cooper, A.J. Rana, J:.R. Gagrat, B.R'. Agur- /

wal, P.G. Gokha/e for the petitioner in T.C. 22/81.
Lal Narain Sinha, Attorney General, K. Prasaran, Solic;itc>r
General, Vepa P. S'arthi, P.R. Mriduf, f(.R-. Sarthy, G.S. Narayana,
R.N. Poddar and Miss A. Subhashini for th((· Respondents in t.c.
19~22/81.· '

R.K. Garg, B. V. l)esai and S.[(.. .Jain (or Respondent No. 3 in
T.C. No. 20/8J.

ln. W.P. N.o. 274/81- G

Miss. Lily Thomµs~Peti,tioner in person a,nd: Mr. H.M.
Seervai.
L.N. Sinha, Attorney General, K; Parasaran, Solicitor General H
K.S. Gurumoorthy, Miss A. Subhashini and R.N. Poddar for Respon-
dent No. 1.
498 SUPREME ·douR'f REPORTS

A s. Marka~deyafor Respondent No. 2. ':.

L.M. ~inghyi, S.K. Verma, S.K. Sinha . and A.M. S!nghvi for
Responderif'No. 3. '· ' · · ' .·
. \:; .
Dr. L;M. Singhvi,
,) •• s .
S.K. . Verma• ,and N. 'Sudhakaran for the
~ i

B intervenor- Kerala High Co'urt Advocates Association.

E.C. Aggar'wala fot"the intervenor.

B.C. Ghosh, Sushanta Kumar Dass, G.S. Chatterjee, D.P.
Mukherjee.and A.K. Ganguli for the Intervenor-
c
• ,. > '. ' •

..f:;.L. Sphu f9r the intervenor.

K.R. Nagaraja for the. intervenor.

N.S. Das B~hal for the' iri.terverior.
D A.K. Srivastava, for the intervenor.

In Transferred Case No; 2/81.

'c.s. Vaidyanathan for the Petitio~·er
' . ·., '
E' L.N. Sinha,"Attorney·General, K. Parasaran, Solicitor General,'
K.S. Gurumoorthy, Miss.A. Subhashini and R.N.. Poddarfor Respon-
dent No. I. ··' ·- " ·

S. Marke~deya for Respondent No. 2.
Dr. L.M.Singhvi and S.K. Verma for Respondent No. 6.
F
Basudeva Pd. and Ashok Grover for the intervenor-'-(Patna
High Court Bar Association)

B.C. Ghosh, Susanta Kumar Dass, D.P; Mukherjee and G.S.
Chatterjee for the intervenor.
·--
G
In Transferred Case No. 6/81--:-

For the Petitioner :

L.N. Sinha, Attorney General, K. Parasaran, Solicitor General,,
H
K.S. Gurumoorthy, Miss A. Subhashini and R.N. Poddar.
S.P. GUPTA v. UNION (Bhagwati, J.) 499

In Transferred Case No. 24/81- A
Dr. L.M. Singhvi, S.K. Verma, S.K. Sinha, L.K. Pandey and
A.M. Singhvi, for the Petitioners.
L.N. Sinha, Attorrey General, K. Parasaran, Solicitor General,
K.S. Gurumoorthy, Miss A. Subhashini and R.N. Poddar for the
Respondents. B
In Special Leave Petition No. 1509/81-
A.K. Srivastava for the Petitioner.
The following Judgments were delivered :
BHAGWATI J. These writ petitions filed in different High C
Courts and transferred to this Court under Article l 39A of the
Constitution raise issues of great constitutional importance affecting
... the independence of the judiciary and they have been argued at
great length before us. The arguments have occupied as many as
thirty five days and they have ranged over a large number of issues
comprising every imaginable aspect of the judicial institution.- Volu- 0
). minous written submissions have been filed before us which reflect
the enormous industry and vast erudition of the learned counsel
appearing for the parties and a large number of authorities, Indian
as well as foreign, have been brought to our attention. We must
acknowledge with gratitude our indebtedness to the learned counsel
for the great assistance they have rendered to us in the delicate and
difficult task of adjudicating upon highly sensitive issues arising in
'- these writ petitions. We find, and this is not unusual in cases of
this kind, that a considerable amount of passion has been injected
into the arguments on both sides and some times passion may appear
to lend strength to an argument, but, sitting as Judges, we have to

- be careful to see that passion does not blind us to logic and predile-
tions pervert proper interpretation of the constitutional provisions.
We have to examine the arguments objectively and dispassionately
F

without being swayed by populist approach or sentimental appeal.
It is very easy for the human mind to find justification for a conclu-
- _.,. sion which accords with the dictates of emotion. Reason is a rea iy
enough advocate for the decision one, consciously or unconsciously, G
desires to reach. I will recall the brilliant fling of Shri Arobindo
in his poem "Savitri".
"An inconclusive play is Reason's toil.
Each strong idea can use her as its tool;
Accepting every brief she pleads her case, H
Open to every thought she c&nuot know,"
500 SUPREME COURT REPORTS [1982] 2 S.C.R.

We have therefore to rid our mind of any pre-conceived notions or
ideas and interpret the Constitution as it is and not as we think it
ought to be. We can always find some reason for bending the lan-
guage of the Constitution to our will, if we want, but that would be
rewriting the Constitution in the guise of interpretation. We must
also remember that the Constitution is an organic instrument
B intended to endure and its provisions must be interpreted having
regard to the constitutional objectives and goals and not in the
light of how a particular Government may b~ acting at a given
point of time. Judicial response to the problem of constitutional
interpretation must not suffer from the fault of emotionalism or
sentimentalism which is likely to cloud the vision when Judges are
c confronted with issues of momentous importance. We must cons-
stantly bear in mind the famous words of Holmes J. in Northern
Security Company v. United States(1) where that great illustrious
Judge said :

D "Great cases like hard cases make bad law. For great
cases are called great, not by reason of their real impor-
tance in shaping the law of the future, but because of some
accicent of immediate over-whelming interest which appeals
to the feelings and distorts the judgment. These immediate
interests exercise a kind of hydraulic pressure which makes
E what previously was clear seem doubtful, and before which
even well settled principles of law will bend."

With these prefatory words we may now proceed to state the facts
of these writ petitions. We propose to take up these writ petitions
in a slightly different order than that given in the cause title.
F ....
The first writ petition is that filed by Iqbal Chagla and others
in the High Court of Bombay. The petitioners in this writ petition
are advocates practising in the the High Court of Bombay and they
have challenged a circular letter dated 18th March, 1981, addressed
,
by Shri Shiv Shankar, the Law Minister of the Government of
G India, to the Governor of Punjab and the Chief Ministers of the
other States. Since the circular letter has formed the subject matter
of heated controversy between the parties and its constitutional vali-
dity has been assailed on behalf of the petitioners, it would be
H (I) 193 us 197,
S.P. GUPTA v. UNION (Bhagwati, J.) 501

desirable to reproduce it in extenso in the words of the author A
~ himself:

"D.O. No. 66/10/81-Jus. Ministry of Law, Justice and
Company Affairs, 'India,
New Delhi-110001.
B
March 18, 1981

t My dear
It has repeatedly been suggested to Government over the
years by several bodies and forums including the States Reotganisa-
tion Commission, the Law Commission and various Bar Associations
c
that to further national integration and to combat narrow parochil
... tendencies bred by caste, kinship and other local links and affili-
ations, one third of the Judges of a High Court should as far as
possible be from outside the State in which that High Court is
situated. Somehow, no start could be made in the past in this D
direction. The feeling is strong, growing and justified that some
effective steps should be taken very early in this direction.

-~ 2. In this context, I would request you to :-

(a) obtain from all the Additional Judges working E
in the High Court of your State their consent to
be appointed as permanent Judges in any other
High Court in the country. They could, in addi-
tion, be requested to name three High Courts, in
order of preference, to which they would prefer
to be appointed as permanent Judges; and F

(b) obtain from persons who have already been or
may in the future be proposed by you for initial
appointment their consent to be appointed to any
--~-

other High Court in the country along with a
similar preference for three High Courts.
G

3. While obtaining the consent and the preference of the
persons mentioned in paragraph 2 above, it may be
made clear to them that the furnishing of the consent H
or the indication of a preference does not imply any
commitment on the part of the GoverQment either iq
502 SUPREME COURT REPORTS [1982] 2 s.c.R.

A regard to their appointment or in regard to accom-
modation in accordance with the preferences given.

4. I would be grateful if action is initiated very early by
you and the written consent and preferences of all
Additional Judges as well as of persons recom-
B mended by you for initial appointment are sent to me
within a fortnight of the receipt of this letter.

5. I am also sending a copy of this letter to the Chief
Justice of your High Court.

c With regards,

Yours sincerely,
Sd/ ·(P. Shivshankar)

D
To

I. Governor of Punjab
2. Chief Ministers (by name) (Except North-Eastern
States.)"
E
It appears that a copy of the Circular letter was sent by the Law
Minister to the Chief Justice of each High Court and the Chief
Minister of each State also forwarded a copy of the circular letter to
each Chief Justice of the High Court of his State. We do not know
what the Chief Justices of the various High Courts did on receipt of
a copy of the circular Jetter from the Law Minister and from the
F
Chief Ministers of their respective States, but presumably each Chief
....
Justice sent a copy of the circular letter to the Additional Judges in
his court with a request to do the needful in view of what was stated
in the circular letter. The Chief Justice of Bombay High Court in
any event addressed such a communication to each of the additional
G Judges in his Court. We do not know what was the response of the
additional Judges in Bombay to the circular letter but the record shows
that out of a total number of Additional Judges in the Country quite
a few Additional Judges gave their consent to be appointed outside
their High Court. The petitioners and other advocates practising
on the original as well as appellate side of the High Court of Bombay
H
however took the view that the circular letter was a dire~t attack on
\he independence of the judiciary which is a basic feature of the
S.P. GUPTA v. tJNION (Bhagwati, 1.) 5o3
A
Constitution and hence the Advocates Association of Western India
which represents advocates practising on the appellate side, the
Bombay Bar Association which represents advocJtes practising on
the original side and the Managing Commitee of the Bombay Incor-
porated Law Society which represents So!icifors practising in 8
the High Court of Bombay, passed resolutions condemning
the circular letter as subversive of judicial independence and
t asking the Government of India to withdraw the circular letter.
Since the circular letter was not withdrawn by the Law Minister, the
petitioners filed the present writ petition in the High Court of
Bombay challenging the constitutional validity of the circular letter c
aod seeking a declaration that if consent has been given by any
Additional Judge or by any person whose name has been or is to be
submitted for appointment as a Judge consequent on or arising from
the circular letter, it should be held to be null and void. There were
several grounds on which the constitutional validity of the circular
letter was challenged but it is not necessary to set them out at the D
present stage because we shall have occasion to refer to them in
detail when we deal with the rival argu 11ents of the parties. The
petitioners impleaded the Law Minister as respondent No. 1, the
Union of India as respondent No. 2 and ten Additional Judges of
the Bombay High Court as respondents Nos. 3 to 12. The writ
petition was filed on 20th April 1981 and immediately after filing it, E
the petitioners applied to the learned single Judge sitting on the ori-
ginal side of the Bombay High Court for admission of the writ peti-
tion and interim relief. The admission of the writ petition as also the
grant of interim relief were opposed on behalf of respondent Nos. 1
and 2 but the learned single Judge admitted the writ petition and F
issued a rule and granted interim relief in terms of prayer (e) of the
writ petition. The effect of granting the interim relief was that res-
pondents Nos. 1 and 2 were restrained from further implementing
the circular letter and acting in any manner upon the consent, if any
obtained from any person following on or arising from the circular G
- letter. Respondents Nos. 1 and 2 thereupon preferred an appeal to
a Division Bench of the Bombay High Court under clause ( 15) of
the Letters Patent but the appeal was dismissed by the Division
Bench on 24th April, 1981. The Division Bench fixed the hearing
of the writ petition before the learned single Judge hearing writ peti-
tions on 25th June 1981 and also gave directions for filing of affida- H
vits by the parties. Respondent Nos. 1 and 2 being aggrieved by
the order made by the Division Bench dismissing their appeal made
an application to this Court on 8th May 1981 for taking up their
504 SlJPllilME COlJRt REPORTS [1982] 2 s.c.R.

A special leave petition directed against the order of the Division Bench
on the same day, but this Court refused to take up the special leave
petition for hearing on that day and directed that it may come up for
hearing in due course. Respondents Nos. l and 2 in the meanwhile
filed Transfer Petition No. 24 of 1981 for transfer of the writ
petition from the Bombay High Court to this Court under Article
B
I 39A of the Constitution and ultimately by an order dated 9th June
1981, the vacation Judge directed that the writ petition be withdrawn
from the Bombay High Court to this Court and he also gave direc-
tions for filing of affidavits and written briefs. That is how the
present writ petition filed by Iqbal Chagla and others has come up
c for hearing before this Bench of seven Judges constituted by the
Hon'ble the Chief Justice of India.
....
The second writ petition is that filed by V.M Tarkunde in the
High Court of Delhi. The petitioner in this writ petition is a senior
advocate practising in the Supreme Court and he has not only
D challenged the constitutional validity of the circular letter issued by
the Law Minister but also assailed the practice followed by the
Central Government in appointing Additional Judges in various High
Courts. The grounds on which the constitutional validity of the
circular Jetter is challenged are the same as those taken in the first
petition filed by Iqbal Chagla and others, but, so far as the complaint
E in respect of appointment of additional Judges is concerned,
this writ petition covers new ground not treaded by the first
writ petition. What made it necessary to include this complaint in
the writ petition was the fact that three Additional Judges of Delhi
High Court, namely, O.N. Vohra. S.N. Kumar and S.B. Wad who
had originally been appointed as Additional Judges for a period of
F two years with effect from 7th March, 1979, and whose term was
expiring on the mid-night of 6th March 1981 were further appointed
as Additional Judges for a period of three months only from 7th
March 1981 and these short-term appointments were, according to
the petitioner, unjustified by the terms of Article 224 and were in any
event subversive of the independence of the judicary. The petitioner
G therefore claimed in the writ petition, in addition to the declaration
that the circular letter was unconstitutional and void, a writ
of mandamus directing the Central Government to convert the posts
of Additional Judges into permanent Judges in the various High
Courts commensurate with the regular business and the arrears in
H those High Courts and in particular to convert 12 posts of Addi-
tional Judges in the Delhi High Court into permanent posts having
S.1'. GUPtA v. UNION (Bhagwati, J.) 505

regard to the regular business and the large arrears in that High A
Court. The petitioner also questioned the 'validity of short-term
appointments of O.N. Vohra, S.N. Kumar and S.B. Wad and
claimed that since there was an existing vacancy in a permanent post,
O.N. Vohra should be appointed as a permanent J~dge to fill
that vacancy and so far as S.N. Kumar and S.B. Wad were concern-
ed, they should be appointed for the full term of two years. It B
appears that the Union of India was the only respondent impleaded
in the writ petition as originally filed, but subsequently the Law
Minister as also the Joint Secretary, Ministry of Law, Justice and
Company Affairs were added as respondents Nos. 2 and 3 to the
writ petition. The High Court of Delhi by its order dated 23rd
April 1981 admitted the writ petition and issued rule upon it. How-
c
- ever, since the questions arising in the writ petition were questions
of great constitutional importance and the first writ petition had
already been filed in the Bombay High Court and other writ petition
to which we shall presently refer had also been presented in the
High Court of Allahabad raising substantially the same questions, an
D
application was made to this Court on 24th April 1981 for transfer
of the writ petition to this Court and by an order dated 1st May 1981
this Court transferred the writ petition to itself from the Delhi High
Court. Meanwhile, the further term of O.N. Vohra, S.N. Kumar
and S.B. Wad was about to expire on 6th June 1981 and no decision
appeared to have been taken till then for continuing these three
Additional Judges for a further term and the petitioner apprehended
that if these three Additional Judges were not continued as Addi-
tional Judges on the expiration of their term on 6th June 1981, the
writ petition might become infructuous. The petitioner therefore,
presented an application to this Court on 4th May 1981 for an order
directing that the writ petition be heard and disposed of before 6th
F
June 1981 and that in any event, the respondents should maintain
status quo by extending the period of appointment of Additional
Judges in the various High Courts till the the disposal of the writ
petition. Immediately on filing this application the petititioner
·---:>- _,.
requested the Court to fix an early date of hearing of the writ peti-
tion so that it could be disposed of before 6th June, 1981, but since
-G
the Court was closing for the summer vacation frcm 9th May 1981,
it was not possible to fix the hearing of the writ petition until the
reopening of the court after the summer vacation. The petitioner
thereupon prayed for an interim order that on the expiration of their
term on 6th June, 1981, the Additional Judges should be continued H
and their term extended until the final disposal of the writ petition.
But, obvi0usly this was not a prayer which could be granted by the
506 SUPREME COURT REPORTS [1982] i S.C.R.

A Court because it is for the President and not for the Court to appoint
Additional Judges and once tire term of an Additional Judge has
come to an end by efflux of time, it is not competent for the court
to reappoint him for a further term. Since, however, an allegation
was made in the application that the appointments of Additional
Judges for a further term were being made at the last minute and
B three Additional Judges of the Bombay High Court at Nagpur were
not informed about the extension of their term until the evening of
the last day on which their original term was due to expire, this
Court made an order dated 8th May 1981 directing that, since the
hearing of the writ · petition would not be taking place until the
reopening of the court after the summer vacation, the Union of India
c should "decide not less than ten days before 6th June, 1981 whether
any of the three Additional Judges should be reappointed for a fur-
ther term as Additional Judges or they should be appointed as perma-
nent Judges or otherwise." So far as the circular letter was concerned
though no prayer for interim relief was made in the written applica-
tion, this Court, on an oral application made on behalf of the
D petitioner, directed that any Additional Judge who does not wish to
respond to the circular letter may do so until the disposal of the
writ petition and he shall not be refused extension nor shall he be
refused permanent appointment, as the case may be, on the ground
that he has not sent any reply to the circular letter or has not indi-
cated his preference as asked for in the circular Jetter. Now, accord-
E ing to this order, the Central Government was bound to take its
decision in regard to the continuance or otherwise of O.N. Vohra,
S.N. Kumar and S.B. Wad on orbef'ore 27th May,1981 but since no
such decision was communicated to the three Additional Judges, the
petitioner, presuming that such decision must not have been reached
by the Central Goverment, preferred an application to this Court on
F 1st June, 1981 for directing the Central Govern rnent, to communi-
cate its decision regarding the continuance or otherwise of the three
Additional Judges. Before this application came up for hearing, the
petitioner came to know that a decision had been taken by the
Central Government in regard to O.N. Vohra, S.N. Kumar and
S.B. Wad and \\bile S. B. Wad continued as and Additional Judge
G for a period of one year from 7th June, 1981, O.N. Vohra and
S.N. Kumar were not continued for a further term. The petitioner
thereupon preferred another application to this Court on 4th. June,
.1981 and in this application the petitioner pointed out that
there were still large arrears of work in the Delhi High Court and
H
therefore there was no lawful and bona fide reason for the non-
s.P. GUPTA v. UNION (Bhagwati, J.) 501

continuance of O.N. Vohra and S.N. Kumar and not grauting A
fresh appointments to them was mala fide and unconstitutional
and prayed that in the circumstances, an interim order should
be made by the Court directing that O.N. V.:ihra and S.N. Kumar
shall continue to function as Judges of the Delhi High Court.
Both these applications came up for hearing before the learned
vacation Judge and by an order dated 6th June, 1981, the learned B
vacation Judge declined to grant interim relief that O.N. Vohra
and S.N. Kumar shall continue as additional Judges but directed that
notice be issued to show cause why status quo in respect of these
two Judges should not be maintained and continued till the pen-
dency of the writ petition. It appears that no order was thereafter
made on the notice, since the writ petition itself was directed to be c
- heard at an early date and in the meanwhile, O.N. Vohra and
S.N. Kumar, were impleaded as respondent Nos. 4 and 5, to the
writ petitition. O.N. Vohra did not appear at the hearing of the
writ petition but S.N. Kumar appeared through counsel, filed a
counter-affidavit and claimed that the . decision of the Central
Government not to appoint him for a further term was vitiated D
since it was reached without full and effective consultation with
the Chief Justice of India and in any event it was based on irrele-
vant considerations and that on a proper construction of Article
224 read with Article 217, he must be deemed to have been appoin-
ted as a permanent Judge and in any event, be was entitled to be
appointed as an additional Judge for a further term. The Union E
of India also filed an affidavit in answer to the writ petition and a
furiher affidavit in reply to the counter-affidavit of S.N. Kumar.
The writ petition was thereafter placed for hearing before this
Bench of seven Judges along with the writ petition filed by Iqbal
Chagla and others.
F
The third writ petition is that filed by J.L. Katra and others
in the High Court of Delhi. The petitioners in this writ petition
are advocates practising in the Delhi High Court and they have
prayed for the issue of a writ in the nature of mandamus directing
the Cenral Government to make an assessment of the number of
permanent and additional Judges required by the Delhi High Court G
having regard to its current business and the accumulated arrears
to create such number of posts of permanent and additional Judge;
as may be necessary and to make appointments to these posts.
The other reliefs asked for in this writ petition are substantially
the same as the reliefs prayed for in the writ petition filed by H
V.M. Tarkunde. This writ petition was also like the other writ
508 SUPREME COURT REPORTS (1982] 2 s.c.R.

A petitions withdrawn and transferred to )tself by this Court. Since
the issues arising in this writ petition are identical with the issues
arising in the other two writ petitions, it was heard by this Bench of
seven Judges along with those writ petitions.

The fourth writ petition is that filed by S.P. Gupta in the High
B Court of Allahabad. The petitioner in that writ petition is an
advocate practising in the Allahabad High Court and he has filed
this writ petition for substantially the same reliefs as the writ
petitions of Iqbal Cbagla and V.M. Tarkunde, with only this diffe-
rence that the reliefs claimed by him relate to the appointments of
additional Judges in the High Court of Allahabad. The petitioner
c has inter alia prayed for a declaration that the three additional
Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar,
Mr. Justice A.N. Verma and Mr. Justice N.N. Mittal must be deemed
to have been appointed permanent Judges under the warrants
-
already issued to them and that the circular letter of the Law Minis-
ter must be held to be void. This writ petition was also heard along
D with the other writ petitions by this Bench of seven Judges.

Since these four writ petitions to which we have just referred
raise the same issues in regard to the circular letter issued by the
Law Minister and the scope and ambit of the power of the Central
Government in regard to appointment or non-appointment of addi-
E tional Judges, it would be convenient to deal with them in a group
and we shall hereafter for the sake of convenience refer to them as
the first group of writ petitions.

The fifth writ petition is that filed by Miss Lily Thomas, an
advocate practising in the Supreme Court. This writ petition has
F challenged the transfer of Mr. Justice M.M. Ismail, Cflief Ju~tice of
the High of Madras as the Chief Justice of Kerala High Court.
What occasioned the filing of this writ petition was an Order
dated 19th January 1981 made by the President trasferring
Mr. Justice M,M, Ismail, Chife Justice of the Madras High Court as
Chief Justice of the Kerala High Court with effect from the date he
assumed charge of his office. This order recited that it was made
by the President in exercise of the powers conferred under clause (i}
of Article 222 and after consultation with the Chief Justice of India.
Simultaneously with the making of this Order, another order of the
same date was issued by the President whereby the President in
H exercise of the powers conferred by clame (i} of Article 222 after
consultation with the Chief Justice transferred Mr. Justice K .B.N.
Singh, Chief Justice of the High Court of Patna as Chief Justice of
S.1'. GUPTA v. UNION (Bhagwati, J.) 509

the High Court of Madras with effect from the date he assumed
A
charge of his office. It was the first Order of transfer of Mr. Justice
M.M. Ismail as Chief Justice of the Kerala High Court frnt was
challenged by the petitioner in this writ petition. There were several
grounds on which the transfer was challenged and they were inter
alia that the power of transfer conferred under clause ( 1) of
Article 222 was confined only to transfer of a High Court Judge
B
and did not cover transfer of the Chief Justice of a High Court;
even if the Chief Justice of a High Court could be transferred in
exercise of the power conferred under clause ( 1) of Article 222, such
transfer could be effected only with consent of the Judge sought to
be transferred and in any event, even if consent was not necessary,
such transfer could be effected only in public interest and after full
c
- and effective consultation with the Chief Justice of India and in the
case of transfer of Chief Justice M.M. Ismail, none of these condi-
tions was satisfied, since the transfer was not effected with his
consent and it was neither in public interest nor after full and effec-
tive consultation with the Chief Justice of India. This writ petition
was filed by the petitioner under Article 32 of the Constitution and
D
therefore when it came up for admission before a berich of this
Court, the Bench asked the petitioner as to how it was main-
tainable under Article 32. The Bench was inclined to throw
out the petition summarily on the ground that it did not lie under
Article 32, but the Attorney General of India appearing on behalf
of the Union of India submitted that since the writ petition raised
E
x
important questions of law, it may be entertained by the Coart,
because in any event, even if this writ petition was rejected on the
ground that it was not maintainable under Article 32, a new writ
petition for the same reliefs could always be filed under Article 226
and then it could be brought to this Court either by way of transfer
under Article 139A or by way of an appeal under Article 136.
F
The Bench therefore decided to admit this petition and issued rule
nisi. After this writ petition was admitted, there were several
interlocutory proceedings taken out by the petitioner, but it is not
necessary to refer to them since most of them were rejected. The
Union of India filed a counter-affidavit in reply to this writ petition G
contesting the various grounds urged on behalf of the petitioner.
Chief Justice M.M. Ismail who was impleaded as respondent No. 2
in this writ petition, also filed an affidavit but the stand he took was
that he had decided not to challenge the legality or validity of the
Order of the President transferring him as Chief J utice of the Kerala H
High Court and he did not want anyone to litigate for or agai11st
.510 SUPREME cotJR.t REPORTS f1982} 2 s.c.il.
A
him .. s~nce Chief Justice M.M. Ismail, who was the person to whom
leg~l m1ury was caused by the Order of transfer, did not claim any
r:hef a~d made it clear that he did not want anyone to litigate for
him, this writ petition could not be maintained by the petitioner
and it was liable to be dismissed, but since tl1e petitioner who was
B appearing in person, wanted to make a few submissions in regard to
the scope and ambit of the power of transfer, we heard her for
some time. We may point out that whilst this writ petition was -r
pending, Chief Justice M.M. Ismail resigned his office as Chief
Justice of the Madras High Court ·and therefore, all the more,
nothing survives in this writ petition.
c
The sixth writ petition is that filed by A. Rajappa, an advocate
practising in the High Court of Madras. This writ petition was
originally filed in the High Court of Madras under Article 226 of the
-
Constitution and in this writ petition the petitioner challenged the
D constitutional validity of the Orders of transfer passed by the Presi-
dent on 19th January 1981 transferring Mr. Justice M.M. Ismail,
Chief Justice of Madras High Court as the Chief Justice of Kerala
High Court and Mr. Justice K.B. Singh, Chief Justice of Patna High
Court as the Chief J~stice of Madras High Court. The principal
grounds on which these two Orders of transfer were assailed as un-
constitutional and void were substantially the same as those urged
E
in the fifth writ petition filed by Miss Lily Thomas, with only two
additional grounds, namely, that the transfers having been effected
without prior consultation with the Governors of the States to
which the two Chief Justices were transfened, were violative of
clause (!) of Article 217 and so far as the transfer of Chief Justice
K.B.N. Singh as Chief Justice of Madras High Court was con-
F cerned, it was not in public interest, since Chief Justice K.B.N.
Singh did not know the Tamil language. This writ petition was
withdrawn and transferred to itself by this Court since it raised
substantially the same issues as the fifth writ petition filed by
Miss Lily Thomas which was pending in this Court. The Union of
India opposed this writ petition by filing a counter-affidavit where it
G
contended that the transfers of both the Chief Justices were effected
in public interest and after consultation with the Chief Justice of
India who is the only authority required to be consulted whilst exer-
cising the power of transfer under Article 222, clause (1) and the
procedure prescribed by Article 217 clause (I) had no application in
H the case of transfer of a Judge or Chief Justice from one High
Court to another. This writ petition was also referred to a Bench
S.P. GUPTA v. UNION (Bhagwati, J.) 511

of seven Judes along with the fifth writ petition and that is how both A
,. these writ petitions have come up for hearing before us.

The seventh writ petition is tha_t filed by P. Subramanian, an
advocate practising in the Madras High Court. This writ petition
was originally filed in the Madras High Court under Article 226 and
along with the other writ petitions it was transferred to this Court for
hearing and final disposal. The averments and prayers made in this
writ petition are substantially the same as those in the sixth writ
petition filed by A. Rajappa and so also are the statements made in
the couner-affidavit filed on behalf of the Union of India. This
writ petition does not therefore need any separate or independent c
consideration .

... The eighth writ petition is that filed by D.N. Pandey and
Thakur Ramapati Sinha, two advocates practising in the High Court
of Patna. This writ petition was originally filed in the High Court of
Patna under Article 226 and it challenged the constitutional validity
of the Orders transferring Chief Justice M.M. Ismail to the Kerala
High Court and Chief Justice K.B.N. Singh to the Madras High
Court. The averments and prayers made in this writ petition are
substantially the same as those made in the fifth, sixth and seventh
writ petitions filed respectively by Miss Lily Thomas, A. Rajappa E
and P. Subramanian and it is therefore not necessary to repeat
them. Suffice it to state that this writ petition was also transferred
to this Court along with the other writ petitions under Article 139A.
Whilst this writ petition was pending, Chief Justice K.B.N. Singh,
who was originally impleaded as respondent No. 3 in the writ peti-
tion, applied for being transposed, as petitioner No. 3 and since the F
original petitioners had no objection to Chief Justice K.B.N. Singh
joining them as co-petitioner, this Court made an Order on 17th
September, 1981 transposing Chief Justice K.B.N. "Singh as peti-
tioner No. 3. Chief Justice K.B.N. Singh thereafter filed an affida-
vit setting out in extenso what transpired between him and the
Chief Justice of India in regard to the proposal for his transfer and G
· detailing the various grounds on which he contended that the
order transferring him as Chief Justice of the Madras High
Court was unconstitutional and void. Chief Justice K.B.N. Singh
contended inter alia that the order transferring him as Chief Justice
of the Madras High Court was passed by the President by way of H
punishment and it was based on irrelevant and insufficient grounds
a11d was not in public interest and in any event, it wa,s not precedeq
512 SUPREME COURT REPORTS [1982) 2 s.c.ll

A by full and effective consultation with the Chief Justice of India.
The avcrments made by Chief Justice K.B.N. Singh in his affidavit
were disputed by the Union of India in an affidavit sworn by K.C.
Kankan, Deputy Secretary, Depatment of Justice, Ministry of Law,
Justice and Company Affairs and the Chief Justice of India also filed
a counter-affidavit in reply to the affidavit of Chief Justice K.B.N.
B Singh. The counter-affidavit of the Chief Justice of India prompted
two affidavits in rejoinder, one by Chief Justice K.B.N. Singh and
the other by petitioners Nos. I and 2. We shall have occasion to
refer to these various affidavits when we deal with the rival argu·
ments advanced on behalf of the parties.

c These last four writ petitions challenging the constitutional
validity of Orders of transfer of Chief Justice M.M. Ismail and
Chief Justice K.B.N. Singh raised identical issues and we would
therefore dispose them of together in one group. They may for the
sake of convenience be referred as the second group of writ
-
petitions.
D
Wemayalsoatthisstagerefer to S.L.P. No.1509 of 1981,
filed by Ripudaman Prasad Sinha in this Court. This petition for
special leave is directed against an order passed by the High Court
of Patna rejecting the writ petition of the petitioner challenging the
E constitutional validity of the Order of transfer of Chief Justice
K.B. N. Singh, on the ground that the petitioner had not been able
to produce the documents on which he wanted to place reliance.
This is hardly a ground on which the writ petition should have been
rejected by the High Court in limine and we would have therefore,
ordinarily granted special leave to appeal against the decision of
F the High court, but in view of the fact that the issues sought to be
raised by the petitioner have already been agitated in the other writ
petitions, it is not necessary to grant special leave and hence we do
not propose to make any order on the special leave petition.

Locus Standi
G
When these writ petitions reached hearing before us, a preli-
minary objection was raised by Mr. Mridul, appearing on. behalf of
the Law Minister, challenging the locus standi of the petitioners in
Iqbal Chagla's writ petition. He urged that the petitioners in that
H writ petition had not suffered any legal injury as a result of the
issuance of the Circular by the Law Minister or the making of short
term appointments by the Central Government and they had there-
S.P. GUPTA v. UNION (Bhagwati, J.) 513
A
fore no locus standi to maintain the writ petition assailing the cons-
titutional validity of the Circular or short term appointments. The
legal injury, if at all, was caused to the Additional Judges whose
consent was sought to be obtained under the Circular or who were
appointed for short terms and they alone were therefore entitled to
impugn the constitutionality of the Circular and the short term B
appointments and not the petitioners. The basic postulate of the argu-
ment was that it is only a person who has suffered legal injury who
can maintain a writ petition for redress and no third party can be
permitted to have access to the Court for the purpose or seeking
redress for the person injured. The same preliminary objection was
urged by Mr. Mridul against the writ petition of S. P. Gupta
and the contention was that the petitioner in that writ petition not
c
having suffered any legal injury had no locus standi to maintion the writ
... petition. So far as the writ petition of V.M. Tarkunde is concerned
Mr. Mridul said that he would have had the same preliminary
objection against the locus standi of the petitioner to maintain that
writ petition because the petitioner had suffered no legal injury, but D
since S.N. Kumar had appeared, albeit as a respondent, and claimed
relief against the decision of the Central Goverment not to appoint
him for a further term and sought redress of the legal injury said to
have been caused to him as a result of such decision, the lack of
locus standi on the part of the petitioner was made good and the writ
petition was maintainable. Mr. Mridul asserted that if S.N. Kumar E
had not appeared and sought relief against the decision of the
Central Government discontinuing him as an Additional Judge, the
writ petition would have been liable to be rejected at the threshold
on the ground that the petitioner had no locus stand! to maintain
the writ petition. This preliminary objection urged by Mr. Mridul
raised a very interesting question of law relating to locus standi, or F
as the Americans call it 'Standing', in the area of public law. This,
question is of immense importance in a country like India, where
access to justice being restricted by social and economic constrain ts;
it is necessary to democratise judicial remedies, remove technical
barriers against easy accessibility to justice and promote public
interest litigation so that the large masses of people belonging to the G
deprived and exploited sections of humanity may be able to realise
and enjoy the socio-economic rights granted to them and these rights
may become meaningful for them instead of remaining mere empty
hopes.
H
Tb.I' tra<litiona,1 rule in re~ard to loc;qs sta,ndi js that judicia,I
514 SUPREME COURT REPORTS f1982] 2 S.C.R
A redress is available only to a person who has sufferred a legal injury
by reason of violation of his legal right or legaly protected interest
by the impugned action of the State or a public autbority or any
other person or who is likely to suffer a legal injury by reason of
threatened violation of his legal right or legally protected interest
by any such action. The basis of entitlement to judicial redress is
B personal injury to property, body, mind oc reputation arising from
violation, actual or threatened, of the legal right or legally protected
interest of the person seeking such redress. This is a rule of ancient
vintage and it arose during an era when private law dominated the
legal scene and public law had not yet been born. The leading case
in which this rule was enunciated and which marks the starting point
c of almost every discussion on locus standi is Ex-parte Sidebotham( 1).
There the Court was concerned with the question whether the appel-
lant could be said to be a 'person aggrieved' so as to be entitled to
maintain the appeal. The Court in a unanimous view held that the ...
appellant was not entitled to maintain the appeal because he was not
a 'person aggrieved' by the decision of the lower court. James LJ.
D gave a definition of 'person aggrieved' which, though given in the
context of the right to appeal against a decision of a lower court,
has been applied widely in determing the standing of a person to seek
judicial redress, with the result that it has stultified the growth of the
law in regard to judicial remedies. The learned Lord Justice said
that a 'person aggrieved' must be a man "who bas suffered a legal
E grievance, a man against whom a decision has been pronounced
which has wrongfully deprived him of something or wrongfully
refused him something or wrongfully affected his title to some·
thing." This definition was approved by Lord Esher M. R. in In
Re Reed Baveri and Comp.111y(2) and the learned Master of the Rolls
made it clear that when James L. J. said that a person aggrieved
F must be a man against whom a decision has been pronounced ....
which bas wrongfully refused him of something, he obviously meant
that the person aggrieved must be a man who has been refused
something which he had a right to demand. There have been numer-
ous subsequent decisions of the English Courts where this definition
has been applied for the purpose of determining whether the person
G
seeking judicial redress had locus standi to maintain the action. It
will be seen that, according to this rule, it is only a person who bas
suffered a specific legal injury by reason of actual or threatened
violation of his legal right or legally protected interest who can
H
(!) 14 Chancery Division 458.
(2) 19 Q.B.D. 174,
S.P. GUPTA v. UNION (Bhagwati, J.) 515

bring an action for judicial redress. Now obviously where an appli-
A
.- cant has a legal right or a leg~lly protected interest, the violation of
which would result in legal injury to him, there must be a corres-
ponding duty owed by the other party to the applicant. This rule in
regard to locus standi thus postulates a right-duty pattern which is
commonly to be found in private law litigation. But, narrow and
B
rigid though this rule may be, there are a few exceptions to it which
have been evolved by the courts over the years.
i
In the first place a rate payer of a local authority is accorded
standing to challenge an illegal action of the local authority. Thus,
· L e payer can question the action of the municipality in
granting a cinema licence to a person, vide : K.R. Shenoy v.
c
Udipi Municipality(1). Similarly, the right of a rate payer to
challenge misuse of funds by a municipality has also been recog-
nised by the courts vide : Vaidarajan v. Salem Municipality(2). The
reason for this liberalisation of the rule in the case of a tax payer of
a municipality is that his interest in the application of the money of D
the municipality is direct and immediate and he has a close relation-
ship with the municipality. The courts in India have, in taking this
view, followed the decisions of the English courts. Secondly, if a
;i person is entitled to participate in the proceedings relating to the
decison making process culminating in the impugned decision, he
would have locus standi to maintain an action challenging the impug- E·
ned decision. vide : Queen v. Bowman( 3) where it was held that any
memher of the public had a right to be heard in opposition to an
application for a licence and having such right, the applicant was
entitled to ask for mandamus directing the licensing Justices to hear
and determine the applkation for licence according to law. Thirdly,
the statute itself may expressly recognise the locus standi of an F
applicant, even though no legal right or legally protected interest of
the applicant has been violated resulting in legal injury to him. For
example, in J.M. Desai v. Roshan Kumar( 4 ) this Court noticed that
the Bombay Cinematograph Act, 19 I 8 and the Bombay Cinema
Rules, 1945 made under that Act, recognised a special interest of
persons residing, or concerned with any institution such as a school, G
temple, mosque etc. located within a distance of 200 yards of the site
on which the cinema house is proposed to be constructed and held

(I) AIR 1974 SC 2177.
(2) AIR 1973 Mad. 55. H
(3) [1898) Q.B.D. 633.
(4) [1976) 3 SCR 58,
516 SUPREME COURT REPORTS (1982] 2 S.C.R.
A that as the petitioner, a rival cinema owner, did not fall within the
category of such persons having a special interest in the locality, he
had no locus standi to maintain the petition for a writ of certiorari
to quash the No Objection Certificate granted by the District
Magistrate to respondents Nos. I and 2. It is obvious from the
observations made at page 72 of the Report that if the petitioner bad
B been a person falling within this category of persons having a special
interest in the locality, he would have been held entitled to maintain
the petition. There is also another decision of this Court illustra-
ting the situation where a statute expressly gives locus standi to
persons to complain against a public wrong and that is the decision
in Rat/am Municipality v. Vardhi Chand( 1). The statutory provision
c which came up for consideration in this case was section 133 of the
Code of Criminal Procedure which empowers a magistrate on receiv-
ing the report of a police officer or other information to make an
order for remedying a public nuisance. What happend in this case
was that the Ratlam Municipality failed to carry out its statutory
duty of constructing a drain pipe to carry the filth etc. on a parti-
D cular road. The local residents decided to invoke section 133 of
the Code of Criminal Procedure against the Municipality. The
magistrate made an order requiring the Municipality to construct
drain pipes and this order was confirmed in appeal by this Court.
The Municipality pleaded lack of funds but this was not accepted as
a valid defence. However, to have a viable scheme keeping in view
E the financial position of the Municipality, this Court examined the
three schemes submited to it and directed the Municipality to imple-
ment one Of them. The standing of the local residents to move the
magistrate was recognised since section 133 of the Code of Criminal
Procedure expressly conferred such right on t!lem.
F
There is also another exception which has been carved out
of this strict rule of standing which requires that the applicant for
judicial redress must have suffered a legal wrong or injury in order
to entitle him to maintain an action for such redress. It is clear that,
having regard to this rule, no one can ordinarily seek judicial redress
G for legal injury suffered by another person; it is only such other
person who must bring action for judicial redress. It is on this
principle that the Supreme Court of the United States held in United
States v. Raines(2) that a litigant may only assert his own constitu-
tional rights or immunities and save in exceptional cases, no person
H
(l) AIR 1980 SC 1622.
(2_) 362 U.S, 17; 4 L. Ed. 2d 524.
S.P. GUPTA v. UNION (Bhagwati, J.) 517

can claim standing to v_indicate the constitutional rights of a third A
party. But it must now be regarded as well settled law where a
person who has suffered a legal wrong or a legal injury or whose
legal right or legally protected interest is violated, is unable to
approar;h the court on account of some disability or it is not practica-
ble for him to move the court for some other sufficient reasons, such
as his socially or economically disadvantaged position, some other
person can invoke assistance of the Court for the purpose of provid:
ing judicial redress to the person wronged or injured, so that the legal
wrong or injury caused to such person does not go unredressed and
justice is done to him. Take for example, the case of a minor to whom
a legal wrong has been done or a legal injury caused. He obviously
cannot on his own approach the court because of his disability aris- c
ing from minority. The law therefore provides that any other person
actin,1? as his next fri:nd may bring an action in his name for judicial
redress. Vide : Order XXXII of the Code of Civil Procedure. So
also where a person is detained and is therefore not in a position to
move the Court for securing his release, any other person may file
an application for a writ of habeas corpus challenging the legality of D
his detention. Of course, this court has ruled in a number of cases
that a prisoner is entitled to address a communication directly to the
court complaining against his detention and seeking release and if
he addresses any such communication to the court, the Superinten-
dent of the prison is bound to forward it to the court and, in fact,
there have been numerous instances where this Court has acted on E
such communication received from a prisoner and treating it as an
application for a writ of habeas corpus, called upon the detaining
authority to justify the legality of such detention and on the failure
of the detaining authority to do so, released the prisoner. But since
a person detained would ordinar!ly be unable to communicate with
the outside world, the Jaw presumes that he will not be able to F
approach the court and hence permits any other person to move
the court for judicial redress by filing an application for writ of
habeas corpus. Similarly, where a transaction is entered into by the
Board of Directors of a company which is illegal or ultra vires the
company, but the majority of the share-holders are in favour of it
and hence it is not possible for the company t_o sue for setting aside
G
the transaction, any share-holder may file an action impugning the
transaction. Here it is the company which suffers a legal wrong or
a legal injury by reason of the illegal or ultra vires transaction impu-
gned in the action, but an individual shareholder is permitted to sue H
for redressing such legal wrong or injury to the company, because
518 SUPREME COURT REPORTS [1982) 2 S.C.R.

A otherwise the company being under the control of the majority share-
holders would be without judicial redress. Vide : Atwood v. Merry
Wether(1). The •Judicial Committee of the Privy Council also
affirmed this exception to the strict rule of standing in Duryappah v.
Fernando(2). There what happened was that the Jaffna Municipal
Council was dissolved by the Minister of Local Government without
B giving it an opportunity to be heard. The order of dissolution
was therefore voidable at the instance of the Council, but the
Council did not complain. The appellant was a mayor at the time
of the dissolution and he petitioned for a writ in the nature of certio-
rari to quash the order of dissolution. Lord Upjohn speaking on
behalf of the Judicial Committee denied standing to the appellant in
c the following words :

"The appellant was no doubt mayor at the time of its
dissolution but that does not give him any right to com-
plain independently of the council. He must show that he is
representing the council or suing on its behalf or that by
D
reason of certain circumstances, such, for example, as that
the council could not use its seal because it is in the posses-
sion of the Municipal Commissioner, or for other reasons it
has been impracticable for the members of the council to
meet to pass the necessary resolutions, the council cannot
E be be the plaintiff."

The Judicial Committee thus clearly laid down that for a legal wrong
or legal injury caused to the council, it is only the council which
can sue but if a member of the council can show that for some suffi-
cient reasons it is not possible for the council to take action for
F challenging the order of dissolution, he can file an application for a
writ to assert the right of the council and to redress the fogal wrong
or injury done,to the council. We find that in the United States of
America also this exception has been recognised and the strict rule
-~-
of standing has been liberalised in the interest of justice. In B2rrows
v . .Tackso11(3), the defendant was sued for breach of a restrictive cove-
G nant binding the defendant not to sell his property to non-cancacians
and claiming damages. The defendant raised the plea that the
judgment of the court allowing damages for breach of the covenant
would constitute denial of the equal protection clause to non-canca-

H (l) [1867] 5 Equity 464,
( 2) [ 1967] 2 Appeal Cases 337.
(3) 346 US 249 : Law pd. 1586,
S.Jl. GUPtA v. UNION (Bhagwati, J.) 519

cians, because a prospective seller of restricted land would either A
refuse to sell to non-cancacians or else would require non-canca-
cians to pay a higher price to meet the damages which the
seller may have to pay. The argument put forward in answer to
this plea was that the defendant was not entitled to plead in
defence the constitutional rights of non-cancacians. But the
Supreme Court of the ·United States negatived this argument B
observing: "We are faced with a unique situation in which it is
an action of the state court which might result in a denial of cons-
titutional rights and in which it would be difficult if not impossible
for the persons whose rights are asserted to present their grievance
before any court". Even in our own country we have recognised.
this departure from the strict rule of locus standi in cases where c
there has been a violation of the constitutional or legal rights of
- person who by reason of their socially or eeonomically disadvantaged
position are unable to approach the court for judicial redress. We
have in such cases permitted a member of the public to move the
court for enforcement of the constitutional or legal rights of such
persons and judicial redress for the legal wrong or legal injury
D
caused to them. Take for example, the decision of this Court in
Sunil IJatra v. Delhi Administration,(1 ) where this Court accepted the
habeas corpus petition of a prisoner complainit1g of brutal by a head
warden on another prisoner. Jt may be incidentally rnentioried-and
this is a point of some importance in the area of judicial remedies-
that in this case the Court broadened the scope of habeas corpus by
E
making it available to a prisoner, not only for seeking his liberty,
but also for the enforcement of a constitutional right to which he
was lawfully entitled even in confinement. Similarly, in Dr. Upendra
Baxi v. State of U.P.(2) when it was found that the inmates of the
Protective Home at Agra were living in inhuman and degrading con-
F
ditions in blatant violation of Article 21 of the Constitution and by
reason of their socially and economically disadvantaged position,
they were not in a position to move the court for judicial redress,
two law professors of the Delhi University addressed a letter to
this Court seeking enforcement of the constitutional right of the
inmates under Article 21 by improvement of the living conditions in G
the Protective Horne, so that the inmates can live with human
dignity in the Protective Home. This Court treated the letter as
a writ petition and permitted the two law professors to maintain an
action for an appropriate writ for the purpose of enforcing the cons-

ll) AIR 1980 SC 1579.
H
(1) (1981] 3Scale1137,
520 SUPREME COURT REPORTS [1982] 2 s.c.il

titutional right of the inmates of the Protective Home providing
judicial redress to them. This Court has also entertained a letter
addressed by a journalist claiming relief against demolition of hut-
ments of pavement dwellers by the Municipal Corporation of
Bombay and this letter has been treated as a writ petition by a
Bench presided over by thr Chief Justice of India and interim relief
B has been granted to the pavement dwellers.

It may therefore now be taken as well established that where a
legal wrong or a legal injury is caused to a person or to a determi-
nate class of persons by reason of violation of any constitutional or
legal right or any burden is imposed in contravention of any cons-
c titutional or legal provision or without authority of Jaw or any such
legal wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons is by reason of poverty, help-
lessness or disability or socially or economically disadvantaged
position, unable to approach the court for relief, any member of
public can maintain an application for an appropriate direction,
D order or writ in the High Court under Article 226 and in case of
breach of any fundamental right of such person or determinate class
of persons, in this Court under Article 32 seeking judicial redress
for the legal wrong or injury caused to such person or determinate
class of persons. Where the weaker sections of the community are
concerned, such as under-trial prisoners languishing in jails without
E a trial, inmates of the Protective Home in Agra or Harijan workers
engaged in road construction in the Ajmer district, who are
!iv ing in poverty and destitution, who are barely king
out a miserable existence with their sweet and toil, who are
helpless victims of an exploitative society and who do not have
easy access to justice, this Court will not insist on a regular writ
F petition to be filed by the public spirited individual espousing their
cause and seeking relief for them. This Court wilJ readily respond
even to a letter addressed by such individual acting pro bona
publico. It is true that there are rules made by this Court pres-
cribing the procedure for moving this Court for relief under
Article 32 and they require various formalities to be gone through
G
by a person seeking to approach this Court. But it must not be
forgotten that procedure is but a handmaiden of justice and the
cause of justice can never be allowed to be thwarted by any pro-
cedural technicalities. The Court would therefore unhesitatingly
and with out the slightest qualms of conscience cast aside the
H
technical rules of procedure in the exercise of its dispensing power
and treat the letter of the public minded individual as a writ peti-
S.i>, GUPTA v. UNiON (Bhagwati, 1.) 521
tion and act upon it. Today a vast revolution' is taking place in A
the judicial process; the theatre of the law is fast changing and the
problems of the poor are coming to the forefront. The Court has to
innovate new methods and devise new strategies for the purpose of
providing access to justice to large masses of people who are denied
their basic human rights and to whom freedom and liberty have no
meaning. The only way in which this can be done is by entertaining 8
writ petitions and even letters from ;>ublic spirited individuals
seeking judicial redress for the benefit of persons who have suffered
a legal wrong or a legal injury or whose constitutional or legal right
has been violated but who by reason of their poverty or socially or
economically disavantaged position are unable to approach the court
for relief. It is in this spirit that the court has been entertaining c
letters for judicial redress and treating them as writ petitions and we
hope and trust that the High Courts of the country will also adopt
this pro-active, goal-oriented approach. But we must hasten to
make it clear that the individual who moves the court for judicial
redress in cases of this kind must be acting bona fide with a view to
vindicating the cause of justice and if he is acting for personal gain D
or private profit or out of political motivation or other oblique
consideration, the court should not allow itself to be activised at
the instance of such person and must reject his application at the
threshhold, whether it be in the form of a letter addressed to the
court or even in the form of a regular writ petition filed in court.
We may also point out that as a matter of prudence and not as a E
+ rule of law, the court may confine this strategic exercise of jurisdic-
tion to cases where legal wrong or legal injury is caused to a deter-
minate class or group of persons or the constitutional or legal right
of such determinate class or group of persons is violated and as far
as possible, not entertain cases of individual wrong or injury at the
instance of a third party, where there is an effective legal aid orga- F
nisation .which can take care of such cases.

The types of cases which we have dealt with so far for the
purpose of considering the question of locus standi are those
where there is a specific legal injury either to the applicant or to G
some other person or persons for whose benefit the action is brought,
arising from violation of some constitutional or legal right or
legally protected interest. What is complained of in these cases is
+ a specific legal injury suffered by a person or a determinate class or
group of persons. But there may be cases where the State or a H
public authority may act in violation of a constitutional or statutory
obligation or fail to carry out such obligation, resulting in injury
StJPREME COURT REPORTS (1982] 2 s.c.il.

A to public inte1 est or what may conveniently be termed as public "'
injury as distinguished from private injury. Who would have
standing to complain against such act or omission of the State or
public authority ? Can any member of the public sue for judicial
redress? Or is the standing limited only to a certain class of
persons ? Or there is no one who can complain and the public
B injury must go unredres>ed. To answer these questions it is first of
all necessary to understand what is the true purpose of the judicial )r
function. This is what Prof. Thio states in his book on "Locus
Standi and Judicial Review";

'·Is the judicial function primarily aimed at preserving
c legal order by confining tbe legislative and executive organs
of government within their powers in the interest of the
public (Jurisdiction de droit objectif) or is it mainly
..
directed towards the protection of private individuals by
preventing iliegal encroachments on their individual rights
(jurisdiction de droit subjectif) ? The first contention
D rests on the theory that courts are the final arbiters of what
is legal and illegal ......... Requirements of locus standi are
therefore unnecessary in this case since they merely impede
the purpose of the function as conceived here. On the
other hand, where the prime aim of the judicial process is
to protect individuals rights, its concern with the regularity
E of law and administration is limited to the extent that indi-
vidual rights are infringed."

We would regard the first proposition as correctly setting out the
nature and purpose of the judicial function, as it is essential to the
maintenance of the rule of law that every organ of the State must
F
act within the limits of its power and carry out the duty imposed
upon it by the Constitution or the law. If the State or any public
authority acts beyond the scope of its power and thereby causes a *
specific legal injury to a person or to a determinate class or group t~_...
of persons, it would be a case of private injury actionable in the
G manner discussed in the preceding paragraphs. So also if the duty
is owed by the State or any public authority to a person or to a
determinate clase or group of persons, it would give rise to a corres-
ponding right in such person or determinate class or group of per- -.,-
sons and they would be entitled to maintain an action for judicial
H redress. But if no specific legal injury is caused to a person or to a
determinate class or group of persons by the act or omission of the
$.P. GUPtA v. UNION (Bhagwati, J.) 523

A
State or any public authority and the injury is caused only to public
interest, the question arises as to who can maintain an action for
vindicating the rule of Jaw and setting aside the unlawful action or
enforcing the performance of the public duty. If no one can main-
tain an action for redress of such public wrong or public injury, it
would be disasterous for the rule of law, for it would be open to
B
the State or a public authority to act with impunity beyond the
scope of its power or in breach of a public duty owed by it. The
courts cannot countenance such a situation where the observance of
the Jaw is left to the sweet will of the authority bound by it, without
any redress if the law is contravened. The view has therefore been
taken by the courts in many decisions that whenever there is a
public wrong or public injury caused by an act or omission of the
c
State or a public authority which is contrary to the Constitution or
the law, any member of the public acting bona fide and having
sufficient interest can maintain an action for redressal of such public
wrong or public injury. The strict rule of standing which insists
that only a person who ·has suffered a specific legal injury can main- D
tain an action for judicial redress is relaxed and a broad rule is
evolved which gives standing to any member of the public who is
not a mere busy-body or a middlesome interloper but who has
sufficient interest in the proceeding. There can be no doubt that
the risk of legal action against the State or a public authority by
any citizen will induce the State or such public authority to act with E
greater responsibility and care thereby improving the administration
of justice. Lord Diplock rightly said in Rex v. Inland Revenue
Commissioners.( 1)

"It would, in my view, be a grave lacuna in our system
of public law if a pressure group, like the federation, or F
even a single public-spirited taxpayer, were prevented by
out-dated technical rules of locus standi from bringing the
""· matter to the attention of the court to vindicate the rule of
Jaw and get the unlawful conduct stopped It is not, in my
view, a sufficient answer to say that judicial review of the
actions of officers or departments of central government is G
unnecessary because they are accountable to Parliament for
the way in which they carry out their ~unctions. They are
accountable to Parliament for what they do so far as
regards efficiency and policy, and of that Parliament is the
H
(1) [1981] 2 WLR 722 at 740:
524 SUPREME COURT REPORTS (1982] 2 s.c.R.

A only judge; they are responsible to a court of justice for
the lawfulness of what they do, and of that the court is
the only judge.''

This broadening of the rule of locus standi has been largely res-
ponsible for the· development of public law, because it is only the
B availability of judicial remedy for enforcement which invests Jaw
meaning and purpose or else the law would remain merely a paper
parchment, a teasing illusion and a promise of unreality. It is only
by liberalising the rule of locus standi that it is possible to effecti-
vely police the corridors of power and prevent violations of law.
It was pointed out by Schwartz and H.W.R. Wade in their book on
c "legal Control of Government" at page 354 :

"Restrictive rules about standing are in general inimical
to a healthy system of administrative law. If a plaintiff
with a good case is turned away, merely because he is not
sufficiently affected personally, that means that some
D
government agency is left free to violate the law, and that
is contrary to the public interest. Litigants are unlikely to
expend their time and money unless they have some real
interest at stake. In the rare cases where they wish to sue
merely out of public spirit, why should they be discour-
E aged?"

It is also necessary to point out that if no one can have standing to
maintain an action for judicial redress in respect of a public wrong
or public injury, not only will the cause of legality suffer but the
people not having any judicial remedy to redress such public wrong
or public injury may turn to the street and in that process, the rule
F of law will be seriously impaired. It is absolutely essential that the
rule of law must wean the peolple away from the lawless street and
win therr for the court of law.

There is also another reason why the rule of locus standi needs
G to be liberalised. Today we find that law is being increasingly used
as a device of organised social action for the purpose of bringing
about socio-economic change. The task of national reconstruction
upon which we are engaged has brought about enormous increase
in developmental activities and law is being utilised for the purpose
H of development, social and economic. It is creating more and more
a new category of rights in favour of large sections of people and·
imposing a new category of duties on the State and the public offi-
s.i>. GUPTA v. UNION (Bhagwati, i.) sis
cials with a view to reaching social justice to the common man. Indi- A
vidual rights and duties are giving place to meta-individual, collective,
social rights and duties of classes or groups of persons. This is not
to say that individual rights have ceased to have a vital place in our
society but it is recognised that these rights are practically meaning-
less in today's setting unless acompanied by the social rights necessary
to make them effective and really accessible to all. The new social B
and economic rights which are sought to be created in pursuance of
the Directive Principles of State Policy essentially require active
intervention of the State and other public authorities. Amongst these
social and economic rights are freedom from indigency, ignorance
and discrimination as well as the right to a healthy environment,
to sccial security and to protection from financial, commercial, c
corporate or even governmental oppression. More and more fre-
quently th~ conferment of these socio-economic rights and imposition
... of publie duties on the State and other authorities for taking positive
action generates situations in which, single human action can be
beneficial or prejudicial to a large number of people, thus making
_.. entirely inadequate the traditional scheme of litigation as merely a D
two-party affair. For example, the discharge of effluent in a lake or
river may harm all who want to enjoy its clean water; emission of
noxious gas may cause injury to large numbers of people who inhale
it alongwitb the air; defective or unhealthy packaging may cause
damage to all consumers of goods and so also illegal raising of rail-
way or bus fares may affect the entire public which wants to use the E
railway or bus as a means of transport. In cases of this kind it would
not be possible to say that any specific legal injury is caused to
an individual or to a determinate class or group of individuals. What
results in such cases is public injury and it is one of the characteris-
tics of public injury that the act or acts complained of cannot
necessarily be shown to affect the rights of determinate or identifia- F
ble class or group of persons : public injury is an injury to an
indeterminate class of persons. In these cases the duty which is
->-,
breached giving rise to the injury is owed by the State or a public
authority not to any specific or determinate class or group of per-
sons, but to the general public. In other words, the duty is one which
is not correlative to any individual rights. Now if breach of such pub- G
lic duty were allowed to go unredressed because there is no one who
bas received a specific legal injury or who was entitled to participate
in the proceedings pertaining to the decision relating to such public
duty, the failure to perform such public duty would go unchecked
and it would promote disrespect for the rule of law. It would also H
open the door for corruption and inefficiency because there would be
526 SUPREME COURT REPORTS ( 1982] 2 s.c.11..

A no check on exercise of public power except what may be provided by
the political machinery, which at best would be able to exercise only
a limited control and at worst, might become a participant in misuse
or abuse of power. It would also make the new social collective
rights and interests created for the benefit of the deprived sections of
the community meaningless and ineffectual.
B
Now, as pointed out by Cappelletti in Vol III of his classic
work on "Access to Justice" at page 520, "The traditional doctrine
of standing (legitimatio ad causam) attributes the right to sue either
to the private individual who 'holds' the right which is in need of
c judicial protection or in case of public rights, to the State itself,
which sues in courts through its organs." The principle underlying
the traditional rule of standing is that only the holder of the right
can sue and it is therefore, held in many jurisdictions that since the ...
State representing the public is the holder of the public rights, it
alone can sue for redress of public injury or vindication of public
D interest. It is on this principle that in the United Kingdom, the
Attorney· General is entrusted with the function of enforc-ing due ......
observance of the law. The Attorney-General represents the public
interest in its entirety and as pointed out by S.A. de Smith in "Judi-
cial Review of Administrative Action" (Third edition) at page 403:
"the general public has an interest in seeing that the law is obeyed
E and for this purpose, the Attorney-General represents the public."
There is, therefore, a machinary in the United Kingdom for judicial
redress for public injury and protection of social, collective, what
Cappelletti calls 'diffuse' rights and interests. We have no such
machinary here. We have undoubtedly an Attorney-General as
also Advocates General in the States, but they do not represent the
F public interest generally. They do so in a very limited field; see
sections 91 and 92 of the Civil Procedure Code. But, even if we had
...
a provision empowering the Attorney General or the Advocate
General to take action for vindicating public interest, I doubt very
much whether it would be effective. The Attorney General or the
Advocate General would be too dependent upon the political
G branches of Government to act as an advocate against abuses whieh
are frequently generated or at least tolerated by political and admi-
nistrative bodies. Be that as it may, the fact remains that we have
no such institution in our country and we have therefore to liberalise
the rule of standing in order to provide judicial redress for
H public injury arising from breach of public dnty or from other viola-
tion of the Constitution or the law. If public duties are to be
enforced and social collective 'diffused' rights and interests are to be
S.P. GUPTA v. UNION (Bhagwati, J.) 527

protected, we have to utilise the initiative and zeal of public A
minded persons and organisations by allowing them to move the
court and act for a general or group interest. even though, they may
not be directly injured in their own rights. It is for this reason that
in public interest litigation-litigation undertaken for the purpose of
redressing public injury, enforcing public duty, protecting social,
collective, 'diffused' rights and interests or vindicating public interest, B
any citizen who is acting bona fide and who bas sufficie11:t interest has
to be accorded standing. What is sufficient interest to give standing
to a member of the public would have to be determined by the court
in each individual case. It is not possible for the Court to Jay down
any hard and fast rule or any straight jacket formula for the purpose
of defining or delimiting 'sufficient interest'. It has necessarily to be c
left to the discretion of the Court. The reason is that in a modern
complex society which is seeking to bring about transformation of its
social and economic structure and trying to reach social justice to the
vulnerable sections of the people by creating new social, collective
'diffuse' rights and interests and imposing new public duties on the
State and other public authorities, infinite number of situations are D
bound to arise which cannot be imprisoned in a rigid mould or a
procrustean formula. The Judge who has the correct social pres-
pective and who is on the same wave-length as the Constitution will
be able to decide, without any difficulty and in consonance with the
constitutional objectives, whether a member of the public moving
the court in a particular case has sufficient interest to initiate the E
action.

It is interesting to note that the concept of public interest
litigation had its origin in the United States and over the years, it
has passed through various vicissitudes in the country of its origin.
We do not propose to enumerate or examine various decisions given F
by the Supreme Court of the United States from time to time in
regard to standing in public interest litigation, for no useful pur-
pose would be served by such exercise. Suffice it to state that in that
country, the strict requirement of legal interest has been watered
down. Justice Douglas said i11 D:lla Processing Service v. Camp(')
that. "the legal interest test goes to the merits. The question of'
G
standing is different." Similarly Justice Brannan, citing Flast
observed that "the question is whether the person whose standing is
challenged is a proper party to request an adjudication of a particular

(!) 397 U,S. 150; (2d) 25 Law Ed. 184,
ff
528 SUPREME COURT REPORTS [ 1982) 2 S.C.R.
A
issue and not ... whether the plaint if)' had a legally protected interest
which the defendant's action invaded'' (Italics supplied). This
view also found expression in Office of Communication of the United
Church of Christ v. FCC(1) where the standing of television viewers
was upheld with the following observations: Since the concept of
standing is "one designed to assure that only one with a genuine
B and legitimate interest can participate in a proceeding, we can see
no reason to exclude those with such an obvious and acute concern
as the listening audience." Vi de article on "Evolving Trends in
Locus Standi. Models For Decision-Making" by D.Y. Chandrachud.
But of late, there has been a slight regression in this dynamic
approach. See United States v. Richardson.(2) Warth v. Seldin,( 3 )
c where the Supreme Court of United States seems to have recoiled
a little against expansion of its judicial power.

So far as the United Kingdom is concerned, there have been
remarkable developments in this area in recent times largely due to
0 the dynamic activism of Lord Denning. The McWhirter case and
the three well known Blarkburn cases clearly establish that any
member of the public having sufficient interest can maintain an
action for enforcing a public duty against a statutory or public
authority. We need not make a detailed reference to all these cases
but it will be sufficient if we refer to the Mc Whirler case and one of
E the three Blackburn cases. The Mc Whirler case is reported in
Attorney Genernl v. Independent Broadrasting Authority.(4 ) This was
an action by Mc W'hirter for injuction against the Broadcasting
Authority which wasthreatening to show a film which did not comply
with the statutory requirements and the showing of which would
therefore be illegal. Lord Denning considered the qu :st ion whether
F McWhirter had locus standi to bring the action when leave to bring
a relator action was refused by the Attorney General, and answering
this question in the affirmative, he said :

"We live in an age when Parliament has placed statu-
tory duties on government departments and public autho-
G rities for the benefit of the public-but has provided no
remedy for the breach of them. If a government depart-
ment or a public authority transgresses the law laid down

(I) U.S. App. D.C. 328.
H (2) 418 U.S. 166.
0) 422 U.S. 490.
(4) [1973) 1 All En~land Reports 689.
S.P. GUPTA v. UNION (Bhagwati, J.) 529

by Parliament, or threatens to transgress it, can a member
A
of the public come to the court and draw the matter to its
attention, .... .I am of the opinion that, in the last resort,
if the Attorney General refuses leave in a proper case or
improperly or unreasonably delays in giving leave, or his
machinery works too slowly, then a member of the public
who has sufficient interest, can himself apply to the court
8
itself."

Lord Denning held that McWhirter had sufficient interest to bring
the action since he had a television set for which he had paid licence
fee and his susceptibility would be offended like that of many others
watching television if the film was shown in breach of the statutory
c
.. requirements. It may be noticed that in this case the duty which was
sought to be enforced again the Broadcasting Authority was one
which the Broadcasting Authority owed to the general public and
not to any specific individual or clas~ or group of individuals. The
same principle was applied by Lord Denning in Rex v. Greater 0
London Council,(1) to accord standing to Blackburn to maintain an
action for an order of prohibition preventing the Greater London
Council from allowing, contrary to law, the exhibition of porno-
graphic films. Here again the duty owed by the Greater London
x Council was to the general public and not to any specific or deter-
minate class or group of persons and there was no one who could
E
claim that a specific legal injury was caused to him by the exhibi-
tion of pornographic films But even so Lord Denning held that
Blackburn was entitled to maintain an action because he had
sufficient interest; he was a citizen of London, his wife was a rate
payer and he had children who might be harmed by the exhibition
of pornographic films. The learned Master of the Rolls emphasized F
that if Blackburn had no sufficient interest, no other citizen had, and
in that event nc one would be able to bring an action for enforc!ng
the law and the transgression of the law would continue unabated.
The principle on which the learned Master of the Rolls proceeded
was formulated by l.im in these words:
G
"I regard it as a matter of high consitutional principle,
that if there is good ground for supposing that a govern-
ment department or a public authority is transgressing the
law, or is about to transgress it, in a way which offends
or injures thousands of his Majesty's subjects, then any-
H
\1) J:lx·P;irte Blackburn p976] 3 All England Reports 184,
530 SUPREME COUR'1 REPORTS [1982] 2 S.C.R.

A one of those offended or injured can draw it to the atten-
tion of the courts of law and seek to have the law enforced,
and the courts in their discretion can grant whatever remedy
is appropriate''

The House of Lords, of course, in Gouriet v. U.P. W (1) took the
B
view that the Attorney General alone can sue for enforcing the obser-
vance of the law and if he refuses to give his consent to a relator
action, such refusal was not reviewable by the courts and without
such consent, a member of the public could not maintain his action.
We do not think it necessary to examine this decision because it has
c no binding effect upon us. But we may point out this decision has
been severely criticised by jurists in England and elsewhere. It is
clearly erroneous ar.d shows the high water mark of abdication of
judicial power which is likely to stultify the development of public
law in the United Kindgom. There is however one distinguishing
-
feature which we must point out, namely, that the action in that case
D was a relator action and not an application for a writ

We would therefore, hold that any member of the public
having sufficient interest can maintain an action for judicial redress for
public injury arising from breach of public duty or from violation of
E some provision of the Constitution or the law and seek enforcement
of such public duty and observance of such constitutional or legal
provision. This is absolutely essential for maintaining the rule of law,
furthering the cause of justice and accelerating the pace of realisa-
tion of the constitutional objectives. "Law", as pointed out by
Justice Krishana Iyer in Fertilizer Corporation Kamgar Union v.
F Union of Jndia(2) "is a social auditor and this audit function can
be put into action when someone with real public interest ignites
the jurisdiction. A fear is sometime expressed that if we 1<eep the
door wide open for any memb :r of the public to enter the portals of
the Court to enforce public duty or to vindicate public interest,
the Court will be flooded with litigation But this fear is totally
G unfounded and the argument based upon it is answered completely
by the Australian Law Reforms Commission in the following
words:

(ll [ t 978] Appeal Cases 482.
H (I) AIR 1981 SC 344.
S.P. GUPTA v. UNION (Bhagwati, J.) 531

"The idle and whimsical plaintiff, a dilettante who A
> litigates for a lark, is a spectre which haunts the legal litera-
1ure, not the court room. (Prof: K.E. Scott ; "Standing
in the Supreme Court : A Functional Analysis" (I 973) 86)

A major expressed reason for limiting standing rights B
is fear of a spate of actions brought by busy bodies which
will unduly extend the resources of the courts. No argu-
ment is easier put, none more difficult to rebut. Even if the
fear be justified it does not follow that present restridons
should remain. If proper claims exist it may be necessary
to provide resources for their determination. However, c
the issue must be considered .

. . . . . Over recent years successive decisions of the
United States Supreme Cour. have liberalised standing so
as to afford a hearing to any person with a real interest in
the relevant controversy. Surveying the result in 197 3 D
Professor Scott commented : (Op Cit. 673)

When the floodgates of litigation are opened to some
new class of controversy by a decision it is notable how
rarely one can discern the flood that the dissenters
fuared. E
Professor Scott went on to point 0ut that the libera-
lised standing rules had caused no significant increase in
the number of actions brought, arguing that parties will
not litigate at considerable personal cost unless they have
a real interest in a matter." F
We wholly endorse these remarks of the Australian Law Reforms
Commission. We may add, with Justice Krishan Iyer; "In a
society where freedoms suffer from atrophy, and activisim is essen·
tial for participative public justice, some risks hav: to be taken and
more opportunities opened for the public minded citizen to rely on G
the legal process and not be repelled from it by narrow pedantry
now surrounding locus standi." It is also interesting to note that
in India, as in other Commonwealth countries, the strict rule of
standing does not apply to a writ of quo warranto or a rate payer's
action against a municipality, but there is no evidence that this has
532 SUPREME COURT REPORTS [ J982] 2 S.C.R.

A Jet loose the flood gates of litigation in these areas. The time,
money and other inconveniences involved in litigating a case act as
sufficient deterrrnts for most of us to take recourse to legal action,
vide article of Dr. S.N. Jain on "Standing and Public Interest
Litigation."

B But we must be careful to see that the member of the public,
who approaches the court in cases of this kind is acting bonafide
and not for personal gain or private prout or political motivation
or other oblique consideration. The Court must not allow its
process to be abused by politicians and others to delay legitimate
administrative action or to gain a political objective. Andre Rabie
c has warned that "political pressure groups who could not
ltchieve their aims through the administrative process" and we
might add, through the political process, "may try to use the
courts to further their aims." These are some of the dangers in
public interest litigation which the court has to be careful to avoid.
It is also necessary for the court to bear in mind that there is a vital
D
distinction between locus standi and justiciability and it is not every
default on the part of the State or a public authority that is justi·
ciable. The court must take care to see that it does not over-step
the limits of its judicial function and trespass into areas which arc
reserved to the Executive and the Legislature by the Constitution. It
E is a fascinating exercise for the Court to deal with public interest
litigation because it is a new jurisprudence which the court is
evolving, a jurisprudence which demands judicial statesmanship and
high creative ability. The frontiers of public law are expanding
far and wide and new concepts and doctrines which will change the
complexion of the Jaw and which were so far as embedded in the
F worn b of the future, are beginning to be born.

Before we part with this general discussion in regard to locus
~tandi, there is one point we would like to emphasise and it is, that
cases may arise where there is undoubtedly public injury by the act
m on:ission of the State or a public authority but such act or omis-
G sion also causes a specific legal injury to an individual or to a
specific class or group of individuals. In such cases, a member of the
public having sufficient interest can certainly maintain an action
challenging the legality of such act or omission, but if the person or
specific class or group of persons who are primarily injured as a
H result of such act or omission, do not wish to claim any relief and
accept such act or omission willingly and without protest, the member
s.P. GUPTA I'. UNION (Bhagwati. J.) 533

of the public who complains of a secondary public injury cannot A
maintain the action, for the effect of entertaining the action at the
instance of such member of the public would be to foist a relief on
the person or specific class or group of persons primarily injured,
which they do not want.

If we apply these principles to determine the question of locus B
standi in the writ petition of Iqbal Chagla & Ors. in which alone
this question has been sharply raised, it will be obvious that the
petitioners had clearly and indisputably locus standi to maintain
·their writ petition. The petitioners are lawyers practising in the
High Court of Bombay. The first petitioner is a member of the
Bombay Bar Association, petitioners Nos. 2 and 3 are members of c
the Advocates Association of Western India and petitioner No. 4 is
the President of the Incorporated Law Society. There can be no
doubt that the petitioners have a vital interest in the independence of
the judiciary and if any unconstitutional or illegal action is taken by
the State or any public authority which has the effect of impairing
the independence of the judiciary, the petitioners would certaintly be D
interested in challenging the constitutionality or legality of such
action. The profession of lawyers is an essential and integral part
of the judicial system and lawyers may figuratively be described as
priests in the temple of justice. They assist the court in dispensing
justice and it can hardly be disputed that without their help, it would
be well nigh impossible for the Court to administer justice. They are E
really and truly officers of the Court in which they daily sit and
practise. They have, therefore, a special interest in preserving the
integrity and independence of judicial system and if the integrity or
independence of thr judiciary is threatened by any act of the State or
any public authority, they would naturally be concerned about it,
because they are equal partners with the Juc'ges in the administration F
of justice. lqbal Chagla and others cannot be regarded as mere
bystanders or meddlesome interlopers in filing the writ petition. The
complaint of the petitioners in the writ petition was that the circular
letter issued by the Law Minister constituted a serious threat to the
independence of the judiciary and it was unconstitutional and void
and if this complaint be true, and for the purpase of determining the
G
standing of the petitioners to file the writ petition, we must assume
this complaint to be correct, the petitioners already had locus standi
ot maintain the writ petition. The circular letter, on the averments
made in the writ petition, did not cause any specific iegal
injury to an individual or to a deteilninate class or group of
H
individuals, but it caused p1.1btiq injury by prejudicially affecting the
534 SUPREME COURT REPORTS [1982] 2 S.C.R.

A independence of the judiciary. The petitioners being lawyers had
sufficient interest to challenge the constitutionality of the circular
letter and they were, therefore entitled to file the writ petition as a
public interest litigation. They had clearly a concern deeper than
-~that of a busybody and they cannot be told off at the gates. We may
point out that this was precisely the principle applied by this Conrt
B to uphold the standing of the Fertiliser Corporation Kamgar Union
to challege the sale <fa part of the undertaking by the Fertilser
Corporation of India in Fertilizer Corporation Kamgar Union v.
Uni01i-of India (supra). Justice Krishna Iyer pointed out f at if a
citizen "belongs to an organisation which has special interest in the
. subjeci matter, if he has some concern deeper than that of a busy-
c body, he cannot be told off at the gates, although whether the issue
raised by him is justiciable may still remain to be considered." We
must therefore, hold that Iqbal Chagla and Others had locus standi
to maintain their writ petition. What we have said ·in relation to
the writ petition of Iqbal Chagla and others must apply equally in
relation to the writ petitions of S.P. Gupta arid J.C. Kalra. and
D others/ Safar as the writ petition of V.M. Tarkunde is concerned,
Mr. Mridul, learned advocate appearing on behalf of the Law
Minister, did not contest the maintainability of that writ petition
since S.N. Kumar to whom, according to the averments made in the
writ petition; a specific legal injury was caused, appeared in the writ
petition, and· claimed relief against the ·decision of the Central
E
Government to discontinue him as an additional Judge. We must
therefore, 'reject the preliminary. objection raised by Mr. Mridul
challenging the locus standi of the petitioners _in the first group of
writ petitions.

Concept of Independence of the Judiciary
' -·~
-~~. Having disposed of the preliminary objection in regard to
lo~us standi of the petitioners, we may now proceed to consider the
"_ questions which arise for determination in these writ petitions. The
-questions are of great constitutional significance affecting th ' prioci-
'C pie of independence of the judiciary \vhich is a basic feature of the
.Constitution and we would therefor: prefer to begin the discussion
by making a few prefatory remarks highlighting what the true func-
. tion of the judiciary should be in a country like India which is march-
•....__ ing along the road to social justice with the banner of democracy
H and the rule of law, for the principle of independence of the judiciary
is not an abstract conceptio.1 but it is a living faith which must
. . its inspiration
derive . from: the
. constitutional
. charter and its nourish-
1'
s.P. GUPTA v. iJNiON (Bi1agwati, J.) 535

ment and sustenance from the constitutional values. It is necessary A
for every Judge to remember constantly and continually that our
Constitution is not a non·aligned national charter. It is a document
of social revoluion which casts an obligation on every instrumentality
including the judiciary, which is a separate but equal branch or the
State, to transform the sta111s quo ante into a new human order in
B
which justice, social, economic and political will inform all institu:
lions of national life and there will be equality of status and oppor-
tunity for all. The judiciary has therefore a socio·economic
destination and a creative function. It bas, to use the words of
Glanville Austin; to become an arm of the socio-economic revolu-
tion and perform an active role calculated to bring social justice
within the reach of the common man. It cannot remain content to
c
act merely as an umpire but it must be functionally involved in the
goal of socio-economic justice. The British concept cf justicing,
which to quote Justice Krishna Iyer, is still· ' bugged by the heirs of
0

our colonial legal culture · and shared by many .on the Bench" is
that "the business or a Judge is to hold his tongue until the last D
p~ssibtd moment and to try to be as wise as he is paid to look" and
in the same strain are the words quoted by professor Gordon Reid
from a memorandum to the Victorian Government by Irvin, C.J. in
1923 . where the judicial function was idealised in the following
words: I
E
·-"The duty of His Majesty's Judges is to hear and
determine issues of fact and of law arising between the king
--and the subject or between a subject and a subject present·
ed in a form enabling judgment to be passed upon them,
\llld when passed, to be enforced by a process of Jaw. 1here
begins and ends the function of the judiciary." B
Now this.: approach to the judicial function .may bealright for a
stable and static society but notfor
a society pulsating with urges of
gendCr justice, worker· justice,·
.
minorities
(
justice, dalit jllstice and
equal justice between chronic unequals. Where the contest is between
those who are socially or economically unequal, the judicial process
G
may prove disastero~s from the point of view of social justice, if the
Judge adopts a merely passive or negative role and does not adopt a
positive and creative approach. The judiciary cannot remain a mere
bystander or spectator but it must become an active participant in the
judicial process ready to use law in the service of social justice
through a pro-active goal oriented-approach. But this cannot be
536 SUPREME COURT REPORtS [1982J 2 s.C.R.
A achieved unless we have judicial cadres who share the fighting faith
of the Constitution and who are imbued with the constitutional
values. The necessity of a judiciary which is in tune with social
philosophy of the Constitution has nowhere been better emphasized
than in the words of Justice Krishna Iyer which we quote :

B "Appointment of· Judges is a serious process where
judicial expertise, legal learning, life's experience and high
integrity are components, but above all are two indispensa-
bles-social philosophy in active unison with the socialistic
Articles of the Constitution, and second, but equally impor-
tant, built-in resistance to pushes and pressures by class
c interests, private prejudices government threats and
blandishments, party loyalties and colltrary economic and
political ideologies projecting into pronouncements."

Justice Krishna Iyer goes on to say in his inimitable style :
D "Justice Cardozo approvingly quoted President Theo-
dore Roosevelt's stress on the social philosophy of the
Judges which shapes the course of a nation and, therefore,
the choice of Judges for the higher Courts which makes and
declares the law of the land, must be in tune with the social
philosophy of the Constitution. Not mastery of the law
E
alone, but social vision and creative craftsmanship arc
important inputs in successful justicing."

What is necessary is to have Judges who are prepared to fashion new
tools, forge new methods, innovate new strategies and evolve a new
jurisprudence, who are judicial statesmen with a social vision and a
F creative faculty and who have, above all, a deep sense of commit-
ment to the Constitution with an activist approach and obligation
for accountability, not to any party in power nor to the opposition
nor to the classes which are vociferous but to the half hungry
, millions of India who are continually denied their basic human
rights. We need Judges who are alive to the socio-economic realities
G
of Indian life, who are anxious to wipe every tear from every eye,
"ho have faith in the constitutional values and who are ready to
use law as an instrument for achieving the constitutional objectives.
This has to be the broad blue-print of the appointment project for 1'
the higher echelons of judicial service. It is only if appointments of
H
Judges are made with these considerations weighing predominently
s.i>. GUPTA V. UNlON (Bizagwati, J.) 531

with the appointing authority that we can have a truly independent A
judiciary committed only to the Constitution and to the people of
India. The concept of independence of the judiciary is a noble
concept which inspires the constitutional sche;ne and constitutes the
foundation on which rests the eJifice of our democratic polity. If
there is one principle which runs through the entire fabric of the
Constitution, it is the principle of the rule of law and under the B
Constitution, it is the judiciary whicl1 is entrusted with the task of
keeping every organ of the State within the limits of the law and
thereby making the rule of law meaningful and effective. It is to
aid the judiciary in this task that the power of judicial review has
been conferred upon the judiciary and it is by exericising this power
which constitutes one of the most potent weapons in armory of the c
law. that the judiciary seeks to protect the citizen against violation
of his constitutional or legal rights or misuse or abuse of power by
the State or its officers. The judiciary stands between the citizen and
the State as a bu! wark against executive excesses and misuse or abuse
of power by the executive and therefore it is absolutely essential that
the Judiciary must be free from executive pressure or influence and
D
this has been secured by the Constitution-makers by making
elaborate provisions in the Constitution to which detailed reference
has been made in the judgments in Sankalchand Sheth' s case (supra).
But it is necessary to remi11d ourselves that the concept of
independence of the judiciary is not limited only to independence
E
from executive pressure or influence but it is a much wider concept
which takes within its sweep independence from many other pressures
and prejudices. It has many dimensions, namely, fearlessness of the
power centres, economic or political, and freedom from prejudices
acquired and nourished by the class to which the Judges belong.
If we may again quote the eloquent Words of Justice Krishna Iyer:
F
"Independence of the Judiciary is not genufiexion; nor
is it opposition to every proposition of Government. It is
neither Judiciary made to opposition measure nor Govern-
ment's pleasure.
G
The tycoon, the communalist, the parochialist, the
faddist, the extremist and radical reactionary lying coiled up
and sub-consciously shaping judicial mentatio11s are menaces
to judicial independence when they are at variance with
Parts HI and IV of the Paranwunt Parchment." H
Judges should be of stern stuff and tough fibre, unbending before
538 SUPREME COURT REPORTS [1982] 2 s.d.R..
A power, economic or political, and they must uphold the core principle
of the rule of law which says "Be you ever so high, the law is above
you." This is the principle of independence of the judiciary which
is vital for the establishment of real participatory democracy,
maintenance of the rule of law as a dynamic concept and delivery
of social justice to the vulnerable sections of the community. It is
B this principle of independence of the judiciary which we must keep in
mind while interpreting the relevant provisions of the Constitution.

Can mandamus issue for fixation of strength of Judges in a High
Court: Article 216.

c We may first examine the true meaning and import of Article
216 which provides for the constitution of High Courts. This Arti-
cle when originaIIy enacted in the Constitution consisted of the main
provision and a proviso but the proviso was deleted by Section 11
of the Constitution (Seventh Amendment) Act, 1956 with the result
that since !st November, 1956 when the Amending Act came into
D force, this Article consists of only one clause which reads as under :

"Every High Court shaII consist of a Chief Justice and
such other Judges as the President may from time to time
deem it necessary to appoint."
E This Article confers power on the President to appoint such number
of Judges in a High Court as he may deem nec11ssary. The Union of
India has placed before us figures showing that as on 18th March,
l 981, the aggregate sanctioned strength of permanent and additional
Judges was 308 and 97 respectively while the aggregate actual
strength was only 277 and 43 respectively. The figures given by the
F Union of India also show the large arrears pending in the
different High Courts and it is clear from these figures that the total
number of pending main cases has been steadly rising from 6,13,799
on 31st December 1978 to 6,78,951 on 31st December, 1980. The
average rate of disposals per Judge per year fixed at one of the Chief ...
Justices' Conference was 650 but the figures produced by the Union
G of India show that the average rate of disposals of main cases per
Judge per year during the years 1978-79 and 1980 was higher
namely, 860. It is obvious that even on the basis of the average rate
of disposals per Judge per year being taken at the higher figure of
860 , if no judicial reform is brought about and the present system
H
continues as it is without any change, many more Judges would be
required than the total sanctioned strength of permanent and addi-
s.P. GUPTA v. UNION (Bhagwati, J.) 539

,> · tional Judges in order to dispose of the pending cases which include
not only main cases but also interlocutory and miscellaneous cases
which do take the time of the Court. It was therefore contended on
behalf of the petitioners that the President has failed to discharge
his constitutional duty under Article 216 by not appointing the
requisite number of Judges necessary for the purpose of disposing of
B
the pending cases. The argument was that the President was under
a constitutional obligation to apply his mind to the question as to
how many Judges were necessary to be appointed in each High Court
for the purpose of disposing of the cases pending in that High Court,
but the President had failed to apply his mind to this question and
not taken the necessary steps for the purpose of appointing the
requisite number of Judges in each High Court. The petitioners
c
. therefore sought a writ of mandamus against the Union of India
requiring the Union of India to re-fix the strength of Judges in each
High Court having regard to the number of pending cases in that
High Court and on the basis of the average rate of disposals per
judge per year. We do not think we can issue such a writ of manda-
D
mus against the Union of India for fixing a particular strength of
judges in each High Court. The fixation of the strength of judges
in each High Court is a purely executive function which is entrusted
by Article 216 to the President, that is, the Government of India and
it is entirely for the Government of India to decide in the exercise
of its judgment as to what shall be the strength of judges in each
E
High Court. How many judges are necessary to be appointed in a
particular High Court is left to the discretion of the Government of
India and there are no judicially manageable standards for the pur-
pose of controlling or guiding the discretion of the Union of India in
that respect. It is not possible for this court to lay down any
standards or norms on the basis of which it can require the Union of F
India to appoint a certain number of Judges in a particular High
Court. The fixation of the number of judges necessary to be

-
appointed in a particular High Court does not depend upon the
application of a mathematical formula dividing the number of pend-
ing cases by the average rate of disposal per judge per year. It is a
singularly complex problem and merely increasing the number of G
judges in a High Court would not necessarily solve the problem of
disposal of pending cases. Sometimes when the number of judges
in a High Court is increased, the law of diminishing returns begins
to operate and the disposals of cases do not increase commensu-
rately with the addition to the number of jud~es. Some times it is H
difficult to recruit competent judges and no useful purpose is served

\,
l
540 SUPREME COURT REPORtS (1982] 2 s.c.R.
A by appointing mediocre judges who ultimately would not be able
to make any impact so far as the arrears of pending cases are con-
cerned and who would dilute the quality of justice administered in
the High Court. Then there are also problems of finding court rooms
for the new judges who might be appointed because at most places
the High Court buildings are heavily congested and there is hardly
B any space which can be spared. There may also be many other
constraints operating with the Government of India which may
dissuade it from taking a decision to increase the number of judges
in a High Court. The Government of India may legitimately feel
that increasing the number of judges in a particular High Court may
not solve the problem of arrears of pending cases but that some other
c strategies may have to be adopted for that purpose, such as the
setting up of administrative tribunals or reducing the number of
appeals etc. There would therefore be many policy considerations ..
which would influence the Government of India in taking a decision
as to what number of judges are necessary to be appointed in a parti-
cular High Court. It would not be possible to lay down any judicially
D manageable standards with reference to which the Government of
India could be directed to appoint a particular number of judges in a
High Court. What should be the number of Judges necessary to be
appointed in a particular High Court must essentially remain a
matter within the discretion of the Government of India and if
the Government of India does not appoint sufficient number of
E judges, the appeal must be to the legislature and not to the Court.
All that the Court can do is to express the hope that the Government
of India will periodically review the strength of judges in each High
Court and appoint as many judges as are found necessary for the
purpose of disposing of arrears of pending cases.

F The Power of Appointment of Judges: Article 217.

The next question that arises for consideration is as to where
is the power to appoint Judges of the High Courts and the Supreme
{

G
Court located ? Who has the final voice in the appointment of
Judges of High Courts and the Supreme Court? The power of
appointment of Judges of the Supreme Court is to be found in
clause (2) of Article 124 and this clause provides that every Judge
-
of the Supreme Court shall be appointed by the President after
consultation with such of the Judges of the Supreme Court and the
High Courts in the States as I he President may deem necessary for
H the purpose, provided that in the case of appointment of a Judge
other than the Chief Justice, the Chief Justice of India shall always
be consulted. It is obvious on a plain reading of clause (2) of
s.i>. GUPTA v. UN10N (Bhagwati, J.) 541

Article 124 that it is the President, which in effect and substance A
means the Central Government, which is empowered by the Cons-
titution to appoint Judges of the Supreme Court. So also Article
217, clause(!) vests the power of appointment of Judges of High
Courts in the Central Government, but such power is exercisable
only "after consultation with the Chief Justice of India, the
Governor of the State and the Chief Justice of the High Court." B
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 consti-
tutional functionaries having a consultative role and the power of
appointment resides solely and exclusively in the Central Govern- c
ment. Jt is not an unfettered power in the sense that the Central
Government cannot act arbitrarily without consulting the constitu-
tional functionaries specified in the two Articles but it can act only
after consulting them and the consultation must be full and effective
consultation.
0
The question immediately arises what constitut~s 'consultation'
within the meaning of clause (2) of Article 124 and clause (I) of
Article 217. Fortunately, this question is no longer res integra and
it stands concluded by the decision of this Court in Sankalchand
Seth's case (supra). It is true that the question in Sanka/chand
Seth's rase (supra) related to the scope and meaning of 'consultation'
in clause (I) of Article 222, but it was common ground between the
parties that 'consultation' for the purpose of clause (2) of Article
124 and clause (I) of Article 217 has the same meaning and content
as 'consultation' in clause (I) of Article 222. Chandracbud, J., as
he then was in his judgment in Sanka/chand Seth's case (supra) F
quoted with approval the following passage from the judgment
given by Justice Subba Rao, when he was a Judge of the Madras
High Court in R. Pushpam v. State of Modras( 1 ) "the word
'consult' implies a conference of two or more person or an impact of
two or more minds in respect of a topic in order to enable them to
evolve a correct or atleast a satisfactory solution" and added. "In G
order that the two minds may be able to confer and produce a
mutual impact, it is essential that each must have for its considera-
tion full and identical facts which can at once constitute both the
source and foundation of the final decision." Krishna Iyer, J.
speaking on behalf of himself and Fazal Ali, J, also pointed out that H
(1) AI.R. 1953 Mad. 392.
542 SUPREME COURT REPORTS [1982] 2 s.c.R

A "all the materials in the possession of one who consults must
be unreservedly placed before the consultee" and further "a
reasonable opportunity for getting information, taking other
steps and getting prepared for tendering effective and meaningful
advice must be given to him'' and "the cosultant in turn must take
the matter seriously since ,he subject is of grave importance." The
B learned Judge proceeded to add : "Therefore, it follows that the
President must communicate to the Chief Justice all the material he
has and the course he proposes. The Chief Justice, in turn, must
".·
collect necessary information through responsible channels or directly,
acquaint himself with the requisite data, deliberate on the informa-
tion he possesses and proceed in the interests of the administration
c of justice to give the President such counsel of action as he thinks
will further the public interest. especially the cause of the justice
system." These observations apply with equal force to determine the
scope and meaning of 'consultation' within the meaning of clause (2)
of Article 124 and clause(!) of Article 217. Each of the constitutional
D functionaries required to be consulted under these two articles must
have for his consideration full and identical facts bearing upon
appointment or non-appointment of the person concerned as a Judge
aad the opinion of each of them taken on identical material must be
considered by the Central Government before it takes a decision
whether or not to appoint the person concerned as a Judge. But,
while giving the fullest meaning and effect to 'consultation', it must
E
be borne in mind that it is only consultation which is provided by
way of fetter upon the power of appointment vested in the Central
Government and consultation cannot be equated with concurrence.
We agree with what Krishna Iyer, J. said in Sankalchand Sheth' s case
(supra) that "consultation is different from consentaneity. They may
discuss but may disagree; they may confer but may not concur." It
F
would therefore be open to the Central Government to over-ride the
opinion given by the constitutional functionaries required to be
consulted and to arrive at its own decision in regard to the appoint-
ment of a Judge in the High Court or the Supreme Court, so Jong as
such decision is based on relevant considerations and is not otherwise
mala fide. Even if the opinion given by all the constitutional func-
G
tionaries 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 the 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
H 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
s.~. GUPTA V. UNION (Bhagwati, J.) 543
an appointment is made by the Central Government contrary tc the A
unanimous opinion of the Chief Justice of the High Court
and the Chief Justice of India. But we do not think that
ordinarily the Central Government would make an appoint-
ment of a Judge in a High Court if all the three constitu-
tional functionaries have expressed an opinion against it. We may, 1·
however, make it clear that on a proper interpretation of clause (2) B
of Article 124 and clause (I) of Article 217, it is open to the Central
Government to take its own decision in regard to appointment or
non-appointment of a Judge in a High Court or the Supreme Court
after taking into account and giving due weight to the opinions
expressed by the constitutional functionaries required to be consulted
under these two Articles and the only ground on which such decision c
can be assailed is that it is mala fide or passed on irrelevant consi-
derations. Where there is a difference of opinion amongst the
constitutional functionaries who are consulted, it is for the Central
Government to decide whose opinion should be accepted and whether
appointment should be made or not. It was contended on behalf of
the petitioners that where there is difference of opinion amongst the D
constitutional functionaries required to be consulted, the opinion of
the Chief Justice of India should have primacy, since he is the head
of the Indian Judiciary and pater familieas of the judicial fraternity.
We find ourselves unable to accept this contention. It is difficult to
see on what principle can primacy be given to the opinion of one
constitutional functionary, when clause (I) of Article 217 places all E
the three constitutional functionaries on the same pedestal so far as
the process of consultation is concerned and does not make any
distinction between one copstitutional functionary and another. Each
of the three constitutional functionaries occupies a high constitutional
office and clause ( l) cf Article 217 ;xovides that the appointment of
a High Court Judge shall be made after consulation with all the F
three constitutional functionaries without assigning superiority to
the opinion of one over that of another. It is true that the Chief
Justice of India is the head of the Indian Judiciary and may be
figuratively described as pater famil.leas of the brotherhood of Judges
but the Chief Justice of a High Court is also an equally important
cons:itutional functionary and it is not possible to say tlrnt so far as G
the consultative process is concerned, he is in any way less important
tban the Chief Justice of India. In fact, urider the constitutional
scheme, the Chief Justice of a High Court is not subject to the
administrative superintendence of the Cl1ief Justice of India nor is
he under the control or supervision of the Chief Justice of India. It H
is only the power of hearing appeals a ;ainst the decision :or the
Chief Justice of a Hi~h Court that is possessed by the Cqief Jqstii,:i;
544 SUPREME COURT REPORTS [1982) 2 s.c.R.

A
of India and there, his superiority over the Cnief Justice of High
Court ends. If we look at the raison d'etre of the provision for
consultation enacted in clause (I} of Article 217, it will be obvious
that the opinion given by the Chief Justice of the High Court must
have atleast equal weight as the opinion of the Chief Justice of India,
because ordinarily the Chief Justice of the High Court would be in a
better position to know about the competence, character and integrity
of the person recommended for appointment as a Judge in the High
Court. The opinion of the Governor of the State, which means the
State Government would also be entitled to equal weight, not in
regard to the technical competence of the person recommended and
c his knowledge and perception of law on which the Chief Justice of
the High Court would be the proper person to express an opinion,
but in regard to the character and integrity of such person, his
antecedents and his social philosophy and value-system. So also the
opinion of the Chief Justice of India would be valuable because he
would not be affected by caste, communal or other parochial consi-
D derations and standing outside the turmoil of local passions and
prejudices, he would be able to look objectively at the problem of
appointment. There is therefore, a valid and intelligible purpose for
which the opinion of each of the three constitutional functionaries
is invited before the Central Government can take a decision whether
or not to appoint a particular person as a J u<lge in a High Court.
E The opinion of each of the three constitutional functionaries is
entitled to equal weight and it is not possible to say that the opinion
of the Chief Justice of India must have primacy over the opinions of +
the other two constitutional functionarjes. If primacy were to be
given to the opinion of the Chief Justice of India, it would, in effect
and substance, amount to concurrence, because giving primacy would
F mean that his opinion must prevail over that of the Chief Justice of
the High Court and the Governor of the State, which means that the -
Central Government must accept his opinion. But as we pointed out
earlier, it is only consultation and not cocurrence of the Chief Justice
of India that is provided in clause (1) of Article 217. When, in the
course of debates in the Constituent Assembly, an amendment was
G moved that the appointment of a Judge of a High Court or the
Supreme Court should be made with the concurrence of the Chief
Justice of India, Dr. B.R. Ambedkar made the following comment
which is very significant :

H "With regard to the question of the concurrence of the
chief Justi9e, it ~eem$ to me th11t those advocate that pro-
S.P. GUPTA v. UNION (Bhagwati, .i.) 545

A
position seem to rely implicitly both on the impartiality of
the Chief Justice and soundness of his judgment. I person-
ally feel no doubt that the Chief Justice is 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 B
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."
c
It is therefore, clear that where there is difference of opinion amongst
the constitutional functionaries in regard to appointment of a Judge
in a High Court, the opinion of none of the c,mstitutional functiona-
ries is entitled to primacy but after considering the opinion of each of
the constitutional functionaries and giving it due weight, the Central D
Government is entitled to come to its own decision as to which
opinion it should accept in deciding whether or not to appoint the
• I
particular person as a Judge. So also where a Judge of the Supreme
Court is to be appointed, the Chief Justice of India is required to be
consulted, but again it is not concurrence but only consultation and
the Central Government is not bound to act in accordance with the E
opinion of the Chief Justice of India though it is entitled to great
weight as the opinion of the head of the Indian Judiciary. The
ultimate power of appointment rests with the Central Government
and that is in accord with the constitutional practice prevailing in all
democratic countries. Even in the United Kingdom, a country from
which we have inherited our system of administration of the Justice F
and to which many of our anglophiles turn with reverence for
inspiration and guidance, the appointment of High Court Judges is
made by or on the advice of the Lord Chancellor, who is a member
• of the Cabinet while appointments to the· Court of appeal and the
House of Lords and to the office' of Lord Chief Justice, Master of
the Rolls and President of the Family Division are made on the
G
advice of the Prime Minister after consultation with t!1e Lord
Chancellor. Thus the appointment of a Judge belonging to the
higher echelons of judicial service is wholly in the hands of the
Executive. So also in the common-wealth countries like Canada,
Australia and New Zealand, the appointment of High Court and H
Supreme Court Judges is made by the Executive. This is, of course,
pot an ideal system of appointm~nt of J ud~es, but the re!!SOQ why
546 SUPRBMB COURT RBPORTS ( 1982) 2 S.C.R.

A the power of appointment of Judges is left to the Executive appears
to be that the Executive is responsible to the Legislature and through
the Legislature, it is accountable to the people who are consumers
of justice. The power of appointment ~f Judges is not entrusted to
the Chief Justice of India or to the Chief Justice of a High Court
because they do not have any accountRbility to the people and even
B
.if any wrong or improper appointment is made, they are not liable to
account to anyone for such appointment. The appointment of a
Judge of a High Court or the Supreme Court does not depend
merely upon the professional or functional suitability of the person
concerned in terms of experience or knowledge of law though this
c requirement is certainly important and vital and ignoring it might
result in impairment of the efficiency of administration of justice,
but also on several other considerations such as honesty, integrity
and general pattern of behaviour which would ensure dispassionate .
and objective adjudication with an open mind, free and fearless
approach to matters in issue, social acceptability of the person con-
D cerned to the high judicial office in terms of current norms and ethos
of the society, commitment to democracy and the rule of law, faith
• in the constitutional objectives indicating his approach towards the
Preamble and the Directive Principles of State Policy, sympathy or
absence thereof with the constitutional goals and the needs of an acti-
vist judicial system. These various considerations, apart from profes-
E sional and functional suitability, have to be taken into account
while appointing a judge of a High Court or the Supreme Court and
it is presumably on this account that the power of appointment is
entrusted to the Executive. But, as pointed out above, there is a
fetter placed upon the power of appointment by the requirement of
consultation with the Chief Justice of the High Court, the Governor
F of the State and the Chief Justice of India in case of appointment of ....
a High Court Judge and with the Chief Justice of India in case of
appointment of a Supreme Court Judge.

However, at this stage, it is necessary to point out that so far
G as appointment of a Supreme Court Judge is concerned, it is not
cousultation with the Chief Justice of India alone that is provided in
clause (2) of Article 124. Undoubtedly, consultation with the Chief
Justice of India is a mandatory requirement but in addition "such of
the Judges of the Supreme Court and of the High Courts" as the
H
Central Government may deem necessary are also required to be
consulted. One argument advanced on behalf of the petitioners was
that w!ien clause (2) of Article 124 µs(!s (he expression "after consql-
S.P. GUPTA v. UNION (Bhagwati, J.) 547

tation with such of the Judges of the Supreme Court and of the High A
)-
Courts in the States as the President may deem necessary for the
purpose", it does not impose a mandatory obligation on the Central
Government to consult one or more of the Judges of the Supreme
Court or the High Courts but it leaves it to the discretion of the
Central Government whether or not to consult one or more of the
Judges of the Supreme Court or the High Courts before making B
appointment of a Judge of the Supreme Court. The petitioners
contended that the Central GovernP.Jent may, if it thinks fit, consult
one or more of the Judges of the Supreme and of the High Courts or
it may not consult any and where it does not, the Chief Justice of
India will be the only constitutional functionary required to be
consulted and in such a case the Central Government must accept c
the opinion of the Chief Justice of India as binding upon it. We do
not think this argument is well founded. In the first place it is not
justified by the plain language of clause (2) of Article 124. This
clause clearly provides for consultation as a mandatory exercise and
the only matter which is left to the discretion of the Central Govern-
ment is the choice of the Judge of the Supreme Court and the High
D
Courts who may be consulted. The words "as the President may
deem necessary" qualify only the preceding words ''such of the
Judges of the Supreme Court and of the High Courts in the States."
Which of the Judges of the Supreme Court and of the High Courts
should be consulted is left to the discretion of the Central Govern-
ment but consultation there must be with one or more of the Judges
of the Supreme Court and of the High Courts. The Central
Government must consult at least one Judge out of the Judges of
the Supreme Court and of the High Courts before exercising the
power of appointment conferred by clause (2) of Article 124. This
requirement is prescribed obviously because the Constitution makers F
did not think it desirable that one person alone, however high and
eminent he may be, should have a predominent voice in the appoint-
ment of a Judge of the Supreme Court. But it seems that this
requirement is not complied with in making appointments on the
Supreme Court Bench presumably under a misconception that it is
not a mandatory but only an optional provision. The result is that G
the Chief Justice of India alone is consulted in the matter of appoint-
ment of a Supreme Court Judge and largely as a result of a healthy
practice followed through the years, the recommendation of the
Chief Justice of India is ordinarily accepted by the Central Govern-
ment, the consequence being that in a highly important matter like H
the appointment of a Supreme Court Judge, it i$ t4e decision of the
548 SUPREME COURT REPORT (1982) 2 S.C.R.

A Chief Justice of India which is ordinarily, for all practical purposes
final. But, as it happens, there are no criteria laid down or evolved
to guide the Chief Justice in this respect nor is there any consultation
with wider interests. This is, to our mind, not a very satisfactory
mode of appointment, because wisdom and experience demand that
no power should be vested in a single individual however high and
8 great he may be and howsoever honest and well meaning. We are all
human beings with our own likes and dislikes, our own predelic-
tions and prejudices and our mind is not so comprehensive as to be
able to take in all aspects of a question at one time and more over
sometimes, the information on which we base our judgments may be
incorrect or inadequate and our judgment may also sometimes be
c imperceptibly influenced by extraneous or irrelevant considerations.
It may also be noticed that it is not difficult to find reasons to justify
what our bias or predeliction or inclination impels us to do. It is for
this reason that we think it is unwise to entrust power in any signi-
ficant or sensitive area to a single individual, howsoever high or
important may be the office which he is occupying. There must be
D checks and controls in the exercise of every power, particularly when
it is a power to make important and crucial appointments and it
must be exercisable by plurality of hands rather than be vested in a
single individual. That is perhaps the reason why the Constitution
makers introduced the requirement in clause (2) of Article 124 that
one or more Judges out of the Judges of the Supreme Court and of
E
the High Courts should be consulted in making appointment of a
Supreme Court Judge. But even with this provision, we do not
think that the safeguard is adequate because it is left to the Central
Government to select any one or more of the Judges of the Supreme
Court and of the High Courts for the purpose of consultation. we·
F would rather suggest that there must be a collegium to make recom-
mendation to the President in regard to appointment of a Supreme
Court or High Court Judge. The recommending authority should
be more broad-based and there should be consultation with wider
interests. If the collegium is composed of persons who are
expected to have knowledge of the persons who may be fit for
G appointment on the Bench and of qualities required for appoint-
ment and this last requirement is absolutely essential-it would go a
long way towards securing the right kind of Judges, who would be
truly independent in the sense we have indicated above and who
would invest the judicial process with significance and meaning for
ff the deprived and exploited sections of humanity. We may point out
that even countries like Australia and New Zealand have veered
ro!ln~ to the view that t~ere s~oµld be a Judicial Commission for
S.P. GUPTA v. UNION (Bhagwati, J.) 549

appointment of the higher judiciary. As recently as July 1977 the
Chief Justice of Australia publicly stated that the time had come for
such a commission to be appointed in Australia. So also in New
Zealand, the Royal Commission on the Courts chaired by
Mr. Justice Beattle, who has dow become the Governor General of
New Zealand, recommended that a Judicial Commission should
8
consider all judicial appointments including appointments of High
Court Judges. This is a matter which may well receive serious atten-
tion of the Government of India.

The position of an Additional Judge : Article 224.
c
We then turn to consider what is the position of an additional
Judge under the Constitution. This question is of the greatest
importance because as against a total sanctioned strength of 308
permanent Judges, there is a total sactioned strength of as many as
97 additional Judges, which means that the total sanctioned strength
of additional Judges is almost one third the total sanctioned D
strength of permanent Judges. There are a large number of additio-
nal Judges in various High Courts whose tenure is short and preca-
rious and their fate should therefore naturally be a matter of
serious concern for this Court. The power to appoint an additional
Judge in a High Court is to be found in clause (I) of Article 224
which reads as follows : E
• "If by reason of any temporary increase in the busi-
ness of a High Court or by reason of arrears of work
therein, it appears to the President that the number of the
Judges of that Court should be for the time being increased,
the President may appoint duly qualified perso::s to be F .
additional Judges of the Court for such period not exceed-
ing two years as he may specify."

Clause (2) of Article 224 provides for appointment of an acting
Judge during the period when any Judge of a High Court other
than the Chief Justice is, by reason of absence or for any other G
reason, unable to perform the duties of his office or is appointed
temporarily as Chief Justice. It is obvious that the tenure of an
acting Judge is by its very nature limited because he is appointed to
act as a Judge only during the period when the permanent Judge in
whose place he is acting is unable to perform the duties of his office H
and be would therefore cease to be a Judge as soon as the perma-
nent Judge resumes his duties. We are not concerned in these writ
550 SUPREME COURT REPORTS [1982] 2 s.c.R.

A petitions with the case of an acting Judge and we need not there-
fore dwell any further on this clause Clause (3) of Article 224
provides inter alia that no person appointed as an additional Judge
shall hold office after attaining the age of 62 years. Therefore even
if an additional Judge has been appointed for a period of two years
he would cease to be a Judge if he attains the age of 62 years prior
B to the expiration of his term of two years.

It is clear from the provisions of clause (I) of Article 224 that
the maximum period for which an additional Judge can be appointed
by the President is two years. This provision for appointment of a
c Judge for a period not exceeding two years seems to be peculiar to
this country. There is no such practice of appointing a Judge for
a short term either in the United Kingdom or in the United States
of America. Even in India, there are no Judges either in the Supreme
..
Court or in the subordinate judiciary whose tenure is so short. It is
rather an unusual provision and in order to understand its true
D scope and effect, it is necessary to trace briefly its historical evolu-
tion.

There was no provison in the High Courts Act or the Charter
Act, 1861 for appointment of an additional Judge with a restricted
tenure in a High Court. It was for the first time in the Government
E of India Act, 19 I 5 that a provision was enacted for appointment of
additional Judges Sub-section (2) of section I 0 I provided that each
High Court shall consist of the Chief Justice and as many other
Judges as His Majesty may think fit to appoint and clause (i) of the
provision to that sub-section authorised the Governer General in
F
Council to appoint persons to act as additional Judges of any High
Court for such period not exeeding two years as may be required.
..
The additional Judges were to have all the powers of a Judge of the
High C·iurt appointed by His Majesty. The Government of India
Act 1915 was replaced by the Government of India Act, 1935 and
section 220 of that Act provided that every High Court shall consist
of a Chief Justice and such other Judges as His Majesty may from
G
time to time deem it nece>sary to appoint and there was a proviso to
this section which said that the Judges so appointed together with
any additional Judges appointed by the Governor General shall at
no time exceed in number such maximum number as the Governor-
H General may by order fix in relatio11 to that Court. Section 222
sub-section (3) provided for appointment of additional Judges in
t~\lS\l terms ;
S.P. GUP"i'A v. iJNiON (Biiagwati, J.) 551
A
"Section 222 (3)-If by reason of any temporary in-
crease in the business of any High Court or by reason of
arrears of work in any such Court it appears to the
Governor-General that the number of the Judges of the
Court should be for the the time being increased, the
Governor-General (in his discretion) may, subject to the B.
foregoing provisions of this chapter with respect to the
maximum number of Judges, appoint persons duly qualified
for appointment as Judges to the additional Judges of the
Court for such period not exceeding two years as he may
specify."
c
The system of appointment of additional Judges was therefore in
vogue when the Constituent Assembly met to frame the Constitution.
Article 199 of the Draft Constitution was al most in the same terms
as sub-section 3 of Section 22: of the Government oflndia Act, 1935.
There was also Article 198 in the Draft Constitution which in clause
(!) provided for appointment of an acting Chief Justice and in D.
clause (2) for appointment of an acting Judge. The provision for
appointment of an acting Judge made in clause (2) of Article 198
was that when the office of any Judge of a High Court is vacant or
when any such Judge is appointed to act temporarily as a Chief
Justice or is unable to perform the duties of his office by reason of
absence or otherwise, the President may appoint a person duly E
qualified for appointment as a Judge to act as a Judge of that Court.
The acting Judge contemplated by this clause of Article 198 was
therefore clearly a temporary Judge. Now when Artitcles 198 and
199 in the Draft Constitution came to be considered in the Consti-
tuent Assembly, a number of representations were received suggesting
that both these articles should be deleted from the Constitution. F
It was felt by many that the practice of appointing acting or addi-
tional Judges was pernicious and it should be done away with Tej
Bahadu r Sapru expressed his firm opposition to this practice of
appointing acting or additional Judges in the course of his speech in
the Constituent Assembly. He said, decrying this practice in no
uncertain terms :
G

"Additional Judges, under the old Constitution were
appointed by the Governor-General for a period not
exceeding two years. I do not know whether that condition H
has been reproduced in the proposed Constitution. This
prohibition, however, does not apply to acting judges or
552 sui>trnME COURT REPORTS [19si] i s.c.R.
A temporary judges. I think the rule in future should be that
any barrister or advocate, who accepts a seat on the Bench
shall be prohibited from resuming practice anywhere on
retirement. I would not, however, apply this to temporary
judges taken from the services who hold a seat on the
Bench for a few months, but I would add that the practice
B of appointing additional and temporary judges should be
definitely given up. When I said at the Round Table Con-
ference that there were acting additional and temporary
judges in India, some of the English lawyers not accustomed
to Indian Law felt rather surprised. I am also of the opinion
that temporary or acting judges do greater harm than
c permanent judges when after their seat on the Bench for a
short period they revert to the Bar. A seat on the Bench
gives them a pre-eminence over their colleagues and embar-
rasses subordinate judges who were at one time under
their control and thus instead of their helping justice they
act as a hindrance to free justice. I have a very strong feeling
D in this matter and have during my long experience seen the •
evil effects of unchecked resumption of practice by barristers
and advocates."

There were also many others who expressed the same view. The
E Drafting Committee agreed with this view and expressed the opinion
that "it would be better to delete Articles I 98 and I 99 relating to
the appointment of temporary and additional Judges, than to retain
those articles without the ban on practice by persons who hold office
as additional or temporary judges." The Drafting Committee took
the view that "it was possible to discontinue the system of appoint-
F ment of temporary and additional judges in the High Courts
altogether by increasing, if necessary, the total number of permanent
judges of such Courts. The Constituent Assembly adopted the
recommendation of the Drafting Committee to delete Articles 198(2)
and 199 of the Draft Constitution providing for appointment of acting
and additional Judges in High Courts, with the result that when the
G Constitution came to be enacted, there was no provison in the Consti-
tution for appointment of acting or additional Judges.

It is clear from the discussions which took place in the
Constituent Assembly that the Constitution makers realised that an
H acting or additional Judge would have to go back to the Bar on the
expiration of his term of office and his tenure was of a strictly limited
s.:P. GUPTA v. UNION (Biwgwati, J.) 5s3
A
duration. The Constitution makers did not oppose the practice of
appointing acting or additional Judge an on the ground that on the
expiration of his term of office, an acting or additional Judge would
have to go back to the Bar, but their anxiety was that after going
back to the Bar he would resume his practice and this might lead to
abuses and it was this undesirable consequence which they wanted to II
prevent and that is why they deleted Articles 198(2) and 199 with a
view to abolishing the practice of appointing acting or additional
Judges. The underlying postulate of Articles 198 (2) and 199 was
that an acting or additional Judge would come back to the Bar on
the expiration of his term and start practice and this was intended to
be stopped, but since it was not possible to debar an acting or addi-
tional Judge from practising after he came back on the expiration of
c
term, it was decided that the institution of acting and additional
Judges should be done away with. There was no assumption by the
Constitution makers that an acting or addititional Judge would
necessarily be made permanent and he would not have to go back to
the Bar. On the contrary, going back to the Bar was clearly con- D
templated and hence Articles 198 (2) and 199 were deleted. The
Constitution makers also thought that it would be possible to
discontinue the system of appointing acting and additional Judges
) altogether without any detriment to early disposal of cases, if the
total number of permanent Judges was sufficiently increased.
E
But within six years of the coming into force of the Constitu-
tion it was found that the arrears in the High Courts were increasing
and it was becoming difficult to bring them under control. There
was Article 224 in the Constitution which provided that the Chief
Justice of a High Court may at any time with the previous consent
of the President request any retired Judge to sit and act as a Judge F
of the High Court. But this provision fur recalling retired Judges to
function on the Bench of a High Court for short periods was found
to be neither adequate nor satisfactory and it was of no assistance
in reducing the arrears of cases which were mounting-up from year
to year. Parliament in its constituent capacity, therefore, decided to
introduce two provisions: one for appointment of additional Judges
G
to clear off the arrears and the other for the apponitment of acting
Judges in temporary vacancies and with that end in view, enacted
the Constitution (Seventh Amendment) Act, 1956. This amending
Act substituted the existing Article 224 by a new Article 224 which ff
reads as follows :
554 SUPREME cotJR.'r REPORTS [i98~) 2 s.c.tt

A "Appointment of additional and acting Judges :

(I) If by reason of any temporary increase in the business
of a High Court or by reason of arrears of work
therein, it appears tu the President that the number of
the judges of that Court should be for the time being
8 increased, the President may appoint duly qualified
persons to be additional judges of the Court for such
period not exceeding two years as he may specify.

(2) When any judge of a High Court other than the Chief
Justice is by reason of absence or for any other reason
c unable to perform the duties of his office or is appointed
to act temporarily as Chief Justice, the President may
appoint a duly qualified person to act as a Judge of
that Court until the permament judge has resumed his
office.
D (3) No person appointed as an additional or acting judge
of a High Court shall hold office after attaining the
age of sixty-two years."

The existing Article 224 was added as new Article 224A after the
new Article 224. Clause (1) of Article 217 was also simultaneou.sly
,
amended with a view to making provision in regard to an acting or
E additional Judge. We have already set out the amended clause(!)
of Article 217 in an earlier part of the Judgment and we need not,
therefore, reproduce it here once again.

The first question which arises for determination under Article
224 clause (!) is as to when can an additional Judge be appointed by
F the President. This article confers power on the President to appoint
an additional Judge. If by reason of any temporary increase in the
business of a High Court or by reason of arrears of work therein, it
appears to the President that the number of the judges of that Court
should be for the time being increased and in that event, he can
G appoint an additional Judge for such period not exceeding two
years as he may specify. It must appear to the President that either
by reason of temporary increase in the business of the High Court
or by reason of accumulation arrears of work in the High Court, it
is necessary to increase the number of the Judges of that Court for
H the time being. The power to appoint an additional Judge cannot
S.i>. GUPTA v. UNION (Bl1agwati, i.) 555
therefore be exercised by the President unless there is either A
temporary increase in the business of the High Court or there
is accumulation of arrears of work in the High Court and
even when one of these two conditiom exists, it is necessary that the
President must be further satisfied that it i > necessary to make a
temporary increase in the number of Judges of that High Court. The
B
words "for the time being'' clearly indicate that the increase in the
number of judges which the President may make by appointing
additional Judges whould be temporary with a view to dealing with
the temporary increase in the business of the High Court or the
arrears of work in the High Court. Article 224 clause (I) did not
contemplate that the increase in the number of Judges should be
for an indefinite duration. The object clearly was that an additional
c
Judge should be appointed for a short period in order to dispose of
the temporary increase in the business of the High Court and/or to
clear off the arrears of pending cases. There is sufficient indication
in clause (I) of Article 224 that the appoinments of additional Judges
were intended to be of short duration and Parliament expected that
D
sufficient number of additional Judges would be appointed so as to
dispose of the temporary increase in the work or the arrears of
pending cases within a period of two years or thereabouts. That is
why clause (1) of Article 224 provided that additional Judges may
be appointed for a period not exceeding two years. The underlying
idea was that there should be an adequate strength of permanent E
Judges in each High Court to deal with its normal institutions and
so far as the temporary increase in the work or the arrears of pend-
ing cases were concerned, additional Judges appointed for a period
not exceeding two years should assist in disposing of such work. This
was the reason why the Law Commission in its Fourteenth Report
stated in paragraphs 54 and 57 of Chapter 6 in Vol. I : F
''54. The large increase in the volume of annual
institutions which has been referred to earlier must now, we
think, be taken as a permanent feature. This position accor·
dingly necessitates a thorough revision of existing ideas
regarding the number of judges required for each High G
Court. The strength of the High Courts has been increased
from time to time. In doing this, however, the post-Consti-
tutional developments which have thrown a much heavier
burden on the High Courts have, in our view, not been
adequately taken into account. To expect the existing H
number of judges in the various High Courts to deal
556 sui>itEt.te couat REPoitrs (1982) 2 s.c.t.

A efficiently with the vastly increased volume of work is, in
our opinion, to ask them to attempt the impossible. As
pointed out to us by a senior counsel, if there is a conges-
tion on the roads due to an increase in traffic, the remedy
is not to blame the traffic but to widen the roads.

The first essential therefore, is to see that the strength
B of every High Court is maintained at a level so as to be
adequate to dispose of what may be called its normal insti-
tutions. The normal strength of a High Court must be
fixed on the basis of the average annual institutions of all
types of proceedings in a particular High Court during
c the last three years. This is essential in order to prevent
what may be termed the current file of the Court falling into
arrears and adding to the pile of old cases. The problem
of clearing tlie arrears can be satisfactorily dealt with
only after the normal strength of each court has been
brought upto the level required to cope with its normal
D institutions. We suggest that the required strength
of the High Court of each State should be fixed in
consultation with the Chief Justice of that State and the
Chief Justice of India and the strength so fixed should be
reviewed at an interval of two or three years. Such a review
will be necessary not only by reason of changing conditions
E but because the implementation of our recommendations
made elsewhere will lead to a quicker disposal of work in
the subordinate courts which, in its turn, will result in an
increase in the work of the High Courts.

57. We are of the view that the provisions of article
F 224 of the Constitution should be availed of and additional
judges be appointed for the specific purpose of dealing with
these arrears. The number of such additional judges
required for each High Court for the purpose of dealing
with the arrears will have to be fixed in consultation with
the Chief Justice of India and the Chief Justice of the State
G High Court after taking into consideration the arrears in
the particular court, their nature and the average disposal
of that Court. The number of additional judges to be fixed
for this purpose should be such as to enable the arrears to be
cleared within a period of two years. The additional judges
H so appointed should, in our view be utilised as far as possi-
ble exclusively for the purpose of disposing of arrears and
not be diverted to the disposal of current work. Pari passu
S.P. GUPTA v. UNION (Biragwati, J.) 551
A
with the disposal of the arrears, the permanent strength of
the High Court will have to be brought up to and maintain-
ed at the required level, care being taken to see that their
normal disposal keeks pace with the new institutions and
that they are not allowed to develop into arrears. The
appointment of additional Judges for the exclusive purpose
B
of dealing with the arrears is, in our view, called for in a
large number of High Courts."

The sentence underlined by us in paragraphs 57 clearly shows that
according to the Law Commission also the intendment of clause (I)
of Article 224 was that sufficient number of additional Judges would c
be appointed "so as to enable the arrears to be cleared off within
a period of two years." The same note was struck by P.N. Sapru
when he said in the course of the Debates in Rajya Sabha during
the discussion of the Constitution (Seventh Amendment) Bill: It is
necessary to have additional Judges for the disposal of arrears.
These arrears, I hope, represent a temporary situation ................. . D
Once these arrears have been cleared off, it will be possible for us to
fix or to determine the permanent strength of our Courts with some
degree of assurance." It would thus seem that on a true interpreta-
tion of clause (I) of Article 224 it was never intended that additional
Judges should go on being appointed and reappointed term after
term. Now it is obvious that if additional Judges were appointed E
according to the true intendment of clause (I) of Article 224, they
would be temporary Judges appointed for a short duration to clear
off the arrears and once the arrears are cleared off, which was expec-
ted by Parliament to be achieved within not more than two years
they would, on the expiration of their term, go back to the Bar or
to the District Judicial service. Their tenure being for a short F
period limited by the time expected to be taken in clearing off the
arrears- such time, in any event, being hopefully not more than two
years-they would know that, on the expiration of their term, they
would have to go back. They would have no right to be appointed
or even to be considered for appointment as permanent Judges,
because when they accepted appointment as additional Judges under G
clause (I} of Article 224, they would have known that they were
appointed only as temporary Judges for a short period in order to
clear off the arrears.
H
But what happened in practice was that the true intendment
and purpose of clause (I) of article 224 was never carried into effect.
558 SUPREME cotJR.r REPORTS [I 982.J 2 s.c.i.

A The Government did not increase the strength of permanent Judges
, in different High Courts adequately so as to be able to cope with
the normal institutions. Though the Law Commission had recom·
mended in its Fourteenth Report that the normal strength of a High
Court must be fixed on the basis of average annual institution of all
types of proceed in gs in the High Court during the last three years,
B this recommendation was not heeded with the result that even the
current institutions in many of the High Courts could not be dis po·
sed of by the inadequate number of permanent Judges and they
started adding to the existing arrears. Of course, it was not only
the Government which was responsible for not increasing adequately
the strength of permanent Judges but the Chief Justices of many High
c Courts were also remiss in looking after the interests of their High
Courts, in as much they too did not ask the Government for increase
in the strength of permanant Judges. Wherever the fault may lie
and it is not necessary for the purpose of these writ petitions to fix
the blame, the consequence was that the arrears in the High Courts
started growing menacingly from year to year. The requisite number
D of additional Judges was also not appointed by the Government
though clause (l) of Article 224 clearly contemplated that sufficient
number of additional Judges would be appointed in order to clear
off the arrears within a period of about two years. The old arrears
therefore continued to exist and new arrears were added out of the
current file of cases which remained undisposed of by the existing
E
strength of Judges. The strength of additional Judges was not fixed
realistically and a much lesser number of additional Judges than
required for the purpose of clearing off the arrears within a period
of about two years were appointed in the different High Courts from
time to time with the result that the arrears continued to increase
F and the need for additional Judges continued to subsist. The un-
fortunate consequence was that the additional Judgeship became a
gateway for entering the cadre of permanent Judges. Whenever a
person was appointed as a Judge in a High Court, he would
be first appointed an additional Judge and only when a vacancy
occurred in the post of a permanent Judge, he would be confirmed
G as a Permanent Judge in that vacancy in accordance with the senio-
rity amongst the additional Judges. The practice therefore grew up
of a person being first appointed as an additional Judge and
then being confirmed as a permanent Judge in the same High
Court. The Union of India at the instance of the petitioners
H filed before us a statement showing that in almost all cases
barring a negligible few, every person was appointed first as an
S.P. GUPTA v. UNION (Bhagwati, J.) 559

additional Judge in the High Co.urt and then confirmed as a perma- A
nent Judge in the same High Court as soon as a vacancy in the post
of a permanent Judge became available to him. The entire object
and purpose of the introduction of clause (I) of Article 224 was
perverted and additional Judges were appointed under this Article
not as temporary Judges for a short period who would go back on
the expiration of their term as soon as the arrears are cleared off, B
but as Judges whose tenure, though limited to a period not exceed-
ing two years at the time of each appointment as an additional
Judge, would be renewed from time to time until a berth was found
for them in the cadre of permanent Judges. By and large, every
person entered the High Court judiciary as an additional Judge in
the clear expectation that as soon as a vacancy in the post of a
c
permanent Judge became available to him in the High Court he
would be confirmed as a permanent Judge and if no such vacancy
became available to him until the expiration of his term of office, he
would be reappointed as an additional Judge for a further term in

- the same High Court. Therefore, far from being aware that on the
expiration of their term, they would have to go back because they
were appointed only as temporary Judges for a short period in order
to clear off the arrears-which would have been the position if
D

clause (I) of Article 224 had been implemented according to its true
> intendment and purpose-the additional Judges entered the High
Court judiciary with a legitimate expectation that they would not
E
have to go back on the expiration of their term but they would be
either reappointed as additional Judges· for a further term or if in the
meanwhile, a vacancy in the post of a permanent Judge became
available, they would be confirmed as permanent Judges. This
expectation which was generated in the minds of additional
Judges by reason of the peculiar manner in which clause (I) of F
Article 224 was operated, cannot now be ignored by the Government
and the Government cannot be permitted to say that when the term
of an additional Judge expires, the Government can drop him at its
sweet will. By reason of the expectation raised in his mind through
- a practice followed for almost over a quarter of a century, an addi-
tional Judge is entitled to be considered for appointment as an G
additional Judge for a further term on the expiration of his original
term and if in the meanwhile, a vacancy in the post of a permanent
Judge becomes available to him on the basis- of seniority amongst
additional Judges, he has a right to be considered for appointment as
a permanent Judge in his High Court.
560 SUPREME COURT REPORTS (1982] 2 S.C.1t.
A It is clear on a plain reading of Article 217 clause (1) that
when an additional Judge is to be appointed, the procedure set
out in that article is to be followed. Clause (I) of Article 217
provides that "Every Judge" of a High Court shall be appointed
after consultation with the Chief Justice of India, the Governor of
the State and the Chief Justice of the High Court The expression
8 "Every Judge" must on a plain natural construction include not
only a permanent Judge but also an additional Judge. It is
significant to note that whenever the Constitution makers intended
to make a reference to a permanent Judge, they did so in clear and
explicit terms as in clause (2) of Article 224. Moreover, there is
inherent evidence in Article 217 clause (I) itself which shows that
c the expression "Every Judge" is intended to take in an additional
Judge as well. Clause (I} of Article 217 says that "Every Judge ...
shall hold office in case of an additional Judge ..... as provided in
Article 224 which clearly suggests that the case of an additional
Judge is covered by the opening words "Every Judge". We may

D
also consider what would be the consequence of construing the
word "Every Judge" as meaning only a permanent Judge. On that
construction, clause (I) of Article 217 will not apply in relation to
appointment of an additional Judge and it would be open to the
-
Central Government under Article 224 clause (I) to appoint an addi-
tional Judge without consulting any of the constitutional functiona-
ries specirled in clause (I) of Article 217. This could never have been
E intended by the Constitution makers, who made such elaborate
provisions in the Constitution for safeguarding the independence of
the judiciary. We must therefore, hold that no additional Judge
can be appointed without complying with the requirement of clause
(I) of Arricle 217.
F
Now, when the term of an additional Judge expires he ceases
to be a Judge and therefore, if he is to continue as a Judge, he must
be either reappointed as an additional Judge or appointed as a per-
manent Judge. In either case, clause (I) of Article 2 i 7 would
operate and no reappointment as an additional Judge or appoint-
G ment as a permanent Judge can be made without going through the
procedure set out in Article 217 clause (1). Of course, an additional
Judge has a right to be considered for such reappointment or appoint-
ment, as the case may be, and the Central Government cannot be
heard to say that the additional Judge need not be considered. The
H additional Judge cannot just be dropped without consideration.
The name of the additional Judge would have to go through the
procedure of clause (I) of Article 217 and after consultation with
S.P. GUPTA v. UNION (Bhagwati, J.) 561
A
the Chief Justice of India, the Governor of the State and the Chief
Justice of the High Court, the Central Government would have to
decide whether or not to reappoint him as an additional Judge or to
appoint him as a permanent Judge. If the procedure for appoint-
ment of a Judge followed as a result of a practice memorandum
issued by the Central Government is that the proposal for appoint- 8
ment of a Judge may ordinarily originate from the Chief Justice of
the High Court and may then be sent to the Governor of the State
and thereafter to the Chief Justice of India through the Justice
Ministry for their respective opinions before a decision can be taken
by the Central Government whether or not to appoint the person
proposed the name of the additional Judge must be sent-up by the c
Chief Justice of the High Court with his recommendation whether
he should be reappointed as an additional Judge or appointed as
a permanent Judge or not and it must go upto the Central Govern·
ment with the opinions of the Chief Justice of India, the Governor
of the State and the Chief Justice of the High Court, so that the
Central Government may, after considering such opinions, make-up D
its mind on the question of reappointment or appointment as the
case may be. But this is the only right possessed by the additional
Judge. The additional Judge is not entitled to contend that he
> must automatically and without any further consideration be
appointed as an additional Judge for a further term or as a perma-
nent Judge. He has to go through the process of clause (I) of E
Article 217 and to concede to him the right to be appointed either
as an additional Judge for a further term or as a permanent Judge
would be to fly in the face of Article 217 clause (1). If the addi-
tional Judge is entitled to be appointed without anything more, why
should the process of consultation be gone through in regard to his
appointment? Would consultation with the Chief Justice of India, F
the Governor of the State and the Chief Justice of the High Court
not be reduced to a farce ? It would be a mockery of consultation
with such high constitutional dignitaries. There can, therefore, be
no doubt that an additional Judge is not entitled as a matter of
right to be appointed as an additional Judge for a further term on
the expiration of his original term or as a permanent Judge. The G
only right he has is to be considered for such appointment and this
right also belongs to him not because clause (I) of Article 224
confers such right upon him, but because of the peculiar manner
in which clause (!) of Article 2H has been operated all these
years, H
562 SUPREME COURT REPORTS [19821 2 s.c.R.
A But the question then arises what are the factors which can
legitimately be taken into account by the Central Government in
deciding whether or not to reappoint an additional Judge for a
further term or to appoint him as a permanent Judge. The argument
of the petitioners was that an additional Judge is not on probation.
He is as much a Judge as a permanent Judge with the same jurisdic-
B tion and the same powers and to treat him as if he were 0.1 proba-
tion would not onlY, detract from his status and dignity but also
affect his independence by making his continuance as a Judge depen-
dent on the good opinion of the Chief Justice of the High Court,
the Governor of the State and the Chief Justice of India. We find it
difficult to accept this argument in the face of the clear and unambi·
c guous language of clause (1) of Article 217. There are no limitations
in the language of clause( 1) of Article 217 as to what factors shall be
considered and what factors shall not be, but having regard to the
object and purpose of that provision namely, appointment of a High
Court Judge, it i~ obvious that fitness and suitability, physical, intel-
lectual and moral, would be the governing considerations to be taken
D into account in deciding the question of appointment. Now, when,
on the expiration of the term of an additionai Judge, the Central
Government is again called upon to consider whether or not he
should be reappointed as an additional Judge or appointed as a
pern~anent Judge, 1he Central Government would have to apply its
mind to the question whether such additional Judge possesses the
E requisite fitness and suitability for being reappointed or appointed
as the case may be. Public interest requires that only such person
should be appointed as a Judge who is physically, intellectually and
morally fit and suitable to be appointed as a Judge and it would be
contrary to public weal to appoint a person, who does not possess
the requisite fitness and sui1ability. The Central Government
F
would therefore be under a constitutional obligation to consider
whether the additional Judge, whose term has expired, is
fit and suitable to be reappointed as an additional Judge or
appointed as a permanent Judge. Now can clause (1) of Article
217 or Article 224 be so interpreted as to require the Central
G Government to reappoint an additional Judge fur a further term or
to appoint him as permanent Judge, even if at the time of web re·
appointment or appointment as the case may be, he is physically,
intellectually or morally unfit or unsuitable to be appointed as a
Judge. Of course, at the time when the question of re-appoint-
H ment of an additional Judge for a further term or his appointment
11s a permanent Jud~e comes up before the <;:entral Government
S.P. GUPTA v. UNION (Bhagwati, J.) 563

for consideration, the additional Judge would have two weighty cir-
cumstances in his favour: one, that he has experience as a Judge for
one term and the other, that it would not be desirable to send an
~dditional Judge back to the Bar. But even with these weighty
circumstances in his favour, he would have to satisfy the test of
fitness and suitability, physical, intellectual and moral, before the
Central Government can, consistently with its constitutional obliga- B
tion and in public interest, decide to reappoint him as ·an additional
Judge or appoint him as a permanent Judge. It is true that the
fitness and suitability of the additional Judge must have been con-
sidered by the Central Government at the time of his original
appointment, but when the question again comes-up for consi-
deration on the expiration of his term, the Central Govern- c
ment has to consider afresh, in the light of the material
then available, save and except material which was already with the
Central Government at the time of original appointment as to
whether he possesses the requisite fitness and suitability for being
appointed as a Judge. It would not be right to say that merely
because the fitness and suitability of the additional Judge is required D
to be considered again for the purpose of deciding whether he
should be reappointed for a further term or appointed as a perma-
nent Judge, it would amount to treating him as if he were on pro-
bation. An additional Judge is certainly not on probation in the
sense that his service cannot be terminated before the expiration of
his term unlike a "probationer who can be sent out at any time E
during the period of probation. It would also not be open to the
Chief Justice of the High or the Governor of the State or the Chief
Justice of India to sit in judgment over the quality of the work
turned out by the additional Judge during his term, because that
would be essentially an appellate function which can be discharged
only by the court entitled to hear appeals from the decisions of the
additional Judge. But every other consideration which bears on
the physical, intellectual and moral fitness and suitability of the
additional judge based on material other than that which was
with the Central Government at the time of orginal appointment
can and must be considered an l if the Central Government finds,
G
after consultation with the Chief Justice of the High Court, the
Governor of the State and the Chief Justice of India that the addi-
tional Judge is not fit and suitabk: for being appointed as a judge,
the Central Government may decide not to appoint him as an addi-
tional Judge for a further term or as a permanent Judge. So long as
the case of the additional Judge is considered by the Central
e
Government for reappointment or appointment as the case may be,
564 SUPREME COURT REPORlS [1982] 2 S.C R.

A the decision of the Central Government cannot be questioned except
on the ground that it was reached without full and elfective con-
sultation with the Chief Justice of the High Court, the Governor of
the State and the Chief Justice of India or that it was based on
irrelevant comiderations. Where such a challenge is made, the
burden is on the Central Government to show that there was full
B and effective consultation and the decision was based on relevant
considerations. In fact where an additional judge is not appointed
as an additional judge for a further term or as a permanent judge
despite the unanimous opinion of the Chief Justice of the High
Court and the Chief Justice of India. the decision of the Central
Government would piima facie be liable to attack and the
c burden would be heavy on the Central Government to show that it
had cogent reasons to disagree with the Chief Justice of the High
Court and the Chief Justice of India.

There was also one other argument advanced by the learned
Attorney General and it was that where an additional Judge is not
appointed for a further term or as a permanent Judge, he cannot
D
challenge the decision of the Central Government not to appoint
him, because clause (I) of Article 217 prescribes the procedure to
be followed only where an appointment is made and it has no
application where an appointment is not made. This argument is,
in our opinion, without force and must be rejected. An additional
Judge, as we have pointed out, has a right to be considered for
E
appointment as an additional Judge for a further term or in case
there is a vacancy in a permanent post, then for appointment as a
permanent Judge, and he must therefore, be considered by the
Government for such reappointment or appointment as the case
may be, and a r'ecision must be taken in regard to him after consul-
F tation with the Chief Justice of the High Court, the Governor of the
State and the Chief Justice of India, and if it is found that there was
no consultation with any of these three constitutional functionaries
before the decision was taken by the Central Government not to
appoint him or the decision of the Central Government is based
on irrelevant grounds, it would not be consideration by the Central
G Government as required by clause (I) of Article 217 and he would,
therefore, be entilled t challenge the decision of the Central
Government which is based on what may be called 'non-considera-
tion in law' and to require the Central Government to reconsider
his case in accordance with clause (I) of Article 217. This conse-
H quence would follow only because an additional Judge has a right to
be considered for appointment as an additional Judge for a further
term or as a permanent Judge. No person, who is proposed for
S.P. GUPTA v. UNION (Bhagwati, J.) 565

)I
initial appointment as a Judge would be entitled to complain against
the decision of the Central Government not to appoint him, beacuse
he would have no right to be considered for appointment as a
Judge.

We must also deal with the argument of the petitioners that B
so long as there is a post of a permanent Judge vacant, no appoint-
ment of an additional Judge can be made under clause (I) of Article
224. It is clear from the language of clause (I) of Article 224 that
it is only where permanent Judges of a High Court are unable to
cope with the current institutions and the increased business or the
arrears of pending cases and it is found necessary for the purpose of
disposing of the increased business or the arrears of pending cases
c
to increase the strength of the Judges of the High Court for the time
being that additional Judges can be appointed. Clause (1) of Article
224 contemplates appointment of additional Judges to augment
the ~trength of the existing Judges. It must therefore follow logi-
cally that there must be full strength of existing Judges before D
additional Judges can be appointed and so long as any post of
existing Judges is not filled-up, there can be no question of
appointing additional Judges to augment their strength. When
there is a vacancy in the post of permanent Judge, it must first
be filled up before any additional Judge can be appointed under
clause (l) of Article 224. It is therefore, necessary that the Central E
Government must periodically review the strength of permanent
Judges in each High Court, so that there is a proper and adequate
strength for the purpose of dealing with the normal institutions.
Since there are large arrears pending almost in every High Court
and it is not humanly possible to dispose of these arrears within a
measurable distance 9f time even by appointment of additional F
Judges, we think it necessary that instead of appointing additional
Judges for the purpose of disposing of the arrears, it would be
desirable to increase the strength of permanent Judges because the
arrears have come to stay and we do not think it is possible to wipe
them out for a long period of time. We are glad that towards the
close of the arguments Mr. Mridul submitted to us a statement on G
behalf of Central Government assuring us that :

"The Union Government has decided to increase the
number of posts of permanent Judges in the various High
Courts keeping in view the load of work, the guidelines H
prescribed and other relevant considerations. In fact in
566 SUPREME COURT REPORTS [1982] 2 S.C.R.
A
1980 itself, on the basis of in~titution, disposal and arrears
of cases and the guidelines prescribed, the Governments of
seven States where the problem was more acute, had been
addressed to consider augmentation of the Judge strengths
of their High Courts. It has been decided that where
B necessary the guidelines prescribed will be suitably relaxed
by taking into account local circumstances, the trend of
litigation and any other special or relevant factors that
may need consideration. The Union Government will
take up the matter with the various State Governments

c so that after consulting the Chief Justices of the High
Courts, they expeditiously send proposals for the
conversion of a substantial number of posts of Additional
Judges into those of Permanent Judges."

We hope and trust that the Central Government will soon take the
necessary steps to increase realistically the strength of permanent
D Judges in each High Court.

One last argument now remains: when an additional Judge is
appointed, what should be the term for which his appointment is
made. Clause(!) of Article 224 provides that an additional Judge
E may be appointed for a period not exceeding two years. That is the
outside limit prescribed by Article 224 clause (I) and it was there-
fore, contended by th learned Attorney General that appointment
of an additional Judge can be made for any term, howsoever short
it be, so long as it does not exceed two years. The appointments
ofO.N. Vohra, S.\/. Kumar and S.B. Wad for three months and
F the appointments of some other additional Judges for six months
were thus defended by the learned Attorney General as being within
the scope and ambit of clause (!) of Article 224 We cannot
accept this argument. It is no doubt true that clause(!) of Article 224
fixes the outer limit for the term for which an additional Judge may
be appointed, but that has been done because there may be cases
G where the temporary increase in the business or the arrears of
pending cases are so small that it may be possible to dispose them
of by appointing additional Judges for a term less than two years.
If the temporary increase in the business or the arrears of pending
cases can be disposed of within a shorter time, why should addi-
H tional Judges be appointed for the full period of two years. That
S.P. GUPTA v. UNION (Bhagwati, J.) 567

is why Parliament provided that an additional Judge may be A
appointed for a term not exceeding two years. Rut when arrears
of pending cases are so large that it would not be possible to dispose
them of even within a period of ten years-and when we say ten
years, we are making a very conservative estimate-what justifica-
tion there can be for appointing additional Judges for a period of
B
less than two years. That would be plainly outside the scope of the
power conferred under clause (I) of Article 224. When the arrears
of pending cases are such that they cannot possibly be disposed of
within a period of less than two years, addition1l Judges must be
appointed for a term of two years and no less. Mr. Mridul
informed us towards the close of the arguments that the Union c
Government had decided that ordinarily further appointment of an
additional Judge will not be made for a period of less than one year,
but we cannot regard this statement as being fully in compliance
with the constitutional requirement. The term for which an addi-
tional Judge is appointed must not be less than two years, unless
the temporary increase in business or the arrears of pending D
cases are so small that they can rea>onably be disposed of within a
shorter period, which, of course, today is only an idle dream in
most of the High Courts. We may also point out that an additional
Judge cannot be appointed for a period of three months or six
months in order to enable the Chief Justice of India or the Central
Govenment to consider whether the additional Judge should be
appointed for a further term or ns a permanent Judge. That is a
matter on which the Chief Justice of India must come to his opinion
well in time and th~ Government of India must a!so reach its
decision sufficiently in advance so that the additional Judge would
know quite sometime before his term is due to expire whether he is
going to be appointed for a further term or is going to be discon- F
tinued. There is no power in the Central Government to appoint
an additional Judge for a short term in order to enable either the
Chief Justice of India or the Central Government to make enquiries
with a view to satisfying itself whether the additional Judge is fit
and suitable for being appointed as an additional Judge or as a
permanent Judge. We are, therefore,. of the view that the Chief G
Justice of India acted under a mi.sconception of the true constitu-
tional position when he recommended the appointment of O.N.
Vohra, S.N. Kumar and S.B. Wad for a period of six months and
the Central Government was also in error in appointing them only
for a period of three months. H
568 SUPREME COURT REPORTS [ 1982] 2 S.C.R.

A Circulcr Lei/er of the Law Minister:

We must then turn to consider the question whether the
circular Jetter issued by the Law Minister was unconstitutional and
void. Now obviously the circular letter could be assailed as
unconstitutional and void only if it could be shown to be in violation
B of some constitutional or legal provision. There was admittedly no
provision of law, at least none could be pointed out by the learned
counsel appearing on behalf of the petitioners, which could be said to
have infringed by the issuance of the circular letter, but the argument
was that the circular letter offended against the provisions of clause
(I) of Article 217 and clause (I) of Article 222. We shall presently
c e~amine this argument but before we do so, it would be worthwhile
first to analyse the terms of the circular letter in order to determine
what is it that the circular letter seeks to achieve which is constitu-
tionally objectionable or impermissible. The learned counsel appear-
ing on behalf of the petitioners contended that the circular letter must
be construed objectively with reference to the language used in that
D letter and no extrinsic aid, such as a statement subsequently made
by the Law Minister in the Lok Sabha, should be invoked for the
purpose of arriving at its true interpretation. The decision of this
Court in CommissionPr of Police v. Gordhandas Bhanji.( 1 ) was
referred to in this connection and strong reliance was placed
on the following observations made by this Court, namely,
E "Public orders made by public authorities are meant to have public
effect and are intended to affect the actions and conduct of those to
whom they are addressed and must be construed objectively with
reference to the language used in the order itself." This principle
of interpretation is indisputably a valid principle and no exception
can be taken against it, but we do not think it can have any applica-
F tion in the present case. because the circular letter addressed by the
Law Minister is not in the natur~ of a public order made by a public
authority. The Law Minister is undoubtedly a member of the
Cabinet and it is reasonable to assume that in issuing the circular
Jetter he was acting on behalf of the Central Government but the
circular letter does not appear to have been issued by the Law
G Minister in the exercise of any constitutional or legal power. The
circular letter has no constitutional or legal sanction behind it and
non-compliance with the request contained in it would not proprio
vigore entail any adverse consequence to the additional Judge or to
the person recommended for initial appointment, for not complying
H
(I) Ll952] SCR 135.
S.P. GUPTA v. UNION (B/wgwati, .'.) 569

with s'.lch request. It may be that because an additional Judge does
not gi1·e his consent to be appointed as l permanent Judge in another
High Court, he may not be appointed as a permanent Judge 111 his
own High Court and may be discontinued as an additional Judge on
the expiration of his term, though this is not within the intendment
of the circular letter and is clearly impermissible, but in that event it B
would be his non-appointment as a permanent Judge or disconti·
nuance as an additional judge which would, if at all, give him a
cause of action and not the circular letter asking for such consent.
,. The circular letter is a document without any legal force and does
not by itself of its own force, create or alter any legal relationship
or arrangement or prodiice any legal consequence or effect. It is c
no more than a letter addressed to the Chief Minister of e;ich State
asking him to obtain the consent of the additional Judges as also of
those recommended or to be recommended for initial appointment,
for being appointed as Judges in a High Court outside the State.
It would therefore seem that the principle of interpretation enunciat-
ed by this Court in Gordhandas Bhanji's case (supra) cannot apply in D
the construction of the circular letter. We must construe the cir-
cular letter from a common-sense point of view having regard to the
clarification, if any, given by the author of the circular letter, namely,
the Law Minister.

The circular letter has been reproduced by us in extenso in an E
earlier part of the judgment while stating the facts giving rise to the
·writ petitions. The first paragraph of the circular letter begins by
saying that it has repeatedly been suggested to the Government
over the years "by several bodies and forums including the States
Re-organisation Commission, the Law Commission and various Bar
Associations that to further national integration and to combat F
narrow parochial tendencies bred by caste, kinship and other local
links and affiliations, one-third of the Judges of a High Court should
as far as possible be from outside the State in which that High Court
is situated." The learned counsel appearing on behalf of the peti-
tioners criticised this statement by observing that since the names
of the "several bodies and forums" referred to in this statement
G
were not specifically mentioned, it was not possible to deal with their
credentials or to examine the validity of the reasons on which their
conclusion was based. But Mr. Mridul appearing on behalf of the
Law Minister convincingly dealt with this criticism and referred in
detail to various bodies and torums which had from time to time
H
expressed the view that one third of the Judges of every High Court
570 SUPREME COU~T REPORTS [1982] 2 s.c.R.

A should as far as possible be from outside the State in which that
High Court is situated. The earliest point of time when this view
was expressed by a high powered body was in the year 195.5, when
the States Reorganisation Commission in its report recommended
that "at least one-third of the number of Judges in the High Court
of a State should consist of persons who are recruited from outside
B that State" and this recommendation was guided by the considera-
tion that "the principal organs of State should be so constituted as
to inspire confidence and to help in arresting parochial trends". Then
the Law Commission in its Fourteenth Report presented in 1958
expressed the same view : "The recent creation of various zones in
the country and the efforts to treat the States forming part of these
c zones as one unit for various purposes would. we hope, lead to the
States forming part of each zone to be the recruiting ground for
appointments to the High Court from the members of the Bar in
these States. It is hoped that in th rs manner the expectation of the
States Reorganisation Commission that atleast one-third of the High
Court Judges would be persons drawn from outside the State will be
D fulfilled." There was also a discussion on this proposal, namely,
wl. ether one-third of the number of Judges in each High Court
should be from outside the State, at the Chief Justices Conference
held in March, I S65 and out of 15 Chief Justices of High Courts who
attended tbe Conference, 8 were against the proposal, 6 were in
favour and the remaining Chief Justice also supported the proposal,
E but with this qualification that the one-third number of Judges
should be worked out by initial appointment. Chief Justice Subba
Rao also in his letter dated 6th October, 1966, expressed the view
that it would be better to bring Judges from outside at the time of
initial appointment. Then came the Report of the Study Team of
the Admini&trative Reforms Commission submitted in 1967 and this
F Report also examined the question of appointment of Judges in
High Courts and came to the view that the recommendation of the
States Reorganisation Commission should be implemented so that
as far as possible one-third of the number of Judges in a High Court
are from outside. The Study Team observed that a serious effort
G
to implement this recommendation "will make its own contribution
to efficiency, independence and national integration." The same
question once again came up for consideration before the Law
Commission in the year 1978 and the Law Commission sent out a
H questionnaire to various individuals and associations for the purpose
of eliciting their views inter alia in regard to the suggestion that
S.P. GUPTA v. UNION (Bhagwati, J.) 571

there should be a convention according to which one-third of the A
Judges in each High Court should be from another State.
Mr. S.V. Gupte, who was then Attorney General of India and who
is known for bold and courageous expression of his views, stated in
answer to the questionnaire that he was wholly in favour of having
one-third the number of Judges in each High Court from outside
the State "as that alone may perh1ps secure some kind of freedom B
from bias on grounds of caste and class consideration or any close
association with local people." The Bar Council of India also in its
· reply to the questionnaire supported the proposal of one-third Judges
in a High Court being from outside the State. It is interesting to
note-and this completely establishes the bona fides of the Law
Minister in issuing the circular letter-that even as far back as 26th c
. February, 1979, when the political party to which the Law
Minister belongs was not in power, the Law Minister
stated clearly and unequivocally that he agreed with the view
expressed by the Law Commission that one third of the Judges in
each High Court must be from outside the State because this would
achieve better national integration in the field of judidary. Whilst
D
expressing this view, it is significant to note that the Law Minister
made it clear that he would not support transfer of a High Court
Judge "if it is based on extraneous considerations." Then followed
the Eightieth Report of the Law Commission presided over by
Mr. Justice H.R. Khanna. This Report was submitted to the
E
Government of India in August 1973 and in this Report, the Law
Commission expressed its agreement with the recommendation made
by the earlier Law Commission in its Fourteenth Re;:iort, namely,
that "there should be a convention according to which one third of
the Judges in each High Court should be from another State" and
added that this should normally be done through the process of ini- F
tial appointments and not by transfers. The Law Commission gave
the folio wing reasons for taking this view :

"Evolving such a convention would, ir. our opmton,
not only help in the process of national integration but
would also improve the functioning of various High Courts. G
It would secure on the Bench of each High Court the
presence of a number of Judges who would not be swayed
by local considerations or affected by issues which may
rouse local passions and emotions. As observed by us in
one of our earlier Reports, one of the essential things for
the due administration of justice is not only the capacity of
the Judges to bring a dis passionate approach to cases
"
572 SUPREME COURT REPORTS [1982] 2 S.C.R.

A handled by them, but also to inspire a fee'ing in all concern-
ed that dispassionate approach would underlie their decision.
quite often, cases which arouse strong emotional sentiments
and regional feelings come up before courts of law. To
handle such cases, we need judges who not only remain
unaffected by local sentiments and regional feelings, but
B also appear to be so. None would be better suited for this
purpose than judges hailing from other States. It is a
common feeling amongst old lawyers that apart from cases
with political overtones, the English judges showed a sense
of great fairness and brought a dispassionate approach in
the disposal <'f judicial cases handled by them. We in India
c are in the fortunate position of having a vast country.
There can, therefore, be no difficulty in having a certain
percentage of judges who hail from other States. The ..
advantages gained by having persons from other States as
judges would be much greater compared with any disadvan-
tage which might result therefrom."
D
This question was also discussed at the Meelings of the Consulta-
tive Committee of Parliament for the Law Ministry held on 7th
June, 1980, 24th July 1980 and 17th December, 1980 and the
unanimous view taken by the members of the Consultative
Committee belonging to different political parties was that at least
E one third of the Judges in a High Court should be from outside the
State. The Chief Justice of India also in a communication addressed
to the Law Minister in March, 1978, expressed his view favouring
outside appointments to High Courts and in a letter addressed by
him to the Law Minister on 18th March, 1981, he opined that "it
F is high time that at least a few of the new appointments to every ..
High Court were made from outside the State." He also observed
in a communication addressed in April 1981 that "he had publicly
proclaimed his opinion more than once that at least one third of the
)'
new appointments should be from amongst persons from outside
the particular States." The National Seminar on Judicial Appoint-
ments and Transfers convened by the Bar Council of India in
G
Ahmedabad from 17th to 19th October 1980 also yielded the same
consensus view, namely :

"The ideal of having one third of High Court Judges
H from outside the State helps promotion of national inte-
gration and the preservation of a unified judicial system.
s.P. GUPTA I'. UNION (Bhagwati, J.) 573

However, it is desirable that this composition of the High
A
Court should be accomplished by way of initial appoint-
ments rather than by transfers. Furthermore, in imple-
mentation of this formula care must be taken to preserve the
legiti~ate representation of States and t.o maintain the sanc-
tioned strength to each State."'
B
It will thus be seen that, barring perhaps the Associations of Bombay
Lawyers, all high powered bodies, forums and associations,
which have anything to do with judicial system, have con-
sistently over the years taken the view that one third of the number
of Judges in each High Court should be from outside the State. C
The unanimity of view has been so complete and overwhelming
that it is impossible to contend that the policy of having one third
of the Judges in every High Court from outside the State, which the
Law Minister is trying to implement by issuing the circular letter, is
ill-conceived or malafide or subversive of the independence of the
judiciary. So long as the policy is evolved by the Government D
after consultation with the Chief Justice of India and it is not
otherwise unconstitutional, the Court cannot pronounce upon the
wisdom of the policy or strike it down because it does not appeal
to the court. Here the policy of having one third of the number of
Judges in each High Court from outside the State has been adopted
after consultation with the Chief Justice of India and, in fact, it has E
his complete approval and the Law Minister did not therefore act
unconstitutionally or illegally in relying upon this policy in the first
paragraph of the circular letter.

The circular letter after referring to th~ suggestion made by F
several bodies and forums that one third 'of che Jud!!eS of the High
Court should, as far as possible, be from outside the State, pro·
ceeded to add: "Somehow no start could be made in the past in
this direction". The learned counsel appearing on behalf of the
petitioners assailed the correctness of this statement and contended
that an attempt was made during the emergency to transfer perma· G
nent Judges of one High Court to another and the transfers were
sought to be defended by the Government of India on the same
plea of national integ:ation and removal of narrow parochial ten-
dencies and therefore it was not correct on the part of the Law
Minister to state that no start could be made in the past for imple- H
menting the policy of having one third Judges of the High Court from
outside the State. Now it is difficult to appreciate how this state-
574 SUPREME COURT REPORTS (1982] 2 S.C.R.

A ment in the circular letter could be branded as incorrect for the reason
that the transfers effected during the emergency were sought to be
defended on the plea of national integration and removal of narrow
parochial tendencies. In the first place, what the circular Jetter
seeks to do is to obtain the consent of the additional Judges, not for
transfer to rnme other High Court, but for appointment as perma-
nent Judges in another High Court, whereas what took place during
the emergency were transfers of High Court Judges from one High
Court to another. Secondly, it is true that the transfers of High
Court Judges made during the emergency were sought to be defended
by the Government of India on the plea of national integration and
removal of narrow parochial tendencies, but this defence was found
c by the Court in Union of India v. Sankalchand Sheth(1) to be false.
Chandrachud, J., as he then was, observed in his judgment in that
case : "I would only like to add that the record of this case does
not bear out the claim that any one of the 16 High Court Judges
was transferred in order to further the cause of national integration
Far from it." What was held by the Court was that the transfers,
D of High Court Judges during the emergency were made not for the
purpose of furthering the cause of national integration but by way
of punishment. The Law Minister was therefore right in stating
in the first paragraph of the circular letter that no start has been
made in the past in the the direction of having one third Judges in a
High Court from outside the State and that is why he was taking
E
the initiative in the matter.

Coming to the merits of the challenge against the validity of
the circular letter, the principal contention advanced on behalf of
the petitioners was that the circular letter required the additional
Judges as also those whose names were recommended or might in
F future be recommended for initial appointment, to give their consent
for being appointed as Judges outside the State and obtaining of such
consent in advance would reduce the consultation with the Chief
Justice of India, the Chief Justice of the High Court in which the
additional Judge or the pro~pective Judge is to be appointed and
the Governor of the State illusory and an empty formality and this
G would be violative of Article 217 clause (t) which provides that the
appointment of a Judge of a High Court can be made only after
consultation with the Chief Justice of the High Court, the Governor
of the State and the Chief Justice of India. This contention is
H
(I) [1978] I SCR 423.
S.P. GUPTA v. UNION (Bhagwati, J.) 575

also, in our opinion, without force and must be rejected. It is clear A
from the language of clause ( 1) of Article 217 that the appointment
of a Judge of a High Court can be made by the President only after
consultation with the Chief Justice of the High Court, the Governor
of the State and the Chief Justice of India and, according to the
interpretation placed by us, consultation within the meaning of this
Article means full and effective consultations with each of the three B
constitutional functionaries after placing all relevant material before
them. Now, if a person who is an additional Judge in the High
Court in one State or who is practising as a lawyer in that State is
to be appointed as a Judge in another State, then obviously his
willingness to be so appointed would be a highly relevant factor and
that would have to be ascertained and placed before the three cons- c
titutional functionaries who are required to be consulted before an
.. appointment can be made. It is obvious that the President cannot
appoint a person to be a Judge of a High Court without first ascer·
taining his willingness to be appointed as a Judge in that High Court
and some one has to make an inquiry in that behalf in order to
ascertain his willingness. It is only if the person concerned is willing D
to be appointed as a Judge in that High Court that the question
would arise of processing his name and consulting the three consti·
tututional functionaries in regard to the appointment of such person.
> This inquiry has to be made before the process of consultation can
start and the Law Minister therefore by addressing the circular
letter requested the Chief Minister of each State to make this inquiry. E
It is true that the Law Minister did not state in so many terms in
the circular letter that the Chief Minister may make this inquiry
through the Chief Justice of the High Court but that was clearly
implicit in the circular letter, because a copy of the circular letter
wa.s also sent.to the Chief Justice of each High Court with the
endorsement' "for necessary action" and moreover it must be
F
presumed that the necessary inquiry would be made by the Chief
Minister only through the Chief Justice of the High Court. The
Chief Minister would not be expected to contact directly the addi.
tional Judges or the persons recommended for initial appointment,
for the purpose of ascertining whether they are willing to be appoint-
ed as Judges in any other High Court. Since the Chief Justice of the
G
High Court is the head of the judiciary in the State, the Chief Minister
would invariably route his i11quiry through the Chief Justice of the
High Court and request the Chief Justice of the High Court to
ascertain whether any of the additional Judges or persons recom-
H
mended for initial appointment are willing to be appointed to a
576 SUPREME COURT REPORTS I1982) 2 S.C.ll.
A High Court outside the State. This inquiry could have been made
by the Law Minister by writing directly to the Chief Justice
of each High Court but, instead of doing so, the Law Minister
chose to address his inquiry to the Chief Minister of each
State, presumably because he thought that it would be more
appropriate for him to make this inquiry through the Chief Minister
8 of the State rather than by direct communication with the Chief
Justice of the High Court. The Law Minister had to make this
inquiry because without information as to whether an additional
Judge or a person recommended for initial appointment was willing
to be appointed as a Judge in another High Court, his name could
not be processed for appointment as a Judge in that High Court.
c This was the first step required to be taken and it was only after the
willingness of the additional Judge or p.!rson recommended for
initial appointment, to be appointed as a Judge in another High
Court was ascertained that the Law Minister could place the proposal
for appointment of such person as a Judge for the consideration of
the Chief Justice of that High Court, the Governor of the State in
D which that High Court is situated and the Chief Justice oflndia. It
would then be for the Chief Justice of that High Court to consider
whether the person proposed for appointment is fit to be appointed
in his High Court and whether he would recommend him for such
appointment. On this point, however, a serious objection was raised
E , on behalf of the petitioners and a question was posed as to how the
Chief Justice of a High Court can make any recommendation in
regard to a person proposed to be appointed as a Judge in his High
Court unless he knows such person and has seen his work either at
the Bar or in the High Court or district court and is therefore in a
position to assess his suitability for being apponinted as a Judge.
F The argument was that tbe Chief Justice of the High Court in which
the appointment is proposed to be made has a constitutional duty to
give his opinion in regard to the suitability of the person pro-
posed to be appointed and suitability would naturally include
competence, character and integrity and how can the Chief Justice
give an honest opinion in regard to the suitability of such person
G \\hen he does not know ·him at all and has not even had an oppor-
tunity of seeing his work. We do not think this argument is well
founded; the difficulty pointed out on behalf of the petitioners is
more imaginary than real. The Chief Justice of the High Court
where the appointment is proposed to be made need not blindly and
H unquestioningly accept the proposal made by the Law Minister. The
Chief Justice of the High Court can make his own inquiries in
regard to the suitability of the person proposed for appointment
S.P. GUPTA v. UNION (Bhagwati, J.) 571

either through the Chief Justice of the High Court where such person A
is working as an additional Judge or district Judge or practising as a
lawyer or through other sources such as the Advocate General of
that State. The Chief Justice of the High Court can also enquire
from the Governor of the State where the person proposed to be
appointed is working as an additional Judge or district Judge or
practising as a lawyer and find out what are his antecedents and 8
whether he possesses chara.Jter and integrity. The social philosophy
of the person proposed to be appointed as also his attitudes and
habits of mind can also be ascertained by the Chief Justice of the
High Court by making inquiries from the Chief Justice of the High
Court where such person is working as an additional Judge or district
Judge or practising as a lawyer as also from the Governor of that c
State and diverse other sources. It is not at all difficult for the Cnief
Justice of the High Court where an appointment is proposed to be
made to gather the requisite information about the person proposed
to be appointed so as to enable him to make up his mind in regard
to the suitability of such person for appointment jas a Judge. May
we ask what happens when a person is recommended for appoint- 0
ment as a Judge in a High Court by the Chief of India? There have
been quite a number of instances where this has happened. There
) have been cases where the Chief Justice of India has recom-
mended members of the Supreme Court Bar for appointment
as Judges in different High Cou• ts and equally there have been
cases where members of the Income-tax Tribunal as also
persons working in the legal department of the Government
of India have been recommended by the Chief Justice of India
for appointment as High Court Judges. Jn such cases, the Cnief
Justice of the High Court where the appointment is proposed to be
made, would naturally gather the requisite information about the
person proposed to be appointed from the Chief Justice of India and
F
other sources available to him and decide whether such person is
suitable for being appointed as a Judge in his High Court. ·He may
agree with the recommendation of the Chief Justice of India or he
may disagree with it. In fact, there have been cases, though very
few, where the Chief Justice of the High Court has declined to
G
accept the person proposed by the Chief Justice of India for appoint-
ment as a Judge in his High Court. Merely because a recommenda-
tion emanates from the Chief Ju~tice of India, it does not mean that
consultation with the Chief Justice of the High Court where the
person concerned is proposed to be appointed, would be reduced to H
a mockery. The proposal for appointment of a person as a Judge
may be initiated by the Central Government or by any of the three
578 SUPREME COURT REPORTS ( 1982] 2 S.C.R

A constitutional functionaries required to be consulted and from
whomsoever the proposal emanates, the other constitutional func-
tionaries are required to be consulted in regard to it on the basis of
full and identical material. When the Chief Justice of the High
Court is informed that a particular person is willing to be appointed
as a Judge in bis High Court and the proposal to appoint him as a
B Judge may therefore be considered, the Chief Justice of the High
Court can ask the Central Government or the Chief Justice of India,
whosoever has made the proposal, to place before him all the relevant
material in regard to the person proposed to be appointed and also
gather the necessary material from the Chief Justice of the other
High Court as also from other sources available to him
c and then clecide whether to recommend such person or not.
So also the Governor of the State where the appointment is
proposed to be made, can make the necessary inquiries and after
considering all relevant material decide what attitude it
should adopt in regard to the proposed appointment. The Chief ,
D Justice of India also would have a very important role to play in
the process of consultation. Before giving his opinion in regard to
the proposed appointment, the Chief Justice of India may enquire
directly from the person proposed to be appointed whether he is 1
really willing to be appointed as a Judge in another High Court and
whether the consent given by him is genuine and free. The person
proposed to be appointed may also point out to the Chief Justice of
E India his problems and difficulties in accepting appointment in the
other High Court and the Chief Justice of India will consider all
this material before he gives his opinion to the President. The
Chief Justice of India will also have to consider whether the propo-
sed appointment is bonafide and in public interest or it is being
F made only with a view to favouring the person concerned so that by
appointment in another High Court, he may get some benefit which
he would not get in the High Court of his own State. The Chief
Justice of India may in such a case refuse to agree to the proposed
appointment, even though the person proposed to be appointed has
G consented to it. These and many other relevant considerations will
have to be taken into account by the Chief Justice of India before
be gives bis opinion to the President in regard to the proposed
appointment. We therefore fail to see how the obtaining of the
consent of the person proposed for appointment, in advance for
being appointed as a Judge in another High Court can possibly have
H
the effect of reducing consultation with the Chief Justice of India to
a mockery or making it ineffective so as to be violative of clause (~)
of Article 2 J7.
s.P. GUPTA v. UNION (Bhagwati, J.) 579

The next contention urged on behalf of the petitioners was A
that the circular letter held out a veiled threat to the additional
Judges that if they do not consent to their appointment as Judges in
a High Court other than their own, they may not be appointed as
permanent Judges at all and may be dropped on the expiration of
their term of office. The petitioners relied on the use of the word
"obtain" in the circular letter and submitted that the use of this B
word conveyed a sense of compelled obedience with an implied
threat that failure to give consent may entail adverse consequences.
whether such adverse consequences actually flowed or not was not
material, contended the petitioners, but what was disturbing was that
there was an implied threat of such adverse consequences and that
was subversive of the independence of the judiciary. Moreover, c
consent obtained under such threat of advers~ consequences could
not be be regarded as valid consent in Jaw because coment to be valid
must be free and must not be induced by threat, coercion or duress.
Now we fail to see how from the mere use of the word, "obtain'
in the circular letter, this entire edifice of an argument that there
was an implied threat to the additional Judges that if they do not D
give their consent for being aopointed as Judges in another High
Court, they would be visited with adverse consequences, can be built
up. The word "obtain" is a transitive verb and it is obvious that
when the Chief Minister of each State was asked by the Law
Minister by issuing the circular letter to obtain the consent of the
additional Judges for being appointed as permanent Judges in
another High Court, what was meant was that the Chief
Minister should obtain the consent of each additional Judge if he
was willing to give such consent. It is clear as a matter of plain
grammar that one person can obtain something from another provid-
ed that other is willing to give it. The use of the word 'obtain' cannot
possibly be construed to mean that the person from whom the con-
sent is to be obtained must be coerced into giving it. To read the
word 'obtain' in the circular Jetter as meaning that the Chief
Minister was expected to coerce the additional Judges into giving
their consent or as conveying an implied threat to the additional
Judges that if they do not give their consent they might be dropped
as additional Judges on the expiration of their term, would, in our
G
opinion, be nothing short of torturing out of the language used in
the circular letter, a meaning which the language does not bear and
which could not possibly have been intended by the Law Minister.
H
The petitioners also sought to bolster up their case that circular
letter held out a veiled threat to the additional Judges by relying on
580 SUPRBME COURT REPORTS f[l 982] 2 S.C.R.

A the statement contained in the circular letter that the giving of
consent by additional Judges would not necessarily involve any
commitment on the part of the Central Government to appoint them
as permanent Judges. But we do not see how this statement can be
regarded as a veiled threat that if an additional Judge dots not give
his consent for being appointed as a Judge in another High Court, he
B may not be appointed as a permanent Judge at all and may be dis-
contined on the expiration of his term of office. We do not think
it is possible to read any such sinister implication in this statement
contained in the circular letter. This statement merely reiterated
the legal position, too well-settled to admit of any doubt or debate,
that merely because a person has given bis consent to be appointed
c as a Judge in a High Court, it does not mean that he would neces-
sarily be appointed as a Judge. He may not be appointed at all, if
after consultation ·with the three constitutional functionaries
as provided in Article 217 clause(!), it is decided not to appoint
him. Even if it is decided to appoint him, he may not be appointed
as a Judge in the High Court of his choice because the Chief Justice
D of that High Court or the Governor of that State or the Chief Justice
....
of India may object to his appointment in that High Court. He
must not therefore remain under the impression that merely because
he bas given his consent for being appointed as a Judge outside his
State and expressed his preference as regards the High Courts where
he would like to be appointed, he would necessarily be appointed as
E a Judge and in the High Court of his choice. Far from this being
a threat to the additional Judges, it was a clear intimation to them
that they should not be under any wrong impression that giving of
consent would ensure them appointment as a permanent Judge and
in the High Court of their choice. Whether to appoint an additional
Judge as a permanent Judge or to continue him as an additional
F Judge for a further term or to discontinue him on the expiration of
bis term would be decided in accordance with the procedure laid
down in clause (l) of Article 217 and giving of consent would not
be a factor tilting the balance in favour of the additional Judge
giving such consent. We are also not impressed by the argument
urged on behalf of the petitioners that the omission to state in the
G
circular letter that if an additional Judge does not give his consent to
be appointed in any other High Court, it would be held against him
in considering his appointment as a permanent Judge, conveyed an
implied threat that failure to give such consent would be held against
H the additional Judge and he might be discontinued as an additional
Judge on that account. It is difficult to spell out any such implied
threat on a plain reading of the circular letter. On the contrary it
s.P. GUPTA v. UNION (Bhagwati, J.) 581

is significant to note that the circular letter did not state, as it well A
might have, if such was the intention of the Law Minister, that if
consent is not given by an additional Judge for being appointed as a
permanent Judge in another High Court, he would run the risk of
being discontinued as an additional Judge on the expiration of his
term. It would be quite open to an additional Judge under
the circular letter to say that he is not willing to be appointed in B
any other High Court except his own and even so, when his term
as an additional Judge expires, he could still be considered for
appointment as an additional Judge for a further term or as a perma-
nent Judge in his own High Court, there being nothing in the
circular letter against it and the procedure set out in clause (I)
o:· Article 217 would then be followed. An additional Judge, as w! c
have already pointed out above, is entitled to be considered for
appointment as an additional Judge for a further term or as a
permanent Judge in his own High Court and such appointment can-
not be refused to him on the ground he has not given his consent
for being appointed as a permanent Judge in another High Court.
Such a ground for discontinuing an additional Judge on the expira- D
• tion of his term would be a wholly irrelevant ground and we do not
think it could ever have been intended by the Law Minister consis-
tently with the constitutional requirement that an additional Judge
who does not give his consent for being appointed as a permanent
Judge outside his High Court should on that account be discontinued
as an additional Judge on the expiration of his term. It would not
E
be right to read the circular letter with a suspicious eye as if it was
designed to cow down the additional Judges into submission by
holding out an implied threat to them. There are, in fact, quite a
few Judges who have not given their consent to be appointed as
permanent Judges in another High Court and no adverse c:inse-
quence has ensued to them. We do not think that our additional
Judges are made of such weak stuff that they would submit to any
supposed threats by the Executive and give their consent to be
appointed as permanent Judges in another High Court out of fear
that they might be discontinued as additional Judges if they do not
give such consent. G
There was also one other contention advanced on behalf of the
petitioners, namely, that to require a person whose name is to be
recommended for initial appointment as a Judge to give his
consent for being appointed as a Judge in another High
Court would be to introduce an irrelevant qualification for the H
appointment of a Judge. The argument was that to obtain such
582 SUPREME COURT REPORTS [1982] 2 S.C.R.

A consent from a person whose name is to be recommended for
appointment would be to introduce a requirement for appointing a
Judge which is not prescribed by the Constitution and the obtaining
of such consent would therefore be unconstitutional. It is, with the
greatest respect to the learned counsel appearing on behalf of the
petitioners, extremely difficult for us to appreciate this argument.
B When the name of a person is being considered for appointment as
a Judge because he is regarded as suitable for such appointment, we
fail to see why he cannot be asked whether he is willing to be
appointed as a Judge in another High Court. It is for him to
decide whether or not to give his consent for such appointment. He
may very well say that he is not agreeable to be appointed as a
c Judge in any High Court other than his own, but if, in the exercise
of his own volition, he gives his consent for being appointed as a
Judge in another High Court, it is difficult to see how it can ever
be contended that by oMaining such consent, an irrelevant qualifica- ..
tion for appointment of a Judge has been introduced. It is not as
if a person who does not give his consent for being appointed as
D a Judge in another High Court would necessarily be refused appoint-
ment in his own High Court. It is significant to note that, in fact,
even after the date of the circular letter, quite a few new appoint-
ments have been made in different High Courts of persons either
practising as lawyers in those High Courts or working as District
Judges under those High Courts.
E
The last contention urged on behalf of the petitioners was that
the circular letter was really an attempt on the part of the Govern-
ment to transfer Judges from one High Court to another by cir-
cumventing the decision of this Court in Sa11kalchand Sheth's case
F (supra). This contention urged on behalf of the petitioners is
wholly unfounded and no amount of legal causistry or ingenuity can
sustain it. It is difficult to appreciate how the circular letter can at
all be interpreted as an attempt to bring about transfer of Judges
from one High Court to another. 1 he circular letter deals with two
categories of persons: one is the category of persons who are recom-
G mended or may in future be recommended for initial appointment
as Judges and the other is the category of additional Judges who are
appointed for a period of two years or less. So far as the first
category of persons is concerned, it is impossible to contend and
with all his ingenuity even Mr. Seervai appearing on behalf of the
H petitioners could not argue, that when a person who is recommend-
s.P. GUPTA v. UNION (Bhagwati, J.) 583

ed or proposed to be recommended for initial appointment as a A
Judge is asked whether he is willing to be appointed as a Judge in
another High Court, any transfer is involved in such process.
When such person is not a sitting Judge in any High Court and is
appointed for the first time in another High Court, it is difficult to
see how he can be said to be transferred. The transfer contem·
plated in Article 222 clause (I) is not a mere act of physical locomo- B
tion or transfer of residence from one place to another, but it is an
act by which a Judge in one High Court is transferred as a Judge
of another High Court. Equally there is no transfer involved where
an additional Judge is, on the expiration ot his term, appointed as an
additional Judge in another High Court or is appointed as a permanent
Judge in any other High Court. It is no doubt true that by reason of c
his appointment as an additional Judge or permanent Judge in another
High Court he has physically to go to that High Court, but it is not
.. while being a Judge of one High Court that he goes over as a Judge
of the other High Court. His appointment as an additional Judge of
one High Court comes to an end and he is appointed afresh as an
additional or permanent Judge in another High Court. It is by D
virtue of a fresh appointment that he becomes a Judge, whether
additional or permanent, of another High Court and he is nut
transferred from one High Court to another within the meaning of
clause (1) of Article 222. If the contention of the petitioners were
correct, it would not be necessary, while appointing an additional or
permanent Judge in another High Court, to follow the procedure
set out in clause ( l) of Article 217 and to consult the Chief Justice
of the latter High Court and the Governor of that State as required
by that article and it would be possible to appoint such person as
an additional or permanent Judge in another High Court after con-
sulting only the Chief Justice of India under clause (1) of Article
222. This proposition has only to be stated in order to be rejected; F
it would clearly amount to circumventing the provisions of clause
(J) of Article 217. Take for example a case where a pmon who is
an additional Judge in a High Courr for a period of two years is,
on the expiration of his term of two years, appointed as a perma-
nent Judge in another High Court. Can such appointment of a
permanent Judge be made in the other High Court without con-
G
sulting the Chief Justice of that High Court and the Governor
of that State under clause (I) of Article 217? There is in such a
case no transfer at all; it is a case of fresh appointment made in the
other High Court and that can be done only after going through the
procedure set out in clause (I) of Article 217.
H
584 SUPREME COURT REPORTS [1982) 2 S.C.R.

A Mr. Seervai, appearing on behalf of the petitioners however
relied strongly on a Speech made by the Law Minister in the Lok
Sabha on 16th April, 1981 where at columns 271 and 274 of the
Lok Sabha Debates, the Law Minister himself had used the expres-
sion 'transfer' while speaking about the circular letter. The learned
counsel contended that the use of the expression'transfer' by the Law
B Minister himself supported his argument that what the circular letter
sought to do was to transfer Judges from one High Court to
another. This contention is in our opinion, wholly unsustainable
and it is no better than relying on a broken reed. It is undoubtedly
true that in columns 271 and 274, the Law Minister used the expres-
sion 'transfer' or 'transferred' while referring to the circular letter,
c but one cannot fasten upon a stray use of a loose expression for the
purpose of determining what is the true effect of the circular letter.
The Speech of the Law Minister has to be read as a whole and if ...
it i's so read, it is clear that at more than one place, the Law
Minister made it clear that what was contemplated by the circular
letter was "not a case of transfer but a case of an appointment under
D
Article 217" vide Col. 273. The Law Minister also reiterated in col.
223 that "in so far as additional Judges are concerned, the circular
letter seeks to obtain their consent to their appointment as perma-
nent Judges to High Courts outside and these would be appoint-
ments under Article 217". Then again in col. 270, the Law Minister
E clarified that the appointment of an additional Judge as a perma-
nent Judge could also be termed as an initial appointment." The
expression 'transfer' or 'transferred' in columns 271 and 274 was
obviously used in a loose sense meaning physical locomotion. It
must be remembered that this expression happened to be used by the
Law Minister in an extempore speech made on the floor of the
House and not in a document or letter prepared after much care
F
and deliberation. No undue reliance can therefore be placed on .
behalf of the petitioners on the use of the expression 'transfer' or
'transferred' in the speech of the Law Minister. Mr. Seervai also
relied strongly on the circumstance that three associations of law-
yers in Bombay had all taken the view that the circular letter con-
G templated transfer of additional Judges and sought their consent to
such transfer. But this circumstance has very little relevance in the
interpretation of the circular letter for it is not for the lawyers
practising in a particular High Court to construe the circular letter
but is for this Court to determine what is the true meaning of that
H document. We are clearly of the view-in fact we find it impossible to
take a different view-that what was contemplated by the circular
letter was not transfer of additional Judge from one High Court to
S.P. GUPTA v. UNION (Bizagwati, J.) 585

another and it did not therefore, have to satisfy the requirements of A
clause (I} of Article 222.

But quite apart from this consideration, even if the view be
taken that what the circular letter sought to achieve was transfer
of additional Judges from one High Court to another. it is difficult B
to see how by obtaining consent of the additional Judges in advance,
the Law Minister would be circumventing the majority decision in
Sankalchand Sheth's case (supra). The majority view in Sankalchand
Sheth's case (supra) was that a Judge can be transferred from one
High Court to another without his consent, but the transfer must be
after full and effective consultation with the Chief Justice of India c
and it must not be by way of punishment but must be in public
interest. Therefore, obviously it would be of no help to the Law
Minister to obtain the consent of an add.itional Judge in advance to
be appointed as a permanent Judge in any other High Court,
because despite such consent, the additional Judge cannot be
appointed as a permanent Judge in another High Court without full D
and effective consultation with the Chief Justice of India and
according to the majority decision in Sankalchand Sheth' s case
{supra), the opinion given by the Chief Justice of India would be
entitled to the greatest weight and any departure from it would have
to be justified by the Central Government on strong and cogent grounds.

- In such a case, even where the consent of the additional Judge has
been obtained in advance, the Chief Justice of India would have
to consider whether it is in public interest to appoint the additional
Judge as a permanent Judge in another High Court and the consent
E

obtained in advance would not pre-empt the consultative exercise
with the Chief Justice of India. The advance consent obtained
from the additional Judge would have no meaning so far as the F
Chief Justice of India is concerned, because irrespective·of whether
the additional Judge has given his consent or not, the Chief Justice of
India would have to consider whether it would be in public interest
to allow the additional Judge to be appointed as a permanent Judge
in the other High Court. Therefore, even on the assumption that
the appointment of an additional Judge as a permanent Judge G
in another High Court amounts to transfer, which of course we
emphatically repudiate, it is difficult to see how the circular letter
can be construed as an attempt to circumvent the majority decision
in Sankalchand Sheth' s case (supra).
H
We do not therefore find any coastitutional or legai i:1J.rmity
586 SUPREME COURT REPORTS I1982] 2 S.C.R..
A or any abuse or misuse of authority on the part of the Law Minister
in issuing the circular letter. The circular letter does not violate the
provisions of clause (I) of Article 217 or clause (I) of Article 222
nor does it offend against any other constitutional or legal provision
and the challenge against the validity of the circular letter must,
therefore, fail. We may, however, while affirming the validity of the
B circular letter, make it clear that since an additional Judge has a
right to be considered for appointment as an additional Judge for a
further term on the expiration of his original term, and in case of a
vacancy in a permanent post, for appointment as a permanent Judge
in his own High Court, he cannot be discontinued as an addditional
Judge on the ground that he has not given his consent for being
c appointed as a permanent Judge in any other High Court. Such a
ground for discontinuing an additional Judge would be a wholly
irrelevant ground and if, on the expiration of his original term, an
additional Judge is discontinued on any such ground, the decision
of the President discontinuing him would be unconstitutional and
D void and the Union of India would be liable to be directed to recon·
sider his case on the basis of relevant considerations after excluding
the irrelevant ground.

Disclosure of documents : Privilege.

We now come to a very important question which was agitated
before us at great length and which exercised our minds consi-
derably before we could reach a decision. The question related to
the disclosure of the correspondence exchanged between the Law
Minister, the Chief Justice of Delhi and the Chief Justice of India in
regard to the non-appointment of O.N. Vohra and S.N. Kumar as
F
additional· Judges. The learned counsel for the petitioners and
S.N. Kumar argued before us with great passion and vehemence that
these documents were relevant to the inquiry before the Court and
they should be directed to be disclosed by the Union of India. This
claim of the petitioners and S.N. Kumar for disclosure was resisted
G by the Solicitor General of India on behalf of the Union of India
and Mr. Mridul on behalf of the Law Minister. They contended
that so far as 0. N. Vohra was concerned his case stood on
an entirely different footing from that of S.N. Kumar since,
unlike S. N. Kumar who allied himself with the petitioners
H and actively participated in the arguments almost as if he
was petitioner, O.N. Vohra though made a party respondent to
the writ petition of V.M. Tarkunde did not appear and participate
S.P. GUPTA v. UNION (Bhagwati, J.) 587

in the proceedings or seek any relief from the Court in regard to his A
continuance as an additional Judge. Mr. Mridul on behalf of the
Law Minister informed us that in fact O.N. Vohra had started
practice in the Delhi High Court and his case could not be con,idered
by us when he himself did not want any relief So far as the case
of S.N. Kumar was concerned the learned Solicitor General on,
behalf of the Union of India conceded that the documents of which
8
disclosure was sought on behalf of the petitioners and S.N. Kumar
were undoubtedly relevant to the issues arising bdore the Court,
but contended-and in this contention he was supported by
Mr. Mridul on behalf of the Law Minister-that they were privileged
against disclosure for a two-fold reason. One was that they formed
part of the advice tendered by the Council of Ministers to the Presi-
c
.dent and hence by reason of Article 74 clause (2) of the Constitution
the Court was precluded from ordering their disclosure and looking
into them and the other was that they were protected against dis-
closure under section 123 of the Indian Evidence Act since their
disclosure would injure public interest. We propose to consider
D
these rival arguments in the Order in which we have set them out,
first in regard to O.N. Vohra and then in regard to S.N. Kumar.

So far as O.N. Vohra is concerned, it is apparent that though
he was joined as a party respondent to the writ petition filed by
E
V.M. Tarkunde, he did not choose to appear and take part in the
proceedings. He did not even file an appearance, presumbly because
he was not interested in wresting back the office of an additional
Judge through a judicial writ. He adopted a commendable attitude
consistent with the dignity of the high office which he had the ,
privilege to hold for over two years and scorned to be a party to
F
any litigative adventure for getting back the office of a High Court
Judge. He took the view that the office of a High Court
Judge is no mean office for which one may canvas, lobby or fight but
it is a high position which can only be offered and which one should
regard as an honour to be invited to fill and if for any reason,
justifiable or not, the Government chooses not to offer it to the G
deserving person, it may result in detriment to public interest for
which the Government may have to account to the people through
their elected representatives, but the person concerned should not
litigate his claim to this high office. That would lower the
dignity of the office by making it the subject matter of litigative- H
controversy. It was presumably for this reason that O.N. Vohra
did not appear in the writ petition or seek any relief from
588 SUPRBMB COURT REPORTS [1982] 2 s.c.R.

A the Court in regard to his continuance as an additional Judge.
In fact, we are told, 0.N. Vohra has already started practice in the
Delhi High Court. Now if O.N. Vohra has not come forward to
seek any relief from the Court and is not claiming that he should be
deemed to have been appointed a permanent Judge or that he should
be reappointed as an additional Judge for a further term, it is
B difficult to see how the Court can be called upon to examine bis case
for the purpose of determining whether he was wrongly discontinued
as an additional Judge. We have taken a broad and liberal view in
regard to locus standi and held that any public spirited advocate
acting bonafide and not for private gain or personal profit or politi-
cal motivation or any other oblique consideration, may file a writ
c petition in the High Court challenging an unconstitutional or illegal
action of the Government or any other constitutional authority
prejudicially affecting the administration of justice and in such writ
petition he may claim relief not for himself personally but for tho'e
who are the direct victims of such unconstitutional or illegal
action, because granting such relief to them would repair the injury
D caused to administration of justice. But the persons for whom the
relief is sought must be ready to accept it; they must appear and
make it known that they are claiming such relief; it cannot be thrust
upon them unless they wish it. If, in the present case, O.N. Vohra
does not seek to go back as an additional Judge through judicial
intervention, the petitioners cannot contend that he must still be
E continued as an additional Judge irrespective of his inclination. The
relief sought by the petitioners being primarily for the benefit of
O.N. Vohra, it is for O.N. Vohra to decide whether he would have
it and if he does not want it, it would be a fruitless exercise for the
Court to determine whether the decision not to appoint him as an
additional Judge was unconstitutional and he should have been
F appointed as an additional Judge for a further term. The Court does
not decide issues in the abstract. It undertakes determination of a
controversy provided it is necessary in order to give relief to a
party and if no relief can be given because none is sought, the Court
cannot take upon itself a theoretical exercise merely for the purpose
G of deciding academic issues, Lowsoever important they may be. The
Court cannot embark upon an inquiry whether there was any misuse
or abuse of power in a particular case, unless relief is sought by the
person who is said to have been wronged by such misuse or abuse of
power. The Court cannot take upon itself the role of a commission
.H of inquiry-a knight errent roaming at will with a view to destroying
evil wherever it is found. It was for this reason that we held that the
S.P. GUPTA v. UNION (Bhagwati, J.) 589

correspondence exchanged between the Law Minister, the Chief
A
Justice of Delhi and the Chief Justice of India in regard to non-
appointment of O.N. Vohra was not relevant to the issues arising for
determination in the writ petition and the Union of India could not
be required to disclose it.
B
That takes us to the case of S.N. Kumar which stands on a
totally different footing, because S.N. Kumar has appeared in the
writ petition, filed an affidavit supporting the writ petition and
contested, bitterly and vehemently, the decision of the Central
Government not to continue him as an additional Judge for a further
term. Since S.N. Kumar has claimed relief from the Court !ll regard c
to his continuance as an additional Judge, an issue is squarely joined
between the petitioners and S.N. Kumar on the one hand and the
Union of India on the other which requires to be determined for the
purpose of deciding whether relief as claimed in the writ petition
can be granted to S.N. Kumar. Now, as we have already pointed
out while discussing the scope and ambit of A :ticle 217, there are D
only two grounds on which the decision of the Central Government
not to continue an additional Judge for a further term can be assailed
and they are, firstly, that there has been no full and effective consul-
tation between the Central Government and the constitutional
authorities required to be consulted under that Article and, secondly,
that the decision of the Central Goverment is based on irrelevant E
grounds. It was on both these grounds ·that the petitioners and
S.N. Kumar impugned the decision of the Central Government not
to appoint S.N. Kumar as an additional Judge for a further term and
there can be no doubt that the correspondence exchanged between
the Law Minister, the Chief Justice of Delhi and the Chief Justice of
India would be relevant qua both these grounds. The learned Soli- F
citor General on behalf of the Union of India and Mr. Mridul on
behalf of the Law Minister, with the usual candour and frankn~ss
always shown by them, did not dispute the relevance of these docu-
ments to the issues arising in the writ petition in regard to
S.N. Kumar, but contended that they were protected against dis-
closure under Article 74 clause (2) of the Constitution as also section
G
123 of the Indian Evidence Act. This contention raised an extremely
important question in the area of public Jaw particularly in the
context of the open society which we are trying to evolve as part of
the democratic structure and it caused great concern to us, for it
H
involved a clash between two competing aspects of public interest,
but ultimately after inspecting these documents for ourselves and
590 SUPREME COURT REPORTS (1982] 2 S.C.R.

A giving our most anxious thought to this highly debatable question,
we decided to reject the claim for protection against disclosure and
directed that these d"cumen ts be disclosed by the Union of India.
We now proceed to give our reas ons for this decision taken by us
by a majority of six against one .

.B The first ground on which protection against disclosure was
claimed on behalf of the Union of India and the Law Minister wa's
based on Article 74 clause (2) of the Constitution. It is clear from
the constitutional scheme that under our Constitution the President
is a constitutional Head and is bound to act on the aid and advice of
c the Council of Ministers. This was the position even before the
amendment of clause (I) of A :ticle 74 by the Constitution (42nd
Amendment) Act 1976, but the position has been made absolutely
explicit by the amendment and Article 74 clause (I) as amended now
reads as under :

D "There shall be a Council of Ministers with the Prime
Minister at the Head to aid and advise the President who
shall, in the exercise of his functions act in accordance with
such advice."

What was judicially interpreted even under the unamended Article 74
E clause (1) has now been given Parliamentary recognition by the
constitutional amendment. There can therefore be no doubt that
the decision of the President under Article 224 read with Article 217
not to appoint an additional Judge for a further term is really a
decision of the Council of Ministers and the reasons which have
weighed with the Council of Ministers in taking such decision would
F necessarily be part of the advice tendered by the Council of Ministers
to the President. Now clause (2) of Article 74 provides :

"The question whether any, and if so what, advice was
tendered by Ministers to the President shall not be inquired
into any Court."
G
The Court, cannot, having regard to this constitutional prov1s10n,
embark upon an inquiry as to whether any and if so what advice
was tendered by the Council of Ministers to tne President and since
the reasons which have prevailed with the Council of Ministers in
H
taking a particular decision not to continue an additional Judge for a
further term would form part of the advice tendered to the President,
S.P. GUPTA •• UNION (Bhagwati, J.) 591

they would be beyond the ken of judicial inquiry. But the Govern- A
ment may in a given case choose to disclose these reasons or it may
be possible to gather them from other circumstances, in which event
the Court would be entitled to examine whether they bear any
. reasonable nexus with the que;tion of appointment of a High Court
Judge or they are constitutionally or illegally prohibited or extraneous
or irrelevant. But if these reasons are not disclosed by the Govern-
B
ment and it i; otlletwise not possible to discover them, it would be
impossible for the Court to decide whether the decision of the
Central Government not to app,int an additional Judge for a further
term is based on irrelevant grounds. There would however not be
much difficulty by and large in cases of this kind to gather what
are reasons which have prevailed with the Central Government in
c
taking the decision not to continue an additional Judge. Article 217
requires that there must be full and effective consultation between
the President, that is, the Central Government on the one hand and
the Chief Justice of the High Court, the Governor, that is the State
Government and the Chief Justice of India on the other and the . D
"full and identical facts" on which the decision of the Central
Government is based must be placed before the Chief Justice of the
High Court, the State Government· and the Chief Justice of India.
--I The reasons which the Central Government is inclined to take into
account for reaching a particular decision have therefore necessarily
to be communicated to the Chief Justice of the High Court, the State E
Government and the Chief Justice of India and in the circumstances,
it should orclinari!y be possible ;.for the Court to gather from su:h
communication; the reasons which have persuaded the Central
Government to take its decision. Of co~rse there may be cases
where there are several reasons discussed between the Central
Government and the three constitutional authorities and some of F
' these reasons may be relevant, while some others may be irrelevant
and without inquiring into the advice given. by the. Council of
Ministers to President, it may not be possible to determine as to
what are !he reasons, relevant or ir.relevant, which have weighed with
the Central Government in taking its· decision and in such a· case,
the Court may not be able to pronounce whether the decision of the G
Central Government is based on irrelevant grounds. B~t ordinarily
the correspondence exchanged between the Central G Jvern moot, the
Chief Justice of the High Court, the State Government and the C.1ief
Justice cf India would throw light on the question as to what are
the reasons which have impelled the Central Government to take any
particular decision regarding the continu1C1ce of an additi()odl Judge.
592 SUPREME COURT REPORTS [1982] 2 s.c.R.

A This correspondence would also show whether the "full and identical
facts" on which the decision of the Central Government is based
were placed before the Chief Justice of the High Court, the State
Government and the Chief Justice of India before they gave their
opinion in the course of the consultative process. Of course if the
communication between the Central Government, the Chief
B Justice of the High Court, the State Government and the Chief
Justice of India has not taken place by correspondence but has been
the subject matter of only oral talk or discussion, it would become
impossible for the Court to discover the reasons which have weighed
with the Central Government in taking the decision not to continue
the additional Judge for a further term, unless of course the Central
c Government chooses to disclose such reasons and it would also
become extremely difficult for the Court to decide whether the "full
and identical facts" on which the decision of the Central Government
is based were placed before the other three constitutional authorities
and there was full and effective consultation as required by Article
217. The Court would then have to depend only on such affidavits
D as may be filed before it and the task of the Court to ascertain the
truth would be rendered extremely delicate and difficult, as it has
been in the writ petitioas challenging the transfer of Mr. Justice
K.B.N. Singh, Chief Justice of Patna High Court. It is not at all
desirable that when the Chief Justice of the High Court or the Chief
Justice of India has to communicate officially with the State Govern.
E ment or the Central Government in regard to a matter where he is
discharging a constitutional function, such communication should be
only by way of oral talk or discussion unrecorded in writing. We
think it absolutely essential that such communication must, as far as
possible, be in writing, whether by way of a note or by way of
correspondence. The process of consultation, whether under Article
F 217 or under Article 222, must be evidenced in writing so that if at
any point of time a dispute arises as to whether consultation had
in fact taken place or what was the nature and content of such
consultation, there must be documentary evidence to resolve such

G
dispute and 'an ugly situation should not arise where the word of
one constitutional authority should be pitted against the word of -
another and the Court should be called upon to decide which of them
is telling the truth. Oral talk or discussion may certainly take place
between the Central Government and any other constitutional
authority required to be consulted but it must be recorded immedi-
ately either in a note or in con·espondence. Besides eliminating
H future dispute or controversy, the practice of having written comm uni-
S.P. GUPTA v. UNION (Bhagwati, J.) 593

A
cation or record of oral discussion ensures greater care and delibera-
tion in expression of views and considerably reduces the possi -
bility of improper or unjustified recommendations or unholy
confabulations or conspiracies which might be hidden
under the veil of secrecy if there were no written record. More-
over, such a practice would tend to promote openness in B
society which is the hall-mark of a democratic polity. It would
indeed be highly regrettable if, instead of following this healthy
practice of having a written record of consultation, the Central
Government or State Government or the Chief Justice of the High
Court or the Chief Justice of India were to carry on the consultation
process either on the telephone or by personal discussion without c
recording it. But we find that fortunately in the present case, unlike
KB N. Singh's case which falls for determination in the second
batch of writ petitions, there was correspondence exchanged between
the Law Minister, the Chief Justice of Delhi and the Chief Justice of
India in regard to the continuance of S.N. Kumar and the question
is whether this correspondence forms part of the advice tendered by D
the Council of Ministers to the President so as to be protected
against disclosure by reason of clause (2) of Article 74.

The argument of the learned Solicitor General was that this
correspondence formed part of the advice tendered by the Council E
of Ministers to the President and he sought to s Lip port this argument
by adopting the following proce;s of r.:asooing. H: s1id that the
Council of Ministers cannot advise the President to appoint or not
to ap ,mint an additional Judge for a further term without consulting
the Chief Justice of the High Court and the Chief Justice of Iadia,
it is only after consulting them that appropriate advice cao be tende- F
red by the Council of Ministers to the President. When advice is
tendered by the Council of Ministers to the President, it is
open to the President unccr the Provi.;o to clause (1) of Article 74
not to immediately accept such advice but to require the Council of
Ministers to reconsider the advice generally or otherwise. If in a
given case the President finds that advice has been given by the
G
Council of Ministers without consulting either the Chief Ju;tic~ of
the High Court or the Chief Justice of India or both or that there
has been no full and effective co.isultation with them as required by
the Constitution, he may, and indeed he must, send the case back
H
594 SUPREME COURT REPORTS (1982] 2 S.C R.

A to the Council of Ministers and require them to reconsider the advice .
after carrying out full and effective consultation with the Chief
Justice of the High Court and the Chief Justice of India. Now how
can the President satisfy himself in regard to the fulfilment of the
the constitutional requirement of consultation with the Chief Justice
of the High Court and the Chief Justice of India, unless the views
8 expressed by the two Chief Jmtices are placed before him alongwith
the advice tendered by the Council of Ministers. The exercise
of the power of the President to appoint or not to appoint
an additional Judge is so integrally connected with the con8-
titutional requirement of full and effective consultation with
the Chief Justice of the High Court and the Chief Justice of India
c that at no stage can it be de!inked from the views expressed by them
on consultation and it would not be possible for the President to
exercise this executive power in accordance with the constitution un-
less the views of the two Chief Justices are placed before him. On
the basis of this reasoning and as a logical consequence of it, argued
D the learned Solicitor General, the views of the Chief Justice of Delhi
and the Chief Justice of India obtained on consultation must be
regarded as forming part of the advice tendered by the Council of
Ministers to the President. The learned Solicitor General sought to
draw support for his argument from the decision of a Constitution
Bench of this Court in the Stare of Punjab v. SodhiSukhdev Singh(1)
We shall presently refer to this decision but before we do so, let us
E
examine the argument of the learned Solicitor General on principle.

There can be no doubt that the advice tendered by the Council
of Ministers to the President is protected against judicial scrutiny
by reason of clause (2) of Article 74. But can it be said th at the
F views expressed by the Chief Justice of the High Court and the
Chief Justice of India on consultation form part of the advice.
The advice is given by the Council of Ministers after consul-

G
tation with the Chief Justice of the High Court and the Chief
Justice of India. The two Chief Justices are consulted on "full
..
"and identical facts" and their views are obtained and it is
after co11si dering those views that the Council of Ministers
arrives at is decision and tenders its advice to the President. fhe
views expressed b' the two Chief Justices precede the formation of
the advice and merely because they are referred to in the advice
H which is ultimately tendered by the Council of Ministers. they do

(I) [1961] 2 SCR 371.
S.P. GUPTA v. UNION (Bhagwati, J.) 595

...... not necessarily become part of the advice. What is protected against
disclosure under clause(2) or Article 74 is only the advice tendered by
the Council of Ministers. The reasons which have weighed with the
Council of Ministers in giving the advice would certainly form
part of the advice, as held by this Court in S.ate of Rajasthan v.
Union of Jndia( 1). Vide the observations of Beg, C.J. at page 46, ·8
Chandrachud J. (as he then was) at page 91, Fazal Ali J. at pages
120 and 121, where all the three learned Judges took the view that
by reason clause (2) of Article 74 the Court would be barred from
inquiring into the grounds which might weigh with the Council of
Ministers in advising the President to issue a proclamation under
Article 356, because the grounds would form part of the advice
tendered by the Council of Ministers. But the ·material on which
c
the reasoning of the Council of Ministers is based and the advice is
given cannot be said to form ·part of advice. The po.int we
are making may be illustrated by taking the analogy of a judgment
given by a Court of Law. The judgment would undoubtedly be
based on the evidence led before the Court and it would refer to D
such evidence and discuss it but on that account can it be said that
the evidence forms part of the Judgment ? The judgment would con-
sist only of the decision and the reasons in support of it and the
): evidence on which the reasoning and the decision are based would
not be part of the judgment. · Similarly the material on which the
advice tendered by the Council of Ministers is based cannot be said E
to be part of the advice and the correspondence exchanged between
the Law Minister, the Chief Justice of Delhi and the Chief Justice of
India which constituted tbe material forming the basis of the deci-
sion of the Central Government must accordingly be held to be out-
side the exclusionary rule enacted in clause (2) of Article 74.
F'
We may now refer to the decision of the Constitution Bench
of this Court in the State of Punjab v. Sodhi Sukhdev Singh
... (supra) on which the greatest reliance was placed by the learned
Solicitor General in support of his plea based on clause (2) of
Article 74. The respondent who was the District and Sessions Judge G
in the erstwhile State of PEPSU was removed from service by an
order dated 7th April, 1953 passed by tbe President who was then
incharge of the Administration of the State. The respondent made

(I) (1978] 1 SCR 1. H
596 SUPREME COURT REPORTS (1982] 2 S.C.R

A a respresentation against the Order of removal which was considered
by the Council of Ministers of the State as in the meantime the
President's rule had come to an end and the Council of Ministers
expressed its views in a Resolution passed on 28th September, 1955.
But before taking any action it invited the Report of the Public
Service Commission. On receipt of the Report of the Public Service
B Commission, the Council of Ministers considered the matter again
and ultimately on 11th August, 1956 it reached the final conclusion
.against the respondent and in accordance with the conclusion the
order was passed to the effect that the respondent must be re-
employed on some suitable post. The respondent thereµpon instituted
a suit against the successor St11-te of Punjab for a declaration that his
c removal from service was i!Jegal and in that suit he filed an applica-
tion for the production of certain documents which included inter
alia the proceedings of the Council of Ministers deted 28th Septem-
ber 1955 and 1lth August 1956 and the Report of the Public
Service Commission. The State objected to the production of these
documents and ultimately the matter came before this Court.
D Gajendragadkar, J. (as he then was) speaking on behalf of the
majority of the Court upheld the claim of privilege put forward on
behalf of the State and so far as the Report of the Public Service
Commission was concerned, the learned Judge held that it was pro-
tected against disclosure both under clause (3) of Article 163 and
Section 123 of the Indian Evidence Act. We are at present con-
E cerned only with the claim for protection under ciause (3) of
Article 163 because that is an Article which corresponds to clause (2)
of Article 74 in so far as advice by the Council ot Ministers to the
Governor is concerned. The learned Judge speaking on behalf of
the majority, accorded protection to the report of the Public Service
Commission under clause (3) of Article 163 on the ground that it
F
formed part of the advice tendered by the Council of Ministers
to the Rajpramukh. This view taken by the majority does appear
prima facie to support the contention of the learned Solicitor
General, but we do not think we can uphold the claim for protection
put forward by the learned Solicitor General by adopting a process
G of analogical reasoning from the majority view in this decision. In
the first place, we do not know what were the circumstances in which
the majority Judges came to regard the report of the public Service
C<'mmission as forming part of the advice tendered to the
Rajpramukh. There is no reasoning in the judgment of t11e learned
H Judge showing as to why the majority held that the report of the
Public Service Commission fell within the terms of clause (3) of
S.P GUPTA v. UNION (Bhagwati, J.) 597

Article 163. The learned Judge has merely set out his ipse dixit, A
without ·any reasons at all, saying in just one sentence. "The same
observation falls to be made in regard to the advice tendered by the
Public Service Commission to the Council of Ministers." It is
elementary that what is binding on the Court in a subsequent case
is not the conclusion arrived at in a previous decision but the ratio
of that decision, for it is the ratio which binds as a precedent and B
not the conclusion. Secondly, we may point out that we find' it
difficult to accept the view taken by the majority in this case.
We are unable to appreciate how the report of the Public Service
Commission which merely formed the material on the basis of which
the Council of Ministers came to its decision as recorded in the pro·
ceedings dated I Ith August, 1956 could be said to form part of the c
advice tendered by the Council of Ministers to the Rajpramukh.
We do not think the learned Solicitor General can invoke the aid of
this decision in support of his claim for protection under clause (2)
of Article 74.

That takes us to the next qhestion whether the correspondence D
exchanged between the Law Minister, the Chief Justice of
Delhi and the Chief Justice of India is protected from
disclosure under any other provision of law. We do not
have in India any common law protection under the label of
"Crown Privilege" as it was known a decade ago and now called
"Public interest immunity" as there is in England and the only E
provision of law under wh!ch such immunity can be claimed is
section 123 of the Indian Evidence Act and therefore, it is this
provision which we must now turn to consider. But, before we do
so, we would like to indicate the socio-political background in the
context of which this section has to be interpreted. It is true that
this section was enacted in the second half of the last century but F
its meaning and content cannot remain static. The interpretation
of every statutory provision mu st keep pace with changing concepts
and values and it must, to the extent to which its language permits
or rather does not prohibit, suffer adjustments through judicial
interpretation so as to accord with the requirements of the fast
changing society which is undergoing rapid social and economic
G
transformation. The language of a statutory provision is not a
static vehicle of ideas and concepts and as ideas and concepts
change, as they are bound to do in a country like ours with the
establishment of a democratic structure based on egalitarian values
and agressive developmental strategies, so must the meaning and
H
content of the statutory provision undergo a change. It is ele-
598 SUPREME COORT REPORTS [1982] 2 S.C.R.

A mentary that law does not operate in a vaccum. It is not an antique
to be taken down, dusted, admired and put back on the shelf, but
rather it is a powerful instrument fashioned by society for the pur-
pose of adjusting conflicts and tensions which arise by reason of
clash between conflicting interests. It is therefore intended to serve
~ social purpose and it cannot be interpreted without taking into
B account the socio-economic and political setting in which it is
intended to operate. It is here that the Judge is called upon to
perform a creative function. He has to inject flesh and blood in
the dry skelton provided by the legislature and by a process of
dynamic interpretation, invest it with a meaning which will harmo-
nise the law with the prevailing concepts and values and make it an
a effective instrument for delivery of justice. We need not therefore
be obsessed with the fact that section 123 is a statutory provision of
old vintage-Or that it bas been interpreted in a particular manner
some two decades ago. It is not as if it has once spoken and then
turned into muted silence. It is an instrument which can speak
again and in a different voice in the content of a different milieu.
D
Let us therefore try to understand what voice this statutory provi-
sion speaks today in a democratic society wedded to the basic values
enshrined in the Constitution.

Now it is obvious from the Constitution that we have adopted
a democratic form of Government. Llvhere a society has chosen to
l!l accept democracy as its credal faith, it is elementary that the citizens
ought to know what their government is doing. The citizens have
a right to decide by whom and by what rules they shall be governed
and they are entitled to call on those who govern on their behalf to
acccunt for their conduct. No democratic government can survive
without accountability and the basic postulate of accountability is
F
that the people should have information about the functioning of
the government. It is only if people know how government is
functioning that they can fulfil the role which democracy assigns to
them and make democracy a really effective participatory demo-
cracy. "Knowledge" said James Madison, "will for ever govern
G ignorance and a people who mean to be their own governors must
arm themselves with the power knowledge gives. A popular govern-
ment without popular information on the means of obtaining it,
is but a prologue to a force or tragedy or perhaps both." The
citizens' right to know the facts, the true facts, about the adminis-
H tration of the country is thus one of the pillars of a democratic
State. And that is why the demand for openness in the government
is increasingly growing in different parts of the world.
S,P. GUPTA v. UNION (Bhagwati, J.) 599
The demand for openness in the government is based princi- A
pally on two reasons. It is now widely accepted that democracy
does not consist merely in people exercising their franchise once in
five years to choose their rulers and, once the vote is cast, then
retiring in passivity and not taking any interest in the government.
Today it is common ground that democracy has a more positive
content and its orchestration has to be continuous and pervasive. B
This means inter alia that people should not only cast intelligent
t
and rational votes but should also exercise sound judgment on the
conduct of the government and the merits of public policies, so that
democracy does not remain merely a sporadic exercise in voting but
bec0mes a continuous process of government-an attitude and habit
of mind. But this important role people can fullfil in a democracy C
only if it is an open government where there is full access to infor-
mation in regard to the functioning of the government.

Tl:ere is also in every democracy a certain amount of public

-- suspicion and distrust of government, varying of course from time
to time according to its performance, which prompts people to insist
D
upon maximum exposure of its functioning. It is axiomatic that
every action of the government must be actuated by public interest
but even so we find cases, though, not many, where governmental
action is taken not for public good but for personal gain or other
extraneous considerations. Sometimes governmental action is influ- E
enced by political and other motivations and pressures and at ti mes,
there are also instances of misuse or abuse of authority on the part
of the executive. Now, if secrecy were to b-e observed in the func-
tioning of government and the processes •of government were to be
kept hidden from public scrutiny, it would tend to promote and
encourage oppression, corruption and misuse or abuse of authority,
for it would all be shrouded in the veil of secrecy without any
public accountability. But if there is an open government with
means of information available to the public, there would be greater

·- exposure of the functioning of government and it would help to
assure the people a better and more efficient administratio!'. ·There
can be iittle doubt that exposure to public gaze and scrutiny is one G
of the surest means of achieving a clean and healthy administration.
It has been truly said that an open government is clean government
and a powerful safeguard against political :ri;·d administrative aber-
ration and inefficiency.
B
The Franks Committee of the United Kingdom also observed
600 SUPREME COURT REPORTS [l 982) 2 s.c.1..

A to the same effect while pleading for an open government. It said
in its report at page 12 :

"A totalitarian government finds it easy to maintain
secrecy. It does not come into the open until it chooses
to declare its settled intentions and demand support for
B them. A democratic government, however, though it must
compete with these other types of organisations, has a task
which is complicated by its obligations to the people. It
needs the trust of the governed. It cannot use the plea of
secrecy to hide from the people its basic aims. On the
contrary it must explain these aims : it must provide the
c justification for them and give the facts both for and
against a selected course of action. Now must such infor-
mation be provided only at one level and through one
means of communication. A government which pursues
secret aims, or which operates in greater secrecy than the
effective conduct of its proper functions requires, or which
D turns information services in to propaganda agencies, will
Jose the trust of the people. It will be countered by ill-
informed and destructive criticism. Its critics will try to
break down all barriers erected to preserve secrecy, and
they will disclose all that they can, by whatever means, dis-
cover. As a result matters will be revealed when they
E ought to remain secret in the interests of the nation."

So also ~(f fuitobservations in the same strain by Mathew, J. in
State of Uttar Pradesh v. Raj Narain :(1)

F "In a government of responsibility like ours, where ,
all the agents of the public must be responsible for their
conduct. there can but few secrets. The people of this
country have a right to know every public act, everything
that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public
G transaction in all its hearing. The right to know, which is
derived from the concept of freedom of speech, though
not absolute, is a factor which should make one wary,
when secrecy is claimed for transacti.ons which can, at any
rate, have no repercussion on public security. To cover
H with veil secrecy to common routine business, is not in the

(I) [ 1975] 3 SCR 333 at page 360.
S.P. GUPTA v. UNION (Bhagwati, J.) 601

interest of the public. . Such secrecy can seldom be legiti- A
mately desired. it is generally desired for the purpose of
parties and politics or personal self-interest or bureaucratiQ
routine. The responsibility of ·officials to explain and to
justify their acts is the chief safeguard against oppression
and corruption."
B
The need for an open government where there is access to infor-
/ mation in regard to the functioning of government has been empha-
sized and the arguments in support of it have been ably and succinct-
ly summarised in the following passage from the book of Dr. S. R.
Maheshwari on "Open Government in India" at pages 95 and 96 :
.. c
"Administrative India puts the greatest weight on keeping
happening within its corridors secret, thereby denying the
citizens access to information about them.

Such orientations produce deep contradictions in the
larger socio-political system of the land which itself is in a D
state requiring nourishment and care. As the latter is still
relatively new and in its infancy, its growth processes inevi-
tably ·get retarded for want of information about the
Government, which means from the Government. Over-
concealment of governmental information creates a com-
munication gap between the governors and the governed, E

- and its persistence beyond a point is apt to create an
alienated citizenry. This makes democracy itself weak and
insecure. Besides, secrecy renders administrative accounta-
bility unenforceable in an effective way and thus induces
administrative behaviour which is apt to degenerate into
F
arbitrariness and absolutism. This is not all.

The Government, today, is called upon to make poli-
cies on an ever increasing range of subj~cts, and many of
these policies must necessarily impinge on the lives of the
citizens. It may sometimes happen that the data made G
available to the policy makers is of a selective nature, and
even the policy-makers and their advisers may deliberately
suppress certain viewpoints and favour others. Such
bureaucratic habits get encouragement in an environment
> of secrecy; and openness in governmental work is possibly H
the only effective corrective to it, also raising, in the pro-
cess, the quality of decision-making. Besides, openness has
{(\2 SUPREME COURT REPORT [1982) 2 S.C.R.

~ an educational role inasmuch as citizens are enabled to
acquire a fuller view of the pros and cons of matters
1 of major importance, which naturally helps in building
informed public opinion, no less than goodwill for the
Government."

This is the new democratic culture of an open society towards
which every liberal democracy is moving and our country should
be no exception. The concept of an open government is the direct --r·
emanation from the right to know which seems to be implicit in the
right of free speech and expression guaranteed under Artie!!'
19 (I) (a). Therefore, disclosure of information in regard to the
c functioning of Government must be the rule and secrecy an exception
justified only where the strictest requirement of public interest so
demands. The approach of the court must be to attentuate the
area of secrecy as much as possible consistently with the require-
ment of public interest, bearing in mind all the time that disclosure
also serves an important aspect of public interest. It is in the
.D context of this background that we must proceed to interpret section
123 of the Indian. Evidence Act.

We might begin by reproducing section 123 which reads as
follows : .:(

"Sec. 123 : Evidence as to affairs of State-No one
shall be permitted to give any evidence derived from un-
published official records relating to any affairs of State,
except with the permission of the officer at the head of
the department concerned, who shall give or withhold such
permission as he thinks fit."
F ~

It is also necessary for arriving at a proper interpretation of section
123 to refer to section 162 which says: .~

"Sec. 162. Production'l@f documents-A witness sum-
moned to produce a document " shall, if it is in his possession
G or power. bring it to court, notwithstanding any objection
which there may be to its production or to its admissibility.
The validity of any such objection shall be decided on by
the court.

The court, if it sees fit, may inspect the document,
unless it refers to matters of State, or take other evidence
to enable it to determine on its admissibility .

•
S.P. GUPTA v. UNION (Bhagwati, J.) 603

Translation of documents-If for such a purpose it
is necessary to cause any document to be translated, the
court may, if it thinks fit, direct the translator to keep the
contents secret, unless the document is to be given in evi-
dence and if the interpreter disobeys such directions, he
shall be held to have committed an offence under sec. 166
of the Indian Penal Code, 1860 (45 of 1860)." B

These two sections came up for consideration for the first time
before the Court in State of Punjab v. Sodhi Sukhdev Singh (supra).
Gajendragadkar, J. (as he then was), speaking on behalf of himself,
Sinha, C.J. and Wanchoo, J. pointed out that the principle behind
the exclusionary rule enacted in section 123 is that a document c
should not be allowed to be produced in court if such production
would cause injury to public interest and where a conflict arises
between public interest in non-disclosure and private interest in
disclosure, the latter must yield to the former. The learned Judge
emphasized that though section 123 does not expressly refer to injury
to public interest, that principle is obviously implicit in it and indeed D
it is the sole foundation and proceeded to add that even though
administration of justice is a matter of very high public importance,
if there is a real "conflict between public interest and the interest of
an individual in a pending case, it may reluctantly have to be conce-
ded that the interest of the individual cannot prevail over the public
E
- interest." Now we agree with the learned Judge that public interest
Hes at the foundation of the claim for protection against disclosure
enacted in section 123 and it seeks to prevent production of a
document where such production would cause public injury but we
do not think the learned Judge was right in observing that the
interest which comes into conflict with the claim for non-disclosure F
is the private interest of the litigant in disclosure. It is rather the
public interest in fair administration of justice that comes into clash
with the public interest sought to be protected by non-disclosure and
the court is called upon to balance these two aspects of public
interest and decide which aspect predominates. We shall have to
discuss this problem of balancing different aspects of public interest G
a little later, but in the meanwhile let us continue with the
examination of the decision in Sukhdev Singh' s case (supra).
Gajendragadkar, J. (as he then was) after pointing out that public
interest was the sole foundation for the claim for protection under
section 123 proceeded to consider when a document can be said to H
be relating to' 'affairs of State" within the meaning of that section.
The learned Judge observed that three different views are possible' on
•
604 SUPREME CCUl\T REPORTS [1982] 2 s.c.R.

A this question. The first view is that documents relating to affairs of
State are broadly divisible into two classes, one the disclosure of which
will cause no injury to public interest and which may therefore be
described as innocuous documents and the other the disclosure of
which may cause injury to public interest and may therefore be
described as noxious documents; it is the head of the department
B who decides to which class the document in respect of which the
claim for protection against disc! osure is made, belongs, if he comes
to the conclusion that the document is innocuous, he will give per-
mission for its production: if, however, he comes to the conclusion
that the document is noxious, be will withhold such permission; in
any case the court does not materially come into the picture. The
c second view is that documents relating to affairs of State should be
confined only to the clause of noxious documents and when a
question arises, it is for the court to determine the character of the
document and if necessary, to enquire whether its disclosure would
lead to injury to public interest. The third view which does not
accept either of the two extreme positions would be that the court
D can determine the character of the document and if it comes to the
conclusion that the document belongs to the noxious class, it may
leave it to the head of the department to decide whether its produc-
tion should be permitted or not, for it is not the policy of section
123 that in the case of every noxious document, the head of the
department must always withhold permission. The learned Judge
E then proceeded to consider which of the three views represents the
correct legal position and for that purpose, turned to examine section
I 62 and after discussing the true import of that section and holding
that where an objection to the disclosure of a documet is raised
under section 123 on the ground that it relates to affairs of State,
the court cannot inspect the document for the purpose of deciding
F the objection, the learned Judge accepted the third view as correct
and summarised his conclusion in the following word~ :

"Thus our conclusion is that reading ss. 123 and 162
together the court cannot hold an enquiry into the possible
G injury to public interest which may result from the disclo-
sure of the document in question. That is a matter for the
authority concerned to decide; but the Court is competent,
and indeed is bound, to hold a preliminary enquiry and
determine the validity of the objections to its production,
H and that necessarily involves an enquiry into the question
as to whether the evidence relates to an affair of State
µ11di:r ~~<;(ion 123 or not,
•
S.P. GUPTA v. UNION (Bhagwati, J.) 605

In this enquiry the court has to determine the A
character or class of the document. If it comes to the
conclusion that the document does not relate to affairs of
State then it should reject the claim for privilege and direct
its production. If it comes to the conclusion that the
document relates to the affairs of State, it should leave it
to the head of the department to decide whether he should B
permit its production or not."

The learned Judge thus took the view in no uncertain terms that
documents relating to affairs of State are documents belong-
ing to the noxious class, that is, documents which by reason of their
c
contents or the class to which they belong, are such that disclosure
may cause injury to public interest. The learned Judge agreed that
it is for the court to determine whether a particular document in
respect of which the claim for non-disclosure is made is a document
relating to affairs of the State or in other words, it is a document
D
falling within the noxious class, but introduced a serious impedi·
ment in the way of the court making such determination by holding
that the court cannot for this purpose inspect the document or hold
"an enquiry into the possible injury to public interest which may
result from the disclosure of the document." Now, if the court has
no power to inspect the document, it is difficult to understand how E
the court can find, without conducting an enquiry as regards the
possible effect of the disclosure of the document upon public interest,
that the document is one relating to affairs of State, as exhypothesi
a document can be said to relate to affairs of State only if its
disclosure will cause injury to public interest. It might be that there
are certain classes of documents which are of such a character that
even without inspecting them or conducting an enquiry, it might be F
possible to say that by virtue of their character, their disclosure
would be injurious to public interest and therefore they are
documents relating to affairs of State. But, there might be other
documents which do not fall within this description and yet whose
disclosure might be injurious to public interest and in case of such G
documents, it would not be possible for the court without inspecting
them or at any rate without holding an enquiry, t" determine
whether their disclosure would be injurious to public interest and
they should therefore be classified as documents relating to affairs of
State. Even so, according to Gajendragadkar, J. and the other H
learned Judges, the court can and must determine whether such
documents relate to affairs of State without inspecting them and
606 SUPREME COURT REPORTS [1982] 2 s.c.R.

A without even holding an enquiry into the possible injury to public
interest which might result from their disclosure. The view taken
by Gajendragadkar, J. and the other learned Judges in Sodhi
Sukhdev Singh' s case (supra) thus runs into an inconsistency and
creates an illogical situation.

B There is also another infirmity from which the view taken in
Sodhi Sukhdev Singh's case (supra) suffers. Gajendragadkar, J.
speaking on behalf of himself and the other learned Judges observed
that when an objection against the disclosure of a document is raised
under section 123, the court must first determine the character of
the document and if it comes to the conclusion that the document
c relates to affairs of State, it should leave it to the Head of the
department to decide whether he should permit its production or
not. Now even according to Gajendragakar, J. and the other
learned Judges, a document can be said to relate to affairs of State
only if it is a document of such a· character that its disclosure will
injure public interest and therefore the court would have to reach the
D conclusion that the disclosure of the document will be injurious to
public interest before it can find that the document relates to affairs
of State. If that be so, it is difficult to understand, after the court
has enquired into the objection and come to the conclusion that
disclosure of the document would be injurious to public interest,
what purpose. would be served by reserving to the head of the
E
department the power to permit its disclosure, because the question
to be decided by him would practically be the same, namely, whether
disclosure of the document would be injurious to public interest-a
question already decided by the court. In other words, if injury to
public interest is the foundation of this immunity from disclosure,
F when once the court has inquired into the question and found that
the disclosure of the document will injure public interest and therefore
it is a document relating to affairs of State, it would in most cases
be a futile exercise for the head of the department to consider and
decide whether its disclosure should be permitted as he would be
making an enquiry into the identical question. There may be a few
G rare cases where in regard to a document which by reason of the
class to which it belongs may be regarded as relating to affairs of
State, the head of the department may be able to take the view that
though it belongs to the noxious class, its disclosure would not be .
injurious to public interest and therefore allow it to be disclosed.
H But, by and large, once the court has found that the document is of
such a character that its disclosure will cause injury to public
interest, it w9uld b~ futil\! to leav~ it to the head of the department
S.P. GUPTA v. UNiON (E/zagwati, J.) 601
to decide whether he should permit its production or not. We are A
therefore unable to accept the decision ip Sodhi Singh' s case (supra)
as laying down the correct law on this point. The court would
allow the objection if it finds that the document relates to affairs of
State and its disclosure would be injurious to public interest, but on
the other hand, if it reaches the conclusion that the document does
not relate to affairs of State or that the public interest does not B
compel its non-disclosure or that the public interest in the adminis-
tration of justice in the particular case before it over-rides al! other
aspects of public interest, it will over-rule the objection and order
disclosure of the document. The basic question to which the court
would therefore have to address itself for the purpose of deciding the
validity of the objection would be whether the document relates to c
affairs of State or in other words, it is of such a character that its
disclosure would be against the interest of the State or the public
service and if so, whether the public interest in its non-disclosure is
so strong that it must prevail over the public interest in the adminis-
tration of justice and on that account, it should not be allowed to
be disclosed. The final decision in regard to the validity of an D
objection against disclosure raised under section 123 would always
be with the court by reason of section 162.

Now an objection against the disclosure of a document on the
ground that it relates to affairs of State may be made before the E
court either because it would be against the interest of the State or
the public service to disc1ose its contents or because it belongs
to a class of document which in the public interest ought not to be
disclosed, whether or not it would be harmful to disclose the con-
tents of the particular document. Where immunity from disclosure
is claimed on the ground that discloS1Jre of the contents of the F
document would be injurious to the interest of the State or the
public service it would not be difficult to decide the claim because
it would almost invariably be supported by an affidavit made either
by the Minister or by the head of the department and if the Minister
··~
or the head of the department asserts that to disclose the contents
of the document "would or might do to the nation or the public G
service a grave injury, the court will be slow to question his opinion
or to allow any interest, even that of justice, to prevail over it"
unless there can be shown to exist some factor suggesting either lack
) of good faith or an error of judgment or an error of law on the
part of the minister or the head of the department. But, even in H
such cases it is now well-settled that the court is not bound by the
statement made by the minister or the head of the department in

i ,:.,
608 SlJl>RilMll COlJRT REl>OllTS [1982] 2 s.c.R.

A the affidavit and it retains the power to balance injury to the State
or the public service against the risk of injustice, before reaching its
decision. Vide observations of Lord Scarrnan in Burma 0:1 v. Bank of
England(1). But the claim in the present case to withhold disclosure
of the correspondence exchanged between the Law Minister, the
Chief Justice of Delhi High Court and the Chief Justice of India
B in regard to continuance of S. N. Kumar is not based on the ground
that the contents of these particular documents are such that their
disclosure would harm the nationa[ interest or the interest of public
service. The claim put forward by the learned Solicitor General
on behalf of the Union of India is that these documents are entitled
to immunity from disclosure because they belong to a class of docu-
c ments which it would be against national interest or the interest of
the judiciary to disclose. It is settled law, and it was so clearly
recognised in Raj Narain' s case (supra) that there may be classes of
documents which public interest requires should not be disclosed,
no matter what the individual documents in those classes may con-
tain or in other words, the law recognises that there may be classes
D of documents which in the public interest should be immune from
disclosure. There is one such class of documents which for years
has been recognised by the law as entitled in the public interest to be
protected against disclosure and that class consists of documents
which it is really necessary for the proper functioning of the public
service to withhold from disclosure. The documents falling
E within this class are granted immunity from disclosure not because
of their contents but because of the class to which they belong.
This class includes cabinet minutes, minutes of discussions between
heads of departments, high level inter-departmental communications
and despatches from ambassadors abroad (vide : Conway v. Rimmer;(2 )
F and Reg v. Lewes J. K. Ex parte Home Secretary),e) Papers brought
into existence for the purpose of preparing a submission to cabinet
(vide Lanyon Property Limited v. Commonwealth(4 ) and indeed any
documents which relate to the framing of government policy at a
high level (vide : Re Grosvenor Hotel, London)(6). It would seem
that according to the decision in Sodhi Sukhdev Singh's case (supra),
G this class may also extend to "notes and minutes made by the res-
pective officers on the relevant files, information expressed or reports

(1) (1979] 3 All England Reports 700 at 732.
(2) [1968] Appeal Cases 910 at pp. 952, 973, 979, 987 & 993.
(3) (1973] Appeal Cases 388 at 412.
ff (4) 129 Commonwealth Law Reports 650.
(5) [1964) 3 All E,R. 354. (CA)
s.J>. GtJl>TA v. UNlO!S ( 11hagwati, J.) 609

made and gist of official decisions reached" in the course of deter- A
mination of questions of policy. Lord Reid in Conway v. Rimmer
(supra) at page 952; proceeded also to include in this class "all
documents concerned with policy-making within departments inclu-
ding, it may be minutes and the like by quite junior officials and
correspondence with outside bodies." It is not necessary for us for
the purpose of this case to consider what documents legitimately B
belong to this class so as to be entitled to immunity from disclosure,
irrespective of what they contain. But, it does appear that cabinet
papers, minutes of discussions of heads of departments and high
level documents relating to the inner working of the government
machine or concerned with the framing of government policies
belong to this class which in the public interest must be regarded c
as protected against disclosure.

Now, one reason that is traditionally given for the protection
of documents of this class is that proper decisions can be made at
high levels of government only if there is complete freedom and
candour in stating facts, tendering advice and exchanging views and 0
opinions and the possibility that documents might ultimately be
published might affect the frankness and candour of those preparing
them. This reason based on the need for frankness and candour,
) though suggested by some Judges, has not found universal accep-
tance. In Conway v. Rimmer (supra) Lord Reid dismissed the
"candour argument" summarily at page 952 and Lord Upjohn E
pointed out at page 993 that immunity of this class of documents
against discloure "has nothing whatever to do with candour or
uninhibited freedom of expression", for it is not possible to believe
"that any minister or any high level military or civil servant would
feel in the least degree inhibited in expressing his honest views in
the course of his duty on some subject, such as even the personal F
qualifications and delinquencies, of some colleague, by the thought
that his observation might one day see the light of day." Lord

-- Morris of Borth-Y-Gest also said in the same case at page 957:

"in many decided cases there have been references to a G
suggestion that, if there were knowledge that certain docu-
ments (for example reports) might in some circumstances
be seen by eyes for which they were never intended, the
result would be that in the making of similar documents
> in the future candour would be lacking. Here is a sugges- H
tion of doubtful validity. Would the knowledge ·that there
was a remote chance of possible enforced 1production really
610 SUPREME couttt Rlll>ORts [19S2] 2 s.C.it.
A affect candour ? If there was knowledge that it was con-
ceivably possible that some person might himself see a
report which was written about him, it might well be that
candour on the part of the writer of the report would be
encouraged rather than frustrated."

B Lord Radcliffe also remarked in Glasgow Corporation v. Central
Land Board(1) that he would have supposed Crown servants to be
"made of sterner stuff", a view shared by Harmen L. J. in the
Grosvenor Hotel case at page 1255. Lord Salmon too rejected the
"candour theory" in Reg v. Lewes Justices; Ex parte Secretary of
State for Home Deptt. (supra) at page 413 by referring to it as
c "the old fallacy" that "any official in the government service would
be inhibited from writing frankly and possible at all unless he could
be sure that nothing which he wrote could ever be exposed to the
light of day". The candour argument has also not prevailed with
Judges and jurists in the United States and it is interesting to note
what Raoul Berger while speaking about the immunity claimed by
D President Nixon against the demand for disclosure of the Watergate·
Tapes, says in his . book "Executive Privilege" : A Constitutional
Myth at page 264 :

'·Candid interchange" is yet another pretext for doubt·
ful secrecy. It will not explain Mr. Nixon's claim of
E blanket immunity for members of his White House staff
on the basis of mere membership without more; it will not
justify Kleindienst's assertion of immunity from congres-
sional inquiry for two and one-half million federal emp-
loyees. It is merely another testimonial to the greedy
expensiveness of power, the costs of which patently out-
F weigh its benefits. As the latest branch in a line of illegiti-
mate succession, it illustrates the excess bred by the claim
of executive. privilege."

We agree with these learned Judges that the need for candour and
frankness cannot justify granting of complete immunity against
G disclosure of documents of this class, but as pointed out by Gibbs
A.C, J. in Sankey Whit/am (supra), it would not be altogether unreal
to suppose "that in some matters at least communications between
ministers and servants of the Crown may be more frank and can·
did of these concerned believe that they are protected from dis-
H
(1) f!956] SC (HL) al page 20.
S.1'. GUPtA v. UNlON (Bhagwati, J.) 611

closure" because not all Crown servants can be expected to b A
.- made of "sterner stuff". The need for candour and frankness must
therefore certainly be regarded as a factor to be taken into account
in determining whether, on balance, the public interest lies in favour
of disclosure or against it. (vide : the observations of Lord Denning
in Neilson v. Lougharre(1).
8
There was also one other reason suggested by Lord Reid in
-Y Conway v. Rimmer (supra) for according protection against dis-
closure to documents belonging to this case : "To my mind", said
the learned Law Lord : "the most important reason is that . such
disclosure would create or fan ill-informed or captious public or
political criticism. The business of government is difficult enough
c
as it is, and no government could contemplate with equanimity the
inner workings of the government machine being exposed to the
gaze of those ready to criticise without adequate knowledge of the
background and perhaps with some axe to grind." · But this reason
does not commend itself to us. The object of granting immunity
D
to documents of this kind is to ensure the proper working of the
government and not to protect the ministers and other government
servants from criticism however intemperate and unfairly based.
). Moreover, this reason can have little validity in a democratic society
which believes in an open government. It is only through exposure
of its functioning that a democratic government can hope to win
E
the trust of the people. If full information is made available to
the people and every action of the government is bona fide 11:nd
actuated only by public interest, there need be no fear of "ill-
informed or captious public or political criticism". But at the same
time it must be conceded that even in a democracy, government at
a high level cannot function without some degree of secrecy. No F
minister or senior public servant can effectively discharge the res-
ponsibility of his office if every document prepared to enable policies
to be formulated was liable to be made public. It is therefore in
the interest of the State and necessary for the proper functioning
of the public service that some protection be afforded by law to
documents belonging to this class. What is the measure of this G
protection is a matter which we shall immediately proceed to
discuss.

We have already pointed out that whenever an objection to
the disclosure of a document under section 123 is raised, two ques- H
(1) [1981] 1 All England Reports at page 835.
612 SIJi>REME COURt REi>ORtS [1982) 2 s.c.tt.

A tions fall for the determination of the court, namely, whether the
document relates to affairs of State and whether its disclosure
would, in the particular case before the court, be injurious to
public interest. The court in reaching its decision on these two
questions has tq balance two competing aspects of public interest,
because the document being one relating to affairs of State, its
B disclosure would cause some injury to the interest of the State or
the proper functioning of the public service and on the other hand
if it is not disclosed, the non-disclosure wou Id thwart the admi- ~
nistration of justice by keeping back from the court a material
document. There are two aspects of public interest clashing with
each other out of which the court has to decide which predominates.
C The approach to this problem is admirably set out in a passage
from the judgment of Lord Reid in Conway v. Rimmer (supra) :

"It is universally recognised that there are two kinds
of public interest which may clash. There is the public
interest that harm shall not be done to the nation or the
0 public service by disclosure of certain documents, and
there is the public interest that the administration of
justice shall not be frustrated by the withholding of docu-
ments which must be produced if justice is to be done.
There are many cases where the nature of the injury which
would or might be done to the nation or the public service
is of so grave a character that no other interest, public or
private, can be allowed to prevail over it. With regard to
such cases it would be proper to say, as Lord Simon did,
that to order production of the document in question,
would put the interest of the State in jeopardy. But there
are many other cases where the possible injury to the public
service is much less and there one would think that it
would be proper to balance the public interests involved.

The court has to balance the detriment to the public interest on the
administrative or executive side which would result from the dis-
G closure of the document against the detriment to the public interest
on the judicial side which would result from non-disclosure of the
document though relevant to the proceeding. Vide the observations
of Lord Pearson in Reg. v. Lewes JJ. Ex parte Home Secretary
(supra) at page 406 of the report. The court has to decide which
H aspect of the public interest predominates or in other words,
whether the public interest which requires that the document should
not be produced, outweighs the public interest that a court of justice
S.l'. GUPTo\ v. UNIONj(Hhagwati, J.) 613

in performing its function should not be denied access to relevant A
evidence. The court has thus to perform a balancing exercise and
after weighing the one competing aspect of public inkrest against the
other, decide where the balance lies. If the court comes to the
conclusion that, on the balance, the disclosure. of the document
would cause greater injury to public interest than its non-disclosure,
the court would uphold the objection and not allow the document
B
to be disclosed but if, on the other hand, the court finds that the
balance between competing public interests lies the other way, the
court would order the disclosure of the document. This balancing
between two competing aspects of public interest has to be performed
by the court even where an objection to the disclosure of the docu-
ment is taken on the ground that it belongs to a class of documents
c
which are protected irrespective of their contents, because there is
no absolute immunity for documents belonging to such class. Even
in Conway v. Rimmer at page 952, Lord Reid recognised an excep-
tion that cabinet minutes and the like can be disclosed when they
have become only of historical interest, and in Lanyon Private
D
Limited v. Commonwealth (supra), Menzeies J. agreed that there
might be "very special circumstances" in which such documents
might be examined. Lord Scarman also pointed out in the course
)
of his speech in Burma Oil v. Bank of England (supra) that he did
not accept "that there are any classes of documents which, how-
ever harmless their content and however strong the requirement of E
justice, may never be disclosed until they are only of historical
interest". The learned Law Lord said and we are quoting here his
exact words since they admirably express our own approach to the
subject :

"But, is the secrecy of the inner workings of the F
government machine so vital a public interest that it must
prevail over even the most imperative demands of justice ?
If the contents of a document concern the ·national safety,
affect diplomatic relations or relate to some state secret of
high importance, I can understand an affirmative answer.
But if they do not (and it is not claimed in this case that
G
they do), what is so important about secret government that
it must be protected even at the price of injustice in our
courts."

The reasons given for protection, the secrecy of H
government at the level of policy making are two.. The
first is the need for candour in the advice offered to
614 SUPREME COURT REPORTS [1982] 2 s.c.tt

A Ministers; the second is that disclosure 'would create or
fan ill-informed or captious public or political criticism.'
Lord Reid in Conway v. Rimmer though the second 'the
most important reason'. Indeed, he was inclined to dis-
count the candour argument.

I think both reasons are factors legitimately to be put
into the balance which has to be struck between the public
interest in the proper functioning of the public service (i.e.
the executive arm of the government) and the public interest
in the administration of justice. Sometimes the public
service reasons will be decisive of the issue; but they should
c never prevent the court from weighing them against the
injury which would be suffered in the administration of
justice if the document was not to be disclosed "

The same view was expressed by Gibbs ACJ, in Sankey v. Whit/am
D (supra) where the learned acting Chief Justice said :

"I consider that although there is a class of documents
whose members are entitled to protection from disclosure
irrespective of their contents, the protection is not absolute,
and it does not endure for ever. The fundamental and
governing principle is that documents in the class may be
E withheld from production only when this is necessary in
the public interest. In a particular case the court must
balance the general desirability that documents of that kind
should not be disclosed against the need to produce them
in the interests of justice. The court will of course exa-
mine the question with special care, giving full weight to
F the reasons for preserving the secrecy of documents of this
class, but it will not treat all such documents as entitled to
the same measure of protection-the extent of protection
required will depend to some extent on tbe general subject
matter with which the documents are concerned."
G
There is nothing sacrosanct about the immunity which is granted to
documents because they belong to a certain class. Class immunity
is not absolute or inviolable in all circumstances. It is not a rule
to be applied mechanically in all cases. The principle upon which
class immunity is founded is that it would be ...contrary to public
H
interest to disclose documents belonging to that class, because such
disclosure would impair the proper functioning of the public service
S.P. GUPTA v. UNION (Bhagwati, J.) 615

and this aspect of public interest which requires that justice shall
A
not be denied to any one by withholding relevant evidence. This
is a balancing task which has to be performed by the Court in
all cases.

What should .be the technology and methodology of this
balancing task is a matter which we shall presently examine. But,
before we do so, it is necessary to point out that class immunity is B
not confined merely to that class of documents in respect of which
non·disclosure is really necessary for the proper functioning of the
public service, though mostly it is in respect of documents falling
within this class that the claim for class immunity is usually made.
There is also another class of documents which has always been
recognised by the Court as entitled to the same immunity and that c
class consists of documents evidencing the sources from which the
police obtain information. Now we agree with the learned counsel
on behalf of the petitioners th at this immunity should not be lightly
extended to any other class of documents, but, at the same time,
boundaries cannot be regarded as immutably fixed. The principle
is that whenever it is clearly contrary to the public interest for a D
document to be disclosed, then it is in law immune from disclosure.
If a new class comes into existence to which this principle applies,
then that class would enjoy the same immunity. This is the basis
on which in Reg. v. Lewes, JJ. Ex parte Home Secretary (supra) the
House of Lords extended this immunity to a new class of documents,
namely, all such documents as were supplied to the Gaming Board E
and related to the "character, reputation and financial standing
of the applicant". Lord Reid pointed out in that case that the
claim for protection made on behalf of Gaming Board was not based
on the contents of the particular letter of which disclosure was
sought by the appellant, but it was "based on the fact that the
F
Board cannot adequately perform their statutory duty unless they
can p;eserve the confidentiality of all communications to them
regarding the character, reputation or antecedents of applicants for
their consent." The learned Law Lord posited the question
for consideration in the following words : "Here the question is
whether the withholding of this class of documents is really necessary
G
to enable the Board adequately to perform its statutory duties" and
proceeded to hold that "if there is not to be very serious danger of
the Board being deprived of information essential for the proper
performance of their task, there must be a general rule that they
are not bound to produce any document which gives information to H
them about any applicant". Lord Morris of Borth-Y-Gest also
observed to the same effect at page 405 of the Report :
616 SUPREME COURT REPORTS [1982] 2 s.c,R.

A "However honourable and public spirited a person
might be, he would undoubtedly feel somewhat inhibited
in the future if he found that as a result oi his last response
to a request for information he had himself become a
defendant or an accused. The test, however, is not in per-
sonal terms. It rests upon a consideration of the necessities
B of the public service arising out of the rather special duties
and functions imposed and recognised by Parliament."

The House of Lords accordingly held that "on balance the public
interest clearly requires that documents of this kind should not be
c disclosed" and thus upheld the claim of immunity in respect of the
Jetter which gave information to the Gaming Board about the
character, reputation and antecedents of the appellant. The
question is whether immunity of this kind-what we have described
as class immunity-should be extended to the class of documents
consisting of correspondence exchanged between the Law Minister
D or other high level functionary or the Central Government, the Chief
Justice of the High Court and the Chief Justice of India in regard
to appointment or non-appointment of a High Court or Supreme
Court Judge.

Now we may cunveniently at this stage consider the question
E as to how a claim for immunity against disclosure should be raised
under section 123. It is necessary to repeat and re· emphasize that
this claim of immunity can be justifiably made only, if it is felt that
the disclosure of the document would be injurious to public interest.
Where the State is a party to an action in which disclosure of a
docurnent is sought b" the opposite party, it is possible that the
F decision to with-hold the document may be influenced by the
apprehension that such disclosure may adversely affect the head of
the department or the department itself or the minister or even the
Government or that it may provoke public criticism or censure in
the legislature or in the press, but it is essential that such considera-
tions should be totally kept out in reaching the decision whether or
G not to disclose the document. So also the effect of the document
on the ultimate course of the litigation-whether its disclosure would
hurt the State in its defence-should have no relevance in making a
claim for immunity against disclosure. The sole and only considera-
H tion must be whether the disdosure of the document would be
detrimental to public interest in the particular case before the Court.
It has therefore been held since long before Conway v. Rimmer
S.P. GUPTA v. UNION (Bhagwati, J.) 617

(supra) was decided in England and since the decision in Sodhi A
Sukhdeo Singh's case (supra) in India that a claim for immunity
against disclosure should be made by the minister who is the
political head of the department concerned or failing him, by the
secretary of the department and the claim should always be made in
the form of an affidavit. Where the affidavit is made by the secretary.
B
the Court may in an appropriate case require an affidavit of the
minister concerned. The affidavit should show that the document
in question has been carefully read and considered and the person
making the affidavit has formed the view that the document should
not be disclosed either because of its actual contents or because of
the class of documents to which it belongs. If in a given case no
affidavit is filed or the affidavit filed is defective, the Court may give
c
an opportunity to the State to file a proper affidavit. The reason is
that the immunity against disclosure claimed under section 123 is
not a privilege which can be waived by the State. It is an immunity
which is granted in order to protect public interest and therefore
even if the State has not filed an affidavit or the affidavit filed is not
D
" satisfactory, the court cannot abdicate its duty of deciding whether
the disclosure of the document in question would be injurious to
public interest and the document should not therefore be allowed to
be disclosed. That is why in England this immunity is no longer
described as "Crown Privilege" but is called "public interest
immunity". This aspect of the immunity was emphasized by Lord E
Reid in Reg v. Lewes Ex parte Home Secretary (supra) where the
learned Law Lord observed that the expression 'Crown Privilege' is
wrong and may be misleading and there is no question of any
privilege in the ordinary sense of the word, as the real question is
whether the public interest requires that the document shall not be
produced. Lord Simon of Glaisdale also pointed out in the same F
case; "Crown privilege is a misnomer and apt to be misleading. It
refers to the rule that certain evidence is inadmissible on the ground
that its adduction would be contrary to the public interest .......
it is not a privilege which may be waived by the Crown or by anyone
else". It is therefore clear that if a document is entitled to immunity
against disclosure, it cannot be adduced in evidence by either party G
and even if neither of the parties claims, such immunity, the Judge
himself must take the objection, for the rule that the public interest
must not be put in jeopardy by the disclosure of a document which
would injure it, is one upoo which the court should, if necessary,
insist, even though no objection has been take11 by any party or by H
any government department. In Conway v. Rimmer (supra) Lord
Reid said that it is the duty of the Court to prevent the disclosure
618 SUPREME COURT REPORTS (1982] 2 s.c.R.

A of a document without the intervention of any minister, "if possible
serious injury to the national interest is readily apparent". In Reg
v. Lewes Ex. parte Home Secretary (supra) Lord Simon of Glaisdale
pointed out that even a litigant or a witness may draw the attention
of the Court to the nature of the document with a view to its being
excluded. Since the immunity is founded '.on public interest, it
B is necessary that the court should have the power and the?duty to
prevent the disclosure of a document when it would be injurious to
public interest to disclose it, even if the proper procedure for
objection by or on behalf of the minister or the secretary has not
been followed. The Court must intervene proprio motu if it appears
that the public interest requires the document to be protected from
c disclosure.

This being the correct legal position, it is immaterial whether
in the present case appropriate affidavit claiming immunity was filed
on behalf of the Union of India. The learned Attorney General
D sought to tender on an affidavit sworn by Burney, the then Secretary
to the Home and Judiciary Department claiming immunity against
disclosure in respect of the correspondence exchanged between the
Law Minister, the Chief Justice of Delhi High Court and the Chief
Justice of India in regard to the non-appointment of S. N. Kumar
but since the affidavit was sworn on 7-9-1981 and yet not tendered
E until 16-9-1981 even though the arguments had begun long back, we
expressed our displeasure at the delay in filing the affidavit where-
upon the learned Attorney General stated that he would not rely
upon the affidavit. Thereafter when the learned counsel for S. N.
Kumar sought answers to certain queries in regard to this corres-
pondence, the learned Attorney General filed an affidavit sworn by
F
T.N. Chaturvedy, Secretary to the Home and Judiciary Department
claiming protection against disclosure of this correspondence, strong
objection was taken to the filing of this affidavit by the learned
counsel on behalf of the petitioners and S.N. Kumar on the ground
that the learned Attorney General having made a statement that he
G would not rely upon previous affidavit, it was not competent and in
any event not proper for the Union of India to file the affidavit of
T.N. Chaturvedi which was almost in the same terms as the previous
affidavit. But we over-ruled this objection, because, as would be
clear from what we have discussed above, even if no affidavit were
H filed earlier on behalf of the Union of India claiming immunity
against disclosure, the Union of India could always file an affidavit
claiming such immunity at any stage before the claim for immunity
S.P. GUPTA v. UNION (Bhagwati, J.) 619

was considered and decided by the court and once the claim for A
· immunity was raised, the court could also on its own direct the
Union of India to file a proper affidavit, if no such affidavit were
already filed. We therefore took the affidavit of T.N. Chaturvedi on
file and allowed the Union of India to rely upon it. We may point
out that even if this affidavit had not been filed, the Court would
still have had to consider on the basis of the other material before B
it including the nature of the correspondence whether its disclosure
would be injurious to pub! ic interest and hence it should not be
allowed to be disc! osed.

We may also point out that we were invited to inspect for
ourselves the correspondence exchanged between the Law Minister, c
the Chief Justice of Delhi High Court and the Chief Justice of India
for the purpose of deciding whether that correspondence was entitled
to immunity against disclosure. Now the view taken in Sodhi

,. Sukhdev Singh's case was that where an objection is raised against
the disclosure of a document under section 123, the Court has no
power to inspect the document under section 162 for the purpose of
deciding the objection. But with the greatest respect to the learned
D

Judges who decided that case, we do not think this view is correct
and in fact subsequent decisions of this Court seem to be against it.
So far as English law is concerned it is now well-settled as a result of
the decision of the House of Lords in Conway v. Rimmer {supra) that
there is a residual power in the Court to inspect the document if the E
Court finds it necessary to do so for the purpose of deciding whether
on balance the disclosure of the document would cause greater injury
to public interest than its non-disclosure. Vide Conway v. Rimmer
(supra) at pages 953, 979, 98 l and 993. This residual power of the
court to inspect the document has also been recognised in Australian
Law by the decision of the High Court of Australia in Sankey v. F
Whitlam(1). We do not see any reason why under Indian Law the
Court should be denied this residual power to inspect the document.
.,,.. It is true that under section 162 the Court cannot inspect the docu-
ment if it relates to affairs of State, but this bar comes into operation
only if the document is established to be one relating to affairs of
State. If, however, there is any doubt whether the document does
G
relate to affairs of State, the residual power which vests in the Court
to inspect the document for the purpose of determining whether the
disclosure of the document would be injurious to public interest and
the document is therefore one relating to atf airs of State, is not

(1) 21 Australian Law Reports 505.
620 SUPREME COURT REPORTS (1982] 2 S.C.R.

A excluded by section 162. This Court in fact held in no uncertain
terms in Raj Narain' s case (supra) where an objection against the
disclosure of the Blue Book was take~ on behalf of the State under
section 123, that if the Court was not satisfied with the affidavit
objecting to the disclosure of the document, the Court may inspect
the document. Ray, C.J. observed at two places while dealing with
B the objection against the diselosure of ti1e Blue Book under section
123 that "If the Court would yet like to satisfy itself, the Court may
see the document. This will be the inspection of the document by the
Court." and "If the Court in spite of the affidavit wishes to inspect
the document, the Court may do so." Mathew, J. also pointed out
that in Amarchand Butail v. Union of India & Others(1), this Court
c inspected the document in order to see whether it related to affairs
of State. There can therefore, be no doubt that even where a claim
for immunity against disclosure of a doculllent is made under section
123, the Court may in an appropriate case inspect the document in
order to satisfy itself whether its disclosure would, in the particular
case before it, be injurious to public interest and the claim for
D immunity must therefore be up-held. Of course this power of ins-
pection is a power to be sparingly exercised, only if the Court is in
doub.t, after considering the affidavit, if any, filed by the minister or
the secretary, the issues in the case and the relevance of the docu-
ment whose disclosure is sought. Since, in the present case, the
affidavit of T. N. Chaturvedy claiming immunity against disclosure
E was made at a late stage of the proceedings and the claim for
immunity was in respect of a new class of documents which has so
far not come up for judicial consideration and we were in doubt,
even after considering the affid1vit, whether the correspondence
whose disclosure was sought on behalf of the petitioners and S. N.
Kumar was of such a character that its disclosure would, on an
F overall view after weighing the two a'pects of public interest referred
to above, be injurious to public interest, we inspected the corres-
,.
pondence for ourselves for the purpose of deciding whether or not
it should be ordered to be disclosed. .'

Now as we have already pointed out above, it is for the court
G to decide the claim for immunity against disclosure made under
section 123 by weighing the competing aspects of public interest and
deciding which, in the particular case before the court, predominates.
The court is not bound by the affidavit made by the minister or the
secretary because the minister or the secretary would be concerned
H
(1) AIR 1964 SC 1658.
S.P. GUPTA v. UNION (Bhagwati, J.) 621

primarily and almost exclusively with the assertion of the public A
interest which would be injured by the disclosure of the document
and he would have very little concern, if at all, with the public
interest in fair administration of justice and in fact he would not
be in a position to appreciate and assess the relative importance of
the two competing public interest so as to be able to judge as to
which in the particular case before the Court should be allowed to B
prevent. What should be the relative weight to be attached to each
aspect of public interest is a question which the court would be best
qualified to decide and not the minister or the secretary. That is
why in Convey v. Rimmer (supra) Lord Reid, while rejecting the
notion that a minister's claim of immunity was conclusive, pointed
out at page 943 that the minister who withholds production of a c
document has no duty to consider the degree of public interest
involved in a particular case in frustrating the due administration of
justice, if not mattering to the minister at all whether the result of
withholding the document would merely be to deprive a litigant of
some evidence on a minor issue in a case of little importance or on
the other hand, to make it impossible to do justice in a case of the
D
greatest importance. The court would of course consider the affi-
davit made by the minister or the secretary and give it due weight
and importance, but ultimately it is the court which will have to
determine which aspect of public interest must prevail and whether
the claim for immunity against disclosure should be upheld or not.
This was most felicitously expressed by Lord Radcliffe in the
E
Scottish appeal of Glasgow Corporation v. Central Land Board
(supra) where the learned Law Lord said :

"The power reserved to the court is therefore a power
to order production even though the public interest is to
F
some extent affected prejudicially. This amounts to a
recognition that more than one aspect of the public interest
may have to be surveyed in reviewing the question whether
a document which would be available to a party in a civil
suit between private parties is _not to be available to the
party engaged in a suit with the Crown. The interests of G
government, for which the Minister should speak with full
authority, do not exhaust the public interest. Another
aspect of that interest is seen in the need that impartial jus-
tice should be done in the courts of law, not least between
citizen and Crown, and that a litigant who has a case to H
maintain should not be deprived of the means of its proper
presentation by anythin~ less th!l,n a wei$hty public reason.
622 SUPREME COURT REPORTS [1982] 2 S.C.R.

A It does not seem to me unreasonable to expect that the
court would be better qualified than minister to measure the
'l
importance of such principles in application to the parti ·
cular case that is before it.

"Mathew, J. also observed to the same effect in his concurring
B opinion in Raj Naraian's case (supra):

"The claim of the executive to exclude evidence is
more likely to operate to subserve a partial interest, viewed
""...
I

exclusively from a narrow depa1tmental angle. It is
impossible for it to see or give equal weight to another
c matter, namely, that justice should be done and seen to be
done. When there are more aspects of public interest to
be considered, the court will, with reference to the pending
litigation, be in a better position to decide where the
weight of public interest predominates."

D
..
The court will therefore have to put in the scales against the injury
to public interest which may be caused by the disclosure of the
document, the likely injury to the cause of injustice by non-dis-
closure and both will have to be assessed and weighed and it will
have to be determined on which side the balance tilts.

E Now obviously the weight of the Jike!y injury to the cause of
justice will vary according to the nature of the proceeding in which
the disclosure is sought, the relevance of the document and )he
degree of likelyhood that the document will be of importance in the
litigation. The particular nature of the proceeding and the impor-
'
F tance of the document in the determination of the issues arising in
it are vital considerations to be taken into account in determining
what are the relevant aspects of public interest which are to be
weighed and what is the outcome cf that weighing process. Perhaps
the most striking example of the way in which the nature of the
case will bear upon the judicial process of weighing aspects of
G public interest is afforded by the well recognised rule that where a
document is necessary to support the defence of an accused person
whose liberty is at stake in a criminal trial, it must be disclosed
whatever be the nature of the document, because, as observed by
Lord Simon of Glaisdale in D. V. National Society for the Preven-
H tion of Cruelty to Children (1977) 2 Weekly Law Reports 207, "the
public interest that no innocent man should be convicted of crime
is so powerful that it outweighs the genc;:r11l .Public interest" which
..
S,P, GUPTA v. UNION (Bhagwatl, J.) 623
might be injured by the disclosure of the document. Lord Keith A
also emphasized the necessity of taking the particular nature of the
proceeding into account in the balancing process, when he said in
Glasgow Co-poration v. Central L'lnd Board (supra) that "every-
thing must depend on the particular circumstances of the case. It is
impossible to lay down broad and general rules." So also a Sankey
v. Whit/am (supra) the High Court of Australia pointed out that the B
character of the proceeding in which the claim for immunity against
disclosure is raised and the importance of the document in the
determination of the issues arising in the proceeding are of extreme
relevance in deciding which way the balance of public interest lies
There, the question was whether in a proceeding alleging offences
against Mr. Whitlam, a former Prime Minister and others, certain c
papers and documents which were relevant to the issues arising in
... the proceeding were entitled to public interest immunity so as to be
protected against disclosure. The High Court of Australia nega·
tived the claim for immunity and in the course of his judgment,

•
Stephen, J. laid the greatest stress on the character of the proceeding
and pointed out its triple significance in the determination of the D
claim:

"First, it makes it very likely that, for the prosecution
to be successful, its evidence must include documents of a
class hitherto regarded as undoubtedly the subject of Crown E
privilege. But then to accord privilege to such documents
as a matter of course is to come close to conferring
immunity from conviction upon those who may occupy or
may have occupied high offices of State if proceeded
against in relation to their conduct in those offices. Those
in whom resides the power ultimately to decide whether or F
not to claim privilege wHI in fact be exercising a far
more potent power : by a decision to claim privilege
dismissal of the charge will be well-nigh ensured.
Secondly, and assuming for the moment that there
should prove to be any substance in the present charges,
their character must raise doubts about the reasons G
customarily given as justifying a claim to Crown pl'ivilege

....
,-
for classes of documents, being the reasons in fact relied
upon in this case. Those reasons, the need to safeguard
the proper functioning of the executive arm of government
H
and of the public service, seem curiously inappropriate
624 [i982] 2s.c.R..

.,
SUPREME CoURT ilEPORTs

A when to uphold the claim is to prevent successful prose-
cution of the charges : inappropriate because what is
charged is itself the grosaly improper functioning of that
very arm of government and of the public service which '1
assists it. Thirdly, the high offices which were occupied
by those charged and the nature of the conspiracies sought
B to be attributed to them in those offices must make it a
matter of more than usual public interest that in the dis-

'
position of the charges the course of justice be in no way
unnecessarily impeded. For such charges to have re-
mained pending and unresolved for as Jong as they have
is bad enough; if they are now to be met with a claim to
·C Crown privilege, invoked for the protection of the proper
functioning of the executive government, some high degree
of public interest for non-disclosure should be shown before
the privilege should be accorded."

D The nature of the proceeding in which the claim for immunity arose
was regarded as an important factor influencing the decision of the
court in rejecting the claim and ordering production of the docu-
ments. It would thus seem clear that in the weighing process which
the court has to perform in order to decide which of the two aspects
of public interest should be given predominance, the character of
E the proceeding, the issues arising in it and the likely effect of the
documents on the determination of the issues must form vital con-
siderations, for they would affect the relative weight to be given to
each of the respective aspects of public interest when placed in the
scales.

F Bearing these observations in mind, we must now proceed to
examine the claim for immunity against disclosure in respect of the
correspondence between the Law Minister, the Chief Justice of Delhi
High Court and the Chief Justice of India in regard to non-appoint-
ment of S. N. Kumar. It was a class immunity which was claimed
G in respect of this correspondence and the protected class was said
to consist of correspondence between the Law Minister or other high
level functionary of the Central Government, the Chief Justice of
the High Court, the Chief Minister or the Law ,Minister of the State
Government and the Chief Justice of India in regard to appointment
H or non-appointment of a High Court Judge or a Supreme Court
Judge or transfer of a High Court Judge and the notings made by
these constitutional functionaries in that behalf. The argument was
s.P. GtlPrA v. UNION (Bhagvati, i.) 625
that the documents belonging to this class are immune from dis- A
closure, irrespective of their contents, because it is in national interest
and also necessary for maintaining the dignity of the judiciary and
preserving the confidence of the people in the integrity of the judicial
process that documents belonging to this class should be withheld
from disclosure. Now there are a few prefatory remarks we would
like to make before embarking upon an examination of this argu- B
ment. In the first place, it is necessary to bear in mind that the
burden of establishing a claim for class immunity is very heavy on
the person making the claim. Lord Reid pointed out in Reg. v. Lewes
Justices, Ex parte Home Secretray (supra) that the speeches in
Convey v. Rimmer (supra) made it clear that there is a heavy burden
of proof on any authority which makes a claim for class immunity. c
The claim for class immunity is an extraordinary claim because it is
, based not upon the contents of the document in question but upon
its membership of a class whatever be its contents and therefore the
court should be very slow in upholding such a broad claim which is
contradictory, if not destructive, of the concept of open government.
Secondly, it is true, as pointed out earlier, that classes of documents D
to which the immunity may be accorded are not closed and in the
life of a fast cha ngi ng society rapidly growing and developing under
the impact of vast scientific and technological advances new class or
classes of documents may come into existence to which the immunity
may have to be granted in public interest, but that should only be
as a highly exceptional measure. It is only under the severest com- E
pulsion of the requirement of public interest that the court may
extend the immunity to any other class or classes of documents and
in the context of our commitment to an open government with the
concommitent right of the citizen to know what is happening in
the government, the court should be reluctant to expand the classes
of documents to which immunity may be granted. The court must F
on the contrary move in the direction of attenuating the protected
class or classes of documents, because by and large secrecy is the
badge of an authoritarian government. We may point out once
again though it be at the cost of repetition, that even in regard to
documents belonging to the class which has been judicially recog-
nised as entitled to immunity, the law must now be taken to be well-
G
settled that the immunity is not absolute. The public interest in
non-disclosure of a document belonging to this class may in an
appropriate case yield to the public interest that in the administra-
tion of justice, the court should have the fullest possible access to H
every relevant document and in that event, the document would be
liable to be disclosed even though it belongs to the protected class.
626 SUPREME COURT REPORts i19 82) 2 s.c.1l
A The executive cannot by merely invoking the scriptural formula of
class immunity defeat the cause of justice by withholding a docu-
ment which is essential to do justice bet ween the parties, for other-
wise the doctrine of class immunity would become a frightful weapon
in the hands of the executive for burying its mistakes, covering up
its inefficiencies and sometimes even hiding its corruption. Every
B claim for immunity in respect of a document, whatever be the
ground on which the immunity is claimed and whatever be the
nature of the document, must stand scrutiny of the court with refer-
ence to one and only one test, namely, what does public interest
require-disclosure or non·disclosure. The doctrine of class immu-
nity is therefore no longer impregnable; it does not any more deny
·c judicial scrutiny; it is no more a mantra to which the court pays
obeisance. Whenever class immunity is claimed in respect of a
document, the court has to weigh in the scales the one aspect of
public interest which requires that the document should not be dis-
closed against the other that the court in performing its functions
should not be denied access to relevant document and decide which
D way the balance lies. And this exercise has to be performed in the
context of the democratic ideal of an open government.

If we approach the problem before us in the light of these ·(
observations, it will be clear that the class of documents consisting
of the correspondence exchanged between the Law Minister or other
E
high level functionary of the Central Government, the Chief Justice
of the High Court, the State Government and the Chief Justice.of
India in regard to appointment or non-appointment of a High Court
Judge or Supreme Court Judge or the transfer of a High Court
Judge and the notes made by these constitutional functionaries in
F that behalf cannot be regarded as a protected class entitled to immu- '
nity against disclosure. It is undoubtedly true that appointment or
non-appointment of a High Court Judge or a Supreme Court Judge
and transfer of a High Court Judge are extremely important matters
affecting the quality and efficiency of the judicial institution and it is
therefore absolutely essential that the various constitutional func-
G tionaries concerned with these matters should be able to freely and
frankly express their views in regard to these matters. But we do
not think that the candour and frankness of these constitutional
functionaries in expressing their views would be affected if they felt
that the correspondence exchanged between them would be liable
H to be disclosed in a subsequent judicial proceeding. The constitu-
tional functionaries concerned in this exercise are holders of high
constitutional offices such as the Chief Justice of a High Court and
s.P. GUPTA v. UNION (Bhagwati. i.) 621
the Chief Justice of India and it would not be fair to them to say A
that they are made of such weak stuff that they would hesitate to
express their views with complete candour and frankness if they
apprehend subsequent disclosure. We have no doubt that high level
constitutional functionaries like the Chief Justice of a High Court
and the Chief Justice of India would not be deterred from perform-
ing their constitutional duty of expressing their views boldly and B
fearlessly even if they were told that the correspondence containing
their views might subsequently be disclosed. If, to quote the words
of Lord Pearce in Convey v. Rimmer {supra) "there are countless
teachers at schools and universities, countless employers of labour,
who write candid reports, unworried by the outside chance of dis-
closure," there is no reason to suspect that high level constitutional c
functionaries like the Chief Justice of a High Court and the Chief
Justice of India would flinch and falter in expressing their frank
and sincere views when performing their constitutional duty. We
have alredy dealt with the argument based on the need for candour
and frankness and we must reject it in its application to the case of
holders of high constitutional offices like the Chief Justice of a High
D
Court and the Chief Justice of India. Be it noted-and of this we
have no doubt-that our Chief Justices and Judges are made of
sterner stuff; they have inherited a long and ancient tradition of
independence and impartiality; they are by training and experience
as also by their oath of office dedicated to the cause of justice
E
administered without fear or favour, affection or ill-will and in fact
there is no power on earth which can deflect them from the path of
rectitude. They are, to quote the words from the famous verse
from Manasollasa <::~~1!1' fcr<:rf;;rn: I and f~TllT ~lf'ff'Gr<'f: and we
find it difficult to believe that they would not act as Judges but as
weak kneed and effete individuals afraid to express their views Jest F
they might come to be known to others and provoke criticism.
The Chief Justice of a High Court and the Chief Justice of India
would undoubtedly expect confidentiality while expressing their
views but that is no ground for upholding a claim for class immu-
nity in respect of the correspondence exchanged between them and
the Central Government or the State Government. Confidentiality G
is not a bead of privilege and the need for confidentiality of high
level communications without more cannot sustain a claim for
immunity against disclosure. Vide : Science Research Council v.
Nasse(1) and particularly the observations of Lord Scarman at page
697 and 698. Even if a document be confidential, it must be pro- H
(I) [1979] 3 AH England Reports 673.
surllEME cduilr REPORTS [1982] 2 s.c.ft.

.A duced, notwithstanding its confidentiality, if it is necessary for fairly
disposing of the case, unless it can be shown that its disclosure
would otherwise be injurious to public interest.
Now we fail to see how in cases of this kind where non-
appointment of an additional Judge for a further term or transfer of
a High Court Judge is challenged, the disclosure of the correspon-
B dence exchanged between the Law Minister, the Chief Justice of the
High Court, the State Government and the Chief Justice of India
and the relevant notings made by them, could at all said to be
injurious to public interest. We have already pointed out above
that so far as non-appointment of an additional Judge for a further
term is concerned, the only two grounds on which the decision not
c to appoint can be assailed are : firstly, that there was no full and
effective consultation by the Central Government with the Chief
Justice of the High Court, the State Government and the Chief
Justice of India before reaching the decision and secondly, that the
decision is mala fide or based on irrelevant considerations. Now
obviously these twc grounds cannot be made good by a petitioner
D
unless the correspondence between the Law Minister, the Chief
Justice of the High Court, the State Government and the Chief
Justice of India and the relevant notings made by them are dis·
closed, for they alone would furnish the relevant evidence showing
whether these two grounds are satisfied or not. These documents
would show or atleast shed light on the question whether there was
E
full and effective consultation between the Central Government on
the one .hand and the Chief Justice of the High Court, the State
Government and the Chief Justice of India on the other, because,
as already, pointed out by us, such consul cation would ordinarily
be in writing-as . it ought to be-and they would also, in cases
where such consultation has taken place, indicate the reasons which
F
have weighed with the Central Government in reaching its decision.
Apart from these documents, there would be no other documentary
evidence available to the petitioner to establish that there was no
full and effective consultation or that the decision of the Central
Government was based on irrelevant considerations and if an affi-
davit is made by an appropriate authority of the Cel'ltral Govern-
G
ment or by the Chief Justice of the High Court or by the
Chief Justice of India stating that every releva11t aspect of the
question was .discussed and there was full and effective con-
sultation, it would be well-nigh impossible for the petitioner to
H successfully challenge the decision of the Central Government. It
is only through these documents that the petitioner can, if at all,
hope to show that there was no full and effective consultation by the
s.1'. G\JPTA v. UNION (Bhagwati, J.) 629
Central Government with the Chief Justice of the High Court, the A
State Government and the Chief Justice of India or that the decision
of the Central Government was mala fide or based on irrelevant
grounds and therefore, to accord immunity against disclosure to
these documents would be tantamount to summarily throwing out
the challenge against the discontinuance of the additional Judge.
It would have the effect of placing the Unioo of India, whose deci- B
sion is challenged, in an unassailable-almost invincible-position
"t· where it can, by claiming class immunity in respect of these docu-
ments, ensure the rejection of the writ petition. The harm that
would be caused to the public interest in justice by the non-disclo-
sure of these documents would in the circumstances far outweigh
the injury which may possibly be caused by their disclosure, because c
the non-disclosure would almost inevitably result in the dismissal of
the writ petition and consequent denial of justice even though the
claim of the petitioner may be true and just. Moreover, it may
be noted that the discontinuance of an additional Judge by the
Central Government is a serious matter and if such discontinuance
is mala fide or bassed on irrelevant grounds, it would tend to affect D
the independence of the judiciary and it is therefore necessary in
order to maintain public confidence in the independent functioning
of the judiciary that the people should know whether the constitu-
tional requirements were complied with before the decision was
taken not to continue the additional Judge and whether any oblique
motivations or irrelevant considerations influenced the Central
E·
Government in reaching that decision. The charge against the
Central Government in the first group of present writ petitions was
that there was no full and effective consultation with the Chief
Justice of India before the decision was reached by the Central
Government in regard to S. N. Kumar and in any event, the decision
of the Central Government was actuated by oblique or improper F
motives. This was a serious charge against the Central Government
and there can be no doubt that it would be very much in public
interest that the necessary documents throwing light on the truth or
otherwise of this charge should be disclosed, so that the full facts
may be known to the public and the doubts raised and entertained
about the influence of extraneous factors in the case of S. N. Kumar
G
should be resolved and removed. It is significant to note that had
there not been disclosure of these documents, a certain doubt or

- misgiving would have continued to prevail in the public mind that
the decision to discontinue S. N. Kumar as an additional Judge was
taken by the Central Government without full and effective consul-
H
630 SUPREME COlJRt Ril!>OR.tS (19S2) 2 s.c.R..

A tation of the Chief Justice of India and that this decision was moti-
vated by oblique or irrelevant considerations. But, as we shall
presently point out these documents when disclosed helped to clear
this doubt an :I remove this misgiving by explaining to the people
what were the true facts behind the decision to discontinue S. N.
Kumar as an additional Judge. Furthermore, it may be noted that
B when the charge against the Central Government is that it bas dis-
continued S. N. Kumar as an additional Judge for oblique or im-
proper reasons and thereby sought to interfere with the independence f
of the judiciary, it would be singularly inappropriate to exclude
these documents which constitute the only evidence, if at all, for
establishing this charge, by saying that the disclosure of these docu-
c ments would impair the efficient functioning of the judicial institu-
tion. The interest of the wider community in getting to the bottom
of this charge is so great that it cannot be allowed to be impeded
by a mere rule of evidence. Nor can the decision to admit or
exclude be safely left to the Central Government which is itself
charged with wrongful or improper conduct.
D
These self-same reasons must apply equally in negativing the
claim for immunity in respect of the correspondence between the
Law Minister and the Chief Justice of India and the relevant notings
made by them in regard to the transfer of a High Court Judge
including the Chief Justice of a High Court. These documents are
E
extremely material for deciding whether there was full and effective
consultation with the Chief Justice of India before effe~ting the
transfer and the transfer was made in public interest, both of which
are, according to the view taken by us, justiciable issues and the
non-disclosure of these documents would seriously handicap the
F petitioner in showing that there was no full and effective consultation
with the Chid Justice of India or that the transfer was by way of
punishment and not in public interest. It would become almost
impossible for the petitioner, without the aid of these documents,
to establish his case, even if it be true. Moreover, the transfer
of a High Court Judge or Chief Justice of a High Court is a very
G serious matter and if made arbitrarily or capriciously or by way of
punishment or without public interest motivation, it would erode
the independence of the judiciary which is a basic feature of the
Constitution and therefore when such a charge is made, it is in public
interest that it should be fully investigated and all relevant docu-
H ments should be produced before the Court so that the full facts
may come before the people, who in a democracy are the ultimate
arbiters. It would be plainly contrary to public interest to allow the
S.P. GUPTA v. UNION (Bhagwati, J.) 631

inquiry into such a charge to be baulked or frustrated by a claim A
-'+ · for immunity in respect of documents essential to the Inquiry. It
is also important to note th at when the transfer of a High Court
Judge or Chief Justice of a High Court is challenged, the burden of
showing that there was full and effective consultation with the Chief
Justice of India and the transfer was effected in public interest is on
the Union of India and it cannot withhold the relevant documents B
~ in its possession on a plea of immunity and expect to discharge this
burden by a mere statement in an affidavit. Besides, if the reason
.. • for excluding these documents is to safeguard the proper functioning
~ of the higher organs of the State including the judiciary, then that
reason is wholly inappropriate where what is charged is the grossly
improper functioning of those very organs. It is therefore obvious c
that, in a proceeding where the transfer of a High Court Judge or
Chief Justice of a High Court is challenged, no immunity can be
claimed in respect of the correspondence exchanged between the Law
Mini8ter and the Chief Justice of India and the notings made by
them, since, on the balance, the non-disclosure of these documents
'7 would cause greater injury to public interest than what may· be
D
caused by their disclosure.

But, quite apart from these considerations, we do not under-
stand how the disclosure of the correspondence exchanged between
the Law Minister, the Chief Justice Of the High Court, the State
E
Government and the Chief Justice of India and the relevant notes
made by them in regard to non-appointment of an additional Judge
for a further term or transfer of a High Court Judge can be detri-
mental to public interest. It was argued by the learned Solicitor
General on behalf of the Union of India that if the Chief Justice of
the High Court and the Chief Justice of India differ in their views
in regard to the suitability of an additional Judge for further F
appointment, the disclosure 0f their views would cause considerable
embarrassment because the rival views might be publicly debated
and there might be ca.)tious and un-informed criticism which might
have the effect of undermining the prestige and dignity of one or the
other Chi.,f Justice and shaking the confidence of the people in the
administration of justice. If the difference in the views expressed
G
by the Chief Justice of the High Court and the Chief Justice of India
becomes publicly known, contended the learned Solicitor General
it might create a difficult situation for the Chief Justice of the High
Court vis-a vis the Chief Justice of India and if despite the adverse
H
opinion of the Chief Justice of the High Court, the additional Judge
632 SUPREME COURT REPORTS (1982) 2 S.C.R.

A is continued for a further term, and the additional Judge knows that
he has been so continued over-ruling the view of the Chief Justice
of the High Court, it might lead to a certain amount of friction
which would be detrimental to the proper functioning of the High
Court. So also if an additional Judge is continued for a further
term accepting the view expressed by the Chief Justice of the High
8 Court and rejecting the opinion of the Chief Justice of India, it
would again create a piquant situation because it would affect the ~
image of the Chief Justice of India in the public eyes. Moreover,
a feeling might be created in the mind of the public that a person
who was regarded as unsuitable for judicial app,Jintment by one or
the other of the two Chief Justices, has been appointed as a Judge and
c the litigants would be likely to have reservations about him and the
confidence of the people in th~ administration of justice would be
affected. The learned Solicitor General contended that for these
reasons it would be injurious to public interest to disclose the
correspondence exchanged between the Law Minister, the Chief
Justice of the High Court and the Chief Justice of India.
D
We have given our most anxious thought to this argument
urged by the learned Solicitor Genera I, but we do not think we can
accept it. We do not see any reason why, if the correspondence bet-
ween the Law Minister, the Chief Justice of the High Court and the
E Chief Justice of India and the relevant notes -made by them, in
regard to discontinuance of an additional Judge are relevant to the
issues arising in a judicial proceeding, they should not be disclosed.
There might be diffe,rence of views between the Chief Justice of the
High Court and the Chief Justice of India but so long as the views
are held bona fide by the two Chief Justices, we do not see why
F they should he worried about the disclosure of their views ? Why
should they feel embarrassed by public discussion or debate of the
views expressed by them when they have acted bona fide with
the greatest care and circumspection and after mature deliberation.
Do Judges sitting on a Division Bench not differ from each other in
G assessment. of evidence and reach directly contrary conclusions on
questions of fact ? Do they not express their judicial opinions
boldly and fearlessly leaving it to the jurists to decide which of the
two differring opinions is correct? If two Judges do not feel any
embarrassment in coming to different findings of fact which may be
contrary to each other, why should two Chief Justices feel embarrass-
ed if the opinions given by them in regard to the suitability of an
H additional Judge for further appointment differ and such differing
S.P. GUPTA v. UNION (Bhagwati, J.) 633

opmtons are made kn 0 wn to the public. Not only tolerance but
A
acceptance of bona fide difference of opinion is a part of judicial
discipline and we find it difficult to believe that the disclosure of
their differing opinions might create a strain in the relationship
between the Chief Justice of the High Court and the Chief Justice
of India. We have no doubt that the Chief Justice of the High
Court would come to his own independent opinion on the material
B
before him and he would not surrender his judgment to the Chief Jug.
tice of India, merely because the Chief Justice of India happens to be
head of the judiciary having a large voice in the appointment of
Judges on the Supreme Court Bench. Equally we are confident
that merely because the Chief Justice of the High Court has come
to a different opinion and is not prepared to change that opinion c
despite the persuation of the Chief Justice of India, no offence
would be taken by the Chief Justice of India and he would not
harbour any feeling of resentment against the Chief Justice of the
High Court. Both the Chief Justices have trained judicial minds
and both of them would have the humility to recognise that they
can be mistaken in their opinions. We do not therefore see any
D
real possibility of estrangement or even embarrassment for the twci
Chief Justices, if their differing views in regard to the suitability of
an additional Judge for further appoinment are disclosed. We also
find it difficult to agree that if the differing views of the two Chief
Justices become known to the outside world, the public discussion
and debate that might ensue might have the effect of lowering the
E
dignity and prestige of one or the other of the two Chief Justices.
When the differing Yiews of the two Chief Justices are made public
as a result of disclosure, there would certainly be public discussion
and debate in regard to those views with some criticizing one view
and some criticizing the other, but that cannot be helped in a demo-
F
cracy where the right of free speech and expression is a guaranteed
right and if the views have been expressed by the two Chief Justices
with proper care and deliberation and a. full sense of responsibility
in discharge of a constitutional duty, there is no reason why the two
Chief Justices should worry about public criticism. We fail to see
how such public criticism could have the effect of undermining the G
prestige and dignity of one or the other Chief Justice. So long as
the two Chief Justices have acted honestly and bona fide wi1h full
consciousness of the heavy responsibility that rests upon them in
.matters of this kind, we do not think that any amount of public
criticism can affect their prestige and dignity. But if either of the H
two Chief Justices has acted carelessly or improperly or irresponsibly
634 SUPREME COURT REPORTS [ 1982} 2 S.C.R.

A or out of oblique motive, his view would certainly be subjected to
• .+I
public criticism and censure and that might show him in poor light
and bring him down in the esteem of the people, but that will be
the price which he will have to pay for his remissness in discharge
of constitutional duty. No Chief Justice or Judge should be allowed
to hide his improper and irresponsible action under the cloak of
B secrecy. If any Chief Justice or Judge has behaved improperly or
irresponsibly or in a manner not befitting the high office he holds,
there is no reason why his action should not be exposed to public
gaze. We believe in an open government and openness in govern-
ment does not mean openness merely in the functioning of the execu-
tive arm of the State. The same openness must characterise the
c functioning of the judicial apparatus including judicial appointments
and transfers. Today the process of judicial appointments and
transfers is shrouded in mystery. The public does not know how
Judges are selected and appointed or transferred and whether any
and if so what, principles and norms govern this process. The
exercise of the power of appointment and transfer remains a sacred
D ritual whose mystery is confined only to a handful of high priests,
namely, the Chief Justice of the High Court, the Chief Minister of
the State, the Law Minister of the Central Government and the
Chief Justice of India in case of appointment or non· appointment -(
of a High Court Judge and the Law Minister of the Central Govern-
ment and the Chief Justice of India in case of appointment of a
E
Supreme Court Judge or transfer of a High Court Judge. The
mystique of this process is kept secret and confidential between just
a few individuals, not more than two or four as the case may be,
and the possibility cannot therefore be ruled out that howsoever
highly placed may be these individuals, the process may on occasions
F result is making of wrong appointments and transfers and may also
at times, though fortunately very rare, lend itself to nepotism,
political as well as personal and even trade· off. We do not see any
reason why this process of appointment and transfer of Judges
should be regarded as so sacrosanct that no one should be able to
pry into it and it should be protected against disclosure at all
events and in all circumstanees. Where it becomes relevant in a
-
G
judicial proceeding, why should the Court and the opposite party
and through them, the people not know what are the reasons for
which a particular appointment is made or a particular additional
Jud.!!e is discontinued or a particular transfer is effected. We fail
H to s~e what harm can be caused by the disclosure of true facts when
they become relevant in a judicial proceeding. In fact, the possi-
S.P. GUPTA v. UNION (Bhagwati, J.) 635

bility of subsequent disclosure would act as an effective check A
·-.. against carelessness, impetuosity, arbitrariness or mala fides on the
part of the Central Government, the Chief Justice of the High
Court and the Chief Justice of India and ens•ue bona fide and
correct approach, objective and dispassionate ·consideration, mature
thought and deliberation and proper application of mind on their
part in discharging their constitutional duty in regard to appoint-
B
ments and transfers of Judges. It is true that if the views expressed
by the Chief Justice of the High Court and the Chief Justice of
India in regard the suitability of an additional Judge for further
appointment become known to the public, they might reflect adver-
sely on the competence, character or integrity of the additional
Judge but the additional Judge cannot legitimately complain about
c
it, because it would be at his instance that the disclosure would be
ordered and the views of the two Chief Justices made public. If the
additional Judge is appointed for a further term either accepting the
opinion expressed by the Chief Justice of the. High Court in prefer-
ence to that of the Chie.f Justice of India or vice versa, the question D
of disclosure of differing opinions of the two Chief Justices would
not arise, because no one would know that the two Chief Justices
were not agreed on continuing the additional Judge for a further
term, and therefore, ordinarily, there would be no challenge
to the appointment of the additional Judge. It is only if the
additional Judge is not continued for a further term that he E
or some one on his behalf may challenge the decision of
the Central Government not to continue him and in that event,
if he asks for disclosure of the relevant correspondence embody-
. ing the views of the two Chief Justices, and if such disclosure is
ordered, he has cnly himself to thank for it and in any event, in
such a case, there would be no harm done to public i aterest if the F
views expressed by the two Chief justices become known to the
public.

-,. We are therefore of the view that, in the two groups of writ
petitions which are before us, the injury which would be caused to
the public interest in administration of justice by non-disclosure of G
the correspondence between the Law Minister, the Chief Justice of
Delhi and the Chief Justice of India and the relevant notings made
by them in regard to non-appointment of S. N. Kumar and the
correspondence between the Law Minister and the Government of
India and the relevant notings made by them in regard to transfer H
of the Chief Justice of Patna, far outweighs the injury which may,
if at all, be caused to the public jqt<;r~st 1?¥ ~heir disclosure anc\
636 SUPREME COURT REPORTS (1982) 2 s.c.R.

A hence these documents were liable to be disclosed in response to
the demand of the learned counsel appearing on behalf of the
petitioners and S. N. Kumar. These were the reasons for which we
directed by our order dated 16th October, 81 that these documents
be disclosed to the petitioners and S. N. Kumar.

B Pacts of S.N. Kumar's Case: Whetherfull & effective consultation.

That takes us to the next question as to whether there was full
and effective consultation between the President which means the
Central Government on the one hand and the Chief Justice of India
on the other. Article 217 provides that every Judge of the High
Court shall be appointed by fre President after consultation with the
c Chief Justice of India, the Governor of the State and the Chief
Ju~tice of the High Court. We have already rejected the contention
urged on behalf of the respondents that the requirement of consulta-
tion is necessary only where a person is being appointed a Judge of
the High Court and not where a decision is taken not to appoint
him. We have, of course, made it clear that where the name 0f a
D person is proposed for appointment as a Judge of the High Court for
the first time, he, having no right to be considered for such a
appointment, is not entitled to insist that the proposal for his
appointment, whether initiated by the Chief Justice of the High Court
or the State Government or the Chief Justice of India, should be
subj(cted to the process of consultation set out in Article 217 and
E
his name can be dropped without any such consultation. But, as
pointed O'Jt by us in an earlier portion of the judgment, the position
is different in case of an additional Judge, for though an additional
Judge has no right, on the expiration of his term, to be appointed
an additional Judge for a further term or to be appointed a perma-
F nent Judge, has still a right to be considered f"r such appointment
and the Central Government has to decide whether or not to
appoint him after consultation with the three constitutional function-
aries mentioned in Article 217. Here, in the present case, Shri S.N.
Kumar was an additional Judge whose term expired on 6th June,
1981 and he was entitled to be considered for appointment as an
G additionnl Judge for a further term and the Central Government
certainly could, after considering his name, decide in the bona fide
exercise of its power, not to appoin him, but that could be done only
after consultation with the three constitutional functionaries specified
in Article 217 which included the Chief Justice of India. It therefore
II becomes necessary to consider whether the Central Government
arrived at its decision not to appoint Shri S.N. Kumar as an addi-
S.P. GUPTA v. UNION (Bhagwati, J.) 637

tkmal Judge for a further term after consultation with the Chief A
Justice of India. We have already discussed the true nature and
scope of consultation required under Article 217 and pointed out
that the consultation contemplated by that Article is full and effective
consultation where the relevant facts bearing upon appointment or
non-appointment are brought to the notice of the Central Govern-
ment and the three constitutional functionaries required to be B
consulted and the opinion of each of the three constitutional func-
tionaries is taken on identical material and then a decision is reached
• by the Central Government whether or not to appaint the person
concerned as a Judge, whether additional or permanent. Now
Article 217 does not require that any particular procedure should be
followed for full and effective consultation nor does it insist that the c
rf:!evant facts on which the final decision of the Central Govern-
ment is based shauld be conveyed to the other three constitutional
functionaries in any particular manner or by the Central Government
itself. What is necessary to ensure full and effective consultation
within the meaning of Article 217 is that the Central Government as
well as each of the three consititutional functionaries required
D
to be consulted "must have for its consideration full and identical
facts which can at once constitute both the source and foundation
of the final decision" and it is immaterial as to how such "full and
identical facts" are conveyed by one authority to the other. It is
sufficient compliance with the constitutional requirement of Article E
217 if the self-same facts on which the final decision is taken by the
Central Government are placed before each of the three consitu-
tional functionaries required to be consulted and their opinion is
taken on the basis of such facts whatever be the manner in which
those facts are brought to their notice. Let us examine whether in
the present case this constitutional requirement was satisfied before F
the decision was taken by the Central Government not to appoint
S.N. Kumar as an additional Judge for a further term or to para-
phrase it in the context of the controversy raised on behalf of the
petitioners, whether the full and identical facts on which the decision
was taken by the Central Government were placed before the Chief
fostice of India. G
The unfortunate drama leading to the non-appointment of SN.
Kumar as an additional Judge for a further term begins with the
ktter dated I 9th February, 1981 addressed by the Chief Justice of
Delhi to the Law Minister. This letter was written by the Chief H
Justice of Delhi to the Law Minister, becaU§e the term for which
638 SUPRllMB COURT REPORTS [ 1982] 2 S.C.R.

S.N. Kumar was originally appointed as an additional Judge was
due to expire on 6th March, 1n1. The Chief Justice of Delhi
pointed out in this letter that the arrears pending in the Delhi
High Court undoubtedly justified the appointment of additional
Judges but he was not in a position to recommend the "extension
for iustice Kumar'' for an additional term for three reasons, namely,
B (I) There were serious complaints against S.N. Kumar both oral and
in writing. These complaints had been received hy him direct as
well as through the Law Minister. He had examined these com-
plaints and found that some of the complaints were not without
basis; (2) S.N. Kumar had not been very helpful in disposing of
cases; and (3) some responsible members of the Bar and some of the
c colleagues of the Chief Justice whom he did not think it proper to
name had also expressed doubts about S.N. Kumar's integrity. The
Chief Justice frankly stated that he had no investigating ageney to
conclusively find out whether the complaints against S.N. Kumar
were genuine or not, but added that "all the same the complaints
have been persistent." He pointed out that in the circumstances it
was his painful duty not to recommend an extension for S.N. Kumar
but added that the Law Minister might examine the matter at his
end and take such steps as he thought proper. Now a suggestion was
made by Mr. R.K. Garg, learned advocate appearing on behalf of
S.N. Kumar that this letter was addressed by the Chief Justice of
E Delhi .to the Law Minister pursuant to a conspiracy between the two
to discontinue S.N. Kumar as an additional Judge. The suggestion
was that the Chief Justice of Delhi had played into the bands of the
Law Minister and written this letter recommending n0n-appoin1ment
of S.N. Kumar in order to oblige the Law Minister. We are afraid we
cannot term this suggestion as anything but unfounded. There is
F absolutely not a little of evidence in support of such a suggestion.
The charge of conspiracy is at all times a very serious charge and it
must not be lightly made more particularly when it is directed against
persons holding high offices and such persons are not impleaded as
respondents in the Writ Petition. Here it is difficult 1o see any justi-
fication at all for levelling a charge of conspiracy agaimt 1J·e Chief
G Justice of Delhi and the Law Minister. The Chief Justice of Delhi
was appointed acting Chief Justice on 27th June, 1980 and he was
confirmed as permanent Chief Justice with effect from 8th January,
1981 and therefore on the date of the letter, his position as Chief
Justice was not at all in jeopardy and be was not dependent on the
H Central Government or the Law Minister for his office. There were
also no disputes or differences between the Chief Justice of Delhi
and S.N. l(umar prior to the <Jat(j) pf the letter and no suggestion
s.i>. otJ:i>TA v. UNION (Bhagwati, J.) 639

has been made on behalf of S.N. Kumar that the Chief Justice of A
Delhi had any animus or prejudice against him. Nothing had
transpired between the Chief Justice of Delhi and S.N. Kumar which
might have induced the Chief Justice of Delhi to make a false
all.egation or imputation against him. Nor was any reason suggested
as to why the Law Minister should have gone out of his way to see
that S.N. Kumar was not continued as an additional Judge. It
B
would indeed be going too far to suggest without a shred of evidence
that the Chief Justice of Delhi was so deprived as to yield to the
pNssure of the Law Minister and make a deliberately false impu-
tation of lack of integrity against his colleague merely in order to
oblige the Law Minister. It is impossible to conceive of any earthly
reason why the Chief Justice of Delhi should have gone to the length
c
of condemning his colleague unless he had received complaints
against him and he bona fide believed that some of these complaints
were not without basis. The letter dated 19th February, 1981 in
fact, contains inherent evidence to show that the Chief Justice of
Delhi was acting bona fide in addressing that letter to the Law D
Minister. He· pointed out in the letter that he had received com-
plaints against S.N. Kumar both oral and in writing and on examin-
ing these complaints he had found that some of them were not
without basis but he frankly stated that he had no investigative
machinery at his disposal and it was therefore not possible for him
to l'ind conclusively whether these complaints were genuine or not. E
This was a correct and proper approach to be adopted by a careful
and responsible Chief Justice who had beard complaints against his
coli:eague some of which appeared to him not without basis but in
respect of which be was not in a position to state definitely whether
they were true or not. Since some of the complaints appeared to
him not without basis and responsible members of the Bar and F
some of his colleagues bad also complained to him against S.N.
Kumar, he naturally thought that it would not be right for him to
recommend continuance of S.N. Kumar as an additional Judge.
'f·
- But, at the same time, he made it clear that the Law Minister might
examine the matter at his end and take such action as he thought fit.
It is impossible to conclude from this Jetter that the Chief Justice of G
Delhi acted improperly or irresponsibly in not recommending the
continuance of S.N. Kumar as an additional Judge. If what was
stated by the Chief Justice of Delhi in this letter were true-and for
the purpose of inquiry as to whether there was full and effective
consultation, we must accept the facts as given in the letter as true H
for we are not concerned to inquire whether the facts on which the
Chief Justice of Delhi based his opinion were true or not-the Chief
640 SUPREME COURT REPORtS [1982i 2s.c.R..

A Justice of Delhi could not be said to be unjustified in taking the
view that S.N.Kumar should not be recommended for continuance
as an additional Judge. While making his recommendation whether ·~·
S.N. Kumar should be continued as an additional Judge or not, the
Chief Justice of Delhi bad to consider the fitness and suitability of
S.N. Kumar at the time and if there were complaints against S.N.
B Kumar, some of which he did not find to be without basis and doubts
about the integrity of S.N. Kumar were expressed by responsible
members of the Bar and some of his own colleagues, the Chief Justice
of Delhi could not be said to have acted unreasonably in declining
to recommend S.N. Kumar for an extension. It ~ay be that on full
and detailed investigation through an independent and efficient
c investigative machinery , the complaints and doubts against S.N.
Kumar might have been found to be unjustified but such a course
would have been neither practicable nor desirable. In the first place,
as pointed by the Chief Justice of Delhi himself, he had
no investigative machinery at his disposal and if he wanted the com-
plaints and doubts against S.N. Kumar to be investigated, he would
D have had to ask the Central Government to carry out such investi-
gation through the Central Bureau of Investigation or the Intelligence
Bureau or some such investigating ageney and that would have been
clearly subversive of the independence of the judiciary. It would
have been most improper for the Chief Justice of Delhi to ask the
Central Government to investigate into complaints or doubts against
E a sitting Judge of his Court. This Court has in unhesitating terms
condemned the adoption of such a course by the High Court in
the case of subordinate judiciary and much more so would it be
reprehensible in the case ot sitting Judge of a High Court. More-
over, leaving the investigation of complaints and doubts against a
sitting Judge in the hands of an investigative agency under the
Control of a political Government would not be desirable because,
apart from exposing the sitting Judge to unhealthy political pressures,
it may not yield satisfactory result in all cases, because, such an
investigation would not have the benefit of the guidance of a mature
and experienced person like the Chief Justice who has lived a whole
G life time in the courts and who is closely and intimately connected
with lawyers and Judges in the Court over which he presides. It
would indeed be impossible for any one unfamiliar with the legal
profession and the functioning of the courts to judge the genuineness
or veracity of the sources from which information might be obtained
H in regard to a sitting Judge. It must, therefore, necessarily be left to
the Chief Justice of the High Court to give his opinion in regard to
S.P. GUPTA v, iJNioN (Ehugwati, J.) 64i
the suitability of an additional Judge for further appointment on the A
"-+ . basis of such information as he may gather by making his own
inquiries. The Chief Justice of the High Court would have sufficient
opportunities for judging the suitability of an additional Judge for
further appointment, because the additional Judge would be working
with him in the same court and he would be in close contact with
the members of the Bar and his own colleagues and if there is any· B
thing wrong with the functioning of the Court or the Judges, he
would be best in a position to know about it. If an additional
Judge does not enjoy good reputation for integrity, the Cb.ief Justice
of the High Court would ordinarily come to know about it. Of
course, the possibility cannot be ruled out that the information
received by the Chief Justice of the High Court may at times be c
motivated or prejudiced, because the additional Judge has offended
some member of the Bar or decided some case against a litigant.
These occupational hazards which beset the life of an additional
Judge--in fact, even of a permanent Judge whether in the High Court
or in the Supreme Court have unfortunately increased in recent
times, because there has been a steady erosion of values and not only 0
some interested politicians but also a few and fortunately their tribe
is still small-lawyers and members of the public are prone to make
wild and reckless allegations against Judges and impute motives for
the decisions given by them. It is not realised by many that very often
the judgments given by the High Courts and the Supreme Court are
value judgments, because there are conflicting ·values competing for
E
recognition by the Judge and the choice made by the Judge is largely
dictated by his social philosophy and it is not possible to emphati·
cally assert that a particular view taken by one Judge is wrong and
a different view taken by another Judge is right. The nature of the
judicial process being what it is, it is inevitable that the view taken by
F
a Judge, perfectly bonafide though it may be, may not accord with
the expectations of a section or group of persons believing in a
particular social or political philosophy, but that cannot be a ground
affording justification for making imputation against the Judge or
- -- accusing him of lack of bonafides or charging him with surrender or
subservence to the executive or to any other interest. Those who G
indulge in such personal attacks against Judges for the decisons given
by them do not realise what incalculable damage they are doing to
the judicial institution by destroying the confidence of the public in
the integrity and inviolability of administration of justice. Unfor-
tunately, it is the easiest thing to make false, reckless and irresponsi- H
ble allegations against Judges in regard to their honesty and integrity
642 SUPREME COURT REPORTS [1982] 2 s.c.il.

A and in recent times the tendencey has grown to make such allega-
tions against Judges because they have decided the case in a particular ·
......
manner either against a dissatisfied litigant or contrary to the view
held by a group or section of politicians or lawyers or members of
the public. The Judge against whom such allegations are made is
defenceless because, having regard to the peculiar nature of the
B office held by him, he cannot enter the arena of conflict and raise or
join a public controversy. This pernicious tendency of attributing
motives to Judges has to be curbed, if the judicial institution is to
survive as an effective instrument for maintenance of the rule of law
in the country and this can happen only if politicians, lawyers and
members of the public accept the judgments rendered by the Judges
c as bonafide expressions of their views and do not impute motives to
Judges for the judgments given by them, even though they be adverse
to the views held by them. But unfortunately, the situation
being what it is, we must emphasise with all the strength and earnest·
ness at our command that the Chief Justice of the High Court
should exercise the greatest care and circumspection in judging the
0 veracity of the information which he may receive from time to time
in regard to the conduct or behaviour or integrity of an additional
Judge of his Court. The Constitution has entrusted to him the task of
giving his opinion in regard to the suitability of an additional Judge
for further appointment and on the basis of the information received
by him or gathered as a result of inquiries made by him, he has to
E
decide wisely and with responsibility whether or not he should
recommend the appointment of an additional Judge for a further
term.

Now where the Chief Justice of the High Court is reasonably
F satisfied after the greatest care ond circumspection exercised by him •
as the holder of a high constitutional office to whom the Constitu-
tion has assigned an important function and in whom it has reposed
a sacred trust, that the additional Judge in regard to whose suita-
bility he has to give opinion, does not enjoy good reputation for
integrity, he obviously cannot recommend such additional Judge
G for further appointment. It is possible that the Chief Justice of the
High Court may go wrong in a given case and arrive at an errone·
ous opinion in regard to the suitability of an additional Judge for
appointment for a further term and that may result in injustice to
the additional Judge who may suffer by reason of such erroneous
H opinion but that cannot be helped because ultimately some consti-
tutional functionary has got to be entrusted with the task of assess-
S.1>. GUPTA v. UN10N (iJhagwati. J.) 643
ing the suitability of the person to be appointed an additional Judge A
or a permanent Judge and no better person can be found for this
purpose than the Chief Justice of the High Court. The Chief Justice
of the High Court may err in his assessment as anyone else may,
fallibility being the attribute of every human being. But that is a
risk which has necessarily to be taken and it cannot be avoided
howsoever perfect may be the mechanism which human ingenuity B
can evolve. It may happen that the Chief Justice of the High
Court, not being aware that the additional Judge whose term is
about to expire does not enjoy good reputation for integrity may
recommend his name for appointment for a further term though
he is clearly ur.su1table for such appointment and equally it may
happen that on the basis of the information available with him
which information may be incorrect, the Chief Justice of the High
Court may come to the opinion that the additional Judge whose
suitability he is called upon to consider does not possess good repu-
tation for integrity though in fact he is a person of sterling character
and possesses a high degree of honesty and integrity. These errors
are inevitable in every process of assessment and the Constitution has D
sought to minimise them by entrusting the task of assessment to a
high dignitary like the Chief Justice of the High Court who would
be expected to act with a high sense of responsibility and, who by
reason of training and experience, would be able to sift the grain
from the chaff and arrive at a correct opinion on the material
before him. E
We might also at,this stage refer to one contention seriously
pressed on behalf of the petitioners, namely, that what would be
material to consider for the ·purpose of assessing the suitability of
an a:dditional Judge for further appointment would be not whether
the additional Judge enjoys good reputation for honesty and
integrity but whether in fact he possesses honesty and integrity.
F
The argument of the petitioners was that if the additional
Judge has the hall-mark of honesty and integrity "he cannot be
removed or dropped because unconfirmed reports say that he is
Jacking in honesty and integrity", for otherwise "the reputation of
every Judge would be at the mercy of rumours, gossips and uncon·
G
firmed reports". We do not think this argument is well founded.
In the first place, it must be remembered that when the Chief Justice
of the High Court is called upon to give his opinion in regard to
the suitability of an additional Judge for further appointment, he is
not' required to adjudicate upon various matters bearing upon his H
suitability and to come to a definitive finding or conclusion in regard
to such matters: Where the complaint against an additional Judge
644 SUPREME COtJRt REPORi'S (t 982] 2s.c.it.

A is in regard to his integrity, the Chief Justice of the High Court is
not expected to hold a judicial or quasi judicial inquiry for the pur-
pose of adjudicating whether the. additional Judge is, in fact, lacking
in honesty and integrity. Such an inquiry against a Judge whether
additional or permanent would not be permissible except in a pro-
ceeding for bis removal What the Chief Justice of the High
B Court has to do is merely to assess the suitability of the additional
Judge for further appointment and where lack of integrity is alleged
against him, the assessment can only be on the basis of his reputa-
tion for integrity. The point we are making will become abundantly
clear if we take the case of a member of the Bar or the senior most
District Judge who is for the first time considered for appointment
c as an additional or permanent Judge. The integrity of the person
under consideration would undoubtedly be a relevant factor to be
taken into account, but in assessing such factor the Chief Justice of
the High Court would not be expected to hold a judicial or· quasi-
judicial inquiry for the purpose of determining whether the person
cocerned does. in fact, possess honesty and integ~ity or is lacking in
0 these qualities. The Chief Justice of the High Court would have to
proeeed on the basis of the reputation for honesty and integrity )...;
enjoyed by the person under consideration and if, on the basis of the
information gathered by him, the Chief Justice of the High Court
comes to the view that such person does not enjoy good reputatio11
for integrity, the Chief Justice of the High Court would be justified
E in not re~ommending such person for appointment. Where a ques-
tion of honesty and integrity of a Judge is concerned, it is almost
impossible to come to a conclusive determination whether he is
lacking in integrity or not, because experience shows that most. per-
sons are not willing to speak if they know that they may be quoted
and that in any event they are not prepared to testify in any judicial
F or quasi-judicial inquiry. It is therefore not enough in order to be
able to recommended a person for appointment as a Judge to say
that there is no proof of lack of integrity against him, because, if
such were the test to be applied, there would be grave danger of
persons lacking in integrity being appointed as Judges. The test
which must be applied for the purpose of assessing the suitability of
G a person for appintment as a Judge must be whether the Chief
Justice of the High Court or for the matter of that, any other cons-
titutional authority concerned in the appointment, is satisfied about
the integrity of the person under consideration. If the person under
consideration does not enjoy reputation for honesty and integrity, it
H would not be possible for the Chief Justice of the High Court to say
that he is satisfied about the integrity of such person and in such an
event, the Chief Justice of the High Court would be justified in not
s.I>. GUPtA v. UNION (Bhagwati, J.) 645

recommending such person for appointment; in fact, it would be A
his duty not to recommend such person. The publice injury which
may be caused by appointment of a Judge lacking in integrity would
be infinitely more than the public injury which may result from non-
appointment of a competent Judge possessing integrity. If therefore
the Chief Justice of Delhi found on inquiries made by him that some
of the complaints made against S.N. Kumar were not without basis 8
and doubts about the integrity or S.N. Kumar were expressed by res-
ponsible members of the Bar as also by some of his own colleagues,
the Chief Justice of Delhi COl!ld not be said to be unjustified in writ-
ing the letter dated 19th February 1981 declining to recommend S.N.
Kumar for appointment as an additional Judge for a further term.
We may once again repeat that this assessment of S.N. Kumar by c
the Chief Justice of Delhi may have been erroneous and, as we shall
point out a little later, the Chief Justice of India took the view that
it was erroneous, but on no account can lack of bona fides be attri-
buted to the Chief Justice of Delhi. On the bona fide view taken
by him, the Chief Justice of Delhi did what it was his plainest duty
in the circumstances to do.
D

There was also one other argument urged on behalf of the peti-
tioners which we might conveniently dispose of at this stage, since
it is an argument closely allied to the one which we have just dis-
cussed and rejected. The petitioners contended that fair play and
justice required that before an additional Judge is dropped on the
E
ground that he is lacking in integrity or that he does not enjoy
good reputation for integrity, he must have an opportunity of
showing cause against such a serious imputation made against his
honour and integrity. This contention is also in our opinion
without merit and the answer to it is provided by what we have F
already discussed above. What the Chief Justice of the High Court
is required to do is to give his opinion in regard to the suitability
of the additional Judge for further appointment and he has there-
fore to consider various matters relevant to the question of appoint-
- - ment and give his opinion to the President. He does not hold a
judicial or quasi judicial inquiry into the honour and integrity of G
the additional Judge nor does he arrive at any conclusive finding or
determination. He merely gives his personal opinion in regard to
the suitability of the additional Judge in discharge of the constitu-
tional duty laid upon him and there is therefore no question of any
opportunity being afforded to the additional Judge before the Chief H
Justice of the High Court arrives at his opinion. When the Chief
Justice of the High Court gives his opinion, it is a confidential com-
stJPkllMll COURT REPORTS [i 9811 2 s.c.tt

A munication which would not ordinarily be known to the public and
in the case of S.N. Kumar too, but for the disclosure of documents
vehemently pressed and passionately sought not only by the counsel
for the petitioners but also by the counsel for S.N. Kumar, the
world would never have known that the Chief Justice of Delhi has
given an adverse opinion against the continuance of S.N. Kumar
B on the ground that his integrity was doubtful. It is obvious that
in cases of this kind where the Chief Justice of the High Court
gives his personal opinion or assessment on consultation by the
President, there is neither adjudication nor condemnation and hence
there is no basis or justification for importing the requirement of
fair play or natural justice.
c
When a copy of this letter dated 19th February 1981 was
received by the Chief Justice ofJndia, he took the view that what was
stated in the letter was "too vague to accept that Shri Kumar Jacks
integrity" and he therefore stated in a note dated 3rd March, 1981
submitted by him to the Central Government that he "would like
D to look carefully into the charges against Shri S.N. Kumar" and '·>--"
recommended extension of the term of S.N. Kumar by six months.
The reason which prevailed with the Chief Justice of India in recom·
mending extension of the term of S.N. Kumar for six months was
two fold. In the first place, he felt that since he had recommended
eitension of the term of O.N. Vohra by six months and O.N. Vohra
E was senior to S.N. Kumar, the interests of propriety required that
the term of S.N. Kumar should also be extended by six month and
secondly, he desired to look carefully into the charges against
S.N. Kumar before deciding whether to recommend his further
appointment or not. Now having regard to the scope and· purpose
of Article 224 which we have discussed in some detail in an earlier
F portion of this judgment, it is clear that the Chief Justice of India
misconceived the true legal position when he recommended exten-
sion of S.N. Kumar for a period of six months in order to enable
him to look carefully into the charges against S.N. Kumar. We
have already pointed out that on a true interpretation of Article 224
G no short term appointment of an additional Judge can be made for
the purpose of enabling the constitutional authorities to examine and
decide whether the complaints or charges against the additional
Judge are justified or not, so that if the complaints or charges are
found to be not without basis, the constitntional authorities may
advise the Central Government not to appoint the additional Juclge
H
for-a further term. We have held that such short term appointment
S.P. GUPTA v. UNION (Blzagwati, J.) 647

being for a purpose other than that warranted by Article 224, A
"-+ . would be outside the scope and ambit of that Article. But even so
the Chief Justice of India recommended, though constitutionally it
was impermissible to do so, that the appointment of S.N. Kumar be
extended for a further term of six months in order that he should
ia the meantime be able to examine carefully the charges against
S.N. Kumar. The Law Minister thereupon submitted a note to the
B
Prime Minister on 3rd March, 1981 pointing out that the letter of
the Chief Justice of Delhi dated 19th February, 1981 made a serious
complaint against the integrity of S.N. Kumar but he did not pro-
porpose to go into the merits of the case at that stage since he was
suggesting a short extension of three months for S.N. Kumar. But
while so stating, he added that he strongly felt that in matters of this
c
nature, "the views of the Chief Justice" of the High Court" are
paramount as it is in his association that the Judge concerned dis~
charges his duties" yet "out of sheer reverence to the views
of the Chief Justice of India" he proposed that the term of
S.N. Kumar as additional Judge be extended for three months. Thus,
D
while the Chief Justice of India recommended extension of the
term of S. N. Kumar for six months, the Law Minister proposed
an extension for only three months, presumably because he took
the view that whatever inquiries are to be made in regard to the
complaints and doubts against S.N. Kumar should be carried out
as quickly as possible and the decision on such a sensitive issue as E
to whether an additional Judge should be continued or not should
not be unduly delayed. fhe result was that S.N. Kumar was
appointed as an additional Judge for a period of three months from
7th March, 1981.

The Law Mininster thereafter addressed a letter dated 19th F
March 1981 to the Chief Justice of Delhi drawing his attention to
observations made by the Chief Justice of India in regard to his
earlier letter dated 19th February, 1981 and requesting him that in
the light of those observations he should offer his "furlher com-
ments on the question of continuance or otherwise" of S.N. Kumar.
The Law Minister stated that since the term of S.N. Kumar as an G
additional Judge was expiring on 6th June, 1981, he would be grateful
if the Chief Justice of Delhi could send his comments so as to reach
him latest by 15th April, 1981. This communication addressed by
the Law Minister to the Chief Justice of Delhi shows clearly beyond·
any doubt that the Law Minister was not party to any conspiracy H
for discontinuing S.N. Kumar as an additional Judge Since the
Chief Justice of India had observed that the Jetter dated 19th Feb-
648 .SUl'RIJME COURT REl'ORTS [1982J 2 s.c.n.

A ruary 1981 addressed by the Chi1:f Justice of Delhi was too vague to
form the basis of an opinion that S.N. Kumar was lacking in
integrity, the Law Minister naturally asked the Chief Justice of
Delhi to offer his further comments in answer to this remark of the
Chief Justice of India. It appears that the Chief Justice India also
addressed a letter dated 14th March, 1981 to the Chief Justice of
B Delhi asking him, with reference to the observations made hy him in
his letter dated 19th February, 1981, to furnish "details and con-
crete facts in regard to the allegations against Justice Kumar." The
Chief Justice of Delhi thereupon met the Chief Justice of India and . '
had discussion with him on 26th March, 1981. There was consi-
derable controversy between the parties as to what were precisely
c the facts which were discussed between the Chi~f Justice of Delhi
and the Chief Justice of India at this meeting, but the subsequent
correspondence exchanged between the Law Minister, the Chief
Justice of Delhi and the Chief Justice of India throws considerable
light on this controversy and we must therefore proceed to examine
it. It appears that subsequent to this meeting held on 26th March,
D 1981, the Chief Justice of Delhi addressed a letter dated 28th March
-·
1981 to the Chief Justice of India recording that since receipt of the
letter of the Chief Justice;~of India dated 14th March, 1981, the
Chief Justice of Delhi had had an opportunity "to discuss this
delicate matter" with the Chief Justice of India and observing, to
quote the exact words used by Chief Justice of Delhi :
E

'·There were three points mentioned in my D.O.
No. 257-/HCJ/PPS, dated 19th February, 1981, addressed
to the Law Minister, a copy of which was forwarded to you.
l had also menioned in that letter that I have no investi-
F
gating agency to conclusively find out whether the com-
plaints are genuine or not. Understandably there will be
some who would support the allegations and there will be
some who would refute them. Therefore, it is natural
that there may be variance between the views that may be
G expres.>ed by different people. Indeed, my experience is
that people are hesitant in speaking out frankly.

With regard to the complaints about Justice Kumar's
integrity and general conduct, the matter has already been
H
discussed between us. About Justice Kumar not being
very helpful in disposing of <:ases, I enclose a statement of
S.P. GUPTA v. UNION (Bhagwati, J.) 649

disposal by Justice Kumar in 1980. Just by way of compa· A
rison I have also included the figur~s of disposal in the
same period of my other two colleagues whose cases for
re-appointment are under consideration.

The Chief Justice of Delhi also addressed a letter dated 28th March
1981 to the Law Minister pointing out that since receipt of the B
letter of the Chief Justice of India, he had had an opportunity "to
discuss the entire matter in detail with the Chief Justice of India"
and that after this discussion he had addressed a letter dated 28th
March, 1981 to the Chief Justice of India a copy of which was
being enclosed by him. The Chief Justice of Delhi then proceeded
to add in this letter addressed to the law Minister :
c
"Perhaps you will consider this to be sufficient "com-
ments" on my part as desired by you in your letter under
reply about the observations· of the Chief Jusice of India
which you have quoted in your letter."
D
Now it is clear from this letter addressed by the Chief Justice of
Delhi to the Law Minister that the Chief Justice of India asked the
Chief Justice of Delhi to furnish him "Details and concrete facts in
regard to the allegations against Justice Kumar" and in response to
this request, the Chief Justice of Delhi met the Chief Justice of India
on 26th March 1981 and discussed "the entire matter in detail with
E
the Chief Justice of India". Obviously all "the details and concrete
facts" in regard to the allegations against S.N. Kumar which were
required by the Chief Justice of India must have been discussed in
detail between the Chief Justice of Delhi and the Chief Justice
of India at t:.is meeting held on 26th March, 1981. There is no
F
reason to believe that any facts which were in the possession of the
Chief Justice of Delhi in regard to the complaints and doubts against
S.N. Kumar were not disclosed and discussed by him with the Chief
Justice of India. ·There is also inherent evidence in the letter dated
28th March, 1981 addressed by the Chief Justice of Delhi to the
Chief Justice of India that the entire matter relating to the integrity G
of S.N. Kumar was discussed between the Chief Justice of Delhi and
the Chief Justice of India. The Chief Justice of Delhi stated at the
commencement of this letter that he had had an opportunity to
discuss "this delicate matter" with the Chief Justice of India. The
reference to "this deli~ate matter" could not be to any matter other H
than that relating to the integrity of S.N. Kumar. Then the Chief
Justice of Delhi proceeded to state that there were three points
650 SUPREME COURT REPORTS [1982] 2 s.c.R.

A mentioned in bis letter dated 19th February, 1981 and obviously
there was no reason for him to refer to these three points in his
Jetter dated 28th March 1981 unless be had discussed these three
points with the Chief Justice of India. It was with reference to the
meeting which the Chief Justice of Delhi bad with the Chief. Justice
of India that the Chief Justice of Delhi adverted to the three points
B in bis letter to the Chief Justice of India. One of the three points was
that serious complaints against S.N. Kumar had been received by
him direct as well as through the Law Minister . and some of these
complaints were found to be not without basis and the second point
was that some responsible members of the Bar as also some of his
own colleagues had expressed doubts about the integrity of
c S.N. Kumar. These two points must have been discussed between
the Chief Justice of Delhi and the Chief Justice of India, for other-
wise there is no reason why the Chief Justice of India and the Chief
Justice of Delhi should have referred to them in his Jetter to the
Chief Justice of India and if these two points were discussed, it is
difficult to believe that the Chief Justice of Delhi should not have ·
D disclosed all the facts bearing upon these two points to the Chief .....
Justice of India. The Chief Justice of Delhi emphatically reiterated
in the last paragraph of his letter to the Chief Justice of India that
the niatter in regard to the complaints against the integrity of
S.N. Kumar had already been discussed between the.m. Now, as
E stated in the Jetter of the Chief Justice of Delhi dated 19th February,
1981, complaints against the integrity of S.N. Kumar were received
by the Chief Justice of Delhi direct as also through the Law Minis-
ter and doubts against the integrity ·of S.N. Kumar had been
expressed by responsible members of the Bar as also by some of the
Judges of Delhi High Court and therefore the inference is irresisti-
F ble that when the matter in regard to the complaints against the
integrity of S.N. Kumar was discussed, these facts must have been
disclosed by the Chief Justice of Delhi to the Chief Justice of India.
The Chief Justice of India had with him a copy of the letter dated
19th February, 1981 where reference was made to complaints against

G
S.N. Kumar, said to have been received by the Chief Justice of
Delhi and to doubts against the integrity of S.N. Kumar said to have
--
been expressed by responsible members of the Bar and some of his
own colleagues and it is impossible to believe that when the matter
relating to the integrity of S.N. Kumar was discussed, the Chief
Justice of India should not h·ave asked the Chief Justice of Delhi
H to apprise him as to what were ·the complaints received against
S.N. Kumar and who were the responsible members of the Bar and
S.P. GUPTA v. UNION (Bhagwati, J.) 651

Judges who had expressed doubts against the integrity of S.N. Kumar. A
If the Chief Justice of Del hi refused to disclose these facts to the
Chief Justice of India. we have no doubt that the Chief Justice of
India would have remonstrated with the Chief Justice of Delhi for such
refusal and expressed his displeasure about it to the Law Minister.
There is no doubt in our mind that the Chief Justice of Delhi must
have disclosed all the facts relating to the complaints and doubts B
expressed against the integrity of S.N. Kumar to the Chief Justice of
India but, as is evident from a subsequent letter dated 22nd May,
1981 addressed by the Chief Justice of India to the Law Minister,
the Chief Justice of India had already, prior to the date of the
meeting, made his own inquiries in the matter and as a result of
such inquiries he was not inclined to agree with the opinion given c
by the Chief Justice of Delhi and ·t is obvious therefore that he must
have told the Chief Justice of Delhi that in the course of the
inquiries made by him he had been told by persons that there was
nothing against integrity of S.N. Kumar and he was consequently·
unable to agree with the view expressed by the Chief Justice of
Delhi. The Chief Justice of Delhi apparently remained unconvinced D
and that is why he stated in his letter to the Chief Justice of India
that there was bound to be variance between the views expressed by
different persons in regard to the integrity of a Judge, since there
would be some who would support the allegations of lack of inte-
grity while there would be some others who would refute them.
This was a courteous and respectful way of expressing disagreement E
with the Chief Justice of India. But, at the same time. the Chief
Justice of Delhi politely, yet firmly, pointed out to the Chief Justice
of India, by way of answer to his view, that experience showed that
"persons are hesitant in speaking out frankly" when the question
relates to the integrity of a Judge, suggesting clearly that merely
because persons questioned by the Chief Justice of India in the F
course of the inquiries made by him did not choose to say anything
against the integrity of S. N. Kumar, it did not necessary follow that
the integrity of S.N. Kumar was above board. This letter addressed
by the Chief Justice of Delhi to the Chief Justice of India clearly
shows that there was full discussion between the Chief Justice of
Delhi and the Chief Justice of India in regard to complaints and
G
doubts against the mtegrity of S. N. Kumar but at the end of the
discussion the Chief Justice of Delhi stuck to his opinion and that
is why in the letter addressed by him to the Law Minister, he did
not go back upon his refusal to recommend S.N. Kumar for further
H
appointment and maintained his ori~inal recomm1mdation not to
652 SUPREME COURT REPORTS [l 982) 2 S.C.R

A
continue S.N. Kumar for a further term. The Chief Justice of Delhi ·v
expressed the hope that what he had stated in his letter to the Chief
Justice of India would be considered sufficie~t comments on his
part in regard to the observations of the Chief Justice of India
quoted in the letter of the Law Minister dated J9th March, 1981.
B The criticism of the Chief Justice of India voiced in that letter was
that what was stated by the Ceief Justice of Delhi in his Jetter dated
19th February, 1981 was vague and the Chief Justice of Delhi there-
fore pointed out to the Law Minister that he had discussed the
entire matter in detail with the Chief Justice of India and met his r
objection and hence there was no question of any vagueness and he
e therefore hoped that his reply would be sufficient answer to the
observations of the Chief Justice of India. The effect and substance
of what the Chief Justice of Delhi stated in his letter to the Law
Minister was that he had cleared the charge of vagu:·ness by dis-
cussing all the facts in regards to the allegations against S.N. Kumar
with the Chief Justice of India.
D ,·

This was followed by a letter dated 15th April, 1981 addressed
by the Law Minister to the Chief Justice of Delhi. We have already
pointed out that since what was stated in 1he letter of the Chief
Justice of Delhi dated 19th February 1981 was vague, the Law
Minister had, by his letter dated 19th March, 1981 requested the
E Chief Justic~ of Delhi to offer further comments in support of his
recommendation against the discontinuance of S.N. Kumar. The
only reply which the Law Minister got from the Chief Justice of
Delhi was that the Chief Justice of Delhi had met and discussed the
entire matter in detail with the Chief Justice of India and removed
the objection based on vagueness by giving him ''details and concrete
F
facts" in regard to the allegations against S.N. Kumar. But the Law
Minister was not informed as to what was discussed between the
Chief Justice of Delhi and the Chief Justice of India and what were
the "details and concrete facts" disclosed by him to the Chief Justice
of India. It was obvious from the reply given by the Chief Justice
G of Delhi that despite the discussion with the Chief Justice of India he
stuck to his original recommendation not to continue S.N. Kumar for
a further term and the Law Minister therefore naturally enquired
from him by his Jetter dated 15th April, 1981 as to what was the
material which provided the basis on which he concluded that
H S.N. Kumar's reputation for integrity was not above board and
recommended that he may not be continued. Ultimately, it was the
s.P. GUPTA v. UNION (Bhagwati, J.) 653

Law Minister who had to take a decision on behalf of the Govern- A
ment of India as to whether S.N. Kumar should be continued or not
and in order to be able to discharge this constitutional function
fairly and honestly, it was necessary for the Law Minister to know
what was the material on the basis of which the Chief Justice of
Delhi had reached the opinion that S.N. Kumar did not enjoy good
reputation for integrity and that he could not therefore be recom- B
mended for reappointment. The Law Minister obviously could not
accept the opinion of the Chief Justice of Delhi blindly and un-
questioningly because that would have amounted to abdication of his
constitutional obligation and he therefore asked the Chief Justice of
Delhi to furnish him the material on whieh the opinion of the Chief
Justice of Delhi was based. This letter addressed by the Law Minister c
to the Chief Justice of Delhi provides the clearest evidence that the
Law Minister was not a party to any conspiracy to throw out
S.N. Kumar as an additional Judge. The Law Minister if he was a
party to any such conspiracy, would not have required the Chief
Justice of Delhi to provide the material which formed the basis of
D
his opinion and instead, he would have accepted the opinion of the
Chief Justice of Delhi and after formally inviting the opinion of the
Chief Justice of India, decided to discontinue S.N. Kumar. But,
obviously, the Law Minister wanted to satisfy himself that there was
material on the basis of which it could be said that the integrity of
S.N. Kumar was doubtful, and that is why he did not regard it as
sufficient that the Chief Justice of Delhi had discussed the matter
E
---· with the Chief Justice of India but asked for the material which
formed the basis of the opinion of the Chief Justice of Delhi so that
the Central Government could come to its own decision whether or
not to continue S.N. Kumar as an additional Judge. This action on
the part of the Law Minister clearly establishes his bona fides F
in the matter of discontinuance of S.N. Kumar.

Now we come to a very important letter which formed the
subject matter of bitter controversy between the parties. This was a
letter dated 7th May, 1981 addressed by the Chief Justice of Delhi
to the Law Minister in response to the request contained in the G
letter of the Law Minister dated 15th April, 1981. The Chief Justice
of Delhi by his letter supplied to the Law Minister the material on
which his opinion against the continuance of S.N. Kumar was based.
This letter contained at the top the words "Secret (For personal
attention only)". It contained in the second paragraph a prefatory H
statement by way of preamble to !the facts set out in the subsequent
654 SUPREME COURT REPORT (1982] 2 s.c.R.

A paragraphs. This prefatory statement is extremely important and
it may be set out in extenso in the following words :

"Hon'ble the Chief Justice oflndia had made certain
observations with regard to my recommendation about
Mr. Justice S.N. Kumar and the same were communicated
B to me by you for my comments in your D.O. No. 50/2/81-
Jus., dated 19th March, 1981. The Chief Justice had also
written to me a letter dated 14th March, 1981 asking for
"details and concrete facts in regard to the allegations
against Justice Kumar". As I wrote to you in my D.0. No. r
293-HCJ/PPS, dated 28th March, i 981, I discussed the
c matter with Hon'ble the Chief Justice and as desired by him,
in reply to his Jetter, wrote my D.O. No. 292-HCJ/PPS
dated March 28, 1981, a copy of which was forwarded to
you. Accordingly, it is not only embarrassing but painful
for me to write this letter. As you, however, desire to
know what material provided the basis for me to conclude
D that Justice Kumar's integrity was not above board, I give
below some facts."
(Underlining is ours)

The Chief Justice of Delhi reiterated in this prefatory statement
that pursuant to the letter dated 14th March, 1981 addressed by the
E
Chief Justice of India asking for "details and concrete facts in regard . .,__
to the allegations against Justice Kumar". he had met the Chief
Justice of India and discussed the· matter with him and the letter
dated 28th March 1981 was written by him as desired by the Chief
Justice of India and Accordingly-for that reason-it was not only
F embarrassing but painful for him to write this letter, but since
the Law Minister desired to know what material provided the basis
for him to conclude that the integrity of S.N. Kumar was not above
board, he was proceeding to give some facts. It is clear from this
prefatory statement that it was as per the desire of the Chief Justice
ofindia that the letter dated 28th March, 1981 was addressed by
G Chief Justice of Delhi in the terms in which he did. There is an
under-current of suggestion here that the Chief Justice of India
did not approve of the idea of the Chief Justice of Delhi
setting out in a letter the facts discussed by him with the Chief
Justice of India and perhaps that is why the Chief Justice of Delhi
H stated that it was both embarrassing and painful for him to write
that letter setting out the facts on which his apinion was based.
The Chief Justice of Delhi then proceeded to state the facts on the
s.i>. GUPrA v. UNiON (1Jhagwat1, i.) 655

basis of which he had formed the view that S.N. Kumar did not A
enjoy good reputation for integrity. It is not necessary for us to
refer to these facts in any detail but suffice it to state that several
facts were set out by the Chief Justice of Delhi which made him
conclude "that the reputation for integrity of Justice Kuma7 was
not as should be for a Judge of the High Court." The Chief Justice
of Delhi pointed out that some time early in May, 1980 one of his
B
colleagues had told him that he had information to the effect that
"if a substantial amount was paid to Justice Kumar, suits brought
by a particular party against an Insurance Company would be
decided in favour of that party." The reference here was obviously
to suits Nos. 1408, 1409 and 1417 of 1979 which were filed by Jain
Sudh Vanaspati Limited and Jain Export Private Limited against
c
the New Indian Insurance Company Limited. The Chief Justice of
Delhi stated that even though original side of work was taken away
from S.N. Kumar and he was put on the appellate side in the second
half of the year, 1980, that is, after the summer vacation, S.N. Kumar
did not release these three suits as also some other suits which were
D
part-heard before him and continued to deal with them. In August,
1980, observed the Chief Justice of Delhi, the same colleague of
his who had talked to him earlier as also another colleague
mentioned to him that doubts were being expressed about the
integrity of S.N. Kumar vis-a-vis these three cases and some others
whereupon he "made discreet inquiries from some of the leading
E
counsel and they in strict confidence supported the allegations". The
Chief Justice of Delhi also found that besides the above mentioned
three cases there were a 'number of other cases which had been
retained by S.N. Kumar on his board despite his transfer to the
appellate side and in some of these cases "the parties involv~d were
rich and influential including some former Princes." The Chief F
Justice of Delhi was at that time acting Chief Justice and after his
appointment as permanent Chief Justice early in Junary, 1981, he
looked into this matter a little more closely and made further inqui-
ries and found that some of the lawyers were non-committal but there
were others who "asserted with some force that Justice Kumar's re-
putation was not above board." The Chief Justice of Delhi also talk- G
ed to some other colleagues besides the two who had spoken to him
and they also said that "unconfirmed reports have been circulating
in the Bar which were not very complimentary to Justice Kumar."
The Chief Justice of Delhi pointed out that th; se were the facts on
the basis of which he had come to the opinion that S .N. Kumar did H
not enjoy good reputation for integrity. Now it was sought to be

(
656 stli>REME toukt REPOilts i1982] 2 s.c.R..
A argued by learned counsel appearing on behalf of S.N. Kumar that
these facts were not true and the Chief Justice of Delhi was not
justified in reaching an adverse opinion against S.N. Kumar on the
basis of these facts. The learned counsel for S.N. Kumar submitted
that it was a well established practice of the Delhi High Court that a
part-heard matter always went with the Judge and was heard by him
B whether he was transferred from the original side to the appellate
side or vice-versa and S.N. Kumar did not therefore act improperly
in taking up part-heard matters even after he was transferred to the
appellate side and no inference of Jack of integrity could therefore
be drawn against him merely because he continued to take up the
part-heard matters. We are afraid this argument which seeks to assail T

c the crediblity of the opinion expressed by the Chief Justice of Delhi
cannot be entertained by us. It is not open to the Court to hold an
inquiry and determine for itself the correctness of the opinion of any
of the constitutional authorities required to be consulted by the
President. The opinion given by any such constitutional authority
may be mistaken or erroneous but the. corrective for such mistake or
D error is to be found in the constitutional provision itself and it
cannot be provided by judicial intervention. The Court cannot take
evidence for the purpose of determining whether the facts on which
the opinion of a constitutional authority required to be consulted
is based are true or not or whether the opinion expressed by such
constitutional authority is well-founded or not. That is a function
E entrusted by the Constitution to the President, that is, the Central
Government and it is for the Central Government to Judge whether
tbe opinion expressed by the constitutional authority such as the
Chief Justice of the High Court is well-founded or not and whether
it should be accepted or rejected. The court cannot be invited to go
i_nto the question whether the facts on which thhe opinion of the
F Chief Justice of Delhi was based were correct or not and whether
the opinion expressed by his was or was not justified. The effect of
going into this question would be to expose the opinions of the
Chief Justice of the High Court and the Chief Justice of India
to judicial scrutiny, inviting possible examination and cross-
..
~

G examination of these two high functionaries which would be
clearly disastrous to the institution of the judiciary. Moreover,
it is difficult to see how the correctness of the opinion of the Chief
Justice of Delhi and of the facts on which it was based could be
tested in his absence when he was not joined as a respondent in the
writ petition. But all the same we may point out that, even on the
H record as it stands, the statemeat of S.N. Kumar in his affidavit in
regard to the practice of the Delhi High Court, does not seem to
S.i>. dtJi>TA v. UNiON (Bhagwati, J.) 657
accord with what the Chief Justice of India, according to his Jetter A
dated 22nd May, 1981 appears to have learnt as a result of the
inquiry made by him, namely, that even after the allocation of a
Judge is charged from the original side to the appellate side and
vice-versa, he continues to take up part-heard cases provided that
a substantial amount of time has been already spent on them. It is
not every part-heard case which travels with the Judge from the B
original to the appellate side and vice-versa but only those part-
heard cases on which a substantial amount of time has alre.idy been
spent. It may be pointed out that there is nothing to show that the
part-heard suits which continued to remain with S.N. Kumar were
suits on which a considerable amouat of time had already been spent.
In fact, suits Nos. 1408, 1409 and 1417 of 1979 were not at all part- c
heard suits and much less could it be said that a considerable time
had already been spent by S.N. Kumar on them and yet, according to
the Chief Justice of Delhi, they continued to be dealt by S.N. Kumar.
But, as we observed a little while ago, this is not a matter which can
be investigated by the court and it must be left to the President, that
is the Central Government to decide what credibility or weight to
0
-+-
attach to the opinion of the Chief Justice of Delhi. The court is concer
ned merely to enquire whether there was, in fact, to the full and effec-
tive consultation with the Chief Justice of Delhi and the Chief Justice
of India and not whether the opinion given by the Chief Justice of
Delhi or the Chief Justice of India was correct or not. It is possible
that the opinion expressed by the Chief Justice of Delhi in the pre-
E
sent case was mistaken or erroneous, but that is not an issue which
can be examined by the court. The Chief Justice of Delhi bona fide
came to the view that S.N. Kumar did not enjoy good reputation
for integrity and he franly expressed this view to the Law Minister
as he was bound to do, but from this it does not necessarily follow
that S.N. Kumar was lacking in integrity. The possibility of a bona
F
fide error on the part of the Chief Justice of Delhi can never be
excluded.

There is also inherent evidence in the letter dated 7th May,
198 I, to show that the Chief Justice of Delhi acted bona fide in
giving his opinion to the Law Minister in regard to the integrity of
G
S.N. Kumar. The Law Minister had by his letter dated 15th April,
1981 requested the Chief Justice of Delhi to send his comments on
the complaint made by one Sabir Hussain, an advocate. The Chief
Justice of Delhi after examining the relevant files in regard to the H
complaint intimated to the Law Minister by his letter dated 7th

/
6s8 SUPREME colJR.t REPORTS i19s2j 2s.c.il.
A May, 1981 that the complaint related to a ·suit which was disposed
of by S.N. Kumar and it was therefore a matter which could be
Jmmented upon only judicially. The Chief Justice of Delhi adopted
a correct approach in regard to this complaint and did not betray
any undue enthusiasm to condemn S.N. Kumar If the Chief Justice
of Delhi were actuated by any mala fide against S.N. Kumar, he
B would have immediately seized upon this complaint and tried to
utilise it for the purpose of supporting his opinion against the
integrity of S.N. Kumar. We may point out that the Chief Justice T
of Delhi was perfectly right in not sitting in judgment over the
decision given by S.N. Kuml!.r in Sabir Hussains suit, for it is not
open to the Chief Justice of a High Court to examine the judgments
c given by an additional Judge and pass upon the quality of those
judgments for the purpose of deciding whether the additional Judge
should be reappointed or not. This exercise is not open to the Chief
Justice of the High Court or to the Chief Justice of India because the
additional Judge is not on probation and that is why we are cons-
trained to observe though the case of O.N. Vohra not being before
D us, it is not necessary for us to do so, that the Chief Justice of Delhi
was not justified in wading through the papers of Kissa Kursi Ka
Case for the purpose of deciding whether O.N. Vohra should be
reappointed as an additional Judge, If O.N. Vohra was in error in
not disposing of any application in the case or in making a wrong
order on such application, it was for this Court in appeal, in the
E exercise of its judicial power, to comment on the judicial perfor-
mance of O.N. Vohra and it was not for the Chief Justice of Delhi to
sit in judgment over it for the purpose of condemning O.N. Vohra.

· We may point out that the Chief Justice of Delhi also referred
in his letter dated 7th May, 1981 to the low disposals of S.N. Kumar
F as also to his unsatisfactory behaviour with the members of the Bar.
But these allegations need not detain us because the discontinuance
of S.N. Kumar as an additional Judge by the President was not based
on these allegations but it was founded only on the opinion expressed

G
by the Chief Justice of Delhi in regard to the integrity of
S.N. Kumar. --
Now we come to a most important part of the controvesy
between the parties. The letter dated 7th May, 1981 addrssed by the
Chief Justice of Delhi to the Law Minister carried at the top the
remark, "Secret (for personal attention only)." Now before this
H letter was sent by the Chief Justice of Delhi to the Law Minister, he
had informed the Law Minister to treat it as secret but at that time
the Law Minister did not try to probe into the implications cf this
S.P. GUPtA v. UNiON (Bhagwati, J.)

request. Later, however, when the Chier Justice of Delhi, with A
reference to the letter proposed to be written by him in regard to the
continuance of O.N. Vohra, requested that that letter also should be
kept secret for personal attention only, the Law Minister asked him
as to what exactly he meant by the remark "Secret (for personal atten-
tion only)" in the letter dated 7th May, 1981. The Chief Justice of
Delhi in reply intimated to the Law Minister that what he meant B
was that that Jetter should not be brought to the notiee of the Chief
Justice of India and for three very good reasons, namely :

I. For reasons stated in the opening portion of his letter
dated 7th May, 1981. c
"-· He felt highly embarrassed and perplexed after he
addressed the original Jetter dated 19.2.1981 about
Shri S.N. Kumar as the contents of that Jetter came
clearly to be known to Sbri S.N. Kumar and certain
-+
of his colleagues on the bench as a result of which it D
embarrassed him in discharge of his duties and func-
tions. He felt that the contents of his letter dated 7th
May, 1981 would also get into the hands of Shri S.N.
Kumar and certain of his other colleagues and be
would thereby be put to greater embarrassment which
might create probJ,ems for him in future in the dis- E
charge of his duties as Chief Justice.

3. He felt that the Chief Justice of India had already
started wrongfully denigrating him for his letter of
February '81 as some of his friends conveyed to him
the feelings of the CJI." F

The Chief Justice of Delhi also informed the Law Minister that "he
could not afford to spoil his ·relations with the Chief Justice of
India on one hand and on the other could not desist from expressing G
v.ithout fear or favour what he felt of certain matters" and if he
was "going to be suspect for discharging bis functions fairly and
conscientiously, then his functioning as the Chief Justice• would
never be smooth vis-a-vis Chief Justice of India." The Law
.Minister placed this conversation on record in a note made by him H
on 19th May, 1981 as also in a letter dated 29th May, 1981
addressed by him to the Chief Justice of Delhi. Pursuant to this

(
660 SUPREME COURT REPORtS [198212 s.c.il.
A request made by the Chief Justice of Delhi, the Law Minister did
not place the letter dated 7th May 1981 before the Chief Justice of
India.

Though the Chief Justice of India had stated in his note
B dated 3rd March 1981 that he would like to go carefully into the
charges against S.N. Kumar and he had a meeting with the Chief
Justice of Delhi on 26th March 1981 in that connection, he did not
write to the Law Minister until the 3rd week of May 1981 giving
his opinion in regard to the question whether S.N. Kumar should be
continued or not. Meanwhile, the time fixed by this Court for the
c Union of India to decide whether S.N. Kumar should be reappointed
for a further term as an additional Judge or should be appointed as
a permanent Judge or otherwise, was expiring on 27th May 1981
and the Law Minister was therefore constrained to address a letter
dated 21st May 1981 reminding the Chief Justice of India that he
had stated in his note dated 3rd March 1981 thathe desired to look
D carefully into the charges against SN. Kumar and requesting him
that if be had made any inquiries, the Law Minister "would be
grateful to have the details" and also pressiv : n::'"l to give his
"urgent advice in regarc to the continuance or otherwise" of the
term of S.N. Kumar. It appears that this letter W" · received by
the Chief Justice of India when he was camping at Sb.. , during the
E summer vacation and on receipt of this letter, the Chief Justice of
India addressed a communication dated 22nd May 1981 to
the Law Minister stating that he had made the most care·
ful and extensive inquiries in regard to the allegations against the
integrity of S.N. Kumar as also his rate of disposals and he was
satisfied that there was no substance in any of these allegations.
F
The Chief Justice of India pointed out that it was a common practice
in the Delhi High Court that even after the allocation of a Judge was
changed from the original side to the appellate side 1nd vice-versa,
he continued to take up the part .. heard cases on which sufficient
amount of time had already been spent and S.N. Kumar therefore
did nothing out of the way or unusual in taking up part-beard cases
G
after the allocation of his work was changed. The Chief Justice of
India observed that, on inquiries made by him, he disagreed with the
view taken by the Chief Justice of Delhi that S.N. Kumar was either
slow in his disposals or his integrity was doubtful and stated that
H it was not. possible for him to agree that the term of S.N. Kumar
should not be extended for the reasons mentioned by the Chief
Justice of Delhi. Not one member of the Bar or Bench, said the
s.1>. GUPTA v. UNION (/Jhagwati. J.) 661
Chief Justice of India, doubted the integrity of S.N. Kumar and on A
the contrary, in some of them stated that he was a man of unques-
tioned integrity. It seems that some Intelligence Bureau report
regarding S.N. Kumar was also sent by the Law Minister to the Chief
Justice of India for his opinion along with his letter dated 22nd
May, 1981, but the Chief Justice of India could not give his opinion
with reference to the report since he bad no time to examine it and B
he therefore stated that he would give his opinion after his return
to New Delhi on 26th May 1981 and in the circumstances he recom-
mended extension of the term of S.N. Kumar for another short term
of three months. But, since one short term extension had already
been granted, the Law Minister presumably thought that it would
not be right to go on giving short term extensions but that a deci- c
sion should now be taken whether S.N. Kumar should be continued
or not and he therefore proceeded to make his recommendation
ignoring the Intelligence Bureau Report agaiqst S.N. Kumar, the
rate of his disposals and even his alleged behaviour in court and
confining himself only to the question of his reputation for integrity.
The Law Minister put up a note before the Prime Minister on 27th
D
May 1981 summarising the effect of the correspondence which had
taken place between him. The Chief Justice of Delhi and the Chief
Justice of India and pointing out that notwithstanding his specific
/
\.- request as to details of the inquiries made by him, the Chief Justice
of India had not furnished the same to him and on the contrary the
letter dat ;d 22nd May 1981 addressed by the Chief Justice of India
E
revealed "that he became a victim of his own charge of vagueness
made by him against the Chief Justice of Delhi." The Law Minister
stated in the note that he presumed that when the Chief Justice of
Delhi and the Chief Justice of India met, "the former must have
informed the latter about the details that he had mentioned
F
...... in his Jetter dated 7th May 1981" and this inference
was obvious from the letters addressed by the Chief Justice of Delhi
to the Law Minister and the Chief Justice of India. The Law
r 'r Minister observed that even according to the Chief Justice of India,
-· the prevailing practice in the Delhi High Court was that not every
part-heard case but only those part-hea1 d cases on which substaitial G
amount of time had already been spent would go with the Judge
when there was change of allocating of work but the Chief Justice
of India had "surprisingly left the matter there" without probing
further "as to whether the part-heard matters which Justice Kumar
chose to handle as single Judge notwithstanding his having been H
allocated to the Division Bench were such on which substantial
SUPREME coli.llt REf>oilts [1982] 2 s.c.R..
A amount of time had already been spent by him." It was pointed out
by the Law Minister in his note that it was not merely a case of
drawing inference against the integrity of S. N. Kumar from his
taking up part-heard cases after being transferred to th<: appellate
side but the details given by the Chief Justice of Delhi in his letter
dated 7th May 1981 went further and in contrast, the letter of the
B Chief Justice of India dated 22nd May 1981 was not only lacking
in details but was too vague. The Law Minister after making this
analysis concluded that in the matter of assessment of integrity he y
preferred to accept the opinion of the Chief Justice of Delhi since
"it is in his association that the Judge concerned discharges his
duties and he has a better occasion and opportunity to watch his
c work and conduct" and on this view he recommended that S.N.
Kumar may not be continued any further as an additi0nal Judge.
The result was that S.N. Kumar was not continued as an additional
Judge on the expiration of his term on 6th June, 1981.

Now the ~rgument urged on behalf of the petitioners and
D S.N. Kumar was that the facts set out in the letter of the Chief Justice
of Delhi dated 7th may, 1981 on which the decision of the Central
Government not to continue S.N. Kumar as an additional Judge
was based, were not disclosed to the Chief Justice of India and he had
therefore no opportunity to consider those facts and give his opinion
upon them and hence there was no full and effective consultation
E between the Central Government and the Chief Justice of India and
the decision of the Central Government not to continue S.N. Kumar
as an additional Judge was vitiated by reason of non-compliance r'
with the requirement of consultation laid down in Article 217. This
argument was pressed with great vehemence by the learned
counsel appearing on behalf of the S.N. Kumar and he injected
considerable amount of passion in it, but we do not think it can be
sustained. It is undoubtedly true that it was constitutionally impos-
sible to the Central Government to arrive at the decision not to
continue S.N. Kumar as an additional Judge "ithout consultation
with the Chief Justice of Delhi and the Chief Justice of India as
mandatorily required by Article 217, but as pointed out by us in an
G
earlier portion of the judgment, it is was not necessary that the full
and identical facts which at once constituted "both the source and
foundation of the final decision" of the Central Government should
be placed before the Chief Justice of Delhi and the Chief Justice of
India by the Central Government itself or that they should be
H
brought to the notice of the Chief Justice of Delhi and the Chief
Justice of India in any particular order or by following
S.P. GUPTA v. UNION (Bhagwati, J.) 663
any particular procedure. What was necessary to constitute full and A
effective consultation within the meaning of Article 217 was that the
Chief Justice of Delhi and the Chief Justice of India should have for
their consideration "full and identical facts" which ultimately
formed the basis of the decision of the Central Government. Now
there can be no doubt that the decision of the Central Government
not to appoint S.N. Kumar for a futurther term was based on the B
'( facts provided by the Chief Justice of Delhi in his letter dated 7th
May, 1981 and if these facts were not placed before the Chief Justice
of India before he gave his opinion in regard to the continuance of
S.N. Kumar in his letter dated 22nd may, 1981, the decision of the
Central Government would be clearly vitiated for want of full and
effective consultation with the Chief Justice of India. It therefore c
becomes material to enquire whether the facts set out in
the letter of the Chief Justice of Delhi dated 7th May, 1981
were placed before the Chief Justice of India before he gave his
opinion in the letter dated 22nd May, 1981. We have already
/- __. discussed this question at some length while dealing with the
meeting held by the Chief Justice of Delhi with the Chief Justice of D
India on 26th March, 1981, and the letters dated 28th March, 1981
addressed by the Chief lustice of Delhi to the Law Minister and the
Chief Justice of India subsequent to that meeting. We have pointed
out various circumstances which establish beyond any doubt that all
the facts relating to the complaints and doubts expressed against the
integrity of S.N. Kumar which were in the possession of the Chief
E
Justice of Delhi must have been disclosed by him to the Chief Justice
of India at the meeting held on 26th March, 1981. We need not
repeat what we have already discussed in great detail but we may
add that, judging as practical men conversant with the ordinary
course of human affairs, we do not see any reason why the Chief
F
Justice of Delhi should not have disclosed these facts to the Chief
Justice of India, particularly when the Chief Justice of India had
r > asked him to furnish "details and concrete facts in regard to the
... allegations against Justice Kumar". But, the question may then be
asked as to why, if the Chief Justice of Delhi had disclosed all
the facts set out in the letter dated 7th May, 1981, to tt'e Chief G
Justice of India at the meeting held on 26th March 1981, the Chief
Justice of Delhi should have requested the Law Minister not to
bring the letter dated 7th May 1981 to the attention of the Chief
Justice of India. The Law Minister was also intrigued by this
request and he therefore asked the Chief Justice of Delhi as to why H
he did not want the letter dated 7th May 1981 to be placed before
664 SUPREME COURT REPORTS (1982] 2 s.c.R.

A the Chief Justice of India and the Chief Justice of Delhi gave three
reasons which we have reproduced verbatim a little earlier. The first
reason given by the Chief Justice of Delhi is extremely significant
because it shows clearly and indisputably that the facts set out in
the letter dated 7th May 1981 were discussed by the Chief Justice
of Delhi with the Chief Justice of India at the meeting held on 26th
B March 1981. The Chief Justice of Delhi pointed out tbat he did not
want the letter dated 7th May 1981 to be brought to the attention "f
of the Chief Justice of India because, as observed by him in the
opening portion of the letter, he Ji.ad difcussed the "details and
concrete facts in regard to the alle11ations against Justice Kumar"
with the Chief Justice of India but the letter dated 28th March 1981
c was written by him in the terms in which it was couched as per the
desire of the Chief Justice of India and therefore it was embarrass-
ing and painful for him to write the letter dated 7th May 1981. This .
reason given by the Chief Justice of Delhi carries a veiled
suggestion though not expressly articulated but implicit in what he
has stated, that the Chief Justice of India did not want him to place
D
on record the "details and concrete facts in regard to the allegations"
against S.N. Kumar and that is why he wrote the letter dated 28th
March, 1981 in the terms he did according to the desire of the Chief
Justice of India. This ·was perhaps the reason why the Chief Justice
of Delhi found it embarrassing as well as painful to write the letter
the dated 7th May 1981 setting out the "details and concrete facts in
E
regard to the allegations" against S.N. Kumar, such a course being
presumably contrary to the suggestion of the Chief Justice oflndia.
We have, of course, no definite material before us on the ba>is of
which we can conclude that the Chief Justice of India must have
a· ked the Chief Justice of Delhi not to place the detailed facts
F relating to the complaints and doubts against S.N. Kumar in writ-
ing, but it does appear that some discussion must have taken place
between the Chief Justice of Delhi and the Chief Justice of India as a
result of which the Chief Justice of Delhi bona fide carried a feeling

G
of Delhi were to put the detailed facts in regard to the allegations
against S.N. Kumar on record, contrary to the view held by the
-
that the Chief Justice of India might feel offended if the Chief Justice

Chief Justice of India. That is why the Chief Justice of Delhi was
anxious that his letter dated 7th May 1981 should not be brought to
the attention of the Chief Justice of India. It was not because the
Chief Justice of Delhi did not want the facts set out in the letter
H dated 7th May, 1981 to be disclosed to the Chief Justice of India
that he requested the Law Minister not to place that letter
S.P. GUPTA v. UNION (Bhagvati, J.) 665

before the Chief Justie of India, but because in view of the impression
A
given or perhaps a suggestion made at the meeting by the Chief
Justice of India, he apprehended that if he placed those facts on
record contrary to the wish of the Chief Justice of India, the Chief
Justice of India might feel offended and his relations with the Chief
Justice of India might be spoilt. The second reason given by the B
Chief Justice of Delhi was that he had found that the contents of
his previous letter dated 19th February 1981 had come to be known
to S.N. Kumar and some of his colleagues on the Bench and he
therefore felt that if the letter dated 7th May 1981 was not kept by
the Law Minister with himself along, but was sent by him to the
Chief Justice of India, leakage might occur in the process and the c
contents of that letter also might get known to S.N. Kumar and
others, causing him further embarrassment. The Chief Justice of
Delhi might have been right or might have been wrong in
entertaining the apprehension that if his letter dated 7th May t98 l
was sent to the Chief Justice of India, its contents might in the
process leak out and S.N. Kumar and others might come to know D
about them, but there is no reason to doubt that he bona fide felt
this apprehension and that weighed with him by asking the Law
Minister not to bring his letter dated 7th May 1981 to the attention of
the Chief Justice of India particularly since he had already dis-
cusssed the "details and concrete facts" set out in that letter with
the Chief Justice of India. The third reason given by the Chief
E
Justice of Delhi was that the Chief Justice of India had already
started wrongfully denigrating him for his letter dated 19th February,
1981 as intimated to him by his friends and that if the Chief Justice
of India came to know that he had placed the detailed facts in
regard to the allegations against S. N. Kumar on record contrary to F
his wish, the Chief Justice of India might feel offended and in that
event his functioning as Chief Justice of Delhi would become difficult
vis-a-vis the Chief Justice of India. This feeling voiced by the Chief

- Justice of Delhi might or might not be justified and the information
received by him from his friends in regard to the feelings of the Chief
Justice of India might or might not be correct, but we have no reason G
to hold that the Chief Justice of Delhi acted otherwise than bona
fide in carrying this feeling. It may be that the Chief Justice of Delhi
was wrong in entertaining this feeling, but his bona fide and veracity
cannot be doubted for a moment. Moreover, that is not a matter
which falls within the scope of our inquiry. What we have to deter-
H
mine is only a very limited issue, namely, whether the facts set out in
the letter dated 7th May, 1981 were disclosed by the Chief Justice of
666 SUPREME COURT REPORTS (1982] 2 s.C.k

Delhi to the Chief Justice of India and so far as that is concerned
there is no doubt in our minds that these facts were discussed by the
Chief Justice of Delhi with the Chief Justice of India at the meeting
held on 26th March 1981 and no contrary inference can be drawn
merely because, for the three reasons given by him, the Chief Justice
B of Delhi asked the Law Minister not to bring his letter dated 7th
May 1981 to the attention of the Chief Justice of India.

There is, in fact, another piece of evidence which clearly
establishes that the detailed facts in regard to the allegations
against S.N. Kumar were discussed between the Chief Justice
c of Delhi and the Chief Justice of India. The petitioners
and S.N. Kumar of course did not dispute that the meeting
of 26th March 1981 did take place between the Chief Justice of
Delhi and the Chief Justice of India but their contention was that
the only circumstance pointed out by the Chief Justice of Delhi to
the Chief Justice of India for drawing an adverse inference against
D the integrity of S.N. Kumar was that he had taken up part-heard
cases of the original side even after he was transferred to the
appellate side and no other facts in regard to the integrity of
S.N. Kumar were discussed by the Chief Justice of Delhi with the
Chief Justice of India. This contention of the petitioners and
S.N. Kumar is wholly without force and it stands completely answer-
E ed by what we have already discussed in the preceding paragraphs
of this judgment. But, additionally, we may point out that this
contention is also belied by the counter-affidavit ·dated 7th July 198 l
filed by S.N. Kumar himself. If the only complaint in regard to
integrity of S.N. Kumar mentioned by the Chief Justice of Delhi to·
the Chief Justice of India related to the taking up of part-heard
F cases by S.N. Kumar after transfer to the appellate side and that was
a fortiorari the only matter mentioned by the Chief Justice of India
to S.N. Kumar when he called S.N. Kumar for discussion after his
meeting with the Chief Justice of Delhi, it is difficult to understand

G
how S.N. Kumar happened to refer to Suits Nos. 1408, 1409 and
1417 of 1979 in his counter-affidavit filed before the disclosure of the
-
letter dated 7th May, 1981. These three suits were not part-hP.ard
suits becaus~ the summonses for judgment in these three suits had
been disposed of by S.N. Kumar on 7th March 1980 by granting
unconditional leave to defend and yet they were specifically referred
to by S.N. Kumar in his counter-affidavit and explanation was sought
H to be given in regard to them. These three suits were "particularly
S.P. GUPTA v. UNION (Bhagwati, J.) 667

mentioned in the letter dated 7th May, 1981 and according to that A
letter, it was in relation to these suits th;it allegation of lack of
integrity was made against S.N. Kumar. Now if the complaint against
the integrity of S.N. Kumar in relation to these three suits was not
mentioned by the Chief Justice of Delhi to the Chief Justice of India
at the meeting held on 26th March, 1981, how could S.N. Kumar B
think of dealing with them in his counter-affidavit. The reference to
these three suits in the counter·affidavit of S.N. Kumar clearly shows
that apart from the part heard suits, these three suits and the
allegations relating to them were also disclosed by the Chief Justice
of Delhi to the Chief Justice of India and if that be so, there can be
no doubt that all the facts in regard to the allegations against S.N.
c
Kumar must have been discussed between the Chief Justice of Delhi
and the Chief Justice of India.

It was suggested by the learned counsel on behalf of
S.N. Kumar in the course of arguments that the Chief Justice of D
Delhi was anxious to keep the facts set out in the letter dated 7th
May, 1981 secret from the Chief Justice of India, lest he should make
his comments on them and reject the recommendation not to conti-
nue S.N. Kumar as an additional Judge based on these facti;. But
this suggestion is meaningless, because the Chief Justice of Delhi in
any event knew as a result of the meetini: held on 26th March 1981 E
that the Chief Justice of India was not agreein~ with the view
expressed by him and was against his recommendation to discontinue
S.N. Kumar as an additional Judge, while he, on his part, was not
prepared to change his view and retract the recommendation made
by him, because even after the discussion with the Chief Justice of
India, he felt that he could not honestly recommend continuance of F
S.N. Kumar as an additional Judge and if that be so, there is no
reason why he should have wanted to keep back his letter dated 7th
May, 1981 from the Chief Justice of India except for the three
reasons given by him. We must, of course, observe that in our
opinion, howsoever strong and cogent might be the three reasons
given by him, the Chief Justice of Delhi should never have asked G
the Law Minister not to place his letter dated 7th May, 1981 before
the Chief Justice of India. So long as the Chief Justice of Delhi was
acting bona fide in the discharge of his constitutional duty-and
we have no doubt that in the matter of continuance of S.N. Kumar
he was acting bona fide, he should not have bothered whether by H
his action in puting the facts on record in the letter dated 7th May,
668 SUPREME COURT REPORTS (1982) 2 S.C.R.

A 1981 the Chief Justice of India would be offended and his relations
with the Chief Justice of India would be spoilt. There are occassions
when persons holding high constitutional offices are called upon to
perform an unpleasant duty and this duty they have to perform, what-
ever be the consequences. If necessary, let the the heavens fall but
what is right and just shall be done without fear or favour, affection
B or goodwill. Long years ago that great common Law Judge, Lord
Mansfield spoke of the judicial office in majestic tones and said :

"I will not do that which my conscience tells me is
wrong, upon his occassion; to gain the huzzas of thousands,
c or the daily praise of all the papers which come from the
press; I will not avoid doing what I think is right; though
it should draw on me the whole artillery of Habels; all that
falsehood and malice can invent, or the credulity of a delud-
ed popular can swallow ...... Once for all, let it be under-
stood, 'that no endeavours of this kind will influence any
D man who at- present sits here."

What the learned Chief Justice said in regard to judicial .'u 1ction
must apply with equal validity where a Judge is called upon to dis-
charge any other function entrusted to him by the Constitution
E and he must boldly and fearlessly do that which Constitution
commands. But merely because the Chief Justice of Delhi flinched
and faltered out of a sense of apprehension that the Chief Justice of
India might feel offended by his writing the letter dated 7th May,
1981, it does not follow that the facts set out in that letter were not
personally discussed by him with the Chief fostice of India at the
F meeting held on 26th March 1981. We are clearly of the view that
the ' full and identical facts" on which the decision of the Central
Government was based were placed before the Chief Justice of India
and there was full and effective consultation with him before Central
Government reached the decision that S.N. Kumar should not be
continued as an additional Judge. We may also point out that this
G
decision of the Central Government was not based on any irrelevant
considerations, since, as we have already pointed out earlier, lack of
reputation for integrity is certainly a most relevant consideration in ·
deciding whether a person should be appointed a Judge.
H
We may make it clear that in taking this view we do not for
a moment wish to suggest that S.N. Kumar was lacking in integrity.
S.P. GUPTA v. UNION (Bhagwali, J.) 669

That is not a matter into which we are called upon to enquire and
nothing that is stated by us should be regarded as expression of
any opinion on this question. We may observe in fairness to
S.N. Kumar that the Chief Justice of India clearly stated it to b~ his
opinion that the integrity of S.N. Kumar was unquestionable What
happened here was that there were two conflicting opinions given by
the two constitutional authorities required to be consulted, namely, B
the Chief Justice of Delhi and the Chief Justice of India. Both
were perfectly bona fide opinions and the Central Government had
to choose between them and come to its own decision. The Central
Government preferred the opinion of the Chief Justice of Delhi for
the reasons mentioned in the note of the Law Minister dated 27th
May, 1981 and decided not to appoint S.N. Kumar as an acditional
c
Judge for a further t;:rm. We do not think this decision suffers from
any constitutional infirmity.

But before we part with this point, we must refer to one last
contention urged on behalf of the petitioners and S.N. Kumar and D
that contention was that the non-appointment of S.N. Kumar as
an additional Judge was tantamount to bis removal and the Central
Government was therefore bound to follow the principles of natural
justice before taking the decision not to continue him as an addi-
tional Judge. This contention is without merit and the premise on
which it is based is not sustainable. It is wholly incorrect to say that E

. - when an additional Judge whose term has expired and who would
therefore have to return to the Bar or to the subordinate judicial
service, is not appointed a permanent Judge or an additional Judge
for a further term, he is removed by the Central Gov :rnment. We
have already discussed this aspect of the matter and pointed out that
on the expiration of his term, an additional Judge has no right to be F
appointed a permunent Judge or an additional Judge for a further
term and his only right is to be considered for such appointment and
if as a result of such consideration after going through the
consuliation process envisaged in Article 217, he is not
considered suitable for further appointment and it is deci-
ded not to reappoint him, he cannot complain against the G
decision, unless he can show that there was no full and effective
consultation as contemplated in Article 217 or that the decision not
to appoint him was based on irrelevant considerations. If he is not
appointed a permanent Judge or an additional Judge for a further
H
term, he goes out, but that happens because the term for which he
was originally appointed has come to an end and not because he is
670 SUPREME COURT REPORTS ( 1982) 2 S.C.R.

A removed. There is therefore no question of giving him an oppor-
tunity to be heard before the decision is taken not to appoint him "' .
as a permanent Judge or an additional Judge. We must in the cir-
cumstances reject the challenge levelled on behalf of the petitioners
and S.N. Kumar against the decision of the Central Government
not to appoint S.N. Kumar as an additional Judge for a further
B term.

We would therefore dismiss the first group of writ petitions in
so far as they seek relief in respect of O.N. Vohra and S.N. Kumar.
No reliief can be granted in respect of 0.N. Vohra because, though
added as a party respondent, he has not appeared and claimed any
c relief against the decision of the Central Goverment to discontinue
him as an additional Judge and has accepted such decision without
protest or complaint. That is the reason why we have not exa-
mined the complaint of the petitioners in regard to discontinuance
of O.N. Vohra as an additional Judge. So far as S.N. Kumar is
concerned, we have rejected his claim for relief, because, in our
D opinion, and we have already given our reasons taking this view, the
decision to discontinue him as an additional Judge was taken by the
Central Government after full and effective consultation with the
Chief Justice of Delhi and the Chief Justice of India and it was
not based on any irrelevant considerations. We have taken the view
E that the circular letter issued by the Law Minister was not un-
constitutional and void and hence the first group of writ petitions
must also fail in so far as they challenge the constitutional validity
of the circular letter. The other reliefs claimed in tl1e first group

. F
of writ petitions hav ~ also been rejected by us and hence this
group of writ petitions must wholly fail.

But, while dismissing this group of writ petitions, we may
observe that though, in our opinion, there was full and effective con-
sultation with the Chief Justice of Delhi and the Chief Justice of -(
India before the decision was taken by the Central Government to
discontinue S.N. Kumar as an additional Judge and neither the
G
petitioners nor S.N. Kumar could therefore have any legitimate
cause for grievance against such decision, it would be a good thing
if, having regard to the high status and dignity of a High Court
Judge, the Union of India could see its way to place the letter
dated 7th May, 1981 addressed by the Chief Justice of Delhi to the
8
Law Minister before the Chief Justice of India and elicit his opinion
with refereace to that letter and then consider whether S.N. Kumar
S.P. GUPTA v. UNION (Bhagwati, J.) 671

should be reappointed as an additional Judge in the Delhi High
Court. This is only a suggestbn which we are making ex-tathedra
for the acceptance of the Government; if thought fit.

K.B.N. Singh's case.
B
The second group of writ petition> raises the question of con>-
titutional validity of the orders transferring Chief Justice M. M.
Ismail to the Kerala High Court and Chief Justice K.B.N. Singh to
,, the Madras High Court. However, so far as Chief Justice
M.M. Ismail is concerned, the question bas become academic because
he has stated in the counter-affidavit filed by him in reply to the
writ petition of Miss Lily Thomas that he does not want any-one
c
to litigate for or against him nor does he want anything about him
to be argued or debated and he has subsequently resigned his office
as Chief Justice of the Madras High C0urt. The only que~tion
which therefore survives for consideration is whether the transfer
of Chief Justice K.B.N. Singh to the Madras High Court could be D
said to be constitutionally invalid. The determination of this ques-
tion obviously depends upon the true scope and ambit of the pJwer
of transfer conferred under clause (I) of Article 222. That Article
reads as follows :

"Article 222 (!). The President may, after consultation E
with the Chief Justice of India, transfer a Judge from one
High Court to any other High Court."

This article came up for consideration before a B~;1ch of five Judcres
0

of this Court in Sankalchand Sheth's case (supra). Mr. Seervai
arguing on behalf of Sankalchand Sheth in that case contended that
a Judge cannot be transferred from one High Court to another F
without his consent. and there were two grounds on which he rested
l-- )--- this contention. One was that on a proper construction of Article
222 clause (1) in the context of the basic principle of independence
of the judiciary, consent must be read a~ a necessary requirement in
that article and the other was that since transfer of a Judae
0 involves G
a fresh appointment in the High Court to which he is transferred
such transfer cannot be made without the consent of the Judge'.
The majority Judges comprising Cbandrachud, J., (as he then was)
Krishna Iyer, J. and Fazal Ali J. rejected this contention of
Mr. Seervai and held that there was no need or justification, in H
order to uphold and protect the independence of the judiciary, to
construe Article 222 clause (I) as meaning that a Jud:e can be trans-
672 SUPREME COURT REPORTS [ 19~2] 2 S.C.R.

A ferred from.one High Court to another only with his consent. Justice
Untwalia and myself, however, took a different view. We upheld
the contention of Mr. Seervai and held that a Judge cannot be trans· '
ferred from one High Court to another without his consent.
Mr. Justice Untwalia based his conclusion on the second ground
urged by Mr. Seervai, namely, that the transfer of a Judge involves
B fresh appointment in the High Court to which he is transferred and
the Judge is also required to take a fresh oath in accordance with
Article 219 and in the form prescribed in the Third Schedule and he
cannot therefore be transferred without his consent. I accepted'
both the grounds urged by Mr. Seervai in support of his conten-
c tion and held that it is no doubt true that the words "without his
consent" are not to be found in clause (I) of Article 222, but the
word 'transfer' which is used there is a neutral word which can mean
consensual as well as compulsory transfer and if the l1igh and
noble purpose of the Constitution to secure the independence
of superior judiciary by insulating it from all forms of executive
D control or interference is to be achieved, the word 'transfer' must be
read in the limited sense of consensual transfer. I pointed that when
a Judge is transferred to another High Court, he has to make and
subscribe a fresh oath or affirmation before the Governor of the
State to which he is transferred before he can enter upon the office
of a Judge of that High Court and such transfer would not become
E effective unless the Judge makes and subscribe an oath or affirma·
tion before the Governor and that would plainly be a matter within
the volition of the Judge and l therefore, concluded that since
~··
the volition of the Judge who is transferred is essential for
making the transfer effective, there can be no transfer of a
Judge of a High Court without bis consent. The view taken by
F Justice Untwalia and myself was thus a minority view, but since the
present writ petitions were being heard by a larger Bench than that
which decided Sankalchand 8heth's case, Mr. Seervai canvassed the
minority view for acceptance by the Bench of seven Judges. The
learned Attorney General, on the other hand, contended that the
majority view taken in Sanka!chand Sheth's case represented the
G correct law on the point and the Bench of seven Judges should
affirm that view. I have carefully examined the arguments which
have been advanced with great ability and learning on both sides, but
I am afraid I find it impossible to change the view I took in
Sankalchand Sheth's case. Nothing that has been said in the course
~-.
H of the arguments has persuaded me to take a different view. I
remain unconvinced of the incorrectness of the view taken by me
S.P. GUPTA v. UNION (Bhagwati, J.) 673

and I hold to that view despite the fact that I still happen to be in A
a minority. I have already given elaborate reasons in my judgme:it
in Sankalchand Sheth' s case for taking the view that a Judge cannot
be transferred from one High Court to another withJut his con-
sent and I think it would be a futile exercis~ on my part to reiterate
those reasons once again in this judgment. I hold for the reasons
given by me in my judgment in Sankalchand Sheth's case that B
the power of transfer under Article 222 clause (1) cannot be exer-
cised against a Judge without his consent. It is, I may repeat, a
highly dangerous power involving great hardship and injury to the
Judge transferred including a stigma on his reputation in cases where
the transfer is not effected pursuant to any policy but the Judge is
picked out for transfer on a selective basis and to my mind, it c
makes no difference whether the transfer is made by the Govern-
ment on its own initiative or it is made at the instance of the Chief
Justice of India as in the case of Chief Justice K.B.N. Singh.

• Even if I am wrong in taking the view that no Judge can be D
transferred from one High Court to another without his consent,
the tranfer of Chief Justice K.B.N. Singh must still fail. It has been
held in Sankalchand Sheth' s case, and on this point there was no
disagreement between the majority and the minority, that the power
to transfer a Judge from one High Court to another can be exer-
cised only in public interest and there must be full and effective E
consultation between the President, that is, the Central Government
and the Chief Justice of India before the decision to transfer 1a
Judge is taken. I wholly accept this construction of clause (I) ~of
Article 222 and since full and detailed reasons have been given in
the various judgments in Sankalchand Sheth's case, I need not ...
indulge in the same exercise again. F

Now it is obvious that when a Judge is transferred from one
.. ,.. High Court to another by way of punishment, it can never be in
public interest for no public interest would countenance punish-,
meat of a Judge except by way of impeachment under proviso (b)
to clause (1) of Article 217 read with clause (4) of Article 124.
G
There is a clear antithesis between a transfer by way of punishment
and a transfer in public interest and therefore, a transfer by way of
punishment must he held to be outside the scope and ambit of
Article 222 clause (I). In fact, it was so held into &mkalchand
Sheth' s case by all the Judges. But the question then arises when
B
can it be said that a Judge is transferred from one High Court to
674 SUPREME COURT REPORTS (1982] 2 S.C.R.

A another by way of punishment. Undoubtec'ly, when a Judge is
tran&ferred by the Government because he does not toe the line of
the Executive or gives decisions against the Executive or has
Cor some reason or the other fallen from its grace, it would be a
transfer by way of punishment. That would be the plainest case of
penal transfer. But these are not the only circumstances in which a
B Judge may be transferred from one High Court to another by way
of punishment. The element of punishment is not confined merely
to the wrath of the Government on account of a Judge being incon-
veniently independent. There may be cases where a Judge may be
transferred because he is not behaving properly or is conducting
himself in a manner not befitting the position of a High Court
c Jud&e and such a transfer grounded on the conduct or behaviour
of the Judge would clearly be punishment, even if it be
en the recommendation of the Chief Justice of India. It is also
po&Sible that the Chief Justice of India may find in a given case
that a Judge of a High Court is promoting the interest of his son or
D brother in practice or by passive inaction allowing his son or brother
to uploit his relationship with the Judge for the purpose of
advancing bis professional interest and in such a case, the Chief
Justice of India may recommend that the Judge should be
tramferred to another High Court and the Government may accept
such recommendation. Would the transfer in such a case not
E clearly be by way of punishment ? There may also be cases where
the recommendation of the Chief Justice of India for transfer of
a Judge may proceed from his disagreement with the social philo·
sopby of the Judge or his unhappiness with the manner in which be
is deciding cases and the Government may unquestioningly accept
~ch recommendation. This would also, in my opinion, be nothing
F short of punishment. I take the view that whenever transfer of a
Judge is effected for a reason bearing upon the conduct or behaviour
of the Judge, it would be by way of punishment and therefore, not
permissible under clause (1) of Article 222. When I say this, I may
make it clear that I do not regard transfer per se as a punishment.
It is the reason for which the transfer is made, which makes it
G penal and if that reason is related to the conduct of behaviour of
the Judge, the transfer would clearly be a penal transfer not in
---
public interest and hence outside the scopo and ambit of Article 222
clause (I).

H That takes me to a consideration of the question whether in
the present case there was full and effective consultation
S.P. GUPTA v. UNION (Bhagwat1, J.) 675

between the Central Government and the Chief Justice of India A
before the decision was taken to transfer Chief Justice K.B.N. Singh
to the Madras High Court and whether such transfer was effected
in public interest and not by way of punishment. While considering
this question, I would like to emphasise at the outset, and the point
I am making here is one of great importance, that when a transfer
of a Judge of a High Court is challenged in a Court of Law, the B
burden must lie upon the Government to sustain the validity of the
transfer. The power of transfer, even according to the majority
) decision in Sankalchand Seth's case, is a drastic power to be exer-
cised only in rare cases as it has the effect of destroying the right of
the Judge who is transferred, to continue as a Judge in the High
Court to which he was appointed until he reaches the age c
of 62 years and removing him to another High Court where
possibly he would not have agreed to go if he had been asked at the
time of his original appointment. When an Order of transfer is
made, the Judge has a difficult choice, either to go to the High Court
where he is transferred or to resign and having burnt his boats and
given up his profession long back, he would be in great difficulty D
if he chose to resign and therefore, from a practical point of view,
he would have no option but to go to the other High Court, how-
soever inc.:invenii:nt it may be to him. Moreover, it would be almost
in.possible for the Judge to successfully challenge the order of
transfer if the burden C'f showing its invalidity were cast upon him.
Even as it is, the Judge would have to wage a lone and unequal E
battle against the Government whe:;. he challenges the order of
transfer and if the onus of establishing facts invalidating the order
of transfer were thrown-upon him, the battle would be rendered still
more unequal and the scales would be weighted heavily against him.
The result would be that even an invalid order of transfer would
pass muster on account of the in ability of the Judge to discharge F
the burden of showing the of· the order of transfer and the virtual
immunity thus granted to the order of transfer would serious-
ly impair the independence of tbe judiciary. Furthermore, having
-- regard to the high status and dignity of a Judge of a High Court,
it is but fair that when the Government is displacing the right of the
G
Judge to continue in his High Court upto the age of 62 years, he
should be told what are the reasons wnich have weighed with the
Government in transferring him. He must be assured that all the
constitutional requirements have been complied with. Besides, the
facts showing that there was full and effective consultation between H
the Government and the Chief Justice of India and the reasons for
676 SUPREME COURT REJ>ORTS [1982) 2 S.C.R.

A making the transfer would be within ::the special knowledge of the
~·
Government and the onus must therefore be upon the Government.
to prove them. Thus the burden of sustaining the validity of the
Order of transfer must rest on the Government and this burden, it
may be pointed out, is a heavy burden, which must be satisfactorily
discharged by the Government. This is the same principle which
B has been applied by this Court when the legality of detention of a
person is .challenged by filing an application for a writ of habeas
corpus. This Court has consistently taken the view in such cases,
unlike the House of Lords in Zamihr's case, that the burden of
sustainining the validity of the detention must lie on the detaining ...,.
authority.
c
I may observe that this is a remarkably unusual cas~ in which
there is substantially a contest between the Chief Justice of a High
Court on one hand and the Chief Justice of India on the other. The
Government is, of course, a party of this contest since it is ultimate-
ly the order of transfer made by the Government which is called in
D
question by Chief Ju .tice K.B.N. Singh, but since the Order of
transfer was made by the Government on the recommendation of the
Chief Justice of India, it is the Chief Justice of India who has
accepted the gauntlet and joined the contest against Chief Justice
K.B.N. Singh. The Chief Justice of India has tiled a counter-affida-
E vit in reply to the writ petition of Chief Justice K.B.N. Singh and
others, but having filed suclt counter-affidavit, he has chosen not to
appear before us through counsel. The result is that we have been
deprived of the opportunity of asking for clarification of some of
the averments made in the counter-affidavit, which appeared at least
to some of us to be vague and indefinite. When we asked the learned
F Solicitor General in the course of the hearing to give us particulars
of one statement made in the counter-affidavit of the Chief Justice·
of India, namely, "Every relevant aspect of that question was dis-
cussed by me fully with the President both before and after I pro-
posed the transfer," the learned Solicitor General rightly rejoined
•

G
by saying that he was not appearin,g for the Chief Justice of India
and he could not therefore give the particulars asked for by
-·
the Court. We have therefore to proceed on the basis of the counter-
affidavit of th~ Chief Justice of India as it stands without any further
clarification or elucidation. We must also remined ourselves when we
are deciding this contest between Chief Justice K.B.N. Singh on the
H one hand and the Chief Justice of India and the Government on the
other, that we are sitting as Judges, who have taken an oath to
S.P. GUPTA v. UNION (Bhagwati, J.) 677

perform the duties of our office without fear or favour, affection or
A
ill-will and it is our solemn and sacred duty to do justice, irrespec-
tive of who is the litigant before us. We have the highest regard for
the Chief Justice of India as we have for Chief Justice K.B.N. Singh,
but they are both litigants before us and while deciding the contest
between them, we must be blind to their status or position and we
B
must adjudicate the controversy between them as we might do in the
ease of any other litigants before us. We must apply the same
standards in assessment of the affidavits and counter-affidavits filed
by Chief Justice K.B.N. Singh .and Chief Justice of India as we
would do in any other case. The scales of justice cannot tilt one
way or another merely because a litigant before us happens to be
the Chief Justice of a High Court or the highest amongst the Indian
c
Judiciary. They are all equal before us when we sit on the seat of
Justice and we shall do justice, without fear or favour, affection or
ill-will and decide the issues arising in the case objectively and
dispassionately, forgetful of the high status and dignity enjoyed by
the two litigants before us. D

With these preliminary observations I may now proceed to
consider the facts. But on facts, I do not wish to say much, because
I agree with the judgment prepared by my learned brother
D.A. Desai on this point. He has carefully analysed the corres-
pondence as well as the affidavits and reached the conclusion that E
there was no full and effective consultation between the Central
Government and the Chief Justice of India before the decision was
taken to transfer Chief Justice K.B.N. Singh to the Madras High
Court and the transfer was made by way of punishment and not in
public interest I wholly endorse_ this view taken, by him as also the
reasons given by him in support of that view, but having regard to F
the importance of the matter affecting as it does the fate of the Chief
Justice of a High Court, I would add a few words in support of what
my learned brother D.A. Desai, has stated in his judgment.

-- So far as the first question is concerned whether there was full
and effective consultation between the Central Government and the
G
Chief Justice of India, I have already pointed out, while discussing
the scope and effect of clause (I) of Article 217 as to what is the
meaning and content of 'consultation'. It requires that the Central
Government must make available to the Chief Justice of India rele- H
vant data in regard to the Judge proposed to be transferred and the
Chief Justice of India must l also elicit and ascertain all relevant
678 SUPREME COURT REPO~!lTS [1982) 2 S.C.R.

A material relating to the Judge either directly from him or from other
reliable resources and place such material before the Central Govern-
ment. Each of the two c0nstitutional authorities, the Central Govern-
ment and the Chief Justice of Indi'i, must have for its consideration
full and identical facts which can at once constitute both the source
and foundation of the final decision. There must be careful and
R intelligent deliberation on the part of each of them on full and
identical facts. Each must make known to the other its point of
view and they must discuss and examine the relevant merits of the
views. It is only after this process is gone through that a decision
can be taken by the Central Government to transfer a Judge from ·-.-
one High Court to another. Now here, in the present case, the
c ini1iative for transferring Cb.ief Justice K.H.N. Singh was taken by
the Chief Justice of India. He proposed by his letter dated 7th
December, 1980 that Cb.ief Justice K.B.N. Singh may be transferred
to the High Court of Rajasthan. This means that on his part he
had made up his mind prior to 7th December, 1980 that Chief Justice
K .B.N. Singh should be moved out of Patna. Now admittedly, the
D Chief Justice of India had not mentioned anything about the proposed
transfer to Chief Justice K.B.N. Singh prior to making his proposal
of 7th December, 1980. This was rather str.ange-1 might say almost
inexplicable-because the judgments of the Chief Justice of India
and Krishna Iyer, J. in S;inkalchdnd Seth' scase have clearly laid
down tlrnt it is the duty of the Chief Justice of India to elicit and
E ascertain, if necessary by asking directly the Judge concerned all
relevant material relating to the Judge and such material would
include, for example, the health of the Judge, the availabl ity of
medical facilities in and the climate of the place to which he is to be
transferred, the business or occupation of his wife or daughter, the
position of his parents and the education of his children etc. as a
F
part of the process of consultation. The Chief Justice of India
should have therefore, before making bis proposal for transfer by
his letter dated 7th Dec.:mber, 1980, informed Chief Justice
K.B.N. Singh about his proposed transfer to Rajasthan High Court

G
and enquired from him whether he would have any particular pro-
blems or difficultiea, if he was transferred to the Rajasthan High
---
Court. But unfortunately, no such enquiry was made by the Chief
Justice of India before he made his proposal for transfer of Chief
Justice K.B.N. Singh to the Rajasthan High Court, which proposal
might well have been accepted by the Central Government imme-
H diately, but for the fact that there was some difficulty in regard to
another proposal simultaneously put forward by the Chief Justice of
s.P. GUPTA 11, UNION (Bhagwati, J.) 679

India for transfer of Chief Justice K.D. Sharma from the A
Rajasthan High Court to the Kerala High Court. The
Chief Justice of India however, changed his proposal in regard
to the transfer of Chief Justice K.B.N. Singh and asked the
Central Government by his letter dated 20th December, 1980
addressed to the Law Minister co traQsfer Chief Justice K.B.N. Singh
to the Madras High Court. There was thus a change in the proposal B
for transfer of Chief Ju~tice K.B.N. Singh within a period of less
than 14 days. But even then, the Chief Justice of India did not
inform Chief Justice K.B.N. Singh that he was being transfer;·ed to
.... the Madras High Court nor did he enquire to gather from him any
relevant material bearing upon the proposal for transfer. Now it is
significant to note that neither of the two letters dated 7th December, c
1980 and 20th December, 1980 sets out any facts showing why the
Chief Justice of India desired that Chief Justice K.B.N. Singh should
be transferred from the Patna High Coun. Neither of these two letters
throws any light as to what were the facts on the basis of which
the Chief Justice of India recommended transfer of Chief Justice
K.B.N. Singh from the Patna High Court and there is also nothing D
in these two letters to show that these facts were communicated
by the Chief Justice of India to the Law Minister or to any other
high level functionary of the Central Government. The letter dated
7th December, 1980 merely states that he was recommending the
transfer of Chief Justice K.B.N. Singh 011 the basis of the data which
he had collected as a result of personal inquiries made from several
lawyers and many other Judges of the High Court and which he had
considered with the greatest objectivity. What were the. data
collected by him on the basis of which he was recommending the
transfer of Chief Justice K.B.N. Singh was not disclosed by the Chief
Justice of India in his letter dated 7th December, 1980 and from the
tenor of this letter it appears though it cannot be said with certain-
F
ty that no such data must have been communicated to the Law
Minister prior of 7th December, I 980 for otherwise the Chief Justice
of India would have stated in this lett~r that he was recommending
the transfer on the basis of the data which he: had already pointed
out to the Law Minister. lt is a little surprising that if any facts
bearing upon the transfer of Chief Justice K.B.N. Singh were to be
G
communicated by the Chief Justice of India to the Law Minister, it
should not have been done in writing particularly when the letter
dated 7th December, 1980 recommending the transfer was addressed
J
by the Chief Justice of India to the Law Minister, and this was H
followed by another letter dated 20th December, 1980 addressed to
the Law Minister. It was quite sometime after the revised proposal for
680 SUPREME COURT REPORTS [1982] 2 S.C.R.

A transfer of Chief Justice K.B.N. Singh was made in the letter dated
20th December, 1980 that on 5th January, 1981, the Chief Justice
of India telephoned [to Chief Justice K.B.N. Singh and informed
him that Chief Justice M.M. Ismail was proposed to be transferred
to the Kerala High Court and that he may therefore have to go to
the Madras High Court and enquired him ''if he had anything to say
B on the (question of his proposed transfer". Chief Justice
K.B.N. Singh thereupon enquired from the Chief Justice of India as
to why "he may be transferred to Madras" on which, according to
the counter-affidavit of the Chief Justice of India, he gave two
reasons, one that it was Government policy and the other that it was .,._
proposed to transfer Chief Justice M .M. Ismail from Madras and
c "it was necessary to appoint an experienced and senior Chief Justice
in his place." Chief Justice K.B.N. Singh, however, informed the
Chief Justice of India that his mother was bedridden and was not in
a position to go with him to Madras and that if his transfer was
insisted upon, he would prefer to resign. The Chief Justice of India
requested him not to act in haste and to give the matter a c'.ose
D thought. Chief Justice K.B.N. Singh thereafter met the Chief
Justice oflndia in New Delhi in the evening of 8th January, 1981
and discussed the question of his proposed transfer with him for
some time. When Chief Justice K.B.N. Singh mentioned his
difficulty in regard to his mother's advanced age and illness, the
Chief Justice of India told him that he was unable to agree with him
E "since there were available persons in his family who could look
after his mother and in any case, his brother SBN Singh who was
practising in the High Court was quite capable of looking after the
mother. "Chief Justice KBN Singh, however, informed the
Chief Justice of India that his mother has a special attachment to
F him and be could not leave her to the care of his brother or other
members of his family. Chief Justice KBN Singh then told the •
Chief Justice of India that certain persons connected with the High
Court who were influenced by communal considerations, had made
some baseless complaints against him and that he on bis part did
not permit communal or any other extraneous considerations to
G influence him administratively or judicially. The Chief Justice of ---
India, however, assured Chief Justice KBN Singh that he did
not hold that Chief Justice KBN Singh himself was to
hlame, but certain persons were exploiting their proximity to him
which bad created needless misunderstanding and dissatisfaction.
II Chief Justice KBN Singh thereafter left and on the next day
that is, 9th January, 1981, the Prime Minister endorsed her decision
S.P. GUPTA v. UNION (Bhagwati, J.) 681

on the file in regard to transfer of Chief Justice KBN Singh to the 4
Madras High Court and the formal order effecting such transfer was
made on 19th January, 1981.

It is extremely difficult on these facts to hold that there was
full and effective consultation between the Central Government and
the Chief Justice of India. The burden of showing that there was B
full and effective consultation rests heavily on the Government and
it is not possible to say that this burden. has been discharged by the
Government. I have a\r.,ady referred to the correspondence ex-
changed between the Chief Justice of India and the Law Minister
and there is nothing in it which shows that any facts bearing upon
the transfer of Chief Justice KBN Singh were communicated by the
c
Chief Justice of India to the Law Minister. We were informed by
the learned Solicitor General on an enquiry made by us that there is
also nothing in the nJtin3~ w:1ich might indicate even remotely that
any such facts were cj:nnunic1ted by the Chief Justice of India to
the Law Minister or to th~ Prim~ Minister or to any other high level D
constitutional functionary of the Central Government. The only state-
ment which we have on this point is the one made by the Chief
Justice of India in his counter·affidavit, namely, that "every relevant
aspect of that question was discussed by me fully with the President
both before and after I propJsed the transfer." This statement, even
if it be accepted as wholly correct, is in my opinion, not sufficient E
to dicharge the burden which lieil upon the Governm~nt to show that
there was full and effective consultation. In the first place, it does
not say who was the constitutional functionary on behalf of the
President with whom "every relevant aspect of that question was
discussed.'' Did the Chief Justice of India discuss the matter
with the President personally, though, of course, a statement was F
made to us on behalf of the President that he had no discussion with
the Chief Justice of India in this respect or did he discuss with the

-- Prime Minister or did he discuss with the Law Minister ? We are
not informed as to who was the person with whom the discussion
took place and unless the name of the permn is mentioned, I do
not see how the correctness of the statement can b! verified or chal-
G
lenged by the other side. It is not enough merely to repeat the
constitutional formula that every aspect of the question was dis-
cussed with the President. It is an affidavit which is made by the
Chief Justice and the affidavit must contain not merely the constitu- H
tional incantation but facts giving particulars stating with whom the
682 SUPREME COURT REPORTS [1982] 2 s.c.R.

Chief Justice of India had discussion. The affidavit also does not
give the date or dates when the discussion took place between the
Chief Justice of India and the President. The statement made in the
affidavit is delightfully vague. According to this statement, the
discussion took place "both before and after I proposed the trans-
fer". This would mean that the discussion could have taken
place at any time before 7th December, 1980 or at any
time after 7th December, 1980 upto 9th January, 1981. How
can Chief Justice KBN Singh possibly meet such a vague
allegation ? I personally fail to see why if the Chief Justice
of India had discussion with the Law Minister or the Prime Minister
in regard to the proposed transfer of Chief Justice KBN Singh, the
c Chief Justice of India could not give us the date or dates when such
discussion took place, because surely he must be having some record
in regard to his meetings with the Law Minister or the Prime Minister.
Then again, the statement in the affidavit merely says that every
relevant aspect of the question was discussed, but does not indicate
what aspects were discussed. It is for the Court to decide whether
D all relevant facts were discussed between the Chief Justice of India
and the Central Government so as to constitute full and effective
consultation and this enquiry cannot be pre-empted by the Chief
Justice of India by asserting in his affidavit that every relevant aspect
of the question was discussed by him with the Central Government.
It is not for the Chief Justice of India to decide, but it is for the
E
Court to be satisfied, that all relevant aspects of the question were
discussed by him with the Central Government. It is possible that
the Chief Justice of India might have considered some facts as irrele-
vant and not discussed them with the Central Government, but the
Court may find that such facts were relevant and should have
F formed the subject matter of discussion and it is equally possible
that some facts might have been discussed which the Chief Justice
of India considered relevant but the Court might find them to be
irrelevant. We are not told by the Chief Justice of India as to what
were the facts discussed by him with the Central Government and
in the absence of this information, it is not possible for us to con-
G clude that there was full and effective consultation between the
Chief Justice of India and the Central Goverment.

There is also another infirmity from which the process of con-
sultation suffers. It was on 8th January, 1981 that Chief Justice
H
KBN Singh discussed with the Chief Justice of India the difficulty
arising from his mother's advanced age and illness and when the
S,P. GUPTA v. UNION (Bhagwati, J.) 683

Chief Justice of India pointed out to him that his brother and other A
family members were there to look after his mother, he explained
to the Chief Justice of India that his mother, had a sentimental
attachment to him and he could not leave her to the care of his
brother or other members of the family. There is nothing to show
that this particular difficulty of Chief Justice KBN Singh was brought
to the notice of the Central Government by the Chief Justice of B
India before the decision was taken by the Prime Minister on 9th
January, I 981 to transfer Chief Justice KBN Singh. The meeting
between Chief Justice KBN Singh and the Chief Justice of India
took place at 7.00 p.m. on 8th January, I 981 and on the next day,
the Prime Minister made her endorsement on the file and there is
absolutely nothing to show, nothing even in the counter-affidavit c
of the Chief Justice of India, that after his talk with Chief Justice
KBN Singh, he telephoned either to the Law Minister or to the
Prime Minister pointing out this particular difficulty of Chief Justice
KBN Singh to the Central Government. There is nothing even in
any notings on the file showing that any such information was
conveyed by the Chief Justice of India to the Law Minister or to D
the Prime Minister in the evening of 8th January 1981 or on 9th
January I 9S I. I his omission to communicate the difficulty which
would be experienced by Chief Justice KBN Singh as a result of
transfer is sufficient to vitiate the process of consultation and it
must be held that there was no full and effective consultatton as
required under Article 222 clause (I). E

We may now exmine the reasons for which Chief Justice
K.B.N. Singh was transferred to the Madras High Court. Two
reasons were given by the Chief Justice of India to Chief Justice
K.B.N. Singh in the course of the telephonic talk which took place F
on 5th January, 1981. One was that the transfer was being made on
account of Government policy and the other was that since Chief
Ju-tice M.M. Ismail was being transferred from Madras, it was
necessary to appoint an experienced and senior Chief Justice in his
-~ place. So far as the first reson is concerned, I find it rather difficult
to appreciate it. The government policy which the Law Minister put G
forward was that there should be Chief Justice from outside in every
High Court, but the Chief Justice of India in his letter dated 7th
Dec~mber, 1980 expressed his firm opposition to this Government
policy and stated that transfers of Chief Justices "may be made in
appropriate cases for strictly objective reas0ns" and it was in pur-
suance of this view taken by him that he recommended the transfer
684 SUPREMB COURT REPORTS [1982] 2 S.C.R.

A of Chief Justice K.B.N. Singh. The Chief Justice of India did not
recommend the transfer of Chief Justice K.B.N. Singh pursuant to
the Government policy because he was firmly opposed to that policy,
but he recommended the transfer because he thought that for strictly
objective reasons, it was necessary to transfer Chief Justice
B K.B.N. Singh. Then, how could the Chief Justice of India tell
Chief Justice K.B.N. Singh that he was heing transferred on account
of Government policy. The second reason given by the Chief Justice
of India is also a little intriguing. If Chief Justice K.B. N. Singh was
proposed to be transferred to Madras because it was necessary to
appoint an experienced and senior Chief Justice in place of Chief
c Justice M.M. Ismail, why, may I ask, was he proposed for transfer
to the Rajasthan High Court ? This reason could not possibly apply
to the proposed transfer to the Rajasthan High Court. There is no
doubt that Chief Justice K.B.N. Singh was proposed to be transfer-
red not because he was a senior and experienced Chief Justice who
was required to man the High CJurt of Madras in place of Chief
D Justice M.M. Ismail but because the Chief Justice of India was of
the view that he shou'.d be m Jved out of the Patna High Court.

Then, in the course of the discussion at the meeting which
took place on 8th January 1981, the Chief Justice of India stated to
Chief Justice K.B.N. Singh that certain persons were exploiting their
E
proximity to him which bad ceated needless misunderstading and
dissatisfaction. I do not know whether this statement was made by
the Chief Justice of India by way of furnishing to Chief Justice
K.B.N. Singh the reason why he was being transfrrred because I do
not tind it so stated in the counter-affidavit of the Chief Justice of
India. But even if it be assumed that this was the real reason why
F
Chief Justice K.B.N. Singh was sought to be transferred from the
Patna High Court, I cannot say whether this reason was communi-
cated by the Chief Justice of India to the Central Government
because there is nothing in the correspondence or in the notings
G showing that any such communication was made by the Chief Justice
of India to the Central GJvernment, nor does the counter-affidavit
of the Chief Justice of India throw any light on this point beyond
making a vague and indefinite statement which I have already
discussed. This circumstance would also show that there was no
full and effective consultation. But assuming that this reason was
H communicated by the Chief Justice of India to the Central Govern-
ment and it weighed with the Central Government in making the
order of transfer; it would, I am afraid, have the effect of converting
S.P. GIJPTA v. UNION (Bhagwati. J.) 68S

the transfer into a penal transfer. It is undoubtedly true that the A
Chief Justice oflndia told Chief Justice K.B.N. Singh that he was not
personally to blame, but if he was by his passive inaction allowing
certain persons-and certain persons in this context must mean his
close relatives-to take advantage of their· proximity 10 him and he
was being transferred on that account, it would certainly be a trans-
fer for a reason related to his conduct or behaviour. But quite apart B
from that, I find that this is not the reason which weighed with the
Central Government in making the order of transfer against Chief
Justice K.E .N. Singh. The Central Government stated in a note
handed over by the learned Solicitor General to the Court that the
reason why the Central Government made the order of transter was;
"(!) it was felt that not agreeing to these transfers may be construed c
as though the Government is departing from the view of having
Chief Justices from outside : (2) the policy aspect could still be
pres~ed mto service later," This reason which prevailed with the
Central Goverment was totally different from the reason which
induced the Chief Justice of India to make his proposal for transfer
and there is nothing to show that this reason which weighed with the n
Government of India was co11111unicated to the Chief Justice
of India for his opinion. There was therefore clearly no full
and effective consultation even in regard to this aspect. More-
over this reason given by the Central Government for making the
order of transfer clearly shows that the Central Governmeflt did not
apply its mind to the question whether on the facts, it was necessary E
or expedieflt to transfer Chief Justice K B.N. Singh. but accepted the
recommendation of the Chief of India, because it tluught that if
the recommendation of the Chief Justice of India was accept-
ed and the transfers of Chief Justice M.M. Ismail and Ch·ef Justice
K.B.N. Singh were made, it would be easier for the Central Govern-
ment thereafter to press for acceptance of the government policy by F
the Chief Justice of India. There was in my opinion, clearly abdi-
cation of its constitutional function by the Central Government.
The order of traflsfer of Chief Justice K.B.N. Singh to the Madras
High Court must therefore be held to be unconstitutional and void.
I would, therefore, allow the second group of writ petitions G
in SJ far as they challenge the constitutional validity of the order
transferring Chief Justice K.B.N. Singh and issue 'l writ declaring
the order of transfer of Chief Justice K.B.N. Singh as unconstitu-
tional and void.
There will be no order as to costs in both the groups of
writ petitions. There will also be no order on the special leave
petition.
686 SUPREME COURT REPORTS ( 1982) 2 S.C.R.

A GUPTA, J. This batch of writ petitions raises broadly two
is mes :

(i) whether on the expiry of the term of office of an
additional Judge of a High Court it is permissible to
B drop him by not giving him another term though the
volume of work pending in the High Cotirt requires the
services of another Judge; and

(ii) in what circumstances a Judge of a High Court can be
c transferred to another High Court.

A number of other matters connected with these questions, directly
or remotely, were discussed at length at the hearing of the petitions.
As I happen to agree with the conclusions reached by one or another
D of my learned brethren on the different questions that arise for
decision, I shall deal with only some aspects of the controversy. It is
necessary at the outset to state two propositions on which there is
no controversy: one is that the independence of the judiciary is a
cardinal principle of ollr Constitlltion, and the other is that an
additional· Judge of a High Court is not appointed on probation.
E The first proposition needs a little elaboration. Independence of the
judiciary does not mean freedom of the Judges to act arbitrarily, it
means that the Judges must have freedom in discharging their
judicial functions. In order to maintain the independence of the
judiciary it has to be protected against interference, direct or
indirect; it also follows that the constitutional provisions should not
F be construed in a manner that wotild tend to undermine this
independence.

The first of the two questions set out above arises on the
decision of the Union of India not to extend the tenure of Shri
G S.N. Kumar, an Additional Judge of the Delhi High Court, on the
expiry of his initial term of office. Shri Kumar was appointed
an Additional Judge of the )Delhi High Court for a period of two
years. He assumed the charge of his office on March 7, 1979. On
February 19, l 931, a few days before Shri Kumar's term of office
H was to expire, the~Chief fo>tice of the Delhi High Court wrote to the
S.P. GUPTA v. UNION (Gupta, J.) 687

Union Law \.1inister saving th1t it was his "very painful duty not A
to recommend an extension for Justice Kumar" as he had been
receiving "persistent" and "serious complaints" against Shri Kumar.
The Chief Justice of India to whom a copy of this letter was sent
wanted to look carefully into the charges against Shri Kumar and
accordingly advised extension of his term by a period of six months.
Ultimately on the recommendation of the Law Minister Shri Kumar's
B
tenure as Additional Judge of the Delhi High Court was
extended by three months commencing from March 7, 1981; at the
end of this period the Chief Justice of India took a different view
from the Chief Justice of the High Court and in a letter to the Law
Minister written on May 22, 1981 he said that he had "made in den d-
ent enquiries in regard to Justice Kumar's integrity" and that "Not
c
one member of the Bar or of the Bench doubted the integrity o
Justice Kumar" and that "On the other hand, several of them stated
that he is a man of unquestioned integrity". However, in a note
recorded on the relevant file on May 27, 1981 the Law Minister said
'·In the matter of assessment of integrity, I prefer that the views of
D
C.J. Delhi be given -credence" and recommended that "Shri Justice
S.N. Kumar may not be continued any further as Additional Judge
of the Delhi High Court after the expiry of the present tenure on
7-6-1981 ". Shri Kumar's tenure of office as an Additional Judge
thus ended. In the aforesaid letter dated February 19, 1981 written by
the Chief Justice of the Delhi High Court to the Law Minister, the E
Chief Justice had also said: "Normally, extension of the tenure of
an Additional Judge is recommended keeping in view the pendency
in Court. The pendency in this Court still justifies the appointment
of Additional Judges".

In my opinion the decision not to extend Shri Kumar's term F
of office as an Additional Judge was invalid and unconstitutional on
several grounds. The first ground is that when the question before
the concerned authorities was whether the term of an Additional

- Judge should be extended and the volume of work pending in
the High Court admittedly required the services of another Judge,
it was not permissible to refuse extension on the basis of uncon-
firmed reports. The scheme of the constitutional provisions
does not warrant such a course of -action. Under article 217 (1)
G

of the Constitution the President, before he appoints a person
as a Judge of a High Court, whether permanent or additional,
has to consult these functionaries: the Chief Justice of India, H
the Governor of the State and, in the case of appointment
of a Judge other than the Chief Justice, the Chief Justice of the
688 SUPREME COURT REPORTS [ J982] 2 s.C.R..

A High Court. A permanent Judge holds office until! he attains the
age of 62 years. The tenure of an Additional Judge, article 217( l)
says, is as provided in article 224. Article 224(1) provides that the
President may appoint duly qualified persons to be Additional Judges
if it appears to him that "by reason of any temporary increase in
the business of a High Court or by reason of arrears of work th~rein''
B the number of the Judges of the court "should be for the time being
increased" and that the appointment of Additional Judges shall be
for a period not exceeding two years. It is thus clear that the
appointment of an Additional Judge depends on the volume of work
pending in thourt.ec The maximum period of two ye 1rs was fixed
presumably to introducE a mesure of uniformity and to serve as a
check on the number of such appointments because the appointment
of Additional Judges was apparently considered as an exceptional
measure to meet a particular situation when article 224 in its present
form was introduced in the Constitution in 1956. As things stand
at present, however, this seems to have become a regular feature
as would appear from the chart supplied dur ing the hearing of
D these petitions showing the number of permanent and Additional
Judge in the different High Courts. There can be no dispute how-
ever that the continuance of an Additional Judge in office is condi-
tional upon the continued existence of arrears in a High Court.
Except that the tenure of an Additional Judge is limited depending
on the arrears of work or the temporary increase in the business
E
of a High Court, the position and powers of an Additional Judge
and a permanent Judge are the same. Qualifications required of a
person for appointment as a Judge of a High Court as stated in
article 217 (2) are the same for both. Article 221 (1) read with the
Second Schedule which provides for the salaries payable to the
·F Judges of the High Court makes no distinction between an Addi-
tion~! and a permanent Judge. Clauses (4) and (5) of article 124
provide the procedure for the removal of a Judge of the Supreme
Court from his office and article 218 makes these provisions applica-
ble in relation to the Judges of a High Court. Here also there is no
special provision for Additional Judges; it cannot be suggested that
G an Additional Judge of a High Court cannot be removed from
office. The oath of office which a Judge has to take before assuming
office is also the same for both.
I have already referred to the provisions of article 217 (I}
which provides that the President must consult the Chief Justice of
H India, the Governor of the State, and the Chief Justice of the High
Court concerned before appointing a person as a Judge of a High
S.P. GUPTA v. UNION (Gupta, J.) 689

Court, whether permanent or additional. Naturally, the fitness of A
a person to be appointed a Judge has to be considered by the three
functionaries and this fitness test is applicable to both permanent
and additional Judges. Fitness must include both capacity and
integrity. It is admitted in the affidavit sworn on July 22, 1981 by
Shri K.C. Kankan, Deputy Secretary in the Department of Justice,
Ministy of Law, Justice and Company Affairs, and filed on behalf of B
the Union of India that an Additional Judge is not a Judge on pro-
bation. To say that an Additional Judge is not on probation means
that his appointment is not a tentative appointment, it is not for
trying out if he is fit to be a permanent Judge. An Additional
Judge is appointed for a certain period to cope with the temporary
increase and the pending arrears of work in a High Court. There- c
fore, if the volume of work still pending in the High Court justifies
the appointment of an Addittonal Judge, when the term of an
Additional Judge is about to expire, there seems to be no reason
why the Judge should not be appointed for another term. Shri
Kankan's affidavit however adds: It is denied that the appointments
of Additional Judges should always be for a period of 2 years unless D
the amount of business or arrears of work do not warrant the
appointment for that period. It is submitted that the 2-year period
is the ceiling mentioned in Article 224 and that the President is com-
petent to appoint all or any Additional Judges for any shorter period
as he may consider justified." This claim of absolute power for the
government is not acceptable. The argument is that article 224 only E
fixes an outer limit of time, and the President is therefore free to
appoint Additional Judges for varying periods of time not exceeding
2 years-for three months or six months-as he pleases with
out reference to the volume of work pending in the High
Court. Such a claim is untenable on the language of article 224
and militates against the conception of independence of the judiciary. F
The independence of the judiciary depends to a great extent on the
security of tenure of the Judges. If the Judge's tenure is uncertain
or precarious, it will be difficult for him to perform the duties of
his office without fear or favour. On a proper reading of article
224 (I) it must be held that the tenure of an Additional Judge is not
uncertahi. or precarious but it is conditional on the existence of G
arrears in the High Court which is an objective condition of fact.
It was pointed out on behalf of the petitioners that the practice has
always been to appoint an Additional Judge for a further period on
the expiry of his previous term if the pending work in the High Court
required the services of an Additional Judge and to appoint tke H
690 SUPRBME COURT REPORTS (1982] 2 S.C.R.

A seniormost among the Additional Judges as a permanent Judge when
a vacancy was available. The existence of such practice could not
be denied. However, as an Additional Judge has to be appointed
again on the expiry of his intial term, article 217 ( 1) is attracted.
The fitness of the Judge had been considered at the time of his initial
appointment; what then should be the scope of consultation when
B
the appointment of an Additional Judge for another term is con-
templated ? In my opinion it reasonably follows that in such a
case the scope is limited to an enquiry as to the volume of work
pending in the High Court and the time likely to be required to
dispose of the arrears. If his initial appointment was not on proba-
c tion, the Judge's capacity and integrity cannot come within the scope
of the conrnltation necessary under article 217 (I) for giving him
another term on the expiry of his previous term of office.

A question then arises, whether the Judge should be appointed
for another term if these are complaints against him regarding his
D integrity. If the complaints are serious and are from a responsible
source, they cannot certainly be ignored. But, as pointed out by
Mr. Seervai appearing for the petitioners in Transfer Case No. 22
of 1981 which is writ petition No. 527 of 1981 filed in the Bombay
High Court that the allegations cannot be presumed or assumed to
be true and have to be proved. In his letter written to the Law
E Minister on Feburary 19, 1981 the Chief Justice of the Delhi High
Court while stating that it was his "very painful duty not to recom-
mend an extension for Justice Kumar", added that he had "no
investigating agency to conclusively find out whether the complaints
are genuine or not." That being so. the only reasonable course
open, which does not undermine the independence of the judiciary,
was to appoint the Judge for another term having a rational nexus
with the volume of arrears pending in the High Court and then pro-
ceed with an enquiry into the allegations and remove the Judge if
the. allegations were found true, in accordance with the procedure
laid down in clauses (4) and (5) of article 124 read with article 218.
J do not think the language of article 224 (l) permits short term
G extensions of the tenure of an Additional Judge to enable the autho-
rities to complete i!lvestigation into the allegations against him.
That being so there seems to be no possible alternative to what has
been suggested above as the proper course to follow. In the case
of Shri Kumar, admittedly there has been no real investigation into
H the complaints against him Possibly conscious of this position
s.P. GUPTA v. UNION (Gupta, J.) 691

the Chief Justice of the Delhi High Court in a letter to the Law A
Minister written on May 7, 1981 said "To my mind, the reputativn
of integrity is iust as important as a person actually being above·
board '. This statement should then apply to both additional and
permanent Judges, but a permanent Judge cannot be removed from
office on the ground that his reputation is bad. From loag prac·
tice mentioned earlier, an additional Judge has a legitimate eoec- B
tancy, if not a not a right, to be appointed for another term if the
pending business in the High Court requires the service~ of an
.... Additional Judge, or as a permananent Judge, when a vacancy is
available, if he is the seniormost of the Additional Judges. Refusing
to appoint him again when the conditions required an appointment
to be made means in substance his removal. To remove a perma· c
nent Judge the prescribed procedure must be followed and the allega-
tions against him proved; dropping an Additional Judge at the end
of his initial term of office on the ground that there are allegations
against him without properly ascertaining the truth of the allegations
may be expedient but it is destructive of the independence of the
judiciary. This would be an easy way for the executive to get rid of D
an inconvenient Judge. Taking into consideration all these aspects
I am of the view that the scope of consultation contemplated in
article 217 {I), when the question is whether an Additional Judge
should be given another term, is limited to the enquiry whether the
volume of work pending in the High Court requires his re-
appointment. E

.~· -~,.·· Assuming that the scope of consultation under article 217 (I)
is the same for the initial appointment of an Additional Judge and
also for his appointment for another term, it seems to me that there
has been no proper consultation in the case of Shri Kumar. In Union
of India v. Sankal Chand Himatlal Sheth & Anr.(1) Chandrachud J,
explained what consultation means within the meaning of article
222 (!)which provides that the President may, after consultation
'
with the Chief Justice of India, transfer a Judge from one High Court
to another High Court. What is said in that case should apply also
to 'consultation' for the purpose of article 217 (I). It is observed in
Sheth' s case : " .. ·there can be no purposeful consideration of a
G
matter, in the absence of facts and circumstances on the basis of
which alone the nature of the problem involved can be appreciated
and the right decision taken. It must, therefore, follow that while

(I) [J 978] 1 SCR 423. H
692 SUPREME COURT REPORTS [J982J 2 S.C.R.

A consulting the Chief Justice the President must make the relevant
data available to him on the basis of which he can offer to the Presi-
dent the benefit of his considered opinion. If the facts necessary to
arrive at a proper conclusion are not made available to the Chief
Justice, he must ask for them because, in casting on the President the
obligation to consult the Chief Justice, the Constitution at the same
B time must b; taken to have imposed a duty on the Chief Justice to
express his opinion on nothing less than a full consideration of the
matter on which he is entitled to be consulted. The fulfilment by .,
the President of his constitutional obligation to place full facts before '
the Chief Justice and the performance by the latter of the duty to
elicit facts which are necessary to arrive at a proper conclusion are
c parts of the same process and are complementary to each other.
The faithful observance of these may well earn a handsome dividend
useful to the administration of justice. Consultation within the
meaning of article 222 (1), therefore, means full and effective, not
formal or unproductive, consultation."

D From the facts appearing from the correspondence that passed
between the Chief Justice of India and the Chief Justice of the High
Court, the Chief Justice of the High Court and the Law Minister,
and between the Chief Justic~ of [ndia and the Law Minister, it
would appear clearly that there has been no complete and effective -l
consultation on the question whether Shri Kumar's term as an
E Additional Judge of the Delhi High Court should be extended. It
will b~ convenient for a proper appreciation of the matter to set out
chronologically the gist on the letters that passed between the
constitutional functionaries in Shri Kumar's case and certain other
facts :
F
19.2.1981 The Chief Justice of the Delhi High Court w:rote to
the Union Law Minister that it was his "very painful
duty not Ito reommend an extension for Justice
Kumar" because there had been "serious complaints
against Mr. Justice S.N. Kumar, both oral and in
writing. These complaints have been received by me
G
direct as well as through you. I have examined these
complaints and find that some of the complaints are
not without basis. Responsible members of the Bar
and some of .my colleagues, whom I would rather
H not name, have also complained about Mr. Justice
Kumar. I have no investigating agency to 1;onclu-
sively find out whether the complaints are genuine
S.P. GUPTA V. UNI01' (Gupta, J.) 693

or not. All the same the complaints have been
persistent." It was added that" Mr. Justice Kumar
has also not been very helpful in disposing of cases.
Some responsible members of the Bar and some of
my colleagues have also expressed doubts about
Justice Kumar's integrity." The Chief Justice pre-
faced his statement about the complaints against n
Justice Kumar by saying: "Normally, extension of
tenure of an Additional Judge is recommended keep-
ing in view the pendency in Court. The pendency
in this Court still justifies the appointment of Addi-
tional Judges." The point to note in this letter is
that it does not mention the facts constituting the
c
basis of the complaints against Shri Kumar

3.3.1981 A copy of this ktter was sent to the Chief Justice of
India and on March 3, 198 J the Chief Justice of
India recorded this note on the relevant file: "I would D
like to look carefully into the charges against Shri
S.N. Kumar. The letter of the Delhi Chief Justice
dated February 19, 1981 seems to me too vague to
accept that Shri Kumar lacks integrity." The Chief
Justice of India recommended extension of Shri
Kumar's term of office by six months. The term of E
office of Shri Kumar was to expire on March 7,
I 98 I.

19.3.1981 The Law Minister in his letter to the Chief Justice
of the High Court referred to the observations of the
Chief Justice of India that the charges against Shri F
Kumar appeared to be "too vague" and asked for
•·further comments" from the Chief Justice of the
High Court "on the question of continuance or
otherwise of Shri Justice S.N. Kumar.~'

26.3.1981 The Chief Justice of the High Court and the Chief
G
Justice of India had a discussion over Shri Kumar's
case.

28.3.J 98 I The Chief Justice of the High 'Court wrote to the
Law Minister saying that he had had "an opportunity H
to discuss entire matter in detail with the Chief
694 SUPREME COURT REPORTS IJ982) 2 S.C.R
A
Justice of India" and that after the discussion he
had also addressed a letter to the Chief Justice of
India. The Chief Justice ended the letter by saying:
"Perhaps you will consider this to be sufficient
'comments• on my part as desired by you in your
B letter under reply [letter dated 19.3.1981] about the
observations of the Chief Justice of India which you
-have quoted in your letter."

The letter that the Chief Justice wrote to the
Chief Justice of India on the same day refers to the
c three points mentioned in his letter dated 19.2.1981
addressed to the Law Minister repeating that he had
"no investigating agency to conclusively find out
whether the complaints are genuine or not." The
letter ends as follows: "With regard to the complaints
about Justice Kumar's integrity and general conduct,
D tbe matter has already been discussed between us.
About Justice Kumar not being very helpful in
disposing of cases, I enclose a statement of disposal
by Justice Kumar in 1980."

15.4.1981 The Law Minister wrote to the Chie Justice of the
E High Court in reply to the letter dated March 28,
1981. Among other things, the Law Minister in this
letter said: "It is true that you have no investigating
agency to conclusively establish the truth of com-
plaints. Nevertheless, you must have had some
material which provided the basis on which you
F concluded that Justice Kumar's repu1ation for integ-
rity was not above board .. In view of tbe observa-
tions of Chief Justice of India asking for concrete )(
material, it would be necessary for us to have it with
your comments."

G 7.5.1981 In answer to the Law Minister's letter of 15.4.1981
the Chief Justice of the High Court wrote back say-
ing that in regard tJ the allegations against Shri
Kumar, he had discussed the matter with the Chief
Justice of India and had also written to him.
H "Accordingly," the Chief Justice wrote, "it is not
only embarrassing but painful for me to write this
S.P. GUPTA v. UNION (Gupta, J) 695

Jetter. As you, however, desire to know what
A
material provided the basis for me to conclude that
Justice Kumar's integrity was not above board, I
give below some facts " The facts which the Chief
Justice mentioned in the letter are :
B
(i) In the first half of 1980 when he was not the
Chief Justice "chance remarks" came to his

-
knowledge about Shri Kumar's "conduct in
Court as well as about his integrity" when
Justice Kumar was doing mostly original side
works sitting singly and that in early May of the c
same year one of his colleagues had told me that
he had "information with him to the effect that
if a substantial amount was paid to Justice
Kumar, suits brought by a particular party
against an insurance company would be decided
in favour of that party." D
(ii) As Acting Chief Justice he constituted the
Benches for the second half of 1980 putting
Justice Kumar in a Division Bench on the Appe-
llate Side which he thought "was a safe way to
finish the rumours if the same were incorrect and E
thus safeguard the reputation of a Judge."
However "Justice Kumar did not release the
original suits, regarding which allegations had
been made, from his board". The particulars
of the suits and the names of the parties were
mentioned in the letter. F

(iii) In August 1980 the same colleague of his who
had talked to him earlier regarding Shti Kumar's
integrity and another colleague mentione'1 that
"doubts were being expressed about the integrity
G
of Justice Kumar vis-a-vis the aforesaid cases
and some others." He made discreet inquiries
from some of the leading counsel and they in strict
confidence supported the allegations. Looking
into the matter more carefully he found that "it H
was not only the three suits mentioned above but
696 SUPREME:COURT REPORTS [1982] 2 s.c.R.

A that there were other Single Bench matters also
which had been retained by Justice Kumar on
his board despite being put in the Division
Bench .. .ln some of these the parties involved
were rich and influential including some former
princes."
B
The Chief Justice added that these "unconfirmed reports" made
him "conclude that the reputation for integrity of Justice Kumar
was not what should be for a Judge of the High Court. To my mind,
reputation of integrity is just as important as a person actually
being above board " The Chief Justice also mentioned certain
c figures to show the rate of dis ?osal of cases by the Division Bench
of which Justice Kumar was a member.

It seems from what the Chief Justice of the High Court said
in his letter of May 7, 1981 that he had not recommended extension
D of Justice Kumar's term not really because he found the reports
against Shri Kumar were true-he has admittedly no "investigating
machinery" - but because he thought that reputation of integrity is
as importnant as a man being actually above board. I have already
said that this is a view which will undermine the independence of
the judiciary.
E
The letter of May 7, 1981 written by the Chief Jusctice of the
Delhi High Court to the Law Minister was marked "SECRET (For
Personal Attention Only):' It appears from a subsequent letter
addressed by the Law Minister to the Chief Justice of the High
Court on May 29, 1981 that a few days after the letter of May 7,
F was written, the Chief Justice of the High Court had requested the
Law Minister to keep that letter a secret from the Chief Justice of
India. The letter of May 29 discloses that the Chief Justice of the
High Court mentioned three reasons for not disclosing the letter to
the Chief Justice of India. The reasons as appearing from the Law
Minister's letter are as follows :
G
"1. .. the reasons stated in the opening portion of your
letter dated 7th May, 1981."
•
Probably the reference is to the following lines of the 7th May
H Jetter written by the Chief Justice the High Court :
S.P. GUPTA v. UNION (Gupta, J.) 697

I. Hon'ble the Chief Justice of India had made certain A
observations with regard to my recommendation about
Mr. Justice S.N. Kumar and the same were communi-
cated to me by you for my comments .in your D.0. No.
50/2/81-Jus .. dated 19th March, 1981. The Chief Justice
had also written to me a letter dated 14th March, 1981
asking for "details and concrete facts in regard to the B
allegations against Justice Kumar." As I wrote to yon in
my D.O. No. 293-HCJ/PPS, dated 28th March, 1981, I
discussed the matter with Hon'ble the Chief Justice and
as desired by him, in reply to his letter, wrote my D.O.
No. 292-HCJ/PPS, dated March 28, 1981, a copy of
which was forwarded to you. Accordingly, it is not only c
embarrassing but painful for me to write this letter.
As you, however. desire to know what material provid-
ed the basis for me to conclude that Justice Kumar's
integrity was not above board, I give below some facts."'
D
2. You felt highly embarrassed as the contents of your
letter dated 19th February, 1981 about Shri Kumar
came clearly to be known to Shri S.N. Kumar and
some of his colleagues on the Bench. You felt that the
contents of your letter dated 7th May, 1981 might
also get known to them and cause you further embar- E
rassment.

3. You felt that the Chief Justice of India had alredy
started wrongfully denigrating you for your letter of
February 19, 1981."
F
The letter of May 29 concludes by saying that in view of the fact
that the Chief Justice of the High Court was keen on keeping the
letter "confidential from t)le Chief Justice of India", the letter was
not shown to him. Whether the reasons for not disclosing the letter
of May 7 to the Chief Justice of India were valid or not, it is clear G
that the Chief Justice of India was not apprised of the particulars
contained in the letter of May 7 concerning Justice Kumar's intt··
.grity. It was argued on behalf of the Union of India and the Law
Minister that it must be presumed that all the details were placed
before the •Chief Justice of India because the Chief Justice of the H
High Court in his letter dated March 28, 1981 addressed to the Law
Minister had stated that he "had an opportunity to discuss tbr
698 SUPREME COURT REPORT (1982] 2 S.C.R.

A entire matter in detail with the Chief Justice of India" and that in
another letter written on the same day to the Chief Justice of India
he had said:

"With regard to the complaints about Justice Kumar's
integrity and general conduct, the matter has already been
B discussed between us."

That this presumption is wrong would appear from the following .,,
facts. On May 21, 1981 the Law Minister had written a letter to
the Chief Justice of India when he was in Simla. Paragraphs 3, 5
c and 6 of this letter read as f Jllows :-

"3. In regard to complaints regarding Justice Kumar's
integrity and general conduct, the Chief Justice of the
High Court discussed the matter with you as mentioned
in his D.O. letter No. 292-HCJ, dated 28th March,
1981, to you, a copy of which he had sent to me. In
D
that letter he had also mentioned the disposals of
Justice Kumar.

4. x x x

E 5. You will please see that in your advice dated 3rd March,
1981 you desired to look carefully into the charges
against Shri S.N. Kumar. In terms thereof if you
were pleased to make any inquiries, I shall be grateful
to have the details.

F 6. I would be grateful for your urgent advice in regard
to the continuance or otherwise of the terms of Justice
S.N. Kumar. .. "

There is no reference here to the letter of May 7 from the Chief
Justice of the High Court. The Chief Justice of India replied to this
letter next day, May, 22, 1981 from Simla. The relevant portions of
G
the; letter are as follows :-

"Shri Prakash Narain, Chief Justice of the Delhi High
Court, had written a letter dated February 19, 1981 to you,
a~copy of which was sent to me. The Chief Justice had

H recommended in that letter that Justice Kumar's appoint-
ment should not be extended further for three reasons :
S.P. GUPTA v. UNION (Gupta, J.) 699

(1) that serious complaints were received against Justice A
Kumar orally as well as in writing ; (2) that Justice Kumar
was not very helpful in disposing of cases ; and (3) that
some responsible members of the Bar and Bench had
expressed doubts about Justice Kumar's integrity. By my
letter dated March I 4, 1981 to the Delhi Chief Justice I
requsted him to furnish further details and concrete facts B
.,. in regard to the allegations against Justice Kumar since the
result of the enquiries made by me was quice at variance
with what the Chief Justice had stated in his Jetter of
March 19.

The Chief Justice met me on March 26, 1981 when he c
told me that Justice Kumar v;as very slow in his disposals
and that he doubted his integrity because even after Justice
Kumar's allocation was changed from the original side to
the appellate side, he still continued to hear the part-heard
cases on the original side The Chief Justice did not
mention any thing adverse in regard to Justice Kumar's D
political leanings or affiliations. By my request the Chief
Justice promised to send a statement showing the disposals
\ of Justice Kumar.

I have made the most careful and extensive enquiries E
in regard to both of these matters and I am satisfied that
there is no substance in any one of them. I have with me a
detailed statement of the disposals of Justice Kumar from
which it would appear that no charge can be made against
him that he is slow in his disposals.
F
As regards the complaint of the Chief Justice that Jus-
tice Kumar's integrtiy was doubtful since he continued to
take old part-heard matters even after the allocation of his
.... work was changed, I have made enquiries not only from
members of the Bar but from the sitting Judges of the
Delhi High Court which show that is it a common practice G
in the Delhi High Court that even after the allocation of a
Judge is changed from the original side to the appellate side
and vice-versa, be continues to take up part-heard cases on
which a subtantial amount of time has been already spent.
Justice Kumar therefore did nothing out of the way or un- 8'
?CO SUPRFME COURT REPORTS I I 982) 2 s.c:.&
A'. usual in taking up part-beard cases after the allocation of
his work was changed.

I find it therefore difficult to agree that Justice Kumar's
term should not be extended for the reasons by the Chief
B Justice of the Delhi High Court. I disagree with the learned
Chief Justice, on enquiries made by me, that Justice Kumar
is either slow in his disposals or that his integrity is doubt-
ful.

I must mention that I also made independent enqumes
c in regard to Justice Kumar's integrity generally and apart
from the reason for which the learned Chief Justice thought
that Justice Kumar lacked integrity. Not one member of
the Bar or of the Bench doubted the integrity of Justice
Kumar. On the other hand, several of them stated that
be is a man of unquestioned integrity."
D
However. on May 27, 1981 the Law Minister recorded a note in the
relevant file recommending that "Shri Justice S.N. Kumar may not
be continued any further as Additional Judge of the Delhi High j
Court after the expiry of the present tenure on 7-6-1981." It appears
E from this note that in making this recommendation, the Law Minister
confined himself only to Shri Kumar's reputation. The portion of
the note relevant for the present purpose reads :

"C.J.I does mention that C.J. Delhi met him on
26.3.J 981. He also refers about the common practice in the
F Delhi High Court that even after the allocation of a Judge
is changed from the original side to the appellate side and
vice-versa, he continues to take up part-heard cases on
which a substantial amount of time has been already spent.
I presume that when C.J. Delhi and the C.J. of the Supreme
Court met, the former must have informed the latter about
the details that he had mentioned to me in his letter dated
7-5-198 I. This presumption is raised on the basis of the
letters from the Chief Justice, Delhi... The C.J. I. in his
advice proceeds from the premises that taking up part-heard
cases after the allocation of work is changed does not
B
amount to lacking in integrity. If it were that simple I
S.P. GUPTA v. UNION (Gupta, J.) 701

would not have joined issue, but the details furni;hed by A
the C.J. Delhi in his letter dated 7.5.1981 go farther.

x x x
Jn the matter 0f assessrnen t of integrity, I prefer that B
the views of C.J. Dell1i be given credence as it is in his
association that the Judge concerned discharges his duties
and that he has a better occasion and opportunity to watch
his working and conduct. The correspondence from the
C.J. of Delhi addressed to me furnishes clear details which
cannot easily be brushed aside." c
Taking the last paragraph of the note first, I find it difficult to
see how, because the Chief Justice of the High Court had a "better
occasion and opprtunity" to watch "his [Justice Kumar's] working
and conduct", he was in a better position to come to a correct
conclusion as to the Judge"s integrity, if all the facts concerning the
matter were also placed bef0re the Chief Justice of India; it is not
like watching the demeanour of a witness to test his credibility. As
regards the statement that the letter from the Chief Justice of the
High Court furnished "clear details which cannot easily be brushed
aside", the details are only particulars of certain suits that Justice
Kumar had dealt with, but it is difficult to follow what is sought to E
be conveyed by saying that these cannot "easily be brushed aside".
Mere details of the suits can indicate nothing regarding Justice
Kumar's integrity. If however by 'details' the unconfirmed reports
against Justice Kumar were also sought to be included, no reasonable
person could accept them as true without proof. As regards the
earlier portion of the note quoted above, the presumption the Chief
Justice of the High Court must have informed the Chief Justice of
Jndia about the details that the former had mentioned in his letter
dated May, 7, 1981 addressed to the Law Minister does not appear
to have any basis. It is true the Chief Justice of the High Court in
his two letters dated March 28, 1981 written respectively to the Law G
Minister and the Chief Justice of India had said that the "entire
matter" concerning Justice Kumar's integrity had been discussed
between him and the Chief Justice of India but it would be wrong
to assume, though the Chief Justice of the High Court spoke of the
"entire matter", that the particulars of the suits and the allegations B
a~ainst Justice Kumar concerning them were placed before the Chief
Justice of India. What was discussed between the two would appear
702 SUPREME COURT REPORTS [1982] 2 s.c.R.

A very clearly from the letter addressed by the Chief Justice of India
to the Law Minister on May 22, 1981. I have quoted above relevant
extracts from this letter. It is plain from this Jetter that when the
Chief Justice of the High Court met the Chief Justice of India on
March 26, 1981 the only thing that he disclosed was the alleged
impropriety of Justice Kumar's conduct that "even after Justice
B Kumar's allocation was changed from the original side to the appel-
late side, be still continued to bear the part-heard cases on the
original side" and that "be continued to take old part-heard matters
even after the allocation of bis work was changed". There
is no mention of the other allegations against Justice Kumar
concerning these part-heard matters. It is impossible to
think that if the details that the Chief Justice of the Delhi
High Court mentioned in his letter of May 7, 1981 addressed to the
Law Minister for his "personal attention only" were disclosed to the
Chief Justice of India he would not have referred to them in his letter
on May 22. It further appears from the affidavit of Shri Kumar,
D sworn on July 17, 1981, that the Chief Justice of the Delhi High
Court had not asked him any question or called for any explanation
or clarification from him regarding the allegations against him, but
the Chief Justice of India had a discussion with him only with
regard to the allegations that he was slow in his disposal and
that it was improper for him to continue to deal with the origi-
E nal side matters heard in part by him while sitting on the appel-
late side. It is also impossible to think that the Chief Justice of
India though apprised of the allegation of corruption against
Shri Kumar would not ask for his explanation on this serious charge
and discussed only the minor allegations against him.

F As part of the relevant material was withheld from the Chief
Justice of India it must be held that there was no full and effective
consultation as contemplated in article 217 ( 1) and this vitiates the
decision not to extend Shri Kumar's term of office as an Additional •
Judge of the Delhi High Court though the volume of pending work
G that High Court required the services of another Judge.

In any event, even assuming that the Chief Justice of the
Delhi High Court had informed the Chief Justice 0f India of the
.allegation of corruption against Shri Kumar, it is clear that it was
not disclosed to Shri Kumar and he was not given an opportunity --.I
H to explain the charge against him. Assuming again that Shri Kumar
had no legal right to have his term extended, he had at least
S.P. GUPTA v. UNION (Gupta, J.) 703

a legitimate expectation that his tenure as an Additional Judge A
+ would continue following the usual practice, and it appears from
the Jetter of the Chief Justice of the Delhi Court written to the Law
Minister on Feburary 19, 1981 that but for the allegations against
him, Shri Kumar would have got an extension of his tenure as an
Additional Judge in view of the arrears of work in the Delhi
High Court. Consistent with the principles of natural Justice B
Shri Kumar who had undoubtedly suffered an injury by his term of
'"' office not being extended should have been given an opportunity to
explain the charge of corruption against him. The principles of
natural justice apply even to a person who has no legal right. (See
In re H.K. (An Infant); [1967] 2 O.B. 617). The decision against
Shri Kumar cannot be sustained on this ground as well.
c

As stated above, in reachillg the decision not be extend
Shri Kumar's tenure of office, the Law Minister preferred the opinion
of the Chief Justice of the Delhi High Court to that of the Chief
Justice of India on the view that the Chief Justice of thfl High Court D
had "better occasion and opportunity" to watch his working and
conduct. As I have already said, this is a view which has no valid
basis. Under article 217 (1) tlie President, before appointing a
\ person as a Judge of a High Court has to consult three functiona-
ries, the Chief Justice of India, the Governor of the State and the
,Chief Justice of the High Court; for the appointment of the Chief E
Justice of the High Court, the President has to consult the Chief
Justice of India and the Governor of the State. The controversy is
over the question whether the opinion of the Chief Justice of India
should have primacy or the three functionaries must be regarded as
coordinate authorities for the purpose of article 217 (I) and ,fthe
President was free to accept the opinion of any of them. Assuming
F
however they are coordinate authorities in the sense that each of
them must be consulted, the scope of consultation is not the same
so far as the Governor is concerned. He is certainly not in a posi-
--,. tion to give any opinion on the legal acumen of the persons pro-
posed to be appointed. His opinion is relevant on matters on
which the Chief Justice of the High Court or the Chief
G
Justice of India are not expected to have any information. The
question however remains, whose opinion should the President
accept if the Chief Justice of the High Court and the Chief Justice
of India differ ? Normally, the Chief Justice of the High Court is H
likely to know more about a lawyer practising in that court whose
name is proposed for appointment but where the question is whether
704 SUPREME COURT REPORTS (1982) 2 S.C.R.

A or not the tenure of an Additional Judge should be extended, if all
the relevant materials are before both, the Chief Justice of the High
Court and the Chief Justice of India, it is difficult to see how the
Chief Justice of the High Court is in a better position than
the Chief Jmtice of India to give a correct opinion. However, as
Krishna Iyer J., has 8aid in Shamsher Singh' s(1) case the Chief Justice
B of India the ''highest dignitary of Indian Justice". The President
has to consult him for the appointment of the Chief Justice of a
High Court. He is, what Mr. R.K. Garg appearing for Shri S.N.
Kumar in Transferred Case No. 20 of 1981 (which is writ petition
"'
'

No. 882 of 198 I filed in the Delhi High Court) described as the
Pater families of the Indian Judiciary. In my view the President
c should accept the opinion given by the Chief Justice of India in
such a case unless the opinion suffers from any obvious
infirmity; he cannot act as an umpire and choose between the two
opi1.1ions.

D For the reasons indicated above, the decision in Shri S N.
Kumar's case must be held invalid and the case should go back to
the President for a fresh decision after a full and effective consulta-..
ti on as contemplated in article 217 ( 1) of the constitution.
I
-i

The other main issue arising on these writ petitions relates to
E the transfer of Judges from one High Court to another High Court.
The question of transfer arises upon a letter addressed by the Law
Minister on March 18, 1931 to the Governor of Punjab and the
Chief Ministers of different States, except the North-eastern States,
stating that the Law Commission, States Re-organisation Commis~
sion and various Bar Associations had expressed the view that to fur-
F ther national integration and to combat narrow parochial tenden-
cies bred by caste, kinship and other local links and affiliations, one;
third of the Judges of a High Court should be from outside the
State in which that High Court is situated. The Law Minister in
this letter requested those to whom the letter was addressed to (a)
obtain from all the Additional Judges of the High Court in a State
G
their consent to be appointed as permanent Judges in any other
High Court in the country and (b) also to obtain similar consent
from those persons who have been or in the future were likely to be
proposed for appointment as Judges. The letter also carried a
H
(I) [1975] I SCR 81<4.
s.P. GUPTA v. UNION (Gupta, J.) 705

request to obtain from the Additional Judges· and the pro-
posed appointees names of three High Courts in order of
preference to which they would like to be appointed as Judges or
permanent Judges as the case may be. It was however added that
it should be made clear to them that the furnishing of the conse11t or
the indication of a preference does not imply any commitment on
the part of the Government either in regard to their ap;nintm~nt or B
in regard to accommodation in accordance with the prefere:1ces
given. The letter says that the written consent and preferences of
the Additional Judges and the persons recommended for initial
appointment should be sent to the Law Minister within a fortnight
of the receipt of the letter.
c
The question of transfer also arises in Transferred Case
No. 2/81 which is writ petition No. 390 of 1981 filed in the Madras
High Court and in Transferred case No. 24 of 1981 which is Writ
Petition No. 2224 of 1981 in the Patna High Court. These petitions
relates to the transfer of the Chief Justice of the Patna High Court,
Shri K.B.N. Singh, to the Madras High Court. Article 222(1) says D
that the President may, after consultation with the Chief Justice of
India, transfer a Judge from one High Court to any other High
Court. It was argued that the letter seeking to obtain general
consent of the Additional Judges to their transfer to other High
Courts was only a device to circumvent article 222( I) reducing the
requirement of consultation with the Chief Justice of India to a E
formality. Clearly, the Constitution does not contemplate taking of
such general consent to transfer which might take place at some
future dates in respect of only some of the Judges. The letter has
thus no authority of law. This aspect has been dealt with in detail
in the Judgments of Tulzapurkar J , and Pathak J., which I have
bad the advantage of reading. I agree with them that the said letter
F
dated March 18, 1981 is of no c:insequcnce legally and cannot bind
or affect in any way those for whom it was intended.

This letter of March 18, 1981 sug~e>ts in defenc~ of the
proposed transfer of Judges that for furthering national integration
G
and combating narrow parochiul tendencies one-third of the Judges
of a High Court should be from outside the State in which that High
Court is situated. It has been held by a majority in Swkil C!1q•1d's
case that transfer of a Judge of a High Court to another High Court
r
is permissible only in public intere>t and not by way of punishment.
One reason stated in support of the policy of transfer in the letter
-0fMarch 18, 1981 is that it would Ci>mb1t narro.v p1ro:'1ia.l te1d-
706 SUPREME COURT REPORTS (1982) 2 S.C.R.

A dencies. However, the transfer of an individual Judge on the ground
that he is guilty of parochial tendencies would be a transfer by way
of punishment and as such not permissible. If the proposed
transfer is with a view not to allow parochial tendencies to grow,
then again the question will remain who among the Judges should
be transferred and to which High Courts. Also, whether the transfer
B of Judges from one High Court to another would really further
national integration may be open to debate. However, the validity of
the policy does not arise for decision on these writ petitions.
Apart from its validity, to what extent the policy is relevant in the
context of article 222(1) is a question. As held in Sankal Chand's
case mass transfers are not contemplated under article 222(1). The
c President may transfer a Judge from one High Court to another
only after consultation with the Chief Justice of India. The policy
may provide the President with a ground to suggest the transfer of
a Judge, but the. Chief Justice of India must consider in each case
whether [the proposed transfer is in public interest because, even
granting the validity of the policy, the question would remain who
D among the Judges should be transferred and to which High
Courts.

In Transferred Case No. 24 of 1981 which was writ petition
No. 2224 of 1981 in the Patna High Court in which Shri
K.B.N. Singh, Chief Justice of the Patna High Court has been
E transposed as a petitioner, and Transferred Case No. 2 of 1981
which was writ petition No. 390 of 1981 in the Madras High Court,
the validity of the Notification transferring Shri K. B. N. Singh
as Chief Justice of the Madras High Court is challenged.
The notification is challenged mainly on the ground that the
F order of transfer was bad as Shri K. B. N. Singh had not
consented to it, that there was no full and effective consultation
between the Central Government and the Chief Justice of India
before the order was made, and that the transfer was not in public
irJ:erest but was really by way of punishment. Tulzapurkar J. has
dealt with this aspect of the case in detail in his Judgment and I do
G not propose to go over the same ground as 1 agree with him for the
reasons given by him that the impugned order of transfer is valid
under article 222(1) of the Constitution.

I would however like to add that an order of transfer even if
H made for administrative reasons and in public interest is likely to
<>ause some injury to the Judge transferred, though that could not be
S.P. GUPTA v. UNION (Gupta, J) 707

valid ground for holding that the transfer is by way of punishment, A
it is the reason behind the order of transfer that should determine
its nature. It would be only fair not to let the Judge who is being
transferred face mJre difficultie~ than are absolutely necessary. If
the Judge is wholly unfamiliar with th~ language of the State to
which he is transferred, it is possible in some cases that it will affect
his efficiency. I would ask the Government to consider if it is B
·' possible to transfer Shri K.B. N. Singh to some High Court, consis-
tent with his position as a senior Chief Justice, where the language
difficulty will not be so actute.

Counsel for the Law \1inister questioned the locur standi of the
petitioners in these cases who are members of the legal profession. c
The question however seems to be academic because Shri S.N. Kumar
and Chief Justice K.B.N. Singh are parties respectively in Trai1sferred
Case No. 20 of 1981 and Transferred Case No. 24 of 1981; Shri
SN. Kumar, impleaded as respondent NJ. 5 in Transferred Case
No. 20 of 1981 has supported the p~titioners in challenging the
validity of the decision not to extend his term of office as an Addi- D
tional Judge of the Delhi High Court and Shri K.B.N. Singh trans-
posed as petitioner in Transferred case No. 24 of 1981 has challeng-
ed the notification transferring him to the Madras High Court.
Apart from the fact that they are both parties, for the reasons
given by Bhagwati J. and Tulzapurkar J. in their respective Judg-
ments I agree with them that the petitioners who are practising
E
advocates of different High Courts are competent to maintain the
petitions.

In the course of the hearing of these petitions we had made
two orders for the disclosure of certain documents. The reasons in
support of these orders will appear from the Judgment of Bb.agwati,
J. with which I agree.

The petitions shall be disposed of in accordance with the
conclusions reached on the various points arising for decision in
these petitions. G

H
708 SUPREME COURT REPORTS [J982] 2 S.C.R

A FnAL Au, J.

Transfi rred Case No. 22 of 1981 :

1 he petitioners, Advocates practising in the High Court of
Bcrr,bay, filed a writ petition No. 527/81 before the Bombay High
B Court challenging the constitutionaity of Exhibit 'A', a Circular said
to have been issued by the Union Law Minister on March 18, 1981
and addressed to the Governer of Punjab and Chief Ministers of
States (except the North Eastern States). The petitioners prayed
for several reliefs to which we shall refer hereafter. The wnt peti-
tion was transferred to this Court with the consent of parties by an
c order dated June 9, 1981.

The petitioners alleged that the Union Law Minister who was
respondent No. 1 in the original writ petition had issued a Circular
letter dated 18.3.1981 (hereafter referred to as the 'Circular') to the
Governor of Punjab and the Chief Ministers of States requesting
D
them to obtain the consent of Additional Judges of the High Courts
concerned to their transfer as permanent Judges of High Courts
other than those in which they were appointed as Addititional
Judges. We shall give details of this Circular when we deal with it.
The Circular was received by the Chief Justice of the Bombay High
E Court on 29 3. 81 and on 30.3.81 he addressed a letter to the
Addittonal Judges (respondents 3 to 12) and asked them to do the
needful. The said Circular seems to have created a serious up-
heaval in the rank and file of the lawyers of Bombay Bar resulting in
a special general meeting of the Advocates Association of Western
India on 3.4.81. It is alleged in the petition that the meeting was
F largely attended and a unanimous resolution was passed, inter alia,
condemning the Circular as being subversive of judicial indepen-
dence and demanding that the Government be directed to withdraw
the Circular. The furore on the Circular seems to have infiltrated
into the Bombay Bar Association which also held several meetings
and similar resolutions were passed. On 14.4. 81 a meeting of the
G Managing Committee of the Bombay incorporated Society passed
similar resolutions and also resolved that the President of the
Society should join as a petitioner, as a result of which the fourth
petitioner was added as one of the petitioners. As a mark of serious
protest against the Circular and the discourteous language in which
H the said document (circular) is alleged to have been expressed, the
legal practitioners practising in the High Court, city civil courts,
S.P. GUPTA v. UNION (Fazal Ali, J.) 709

Small Causes Courts and the police courts resolved not to attend
A
those collrn on 15.4.81. The petitioners further alleged that they
represented a large body of legal opinion of Bombay as also repre-
senting public interest in a free and independent judiciary whic'.1 wa>
the very bulwark of the democratic form of GJvern:mnt c nte n
plated by the Constituthn. In the writ petition, which has now been
transferred to this Court, the petitioners sought the followin~
~ reliefs:

"(a) that it may be declared that the said letter, Exhibit
"A" to the petition, is ultra vires and void ;

(b) that it may be declared that the consent if any conse·
c
quent on or arising from the said letter given by an
additional Judge or any person whose name has been
or is to be submitted for his appointment as a Judge is
null and void;

(c) that this Hon'ble Court will be pleased to issue an
D
order or direction under Article 226 qt1a>hin5 the said
letter Exhibit 'A', and the consent, if any, obtained
from any person following on or as a result of the said
letter ;
E
(d) that in the alternative to prayer (c) above this Hon'ble
Court will be pleased to issue a writ of mandamus (or
any other writ, order or direction) directing Respon-
dents 1 and 2 to withdraw the said letter and to
abstain from using or in any manner acting on the con-
sent, if any, obtained from any person following on or F
arising from the said letter."

The petitioners also prayed for an ad interim injunction p~njin5
hearing of the petition. This seems to have been the rea~tion of
the Bombay lawyers to the aforementioned Circular.
G
Transferred Case No. 20 of 1981.

Another writ petition was filed by Shri V.M. Tarkunde, a senior
Advocate of the Supreme Court in the High Court of D~lhi making
Union of India, Justice O.N. Vohra, Justice S.N. Kumar and Justice H
S.B. Wad as respondents and alleging that the indep~ndence of
judiciary which was essential for the preservation of civil lib~rty was
710 SUPREME COURT REPORlS [!982] 2S,C.R.
A being eroded by the actions of the Government, viz, short-term
appointment of Additional Judges for 3-4 m.mths arid short extensio is
granted af1er the term was over. Anoth~r grievan~e m·ide regardirig
the Circular issued by the Union Law Minister compelling more than
100 Additional Judges all over the country to give their conserit f.n
being appointed as permanent Judges outside their State on the pain
B of being dropped was that this was a 1 inqirect method of by passing
the consultative process contemplated by Art. 222.

Apart from these apprehensions the petitioner m1de seriau s
allegations the purport of which was that a cJn>iste1t ca n~.1ig n
-.
c had been launched by some of the Ministers of Central G;wern ment
and Chief Ministers of States against the higher judiciary. In this
connection, statements of a Cabinet Minister and some Chief Minis-
ters were mentioned. Referring to S·Jme concrete cases it was alleged
that although permanent vacancies in the High Court of Delhi
were available yet Justice Goswami and Justice Sultan Singh in stead
D of being made permanent Judges were appointed as Additional Judge
for a period of two years in July and August, 1980 respectively where-
as Justice Vohra as an Addi. Judge only for there months. It was
further alleged that two more Additional Judges, viz., Justice Kumar
and Justice Wad were appointed for three months. According to
the allegations made by the petitioner, the terms of the aforesaid
E three Judges, Justice Vohra, Kumar and Wad was to· expire on
6.6.81. It appears that after the term of Justice Vohra and Justice
Kumar expired on the 6th of June 1981, the Central Government
did not reappoint them as a result of which they were sent back
to the Bar. Justice Vohra did not i'Ile any petition and instead
F started his practice.

The writ petition filed by Mr. Tarkunde in the High Court of
Delhi was also transferred to this Court and was numbered as Trans-
ferred Case No. 20 of 1981. While this case was pending in this
Court the term of Justice Kumar expired and at his request be was
G impleaded and transposed as third respondent in the case so that he
may be in a position to defend his cause. The petition of
Mr. Tarkunde apart from challenging the Circular has also assailed
the refusal of the Government to grant further extension to Justice
Kumar and Justice Vohra. As Justice Vohra's case was not pressed y
H it is not necessary for us to go into the circumstances under which
the term of Justice Vohra was not extended.
S.P. GUPTA v. UNION (Fazal Ali, J.) 711

Transferred Case No. 19 of 1981. A

This petition has been filed by Mr. S.P. Gupta against the
President, Union of India, Chief Justice of the Allahabad Court and
the Governor of U.P. In view of similar petiticms having been tra:1s-
ferred to this Court, this petition was also transferred to this Court
B
from the Allahabad High Court by an Order dated 1.5.1981. In
this petition, the following reliefs were prayed :

"(a) issue a writ, direction or order in the nature of a
declaratory writ that Justice Murlidhar, Justice A.N.
Verma, Jmtice N.N. Mitthal have already been c
appointed as permanent Judges of the High Court of
Judicature at Allahabad by virtue of the warrants of
appointment dated 12.12.1980, 12.3.1981 and 12.3.1981
respectively.

(b) in the alternative, issue a writ, direction or order in D
the nature of Mandamus directing the President to
appoint judges of the High Court according to the
submis~ions made in this petition;

(c) issue a writ, direction or order in the nature of
Mandamus directing the President of India to appoint
E
permanent judges of the High Court on the vacancies
in the office of the permanent Judges, whenever such
vacancies occur, in accordance with the Constitutional
scheme and provisions, as submitted in this Petition
and found by this Court: F
(d) issue a writ, order or direction in the nature of
Mandamus directing the President of India to fill the
,. vacancy of the additional Judges of the High Court
without delay."
G
Transferred Case No. 21 of 1981.

A petition exactly similar to the one filed by Mr. S.P. Gupta
was also filed bv Mr. J.L. Kalra, Advocate and others in ·the Delhi
High Court which was also transferred to this Court by an Order H
dated 1.5.1981 alongwith the case of Mr. S.P. Gupta. In this case,
the following reliefs were sought :
712 SUPREME COURT REPORTS ( 1982] 2 S.C.R.

A (a) issue a writ of mandamus or any other appropriate
writ, order or direction commanding the respondent to
assess the number of permanent and additional judges
required for this Hon'ble Court having regard to its
current business and the accu'llulated arrears of work
and create such number of permanent and additional
B posts of judges as may he required, within such rea-
sonablr time as this Hon'ble Court may deem fit, in
accordance with law;

(b) direct the respondent to appoint Hon'ble Mr. Justice
c N.N. Goswamy, Hon'hle Mr Justice Sultan Singh and ,_ .
Hon'ble Mr. Justice O.N. Vohra as permanent judges
of this Hon'ble Court against the three vacant perma-
nent posts forthwith;

(c) direct the respondent to extend the term of the addi-
tional judges namely Hon'ble Mr. Justice S.N. Kumar
D
and Hon'ble Mr. Justice S.B. Wad by a period of two
years within two weeks from the date of the order.

(d) direct the respondent likewise to confirm/extend the
terms of the additional judges of the High Courts of
Madhya Pradesh, Punjab and Haryana and Rajasthan,
E whose names are mentioned in paragraph No. 5 of
this petition;

· (e) direct that no such piecemeal extension, but a reasonably
long term shall be given to the other additional judges
F of this Hon'ble Court as well as of other High Courts
in future."'

Apart from these petitions which have been transferred to
this Court other petitions were also filed against the Order of the
President transferring Justice Ismail, Chief Justice of the Madras
G High Court to be the Chief Justice of Kerala High Court and Justice
K.B.N. Singh, Chief Justice of the Patna High Court to be the
Chief Justice of Madras High Court.

Writ Petition No. 274 of 1981
H
This writ petition was filed by Miss Lily Thomas, an Advocate
of the Supreme Court challenging the order of transfer of Justice
S.P. GUPTA v. UNION (Fazal Ali, J.) 713

Ismail from Madras High Court to Kerala High Court. While the A
petition was pending, Justice Ismail chose to retire from service and
hence the petition became infructuous so far as the main relief was
concerned. Miss Thomas, however, pressed the petition only on one
ground, viz., that even if the grievance against the transfer of Justice
Ismail no longer survived yet she was entitled to contest the Order
of the President of India transferring Justice K.B. ~. Sing 1 from
B
-Patna High Court to Madras High Court. She was permitted to
argue the case on this limited point.

Transferred Case No. 2 of 1981.
c
- Another petition was filed by Mr. Rajappa, Advocate in the
Madras High Court being writ petition No. 3 of 1981 praying that
the orders of the President of India transferring Ch:ef Justice of the
Madras High Court to the Kerala High Court and the Chief Justice
of the Patna High Court to the Madras High Court be quashed on
the ground that they were null and void and unconstitutional. This
D
case was also transferred to this Court and numbered as T.C. No. 2
of 1981. This case, therefore, raises subtaintially the same questions
as are involved in writ petition. No. 274 of 1901.

Transferred Case No. 24of1981. E

So far as the case of Justice K.B.N. Singh, Chief Justice of the
Patna High Court is concerned, Mr. D.N. Pandey, Secretary of the
Bihar State Socialist Lawyers Ass'.lciation alongwith Thakur Rampati
Sinha filed a writ petition No. CMJC 2224/1981 in the Patna High
Court against the Union of India, the Chief Justice of India F
Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Cour;
and the Registrar, Patna High Court. Justice K.B.'N. Singh, respon-
dent No. 3, later after filing an affidavit in this Court prayed that he
may be transposed to the category of petitioner. He was directed
to file a detailed affidavit which wa~ filed on 16.9.81 and he w1s
transposed as petitioner No. 3. This petition was also transferred G
to this Court as similar points were involved. In this petition, the
petitioners prayed that the Order of the President transferring Justice
K.B.N. Singh be quashed and the respondents be directed not to
give effect to the notification issued by the President transferring
petitioner No. 3 to Madras. H
714 SUPREME COURT REPORT~ [ J 982) 2 S.C.R

A Transferred Case No. 6 of 1981.

A Simili.r writ petition No. 553/81 was filed by Mr. P. Subra-
manian before the Madras High Court praying that the Order of
the President transferring Justice Ismail from the Madras High Court
to Kerala High Court be quashed. This petition also does n· •t
B survive in view of the retirement of Justice Ismail.

Special Leave Petition (Civil) No. 1509 of 1981.

This petition has been filed by Ripudarnan Prasad Sinha pray-
ing for a writ of quo warranto against Justice K.B.N. Singh,
c Chief Justice Patna High Court for not proceeding to join his new
posting at Madras and in continuing as Chief Justice of Patna High
Court without any sanction of law in view of the Order of the
President transferring him to Madras. Special leave has not yet
-
been granted in this petition but it has been tagged on with the cases
relating to Justice K BN. Singh but was ultin:ately withdrawn before
D the conclusion of hearing of their cases. ....
Since the various writ petitions and intervenor applications
transferred to this Court raised almost common questions they were
heard together but so far as the Petitions relating to Justice K.B.N.
Singh, Chief Justice of the Patna High Court are concerned they
E were delinked. After having heard Dr. Singhv i, counsel for the peti-
tioners, on the point of law regarding the interpretation of Art. 222
of the Constitution, we proceeded to deal with the questions of law
and the constitutional points raised in the petitions of Mr. Chagla,
Mr. Tarkunde, Mr. S.P. Gupta and others as also the constitutional
points involved in Justice K.B.N. Singh's case. So far as Justice
K.B.N. Singh's case is concerned we delinked it from other cases
because his was thi;: only case which had to be heard on facts turn-
ing upon mainly on the question-whether or not there was an effec-
tive consultation between the Chief Justice of India, and the Chief
Justice concerned, viz., Justice K.B.N. Singh.

G As these petitions more or less involve common and overlapp-
ing points, we shall dispose them off by one common judgment but
deal with individual cases separately where-ever necessary.

Transferred Casa Nos. 19 and 22/1981.
.,. .

H
We would first deal with the question relating to the variou1
facets, ihadeg and a~pecti of Art. 222 of the Constitution as contend-
S.P. GUPTA v. .UNION (Fazal Ali, J.) 715

A
ed before us by Messrs Seervai, Sorabjee, Dr. Singhvi, and others
during their respective turns.

So far as Mr. Seervai i concerned his contention on the
interpretation of Art. 222, apart from its legislative history and
setting, may be indicated as follows :-
B
• (I) The language of Art. 222(1) is clear enough to enable
the Court to hold that the transfer must be with the
consent of the Judge concerned. Even if it is not so,
then the main object of Art. 222 is not very clear and
plain and therefore, it is necessary to go into the
legislative history of the doctrine of Transfer in order
c
to ascertain the real intention of the Founding Fathers
of the Constitution and, if so read, it would be amply
clear that even if Art. 222 (I) does not expressly
mention 'consent' the same must be implied in the
Article by necessary intendm.ent. D
(2) As transfer of a High Court Judge from one High
Court to another is an extraordinary phenomenon and
has to be made in public interest, we must read consent
of the Judge concerned before he can be transferred
under Art. 222, otherwise the very purpose and object E
of the Article would be defeated.

(3) As a transfer without consent of a Judge amounts to
punishment, such a transfer involves a serious stain
and stigma. Hence, in order to avoid such an anoma-
lous position it should be held that no Judge can be F
transferred under Art. 222 from one High Court to
another without his consent.

In the same token it was argued by Dr. Singhvi that
before transferring a Judge various aspectsof public in-
terest have to be examined qua the circumstances under G
which the Judge is transferred-the compelling reasons
why the transfer is being made and the personal diffi-
culties or hardships that the Judge may suffer as a
result of his transfer. In other words, by and large, it
was contended that non-consensual transfers should be H
considered to be prima facie punitive and, therefore,
violative of Art. 124(4~ l;>e<;a.~_s_~ jf the¥ !\!ll01:1ll~ tg
716 SUPREME COURT REPORTS (1982] 2 S.C.R

A punishment then the punishment can only be for his
misbehaviour or incapacity as contemplated by
Art. 124 (4) and the procedure established by the
Constitution for impeachment. We shall, however,
develop the detailed aspect of the arguments of
Dr. Singhvi when we deal with the same at a later
B
stage.

(4) It would appear from the historical background of
Art. 222 that a transfer of a Judge from one high
Court to another really amounts to a fresh appoint-
c ment as a Judge to the transferee court, because before
taking oath in the transferee Court, the Judge has to
vacate his office of the original court and thereby he
vacate his office of the ceases to be a Judge in the
, legal sense of the term of the transferor court although
for purposes of pension, allowances and salary, etc. he
D continues to be a Judge by virtue of a legal fiction.

As no person can be appointed as a Judge of the
High Court in the first instance against his consent the
same principle will apply mutatis mutandis to a Judge
who is transferred from one High Court to another
E because his transfer to the transferee court would
amount to his first appointment. In other words, the
argument comes to this that once an order of transfer
is passed by the President of India under Art. 222, the
Judge so transferred dies a civil death in the original
High Court where he was appointed and takes a new
F
birth in ti e new High Court where he is transferred.

(5) That if a transfer is made by the President without the
consent of a Judge, it will seriously undermine and
impair the independence of the judiciary which is
G doubtless the basic structure of our Constitution.

(6) That the majority decision of the Court in Union of
India v. Sankal Chand Himatla! Sheth & Anr (1) (Herein
after referred to 'Sheth's case') merits a second look
H
(I) [1978] 1 S C.R. 42~,
S.P. GUPTA V. UNION (Faza/ Ali, J.) 717

and since the present is a larger Bench consisting of A
seven Judges, the previous decision should be reconsi-
dered and the view taken therein that consent is not
necessary for the application of Art. 222, must be
overruled.
B
Thus, the sum and substance of the contentions raised by
Mr. Seervai is that the words 'with his consent' should be read
into Art. 222(1) after the words 'transfer a Judge.'

,Messrs Sorabjee, Garg and S.P. Gupta who followed Mr. '
Seervai adopted his arguments in toto so far as the interpretation
of Art. 222 it concerned. They, however, laid greater emphasis on
the question of primacy of the Chief Justice of India (hereinafter
referred to as 'Cn') and co~tended that the opinion of the en
was final and binding on the President or on the Council of Ministers
who should tender advice to the President in accordnace with the
opinion expressed by the en if independence of judiciary was to be D
ensured.

Dr. Singhvi while adopting the arguments of Mr. Seervai sub-
mitted that a transfer without consent affects a Judge adversely and
results in evil consequences and virtually amounts to a punishment
which is worse than removal but he laid greater stress on the efficacy
of the consultative process by the constitutional authorities concerned
and a proper meeting and application of minds before a transfer is
ordered. Other aspects and conditions of Art. 222 relating to the
nature and content of consultation will be examined when we deal
with the case of D.N. Pandey (T.C. No. 24/81) in which the Chief
Justice of Patna High Court has been transposed as a petitioner. F

These are the broad contentions advanced before us by the
counsel for the parties in these petitions.

The Attorney General, the Solicitor-General and Mr. Mridul
appearing for the Law Minister have countered all the arguments
advanced by the petitioners and have fully defended the impugned
orders, the Circular and the transfer of Justice K.B.N. Singh, Chief
Justice of Patna High Court to Madras High CourL We shall
indicate the arguments in opposition wlwq we cje11J ~i\'1 the argu-
ments of the counsel for the petitioners., ·
718 SUPREME COURT REPORTS [1982] 2 s.c.R.

A Thus, from the facts disclosed in the various petitions and in
the light of the arguments advanced before us by the counsel for the
parties, the following points arise for determination :-

1. Locus standi

B 2. Article 217

(a) where is the power to appoint located, is it with
the Executive ?

(b) Is the opinion of en entitled to primacy; where
c the two Constitutional functionaries namely, CJ of
a High Court and CJI differ, does the adverse
opinion of either of them operate as a VETO
against appointment; where both the CJ of a High
Court and en agree upon accepting or rejecting a
candidate for appointment, can the executive take
D a differrent view and appoint or decide not to
appoint?

(c) who can initiate the proposal for appointment
under this Article ?

E ( d) whether consultation is necessary in case the Exe-
cutive decides not to appoint a person ?

(e) Does this Article apply when an Additional Judge
is to be appointed for a further term or as a
permanent Judge.
F (f) Scope of judicial review in case of appointment or
non-appointment.

3. Policy of General Transfers.

G (a) In the general policy of transfers of all CJs so that
every State has a CJ from outside, good, valid
and constitutional and in public interest ?

(b) Can this policy be formulated and laid down by
H a declaration made by the President or an execu-
tive order of the Council of Ministers without any
le~islation 7
S.P. GUPTA v. UNION (Fazal Ali, J.) 719

A
(c) Is the policy of !recruiting one-third Judges from
outside the State good, valid and constitutional
and, if so, what should be the mechanism for
implementing the said policy and the manner of
its formulation?
(d) Has it been shown that the aforesaid policy has B
already been evolved, formulated and finalised by
the Central Government ?

4. Article 216.
(a) what is the scope of the power of the President
under this Article ?
c
(b) Is the exercise of the power by the President under
this Article amenable to the Judicial review and,
if so, to what extent ?

5. Article 224. D
(a) What are the conditions and circumstances under
which Additional Judges can be appointed ?
(b) On the expiration of his term, is an Additional
Judge entith:d to be continued automatically, ifthe
conditions for appointment of an Additional E
Judge continue to exist or is he again liable to be
subjected to the process of Article 217.
(c) Does the Additional Judge have right to be consi-
dered for appointment for a further term or as
permanent Judge on expiration of his term or
he can be just dropped without any consideration
at all.

(i) Is there any convention that an Additional
Judge must on the expiration of his term be
continued for a further term or be appointed G
permanent Judge and if so, what is its legal
effect on the interpretation of Art. 217 and
224.
(ii) If there is no convention, is there a practice B
to the above effect and, if so, what is its
effect.
720 SUPREME COURT REPORTS [1982) 2 s.c.R.
A (d) Can an' Additional Judge be appointed when a
permanent post is vacant : if such an appoint- ....
ment is made, can the Additional Judge be deemed
to be a permanent Judge ?

(e) Can a short-term appointment of Additional Judge
n be made under this Article ?

6. Article 222.

(a) Who can initiate the proposal for transfer of High
Court Judge ?
c
(b) Is consent of a Judge to be transferred necessary
before he can be transferred ?

(c) What is the nature and effect of the consultation
with CJI.
I)
(d) Does the requirement of public interest limit the
exercise of the power of transfer under this
Article?

(e) What is the nature of public interest for which
transfer of a High Court judge can be effected ?

(f) Can a Judge be transferred on account of com-
plaints or grievances against him or on account of
anything in his conduct or behaviour ?

7. Circular letter dated March 18, 1981.
F 8. Claim of privilege against disclosure.

9. T.C. No. 20 of 1981-whether there was full and effec-
tive consultation; if not, what relief can be granted.

10. T.C. No. 24 of 1981.-whether there was full and
G effective consultation between the Government and
CJI, whether the transfer of K.B.N. Singh was effected
in public interest.

We first propose to deal with the various aspects of Art. 222
H the question ol privilege, the nature and extent of consultative
process under Art. 222, the legal effect of the Circular and its
constitutionality.
s.i>. GiJPtA v. i.JNION (Fazai Ali, J.) 721
Coming to the interpretation of Art. 222, the first question A
that falls for determination is a~ to whether or not cons~nt earl be
read into Art. 222 as argued by the counsel for the petitioners. To
begin with, this matter was fully considered in Sheth's case where
the minority judgment considered almost all the aspects of the
matter and held that consent cannot be read into Art. 222 and a
transfer of a Judge from one High Court to another High Court B
can be made even without his consent subject to effective consulta-
tion which has been explained by all the Judges. In that case
Bbagwati J. and Untwa!ia J. dissented from the majority decision
and took the view that no transfer of one High Court Judge to
another High Court can be made without his consent. In other words
the. minorites was of the view that the word 'consent' has to read c
into Art. 222 having regard to the extraordinary circumstances in
which such a power is exercised and the constitutional position of a
Judge. Normally, the decision in Sheth's case would have concluded
the matter because in the instant case also the points raised are more
or less similar but the arguments advanced before us in these
cases have revealed many more aspects which may not have been D
before this court in Sheth' s case and have opened new vistas which
undoubtedly require a further consideration. Moreover, in that case
the stand taken by the Union of India was that the matter may be
decided as a sort of an academic question as the transfers made by
the previous Government would be nullified by retransferring them.
In view of this concession made by the Union of India in that case E
... it was not necessary for this Court to go deep into the matter b~cause
ultimately the decision would turn out to be purely academic.

Thirdly, as the question of general policy of transfer has
cleariy arisen in these cases and lot of material has been produced
before us to justify both the constitutionality and the legality of this ~ F
policy, Art. 222 as also the consultative process now assume a new
complexion.

For these reasons, therefore, we are of the oprn1on that the
judgment in Shr?th's case (supra) may be reconsidered in the light of
the fresh facts which have emerged since then though ultimately we
G
may reach the same conclusions as held by the majority judgment.

We shall now examine the first limb of the contention of
Mr. Seervai that the word 'consent' should be read into Art. 222.
H
It cannot be doubted that a transfer under Article 222 must be made
in public interest and it was so held in Sheth's case by all the Judges
722 SUPREME COURT REPORTS [ 1982) 2 s.c.R.

A who were completely unanimous on this aspect of the matter. In
this connection, Chandrachud J. (as he then was) observed thus :-

"The power to transfer a High Court Judge is con-
ferred by the Constitution in public interest and not for
the purpose of providing the executive with a weapon to
B punish a Judge who does not toe its line or who, for some
reason or the other, has fallen from its grace."

(p. 444)

And Bhagwati, J. 'made the following observations :
c
"One thing is, however, certain that the power to trans•
fer a Judge from one High Court to another under Article
222, clause (I) can be exercised only in publie interest."

Krishna Iyer, J., speaking for himself and one of us (Fazal Ali, J.)
D expressed his views thus :

"Indeed the independence of the judiciary is itself a
necessitous desideratum of public interest, and so inter-
ference with it is impermissible except where other consi-
derations of public interest are so strong, and so exer-
E cised as not to militate seriously against the free flow of
public justice."

And Untwalia, J. in his judgment struck an identical note and
observed as follows :-

F "It was, however, accepted by all concerned that the
transfer can be made only in public interest or on the
ground of public policy which sometimes has been charac-
terised by eminent jurists as an unruly horse."

This position is also conceded by the Attorney General, the
G Solicitor General and Mr. Mridul. The main reason why this
Court had held the transfer of a Judge from one High Court to
another should be in public interest was that the President should
not exercise power by way of victimisation or to impede the free
flow of public justice or as Chandrachud, J., put it "for an extrane-
H ous or collateral purpose". Where, however, the compelling cir-
cumstances and the exigencies of administration or situation are
objectively considered and it becomes necessary for the exercise of
S.P. GUPTA v. UNION (Faza/ Ali, J.) 123

this power, these factors would constitute public interest to justify A
the exercise of the power by the President under Art. 222. In the
instant case, a general and unanimous policy of transfer of judges
and Chief Justices of High Courts to pro mote national integration
and suppress fissiparous tandencies, would doubtless be in public
interest. Although Art. 222 does not contain the words 'Public
interest' in so many words but the very exercise of the power, which B
is not a normal power but an exceptional one, it follows as a logical
consequence that public interest is a necessary concomitant of the
exercise of this power. •

The question that now arises is if it can be said on a parity of
reasoning that 'consent' also should be read as a part and parcel of
c
the exercise of the power under Art. 222. It is difficult to accede to
this contention because if a Judge cannot be transferred without his
consent then the power loses its significance and becomes an immu-
nity to a judge from transfer by withholding his consent. Thus, a
power which is to be exercised by the President can be defeated or
D
,. stalled by a simple act of the Judge in refusing to give his consent
to the transfer. This could never have been the intention of the
Founding Fathers of the Constitution. Article 222 may be extracted
thus:

"222. Transfer of a Judge from one High Court to another. E

(I) The President may, after consultation with the
Chief Justice of India, transfer a Judge from one
High Court to any other High Court.

(2) ·When a Judge has been or is so transferred, he F
shall, during the period he serves, after the com-
mencement of the Constitution (Fifiteenth Amend-
ment) Act, 1963, as a Judge of the other High
Court, be entitled to receive in addition to his
salary such compensatory allowance as may be
determined by Parliament by law and until so G
determined; such compensatory allowance as the
President may by order fix."

. A perusal of Art. 222 unmistakably shows that it is expressed
m absolu~ely clear: explicit, intelligible, plain and unambiguous lan- H
guage which admits of no vagueness or ambiguity. Mr. Seervai,
724 SUPREME COURT REPORTS [1982) 2 S.C.R.

A however, by an involved ;irocess of reasoning wants us to import
the concept of 'consent' by reading the same into the Article by
way of necessary intendment of the Parliament. It is not the function
of the court to supply words to suit a particular course of action so
as to be acceptable to a particular set of persons as a doctrine of
implied consent. It is just like first raising a ghost and then trying
B to kill it. Before we enter into a detailed discussion of the Rules of
Interpretation of Statutes we might indicate that there is intrinsic
evidence in the various constitutional provisions which clearly show
that the word 'consent' has been dropped by the legislature deli-
berately or it is a case of deliberate omission rather than casus ....
omisus. In order to drive home our point we would give a brief
c survey of the scheme of the Constitution regarding the expressions
'consent', 'concurrence' or 'Consultation' used in various Articles
to determine the context, the purport and the intention of the
Founding Fathers of the Constitution.

Take, for instance, Art. 127 which expressly deals with pre·
D vious consent of the President, and may be extracted thus :

"127. Appointment of Ad hoc Judges.

( l) If at any time there should not be a quorum of the
Judges of the Supreme Court available to hold or con-
E
tinue any session of the Court, the Chief Justice of
India may, with the previous consent of the President
and after consultation with the Chief Justice of the
High Court concerned, request in writing the attendance
at the sittings of the Court, as an ad hoc Judge, for
F such period as may be necessary, of a Judge of a High
Court duly qualified for appointment as a Judge of
the Supreme Court to be designated by the Chief
Justice of India.

(2) It shall be the duty of the Judge who has been so
G designated, in priority to other duties of his office to
attend the sittings of the Supreme Court at the time
and for the period for which his attendance is required,
and while so attending he sail have all the jurisdiction,
powers and privileges, and shall discharge the duties,
H of a Judge of the Supreme Court.''

This Article may be divided into four parts :-
S.P. GUPTA v. UNION (Fazal Ali, J.) 725
A
(1) that there should be a lack of quorum of the Judges
of the Supreme Cours.

(2) that the Chief Justice of India may with the previous
consent of the President and

(3) after consultation with the Chief Justice of the High B
Court.

(4) request in writing the attendence, as an ad hoc Judge,
for such period as may be necessary of a Judge of a
High Court duly qualified for appointment as a Judge
of the Supreme Court c
Clause (2) of the Article provides that it shall be the
duty of the Judge to attend the sittings.

It would thus appear that when the Constituent Assembly
intended that there should be consent, it has said so in very clear D
.,. terms. The first part clearly shows that the power under Art. 127
( 1) can be exercised only with the previous consent of the President
and not otherwise. Similarly, in the second part, the word 'consul-
tation' is used and in clause (2) the word 'duty' is used which com-
pletely rules out 'consent'. An analysis of this Article clearly shows
that whenever the Constitution intended a partieular expression to E
have a particular meaning it has made its intention clear and unam-
... biguous by using the word 'duty', 'consent' or consultation'.

Article 128 requires consent of the President before an offer is
made to a retired Judge to act as an ad hoc Judge of the Supreme
Court. Proviso to Art. 128 may be extracted thus: F
"Provided that nothing in this article shall be deemed
to require any such person as aforesaid to sit and act as a
Judge of that Court unless he consents so to do."

This proviso clearly enjoins that the ad hoc Judge cannot be
G
requested to sit in the court unless he consents to do so. Indeed, if
the intention of the Constituent Assembly was that a transfer could
not be made without the consent of the Judge, then a similar expres-
sion as contained in the proviso or something like that would have
been used in Art. 222 ( 1). The absence of any such exepression
H
shows that the Constituent Assembly deliberately omitted 'consent'
by necessary intendment.
726 SUPREME COURT REPORTS [1892) 2 S.CR.

A Article 224A deals with the appointment of retired Judges
at sittings of High Courts which may be extracted thus :

"224A. Notwithstanding anything in this Chapter, the
Chief Justice of a High Co~rt for any State may at any
time, with the previous consent of the President, request
B any person who has held the office of a Judge of that Court
or of any other High Court to sit and act as a Judge of the
High Court for that State, and every such person so re-
quested shall, while so sitting and acting, be entitled to such
allowances as the President may by order determine and
have all the jurisdiction, powers and privileges of, but shall
c not otherwise be deemed to be, a Judge of that High .
Court:
Provided that nothing in this article shall be deemed to
require any such person as aforesaid to sit and act as a
Judge of that High Court unless he consents so to do."
D The provisions of this Article make the exercise of powers
conditional on the consent of the Judge concerned. In Chandra
Mohan v. State of U.P. & Ors.(1) this Court has clearly indicated
that where the Constitutution intended particular expressions to be
used it has expressed its intention clearly and observed thus :

E "Wherever the Constitution intended to provide more
than one consultant, it has said so : see Arts. 124 (2) and
217 (1). Wherever the Constitution provided for consulta·
tion of a single body or individual it said so : see Art. 222.
Art. 124 (2) goes further and makes a distinction between
persons who shall be consulted and persons who may be
F consulted."

Article 258 runs thus :
258. (1) Notwithstanding anything in this Constitution
the President may, with the consent of the Govern-
G ment of a State, entrust either conditionally or
unconditionally to that Government or to its
officers functions in relation to any matter to
which the executive power of the Union extends.

1J (1) [1967] I SCR 77.
S.P. GUPTA v. UNION (Fazai Ali, J.) 727

(2) A law made by Parliament which applies in any A
State may, notwithstanding that it relates to a
matter with respect to which the Legislature of
the State has no power to make laws, confer
powers, and impose duties, or authorise the
conferring of powers and the imposition of
duties, upon the State or officers and authorities B
thereof.

(3) Where by virtue of this article powers and duties
have been conferred or imposed upon a State or
officers or authorities thereof, there shall be paid
by the Government of India to the State such sum
c
as may be agreed, or,.in default of agreement, as
may be determined by an arbitrator appointed by
the Chief Justice of India, in respect of any extra
costs of administration incurred by the State in
connection with the exercise of those powers and
duties."
D

Here also, the President has to exercise his powers with the
consent of the Government of a State either conditionally or un-
conditionally. In other words, where the power conferred on the
President is to be exercised with consent, the Founding Fathers of the
E
Constitution have expressly said so in the concerned Articles. On a
parity of reasoning, therefore, if the intention of the Founding
Fathers was to make 'consent' an essential ingredient of Art. 222,
they would have used the exepression 'the President may, with the
consent of the Judge concerned, transfer a Judge from one High
Court to another.' The fact that Art. 258 requires the President to F
act with the consent of the Government of a State, which is also a
constitutional authority; the same principle will apply to a High Court
Judge who is also a constitutional authority. Therefore, this leads
to the irresistible conclusion that the word 'consent' was never
intended to be included in the powers to be exercised under
Art. 222. G
Article 258 A runs thus :-

'·258 A. Nothwithstanding anything in this Constitution,
the Governor of a State may, with the consent of the H
Government of India, entrust either conditionally or un-
conditionally to that Government or to its officers functions
728 SUPREME COURT REPORTS [l 982f 2 S.C.R.
A in relation to any matter to which the executive power of
the State extends."

Here also, the Governor of a State has to exercise a particular
power only with the consent of the Govunment of India and not
otherwise. This also shows that the Founding Fathers were fully
B aware of the situations where consent is necessary and where it
is not.

Article 254 deals with the legislative powers of the Centre and
the States. Clause (2) of Art. 254 provides thus :

c "254 (2) Where a law made by the Legislature of a
State with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been
D reserved for the consideration of the President and has
received his assent, prevail in that State :

Provided that nothing in this clause shall prevent Par-
liament from enacting at any time any law with respect to
the same matter including a law adding to, amending,
E varying or repealing the law so made by the Legislature of
the State."

It is obvious that here as a legislation is concerned. the expres-
sion used is 'assent' and not 'consent' though both the terms are
synonymous. The use of the word 'assent' is generally made when
F we are dealing with statutory enactments.

Sub·ciause (ii) of clause (I) of Art. 370 may be extracted
thus : ~

"(ii) such other matters in the said lists as, with the
concurrence of the Government of the State, the President
G
may by order specify."

The laws mentioned in Art. 370 can be applied to the State of
Jammu & Kashmir only with the concurrence of the Govermenr of
the State. Here the word 'concurrence', which is stronger than
H ·~onst;:nt' ! h~s been usc;d ~o indi<;~te 1\1:\d maiqtl\in the spe<;ial SWl!S
S.P. GUPTA v. UNION (Fazal Ali, J.) 729

given to that State. Certain aspects of this matter have been clearly
A
pointed out by Krishna Iyer, J. in Sheths case thus :

"It would thus appear that the Constitution itself spe·
cities 'consent' where it is intended and omits it when
unnecessary. If, therefore, the Constitution-makers inten-
ded that under Article 222 a Judge cannot be transferred
B
from one High Court to another without his consent then
it should have been expressly so mentioned in the Con·
stitution.''

We have given these clear instances to drive home the point
that whenever the Founding Fathers intended that a particular
c
expression should be used in an Article as a condition precedent to
the exercise of a particular power, the same has been mentioned and
where no such intention was there the expressions have not been
used. As against this, Mr. Seervai submitted that in Art. 217,
which provides for the ppointment of High Court Judges, it has no D
where been indicated that the Judge proposed to be appointed
should give his consent to the appointment. In Sheth' s case,
Krishna Iyer J. while dealing with an identical argument observed
as follows:-

"It would be seen that in this constitutional provision E
the words "appointed" and "transferred" have been used
separately conveying different connotations; and if the
Constitution makers had used these two terms in the said
subject in different contexts it cannot be argued that these
two terms are interchangeable. On the other hand, an
analysis of Article 217 (I) (c) shows that the constitutional P
provision makes a clear-cut distinction between appoint-
ment and transfer."

We stick to the view express~d by Krishna Iyer J. in the
majority judgment. The argument of Mr. Seervai appears to be G
fallacious because this analogy cannot be applied to a Judge who
after being appointed is transferred under Art. 222. It is obvious
that there is no provision in the Constitution empowering the
President to appoint for the first time a person as a Judge of a High
Court against his consent and even if he is appointed, the person so H
appointed can refuse to act as a Judge and if he does so the matter
ends there and he cannot be compelled to act as a Judge. Once,
730 SUPRllMll COURT REPORTS (1982) 2 s.c.R.

A however, the person decides to accept the appointment of a Judge
of a High Court he becomes a constitutional functionary and there-
for would be subject to the provision of the Constitution because
before deciding to accept the appointment he must be presumed to
be aware of the constitutional provisions contained in the various
Articles regarding High Court Judges, viz., the conditions of service,
B the salary and other ·allowa'nces the date of retirement and also the
provison regarding transfer as provided for in Art. 222 which does
not contain the word 'consent'. It would thus not be open to any
Judge to complain that he had been transferred against his consent
or to plead that had he known this he may not have accepted the
c office of a High Court Judge. As the words 'consent' is conspicu-
ously absent from Art. 222, such a plea cannot in the very nature of
things be permitted to be taken by the concerned Judge. If he does
not want to be transferred, it is always open to him to resign for
which also there is a clear provision under proviso (a) to clause (I)
of Art. 217. Therefore, the argument of Mr. Seervai must be
D overruled.

These are the intrinsic circumstances to show that the Found-
ing Fathers did not intend to use the word 'consent' in Art. 222
deliberately. We have already held that Art. 222 is expressed in the
clearest possible terms. But, assuming for the sake of argum<~nt
E as urged by Mr. Seervai, that there is some element of ambiguity
either in the setting and pattern of Art. 222 or in the real object
which it seeks to subserve, which according to Mr. Seervai finds
ample support from the fact that two Judges in Sheth's case have
taken the view which is being propounded by the learned counsel,
we would attempt to ccustrue Art. 222 in the light of the well settled
F rules of interpretation of statutes.

Before, however, we discuss the various books, reference and
authorities we must take into consideration a very weighty circum-
stance \\ hich is peculiar to our Constitution as also to the
G American Constitution. It must be remembered that in England if
any error is commited by a court of Appeal, it may be corrected by
the House of Lords or eventually by Parliament by a simple majority.
Similarly, in Australia also if the High Court gives a wrong inter-
pretation of a particular constitutional provision it can be set right
H by Privy Council by an appeal against the said order of High Court
and the Parliament may amend the statute to bring it in conformity
with the intentign an<l that too by a simple majority. The position
S.P. GUPTA v. UNION (Fazal Ali, J.) 731

so far as our country is concerned is similar to that of America and A
if any error of interpretation of a Constitution provision is commit-
ted by the Supreme Court or any interpretation which is considered
to be wrong by the Government can be rectified only by a constitu-
tional amendment which is a very complicated, complex, delicate
and difficult procedure requiring not merely a simple majority but
two-third majority of the Members present and voting. Apart from B
the aforesaid majority, in most cases the amendment has to be rati-
fied by a majority of the States. In these circumstances, therefore,
this Court which lays down the Jaw of the land under Art. 141 must
be extremely careful and circumspect in interpreting statutes, more
so constitutional provisions, so as to obviate the necessity of a
constitutional amendment every time which, as we have already c
mentioned, is an extremely onerous task. S.R. Das, Chief Justice in
the case of The Bengal lmmuuity Co. Ltd. v. The State of Bihar &
Ors.(1) expressly referred to this aspect of the matter and observed as
follows:-

"An erroneous interpretation of the Constitution may n
quite conceivably be perpetuated or may at any rate remain
unrectified for a considerable time to the great detriment
to public weJI being."

Having carefuJly interpreted a particular prov1s10n of the E
Constitution, the Court should as far as possible stick to the doctrine
of stare decisis. It must be remembered that as Lord Wright pointed
out in James v. Commonwealth(') that a Constitution is a federal
component and the constituents must hold a balance between all its
parts.
F
Thus, so far as the general principles regarding interpretation
of statute · are concerned they are now well settled beyond any
controversy for the last two centuries in almost all the countries of
the world having a democratic constitution or pattern of Govern-
ment. As far as this Court is concerned, on some po in ts decisions
during the first decade of its existence were some what inconsistent G
but generally the view which found favour with most of the Judges
during the first decade was that the methodology of interpretation of
statutes should be the same for constitutional provision as it is for
statutory provisions. It has further been held that external aids like
H
(I) [1955] 2 SCR 603.
<2) [1936] AC 578,
732 SUPREME COURT REPORTS [1982) 2 S.C. ll

A Parliamentary debates, report of the Drafting or select committees
the Objects and Reasons of the Act are wholly inadmissible for the
purpose of interpreting the provisions of a statute which would
depend entirely on the language of the provisions concerned. Here
also, some of the cases have held that where the language of the
provisions is shrouded in obscurity or is not fully intelligible
'o so as to ascertain or find out the objects of the Act, external
aids may be permissible. So far as speeches made by a
Minister is concerned, it has been consistently held to be wholly
inadmissible because it represents the individual view of a single
person with which the majority of the Members of Parliament may
or may not have agreed.
c
During the second and third decade this Court made a promi-
nent shift from the · original stand and a long course of recent
decisions have permitted parliamentary debates or Reports of
Drafting or Select Committees to be taken into consideration for the
D purpose of ascertaining the object or the real meaning of the langu-
age employed in a statutory or constitutional provision

But there is one principle on which there is complete unanimity
of all the courts in the world and this is that where the words or
the language used in a statute are clear and cloudless, plain, simple
E and explicit unclouded and unobscured, intelligible and pointed so
as to admit of no ambiguity, vagueness, uncertainty or equivocation,
there is absolutely no room for deriving support from external aids.
In such cases, the statute should be interpreted on the face of the
language itself without adding, subtracting or omitting words
therefrom
F
It is equally well settled that it is not the duty of the court to
import words which have been omitted deliberately or intentionally
in order to fill up a gap or supply omissions to fit in with the
ideology or concept of the Judge concerned. The words and the
language used must be given their natural meaning and interpreted
G
in their ordinary and popular sense.

There may be a third type of cases which may be on the border
line-where the language may admit of two interpretations in which
case the court may consider the desirability of resorting to external
H
aids in order to catch and delve into the spirit and object of the
statute.
S.P. GUPTA v. UNION (Fazal Aii, J.) 733

These principles have been enunciated over the years by several A
authorities of various courts to which I shall refer hereafter. Before,
however, going to the authorities, it may be necessary to refer to
extracts from the various books of legal scholars on the interpreta-
tion of statutes.

Crawford in his book captioned 'Statutory Construction' B
(1940 Edition) in para 158 'Purpose of Interpretation and Construc-
tion' (p.p. 244-245) has observed thus :

"The basic principle has been announced time after
time that if the statute in plain, certain and free from am bi-
guity, a b11re reading suffices and interpretation is C
unnecessary.·'

At page 344, it has also been pointed out by the author that
alteration, interpolation or elimination of words are not permissible.
In this connection, the author makes the following observations while
dealing with an American case : ' D
"As we have already stated, the intention of the legisla-
ture must be primarily ascertained from the language used.
This obviously means, as a general rule, that the courts
have no power to add to, or to change, alter, or eliminate
the words which the legislature has incorporated in a statute, E
not even in order to provide for certain contingencies
which the legislature failed to meet, or to avoid hardship
flowing from the language used, or to advance the remedy
of the statute.

At pages 388-389, the author further observes thus :
F
"Where the meaning of a statute is in doubt, the court
may resort to contemporar.eous construction-that is, the
construction placed upon the statute by its contemporari~s
at the time of its enactment and soon thereafter-for
assistance in removing any doubt. Similarly, resort may G
also be had to the usage or course of conduct based upon
a certain construction of the statute soon after its enactment
and acquiesced in by the courts and the legislature for a
long period of timt As is obvious, the meaning given to
the language of a statute by its contemporaries is more H
likely to reveal its true meaning than a construction given
by men of another day or generation. Even words change
734 SUPREME COURt REPOlitS (1982] 2 s.c.li.
A in meaning with the march of time. And the meaning
given by contemporaries can be revealed with no more
certainty than by resort to the common usage and practice
under the statute itself over a considerable period of time."

The author has rightly observed that sometimes it so happens
that words change in meaning with the march of times If this is
so, it is manifest that the court while interpreting a statute dealing
with socialism cannot ignore the temper of the times and the modern
trends of legal thought.

c Similarly, while dealing with the circumstances and the history
of the Statute, the author says thus :

"According to the weight of authority, and surely the
better view, the court may consider the general history of
a statute, including its derivation that is, the various steps
D leading up to and attending its enactment, as shown by the
legislative journals, in its effort to ascertain the intention
of the legislature where it is in doubt. Conversely, the
legislative history cannot be considered where the statute's
meaning is plain." (p. 383)

E Here also, we find that history, etc., is permissible only where
the language of a statute is ambiguous and not where the meaning
of the statute is plain and clear.

V.P. Sarathi in 'Interpretation of Statutes' (1975 Edn.) observes
thus:
F
"In order to arrive at the intention of the legislature,
the state of law and judicial decisions antecedent to and at
the time the statute was passed are material matters to be
considered ..... .

G Courts sometimes make a distinction between legislative
debates and reports of committees and treat the letter as a
more reliable or satisfactory source of assistance.
i)

H It is submitted that the subtle distinction that parlia-
mentary history may be referred for ascertaing the intention,
but not for construction, is pedantic. In fact all such
s.i>. GUPTA v. UNION (Faza/ Ali, J.)

material must be freely referred; and it is only by resort to A
such material that the object of the legislation and how the
legislature intended to achieve that object by the particular
statute can be correctly ascertained by the Court."
(p. 339)
8
At p ge 367, the author observes thus :

{al Reference to English and American decisions may be
made, because the) have the same system of jurispru-
dence as ours, but do not prevail when the language of
the Indian Statute or enactment is clear. c
{b) They are of assistance in elucidating general principles
and construing Act in pari materia.

(c) But Indian statutes should be interpreted with reference
to the facts of Indian life,"
D
The observations in clanse (c) are rather important because
that seems to us to be the correct approach. Seervai in "Consti-
tutional Law of India" {2nd Edn.) Vol. II, p. 1543-44 observes
thus :

"Secondly, where words are clear and unambiguous E
effect rr; ust be given to them regardless of consiquences ......
After all the object of interpretation of documents and
statutes is to ascertain '!the intention of them that made it."
The literal interpretation has a prima facie preference, but
to get at the real meaning it is necessary to apply the rule
in Heydon's case. F

However, where the words of a statutory or constitu-
tional provision are ambiguous, resort may be had to well
recognised extrinsic aids to construction and regard may be G
had to the consequences of adopting one construction
rather than another. The meaning of "ambiguity" has been
considered at length in paras 2.31 and 2.:12 of the text."
B.
Craies on 'Statute Law' (6th Edn.) while quoting Jervis
CJ., at p. 86 observes thus :
736 SUPREME COURT REPORTS {1982] 2 s.c.R..
A "It is clear that "if", as Jervis C.J. said in Abley v.
Dale (8 I 50(20) LJCP 33,35) the precise words used are
plain and unambiguous, we are bound to construe them
in their ordinary sense, even though it does lead to an
absurdity or manifest injustice. Words may be modified or
varied where their import is doubtful or obscure, but we
B assume the functions of legislators when we depart from the
ordinary meaning of the precise words used, merely because
we see, or fancy we see, an absurdity or manifest injustice
from an adherence to their literal meaning."

c Similarly, the author has categorically observed that in the
interpretative process casus omissus is not to be added or supplied.
In this connection, the following observations have made at p. 70 :

"A second consequence of this rule is that a statute
may not be extended to meet a case for which provision has
D
clearly and undoubtedly not been made ..... Although in
construing an Act of Parliament the Court must always try
to give effect to the intention of the Act and must look not
only at the remedy provided but also at the mischief aimed
at, it cannot add words to a statute or read words into it
E which are not there,"

and quoting Lord Parker, the author says thus :

"Where the literal reading of a statute... produces
an intelligible result ...... there is no ground for reading in
F words or changing words according to what may be the
supposed intention of Parliament."

At page 66, the auther observes thus :

"The cardinal rule for the construction of Acts or
Parliament is that they should. be construed according to the
G
intention expressed in the Acts themselves ...... If the words
of the statute are themselves precise and unambiguous, then
no more can ·be necessary than to expound those words
in their ordinary and natural sense. The words themselves
alone do in such a case best declare the intention of the law
H
giver.
S.P. GUPTA v. UNION (Pazal Ali, J.) 737

Where the language of an Act is clear and explicit, we A
must give effect to it, whatever may be the consequeuces,
for in that case the words of the statute speak the intention
of the legislature.·'

Lord Bacon says that "the function of a Judge is jus decere
and not jus dare, i.e., to interpret the law and not to make it. B
Similarly, Marshal, CJ observed that we must remember that "it is
the constitution that we are expounding." These observations aptly
apply to the instant case where we are construing a constitutional
provision viz., Art. 222, particularly when a provision like this is not
to be found in any Constitution of any other country of the world.
c
According to Maxwell, the golden rule of interpretation is to
adhere to the ordinary meaning of the words used unless it is in
direct conflict with the intention of the Act. In this connection,
the author in his book 'Interpretation of Statutes' (12th Edition)
observes thus :
D
"It is a corollary to the general rule of literal cons-
truction that nothing is to be added to or taken from a
statute unless there are adequate grounds to justify the
inference that the legislature intended something which it
omitted to express." (p. 33)
E
I have laid particular stress on the cams omissus aspect of the
interpretative process because the main thrust of the argument of
Mr. Seervai on interpretation of Art. 222 was that the word
,consent' should be read into Art. 222 which is not there at all, and
if the contention of the counsel is accepted, it will amount to the F
court supplying an omission which has been made deliberately by
the Founding Fathers of the Constitution and would be in direct
contravention of the scheme of the Constitution as discussed
• above

The leading case on the subject is Heydon's case[ 5 ) where the G
broad principle of interpretation of Statutes was spelt out and
explained. In this connection, the Court observed as follows :

"And it was resolved by them, that for the sure and
true interpretation of all statutes in general (be they penal H

(1) 76 Bngli>h Reports 637.
138 SUPRI-ME COURT REPORTS (1982] 2 s.c.R.

A or beneficial, restrictive or enlarging of the common,Jaw,)
four things are to be discerned and considered :-

1st. What was the common law before the making of
the Act.

B 2nd. What was the mischief and defect for which the
common Jaw did not provide.

3rd. What remedy the Parliament hath resolved and
appointed to cure the disease of the commonwealth.

c And, 4th. The true reason of the remedy; and then the
office of all the Judges is always to make such construction
as shall suppress the mischief, and advance the remedy, and
to suppress subtle inventions aad evasions for continuance
of the mischief, and pro privato commodo, and to add force
and life to the cure and remedy, according to the true intent
D of the makers of the Act, pro bono publico."

This case has been followed both by this Court as also by the
courts in England for a pretty length of time. This may be the
starting point of the manner and the method which the court should
adopt in interpretation of statutes.
E
The authorities on the question of interpretation of the consti-
tutional provisions may roughly be divided into four categories
which may not exactly be absolutely separate or independaut so as
to be confined in a watertight compartment but in some cases may
overlap, yet they generally Jay down the law on the subject categoris-
F ed by us:

Categories :

(A) Where the language of a statute is plain, explicit and
G unambiguous, no external aid is permissible.

(B) Where the language is vague and ambiguous or does
not clearly spell out the object and the spirit of the Act,
external aids in the nature of parliamentary debates,
H reports of Drafting or Select Committees may be
permissible to determine and locate the real intention
of the legislature.
S.P. GUPTA v. UNION (Fazal Ali, J.) 739

(C) Where certain words are omitted from the statute, the ·A
court cannot supply the omission or add words to the
statute on a supposed view regarding the intention of
the legislature.

(D) Any speech made by a Minister or a Member in the
Parliament is not admissible or permissible to construe B
a statutory or a constitutional provision.

We shall now deal with the authorties which fall more or less
within the four categories indicated above.

Category (A) c
The earliest case on the subject is A.K. Gopalan v. The State of
Madras(1) where Kania CJ pointed out that external aid wa~ not
permissible unless a statute was ambiguous and observed thus :

"Our attention was drawn to the debates and report
of the drafting committee of the Constituent Assembly in
D
respect of the working of this clause. The report may be
read not to control the meaning of the article, but may be
seen in case of ambiguity ...

Resort may be had to these sources with great caution and
only when latent ambiguities are to be resolved." E
Faz! Ali, J. (as he then was) speaking in the same strain made
the following observations :

"In my opinion, though the proceedings or discussions
.in the Assembly are not relevant for the purpo'e of constru- Ii'
ing meaning of the expressions used in Article 21, especial-
ly when they are plain and unambiguous, they are relevant
to show that the Assembly intended to avoid the use of the
expression without due process of law."
G
(Emphasis ours)

And Mukherjea, J. observed thus :

"It is well settled that the Constitution must be inter-
preted in a broad and liberal manner giving effect to all its H
(I) [1950] SCR, 88,
740 SUPREME COURT REPORTS [1982] 2 S.C.R

A parts, and the presumption should be that no conflict or
repugnancy was intended by its framers. In interpreting the
words of a constitution, the same principle' undoubtedly
apply which are applicable in construing a statute.

B As an aid to discover the meaning of the words in a Consti·
tution, these debates ar.~ of doubtful value. "Resort can be
iiad to them" ,says Willoughby, "With great caution and
only when latent ambiguities are to be solved .. "
....
The same view was expressed by Gajendragadkar, J. (as he
c then was) in Kanai Lal Sur v. Paramnidhi Sadhuknan(1) where the
learned Judge observed as follows :
"If the words used are capable of one construction
only then it would not be open to the courts to adopt any
other hypothetical construction on the ground that such
D hypothetical construction is more consistent with the
alleged object and policy of the Act. The words used in the
material provisions of the statute must be interpreted in their
plain grammatical meaning and it is only when such words
are capable of two constructions that the question of giving
effect to the policy or object of the Act can legitimately
E arise.''

In M. Pentiah & Ors. v. Muddala Veeramallappa & Ors.(2)
Sarkar, J. observed thus :

"Where the main object and intention of a statute are
F clear, it must not be reduced to a nullity by the draftsman's
unskilfulness or ignorance of the law, except in a case of
necessity, or the absolute intractability of the language
used. Nevertheless, the courts are very reluctant to substi-
tute words in a Statute, or to add words to it, and it has
been said that they will only do so where there is a r~pug
G nancy to good sense."

In M. V. Joshi v. M.U. Shimpi and Anr.(3) Subba Rao, J.
expressed the opinion of the Court thus :

H (1) [1958] SCR 360.
(2) [1961] 2 SCR 294.
(3) [1961) 3 SCR:986.
S.P. GUPTA v. UNIO~ (Fazal Ali, J.) 741

"But these rules do not in any way affect the funda-
A
mental principles of interpretation, namely, that the primary
test is the language employed in the Act and when the
words are clear and plain the court is bound to accept the
expressed intention of the Legislature."

In Hansraj Gordhandas v. H. H. Dave, Asstt. Co!ledtor of B
Central Excise and Customs, Surat and two Ors .,( 1) Ramaswami, J,
speaking for the court observed thus :

"It is well established that in a taxing statute there is
no room for any intendment but regard must be had to the
clear meaning of the words. The entire matter is governed C
wholly by the language of the notification. If the tax-payer
is within the plain t-:rms of the exemption it cannot be
denied its benefit by calling in aid any supposed intention
of the exempting authority.

0
It is an application of this principle that a statutory
notification may not be extended so as to meet a casus
omissus."

Although these observations were made in respect of a taxing
statute, the principle of interpretation of provisions of a statute or E
of the Constitution is the same, the only difference being that, in a
taxing statute where two interpretations are possible, benefit of the
doubt is normally given to the tax-payer.
In Commissiouer of Income-Tax, Assam and Naga!and, etc. v.
·shri G. Hyatt,( 2 ) Hegde, J. speaking for the Court made the follow- F
ing observations :

"In our opinion the meaning of Section 17(3)(ii) is
plain and unambiguous. Hence there is no need to call
into aid any of the rules of construction as was sought to
be done by the High Court." G
In Senior Superintendent, R.M.S. Cochin and Anr. v K. V. Gopi
Nath, Sorter,(3) Mitter, J. reiterated this well settled principle thus:

(lJ [1969] 2 SCR 253. H
(2) [1971J t sec 466.
(3) [1972] 3 SCR 53Q,
742 SUPREME COURT REPORTS (1982] 2 S.C R.
A ·•As has often been said that if "the precise words used
are plain and unambiguous, we are bound to construe them
in their ordinary sense", "and not to I imit plain words in an
Act of Parliament by considerations of policy, if it be policy,
as to which minds may differ and as to which decisions may
vary."
B
In Shri Urned v. Raj Singh and Ors.,(1) Bhagwati, J. (one of us.)
made the following observations :

"But that does not mean that a construction should be
adopted which ignores the plain natural meaning of the
c words or disregards the context and the collocation in
which they occur. It is a familiar rule of interpretation that
the words used by the Legislature must be construed
according to their plain natural meaning."

In Anandi Haridas and Co~. Pvt. Ltd. v. Engineering Mazdoor
0 Sangh and Anr.(2) this Court observed as follows :

"As a general principle of interpretation, where the
words of a statute are plain, precise and unambiguous, the
intention of the Legislature is to be gathered from the
language of the statute itself and no external evidence such
E as Parliamentary Debates, Reports of the Committees of
the Legistature or even the statement made by the Minister
on the introduction of a measure or by the framers of the
Act is admissible to construe those words.'

In Mangalore Electric Supply Co. Ltd. v. The Commissioner of
F Income Tax, West Benga/(3), this Court observed thus :

"The justification for this submission is stated to be
that the word 'transfer', occurs in tile collocation of three
other words 'sale' 'exchange' and 'relinquishment' which
are essentially volitional or voluntary acts, leading to the
G conclusion that the word 'transfer' must take its colour
from the three other words in association with which it is
used. 'Transfer', therefore, according to the learned

<o [19751 1 sec 76.
H (2) [1975] 3 SCR 542.
(3J [19781 3 sec 248.
§.:P. GUPTA v. UNioN (Faza/ Ali, J.) 743
A
counsel, means a voluntary transfer and cannot include all
compulsory acquisition of.property.

We find it impossible to accept the submission. In the
first place if it was intended that voluntary transfers alone
should fall within the meaning of the section, it was
B
unnecessary for the legislature to use the expression
'transfer', an expression acknowledged in law as having a
wide connotation and amplitude ... Without more. therefore,
there is no reason for I imiting the operation of the word
'transfer' to voluntary acts of transfer so as to exclude
compulsory acquisitions of property." c
This decision seems to us to be apposite to the facts of the
present case, viz , interpretation of the word 'transfer' as the
argument of Mr. Seervai is that the word 'transfer' used in
Art. 222 must be confined only to a transfer with the consent of the
Judge concerned, thereby Jimitfog the scope and ambit of Art 222. D
A similar argument was advanced in the case supra and rejected
and the Court held that there was no reason to limit the word
'transfer' only to a voluntary transfer so as to include compulsory
acquisition of propery. On a parity of reasoning, therefore, we are
of the opinion that to read 'consent' into Art. 222 would be to
limit and whittle down the scope, ambit and purpose of Art. 222, E
It is not necessary for us to multiply authorities on the subject
covered by category 'A' because the textbooks and the authorities
of this Court as also of some foreign courts referred to above,
clearly lay down that where the language of a statute is plain and
unambiguous it is not permissible to rely on external aids. F
Category B
This category consists of those cases which have laid down that
where the language is vague or ambiguous to what extent external
aid can be used to locate the actual intention of the Legislature. In
Powell v. The Kempton Paik Racecourse Co. Ltd.( 1 ) Lord Halsbury G
indicated the extent to which external aid could be used by courts in
construing a statutory provision and observed thus :

"It has, indeed been argued that the history of the
legislation and of the facts which gave rise to the enactment H
(!) [1899] AC 143.
744 SUPREME COURT REPORTS [1982] 2 S.C. R.

A may in view of the preamble affect the construction of the
Act itself, but though I do not deny that such topics may
usefully be employed to interpret the meaning of a statute,
they do not, in my view, afford conclusive argument here."

In A. K. Gopalan' s case (supra), Sastri, J. (as he then ,was)
B observed as follows :

"It is not a matter for surprise, therefore, that the
Drafting Committee appointed by Constituent Assembly of
India recommended the substitution of the expression
"except according to procedure established by law" taken
c from the Japanese Constitution, 1946, for the words "with-
out due process of law" which occurred in the original
draft, "as the former is more specific."

The learned Judge has clearly indicated that the reason why
our Founding Fathers substituted the words 'except according to
D the procedure established by law' in Art. 21 instead of the words
~'without due process of law" as used In the American Constitution
because they implemented the Report of the Drafting Committee
which had taken the words 'procedure established by law' from the
Japanese Constitution of 1946. His Lordship then indicated the
nature, extent and the circumstances in which external aid could be
E used to construe a constitutional provision. Sastri J., also commented
on the extent of the relevancy of a speech made in the course of a
debate on a Bill and in this connection observed thus :

"A speech made in the course of the debate on a bill
could at best be indicative of the subjective intent of the
F speaker, but it could not reflect the inarticulate mental pro-
cess lying behind the majority vote which carried the bill.
Nor it is reasonable to assume that the minds of all those
legislators were in accord."

Thus, the view of Sastri, J. was that a court could locate the
G objective and intent of the legislature primarily in the words used
by the constitution supported by such historical material as may be
available. ·
In Commissioner of Income Tax, Gujarat v, Vadilal Lallubhai
H etc.(1) Hegde, J. observed as follows :-

(!) [1973] I SCR 1058.
s.1>. GUPTA v. UNION· (Fazal Ali, J.) 745
"In order to find out the legislative intent, we have to A
find out what was the mischief that the legislature wanted
to remedy. The Act was extensively amended in the year
1939. Section 44-F was not in the draft bill. That section
was recommended by the Select Committee consisting of
very eminent lawyers. It will not be inappropriate to find
out the reasons which persuaded the Select Committee to B
recommennd the inclusion of S. 44-F, if the section is
considered as ambiguous."

In this case, the Court relied on the recommendation of the
Select Committee in order to find out the reasons for inclusion of a
particular section. c
In State of Mysore v. R. V. Bidap(1) this Court !leems to have
made a positive shift from the view taken in earlier cases of this
court and held that in order to ascertain the meaning of a statute or
its object the court should not confine itself within a particular D
sphere but should take into consideration whatever is logically
/"
relevant or admissible. This is a decision of a Contitution Bench and
shows the modern trend of interpretation of statute. Krishna
Iyer, J. speaking for the Court tersely observed as follows( 1 )

"The Rule of Exclusion has been .criticised by jurists E
as artificial. The trend of academic opinion and the practice
in the European system suggest that interpretation of a
statute being an exercise in the ascertainment of meaning,
everything which is logically relevant should be admissible.
Recently, an eminent Indian juri~t has reviewed the legal
position and expressed his agreement with Julius Stone and F
Justice Frankfurter. Of course, nobody suggests that such
extrinsic materials should be decisive but they. must be
admissible. Authorship and interpretation must mutually
illumine and interact. There is authority for the proposi-
tion that resort may be had to these sources with great
caution and only when incongruities and ambiguities are to G
be resolved. There is a strong case for whittling down the
Rule of Exclusion followed in the British courts and for less
apologatic reference to legislative proceedings and like

H
o> [1974] 3 sec 337.
746 SliPlrnMll CbURT REPORTS (1982) 2 s.c.k.

A materials to read the meaning of the words of a statute.
Where it is plain, the language prevails, but where there is
obscurity or lack of harmony with other provisions and
in other special circumstances it may be legitimate to take
external assistance such as the object of the provisions,
the mischief sought to be remedied, the social context, the
B
words of the authors and other allied matters."

An identical view w.as taken in a later case of this Court in
fagu Shaw and Ors. v. The State of West Benga/(1) where Bhagwati,
J. relied on the decision extracted above and observed thus:
c "Since the purpose of interpretation is to ascertain the
real meaning of a constitutional provision, it is evident that
nothing that is logically relevant to this process should be
excluded from consideration. It was at one time thought
that speeches made by the members of the Constituent
D Assembly in the course of the debates on the Draft Consti-
tution were wholly inadmissible as extraneous aids to the
interpretation of a constitutional provision, but of late there
has been a shift in this position and following the recent
trends in juristic thought in some of the Western countries
and the United States, the rule of exclusion rigidly followed
E in Anglo-American jurisprudence has been considerably
diluted."

It is true that these observations are to be found in the
dissenting judgment Bhagwati, J. (one of us) but on this issue there
was no dissent. We are inclined to endorse the observatiolls made
F by Krishna Iyer, J. and Bhagwati, J. as referred to in the cases
mentioned above.

In Anandji Haridas & Co. v. Engineering Mazdoor Sangh and
Anr.(2), Sarkaria, J. speaking for the: Court observed as follows ;-

G "It is only where a statute is not exhaustive or where
its language is ambiguous, unc:ertain, clouded or susceptible
of more than one meaning or shades of meaning, that
external evidence as to the evils, if any, which the statute
was intended to remedy, or of the circumstances which led
H
O> [1974) 4 sec 152.
121 [t975J 3 sec 862.
s.i'. GUPTA v. UNION (Fazal Ali, J.) 141
to the passing of the statute may be looked into for.the 'A
purpose of ascertaining the object which the legislature had
in view in using the word in question."

In The Sole Trustees, Lok Shikshana Trust v. Commissioner
of Income Tax, Mysore,(~) this Court made the following obser-
vations : B
"But, in the case before us, the real meaning and
purpose of the words used cannot be understood at all
· satisfactorily without referring to the past history of legisla-
tion on the subject and the speech of the mover of the
amendment who was, undoubtedly, in the best position to c
explain what defect in the law the amendment had sought
to remove."

In State of T~imil Nadu v. Pyare Lal Malhotra and Ors.(2) Beg,
J. (as he then was) observed thus :
D
"The reason given, in the Statement of objects and
Reasons of the 1972 Act, for an elucidation of the "defini-
tion" of iron and steel, was that the "definition" had led to
varying interpretation by assessing authorities and the
courts so that a comprehensive list of specified declared
iron and steel goods would remove ambiguity. The select E
Committee, which recommended the amendment called
each specified category "a sub-item" falling under "iron and
steel."

In this case, the court relied on the Report of the Select
Committee as also on the statement of Objects and Reasons of the F
Act in order to elucidate the definition of certain words used in the
statute.

To the same effect is a later decision of this Court in Jaisingh
Jairam Tyagi and Ors. v. Mamanchand Ratilal Agarwal and Ors.( 8 ).
where the court observed as follows :- G

"Amending Act 22 of 1972 was, therefore, enacted for
the express purpose of saving decree which had already

ct> [19761 1 sec 254. H
(2) [1976) 1 sec 834.
(3) [1980J 3 sec 162.
748 SUPRilMil cotJRt REPOR.ts iI98Z] i s.t.ll
A been passed. The Statement of Objects and Reasons of the
Amending Act stated :

Same view was taken in a batch of appeals by this Court in
M/s. Polestar Electronics (Pvt.) Ltd etc. v. Additional Commissioner,
Sales-Tax & Anr.etc. (1) where Bhagwati, J. (one of us) took into
B consideration the subsequent history of the Act as also the State-
ment of Objects and Reasons in order to construe certain provisions
of the statute concerned and observed thus·:

"The subsequent history of the Act also supports the
construction which we are inclined to place on Section
c 5(2)(a)(ii) and the second proviso. Section 5(2)(a)(ii) was
amended with effect from May 28, 1972 by Finance Act,
1972 and the words 'in the Union Territory of Delhi' were
added after the word ·manufacturer' so as to provirle that
manufacture should be inside the territory ..... .It is clear
from the statement of objects and reasons that this amend-
D ment was not introduced by Parliament ex-abundanti
cautela, but in order to restrict the applicability of the
exemption clause in Section 5 (2)(a)(ii). The statement of
objects and reasons admitted in clear and explicit terms
that: -

E Jn Mangalore Electric Supply Co. (supra) Chandrachud, J.
(as he then was) relied on the legislative history of the provision of
the statute concerned in order to construe the intention of the
legislature and pointed out thus ::

"The legislative history of the Section 12B(I) furnish-
F es an important clue to the question raised by the
appellant's counsel."

In Dadaji alias Dina v. Sukhdeobabu & Ors.(') this Court made
the following observations :

G "Even though the proce(:dings of the Joint Committee
cannot be relied upon for the purpose of construing the
Order, they may be looked into to ascertain the circum-
stances in which the several communities were grouped
under one entry or the other."
H
co [197811 sec 638.
(2) L!980l 1 sec 621.
SJ>. GUPTA v, UNtON (Fazal Ali, i.)

Category 'C' A

This Category consists of those cases which take the view that
words cannot be omitted from the statute or supplied to it if they
are not there. In other words, in interpretation of statute, the
doctrine of casus omissus is a fundamental test. In A.K. Gopalan's
case (supra) S.R. Das J. very poignantly pointed out thus : B

"The Constitution has by article 21 required a procedure
and has precribed certain minimum requirements of proce-
dure in article 22, To add to them is not to interpret the
Constitution but to recast it according to our intellectual
yardstick and our unconscious predilections as to what an c
ideal Constitution should be."

(Emphasis supplied)

A similar view was taken by Das J. in Nalinakhya Bysack v.
Sham Sunder Haldar & Ors.(1 ) where he very pithily observed thus :
D
·'It must always be borne in mind, as said by Lord
Hulsbury in Commissioner for Special Purpose of lnrome
Tax v. Pemsel (L.R. (1891) A.C. 531 at p. 549) that it is
not competent to any Court to proceed upon the assump-
tion that the Legislature has made a mistake. The Court
E
must proceed on the footing that the Legislature intended
what it has said. Even if there is some defect in the
phraseology used by the Legislature the Court cannot, as
pointed out in Crawford v. Spooner (6 Moo P.C. 1) aid the
Legislature's defective phrasing of au Act or add and
amend or, by construction, make up deficiencies which are
left in the Act. Even where there is a casus omissus, it is
as said by Lord Russel of Killowen in Hansraj Gupta v.
Official Liquidator of Dehra Dun Mussorie Electric

- Tramway Co. Ltd. [(1933) L. R. 60 I.A. 13)] for others than
the courts to remedy the defect."

Thus, this Court has clearly held that in construing a statu-
G
tory or a Constitutional provision, the court should not presume
that the legislature has either committed a mistake or has omitted
something which was very necessary. Das J. very rightly remarked
that it was not for the court but for others to remedy the defect, if

(1) f1953] SCR 533.
750 stJi>ilEME cou.Rt ilili'okts iI 9s2j i s.c.ll.
A
any, found in a statutory provision. If we acceept the argument of
Mr. Seervai and read the word 'consent' in Art. 222 by supplying
the omission, we will be violating the cardinal principle of interpre-
tation as adumbrated by Das, J. in the case supra.

In Sri Ram Narain Medhi v. Srate of Bombay(1) the law on the
B
subject was very succinctly and clearly laid down by this Court and
N.H. Bhagwati J. observed thus :

"Acceptance of the interpretation which is sought to be
put upon these words by the petitioners would involve the
c addition of words "in the process of the acquisition by the
State of any estate or of any rights therein'' or "in the pro-
cess of such acquisition" which according to the well known
canons of construction cannot be done. If the language
of the enactment is clear and unambiguous it would not be
legitimate for the Courts to add any words thereto and
D evolve therefrom some sense which may be said to carry
out the supposed intentions of the legislature."

We find ourselves in complete agreement with these observa-
tions which aptly apply to the present case so far as Art 222 is con-
cerned and are sufficient to demolish the argument of Mr. Seervai
E that the word 'consent' should be added to or read into Art. 222
even if it is not there.

In Commis•ioner of Income Tax, Central Calcutta v. National
Taj Traders( 1) Tulzapurkar, J. speaking for the court highlighted the
importance of the doctrine of casus omissus in a very poignant
F exposition of the law on the subject and opined thus ;

"In other words, under the first principle a casus
omissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found
in the four corners of the statute itself but at the
same time a casus omissus sb ould not be readily referred
G
and for that purpose all the parts of a statute or section
must be construed together and every clause of a section
should be construed with reference to the context and
other clauses thereof so that the construction to be put on
H
(I) (1959] Supp, I SCR 489.
(2) [1980J t sec 310.
S.P. GUPTA v. UNION (Faza/ Alf, J.) 751

A
a particular provision makes a consistent enactment of the
whole statute.'

Thus, Tulzapurkar J. laid down three conditions under
which omissions could be supplied to a statute-

(I) that there was a clear necessity for the same, B

(2) that the reason for supplying the omission was to be
found in the provisions of the statute itself expressed
or by necessary intendment, and

(3) that the omission was to be supplied only to make the C
provision consistent with the object of the statute.

It is manifest that none of these conditions apply to Art. 222
and therefore to supply the omission by reading the word 'consent'
would really be going against the principles laid down by this Court
in the aforesaid case. D
In Shri Gurbaksh Singh Sibbia and Ors. v. State of Punjab(1)
Chandrachud C.J. while dealing with this particular aspect of canon
of construction of a statute, very pithily observed thus :

'By any known canon of construction, words of width
E
and amplitude ought not generally to be cut down so as
to read into the Language of the statute restraints and.
conditions which the legislature itself did not think it proper
or necessary to impose."

It follows from the observations made by this Court that if the
word 'consent' is read into Art. 222 then it will amount to imposing F
unnecessary restraint5 and conditions in the Article which are not
there at all and which cannot be done under the well-known rule5
of interpretation of statutes.

Category 'D'
G
In this category we shall include those cases which hold that a
speech made by a Minister or by a Member of Parliament is neither
admissible nor permissible to construe a statutory or a constitutional
provision. It may, however, be noted that a speech made in a
debate is different from the Report of a Select Committee or views H
(t) [ t9SOJ 2 sec 565.
752 SUPREME COURT REPORTS (1982] 2 s.c.R.
A
expressed in close proximity to the making of a statute or introduc-
tion or insertion of a statutory provision where the statement would
undoubtedly be relevant because it forms part of the formative
process of the statutory provision iteself. We have highlighted this
particular aspect of the matter because in the instant case, we shall
B show that there are statements made by some of the Fouding
Fathers when the Constitution was being framed and the reasons
given by the speakers formed 1he basis and foundation of the con-
stitutional provisions inserted in the Constitution.

In A.K. Gopalan's case (supra) Sastri J. while dwelling on the
C admissibitity of the speech made by a Minister on the floor of the
House observed thus :

"A speech made in the course of the debate on a bill
could at best be indicative of the subjective intent of the
speaker, but it could not reflect the inarticulate mental
D process laying behind the majority voted which carried the
bill. Nor is it reasonable to assume that the minds of all
those legislators were in accord."

Similar view was taken in United States v. Trans Missouri
Freight Association( 1) where the following observations were made:
E "Those who did not speak may not have agreed with
those who did, and tho<;e who spoke might differ from each
other."

To the same effect is a decision of this Court in Aswini Kumar
Ghosh and Anr. v. Arabinda Bose and Anr.( 2 ) where Sastri CJ
F speaking for himself, Bose and Ghulam Hasan JJ. observed as
follows:

"As regards the speeches made by the members of
the House in the course of the debate, this Court has
recently held that they are not admissible as extrinsic aids to
G the interpretation of statutory provisions."

Muukherjea J. also spoke in a similar strain and obser-
ved as follows:
H
(I) 169 us 290.
(2) [1953] SCR 1.
S.P. GUPTA v. UNION (Fazal Ali, J.) 753

A
" ... the language of a "Minister of the Crown" in pro·
posing a measure in Parliament which eventually becomes
law is inadmissible."

A reference to the legislative debates or the speeches B
that were actually delivered in the floor of the House is. in
my opinion inadmissible to aseertain the meaning of the
words used in the enactment."

and Das J. observed thus:
c
"that the debates and speeches in the Legislature which
reflect the individual opinion of the speaker cannot be
referred to for the purpose of construing the Act as it finally
emerged from the Legislature and so the debates must be
left out of consideration."
D
It appears that while all the Judges were unanimously of the
opinion that speech by a Minister or a speaker in the course of a
debate was not admissible to construe the intention of the legislature,
the majority judgment held that external aid in the nature of the
legislative debates which resulted in the corning into existence of
the constitutional provisions and were in close proximity to the same, E
could be pressed into service. On this point we would like to
follow the majority decision on the subject, subject of course to the
condition that the language of a statute does not clearly spell
out the dominant object which was sought to be achieved by the
legislature.
F
In State of West Bengal v. Union of lndia(1) Sinha, CJ.
speaking for himself, Jafer Imam, Shah, Ayyangar and Mudholkar
-...\ JJ. observed as follows:

"A statute, as passed by Parliament, is the expression
(;
of the collective intention of the legislature as a whole, and
any statement made by an individual, albeit a Minister, of
the intenrion and objects of the Act cannot be used to cut
down the generality of the words used in the statute.
(Emphasis ours)

(I) [1964] I SCR 371,
154 SUPREME COURT REPORTS [ 1982] 2 s.c.R.

A In another Constitution Bench decision in Shyamlal Mohan/al
v. State of Gujarat(1) Shah J. speaking for the Court endorsed as the
stand taken in the case referred to above and observed as follows: --

"In construing the words used by the Legislature,
speeches on the floor of Legislature are inadmissible. I do
B not refer to the speech for the purpose of interpreting the
words used by the Legislature, but to ascertain the historical
setting in which the statute which is parent to s. 94 (I) came
to be enacted."

The learned Judge clearly held that while a speech on the
c floor of a legislature was inadmissible in ascertaining the real mean-
ing of the word used by the legislature, the historical setting in which
the statute was passed could doubtless be admissible. This decision,
therefore, make a clear departure, on the point of admissiblity of
historical setting, from the minority dissenting judgment of Das J. as
indicated above,
D
In Anandji Haridas's case (supra), this Court observed thus:

''We are afraid what the Finance Minister said in his
speech cannot be imported into this case and 'Used for the
construction of clause (c) of section 7. The language of
that provision is manifestly clear and unequivocal. It has
E
to be construed as it stands, according to its plain gramma-
tical sense without addition or deletion of any words."

In Lok Shikshana Trust's case (supra), this Court made the
following observations:

"It is true that it is dangerous and may be misleading
to gather the meaning of the words used in an enactment
merely from what was said by any speaker in the course of
a debate in Parliament on the subject. Such a speech
cannot be used to defeat or detract from a meaning which
clearly emerges from a consideration of the enacting words
G actually used."
Thus, on a full and complete consideration of the decisions
classified under the various categories, the propositions that emerge
from the decided cases of this Court and other foreign courts are as
H follows:

(!) [1965) 2 SCR 457.
S.P. GUPTA v. UNION (Pazal Ali, J.) 755

(1) Where the language of a statute is clear and unambi · A
guous, there is no room for the application either of
the doctrine of casus omissus or of pressing into service
external aids, for in such a case the words used by the
Constitution or the statute speak for themselves and
it is not the function of the court to add words or
expressions merely to suit what the courts think is the B
supposed intention of the legislature.

(2) Where, however, the words or expressions used in the
constitutional or statutory provisions are shrouded in
mystery clouded with ambiguity and are unclear and
unintelligible so that the dominant object and spirit of
c
the legislature cannot be spelt out from the language,
external aids in the nature of parliamentary debates,
immediately pre~eding the passing of the statute, the
report of the Select Committees or its Chairman, the
Statement of Objects and Reasons of the statute, if n
any, or any statement made by the sponsor of the
statute which is in close proximity to the actual intro-
duction or insertion of the statutury provision so as
to become, as it were, a result of the state-
ment made, can be pressed into service in order to
ascertain the real purport, intent and will of the legisla-
ture to make the constitutional provision workable.

We might make it clear that such aid may neither be
decisive nor conclusive but they would certainly assist the
courts in interpreting the statute in order to determine the
avowed object of the Act or the Constitution as the case f'
may be.

(3) Except in the aforesaid cases, a mere speech of any
Member made on the floor of the House during the
course of a parliamentary or legitlative debate would
not be admissible at all because the views expressed G
by the speaker may be his individual views which
may or may not be by the majority of the Members
accepted present in the House.

(4) Legislative history of a constitutional provision though H
not directly germane for the purpose of construing a
statute may, however, be used in exceptional cases tQ
756 SUPREME COURT REPORTS ( 1982) 2 S.C.R

A denote the beginning of the legislative process which
results in the logical end and the finale of the statutory
provision but in no case can the legislative history take
the place of or be a substitute for an interpretation
which is in direct contravention of the statutory provi-
sion concerned.
8
(5) Where the scheme of a statute clearly shows that cer-
tain words or phrases were deliberately omitted by the
legislature for a particular purpose or motive, it is not
open to the court to add those words either by con·
forming to the supposed intention of the legislature or
c because the insertion or the omission suits the ideol~gy
of the Judges deciding the case. Such a course of
action would amount not to interpretation but to inter-
polation of the statutory or constitutional provisions,
as the case may be, and is against all the well establish-
D ed canons of interpretation of statutes.

The main reason behind the principles enunciated above is
that the legislature must be presumed to be aware of the expanding
needs of the nation, the requirements of the people and above all,
the dominant object which the legislation seeks to sub;erve
E Thus, where the language is plain and unambiguous the court
is not entitled to go behind the language so as to add or supply
ommissions and thus play the role of a political reformer or of a
wise counsel to the legislature.

On the other hand, the counsel for the respondents have
F strongly urged that the entire argument of Mr. Seervai to the effect
that the word 'consent' should be read into Art. 222 is in vague and
there is not the slightest vagueness or ambiguity in the words used in
Art. 222 to necessitate the reading of the word 'consent' therein.
The counsel further urged that the attempt of Mr. Seervai is merely
to create a so-called cloud of suspicion and mystery and then to
G resolve it by asking the court to read consent into it. In other
words, the counsel for the respondents have fully supported the
propositions which we have adumbrated above.

Assuming for the sake of argument, particularly in view of the
H far-reaching consequences of our decision and the large magnitude
of the arguments that have been addressed to us, that the dominant
S.P. GUPTA v. UNION (Fazal Ali, J.) 757
A
object of Art. 222 is not very clear or unambiguous, we may discuss
the legislative history of introduction of Art. 222 in the Constitution
as also the parliamentary debates or Reports of the Drafting or
Select Committees as a direct result of which the said Article came
into existence.
B
So far as the legislative history of the provisions prior to the
constitution regarding the functioning and the constitution of the
High Court is concerned, we might start from the Government of
India Act, I 915 (hereinafter referred to as the '1915 Act') because
the prior Acts are neither helpful nor germane for construing the
questions at issue in these petitions. Sections 101 to 114 of the 1915 c
Act are the provisions which relate to the High Courts. It may be
noted that i11 this Act, there was no provision at all for transfer of a
Judge from one High Court to another. Section 101 provided that
each High Court shall consist of a Chief Justice and as many other
Judges as His Majesty may think fit to appoint. This is the
precursor of Art. 217 of our Constitution. It may be noticed that D
in the 1915 Act while the appointment of Judges vested in His
Majesty the King but the power of appointment of Addi. Judges
was vested in the Governor-General-in-Council although the Addi,
Judges so appointed had the same powers as the Judges appointed
by His Majesty. This complexion has been completely changed so
far as the provisions of our Constitution are concerned. Further, E
under s. 102 a Judge of a High Court was to hold office during His
Majesty's pleasure unless he resigned on his own. This provision
has not been incorporated in our Constitution which has provided
complete security of tenure to a Judge of a High Court who is to
continue until he reaches the age of superannuation which is
62 years in the case of a High Court Judge and 65 years in the case F
of a Supreme Court Judge. The only manner in which a Judge can
be removed before hii term is by impeachment as provided under
Art. 124(4) read with the provisions of the Judges (Inquiry) Act of
1968. The other provisions are not relevant for the purpose of
deciding this issue. Section 113 conferred powers on His Majesty
to establish an Additional High Court in any territory in British G
India.

Thus, the only common feature which has been retained in
our Constitution is regarding the appointment of Additional Judges H
of any High Court for a period not exceeding two years and while
. 758 SUPREME COURT REPORTS [1982) 2 S.C.R.

A this provision was introduced by the 7th An~endmcnt of the Consti·
tion, it was slightly different from the one cantained in proviso (i)
to sub-section (2) of s. IOI of the 1915 Act \\ hich may be extracted
thus:

"the Governor-General in Council may appoint persons
B to act as additional judges of any High Court for such
period, not exceeding two years. as may be requ'red, and
the judges so appointed shall, whilst so acting, have all the
powers of a judge of the High Court appointed by His
Majesty under this Act."
c In Art. 224, the purpose, viz., arrears, is mentioned which was
conspicuously absent from the 1915 Act perhaps becam.e at that time
there were no heavy arrears.

The next statute which merits consideration is the Government
D
of India Act, 1935 (hereinafter referred to as the '1935 Act') which is
merely a precursor of our Constitution as most of its provisions are
based on the pattern and structure of this Act. The relevant sections
dealing with High Courts are ss. 219-231 and 253-256. Section 220
makes two marked improvements on the previous provisions of the
E 1915 Act-(l) that every Judge appointed by His Majesty held office
until he attained the age of 60 years and not at the pleasure of His
Majesty as provided by s. I 02 of the 1915 Act, and (2) Section
220(2) (b) expressly states that a Judge can he removed on the
ground of misbehaviour or infirmity of body or mind if the Judicial
Committee of the Privy Council, on a reference made to it by His
F Majesty, reported that the Judge ought on any such ground be
removed. This provision has been retained by our Constitution but
the procedure of removal has been substituted by the procedure of
impeachment as contained in Art. 124(4) read with Art. 218. .,_

Although there is no specific provision for transfer of a High
G Court Judge from one High Court to another, an implied power
seems to have been conferred in s . 220 (2) (c) the 1935 Act, which
may be extracted thus:

"The office of a judge shall be vacated by his being
H appointed by His Majesty to be a judge of \he federal
Court or of another High Court,"
S.P. GUPTA v. tJNlON (Pazal Ali,' J.) 759
A
It may be pertinent to note that s. 220 (2) (c) provides that a
Judge shall vacate his office either on his being appointed as a Judge
of the Federal Court or of another High Court. This provision
does not contain any element or concept of transfer of a Judge from
one High Court to another. What it contemplated is that if a Judge
of a High Court was to be transferred he would have to be appointed
to that High Court. Our Constitution, however, makes a clear
distinction so far as this aspect of the matter is concerned inasmuch
as Art. 222 expressly uses the word 'transfer' rather than the word
'appointment' when a Judge is trans;"erred from one High Court to
another.

So far as our Constitution is concerned while Art. 222 confers c
on the President the power of transferring one Judge of
a High Court to another in consultation with the Chief Justice
of India, Art. 217 (c) provides that the office shall be vacated on his
being appointed as a Judge of the Supreme Court or if he is trans-
ferred to any other High Court. It may thus be noticed that
Art. 217 (c) is placed in Chapter V which deals with High Courts D
and may be extracted thus:

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

While in the case of a Judge who goes to the Supreme Court,
the word "appointed" is used to indicate that this is a fresh appoint·
ment in a higher court, or rather the highest court in the country,
whereas when a Judge is transferred from one High Court
to another, t~e word 'transfer' in contradistinction to the word F
'appointed' as mentioned in s. 220 (2) (c) of the 1935 Act, has been
deliberately used which cleHly shows that the two modes of vacation
of office by a sitting Judge are quite different. We have mentioned
this fact because Mr. Seervai has argued before us that the ·transfer
of a Judge from one High Court to another results in vacation of
his office and therefore must be construed to be a fresh appoint- G
ment implying thereby that he co.J Id be tranferred only if he gives
his consent as when he is first appointed to the High Court.
The fact that he gives his consent has to be implied, for
he cannot be appointed as a High Court Judge against his
consent. H
766 SUPREME COURT REPORTS (1982] i s.c.ii

A We have mentioned these circumstances in order to highlight
the second argument of Mr. Seervai regarding interpretation of
Art. 217 (c) on the basis of which he contended that this would
show that the transfer of a Judge under Art. 222 amounted to a first
or a fresh appointment in the transferee court, as the moment a
Judge is transferred to another High Court, he vacates his office in
B the original High Court and assumes the charge of a new office only
after taking the oath. It was suggested by Mr. See:rvai that under
proviso (c) to Art. 217 just as a Judge vacates his office on being
appointed as a Judge of the Supreme Court, identical consequences
follow when he is transferred to any other High Court.

c The Attorney General has rightly pointed out that the proviso
itself makes a difference between vacating the office by a Judge who
is appointed to the Supreme Court and a Judge who is transferred.
A Judge who is transferred merely vacates the office in a limited
sense, namely, that he cannot act as a High Court Judge in the
High Court where he was appointed but the fact remains that until
D he takes oath in the transferee High Court, he continues to be a
Judge of the Original High Court. For these reasons, this argument
does not appeal to us.
Finally, there is one more circumstance which clearly shows
that a transfer cannot be treated as a first or fresh appointment. It
wo~ild be seen that the heading of each Article which deals with the
E
appointment of Judges clearly mentions this fact. Take for instance,
Art. 21. 7-the heading is appointment and conditions of a Judge of
a High Court. Article 223 realtes to appointment of acting Chief
Justice and Art. 224 deals with appointment of additional and acting
Judges. It may be pertinent to note here that Art. 223 comes
immediately after Art. 222 · where the heading is transfer
F
of a Judge from one High Court to another. The Constitution has
thus itself brought out a clear distinction between transfer and
appointment. Similarly, Art. 224A deals with appointment of retired
Judges at sittings of High Courts. There are number of other
instances where the word 'appointment' is used in contradistinction
G to transfer in respect of authorities other than High Court Judges.
This is, therefore, also an important circumstance to negative the
argument of Mr. Seervai that a transfer amounts to a fresh or a first
appointment in the transferee High Court and, therefore, consent
becomes a necessary concomitant of such a transfer.
H
It may also be pointed out that whenever a legislature or
constituent assembly uses a particular phrase in contradistinction
S.P. GUPTA v. iJNiON (Fazai Aii, J.) 76i

to another phrase it is not possible to read the two phrases so as to
A
indicate the same purpose. In the instant case, the Constitution has
used the word 'appointed' in the case of a Judge of the Supreme
Court and 'transfer' in the case of.a Judge of a High Court. A
persual of the language of Art. 2 I 7(c) leads to the irresistible con-
clusion and logical inference that the Founding Father's have made
8
a clear distinction between transfer and appointment. It is true that
in both cases the office held by a Judge is vacated in a fictional sense
because there is a complete change in the life of the Judge but that
does not mean that the incidents of both these appoint men ts are the
same. A Judge of the High Court when appointed as a Judge of
the Supreme Court cannot be equated in any respect with a Judge
of the High Court who is transferred to another High Court and
c
continues to possess the same status, position and emoluments which
is essentially different from a Judge of the Supreme Court.
Mr. Seervai, however, submitted that both Art. 124 which relate to
the appointment of a Supreme Court Judge and Art. 217 which
provide for the appointment of a High Court Judge do not mention D
anything about obtaining the consent of a Judge which has to be
implied in both the cases. On a parity of reasoning it was submitted
that where a Judge is appointed in a High Court or transferred to
another Court, every time it is a new appointment as a result of
which the Judge of the High Court on being transferred to another
court has to take a fresh oath. because he ceases to be a Judge E
in the court of its origin. It is true that on being transferred
to another High C0urt a fodge ceases to be a Judge but
then he ceases to be a Judge of the transferor court only and does
not cease to be a Judge for all times to come so as to make his
transfer in the transferee court a fresh appointment. This is clear
from paragraph I !(iii) to the Second Sch,dulc to the Constitution F
which runs thus :

"joining time on transfer from a High Court to the
Supreme Court or from one High Court to another."

It is true that in this schedule joining time is mentioned on
transfer from a High Court to Supreme Court or from one High
G
Court to another and the word 'appointment' has not been used as
such. That 'however makes no difference because this schedule
only refers to a small matter of joining time which both the judges,
viz., a judge appointed to the Supreme Court and the judge trans-
H
ferred, are entitled to avail. Nothing, therefore, turns upon the
language of para 11 (iii) of the Second Schedule.
762 · SlJPll.EMll COlJRT RllPOlttS (1982) 2 s.c.R.

Lastly, it was contended that the. fact that a Judge who is
transferred from the original High Court to another High Court has
to take oath suggests that his transfer amounts to an appointment
and that is why the taking of a fresh oath become necessary. We
are, however, unable to agree with this contention. It is obvious
that when a Judge was appointed in the original High Court be had
B taken the oath of bis office which bound him to act as a Judge of
that particular High Court. Since by virtue of the transfer, the court
is changed, a fresh oath becomes necessary as a clerical formality to
indicate that although his appointment as a Judge of High Court
does not cease to exist he discharges his duties as a Judge in
another court in respect of which he had not taken the oath of
office. In these circumstances, it cannot be said that merely because
a transferee Judge has to take a fresh oath the transfer becomes a
new or a fresh appointment. Moreover, it is doubtful if the taking
of a fresh oath is necessary at all because the warrant signed by the
President appointing a person as a Judge of a High Court holds
D good in the transferee court and the place is indicated by the noti-
fication issued under the authority of the President which really
means that after the notification the warrant would have to be read
to indicate that the Judge was transferred to transferee court where
he is to act as a Judge. At any rate, we do not consider it necessary
to go into this question in this particular case.
E
The last plank of the argument of Mr. Seervai was that no
stress can be laid on the distinction between 'appointment' and
...
'transfer' because these are synonymous and interchangeab!e terms
and in this connection he relied on a decision of this Court in His
Holiness Kesavananda Bharati Sripadagalavaru v. S1a1e of Kerala(1)
F
where Chandrachud J. (as he then was) observed as follows :

"These are not words occurring in a school text-book
so that one can find their meaning with a dictionary on
one's right and a book of grammar on one's left. These are
words occurring in a Constitution and one must look at them
not in a school-masterly fashion, not with the cold eye of a
lexicographer. but with the realization that they occur in
"a single complex instrument, in '\\bich one part may
throw light on another", so that "the construction must hold
a balance between all its parts ...... A word is not a crystal,
H
(I) (1973] Supp. S.C.R. L
S.P. GUPTA v. UNION (Fazal Ali, J.) 763
transparent and unchanged; it is the skin of living thought A
and may vary greatly in colour and content according to
circumstances and the time in which it is used".

This Court merely held that in certain circumstances different
words may not necessarily produce a change in the meaning and
those observations have to be read with reference to the context. In B
the instant case, however, the plain and unambiguous language of
Art. 217(c) and Art. 222 cannot be stretched to indicate that
'appointment' and transfer' are synonymous terms when the consti-
tutional provisions make it very clear that the power of transfer
and the power of appointment are two different kinds of powers to
be exercised in different ways. We, therefore, reject this part of the C
argument of Mr. Seervai as being without substance.

Having dealt with the legislative history and the setting, Art.
222 which, as pointed out by us earlier. took its birth for the~First ,
time in our country in the form of s. 220(2)(c) of the 1935 Act and
was later inserted in then constitution after a full parliarpentary D
debate. As we have already held that detailed speeches made on
the floor of the House or the statement of Ministers are not admis-
sible, we would confine ourselves only to these debates ot statements
which have been made by the sponsors or the architects of the
Constitution itself and which immediately resulted in the introduc-
tion of Art. 222 in our Constitution. E
On September 16, 1949 one of the architects of our constitu-
tion, Dr. Ambedkar while proposing the insertion of Art. 128 (which
became the present Art. 222) highlighted the various aspects of the
philosophy and the doctrine of transfer of Judges and speaking with
persuasion and poignancy observed thus(1) • F
"The only question that we are called upon to consider
is when a person is appointed as a judge of a High Court of
a particular State, should it be permissible for the Govern-
ment to transfer him from that Court to a High Court
in any other State. If so, should this transfer be accom- G'
panied by some kind of pecuniary allowance which would
compensate him for the monetary loss that he might have
to smtain by reason of the transfer? The Drafting Com-
mittee felt that since all the High Courts so far as the
appointment of judges is concerned form now a central ff
(I) Constituent Assembly Debates Vol. 11 (1949) p, 580.
SUPREME COURT REPORTS [l 982] 2 s.c.R..

A subject, it was desirable to treat all the judges of the High
Courts throughout India as forming one single carde like
the I.C.S. and that they should be liable to be transferred
from one High Court to another. If such power was
not reserved to the Centre the administration of
justice might become a very difficult matter. It might
B be necessary that one judge may be transferred from
one High Court to another in order to strengthen the
High Court elsewhere by importing better talent which
may not be locally avaifoble Secondly, it might be
desirable to import a new Chief Justice to a High Court
c because it might be desirable to have a man who is
unaffected by local politics and local jealousies. We thought
therefore that the power to transfer should be placed in the
hands of the Central Government.

We also took into account the fact that this power of
transfer of Judges from one High Court to another may be
D abused. A Provincial Government might like to transfer a
particular judge from its High Court because that judge
had become very inconvenient to the Provincial Govern-
ment by the particular attitude that .he had taken with
regard to certain judicial matters, or that he had made a
nuisance of himself by giving decisions which the Provincia I
E Government did not like. We have tak n care that in
effecting these transfers no such considerations ought to
prevail. Transfers ought to take place only on the ground
of convenience of the general administration. Consequently ,
we have introduced a provision that snch transfers shall
take place in consultation with the Chief Justice of India
F who can be trusted to advise the Government in a manner
which is not affected by local or personal prejudices."
(Emphasis supplied)
Thus, the speech coming as it did immediately before Art. 222
was inserted completely demolishes the argument of :vtr. Seervai
G because the apprehensions and fears expressed by him are found in
the statement of Dr. Ambedkar and he had made it a point to
emphasise that the power of transfer should serve three purposes :-
(i) that it might be necessary to transfer a judge from one
High Court to another to strengthen the transferee
H court by importing better talent in which the said Court
may be lacking.
s P. oiJPtA v. UNiON (Fazal Ali, i.) 765
(ii) that it might be desirable to have a Chief Justice A
from outside who is unaffected by local politics
and local jealousies, and

(iii) that transfer should be made only on the ground
of convenience and general administration and
since the transfers could be made by tbe President B
in consultation with the Chief Justice of India,
who is the highest authority in the country, it can
be safely presumed that exercise of such a power
would not be affected by local or personal
prejudices.
c
These observations, therefore, furnish a complete answer to the
two arguments of Mr. Seervai that 'consent' should be read into
Art. 222 or that the transfer amounted to a fresh appointment.

It may be mentioned that even in the Revised Draft, Art. 222
ran thus :-(1)
D

"222. Transfer of a Judge from one Hight Court to
another.

(I) The President may transfer a Judge from one High
Court to any other High Court within the territory of E
India.

(2) When a Judge is so transferred, he shall, during the
period he serves as a Judge of the other Court, be
entitled to receive in addition to his salary such
comepensatory allowance as may be determined by F
Parliament by law and until so determilled, such
compensatory allowance as the President may by
order fix."

It would be noticed that in this draft Article there was no
mention of consultation of CJI by the President but this seems to
G
have been later introduced as a result of the speech of Dr. Ambedkar
as indicated above. Furthermore, it would appear from the Note
appended by Mr. Santhanam in his book 'Constitution of India' as
--'!'
to now and under what circumstances the present Art. 222 came to
H
(I) The Framing of India's Constitution, by B. Shiva Rao, Vol. IV p. 826.
766 SUPREME COURT REPORtS ( i 982) 2 S.C.R.

A be incorporated in the Constitution, where at page 169 the author
says thus :

"This is a new article inserted in the final stage. It
was objected that this power might be used to punish a
judge who might not be in the good books of the Central
B ·Government. It was also suggested that such tiansfer should
be made only the consent of the judge concerned. This sugges-
tion was rejected because it might become necessary in the
national interests to send a competent judge to some part of
India in spite of his own inclinations. The President may be
trusted not to use this power to the detriment of judicial
c independence,"

(Emphasis supplied)

This note clearly shows that even at the time when Art. 222
was taking its birth there was some talk of making the transfer with
D the consent of the Judge concerned but this idea was given up when
it was pointed out that in the national interest it may be necessary to
send a competent judge to another High Court and this policy may
be stalled by the judge by withholding his consent. In other words,
the idea of 'consent' having been conceived, discussed and rejected
clearly shows that the Founding Fathers deliberately omitted the
E word ·consent' from Art. 222 and that knocks the bottom out of the
argument of Mr. Seervai that if the Founding Fathers rejected the
concept of 'consent', the court should still read it into the Article
which is patently against all canons of interpretation of statutes.

It was suggested that the note of 1>"1r. Sa nthanam cannot be
F treated to be the last word in the matter. We are unable to agree
with this contention. Santhanam is riot merely the author of the
Constitution but he was also a Member of the Drafting Committee
and the Note fully shows that the speech made by Dr. Ambedkar
regarding Art. 222 (which in its draft form was Art. 128) was incor-
G porated according to the guidelines indicated by Dr. Ainbedkar.
The Note, therefore, finds ample support from what Dr.· Ambedkar
had said. No material has been placed before us to show that tbe
Note of Mr. Santhanam was wrong either on point of fact or on a
point of law. In our opinion, therefore, read with the speech of
H Dr. Ambedkar, the Note of Mr. Santhanam in regard to Ari. 222
clinches the issue and no further argument on this question can be
entertained.
S.P. GUPTA I'. UNION (Fazal Ali, 1.) 767

Finally, there is yet another aspect to which we may advert in A
order to understand the spirit, philosophy and pattern of our
Constitution. Shiva Rao in 'The Framing of India's Constitution'
(Vol. IV) refers to various speeches made after the adoption of the
Constitution. To begin with, Dr. Ambedkar while explaining the
various sources of the Constitution reminded the Members that
B
before finally drafting the Constitution. the Members of the Drafting
Committee had before them almost all the important Constitutions
of the big countries of the world. The American Constitution was
considered, the Australian Constitution was also taken into account
and comparisons were made with American, Canadian, South African
and Australian Constitutions. Dr. Ambedkar further pointed out a
distinctive feature in our Constitution which he. highlighed thus : (1 }
c
"In making comparisons on the basis of time consu-
med, two things· must be remembered. One is that the
Constitutions of America, Canada, South Africa and
Australia are much smaller than ours. Our Constitution n
as I said contains 395 articles while the American has just
seven articles, the first four of which are divided into
sections which total up to 21, the Canadian has 147, the
Australian 128 and the South African, 153 sections. The
second thing to be remembered is that the makers of the
Constitutions of America, Canada, Aus•ralia and South
Africa did not have to face the problem of amendments. E
They were passed as moved. On the other hand, this
Constituent Assembly had to deal with as many as 2,473
amendments. Having regard to these facts the charge of
dilatoriness seems to me quite unfounded and this Assembly
may well congratulate itself for having accomplished so
formidable a task in so short a time." F
Similarly, Dr. Rajendra Prasad, who was President of the
__. Drafting Committee, observed thus : (2)

"We considered whether we should adopt the American
model or the British model where we have a hereditary G
king who is the fountain of all honour and power, but who
does not actually enjoy any power. All the power rest in
the Legislature to which the Ministers are responsible. We
have had to reconcile the position of an elected President

(I) 'The Framing of India's Constitution' by B. Shiva Rao, Vol. IV, p. 936.
(2) Ibid. pp. 951-352.
768 SUPREME COURT REPORTS fl 982) 2 S.C.R
A with an elected Legislature and, in doing so, we have
adopted more or less the position of the British monarch
for the President .

Then we come to the Ministers. They are of course
8 responsible to the Legislature and tender advice to the
President who is bound to act according to that advice.
Although there are no specific provisions; so far as I know,
in the Constitution itself making it binding on the President
to accept the advice of his Ministers, it is hoped th at the
convention under which in England the King acts always
c on the advice of his Ministers will be established in this
country also and the President, not so much on account of
the written word in the Constitution, but as the result of
this very healthy convention, will become a constitutional
President in all matters."

D Dr. Prasad expressed a wish that by working the Constitution,
the people of the country will evolve a convention by which the advice
of Council of Ministers would be binding on the President and his
historical words have proved to be true and have now taken a cons-
titutional shape becau ;e by virtue of the Constitutional 42od Amend-
ment, the advice of the Council of Ministers has been made binding
E on the President and he has to act on such advice. Thus, a conven-
tion which was ingrained in the Constitution has now taken a
constitutional shape.

Lastly, Dr. Rajendra Prasad expressed his view that the
F Constitution undoubtedly made clear provisions for an independent
judiciary and observed thus : (1)

"We have provided in the Constitution for a judiciary
which will be independent. It is difficult to suggest any-
thing more to make the Supreme Court and the High
G Courts independent of the influence of the executive. There
is an attempt made in the Constitution to make even the
lower judiciary independent of any outside or extraneous
influence. One of our articles makes it easy for tne State
Governments to introduce separation of executive from
H judicial functions and placing the magistracy which deals

(I) 'Tb~ Framing of India's Constitution' by Shiva R110 (Vol. l\i) p. 954.
S.P. GUPTA v. UNION (Fazal Ali, J.) 769

with criminal cases on similar footing as civil courts. I A
can only express the hope that this long overdue reform
will soon be introduced in the States."

We have mentioned these facts at this stage for two reasons.
In the first place, we wanted to illustrate and emphasise the actual B
philosophy of the Constitution so that the various articles may be
read in the light of the views and the desire expressed by the Found-
ing Fathers. Secondly, the fact that our Constitution is based not on
the American but on the British pattern is established from the
observati ons extracted above and the internal evidence furnished by
the various provisions of the Constitution itself. It is true that we c
have borrowed some provisions from the American Constitution and
others from the Japanese Constitution but by and large our Cons-
titution is fashioned on the British pattern. Therefore, while consider-
ing the doctrine of privilege or the doctrine of candour it would be
safer to reply on English cases rather than the American doctrine.
However, this aspect of the matter will be dealt with at the appro- D
priate stage.

It was next c0ntended both by Mr Seervai and Dr. Singhvi
that non·consensual transfers of High Court judges are punitive in
nature and amount to punishment. Detailed contentions in this
E
regard have already been narrated by us when we dealt with their
contentions on this point. One of the cardinal points made out by
the learned counsel for the petitioners against non-consensual trans-
fers was that if a transfer is made without the consent of the judge
it will arm the Central Government witt a strong weapon to punish
a High Court judge, who either does not share the ideology of the F
Government or is not prepared to oblige it, by compelling him to
toe the line of the Government at the risk of being transferred.
Reliance was placed in support of this argument on a large number
of transfers that were made during the emergency resulting in writ
petitions filed in the Gujarat High Court in Seth's case where this
very point was argued on behalf one of the Judges who had moved G
the petition before the Gujarat High Court. It was also pointed
out that in the Supreme Court both Bhagwati and Untwalia JJ.
dissented from the majority view and particularly Untwalio J. men-
tioned the fact that the large number of transfers had created a
panic. It is true that there were quite a few transfers during the H
emergency which were not in consonance with the spirit of Art. 222
and that is why the Government had conceded this fact and took
770 SUPREMll COURT REPORTS (1982) ~ S.C.R

A steps to revoke the transfers by retransferring almost all the judges
to the High Courts from where they had been transferred. Even so,
the Government insisted that the point of law iiwolved should be
decided by this Court as a result of which the majority judgment
held that Art. 222 does not contemplate that a transfor should be
made only with the consent of the Judge concerned. Taking the
B argument at its face value, we cannot jump immediately to the
conclusion that in all cases non-consensual transfers would amount
to a punishment so as to arm the Government with a weapon to
punish a Judge for not toeing the lir.e of the Government. It is a
well-known saying that one swallow does not make a summer. It ..
seems that it is neither logical nor congruent to draw an irresistible
c inference merely from the massive transfers made during the emer-
gency inspired by particular motive to the conclusion that the power
of the President enshrined in Art. 222 would be exercised for colla-
teral reasons always in future also; more particularly so when this
Court in the majority judgment in Seth's case had laio down the
guidelines for transferring a judge from one court to another and
D also laid very great stress on the process of effective consultation,
the possibility of abuse of power is completely ruled out. This
Court in that case had laid down sufficient safeguards again~t a
wrong or colourable exercise of power by the President under Art.
222. Therefore, there is no reason to presume that any order which
is passed by the President under Art. 222 henceforward is bound to
E be mala fide or colourable and even if it is in a particular case or
cases, it is doubtless subject to judicial review.

It was than contended that a transfer of a judge from one High
Court to another entails evil consequences inasmuch as it uproots
F the judge from his hearth and home and transplants him in a new
and alien place where he has to start his life or career anew and face
several personal difficulties and inconveniences. Once it is conceded
that the power of transfer under Art. 222 is to be exercised in public
interest, then any inconvenience that is felt by the judge would
have to yield to the larger interest of the community so as to make
G the said article workable. Although Art. 222 is an extraordinary
power, whenever a person accepts judgeship of a High Court he is
fully aware that during his career as a judge the power under
Art. 222 could be exercised by the Presid~nt without his consent and
if knowing this he accepts the position of a High Court judge, he
H cannot be heard to say that he ought not to be transferred because
be woµJd sutf~r lot of inconv~pienc~.
S.P. GUPTA v. UNION (Fazal Ali, J.) 771

It is true that the transfer of a High Court Judge is an A
extraordinary phenomenon and is resorted to very sparingly. Though
not the usual incident of the career of a High Court Judge as in the
case of other services, particularly the subordinate judiciary the
provision for transfer is undoubtedly there and has to be worked out
in suitable cases. We shall deal with this a~pect of the matter in
greater detail when we come to the limb of the argument regarding B
the policy of general transfers. ·

Furthermore, the very concept of transfer under Art. 222 being
a punishment is highly derogatory to the high constitutional position
that a High Court judge holds. Such a constitutional appointment,
which makes a Judge a constitutional functionary and not a govern-
ment servant, more so when he obtains certain special privileges
c
having regard to the high position be holds, is against the very
concept of penalty or punishment. It is manifost that when a person
is punished for an offence or a mistake or an error, then be is to
undergo some penal process. In the case of a Judge who is transfer-
red, no such penal consequences are at all visited because on the D
plain term of Art. 2:2 the Judge has to get special facilities before
being transferred to the transferee High Court. Clause (2) of Art.
222 clearly provides that a transferred judge is also to receive in
addition to bis salary such compensatory allowance as may be deter-
mined by Parliament by law and until so determined such compen-
satory allowance as the President may fix. Thus, the granting of E
compensatory allowance to a judge in lieu of transfer completely
destroys the concept that the transfer involves a stigma or a punish-
ment. You don't have to award a person additional facilities if you
punish him and if you do, then the act cannot amount to a punish-
ment. Apart from the allowances, the High Court Judges (Conditions
of Service) Act and the Rules made therein clearly provide that a F
judge who is transferred from one High Court to another can always
avail of the special leave concession rules by visiting his home State,
alongwith his family, at Government cost once a year. The Judges
Rules, as amended, further enjoin that the Judge must be supplied
with a free furnished house which under the Amendment Act of
198 l is not even to be treated as a perquisite under the Income Tax
G
Act. It is true that some of these facilities are available to a Judge
in his original High Court also but the totality of the facilities taken
into consideration undoubtedly seek to make him as comfortable as
possible in the transferee court also. H
In the speeches and statements of the Members of the Drafting
Committee' p!!rticularly tho~t? of I:lr· AmbC?dkar Art. 222 (which W!!s
,.

772 SUPREME COURT REPORTS (1982] 2 S,C.R

A 128 in Draft Constitution) was introduced not by way of punishing
a judge but to import better talents in other High Courts and enable
the judge to work in a free and fair atmosphere where he can work
without any local influence. Indeed, if our Founding Fathers were
alive today and were to be told to their utter dismay that transfer
amounts to a punishment, they would have got the greatestshock of
B their life.

Far from being a punishment the transfer of a judge does not
involve any stain or stigma nor even the slightest reflection on bis
legal functioning or his judicial character or integrity. The transfer
c of a judge contemplated by Art. 222 is in the nature of a response to
a calJ of duty in the larger national interest of the country in order
to maintain and ensure absolute purity of judicial administration.
On being transferred the Judge would find himself free to work in an
independent atmosphere untramelled by any provincial or parochial
consideration, undaunted by any external or internal influences or
D local pulls or pressures and uninfluenced by the considerations of
class, caste or creed. He would also generate much greater confi-
dence in the people to whom be imparts justice which is bound to
enhance his judicial prestige and as a logical result would subserve
the concept of independence of judiciary. For a true and conscien-
tious judge there can be no higher honour than to create a feeling
E
that justice is not actually done but also appears to have been done,
the later being more important and fundamental quality of judicial
approach. The apprebensi:>n that a judge on being transferred to
another State is likely to face a hostile Bar is merely an anathema
and an illusion which bas neither a factual nor a legal existence. lf
F the Judge's behaviour towards the Bar is polite and courteous and he
gives a lit tie accomodation to the Bar he is bound to win laurels of
the Bar. In fact, the Bar always welcomes an outside judge who is
likely to build up a new judical structure and establish a flawless and
unblemished reputation. This is not merely a pious wish or an
ideal deam but a stark and speaking reality which is evident from the
G performance and reputation of Judges who had been transferred
outside their States and had proved to be not only successful but
memorable judges.

Judges transferred as CJ/Judges outsides their State.
H
I. Justice Sinha of the Patna High Court was transferred
and appointed as CJ in Nagpur High Court.
S.P. GUPTA v. UNION (Fazal Ali, J.) 773

2. Justice Sarjoo Prasad of the Patna High Court was A
appointed as CJ of Assam and later of Rajasthan
High Courts.

3. Justice C.P. Sinha of Patna High Court to be CJ of
Assam High Court
B
4. Justice Malhotra of Allahabad High Court to be CJ of
Assam High Court.

5. Justice Narasimham from Orissa to Patna as CJ.

6. Justice Khalil Ahmed from Patna to Orissa as CJ. c
7. Justice A.T. Harries from Punjab to Calcutta as CJ.

8. Justice S.R. Dasgupta from Calcutta to Karnataka
High Court
0
9. Justice Ansari from Andhra Pradesh to Kerala High
Court.

JO. Justice A.D. Koshal from Punjab & HaryanaHigh
Court to Madras High Court.

Apart fr0m these there were other transfers, a list of which was E
submitted by the counsel for the respondents.

These Judges have left an indelible imprint in the judiciary of
the State where on transfer or appointment they worked. We might
also mention that the Solicitor General in his statement at the Bar
drew our attention to the excellent manner in which our colleague F
Justice A.D. Koshal shaped himself when he was transferred to
Madras during the emergency. The Soiicitor-Grneral said that he
had left behind an unparalled reputation of being a very sharp and
independent judge. These circumstances, therefore, fully justify
transfer of judges from one High Court to another.
G
The Attorney General with his usual ingenuity submitted a
very plausible argument in order to show that transfer of a judge
from one high Court to another under certain circumstances even
though inconvenient cannot by any process of reasoning amount to
a reflection or stigma It was submitted by the Attorney-General H
that there may be two contingencies where a Judge may or may not
~ive his consent. One type of Judges may consent to the tr!\11sfc;r
774 SUPREME COURT REPORTS [1982] 2 S.C.R.

A against the background of public interest and the Judge responds to
the sensitive call of duty ignoring his private losses and inconve-
niences and gives his consent to the said transfer. There may be other
type of Judges who care more for their personal conveniences or
losses and refuse to give their consent. The hardship involved in
both the cases is the same. The only question to consider is as io
B whether or not Art. 222 operates to the disadvantage of a more
conscientious judge or of a judge who is not willing to meet the
demands of public interest or, if we may say so, national interest, for
either public or national interest may some time make it not only
desirable but imperative that a Judge should be transferred.

c Furthermore, the Attorney General pointed out that there may
be several factors which may affect the administration of justice or
the confidence of the community which may involve the judge
himself on a purely environmental basis. For instance, the atmos-
phere may be vitiated by his close relations or friends even without
the knowledge of the judge who may remain innocent and become
D an unfortunate victim of environments. In such cases, his continued
presence in the High Court is bound to vitiate the very atmosphere
in which justice is to be dispensed with so that a conscientio1Js judge
would himself opt for a transfer outside his State. We have to take
into account the advice given by the CJI in one of the Seminars
·that where close relations of a judge or the Chief Justice practise
E in the same court and are likely to gain undue advantage, the con-
cerned judge should himself, in obedience to the keen sense of justice
which every judge possesses opt to be transferred to some other
High Court. This is undoubtedly a very valuable advice which
seems to have been given by our CJI to the judges in the country.
F
Mr. Seervai in his anxiety to drive home his opposition to non-
consensual transfers sumbitted that if the father-judges or the uncle-
judges are transferred from one High Court to another and the
relations who exploited him also foll ow suit and start practice in
the transferee court, could such a transfer be a sufficient cure for
G this malady? The answer to this argument is very short and simple.
Where a judge is tra.isferred because environment or the atmosphere
is not congenial or conducive to administration of impartial justice
he does so as a conscientious judge responding to a call of duty but
where his sons or relations follow him in the transferee court then
H it becomes the most cogent and reliable evidence to show that the
judge openly allows himself to be exploit\ld by hi~ sons or relations
s.i>. GUPTA v. UNION (Fazal Ali, J.) 775

and this per se would be conclusive proof of misbehaviour for which A
he can be impeached under Art. 124(4) read with Art. 218. If these
facts are proved, then he will have- to be removed, for no court can
ever accept a plea of the judge that even after he was trao.sferred to
some other court his close relations followed him there without his
knowledge.
B
Another difficulty which was pointed out before us was regard-
ing the language problem. This, however, appears to be of a very
minor significance as compared to various plus points indicated
above. After all, the British Judges could administer justice for two
centuries in our country without knowing our language. Further-
more, at the High Court level there are ample facilities for trans- c
lating the record into the language with which the judge is conver-
sant, and if necessary these facilities could be increased. The Law
Commission suggested that even if transfers are made from one
High Court to another they could be made on zonal basis which
will eliminate the lao.guage difficulty to great extent.
D
For these reasons, therefore, we are una hie to accept the
argument of the counsel for the petitioners that non-consensual
transfer amounts to punishment or a reflection on, the integrity of
the judge concerned or can in any way be described as penal.

The next pillar of the argument of Mr. Seervai regarding non-
E
consensual transfer was that such a transfer would seriously affect
and impair the independence of judiciary. Dr. Singhvi who followed
him not only adopted this argument but elaborated it by giving
illustrations from various constitutional provisions which we shall
deal with presently. F
Dr. Singhvi submitted that non-consensual transfer was against
the very spirit of the doctrine of separation of powers contained in
our Constitution. We have already shown from the concluding
speeches of the Members of the Drafting Committee that our Consti-
tution is based mainly on the British pattern although some pro- G
visions of the American Constitution have been borrowed. Secondly,
a detailed survey of the various provisions of the Constitution
dealing with judiciary would clearly reveal that our Constitution
does not envisage a complete separation of powers between the
judiciary and the executive as such. What our Constitution has H
done is to effect no separation of powers as such but separation of
judicial and executive functions. In achieving this object, our Consti-
776 SUPREME COURT REPORTS (1982] i S.C.R.

A tution has particularly relied on the American Constitution while
rejecting the British pattern of conventions. For instance, the judi-
ciary is absolutely independent and supreme in the decision-making
process, that is to say, in deciding cases between man and man and
State and man without being influenced by any governmental or
official consideration. In England, in spite of the independence of
B judiciary even the highest judiciary does not have the power to
strike down a law made by the Parliament. In contradistinction to
this, our Constitution confers absolute powers on the High Courts
and the Supreme Court to strike down not only legislations brought
about by the legislature but also Acts passed by the Parliament and
the peak of the judicial power reached when in Kesavanada Bharti' s
c case (supra) this Court held that the amending power enshrined in
Art. 368 of the Constitution could not be amended so as to affect
the basic structure of the Constitution. We might mention that it
has, however, not been doubted by counsel for any of the parties
that independence of judiciary is doubtless a basic structure of the
Constitution but the said_ concept of independence has to be con-
D tined within the four corners of the Constitution and cannot go
beyond the Constitution. While this absolute judicial power has
been conceded by the Constitution to the judiciary, a certain amount
of executive control has already been vested in the higher judiciary
in respect of the subordinate judiciary. At the same time, the
power of appointment of High Court Judges including the CJ or
E
Supreme Court Judges, including the CJI, vests entirely in the exe-
cutive i.e., the President of India, who acts on the advice of Council
of Ministers. Here again, this executive power is not absolute and
has to be exercised in consultation with the CJI in the case of
appointment of Supreme Court Judges, as also in consultation with
F the CJI and the Governor of the States concerned in case of the
appointment of Chief Justice of the High Courts-in the case of
appointment of High Court Judges, the Chief Justice of the con-
cerned High Court is also to be consulted. This Court has in
several cases, which need not be repeated here, clearly held that
consultation contemplated by the Constitution must be full and
G effective 'and by convention the view of the concerned CJ and CJI
should always prevail unless there are exceptional circumstances
which may impel the President to disagree with the advice given by
these Constitutional authorities.

H Thus, in fine, the doctrine of separation of power, so far as
our Constitution is concerned, reveals an artistic blending and an
s.i>. otJi>TA v. UNION (Fazai Ali, i.) 777
adroit admixture of judicial and executive functions. The Consti- A
tution has taken the best of both the British and the American
Constitution. In order to illustrate our point and to show that the
separation sought to be itchieved by our Constitution is not abso-
lutely or completely separate, let us compare our Constitutional
provisions with those of the American Constitution.
B
Under the American Constitution Supreme Court Judges are
appointed by the President with the advice and consent of the Senate
and no qualifications are necessary for the appointment to the court
nor are any stipulations mentioned therein. The Judges, however,
serve for life during good behaviour and may be removed by im-
peachment almost in the same manner as provided for in our own
c
Constitution. Section 1 of Article I of the American Constitution
runs thus :(1)

"All legislative Powers herein granted shall be vested
in a Congress of the United States, which shall consist of a
Senate and House of Representatives."
D
( Page 613)

And section 1 of Article II reads thus :

"The executive power shall be vested in a President of E
the United. States of America. He. shall hold his office
during the Term of four Years, and, together with the Vice-
President, chosen for the same Term, be elected, as
follows :
(Page 618 ) I<'

Thus, under s. 1 of Article I while legislative powers completely
vest in the Congress, the executive power vests in the President.
Here, our Constitution makes a distinct departure by making the
President, in whom the executive power vests, to be bound by the
advice of the Council of Ministers. Therefore, under our Consti- G
tution for all practical intents and purposes the executive power
vests in the Council of Ministers only and the President is bound to
accept the advice of the Council of Ministers. Proviso to clause (1)
of Art. 74 may be extracted thus :
H
(I) American Constitutional Law by Rocco J. Tresolini (1959 Edition).
778 SUPREME COURT REPORTS [1982] 2s.c.R..

A "Provided that the President may require the Council
of Ministers to reconsider such advice, either generally or
otherwise, and the President shall act in accordance with
the advice tendered after such reconsideration."

Under this proviso, the President has no doubt the power to
B require the Council of Ministers to reconsider the advice if he
(President) entertains any dobut in respect of the advice tendered
to him, but if the same advice is given to him after reconsideration,
the same is binding on him. Clause (2) of Art. 74 bars any inquiry
by a court into the nature of the advice tendered by the Council of
c Ministers to the President.

Thus, under our Constitution the executive power does not
vest absolutely in the President as in the case of America where the
President has got vast powers and is assisted by his Advisers who
are called Secretaries.

Then we come to Art III of the U.S. Constitution, which is
most relevant for our purpose. Section 1 of the said Article runs
thus:

' "The judicial power of the United States shall be vested
E '
in one Supreme Court, and in such inferior Courts as the
Congress · may from time to time ordain and establish.
The Judges, both of Supreme and inferior Courts shall
hold their office during good behaviour, and shall, at stated
times, receive for their services, a compensation, which
shall not be diminished during t.heir Continuance in Office."

( pp. 620-21 )

Thus, the judicial power vests completely in the Supreme Court
or such inferier courts as the Congress may from time to time
establish or ordain. Section 2 of Article III provides that the judi-
( ,,,, cial power shall extend to all cases in law and equity arising under
the Constitution, including laws of the United States. Treaties made
and cases affecting Ambassadors, Ministers and Consuls, etc.

Thus, in the American Constitution by virtue of the fact that
H the entire judicial power is vested in the Supreme Court or other
S.f>. GtJP'i"A v. UNION (Faza/ Ai;, J.) 779
courts, the appointments have to be made by the Supreme Court, A
unlike the provisions of our Constitution where appointments are
tu be made by the President in consultation both with judicial and
executives authorities as indicated above. Therefore, in expounding
the concept of separation, the essential distinctive features which
differentiate our Constitution from the American Constitution must
be kept in mind. B

An attempt was made by Mr. S. P. Gupta, one of the peti-
tioners, to establish that even under our Constitution the judicial
.• -'I power exclusively vests in the CJI who takes the place of Council of
Ministers. This argument is wholly unacceptable and cannot be
countenanced because it is against the clear and express provisions c
of Art. 224, 222 and 217 of our Constitution. However, this matter
has been elaborately dealt with by Brother Desai and Venkataramiah,
JJ. and I entirely agree with their opinions and have nothing useful
to add so far as this aspect of the matter is concerned.

Lastly, on the question of separation of powers, apart from D
what we have said it may be noticed that so far as framers of our
Constitution are concerned they had deliberately rejected the theory
of complete insulation of the judicial system from the executive
control. During the formative process of our Constitution though
jurists like Shri B. N. Rau and Dr. Ambcdkar wanted to give larger
powers to the CJI or to a Council of State which may be appointed E
so as to be a judicial Body but these ideas were not accepted and
ultimately the Constitution emerged as a valuable document which
vests complete power in the President. The facts will be borne out
from the observations made on pages 338-339 of Shiva Rao's Fra-
ming of India's Constitution (Vol. IV), and on pages 128-132 of
F
The Indian Constitution-Cornerstone of a Nation by G. Austin.
Even an attempt of Dr. Austin and others to introduce instrument
of instructions to provide guidelines for the action to be taken by
the President was rejected.

In fact, the method of appointment adopted by our country G
seems to have been followed in every democratic country except the
United States where, as already shown, the Judges are not appointed
by the executive excepting the Chief Justice of the Supreme Court
but by the judiciary. Even in America, the Federal Court judges
of the States are not appointed by the judiciary. Similarly, in France H
West Germany, Japan, Malawi and Sri Lanka the power of appoint-
ment of Judges vests in the executive (vide Garner : Political Science
7so SUPREME cotikt REPo&ts [1982) 2 s.c.R.

A and Government pp. 726-727; Harold Laski : Grammer of Politics,
pp. 545-548; 80th Report of tht> Law Commission, pp. 7-11; and
Basu; Commentary on the Constitution of India (4th Ed. Vol. 3,
pp. 77-79).

It would appear that our Constitution has devised a wholesome
B and effective mechanism for the appointment of judges which
strikes a just balance between the judicial and executive powers so
that while the final appointment vests in the highest authority of the
executive, the power is subject to a mandatory consultative process
J...
which by convention is entitled to great weight by the President.
Apart from these safety valves, checks and balances at every stage,
c where the power of the President is abused or misused or violates
any of the constitutional safeguards it is always subject to judicial
review. The power of the judicial review, which has been conceded
by the Constitution to the judiciary, is in our opinion the safest
possible safeguard not only to ensure independence of judiciary but
also to prevent it from the vagaries of the executive. Another ad-
D vantage of the method adopted by our Constitution is that by
vesting the entire power in the President, the following important
elements are introduced :

(I) a popular element in the matter of administration of
E justice,

(2) linking with judicial system the dynamic goals of a
progressive society by subjecting the principles of
governance to be guided by the Directive Principles of
State policy,

(3) in order to make the judiciary an effective and power-
ful machinery, the Constitution contains a most one-
rous and complicated system by which judges can be
removed under Art. 124(4), which in practice is almost
an impossibility.
G
(4) in order to create and subserve democratic processes
the power of the appointment of the judiciary in the
executive has been vested so that the head of the
H executive which functions through the Council of
Ministers, which is a purely elected body, is made
accountable to the people.
S.P. GUPTA v. UNION (Fazai Aii, i.) 781

If absolute powers were to be vested in the judiciary alone for A
all its spheres of activities (appointment retirement, removal, etc.)
then the element of absolutism may have crept in, resulting ia
irreparable harm to the great judicial institution. Another reason
why the power of appointment in the judiciary was not vested
absolutely was to avoid judicial interference in the day-to-day
working of the legislative or parliamentary institutions. B
Dr. Singhvi submitted that independence of judiciary comprises
two fundamental and indispensable elements, viz., (I) ~independence
• _.. of judiciary as an organ and as one of the three functionaries of the
State, and (2) independence of the individual judge.
c
There can be no quarrel that this proposition is absolutely
correct. Our Constitution fully safeguards the independence of
Judges as also of the judiciary by a three-fold method-

(I) by guaranteeing complete safety of tenure to judges
except removal in cases of incapacity or mishaviour f'\
which is not only a very complex and complicated
procedure but a difficult and onerous one,

(2) by giving absolute independence to the Judges to
decide the cases according to their judicial conscience
without being influenced by any other consideration E
and without any inference from the executive. Art. 50
clearly provides that the State shall take steps to sepa-
rate the judiciary from the executive in the public
services of the State. This important Directive Princi-
ple enshrined in Art. 5U has been carried out by the
Code of Criminal Procedure, 1973 which seeks to F
achieve complete separation of judiciary from the
executive;

(3) so far as the subordinate judiciary is concerned the
provisions of Arts. ~233-236 vest full and complete
control over them in the High Court. Only at the initial G
stage of the appointment of munsiffs or the District
Judges, the Governor is the appointing authority and
he is to act in consultation with the High Court but in
all other matters like posting, promotion, etc., as
interpreted by this Court in Shamsher Singh's case(1), H
(1) [1974] I SCR 814.
782 SUPREME COURT REPOllTS (l 982i i s.c.R..

A the High Court exercises absolute and unstinted control t
over the subordinate judiciary. Promotion, holding
disciplinary inquiry, demotion, suspension of Sub
Judges lie with the High Court and the Guvernor has
nothing to do with the same. Hinting on the nature
of the separation of powers brought about by our
Constitution, this Court in Chandra Mohan v. State of
UP. and Ors(1), made the following observations :

"The Indian Constitution, though it c!oes not accept
the strict doctrine of separation of powers, provides for an
independent judiciary in the States; it constitutes a High
c Court for each State, prescribes the institutional conditions
of service of the Judges thereof, confers extensive juris-
diction on it to issue writes to keep all tribunals, including
in appropriate cases the Governments, within bounds and
gives to it the power of superintendence over all courts
and tribunals in the territory over which it has jurisdiction.
D
This Court has in several cases held that the condition of
consultation which the Governor has to exercise implies that he
would have to respect the recommendations of the High Court and
cannot turn it down without cogent reasons and even if he does
rn, it is manifest that his order is always subject to judicial· review
E on the ground of mo/a fide or exceeding his jurisdiction.

These are sufficient safeguards to ensure the independence of
judiciary. The argument of Dr Singhvi goes a step further so as to
in::port the American concept of absolute independence in our
Constitution which, however, is not permissible because as indicated
F above the provisions relating to judiciary of our Constitution and
American Constitution are essentially different.

Dr. Singhvi then advanced the same argument which was put
forward by Mr. Seervai that a transfer without consent would be
punitive both in concept and consequences and would promote a
relationship of master and servant which is inapplicable to the case
G
of Judges and the Chief Justices. We are, however, unable to accept
this extreme argument because for the reasons that we have already
given a transfer in public interest is an exraordinary provision which
does not entail any stain or stigma and is a constitutional step which
completely excludes the concept of master-servant relatiorirhip.
H
(1) [1967] 1 SCR 77.
S,P. GUPTA v. UNION (Fazal Ali, J.) 783

Dr. Singhvi later rightly laid greater stress on the nature and A
extent of the consultative process in the case of transfer. It was also
submitted that even if a judge is transferred_ individually, public
interest, which leads to his transfer, would also have to be examined
by the court. We propose to examine this aspect in greater detail
when we deal with Transferred Case No. 24/81. At the moment it
is sufficient to state that for the reasons that we have already given
8
a non-consensual transfer cannot be treated as punitive, penal or
punishment. Furthermore, we might state here that aft~r a general
policy is evolved by the Government for transfer of Judges of the
High Court in order to ensure the goal of having I/ 3rd judges in
. ""' each State from outside the State, such a policy would be fully
justified not only on the ground of public interest but in the larger
c
interest of the country as a whole to promote integration and crush
parochialism and provincialism. If this is done, then the question
of effective consultation would have to be looked from a different
angle. Similarly, a general policy to have CJs from outside in every
State would serve the same national interest and there also the effec-
D
tive consultation is to be confined only to the just exceptions that
may be made while pursuing this policy.

The last question that remains to be determined is as to whether
the proposal for transfer of judges from one High Court to another
shculd emanate from the CJI or from the President. In this connec- E
tion, the Solicitor-General has produced a memorandum showing
the procedure tu be adopted in connection with the appointment and
transfer of judges. This Memorandum cannot take the place of a
statute or a constitutional document. It merely prescribes the
manner in which the proposal can be processed. From a plain
language of Art. 22 ! it is manifest that the proposal for transfer can F
emanate either from the CH or from the President through the
Union Minister for Law and Justice. What is important is whichever
authority initiates the transfer, the conditions prescribed under Art.
,\ 222 must be complied with, viz,
G
(a) if the proposal emanates from the President, he must
ascertain the views of the CH which are entitled to
great weight, and

(b) as Art. 222 contemplates comultation with the highest
judicial authority in the whole country, it is obvious H
that the CJI also represents the judge or the judges
who are sought to be transferred,
784 SUPREME COURT REPORTS [1982) 2 S.C.R.

As a logical result of this concept, it would be necessary for
the CJI, on receiving the proposal from the President, to ascertain
the views of the judge concerned and his personal circumstances or
objections, if any, and then after applying his mind to them, place
the same before the President through the Law Minister. Thereafter,
the matter would have to be processed according to the Rules of
B Business and advice sent to the President for formal orders.

Where, however, the proposal emantes from the CJI himself,
then he should collect the necessary facts and examine the reasons
given by the Minister concerned for the transfer and before giving
his opinion or advice to the Minister he would have to consult the
c judge concerned and ascertain his views and 'give due consideration
to them. Thereafter he should also communicate the views expres-
sed by the judge" concerned-whether against or in favour of the
proposal-to the President through the Minister concerned so that
even if the en does not agree with the view of the judge, the
President may be in a position to give his decision finally one way
D or the other.

These are the essential requirements of Art. 222 which are
briefly contained in the Memo. though not strictly in consonance
with what we have said above. We might hasten to add here that
E although the Constitution does not mention either the Chief Minister
or the Governor of the State being consulted in the manner of
transfer of a judge from one High Court to another but the Memo.
provides for this procedure in order to solve some practical difficul ·
ties because when a judge is transferred from one State to another
the transferor State must be told to make necessary arrangements
F for appointing his successor and similarly at the oth:r end the
receiving State would have to make adequate arrangements for the
residence and other facilities which are to be given to the judge
concerned. In this process, the Chief Minister or the Governor of
the two States may express their opinion but the President is not
bound under Art. 222 to accept their views. It does not appear to
G be the intention of the Memo to supplant two additional authorities
for the purpose of consultation, for that would be in direct
contravention of Art. 222 which merely stipulates consultation with
the CJI and impliedly the judge concerned. Thus, the information
given by the Cliief Ministers and the Governors of the States is
H merely for the limited purpose of ascertaining their views and other
matters referred to above and is not, therefore, a part of the consul-
tative process enshrined in Art. 222 otherwise if 11ddition11l 11uthoritie$
S.P. GUPTA v. UNION (Fazal Ali, J.) 785

are introduced for the purpose of being consulted, then the Memo. A
will be clearly violative of Art. 222.

Thus, the Memo. while prescribing that the proposal should
emanate from the President does not exclude the other alternative,
viz., that the proposal should emanate from the CJI In Transferred
Case No. 24/81 it is clear that the proposal of transfer of Justice B
K.B.N. Singh and others emanated from the CJI and that in our
opinion was perfec1Jy legal and constitutional and does not offend the
provisions of the Memo. as suggested by counsel for the petitioners
because the Memo. does not and cannot in any way debar the CJI
• >. from initiating the proposal if he wants to do so .
c
This, therefore, disposes of all the contentions of the counsel
for the parties so far as the various aspects of interpretation of Art.
222 is concerned. On a consideration, therefort", of the facts,
circumstances and authorities the position is as follows :

(I) that Art. 222 expressly excludes 'consent' and it is not 0
possible to read the word 'consent' into Art. 222 and
thereby whittle down the power conferred on the
President under this Article,

(2) that the tramfer of a judge or a CJ of a High Court
under Art. 222 must be made in public interest or E
national interest,

(3) that non-consensual transfer does not amount to
punishment or involve any stigma,

(4) that in suitable cases where ma/a.fide is writ large on
the face of it, an order of transfer made by the Presi-
F
dent would be subject to judicial review,

(5) that the transfer of a judge from one High Court to
another does not amount to a first or fresh appoint-
ment in any sense of the term,
G
(6) that a transfer made under Art. 222 after complying
with the conditions and circumstances mentioned
above does not mar or erode the independence of
judiciary,
H
For the reasons given above, the contentions of Mr. Seervai,
Dr. Singhvi &nd others f&il &nd !!re overruled.
786 SUPREME COURT REPORTS [1982) 2 S.C.R.

A Point No. 3-Policy of General Transfers

We now come to the question of evolving a general policy of
transfers (for short, to be referred to as the 'Policy') of Judges or
Chief Justices from the home State to other States so that each State
or a majority of them has a CJ from outside. Policy has two
B important limbs-(!) transfer of CJ or Judges from one High Court
to another, and (2) recruitment of one-third judges in each High
Court from outside the State in which the High Court is situate.
The earliest roots and the foundation for evolving the aforesaid
policy are to be found even when Art. 222 was in the process of its
birth. The most prophetic and pregnant observations of Dr.
c Ambedkar give a clear clue to the desire expressed and the goal
sought to be achieved by introducing Art. 222. These lines from
his speech may be extracted thus :

"Secondly, it might be desirable to import a new Chief Justice
to a High Court because it might be desirable to have a man
D who is unaffected by local politics and local jealousies. We
thought therefore that the power to transfer should be placed
in the hands of the Central Government."
(Emphasis ours)
(p. 580, Constituent Assembly Debates Vol. 11 (1949)
E
These observations have a historical significance having been
made by one of the greatest jurists, constitutionalist and one of the
eminent Founding Fathers of our Constitution and perhaps the
hi ;hest tribute that we can pay to the dedicated service of Dr.
Ambedkar is to evolve a Policy and thus fulfil the pious wish and
F the last desire of the great jurist.

Nevertheless, the idea of evolving the Policy came to be
seriously thought of when the States Reorganisation Commission
(hereinafter referred to as the 'S RC') was entrusted with the arduous
G task of recommending reorganisation of States on lingustic basis-a
step which was long overdue having been the subject of one of the
earliest Resolutions passed by our freedom fighters-a solemn
promise made to the Nation by its political leaders to be fulfilled as
soon as the cot.ntry attained frt'edom. This process of reorganisa
H tion was not a bed of roses but was fraught with grave consequences
leading to parochialism and provincialism which, if not properly
checked, controlled or safeguard1:;d, might have brought about
S.P. GUPTA v. UNION (Fazal Ali, J.) 787
disintegration of the entire country. Perhaps this was one of the A
main reasons why the SRC being fully alive to these dangers tried
its best to see that the reorganisation of States did not lead to
disintegration and accordingly suggested a number of measures
including a strong and independent judiciary free from parochial
and fissiparous tendencies. We, therefore, start the question of
policy of transfers with the Report of the SRC which tried to tackle B
the second limb of the policy of importing one-third judges in the
High Court from outside. In this connection, it might be appropriate
to refer to certain observations made by the SRC in the concluding
portions of its Report :
. -·
"846. We have now come to the end of our appointed C
task. The problem of reorganisation of States has aroused
such passions and the claims which have been made are so
many and so conflicting that the background against which
this whole problem has to be dealt with may quite often be
obscured or even forgotten. In order that the recommen-
dations which we have made may be viewed in proper D
perspective. We should like to emphasis two basic
facts. Firstly, the States, whether they are· reorganised
or not, are and will co11tin11e to be integral parts of a
Union which is far and away the more real political entity
and the basis of our nationhood. Seco11d ly, the constitu-
tion of India recognises only one citizenship, a common E
citizenship or the entire Indian people, with equal rights
and opportunities thro11gh-out the Union."
(page 229).

rll peaking in the same strain the SRC further observed thus :

F
"849. Unfortunately, the manner in which certain
administrations have conducted their affairs has itself partly
contributed to the growth of this parochial sentiment. We
have referred earlier to the domicle rules which are in force
in certain States, governing eligibility to State services.
The desire of the local people for the State services being G
manned mainly be "the sons of the soil" is understandable'
but only up to a point. Whe11 such devices a'> domicle
J

rules operate to make the public services an exclusive
preserve of the majority language group of the State, this is
bound to cause discontent among the other groups, apart H
from impeding the free flow of talent and imparting-
~dmjnistra,tiv~ efficiency." (p. 230)
788 SUPREME COURT REPORT (1982) 2 S.C.R.

A The SRC repeated the same concept in paras 854 and 856 of
its Report thus :

"854. There are certain other measures which, if adopted,
will, we hope, help in corrPcting particularist trends and also
in securing greater inter-State coordination for the efficient
B implementation of all-India policies.

856 ......... The Central and State Governments have to work
in very close cooperation!in executing important develop-
ment projects, which necessitates that technical personnel
should be recruited and trained on a common basis and that .._.
,

c they should have uniform standards of efficiency and the
feeling of belonging to common and important cadres."

(Emphasis ours)

The SRC made the following further observations in paras
868, 870 and 871 :
D
"868. From the point of view of national unity, it is also
of great importance that there should be closer under-
standing between the north and the south. All institutions
and establishments which help to bring about such an
understanding should receive particular encouragement
E from the Government of India ..... ~

870. The proposals which we have made in the preceding
paragraphs are intended to bring about greater admins-
trative integrity and to provide against any parti-
cularist trends being promoted within the administration
F itself or in the country at large. Important as these
measures are, it is obvious that they are by themselves not
adequate to give a deeper content to Indian nationalism.
National unity can develop into a pJsitive and living force
capable of holding the nation together agai:1>t the disruptive
and narrower loyalties only if there is a real moral and
G mental integration of the people. Fortu11ately, forces
making for such integration are already at work. What is
necessary is that nothing should be done to impede their
freeplay. We should like to say something on this subject
before we conclude. J

F
871. India is now on the eve of vast econ0mic and social
changes. These changes must affect every ihstitution and
S.P. GUPTA v. UNION (Fazal Ali, J.) 789

will calI for a constant review of our traditional methods of A
thought and ways of life."

Here also the SRC took special care to lay great emphasis on
the feelings of commonness, unity and integration in alJ spheres of
activity so as to give a deeper content to independence and nationa-
lism. In para 861 of its Report while dealing with the judiciary the 8
SRC recommended that at least one-third of the number of judges in
a High Court should consist of persons recruited from outside the
State and in this c'Jnnection observed as follows :-
.. _J.,
"Guided by the consideration that the principal organs of
State should be constituted as to inspire confidence and to
help in arresting parochial trends, we would also recom-
c
mend thut at least one-third of the number of Judges in a
High Court should consist of persons who are recruited
from outside that State In making appointments to a
High Court bench, professional standing and ability must
obviously be the overriding considerations. But the sugges- 0
tion we have made will extend the field of choice and will
have the advantage of regulating the staffing of the
higher judiciary as far as possible on the same principles
as in the case of the Civil Service."

And at page 263 in para 58 the SRC reiterated the policy indicated
E
in para 86 l extracted above. The SRC consisted of a very eminent
Judge of the Supreme Court and two persons of very great public
and political eminence like Shri K.M. Panikkar and Shri H N.
Kunzru. When the Commission was appointed Shri Saiyid Fazal Ali
was Governor of Orissa, Shri H.N. K:unzru was a Member of the
Council of States and Sri Panikkar was Ambassador of India in
F
Egypt. Shri Saiyid Fazal Ali was the Chairman of the SRC. Thus;
the ideas coming a~ they did from such great and important persona-
lities who had varied experience not only in all branches of the law
but also in other socio-economic activities are undoubtedly entitled
to great weight. The SRC tried to face some hard facts and prophe-
tically foresaw what has now come to be a stark reality and the G
need to crush the fissiparious and parochial tendencies which may
lead to the disintegration of the country is felt much more today
than ever before. The concluding words of the Report light up the
entire history, apprehension and views of the SRC. If the need to ,
achieve unity in all spheres of activities, judiciary not excluded, is H
not only in public interest but also in national interest, we fail to see
w4at else co1M be in public intere~t,
790 $UPRBME COURT REPORTS (1982) 2 S.C.R.

A Perhaps it was due to the terse observations, recommendations
and suggestions of the SRC that a high-powered Law Commission
was set up by the Government in 1958 which was headed by Mr.
M.C. Setalvad, ex-Attorney General of India, and this high-powered
Commission fully endorsed the SRC Report and even suggested a
mechanism to implement the recommendations.
B
It is true that at that time the idea of having judges or CJs
from outside the State had not been suggested or conceived though,
as pointed out above, Dr. Ambedkar hadl hinted at it even during
the formative process of Art. 222. This now brings us to tl:\e 14th
Report of the Law Commission, headed by Mr. Setalvad, where for
c the first time the policy of having a CJ in every High Court from
outside was not only suggested but supported by a large body of
independent persons. Dwelling on this aspect of the matter the
Law Commission in its 14th Report at page 76 (para 26) observed
thus:

D "26. A large body of evidence before us has suggested,
that it should be made an invariable practice to fill a
vacancy in the office of Chief Justice by appointing a judge
from outside the State. Such course, it is said, will have
the advantage of giving the Chief Justice of India a wide
choice in recommending a person suitable for that office. it
E has also been pressed upon us that bringing a Chief I ustice
from outside the State will have a very healthy influence, in
thar, it will promote a sense of unity in .the country and
prevent the Chief Ju~tice being swayed by local connections
and local influences. It may be mentioqed that Chief
Justices from out~ide the State have been appointed in
F some of the States a!ld these appointments have proved a
success. Though the analogy may not be very pertinent,
we may refer to the practice of appointing Governors who
do not belong to the State, which has been in vogue since
the advent of the Con~titution.'
G The observations referred to above clearly show that as far
back as 1958 there was a strong view in favour of filling up the
vacancies of CJs by appointing a judge from outside the State.
Although the Law Commission did not entirely agree with this
H opinion but it did notice that there was sufficient evidence to justify
the same. As regards the otber limb of the Policy to appoint qne-
third judges in each High Court from 9utside the State, tlw Law
~ ' '
s.i>. GUPTA v. uNioN (Pazai Ali, J.) 791

Commission fully endorsed it and its recommendations on this A
subject may be extracted thus :-

"74 The recent creation of various zones in the country
and the efforts to treat the States forming part of these
zones as one unitJfor various purposes would, we hope,
lead to the States forming part of each zone to be the B
recruiting ground for appointments to the High Court from
the members of the Bar in these States. It is hoped that in
this manner the expectation of the States Reorganisation
Commission that at least one-third of the High Court
Judges would be persons drawn from outside the State will
be realized." c
(page 100)

In September 1963 a Study Team was a-ppointed by the
Administrative Reforms Commission (hereinafter referred to as
'ARC Study Team') to give its report on Centre-State relations. D
\. The said Study Team in its Report at page 190 (paras 13-20) sugges-
ted that so far as practicable one third of the number of judges of
the High Court should be from outside. In other words, the ARC
Study team also endorsed the SRC Report and the 14th Report of
the Law Commission.
E
Immediately following the ARC Study Team Report, a meeting
"" of the Committee of Zonal Council for National Integration was held
on 31st August 1964 and in its Report of item l(viii) (b) the said
Committee made the follo\\fog recommendation :

"The Committee also commended the idea that as a F
convention, the Chief Justice of tlie High Court of a State
should be a person from outside the State."

It would appear that the said Committee gave full effect to the
large body of public opinion which had expressed its intention
before the Law Commission (14th Report) that in every High Court
G
the Chief Justice should be from outside the State, and the Com-
mittee fully endorsed this view. Thus, the inescapable conclusion
seems to be that right from 1954 upto 1964, the two limbs of the
Policy referred to above were being debated and ultimately definite 11
views were expressed by independent persons that a policy, consisting
of the two limbs, be evolved and followed.
SUPREME COURT REPORTS [1982) 2 s.c.il.

A In 1967 the ARC Study Team headed by Mr. M. C. Setalvad,
passed a clear Resolution that as far as practicable, one-third of the
number of judges should be from outside.

Another Law Commission was set up some time in 1978 and
the Bar Council of India in its reply dated 8.9.79 to questions Nos.
U 11 and 12 answered thus :

Question Answer
11. What is your view with regard to the suggestion
that we should more frequently appoint a judge
from outside the State as Chief Justice of the
c High Court. Yes

12. What is your view with regard to the suggestion
that we should have a convention according to
which one-third of the judges in each High Yes
Court should be from anotber State.

D In his speech on 26.2.1979 in the Lok Sabha Debates, Mr. P.
Shiv Shanker, who was then a Member of Parliament only and not
even in the then Ruling Party, expressed his opinion thus :

"Various reports of the Law Commission with refe-
rence to recruitment policy and the policy on transfer of
E Judges ·from one High Court to the other, have been only
gathering dust. While I am one among those persons who
will fight till the last for the independence of Judiciary, I
would say that the policy as to the transfer of Judges as
enunciated by the Law Commission in the year 1958, under
the chairmanship of late Shri Setalvad, of which one of
F our very eminent members of the profession, viz., Shri
Palkhivala was also a member was salutary which opined
that one-third of the Judges of a High Court must be from
outside. This would have achieved a better national ioteg·
ration in the field of Judiciary. I am not one of those
people VlhO would support transfer if it is based on extra-
G neous considerations."
(Lok Sabha Debates: Vol XXII No. 6,
Sixth Series-seventh session )

11 In a meeting of the Consultative Committee for the Law
Ministry, held on 7.6.80, where Members of Parliament belonging
ti> opposition parties were also present, the unanimous views was :
S.i'. OUilTA v. UNION (Fazal Ail, J.) 193
"(2) the Chief Justice of a High Court should be from A
outside the State, and

(3) at least one-third of judges in a High Court should
be appointed from outside the State."

Another meeting of the Consultative Committee for the 8
Ministry of Law held on 24.7.80 fully reiterated and affirmed the
view taken by the earlier Committee mentioned above.

Another meeting of the Consultative Committee held on
. -· 17.12.80 which consisted of Members of Parliament of the opposition
parties including Bapusaheb Parulekar, also favoured outside
appointments.
c
In its 80th Report, the Law Commission headed by an eminent
Judge of this Court, Mr. Justice H. R. Khanna, in paras 6 21 and
6.22 made the following observations :

"6.21...Likewise, the Study Team on Centre State
D
Relations appointed by the Administrative Reforms Com-
mission also suggested that so far as practicable one-third
of the number of judges of a High Court should be from
outside.
E
We have given the matter our earnest con&ideration
and are in substantial agreement with the recommendations
mentioned above. In our opinion, there should be a con-
vention, according to which one-third of judges in each
High Court should be from another State. This would
normally have to be done through the process of initial
F
appointments, and not by transfer. It would also in the
very nature of things be· a slow and gradual process and
take some years before we reach the proportion.

6.22 Evolving such a convention would, in our opinion,
not only help in the process of national integration but G
would also improve the functioning of various High Courts.
It would secure on the Bench of each High Co·irt the
presence of a number of judges who would not be swayed
by local considerations or affected by issues which may
rouse local passions and emotions .. We in India are in the H
fortunate position of having a vast country. There can,
therefore, be no difficulty in.having a certain percentage of
794 SUPREME COURT REPORTS tl 9s2j 2 s.c.il.
A judges who hail from other States. The advantages gained
by having person from other States as judges would be
much greater compared with any disadvantage which
might result therefrom."

A national Seminar was held on judicial appointment
B between 17-19 October 1980 at Ahmedabad, in which various emi-
nent speakers participated and freely expressed their views The
Seminar was organised by the Bar Council of India Trust and its
deliberations may be extracted thus :
' ..
"The Seminar was of the view that the principle of
c transfer of Judges in all circumstances _is not to be con-
sidered as violative of independence of judiciary. In fact,
in certain situations transfer of a judge may be a very
desirable course to follow for preserving independence of
the judiciary, promoting national integration and avoiding
balkanisation of the country on linguistic or other similar
D considerations.

The ideal of having one-third of High Court Judges from
outside the State helps promotion of national integration
and the preservation of a unified judicial system. However,
it is desirable that this composition of the High Court
E should be accomplished by way of initial appointments
rather than by transfers."

Thus, the preponderance of opinion in the Seminar favoured
the dominant aspects of the Policy, viz., principle of transfer of
Judges and that one-third judges should be from outside the State,
F in order to promote national integration and preservation of a
unified judicial system.

Another meeting of the Consultative Committee of Members
of Parliament for the Law Ministry was held on 3.9.81, in which
Members belonging to the opposition parties were also present, and
G there also the preponderance which emerged was in favour of having
CJs from outside the State and one-third of judges to be recruited
ia each High Court from outside. In this connection, it may be
useful to extract certain relevant portions from the speeches of the
Members. Shri Nanda (Congress (S)) observed thus :
H
·'Participating in the discussion, Shri Nanda Congress
(s) made particular reference to the Seminar organised by
S.P. duPtA v. UNION (Fazal Ali, J.) 195
the Bar Council of India at Ahmedabad and the discussions A
held there on the issue of transfer of Judges and appoint-
ments from outside. He wanted to know Government's
reaction to the various proposals made at the Conference
on this aspect. He emphasized that on the question of
appointments of outsiders and transfers, the Consultative
Committee had made definite and positive recommendations
B
and Government should implement them ... "
(Emphasis ours)

Shri S.C. Mohanta (LD) expressed his views thus :

"Shri S.C. (Mohanta (LD)) said that initially he had C
reservation about supporting the policy of transfers but
ever since the Law Minister had said that he would leave the
mechanism and modalities to the Supreme Court, he was
convinced that wch a policy should be followed and pressed
that those who were newly appointed, should be transferred
to outside courts. There could be no status-quo approach D
in the present times. A suitable mechanism should be
evolved and implementation left to the judiciary."
(Emphasis supplied)

Shri Jamil-ur-Rahman (Congress) observed thus :
E
"It would be in the national interest to transfer judges
from one High Court to other, and there should be no hesi-
tation in doing this.·"

Shri Dandapani (DMK) supported the view and observed
thus: F

"Shri Dandapani (DMK) supported the view that judges
should be transferred from the High Courts in their own
interest to other High Courts. He was of the view that in
many cases, judges continuing in the High Courts of their
own State were likely to develop vested interests Fresh
G
appointments could certainly be made from outside the State.
This should be done as a matter of policy so that there was
no pick and choose."
H
Shri Hari Nath Mishra (Congress) was of the following view :
79fi SUPREME Coi.Jk'J REPORtS [1982) 2 s.c.k.

A "Shri Bari Nath Mishra (Congress) mentioned that it
had been agreed at earlier meetings that one-third of the
judges and tbe Chief Justice should be from outside the State.
The need for such a policy arose not from any theoretical
consideration but from the reality of the situation. He
wished to project this need to the Law Minister and
8 through the Law Minister to the Chief Justice of India."

Shri Bhogendra Jha {CPI) observed thus :

"Shri Bhogendra Jha (CPI) supported the idea of
transferring judges of High Courts outside their own State ••.
'- .
c He also observed that while members of the Committee
belonging to the different parties had agreed that transfer
and appointments of outsiders should be made, the idea
should be propagated amongst the respective parties"
{Emphasis supplied)

D The Law Minister presiding over the deliberations of the
Consultative Committee pointed out that the delay in. evolving a
policy was due to the fact that he was ascertaining the views of the
Chief Justice of India but a final decision was yet to be taken. In
this connection, he observed thus :

E "The Law Minister mentioned that be had sought the
views of the Chief Justice of India on the policy of having
Chief Justices from outside, as that by itself would con-
siderably improve the functioning of the High Courts. He
apprised the members of the approach of the Chief Justice
of India in the matter of transfers and appointments of
F outsiders. A final decision in the 1matter of a policy of
transfers was still to be taken."

So far as the CJI is concerned, he was firmly opposed to the
· wholesale transfers of all CJs from one High Court to another
without objective reasons though selective transfers could be made
G in appropriate cases for objective reasons. On 18.3.198], the CJI
observed that at least a few of the new appointments to every High
Court were in fact made from outside the State. Jn April 1981 he
opined that at least one-third of the new appointments to the High
Court should be made from outside.
H So far as the second limb of the Policy in concerned, viz., that
each High Court should have one-third of its strength of Judges
s.P. GUPTA v. UNION (Fazal Ali, 1.) 191
from outside the State, the CJI clearly concurred with this view but A
his main grievance seems to have been against the wholesale transfers
of CJs so that each High Court had a CJ from outside. According
to the CJI, such a policy was fraught with grave consequences and
serious inconvenience which may be caused to most of the CJs.
In spite of the stand taken by the CJI the Law Minister on behalf
of the Central Government, tried his best to persuade him (CJI) to B
agree to a uniform policy of transfer of CJs-a policy which had
found favour with eminent jurists, politicians, lawyers and parlia-
mentarians, but the CJI seems to have posed stiff resistence to the
aforesaid Policy.

The Law Minister participating in the discussions in the Rajya c
Sabha on 30.7.80 on the question of transfer of CJs from one High
Court ~o another spoke thus :

"Mr. Chagla and Mr. Palkhivala-they supported the
approach that one-third of the judges should be from out-
side so that it would be in the interest of national integra- D
tion; regionalism will not come in, and also it would be
in the interest of a caste ridden society. That was the
approach they had taken.

I will go only into the recent past. Even my predeces-
sor, Mr. Shanti Bhushan felt that a Chief Justice should be E
from outside on the same grounds which were urged by
the Law Commission in its 14th Report. ... The policy is
whether a Chief Justice should be from outside or not, and
if so, whether the seniormost person based on the all-India
seniority should be appointed wherever the vacancies occur,
or any other mechanism has to be evolved which should be
F
in the best interest of the society ... This very Bar Council-
except one or two members who have changed; otherwise,
the personnel are the same-said : "yes, the policy should
be that the Chief Justice should be from outside." The
other question that was posed by the Law Commission was
G
question No. 12 which said : "What is your view with regard
to the suggestion that we should have a convention accor-
ding to which one-third of the judges of each High Court
should be from outside the State" ? This very Bar Council
answered in the affirmative." H
(Rajya Sabha Debates : Vol. CXV
No. 6 dt. 30.7.80, pp. 219-221)
198 SUPREME COURT REPORTS Ii 982! 2 s.c.il.
A In his speech, the Law Minister also said few things about
the manner in which the mechanism to give effect to the Policy may
be devised. In a later speech on 24. 7. l980 in the Lok Sabha while
dealing with the question of mechanism for giving effect to the
Policy, the Law Minister observed as follows ;

ll "Mr. Deputy Speaker, Sir, on the first question of
mechanism I must frankly bring to the notice of this hon.
House that even my predecessor Shri Shanti Bhushan j i
seems to be of the view that a Chief Justice should be from
outside because of the various factors. And I am glad
that the hon. Member, Shri Agarwal, did support this ....._.
c approach. As I said we have not finally come to a conclu-
sion ..The matter of mechanism is an affair where we have
to necessarily seek the guidance of the Supreme Court.
And in this matter I can assure you that as and when we
come to a final conclusion, we will see to it that the least
injustice is done to the persons concerned. I am at the
D disposal of the Supreme Court to suggest any mechanism
which they feel would be suitable in the interest of the
independence of the judiciary.

I am proposed to leave everything to the Supreme Court to
E decide the mechanism of the whole approach."
(Emphasis ours)

In order, however, to be fair to the CJI for having ex-
pressed a strong view , against the proposal for giving effect to a
uniform policy of transfer of CJs, it may be necessary to go
F through the various letters exchanged between the CJI and the Law
Minister to know the reasons and the circumstances under which
the-CJI had voiced his opposition.

To begin with, in a Note dated 15.5.80 (which is contained in
one of the Jiles disclosed under the majority Order of this Court),
G the Law Minister once more wanted to ascertain the final view of
the CJI thus :

"While this file may be referred to the CJI for his
advice, I feel that we should also examine about evolving
H the poiicy to appoint the Chief Justice of a High Court
from the High C0urt other than the High Court to which
s.P. GUPTA v. UNION (Fazal Ali, J.) 799
the Chief Justice is to be appointed. I had passingly dis- A
closed this issue some time back with the CJI. The fact
remains that in the various High Courts the problems of
caste and regionalism, etc., are looming large."

In reply to this, the CJ! drew the attention of the Law
Minister to the following facts which may be extracted thus : B
"It would become necessary in the very near future
to evolve an All India policy for appointments of Chief
Justices in the various High Courts. The difficulties in
taking any ad hoc decision on that question are of such
grave magnitude that it would be impossible at this stage
to appoint an outsider as a Chief Justice either of the
c
Delhi High Court or of the Andhra Pradesh High Court."

H would appear from the contents of the Note extracted
about that the CJI was opposed only against any ad hoc decisions
without evolving an All-India policy for appointment of CJs. He
had deliberately remained silent on th~ question of the Policy re· 0
garding transfer of CJs.

In his Minute dated 31.7.80 while expressing his opposition
to the Uniform policy the CJI clearly stated that he had an open
mind, the relevant portion may be extracted thus :
E
."The heart of the matter however is whether, as a
general All India policy, a Judge of a High Court ought
never to be appointed as the Chief Justice of that High
Court. I am prepared to keep an open mind on this question
because the pros and cons of the issue has still to be thrashed
out. But the better view may be that transrers of sitting F
Chief Justices may be made only in appropriate cases, that
_is to say, when a strong case for the transfer has been
made out.

At this stage it is unnecessary to say anything more on
the subject except to clarify that though I recognise the
G
need to evolve an All India policy for appointments of
Chief Justices in the various High Courts, I do not think
that it will be either feasible or proper to transfer each and
every sitting Chief Justice of the High Court to another
High Court, or to appoint an outside Judge as the Chief H
Justice whenever a vacancy of a Chief Justice arises."
(Emphasis supplied)
800 SUPREME COURT REPORTS
-
[1982] 2 s.c.R.
\
A It appears that the CJI himself appears to be in two minds-
whetber or not t~ accept the uniform policy-and was weighting the
merits and demerits in the balanced scales of justice. Ultimately, it
seems that he appears to have finally made up his mind to oppose
the policy of wholesale transfer of CJs. This would be clear from
his letter dated 7.12.80 addressed to the Law Minister where he had
expressed his opinion fairly, frankly and without any reservation
· thus :

···_.. Though I am firmly opposed to a wholesale transfer of the
Chief Justices of High Courts, I take the view, which I
have expressed froni time to time, that such transfers may
c be made in appropriate cases for strictly objective reasons.
Perwnal considerations must, in the matter of such trans-
fers, be wholly kept out."
This, therefore, marks the end of the epoch so far as the CJI
was concerned. After examining the entire history of the case, the
I) · various opinions expressed by top legal luminaries, statesmen,
politic{ans and jurists right from 1958 to · 1981, we are absolutely
convinced that the idea of the Central Government of a uniform
policy of transfer of CJs, so that each State has a CJ from outside,
is a very essential, useful, sensible and a wise one which cuts at the
roots of so many evils with which not only our country but even the
E higher judiciary is faced. Some of these aspects have been dealt
with by the Law Minister and other legal luminaries in the various
extracts quoted above.
· - -- Secondly, such a uniform policy will be in the better interest of
the concerned Judge himself because however disinterested or inde-
pendent he may be, he is bound to be influenced either conschusly or
unconsciously by interested persons who choose to exploit him even
' , without his knowledge. A clear instance of this is to be found in
the case of Justice K.D,N. Singh which has been fully clarified by the
CJI in his counter·affidavit in Transferred Ca>e No. 24 of 1981. As,
-·however, this is a very sensitive matter we would not like to go into
G the details or comparative merit or demerit of the Policy but by and
large we are absolutely confident that such a Policy would enhance
the prestige of the judiciary, ensure its i1dependence aod make the
working of the head of the judiciary in the State more efficient and
generate a greater confidence in -the pe.ople of the new State where
u be is transferred.
The only objection which has beeri pointed out against this
Policy fa ti:\e Linguas• problem but ti:\1t al>~ clues not appeu to b;
s P. <lUPTA v. UNION (Fazal Ali, J.) 801

an insurmountable obstacle because while laying down the policy the A
Government can start with transfers of CJs within the Zone> a;
recommended by the Law Commission which will minimise the
language difficulty. In making the transfers, there would be no
serious objection if the CJ is allowed to indicate his choice regarding
the State where he would he prepared to be transferred and the
B
same may· be accepted a~ far as practicable. So far as recruitment
of one-third judges at the initial stage is concerned, this will no
doubt present s'Jme difficulties in the beginning because several cons-
titutional authorities would have to be consulted but this difficulty
can be overcome either by the appropriate method adopted by the
Circular or any mechanism similar to the same. We would like to
suggest that the Chief Justice of each High Court should be asked
to prepare a panel of suitable persons who are considered for
appointment as High Court Judges both from the Bar and from f e.
subordinate judiciary. Before including the name of the persons
concerned their previous consent for being appointed outside the
State may be obtained by the CJ. This can be done by determining D
the strength of the panel so that it may form one-third of the total
strength of permanent judges already fixed by the Pre>ident or as
may be fixed from time to time. The Civil List of Judges of the
Supreme Court and High Courts gives the sanctioned strength of
permanent and Additional Judges. One-third of the strength of the
permanent judges according to the vacancies that fall should be E
reserved for the persons found suitable and who are willing to serve
outside the State. It ·would be better if the persons whose names
are included in the Panel are appointed outside the State as per-
manent judges which would provide an'!attractive offer and give a
better impetus to the persons aspiring for judgeship and would
tempt them to serve outside the State. F

This procedure should be continued without any break through
a phased programme and the ultimate result would be that after a
few years, the outside judges in each High Court will pick up their
seniority and would become eligible for being appointed as CJ of the G
High Court in which they were appointed Thus, after the retire-
ment of the present CJs or the transferee CJs a time may come when
automatically every High Court will have a CJ from outside because
the seniormost judge who was initially recruited from outside would,
if found suitable in all respects,\•be appointed Chief Justice of the H
said High Court. Such a scheme would be a continuous implemen-
tation of the Policy,
802 SUPRBMB COURT REPORTS [I 982] 2 s.c.R.

A Moreover, once the Government takes a final decision consi-
dering the diverse views expressed by politicians, jurists, lawyers,
parliamentarians and respectable citizens, in respect of having a
uniform policy by which every CJ should be from outside the State,
the Government can lay down such a policy by a Presidential Order.
If that is done, there would be no just or lawful cause for the CJI to
B
withhold his consent to implement such a uniform Policy because
once a Policy is evolved and given effect to, the idea of making
selective transfers would lose its significance and value and would
perhaps be violative of Art. 14 of the Constitution because selective
transfers would always ! result in some sort of discrimination, for in .....
c each case, the CJI would have to justify the classification made
by him.

It is true that neither the Law Commission set up in 1958 nor
the one set up in 1978 had totally agreed with the first limb of the
policy, i.e. transfer of CJs from one State to another so that each
D State has a CJ from outside although they did find in unequivocal
terms that there was a sufficiently vocal section of the public favour-
ing such a policy of transfers. This was perhaps because by that
time all the various shades and aspects, mechanisms and methods of
evolving such a policy had not been fully explored nor did the State
policy till that time ripen into a wholesome policy after having
E considered the various facets of the matter with frankness, forthright-
ness and objectivity.

Indeed what had been noticed by the Law Commission in
1958, that is about more than two decades hence, has become
absolutely essential today in view of the modern trends of casteism,
F nepotism and patronage in the higher echelons of judiciary. Further-
more, as a result of the insufficient emoluments and poor conditions
of service, we are not able to muster men of high calibre and
eminence for appointment to the High Courts. With great reluctance
we have to observe that an atmosphere seems to prevail today in
most. of the High Courts where Judges are being exploited and in
G some cases perhaps without their knowledge, which has brought the
most sacred and sacrosanct institution of the judiciary into serious
disrepute. The only honourable remedy for this malady is the
implementation of the first limb of the Policy.

JI
Nevertheless, regarding the second limb of the Policy in regard
io recruitment of one-third judges from. outside the State, as far ~$
S.P. GUPTA v. UNION (Fazal Ali, J.) 803

possible at the initial Stage, both the Commissions have unanimously A
acclaimed and approved such a step.

Brother Venkataramiah has taken the view that although the
CJI was opposed to the wholesale transfers of all CJs, his opposition
was only with respect to all these transfers being made at a particular
time. In other words, Venkataramiah J. suggests that the CH was B
quite agreeable to the Policy being carried out if the CJs are trans-
ferred not in a block but by stages and in due course of time. We
are, however, unable to agree with this argument because this ru11s
,_, counter to the clear intention expressed by the CJI in the letters
discussed above. Moreover, it will be rather unfair to the CJI also
to say that he had merely opposed wholesale transfers made at one c
time but had agreed to the Policy of uniform transfers if made by
stages. The view taken by the CJI may not appeal to us or perhaps to
the majority of the jurists but it cannot be said that there is absolutely
no substance in the stand taken by the CJI. His point of view is
also quite understandable but, with greatest respect to him, what he
has missed is the great public interest, the policy subserves by D
promoting national integration and curbing fissiparous tendencies
that have started raising their heads and completely excludes discri-
mination which may result in cases of selective transfers.

Brother Venkatarmiah has also expressed his view that the
transfers proposed by the en. which were quite a number of them,
E
were actually in aid and implementation of the policy formulated
by the Government and, therefore, even if there was no effective
consultation, the transfers would be valid. We regret that we are
unable to accept this view because it is the common case of all the
parties that although the suggestion to evolve a Policy has been F
mooted no such Policy has yet been evolved or finalised because
even according to the Law Minister, the mechanism is yet to be
determined which would have to be left to the Supreme Court. This
is, further supported by the statement of the Law Minister which
was produced by the Solicitor-General where the Law Minister
merely says that the Policy view was put across to the CJI who G
expressed his opposition to all the CJs of the High Courts being
from outside. The Government, however, acceded to the transfers
proposed by the CJI as (1) it was felt that not agreeing to these
transfers may be construed as though the Government was departing
from its view of having CJs from outside, l\nd (2} the _policy aspect H
could still be pressed into service later.
804 SUPREME COURT REPORTS [I 982] 2 S.C.R.

A Thus the statement of the Law Minister clinches the issue and
establishes the fact beyond doubt that no uniform Policy has so far
been evolved and the said Policy, if any, is still in the making. This
being so, the question of the CJI proceeding to implement the Policy
by proposing the transfers would not arise.

B On other points, we entirely agree with Brother Venkataramiah
and other Brother Judges that the Policy is good, reasonable, fruitful
and constitutionally valid.

Thus, a close and careful scrutiny fof the correspondence .._,
between the Law Minister and the CJI over a year on the issue of
c evolving a General policy of transfer of CJ s so that each State has a
CJ from outside could not be finalised and what happened was that
only sporadic transfers were recommended by the CJT. As indicated
above Brother Venkataramiah has in his lucid judgment seems to
have construed the letter dated 7.12.80 of the en to indicate merely
that he was against wholesale transfers to be made at one stroke and
D what he suggested was that these transfers should be made in stages
and not on a single day. In other words, Venkatararniah J, is of the
view that the transfers recommended in the CJl's letters dated
7-12-80 and 20-12-80 were merely in implementation of the general
policy of transfer of CJs so that every High Court has a CJ from
outside. With due respect, we are unable ro spell out such an intention
E of the CJI from the clear contents of the letters which in fact and
in purpose rejects the general policy of wholesale transfers of the
CJs as suggested by the Law Minister. He has ultimately expressed
himself very clearly and strongly that he was against such a universal
policy of wholesale transfers and would be willing only to consider
individual cases on their merits leaving apart, personal considerations
F
and for objective reasons.

Secondly, since it is the admitted case of the Government that
while they were thinking of evolving a general policy of transfer of
CJs, the policy had not yet taken any final shape nor did the Govern-
G ment take any conclusive decision on this important matter, with
due respect, therefore, we do not agree with the view taken by
brother Venkataramiah J. on this point.

As regards the Government's idea of evolving a general policy
H to effect transfers of CJs in a manner which puts every High Court
under the CJ from outside the State, is undoubtedly a very sound
ifnd acceptable policy as founq by us. We have pointed out from
S.P. GUPTA I'. UNION (Fazal Ali, J.) 805

the various Reports discussed above that eversince the date of the A
Report of the SRC was given tbe idea of having Judges from outside
the State was clearly mooted. Furthermore, while we are examining
the Policy sought to be evolved by the Government, at the present
moment we cannot shut our eyes to the stark and hard realities of
life. Eversince the linguistic provinces came into existence as a
result of the SRC Report, attempts have been made to see that the
8
linguistic division of the State does not create disintegration of our
big country which is the largest democracy in the world. In fact,
lawyers, Judges, politicians, jurists, members of the Bar and other
statesmen have applied their minds and expressed themselves strongly
in favour of the policy sought to be. evolved by the Government
In view, however, of the changed circumstances, in our opinion,
c
such a policy is not only proper but essential as being the prime
need of the hour. We cannot but take notice of the fissiparaous and
parochial tendencies that have started raising their heads threatening
disintegration of the country. The dark clouds of separatism,
conservatism and parochialism have started casting their shadows on
0
the entire country and it is high time that such a sacred and sacro-
sanct institution like the High Courts should be protected and kept
aloof from such evil forces. It is manifei;t that a CJ from outside
will apply an independent approach both in discharging his judical
duties as a Judge and in recommending appointment of member of
the Bar or service to the High Court and his selection will not be E
inspired or tainted by any local or personal consideration because he
would be an outsider in the High Court of a State where he presides.
Further, even the litigant would have much greater confidence in such
a CJ than in a local person.

We would like to reiterate at the risk of repetition that having F
regard to the inadequate emoluments of the High Court Judges and
their conditions of service which leave much to be desired, there has
been a fall in the standards of efficiency and competency. Lawyers
possessing great calibre and eminence are extremely reluctant to
accept judgeship of a High Court. Thus, the choice and selection G
of suitable persons has become extremely difficult and experience
has shown that in a number of High Courts suitable persons have
not been appointed.

It has been vehemently argued by Mr. Seervai as also by Mr.
Sorabjee who followed him that their main concern is that indepen- H
dence of judiciary should be maintained at all costs. Indeed, if they
are really concerned that we should bµijd up an independentJudiciar~
806 'SUPREME COURT REPORTS [ 1982] 2 S.C.k.

A then it is absolutely essential th:, t new talents from outside should
be imported in , every High Court either to man it or to head it so
that they may generate much greater confidence in. the people than
the local Judges. The position of a CJ is indeed a very high
constitutional position and our Constitution contains sufficient
safeguards to protect both his decision making process and his
B tenure. It is a well-known saying that power corrupts and absolute
power corrupts absolutely. As man is not infalliable, so is a Chief
Justice, though a person holding a high judicial post is likely to be
incorruptible because of the quality of sobriety and restraint that
the judicial method contains. Even so, if a CJ is from outside the >--•

State, the chances of his misusing his powers are reduced to the
c absolute minimum. We have pointed out that the power to formu-.
late or evolve this policy clearly lies within the four corners of Art.
222 itself which contains a very wide power conditioned only by con-
sultation with CJI who is th! highest judicial authority in the coun-
try. It is always open to the President, which in practice means the
Central Government, to lay down a policy, norms and guidelines
D according to which the presidential powers are to be exercised and
once these norms are followed, the powers of the President would be
beyond judical review.

We might also mention that as against policy transfer selective
transfers of CJs to High Courts other than the one where they are
E working or may be appointed, contains the colour of discrimination
and arbitrariness because however careful the CJI may be if he starts
picking and choosing CJs from outside the High Courts the element
of discrimination or arbitrariness cannot be reasonably excluded.
On the other hand, if a general policy applying to all and sundry
(CJs) is evolved by which every State would have a CJ from outside
F
no complaint of discrimination can ever be made. In fact, the very
foundation of discrimination would disappear. The view taken by
the CJI, with greatest respect to him, does not appear to be correct
or acceptable and perhaps in his own interest selective transfers
should not be made because even if in one or two cases discrimina-
tion is made due to oversight or bona fide lapse, it will amount to a
G
great slur on such a high position as the CJl holds. On the other
hand, if a uniform policy of appointing or promoting CJs to High
Courts outside the State is followed it will promote national integra-
tion and curb the fissiparous and parochial tendencies and preserve
H and protect the purity of judicial administration. We cannot
conceive of any better policy which would be in greater public
jnterest than the policy of having CJs jq every State from outside.
s P. CTtiPTA I>. UNION (Paza/ Ali, J.) 807
We have already observed that whenever a general policy or radical A
change of this kind is made it has to be subject to just exceptions
and the formulation of such a policy would also have to take within
its fold exceptional circumstances applicable to a particular CJ or
CJs-a matter which we shall discuss hereafter.

Even as regards the constitutional validity of the general policy B
which may be evolved by the Central Government. This Court in
Seth's case had clearly expressed the view that such a Policy would
be in public interest. In this connection, Chandrachud J. (as he
then was) speaking for the majority judgment observed as follows :

"As re2ards the first, no onetcan deny that whatever c
measures are required to be taken in order to achieve
national integration would be in public interest. Whether
it is necessaary to transfer Judges from one High Court to
another in the interests of national integration is a moot
point. But that is a policy matter with which courts are
not concerned directly. D
x x x
Policy transfers on a wholesale basis which leave no
scope for considering the facts of each particular case and
which are influenced by one-sided governmental considera-
tions are outside the contemplation of our Constitution."
E
Doubtless, there appears to be some apparent contradiction
between the two passages extracted above from the judgment of
Chandrachud J. On a closer scrutiny of these observations his view
that policy transfers on wholesale basis would leave no scope for
considering facts of each particular case cannot be read out of the
context and have to be read in the light of the peculiar facts and F
circumstances of Seth's case in which transfers were made by the
Government not in pursuance of a Policy or public interest but
purely with political motives to punish Judges for sharing a parti-
cular ideology. This is, however, not the case here and therefore as
we read the observations of Chandrachud J. he has not held the
Policy of transfer to be not in public interest in order to promote G
national integration.

For the reasons that we have already given above, we are
unable to agree with the observations where the learned Judge has
said that interest of national integration is a moot point. We have H
already shown from the opinions expressed by high constitutional
and legal authorities that a policy of having CJ in every High CQurt
SUPREME COURT REPORTS [1982] 2 s.c.R.

A from outside is in great national interest and perhaps very necessary
in order to curb and crush fissiparous tendencies which seem to sway
our entire country. Bhagwati J. while adverting to this aspect of
the case observed as follows :

"It was admittedly part of mass transfers of 16 High
B Court Judges and though a suggestion was made by the
Government of India in its affidavit in reply that the trans-
fers were made with a view to strengthening national
integration but cutting at the barriers of regionalism and
parochialism, the Government of India did not choose to
disclose the principle on which these 16 High Court Judges
c were picked out for being transferred."

These observations show that Bhagwati, J. did not dispute the
correctness of the Policy of National integration but found fault with
the manner in which it was applied by justifying the transfers on a
ground which was not supportable in law. It is obvious that if the
D transfers would have been made to strengthen national integration in
order to cut the barriers of regionalism and parochialism, the Judge
would have no hesitation in upholding the State Policy. Krishna
Iyer, J. and one of us (Fazal Ali J.) also sounded a similar note
and observed thus :

E "But to promote the community's concern for impecc-
able litigative justice policy-oriented transfer of judges
after compliance with constitutionally spelt-out protocols
may not be ruled out.
x x x
Salutary safeguards to ensure judicial independence
F with concern for the All-India character of the superior
courts in the context of the paramount need of national
unity and integrity and mindful of the avantages of inter-
State cross-fertilization and avoidance of provincial
perviciousness were all in the calculations of the framers of
the Constitution."
G
Even Untwalia J. who had dissented from the majority
judgment had admitted that the purpose of national integration
was a good thing to be achieved and in thii connection observed
thus
H
"The purpose of national integration if otherwise it is
a good thing to be achieved ... "
S.P. OUP't'A v. UNION (Ji'aza/ Aii, i.) 809

Thus, it would appear that even the judicial pronouncements A
of this Court in Seth's case extracted above fully favour the formu-
lation of such a policy. Added to this the commitment made by the
Law Minister that once the Policy of wholesale transfers of CJs is
evolved the mechanism would be left to the Supreme Court and the
Policy be started from the grass-root level by taking consent of the
persons nominated for appointment of Additional Judges who have B
not yet been made permanent, the policy can be fully worked out
without any hitch or hindrance.

The next question that arises for consideration is as to how
the two limbs of the Policy, viz., (I) transfer of CJs from outside,
and (2) recruitment of one-third of judges from outside the State at c
the initial level, can be effectuated. Here, we do not find any
difficulty whatsoever. Art. 222 confers an express power on the
President to transfer a judge (which includes the CJ) from one State
to another. This power is not circumscribed or hedged by any
conditions or stipulations excepting that the CJI has to be consulted.
In determining as to how this power can be exercised, the President D
undoubtedly posseeses an implied power to lay down the norms, the
principles, the conditions and the circumstances under which the
said power is to be exercised so long as he does not overstep the
limits or confines of the power enshrined under Art. 222. Since the
implied power lies with the President it is not at all necessary that
this power should be regulated by a legislation or an Act or a Rule E
or a bye-law or any other instruction. A declaration by the Presi-
dent regarding the nature and terms of the policy which virtually
means declaration by the Council of Ministers is quite sufficient and
absolutely legal and constitutional to effectuate the policy decided
upon.
F
Secondly, as the policy is a general one which applies to all
and sundry without any discrimination or selection, it cannot be
"'> violative of Art. 14 of the Constitution because ·the policy will
operate equally on all the Judges or the CJs without any difference
or distinction. G
Thirdly, it is necessary to put the policy beyond the charge of
unreasonableness or arbitrariness that the State policy must be
subject to just exceptions which may be very few, so that the excep·
tions do not become a rule or a ruse to destory the effect of the H
main policy itself. For instance, while evolving or formulating a
$10 SUPREME COURT REPORTS [19821 2 s.c.a.

A general policy the following exceptions can be made by the
President- ;..

(I) that where the personal circumstances of a judge,
purely on humanitarian grounds, are such as may
endanger his life, e.g., be may be a heart patient and
B so he may not be transferred to a High Court which is
situated in a hill station or at a particular height or he
may be suffering from such disease which may
imperil him there or such other circu_mstances of a
very compelling or pressing nature,

c (2) where the judge or the CJ concerned is about to retire
and is to serve only for a very short term before
retirement, his transfer to some other court would not
serve any useful purpose and would be very inconveni-
ent to him-such a period may vary from one day to
six months but not more,
D
(3) where due to some physical infirmity the CJ concerned
has become immobile and cannot be moved beyond
his home State, this may be a just and humanitariaa
ground for bringing him under the exceptions to the
policy, and
E
(4) such other circumstances either similar to or identical
with the circumstances mentioned above, which in the
opinion of the CJI or the President requires due
consideration on humanitarian grounds.

F
It is manifest that even if a Policy has been finally evolved and
formulated and transfers are sought to be made in pursuance of the
policy, the President has to consult the CH or where the CJI initiates
the proposal he is to consult the Judge concerned as also the President
but the process of consultation would have to be confined to the
G four corners of the just exceptions indicated above and not beyond
the same which form part of the Policy laid down by the President.

At the same time, the exceptions should not be so broadly
construed as to destroy the effect and fruitfulness of the Policy.
H
Another aspect of the matter is as to whether or not the policy
is legally justifiable and is in public 'interest so as to be legal and
S.f>. GUPTA v. UNION (Fazal Ali, J.) 811

constitutional. On this aspect of the matter unimpeachable materials A
have been placed before us to show that right from the framing
of the Constitution uptodate public opinion has always favoured the
transfer of judges as a matter of uniform policy. As late as 1949
when the Draft Constitution was made, Dr. Ambedkar, as already
indicated, had expressed a pious wish that judges should be transfer-
red to other States so that they can apply an independent approach B
and generate more confidence being above all local or parochial
interests.

We must hasten to add that the President before formulating
the Policy should consult the en and have his views because the
laying down of the Policy would be under Art. 222 and consultation c
with the CJI being a necessary concomitant of the said power, even
while laying down the Policy, the consultative process is essential.
Although the en has at present shown his stiff opposition to the
Policy we hope and trust that when the matter is reassessed and a
Policy is finally formulated, the CTI would eschew his opposition in
view of the various factors and circumstances indicated above as
D
also in due deference to the view ;of some of the Judges of this Court
who have decided these cases, which, as pointed out by us, is not
only in great public interest but also in national interest to the coun-
try. Moreover, the Policy has been amply supported and sponsored
not only by the Government but also by a very large body of
E
publicmen including jurists, politicians, lawyers, parliamentarians
and others. If despite these circumstances the CJI does not change
his view and sticks to his opposition of the Policy, then we think
this will be a fit and proper case where the President might overrule
the en and enforce the Policy. We however solemnly hope and
trust that such an eventuality would not arise.
F
Before closing this Chapter, we would like to say a few words
about the mechanism of giving effect to thia Policy. The Law
Mi•ister has already made a statement in the Parliament as indicated
above that he is prepared to leave the mechanism to be devised to
the en or to the Supreme Court. If the Supreme Court, which G
represents cream of all legal and judicial master minds of 70 crores
of the people of our country, is left to adopt the mechanism, viz.,
as to which CJ should be posted where and judge the suitability and
the atmosphere of the place of posting, then we think that nobody
'can ever complain of any injustice or discrimination against the H
mechanism adopted by the Court. We might further state that only
the mechanism is to be left to the Supreme Court which will require
812 SUPREME COURT REPORTS [1982] 2 S,C.R.
A a small Constitutional amendment in Art. 222 which uses the word
CJI alone. For the time being the mechaniom could be left to the
CJI who, we hope and trust, will consult his colleagues before
adopting the mechanism in each case.

Before closing this chapter we should now say a. few words
B
about the legal and constitutional effect of the Circular said to have
been written by the Union Law Minister. In order to understand
the real import of the said Circular, the same may be extract.ed in
full :

''D.0. No. 66/10/81·Jus Minister of Law, Justice &
c Company Affairs, India
New Delhi-110001.
March 18, 1981.

My dear
D It has repeatedly been suggested to Government over the years
by several bodies and forums including the States Reorganisation
Commission, the Law Commission and various Bar Associations
· that to further national integration and to combat narrow parochial
tendencies bred by caste, kinship and other local links and affilia-
tions, one-third of the Judges of a High Court should as far as
E possible be from outside the State in which that High Court is
situated. Somehow, no start could be made in the past in this
direction. The feeling is strong, growing and justified that some
effective steps should be taken very early in this direction.

2. (a) In this context, I would request you to obtain
F from all the Additional Judges working in the
High Court of your State their consent to be
appointed as Permanent Judges in any other High
Court in the country. They could, in addition, be
requested to name three High Courts, in order of
preference, to which they would prefer to be
G appointed as Permanent Judges: and

(b) Obtain from persons who have already been or
may in the future be proposed by you for initial
H appointment : their consent to be appointed to
any other High Court in the country along with a
similar preference for three High Courts.
S.P. GUPTA v. UNION (Fazal Ali, J.) 813

3. While obtaining the consent and the preference of A
the persons mentioned in paragraph 2 above, it may be
made clear to them that the furnishing of the consent or
the indication of a preference does not imply any commit-
ment on the part of Government either in regard to their
appointment or in regard to accommodation in accordance
with the preferences given. B
4. 1 would be grateful if action is initiated very early
by you and the written consent and preferences of all
Additional Judge as well as of persons recommended by
you for initial appointment are sent to me within a fort-
night of the receipt of this letter. C
S. I am also sending a copy of this letter to the Chief
Justice of your High Court.
With 1,1egards
Yours Sincerely, D
Sd/- (P. Shivshankar)

To:
l. Governor of Punjab.
2. Chief Ministers (by name) (except North-Eastern States)"
E
In the first place, the contents of the letter have to be under-
stood against the background of the uniform Policy sought to be
evolved by the President whicla we have dealt with above exhaus-
tively. Before we make any comments it seems to us that what
was purely a useful and innocuous, meaningful and pointed docu-
F
ment has been described by the petitioners as a most mischievous
act of the Law Minister which endangers and erodes the indepen-
dence of the judiciary. In our opinion, with due respect to the
counsel for the parties, the Circular neither does nor does it intend
to do any such thing.

To begin with, the preamble of the Circular clearly gives the G
reasons and the background why the letter was written, viz., _that
the unanimous view that has now emerged is that one· third of the
r .'"J..J.. Judges should as far as possible be from outside the State in which
that High Court is situated. From the elaborate discussions in H
respect of the various circumstances and documents to which we
have referred while dealing with the question of Policy, It is mani-
814 SUPREME COUR't REPOR'tS [1982] 2 s.c.Il.

A fest that nobody has ever objected to the second limb of the Policy,
that is to say, taking one-third of the judges in a High Court from
outside the State. We have shown that even the CH has expressed
his entire agreement with this part of the Policy. The Circular
merely seeks to provide an easy and practical, a rough and ready,
and an ingenious and scientific mechanism to achieve this end.
B
Let us assume that all parties agree that one· third of the
Judges in each High Court should be taken from outside, which
seems to be the absolute consensus that has emerged from the evi-
dence produced by both the parties. The question is how is this
objective to be achieved ? One method may be as suggested by
c some Commissions that each High Court should maintain a panel
of members of the Bar and the services who are suitable for appoint-
ment as Judges of the High Court and exchange these panels with
the CJs of all High Courts. Before making the panel, it is manifest
that the State Government also would have to be consulted, which
is also the requirement of the statute. This is, however, a very
D complex and complicated procedure and will take quite a few years
before the panel is formed.

So far as Mr. Seervai is concerned, he argued that this cannot
be done. We are, however, unable to agree with him that merely
E because it may not be very easy to evolve this limb of the Policy,
it should be rejected as being impossible of performance. After all,
eminent jurists like Justice Saiyid Fazl Ali, Justice R.R. Khanna,
Mr. M.C. Setalvad and lot of others must be given the credit of
possessing great knowledge of law and if they thought that this was
an idea which was most impracticable, they would never have
F suggested it.

The Law Minister by virtue of the Circular seeks to hit upon a
device by which this limb of the Policy can be achieved. It is obvious
that in almost all the High Courts apart from the permanent judges,
additional Judges are working according to the strength fixed by the
G President in each High Court. The Circular does not cover the
permanent judges of the High Court at all but it applies only to two
kinds of Judgee-(1) persons who are about to be appointed as
Additional Judges, and (2) persons who are working as Additional
Judges and whose term is likely to expire. The Circular merely
H
says that the CJs may obtain the consent of the aforesaid Additional
Judges if they would like to be appointed as permanent judges in
8.1>. GUPt A v. UNION (Faza/ Ali, J.) 815

any other High Court in the country and they could name three A
High Courts of their choice. There is no compulsion on the Judges
to give their consent : it is merely an option or suggestion which
they may or may not accept.

Secondly, consent is to be obtained from persons who had B
already been or may in future be proposed for initial appointment
as Additional Judges to give their consent to be appointed in any
other High Court. Here also, there is no element of compulsion.
Clause (3) of the Circular, which has been severely criticised by
Mr. Seervai and those who followed him, merely says that furnishing
of the consent or indication of the preference would not imply any C
commitment on the part of the Government. While criticising this
part of the Circular the counsel for the petitioners have however
completely overlooked the most important circumstance that it was
impossible for the Government to have made by commitment
without ascertaining the views of the State Governments concerned,
the CJs as also the en. It could only be after these functionaries D
would have intimated their option that the ball could be set rolling
and the CJs of the High Courts where they were proposed to be
sent could be sounded for consultation as also the Government.
Fnrthermore, the en would come into the picture only after the
proposal has passed through the High Court and the State Govern-
ment concerned and it would be open to the CJI at this stage E
--.- either to agree with this proposal or to drop it.

We, therefore, fail to see what harm is done to the Judges,
On the other hand, the Circular provides an additional facility to
the Judges who may like to go out of the State in accordance with
the Policy. It appears that in actual practice quite a few of the F
Judges have given their consent.

Mr. Seervai vehemently contended that the tone and tenor of
the Circular amounts to pressurising the Judges and putting them
under coercion to give their consent at the peril of their being
dropped at the initial stage. The plea of coercion or undue influ- G
ence is to be pleaded by the persons on whom undue influence or
coercion is used. None of the Judges have either by any statement
or affidavit complained that they had given their consent under
duress.
H
Mr. Ser.rvai submitted that Judges are not used to indulge in
litigation and if they chose to remain silent, the lawyers can take up
816 SUPREME COURT RllPORTS (1982) 2 S.C.R.

A their cause and prove that duress and coercion has been practised
on them. We are really amazed that such an argument has been
advanced before us which completely ignores the :elementary norms
of law. Manifestly before the highest court, a Judge of a High
Court cannot be governed by a law or rufo of evidence different
from the one which applies to all citizens. It is now well settled by
B several authorities that allegations of coercion or undue influence
must be expressly pleaded by the party who is the victim, and proved
to the satisfaction of the Court.

In the instant case, there is neither any plea nor any proof
by the socalled victims. A mere statement in the petition that
c undue influence or coercion or duress was practised on the Judges is
not sufficient for this Court to come to the conclusion that the
consent of the Judges was obtained under duress or coercion.
Mr. Seervai contended that although there was a clear indication in
the potition, none of the Judges bas come forward to deny the
same. This is indeed a most unusual way of proving a case of
D
fraud or· undue influence. Suppose today we accept the arg~ment
of Mr. Seervai and hold that by virtue of the Circular the Ji.idges
who have given their consent did so under coercion or duress and
tomorrow the very Judges who bad given consent come forward to
this court protesting against our finding and inform us that they
E had voluntarily given their consent, what shall be the answer of
this Court. On what principle of law or equity can we decide the
plea of fraud, undue influence or coercion. This argument which
is the sheet anchor of Mr. Seervai, with due respect to him, cannot
be accepted for a moment.

F Another comment against the Circular was that by the indirect
process of obtaining consent of the Judges concerned, the provisions
of Art. 222 have been rendered otiose because when the matter goes
to the CJI, he would be faced with a fait accompli and would have
no discretion in the matter. This argument also, in our opinion, is
wholly untenable. A ~erson of the status and calibre of the Head
G of the judiciary in India would not be worth his salt if he exercises
his constitutional power of consultation merely on the consent of a
judge without at all applying his mind. There is no question of
presenting a fait accompli to the CJI because he has to consider all
the shades, aspects and problems of the matter in its entirety and
H would also have to consult the judge concerned and if he feels that
a proper case for transferring the Additional Judge to .other High
Court ha$ not \Jeen made out, he can refuse to give his consent in
S.P. OUPTA v. UNION (Fazal Ali, J.) 817

which case in all probability the proposal would die a natural death. A
We are, therefore, unable to accede to the contention that the
Circular tries to interfere with the supreme authority of the CJI in
the matter of consultation under Art. 222

Another circumstance that furnishes a complete answer to this
problem is that no question of transfer is involved in the mechanism B
sought to be devised by the Circular. The Additional Judges have
only to be appointed for the first time in other High Courts and are
not to be transferred. Even if the Judges concerned give their
consent and are appointed in an outside High Court, they would
not be transferee judges and therefore not entitled to the facilities
which are available to transferee Judges like compensatory allow- C
ance, visiting his home State every year, etc. Therefore, the entiro
argument stands on a pack of cards.

Lastly, the Circular issued by the Law Minister is not manda-
tory but purely directory. It is open to the Judges to refuse to
answer the queries made from them by the CJs in pursuance of the D
Circular and no adverse inference can be taken against them, though
the law will take its own course.
We are clearly of the opinion that once the Policy is finally
formulated and translated into action, it would enhance the image
and independence of the judicial institutions and verily the judiciary E
would see its halcyon days where the judges would be able to
function with drive and dedication in a free and independent atmos-
phere without the fear of any local or parochial influence entering
into their verdict either consciously or unconsciously. The grateful
nation shall pay its homage to our great Founding Fathers for
giving unto this country a most ideal, flexible, sound and solid F
Constitution which has sustained the largest democracy in the world
and has stood the test of times despite severe storms and crises like
an impregnable rock.

For these reasons, therefore, we are unable to agree with the
counsel for the petitioners that the Circular in any way tarnishes G
the image of the Judges or mars the independence of judiciary.
This, therefore, disposes of Point No. 3 relating to Policy of General
Transfers and the question of validity of the Circular.

As regards the question of appointment of Additional Judges H
under Art. 224, the interpretation of Art. 217, the questions of locus
iind primacy, the exposition of the concomit11nts of consult11tive
818 SUPREME COURT REPORTS [1982] 2 s.c.R..

A process, I generally agree with my Brothers Bhagwati, Desai and
Venkataramiah, JJ. who have elaborately dealt with these points.

So far as the question of privilege is concerned, the matter
was argued with all its ramifications by counsel for the parties.
All my Brother Judges after hearing the arguments passed an interim
8 Order on 16.10.81 directing disclosure of the documents concerning
the secret correspondence between various authorities. I, however,
found myself, with due respect to my Brother Judges, unable to
agree with the view taken by them and passed the following Order
on the same date :

c "I am afraid, I am unable to persuade myself to agree
with and express my respectful dissent from the Order
passed by Brother Bhagwati J. and other Brother Judges
, directing disclosure of the contents of the documents. I
am clearly of the opinion, after inspecting the documents
and considering the pros and cons, various shades and
D aspects of the matter with all its ramifications, that it is
not in public interest to disclose the contents of the docu-
ments and I accordingly uphold the plea of privilege taken
by the Union of India. I am aware that my voice is a
lone dissent but I am satisfied that I am in good company
with my judicial conscience.
E
Reasons for this Order will be given by me alongwith
the judgment rendered in the cases."

I now set out to give the detailed reasons which led me to
dissent from the views taken by my learned colleagues. I had men-
F
tioned in my interim Order that mine was a lone voice of dissent
but I felt consoled that I was in good company with my judicial
conscience.

To begin with, in dealing with the question of privilege, we
G cannot view this important branch of law divorced from the socio·
economic conditions of our own country nor can we overlook the
special conditions-political. economic and social-prevailing in the
largest democracy of the world. Any judicial reform however
radical or meaningful it may be, must like a sage counsel be slow ..._- 1

H and gradual because it is the r last refuge for those who seek justice
from the courts of law. One of the most prominent distinctive
features of the laws of our country on the question of privilege is
S.P. GUPTA v. UNION (Fazal Ali, J.) 819-

that the doctrine of privilege is governed not merely by case law but A
by statute law as also bY Constitutional. provisions. These provisions
are contained in ss. 123 and 124 of the Evidence Act, s. 162 of the
Code of Criminal Procedure and Art. 74(2) of the. Constitution of
India. In deciding the plea of privilege taken_ by ·the State or the
party concerned, the provisions of the codified law, which have not
B
been changed so far, must receive full and effective consideration
at our hands. It is not for the firsr time that ·a claim of p~ivilege
has been taken by the Government in this case but the law is now
well settled by the decisions of this Court as also of various High
'Courts including the Privy Council. I would not' like to burden
this judgment, which has already become unduly long, with the long
course of decisions of the High Courts covering a period of more
c-
than a century but would ·like to confine myself to the authorities
of this Court and some English and American cases on which reli-
ance has been placed by counsel for the petitioners.

Before proceeding to the decisions, it may be necessary to
extract the relevant provisions of the codified law of our country.
D
Art. 74(2) which contains a constitutional mandate by preventing
any inquiry into an advice tendered by the Minister to the President
runs thus:

"74. (2) The question whether any, and if so what,
advice was tendered by Ministers to the President shall not
E
'""-·· be inquired into in any court."

Section 123 and 124 of the Evidence Act may be extracted
thus:

"123. Evidence as to affairs of State : No one shall be F
permitted to give any evidence derived from unpublished
official records relating to any affairs of State, except with
the permission of the officer at the head of the department
concerned, who shall give or withold such ..permission as he
thinks fit. G
124. Official communications: No public officer shall
be compelled to disclose communications made to him in
official confidence, when he considers that the public
interest would suffer by the disclosure." H
Section 162(1) of the Code of Criminal Pr99~gµr~ runs thus:
820 SUPREME COURT REPORTS [1982] 2.s.c.'R:

A "162(1) No statement made by any person to a police
officer in the course of. an investigation under this Chapter,
shall, if reduced to writing, be signed by the person making
it; nor shall any such statement or any record thereof,
whether ~n a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save a:s here-
B inaft.er provided, at any inquiry or trial in respect of any
?ffence under investigation at the time when such state-
ment was made."

A plain reading of these provisions would show that these
provisions are·expressecj in a negative form which is the clearest
C · possible proof of the fact that the legislature has incorporated a'
direct prohibition against the use of documents mentioned in the
aforesaid provisions.

Thus, a disclosure can be allowed only in exceptional cir-
cumstances where there is' no injury to public interest because
0 public interest is always paramount to private interest. In fact, these
provisions clearly contain four important attributes of the doctrine
of disclosure :

(I) public interest,
(2) confidentiality,
E
(3) candour, and ,-

(4) expediency.

A reading of these provisions would also show that the Jegis-
F Jature seems to have laid the greatest possible emphasis on public
interest and confidentiality aspects of these documents. I shall now
refer to some of the leading decisions of this Court which have
construed the doctrine of privilege as contained both in s. 162 of ....---'
the Code of Criminal Procedure and s. 123 of the Evidence Act,
. and have laid down principles which should be adopted by courts
G in allowing disclosure or upholding the plea of privilege.

I would first refer to the case of State of Punjab v. Sodhi
Sukhdev Singh(1) which may justly be regarded_ as the locus classicus
regarding the doctrine of disclosure where Gajendragadkar J.,
H . with whom Sinha CJ and Wanchoo J agreed, obs~rved as follows :

(I) [1961) 2 S.C.R. 371,
S.P; GUPTA v. UNION (Fazal Ali, .!,) 821
'
" ... A valid claim for ·privilege made under s. 123 A
proceeds on the bas.is of the theory that the production of
.the document in question would cause injury to public
• interest, and that, where a conflict arises between public
and private interest, the latter must yield to the former."

It may be noticed here that Gajendragadkar J. was fully alive B
to the fact that even as a result of the non-production of the rele-
vant material or documents the litigant may feel dissatisfied but that
will not affect the basic principle that public good an'l interest must
override conRiderations of private good. · Here this Court made a
distinct departure from the view taken by the American Courts
where the concern .for the amount of prejudice caused to the litigant c
is so paramount as to form the bulwark and fundamental considera-
tion for directing disclosure and in some cases even injury to public
interest has to yield to the requirements of the litigant. It is, there-
fore, clear that this Court has not accepted and, in my opinion
rightly, the extreme view of the American courts This. Court in
Sodhi Sukhdev Singh's case (supra) made the following observations :
\
D
"Care ·has howeve_r, to be taken to see that interests
other than that of the public do not masquerade in the garb
of public interest and take undue advantage of the provi-
sion of s. 123. Subject to this reservation the maxim
situs populi est supreme !es which means that regard for E
public welfare is the highest law is the basis of the provi-
sions contained in s. 123. Though s. 123 does not expressly
refer to injury to public interest that principle is obviously
implicit in it and indeed is its sole foundation."

F
Having regard to the notion about governmental
function and duties which then obtained, affairs of State·
would have meant matters of political or administrative
character relating, for instance, to national defence, public
peace and security and good neighbourly relations. Thus,
if the contents of the documents were such that their G
disclosure would affect either the national defence or public
security or good neighbourly relations they could claim the
character of a document relating to affairs of State. There
may be another class of documents which could claim the
said privilege not by reason of -'their contents . as such but
by reason of the fact that, if the said documents were
disclosed, they would. materially !lffect the freedom and
822 SUPREME COURT REPORTS [1982] 2 s.c.R.

A candour of expression of opinion in the determination and
execution of public policies.
In this class may legitimately be included notes and
minutes made by the respective officers on the relevant files:·
·opinions expressed or reports made and gist of official
decisions reached in the course of the determination or the
B said questions of policy.

In other words, if the 'proper functioning- of the public
service would be impaired by the disclosure of any document
or class of documents such document or such class of docu-
c ments may also claim the status of documents relating to
public affairs.

It is, however, necessary to remember that where the
legislature has advisedly refrained from defining the
expression "affairs of ·State" it would be expedient for
D judicial decisions to attempt to put the said expression into \
a strait jackefof a definition judicially evolved.
It must be clearly realised that the effect of the docu-
ment on the ultimate course of litigation or its impact on the
head of the department- or the Minister incharge of the'
E department or even the Government in power, has no
relevance in making a claim for privilege under s. I 23.

The sole and only test which should determine the
decision of the head of the department is injury to public
F interest and nothing else.

Thus our conclusion is that reading ss. 123 and 162
together the Court cannot hold an inquiry into the possible
injury public interest which may result from the disclosure
of the document in question. That is a matter for the
G . authority concerned to decide; but the court is competent,
and indeed is, bound, to hold a preliminary inquiry and
determine the validity of the objections to its production,
and that necessarily involves an inquiry into the question as
to whether the evidenc.e relates to an affair of State. under
H s. 123 or not,"
(Emphasis mine)
S.P. GUPTA v. UNION· (Fazal -rAli, J.)
Duncan v. Cammell, Laird and Co. (1) was also noticed by this A
Court and it was pointed out that it was not necessary to consider
the t~ue nature and effect of the principle as adumbrated in that
case, because in India· we are coverned by the provisions of s. 162
of the Code of Criminal Procedure which clearly confers powers on
the court to determine the validity of objections raised in section
123 of the Evidence Act. Hence, there would be no occasion to B
exercise the inherent power of the Court. In this connection, this
Court made the following observations in Sodhi Sukhdev Singh's
case (Supra) : ·

"Without knowing more about the contents of the said
documents it is impossible to escape the conclusion that C
these documents would embody the minutes of the meetings
of the Council of Ministers and would indicate the advice
which the Council ultimately gave to the Rajpramukh. It
is hardly necessary to recall that advice. given by the
_Cabinet to the Rajpramukh or the Governor is expressly
·saved by Art. 163, sub-art. (3), of the Constitution; and in
D
the case of such advice no further question need to be
considered. The same observation falls to be made in
regard to· the advice tendered by the Public Service Com-
mission to the Council of Ministers."
'· E
These observations come very close to the matters in dispute
contained in the secret correspondence sought to be disclosed because
here also they dealt with the Minute of the meeting of the Ministers,
viz.,. the Law Minister, the CJI and the CJ, Delhi which form the
. foundation, though not an actual part of the advice tendered to the
President. These do~;uments were held to be fully privileged.
Kapoor J, in a concurrent judgment in Sodhi Sukhdev Singh's case F
(supra), however, clarified the positio'n thus :
"Thus the documents, which are protected from produc-
tion, are those the production of which would be prejudicial
to the public interests or . those which belong to that class
which as a matter of practice, are kept secret for the proper. G
maintenance of the efficient working of the public service.
(Emphasis supplied)

The learned Judge after summing up the entire English law on
the subject observed as follows : H
(1) (1942) A.C. 624. r
824 SUPREME COURT REPORTS (1982) 2 S.C.R.

A "Thus the law as stated in these old English cases
shows that what was injurious to the public interest or
prejudicial to the proper functioning of the public services
was not to be disclosed and if the objection was based on
these grounds it must prevail."
· Construing the provisions' of s. 123 of the Evidence Act, the
B learned Judge observed thus :
"The words of s. 123 are very wide; and the discretion
to produce or not to produce a document is given to the
head of the department and the court is prohibited from
permitting any evidence to be given which is derived from
c any unpublished documents relating to affairs of State."
Subba Rao J. also in a concurring judgment while maintaining
the claim of privilege pointed out that the earlier decisions of English
courts stated that the ground of privilege was sustained only in
regard to the documents pertaining to ·matters of administration,
defencJ for foreign relations whose disclosure would be against
n public interest. Ill the instant case, the documents in q4estion
undoubtedly relate to matters of administration of high-powered
constitutional functionaries and would, therefore," fall within the
ambit of the Rule of Law laid down by the English COU!tS. Subba
Rao J. (as he then was) took care to point out that the Evidence

E
a
Act was enacted when the concept pf Welfare State had not arisen
b~t even after independence the interpretation of the words 'affairs
of the State' cannot be given a separate meaning but have to be
construed on the basis that our Constitution aims at setting up of a
Welfare State. In this connection, the learned Judge observed as
follows :
F "But when the words are elastic there is no reason why
they should not be so construed as to include ·such
activities also, provided the. condition of public injury is
also satisfied. It is, therefore, clear that tne words "affairs
of State" have acquired;a secondary meaning, namely, those
matters of State whose disclosure would cause injury to the
G public interest.
Stressing that. the cardinal test for upholding the plea of
privilege should be that the disclosure of the documents would be
injurious to the public interest the learned Judge observed as,
follows :
H
"I cannot, therefore, give a wide meaning to words
".records relating to affairs of State" so as to take in every

'
s.t>. GUPTA v. UNION (Fazal Ali, J.)
unpublished document pertaining to the entire business of A
State, but confine them only to such of the documents
whose disclosure would be injurious to public interest.
The learned judge furrher pointed out that there was no conflict
between ss. 123 and I 62 of the Evidence Act even on the interpre-
tation sought to be put on the doctrine of privilege by the learned
Judge. In this connection he observed thus :
B
"There is no conflict between s. 123 and s. 162 of the
Act : the former confers a power on a head of a depart-
ment to withhold permission from the stand-point of State
Administration, whereas s. 162 recognises the· overriding
power of a court in the interest of higher public interest to C
overrule the objection of privilege."
Finally, while laying dQ.wn the working rules of guidance
regarding matters of privilege. the learned Judge laid down the
following guidelines :
"Subject to the overriding power of the court to dis- D
allow the claim of privilege in exceptional cases, the follow-
ing provide working rules of guidance for the courts in the
matter of deciding the question of privilege in regard to
unpublished documents pertaining to matters of State : (a)
"records relating to affairs of ·state" mean documents of
State whose production would endanger the -public interest; E
(b) documents pertaining to public security, defence and
foreign relations are documents relating to affairs of State;
(c) unpublished documents relating to trading, commercial
or contractual activities of the State are not, ordinarily, to
be considered as documents relating to affairs of State; but
in special circumstances they may partake of that character.; F
(d) in cases of documents mentioned in (c) supra, it is a
question of fact in each case whether they relate , to affairs
of State or not in the sense that if they are disclosed public
interest would suffer."
-
In Amar Chand Butail v. Union of India( 1) another Constitution
Bench adopted the same view which was taken in Sodhi· Sukhdev G
Singh' s (Supra). Gajendragadkar CJ speaking for the Court observed
thus. (1) -

'.'In view of the fact that s. 123 confers wide powers on
the head of the departmen_t, ·this Court took the precaution H
(1) A.I.R. 1964 s.c. 1658 .
•
826 SUPREME cOURT REPORTS [1982) 2 s.c.~.

A of sounding a warning that the heads of departments
should act with scrupulous care in exercising their right
under s. 123 and should never claim privilege only or even
mainly on the ground that the disclosure of the document
in question may defeat the defence placed by the State.
Considerations which are relevant in claiming privilege on
B the ground that the affairs of the State may be prejudiced .
by disclosure must always be distinguished from considera-
tions of expediency which may persuade the head of the
department to raise a plea of privilege on the ground that
if the document is produced, the document will defeat the
defence made by the State."
c In this case, a clear distinction was sought to be drawn between
the doctrine of confidentiality and that of expediency. In· other
words, this Court dec.ided that where a particular documents did not
relate to affairs of the State as such, but if the document was pro-
duced it may defeat the defence taken by the State, that alone would
not be sufficient to uphold the plea of privilege. In the instant case,
D however, this doctrine does not apply at all. .
In State of U.P. v. Raj Narain and Ors., (1 ) another Constitu-
tion Bench of this Court observed thus :
"A witness, though competent generally to jive
E evidence, may in certain cases claim privilege as a ground
for refusing to disclose matter which is relevant to the
issue. Secrets of State, State papers, confidential official
/
documents and communication. between the government and
its officers or between such officers are privileged from
production on the ground of public policy or as being detri-
F mental to the public interest or service."
(Emphasis supplied)
"The several decisions to which refer,ence has already
. been made establish that the foundation of the law behind
Sections 123 and 162 of the Evidence Act is the same as in
English law. It is that injury to public interest is the
G
reason for the exclusion from disclosure of documents
whose contents if disclosed would injure public :and national
interest. Public interest which demands that evidence be
withheld is to be weighed against the public interest in the
H' administration of justice that courts should have. the ~ullest

(1) [1975] 4 sec 42s. •
ii.I>. GUPTA v. UNION (Fazal Ali, J.) 827
possible access to all relevant materials. When public A
interest outweigh the latter, the evidence cannot be admit-
ted. The· Court will proprio motu exclude evidence the
production of which is contrary to public interest. It is in
. public interest that confidentiality shall be safeguarded. The
reason is that such documents become subject to privilege by
reason of their contents. Confidentiality is not .a head of B
privilege. It is a consideration to bear in mind. It is ·not that
the contents contained materialSwhich it would be damaging
to the national interest to divulge but ra_ther ,that the
documents would be of class which demand protection."
(Emphasis mine)

The aroresaid observations of Ray CJ appear to be on all fours
c
with the facts and circumstances· of the present case because the
documents consisting of the secret correspondence, amply answer
the description of the docun:ients which were being dealt with in that
case.
D
..
'-
Mathew J. in his concurring judgment expressed a similar
view and after dealing with a large number of English cases observed
as follows :-
'
"In other words, if injury to public interest is the foun-
dation of this so called privilege, when once the Court has
enquired into the question and found that the disclosure of E
document will injure public interest aµd therefore it is a
documont relating to affairs of State, it would· be a futile
·exercise for the minister or the head or the department to
consider and decide whether its disclosure should be permit-
ted as he would be making an enquiry into the identical
question. · It is difficult to imagin• that a head of the F
department would take the responsibility to come to a
conclusion different from that arrived at by a· court as
regards tlie effect of the disclosure of the document on
public interest unless he has or can have a different concept
·of public intere~t."
The learned Judge, however, was prepared to make exceptions G
in cases of documents which related to common routine business
which had no ·relation to interests o( the public. The Judge pointed
out that a mere .veil of secrecy put on such socuments would not
prevent the court from directing disclosure and observed thus : ·
H
"To justify a privilege, secrecy must be indispensable to
iaduoo freedom of official communication or efficiency in
828 SUPREME COURt REPORTS (1982] 2 s.c.B..
A the transaction of official business and. it must be further a
secrecy which has remained or would have remained
inviolable but for the compulsory disclosure."

The documents in question fall squarely within the test . laid
down by Mathew J.
B
The Privy Council in Henry Greer Robinson v. State of South
Australia(1 ) held that the foundation upon which the protection
against disclosure of official record is based is that the information
cannot be disclosed without injury to the public interest, and Lord
Blanesburgh observed as follows : .,....,.
c "As the protection is claimed on the broad principle of
State policy and public convenience, the papers protected,
as might have beeh expected, have usually been public
official documents of_ a political or administrative character.
Yet the rule is not limited to these documents. Its foun-
D dation is that ·the information cannot be disclosed without
injury to the public interests and not that the documents
are eonfidential or official,' which alone is no reason for
their non-production."

Thus, in theinstant case the two-fold tests laid down by Lord ·
Blanesburgh are fully satisfied because (I) the .papers are in the
E
nature of public official documents of administrative character, and
(2) the disclosure of these documents will lead to serious injury to
the public.

In Duncan's case (supra) the following observations were
made:
F
" ...... but the rule that the interest of the State must
not be put in jeopardy by producing documents which
would injure it is a principle to be observed in administering.
justice, quite unconnected with the interest or claims of the
particular parties ·in· litigation, and, indeed, is a rule on
G which the Judge should, if necessary, insist, even though no
objection is taken at all."

"The minister in deciding whether it is .his duty to
H object, should bear these considerations in mind, for he

(1) [1931] A. C. 704.
S,P. GUPTA v. UNION (Fazal Ali, J.) 829
ought not, to take the responsibility of withholding produc· A
tion except in cases where the public interest would other·
wise be damnified for example; where disclosure would be
injurious to national defence, or to good diplomatic rela·
tions or where the practice of keeping a class of documents
secret is necessary for the proper functioning of the public
service. When these conditions are satisfied and the 8
minister feels it is his duty to deny access to material
which would otherwise be available, there is no question
but that tlk public interest must be preferred to any private
consideration."
(Emphasis supplied)
c
This case goes even to the extent that if the Minister does not

- claim the plea .of privilege, it is for the Court itself not to allow
disclosure where the disclosure would be injurious to national
defence, good diplomatic relations or proper functioning of the
public service. fhis decision, therefore, is fully in accordance with
the principles .rnunciated by this Court as referred to above.' D
It was contended that the validity of Duncan's case has been
considerably weakened by a later English decision in Conway v.
·Rimmer and Anr.(1 ) and therefore no reliance should.be placed on
Duncan's case. We are, however, unable to agree with this argu-
ment because Conway's case has not only not overruled Duncan's E
case but has held that it was rightly decided. In this connection
>-.• Lord Reid made the following observations :

"I have no doubt that the case of Duncan v. Carnrnell,
Laird and Co. Ltd. was rightly decided."
F
Lord Reid reiterated the same principle which has been
enunciated by the English courts and followed by this Court and
observed thus :

"It is universally recognised that there are two kinds
of public interest which may clash. There is the public G
interest that harm shall not be done t~ the nation or the
public service by disclosure of certain ·documents, and there
is the public interest that the administration of justice shall
not be frustrated by the withholding o( documents which
must be produced if justice is to be done.'' H
(!) [1968) AC 910.
. /
SUPREME COURT REPORTS [1982] 2 s.c.R.

A The twin tests which flow from these observations fully apply
to the facts and circumstances of this case. We are, therefore, u:;.-
able to regard Conway's case has having overruled the ratio in
Duncan's case. On the other hand, even on the authority of Conway's
case, the disclosure of the documents in question ought not to be
allowed. Moreover, these observations clearly shows that the princi-
B ples enunciated by Lord Simon in Duncan's case were approved.
It is true that the ratio in Duncan's case after having been approved
was explained away and limited to cases where disoiosure of docu-
ments was not in public interest and disclosure could be
permitted only by striking a just balance between the public and the
private interest.
c Thus, Conway's case does not fully support the contention· of
Mr. Sorabjee. So far as this Court is concerned, it has not gone to ...
the extreme limit to which Conway's case goes and, therefore, I
would like to prefer the decisions of this Court to that of Conway's
case wh.ere the law appears to have been somewhat overstated by
D Lord Reid.

Reliance was also placed by Mr. Sorabjee in the case of
Rogers v. Home Secretary(1) and particularly on the observations of
Lord Pearson which may be extracted thus :

"The court bas to balance the detriment to the public
E interest on the administrative or executive side, which would
result from the disclosure of the document or information, ·'
11gainst the detriment to the public interest on the judicial
side, which would result from non-disclosure of a docu-
ment or information which is relevant to an issue in legal
proceedings. Therefore, the court, though naturally giving
F great weight to the opinion of the appropriate minister
conveyed through the Attorney General or his representa-
tive, must have the final responsibility of deciding whether
or not the document or information is t.o be disclosed."

Another passage which explains the ratio in clear terms
G may be extracted thus :
"It is true that the public interest which demands -·that
the evidence be withheld has to be weighed aga;nst the
public interest in the administration of justice that courts
H should have the fullest possible access to all relevant

(1) [19731 AC 388,

'
S.P. GUPTA v. UNION (Fazal Ali, J.) 831

material (Rex v. Hardy · (1794) 24 State Tr. 199, 808; A
Mai ks v. Beyfus (1890) 25 QBD 494; Conway v. Rimmer
(1968) A.C. 910); but once the former public interest is held
to outweigh the latt~r. the evidence cannot in any circum-
stances be admitted."

Ultimately while taking a broad and practical view on the B
question, Lord Salmon observed. thus :
'
"In my view, any document or information that comes
to the board from whatever source and by whatever means
should be immune from discovery. It is only thus that the
board ~ill obtain all the material it requires in order to·
carry out its task efficiently. Unless the immunity· exists
c_ -
many persons, reputable or disreputable, would be dis-
couraged from communicating all they know to the board.
They might well be in fear not only of libel actions or
prosecutions for libel but also for their safety and may be
their lives." D
Taking the facts of this case at their face value, I do not
see how it can help the argument of Mr. Sorabjee on the question
of disclosure of the d.ocuments. In fact, this· case also does not
depart from the previous views taken by the House of Lords and
the Privy Council regarding the importance of public interest or E
injury to public interest in respect of the documents sought to be
disclosed. This· case, however, takes a step forward by insisting
that the principles enunciated in Conway's case would show that a
just balance should be struck between, the ground on which the
Union of India claims privilege and the claim of the petitioners for
disclosure. Applying the ratio of this case to the facts of the present F
case, it would be seen that if the documents are not disclosed, the
petitioners would not suffer serious prejudice because the undisputed
facts show that the Chief Justice o( Delhi High Court had for
reasons given by him opined that the term of Justice Kumar ought
not be extended. The CJI, however, expressed a contrary view.
It was, therefore, fol' the President to choose any of the two views. G
Thus, disclosure of details would have undoubtedly caused serious
damage to public interest by exposing not only the petitioner-Kumar '
but also the CJ, Delhi High Court and the CJI to public gaze and
criticism which would be highly derogatory to the high position
that these high constitutional functionarfes hold and would in future R
deter them from expressing any opinion on the merit of future
appointments which might result in an insoluble stalemate. Thus1
832 SUPREME COURT REPORTS [1982) 2 S.C.R.

A balancing the two fac;tors, there can be no doubt that the weight is
on the side of the Union of India.

Strong reliance was placed by Mt. Sorabjee in Sankey v.
Whit/am & Ors.(1) where Stephen J. relying on Rogers' case (Supra)
and other cases d"'.elt on the doctrine of balancing process and
B observed as follows :

"If in the balancing process the circumstances of a
particular ·case can affect the relative weight to be given to
each of the respective public interests when piaced in the
scales, the outcome in the present case seems to me to be
c clear."

"The affidavits sworn by members of the present
ministry and by senior public servants make it clear that
D all the claims to Crown privilege are class claims, not con-
tents claim: it is not suggested that to disclose the.contents
of any of the documents, the Loan Council documents apart,
will of itself result in detriment to the public interest fl.owing
directly from the nature of what is disclosed." ·

(Emphasis mine)
E
A perusal of the facts of this. case would show that in the
said case the documents were really not of a secret nature so as to
fall within the contours of the claim of privilege There was also a
finding given by the court that the documents would not result in
any detriment to public interest fl.owing directly from the nature of
F what is disclosed. Contrary appears to be the case so far as the
documents·, which are the subject matter of disclosure, in the instant
petitions are concerned. These observations do not help the peti-
tioners because they are based on a clear finding of fact that there
was nothing remarkable about the documents in ord~r to tilt the
scale in favour of non-disclosure. It was also held that the affidavits
G
did not clarify whether the claim of privilege was class-claim and
not contents-claim. As already indicated, the documents in this ·
case pertain to high official secrets revealed in the documents of high
constitutional functionaries regarding matters which if disclo~ed
.H would doubtless cause serious injury to the public and has in fact

(1) 21 Australian L.R. 505.
S.P. GUPTA v. UNION (Pazal Ali, J.) 833

caused the most colossal damage not only to thi:i Government but A
also to the judicial institution itself.

In Sankey' s case the following observations were made :

"An explanatory memorandum and schedule relating
to a meeting of the Executive Council held on 7 January
1975. It should be explained that when a matter is brought 8
before a meeting of the Executive Council a minute paper
is prepared; it sets out the advice tendered to His Excellency
th~ Goyernor-General in Council and is signed by the

·- minister concerned. Each minute is accompanied by an
explanatory memorandum which usually s~ts out the reasons
for the advice. All minutes to be submitted to the Execu- c
tive Council are listed on a schedule, which is signed by
tl:io.se present at the meeting. If the Governor-General is
not present at the meeting the minute and schedule are
later sul:Jmitted to him for signature. The Commonwealth
did n'ot claim privilege for the minute paper to which the
explanatory memorandum and schedule now in question D
related."

Gibbs, ACJ upholding' the. claim of privilege observed as
follows:

"Privilege was claimed for the documents in category I by E
the affidavit of Mr. Carmody, which stated that all members
of the Executive Council are required to make on oath or
affirmation of secrecy. The affidavit contained the follow-
ing : "The documents referred to .. relate to advice given
and recommendations made to the Federal Executive
Council and the deliberations and decisions of that Council F
as to the inner Workings of the Executive Government of
the Commonwealth of Australia. In my opinion such
documents belong to a class of documents which public
interest requires should not be disclosed. Further, disclo-
- sure of such documents would inhibit the proper function- G
ing of the Executive Government ano non-disclosure of
such documents is necessary for the proper functioning of
the public service".

In Murconi's Wireless Telegraph Co, Ltd. v. The Common-
wealth(1), Isaacs J. observed as follows : H
(I) 16 Commonwealth L.R. 178.
834 SUPREME COURT REPORTS [1982] 2 s.c.R.
A "Now, when that "State paper'', or, as here, a "State
wireless instrument", is sought to be produced, and its
official character is unquestioned, the plaintiffs' contention
is, as I have already said, the court must still in some way
and to some extent satisfy, itself by some further inquiry,
that the object is within a privileged class, I suppose by
B reason of its being of a nature that may require conceal-
ment, because it can accept the minister's assurance as to
public prejudice."

In this case. also, the Court merely h'eld that where an instru- ......
ment is judged by th~ court to be of an official character the Minis-
c ter's plea ·of public prejudice must be upheld. Even so, the facts
of this case are clearly distinguishable from the facts of the present
case.

In Alfred Crompton Amusement Machines Ltd. v. Customs &
Excise Commissioners,( 1) Lord Cross of Chelsea while dwelling on
D the nature of confidentiality which is doubtless one of the aspects
of privilege, observed as follows :

"Confidentiality" is not a separate head of privilege,
but it may be a very material consideration to bear in mind
when privilege is claimed on the ground of public interest.
E What the court has to do is to weigh on the one hand the
considerations which suggest that it is in the public interest
that the document in question should be disclosed and on
the other .hand those which suggest that it is in the public
interest that they should not be disclosed and to balance
once against the other."
F
Here also it was held that while dealing with the question of
confidentiality the most material consideration would be whether
privilege was claimed on the ground of public interest and the duty
. of the court is to balance the considerations of public interest against
G the injury which may be caused by disclosure and if it finds that
the injury to public interest would be minimal, disclosure can be
allowed. This case also does not in any way seem to be of any
assistance to the petitioners.

H Mr. Sorabjee strongly relied on the famous American case of

(1) [1974] AC 40~.
S.P. GUPTA v. UNION (Fazal Ali, J.) 835

United States Richard M. Nixon(1) and particularly on the following A
observations made by the court :

"Neither the doctrine or separation uf powers, nor the
need for confidentiality of high level communications,
without more, can sustain an absolute unqualified presi-
dential privilege of immunity from judicial process under B
all circumstances."

These observations must be read in the light of the peculiar
provisions of the American Constitution contained in Articles II and

- III. The doctrine of absolute candour so as to prevail over the
unqualified privilege of immunity from judicial process is absolutely
foreign to the nature and character of the provisions enshrined in
Art. 74(2) of our Constitution and ss. 123 and 124 of the Evidence
c
.. Act. Therefore, these observations cannot be called into aid by
our courts in dealing with the question of privilege. I have already
pointed out that this Court has clearly held that we ought not to be
guided by American decisions because in framing our Constitution, D
we have chosen to select the English pattern even though the
American Constitution was available and was in fact considered by
the Founding Fathers of our Constitution.

Thus, the United States decision referred to above must be
understood in the light of its own facts and the special provisions E
of the American Constitutional law under which there is a complete
separation of powers unlike our Constitution where to some extent
·'" . there is separation of power but by and large all the powers of the
appointment of the higher judiciary and their transfer vest in the
executive, viz., the President of India. In these circumstances, there-
fore, the doctrine of 'candour' or 'confidentiality' propounded by F
the American Supreme Court cannot be blindly applied to the pro-
visions of the Indian Constitution which has features of its own
substantially different from those of the American Constitution
as indicated while dealing with interpretation of Art. 222. The
extreme limit to which the U.S. Supreme Court appears to i have
gone is directly opposed to the- scope of ss. 123 and 124 of the G
Evidence Act as interpreted by this Court in Sodhi Sukhdev Singh' s

l
case (Supra).

This Court in Shyamla/ Mohanla/'s case (supra) has clearly
>. held that the plea of privilege cannot be determined on the principles H
(1) 41 L Ed 2nd 1309.
836 SUPREME COURT REPORTS ( 1982] 2 S.C.R,

A enunciated by the American Judges which could not apply to our
country. This is particularly so, when the habits and tempers of
our people, their outlook and vision, and their concepts and way of
life are quite different froni the ways of life of the American people.

In Shynmlal Mohan/al v. State of Gujarat (supra) this Court
B observed thus :

"In the United States of America where the immunity
against self-inc;·imination is constitutional, the Fifth
Amendment provides :

c "No person shall be compelled in any criminal case,
to be a witness against himself."

By judicial interpretation the rule has received a much
wider application. The privilege is held to apply to wit-
nesses as well as parties in proceedings civil and criminal :
0 it covers documentary evidence and oral evidence, and
extends to all disclosures including answers which by them-
selves support a criminal conviction, or furnish a link in
the chain of evidence, and to production of chattel sought
by legal process.

The rule of protection against self-incrimination pre-
vailing in the United Kingdom, or as interpreted by Courts in
the United States of America has never been accepted in India.
Scattered through the main body of the statute law of
India are provisions which establish beyond doubt that
the rule has received no countenance in India. Section
132 of the Evidence Act enacts in no uncertain terms
F that a witness shall not be excused from answering any ..
questions as to any matter relevant to the matter in issue
in any suit or in any civil or criminal proceeding upon the
ground that the answer to such question will criminate,_
0

such witness, or that it will expose, or tend directly or
indirectly to expose, such witness to a penalty or forfeiture
G
of any kind. This provision 5runs directly contrary to the
protection against self-incrimination as understood in the
common law in the United Kingdom."
(Emphasis mine)
H .,
On a parity of rea~oning it can be safely concluded that the
statutory provisions of ss. 123 and 124 of the Evidence Act as also
S.P. GUPTA ~·. UNION (Fazal Ali, J.) 837

those of Art. 74(2) of the Constitution have fully safeguarded high A
Government and official secrets and disclosure is prohibited in public
interest unless the Court is fully satisfied that disclosure will not
harm the public interest. Thus, this Court has clearly pointed out
that on this aspect of the matter, the rule of protection against self-
incrimination as prevalent in the United lUngdom .or U.S.A. has
never been accepted in India. This is yet an additional reason why B
I am not in a position to rely on the American doctrine of candour
or the recent decisions of the English courts referred to above.

Cross on Evidence (6th Edition) clearly states that documents
may be withheld in public interest on account of their contents.
In this connection the author observes as follows : c
"The judgment shows that the production of a docu-
ment may be withheld in the public interest either on
account of its contents, or else because it belongs to a class
which, on ground of public policy, must as a class be with-
held from production (e.g. cabinet minutes)." (p. 307) D
Wigmore on Evidence (Third Edition-vol. VIII) at page 801
summarises the conclusions regarding State secrets and official
documents derived from American decisions on the question of
privilege thus :
E
"The privilege, when recognised, should therefore be
subjected to the following limitation :

(I) Any executive or administrative regulation purporting
in general terms to authorize refusal to disclose official
records in a particular department when duly requested F
as evidence in a court of justice should be deemed
void.

(2) Any statute declaring in general terms that official
records are confidential should be liberally construed
to have an implied exception for disclosure when needed G
in court of justice.

(3) The procedure in· such cases should be : A letter of
.. ' request (like a letter rogatory) from the head of the
Court to the head of the Department (accompanying H
the subpoena to the actual custodian), stating the
circumstances of the litigation creating the need for
838 SUPREME COURT REPORTS [1982) 2 S.C.R.

A the document followed (in case of refusal) by a reply
from the 1Departmental head stating the circumstances
deemed to justify the refusal; and then a ruling by the
Court, this ruling to be appealable and determinative
of the privilege."

B The view of the author, therefore, fully reflects the summary of
the decisions given by the American Courts on the question of privi-
lege. It may be noticed that clause 2 particularly recognises that
where official records are declared to be confidential by a statute, the

c
statute should be liberally construed to have an implied exception for
disclosure when needed in a court of justice. The principle contained
-
in clause (2) of the aforesaid extracts is clearly enshrined in ss. 123
and 124 of the Evidence Act without the exceptions which have been
carved out by American decisions. On the other hand, the position
under the Evidence Act is that official or confidential records or
documents cannot be disclosed unless the court comes to the conclu-
sion that the disclosure will not cause any injury to public interest.
D The American doctrine of candour, as already stated, cannot be
applied to the conditions in India in view of our own statute laws
containing expre.ss provisions contrary to the principles enunciated
by the American courts.

David Foulkes in his book 'Introduction to Adminimative law'
E
has observed thus :

"It laid it down that Crown privilege Ca'> be claimed
for a document on two alternative grounds : (a) that the
disclosure of the contents of a particular document would
f injure the public interest, for example, by endangering
national security or prejudicing good diplomatic relations;
(b) that the document falls within a class which must be
withheld from production to ensure the proper functioning
of the public service." (p. 228)

G It appears that whereas the English, Australian and our own
courts have consistently and without any exception categorically held
that military or defence secrets are absolutely privileged and the

H
contents of the document containing these secrets can never be
divulged under any circumstances, the American courts seem to have
taken a contrary view and while leaning on the side of non-disclosure
..
even in the case of military secrets they have not excluded the possi-
bility of allowin.1c: disclosure under certain circumstances. This is
S.P. GUPTA v. UNION (Faza/ Ali, J.) 839
clearly spelt out by the decision of U.S. Supreme Court in United A
States of America v. Patricia J. Reynolds. (1) The American courts
do not seem to follow the threefold tests laid down by our courts
as also the English courts in judging the plea of privilege, viz.,

(I) documents containing military or defence secrets,

(2) the direct conflict between public interest and individual
interest, and

(3) the doctrine of expediency regarding affairs of the State
and injury to public interest or national interest.

In fact, the correct legal position seems to be that whereas c
mere expediency may not be a ground to claim privilege so as to
avoid production of a document which, if produced, may defeat the
defence, where the documents consist of highly confidential matters
in respect of constitutional functionaries like Chief Justices or High
Court Judges, the Law Minister, the President of India, C.B.I, I.B.
and such other Departments 'are concerned, the question of public D
injury, which may be caused, becomes a decisive factor in upholding
the plea of privilege. The court is, however, not powerless to hold
its own enquiry in order to test the bona fide of the plea at privilege.
One form of such an enquiry may be, as pointed out in the cases
referred to above, the inspection of the documents themselves by the
court before disclosure. If after inspection the court finds that the E
plea of privilege is well-grounded and its disclosure will lead to great
public injury, it will be justified in upholding the plea of privilege.

It is true that recent English decisions have made a slight
departure from the consistent and some what conservative view
take11 by them in the earlier cases, but despite this change, the central F ,
theme and the contours and parameters within which the plea of
privilege can be allowed have not been totally discarded.

As far back as 1916 the Court of Appeal in England while
dealing with the question of privilege clearly held that the protection
of documents from discovery was not only based on the broad G
principles of State policy of public convenience but extended to
public confidential documents of a political or administrative
character. In this connection in Asiatic Petroleum Co. Ltd. v. Anzlo-
Persian Oil Co. Ltd. (') Lord Swinfen Eady observed as follows :
H
(I] 345 us!.
(2) [1916] l KB 822, 829.
840 SUPREME COURT REPORTS [ 1982] 2 S.C.R.

A "Although the instances in which documents have
been held to be protected from discovery on the broad
principle of State policy and public convenience have usually
been cases of public official documents of political or
administrative character, yet the rule is not limited to these
documents. The foundation of the rule is that the infor-
mation cannot be disclosed without injury to the public
interest, and not that the documents are confidential or
official, which alone is no reason for their non-production."

In taking this view the court had relied on an earlier decision
in Hennessy v. Wright.( 1)
c
In the Corporation of the City of Glasgow v. The Central Land
Board(2 ) Lord Radcliffe observed thus :

"I do not understand that the existence of the power
D involves that in Scotland, any more than in England, it is
open to the Court dispute with the Minister whether his
view that production would be contrary to the public
interest is well founded, or to arrive at a view, contradic-
tory of his, that production would not in fact be at all
injurious to that interest."
E

"The power reserved to the Court is therefore a power
to order production even though the public interest is to
some extent affected prejudicially."

F This decision clearly spells out the proposition that though
normally the claim of privilege made by the Minister should be
accepted by the Court but at the same time some aspects of public
interest may be considered where withholding disclosure or a docu-
ment may defeat the very claim of the plain tiff. Lord Radcliffe has,
however, made it very clear that documents containing matters of
G high politics, diplomatic relations or such secrets would undoubtedly
be privileged. Thus, so far as this case is concerned it fully supports
the position taken by the Union or India in claiming the plea of
privilege in respect of the documents concerned.

H
(1) 21 QBD 509.
(2) 1956 Sessions Cases 1/18.
S.P. GUPTA v. UNION (Fazal Ali, J.) 841

In D. v. National Society for the Prevention of Cru?fty to A

-· Children(1) it was held that the administration of justice was a funda-
mental public interest though not an exclush1e public interest.

Athough the facts of this case are quite different from the facts
of the present case, yet the case cited above undoubtedly recognised
administration of justice as a fundamental public interest. Once this B
is so, then by the force of s. 123 of the Act, disclosure cannot
be permitted and the Government would be entitled to take the plea
of privilege.

In none of these cases, the documents in respect of which
privilege was claimed related to top secrets of high officers involving C
Government decisions on important policy matters relating to higher
judiciary as in the present case. In these circumstances, these cases
are not of much assistance to the petitioners.

In Science Research Council v. Nasse( 2 ) a complaint was filed
with the Industrial Tribunal alleging discrimiaation on grounds of D
sex and marital status. At the hearing a prayer was made for the
petitioners for inspection and discovery of certain documents which
were in the nature of confidential assessments of each employee.
The Tribunal ordered the disclosure and the Appellate Tribunal also
confirmed it. On appeal to the court of Appeal, a fresh affidavit
was filed showing the nature of the confidentiality of the documents. E
The appellate court held that if the documents were disclosed it
. would amount to breach of faith and could lead to industrial trouble
thus causing injury to public interest. The appellate court, however,
set aside the order allowing the plea of privilege and held that the
documents were not entitled to privilege. The decision of the appel-
late court was confirmed by the House of Lords in appeal where it F
was held that ~no principle of public interest immunity protected
such confidential documents and they were not immune from disclo-
sure on the basis of confidentiality alone Great reliance has been
placed by the petitioners on this aspect of the matter decided by the
House of Lords. It is true that the plea of privilege on the ground
• of confidentiality was overruled but the decision given by the House G
of Lords cannot be divorced from the facts before them. What was
sought to be disclosed were merely confidential reports of the
employees concerned. No great constitutional or legal importance
was attached to the documents as such or for that matter the docu-
... {I) [1977] l All,E.R. 589.
e
(2) [1980] AC 1028.
842 SUPREME COURT REPORTS f1982] 2 S.C.R

A ments as we have in the instant case. In this connection, Lord
Edmund-Davies observed as follows :

"Whether a tribunal or court should decide that they
themselves should inspect must always depend on the
particular facts and issues, though it is difficult to see
B how they can ever properly conclude that discovery is
"necessary" without such inspection. But where a court
inspection is decided upon, there can be no hard-and-fast
rule as to when it should take place.
'
c The Court of Appeal rightly held that discovery should
not have been ordered in either of these two cases without
the respective industrial tribunals or the appellate courts
first inspecting the withheld documents. That unfortuntely
not having been done, it follows that both appeals should
be dismissed."
D Lord Fraser spoke in the same strain and held that confidentiality
was not a separate head of privilege but may be a very material
consideration to bear in mind when the question of privilege is
raised.

Thus, what the House of Lords held was that the element of
E confidentiality in the {documents was not so acute or sensitive as to
create any public interest. On the other hand, public interest itself
in the circumstances required disclosure. This case, therefore is of • <!'
no assistance to the petitioners because the facts of the present case
are essentially different from the facts of the case. In the instant
case, after inspection of the documents it cannot be said that only
F private interests were involved and that there was no injury to public
interest. The disclosure of the confidential notes and correspon-
dence between three very high constitutional functionaries, viz, en,
Law Minister and the CJ, Delhi High Court containing matters on
which no public debate could be allowed were undoubtedly matters
of great public interest. On the other hand, the interest of Justice
G Kumar was a purely individual interest which must yield to public
interest. On the face, therefore, of the ratio of this case, the plea
of privilege would have to be upheld straightaway.

Jn Burmah Oil Co. Ltd. v. Bank of England(1) the following
H • <I
observations were made by Lord Wilberforce :
(l) [1980] A.C. 1090.
S.P. GUPTA v. UNION (Pazal Ali, J.) 843

"It is, in my opinion, necessary for the proper function- A
ing of the public service that the documents in Category A
and Category B should be withheld from production, They-
are all documents falling within the class of documents
relating to the formulation of Government policy. Such
policy was decided at a very high level, involving as it did
matters of major economic importance to the United King- 8
dom. The documents in question cannot properly be describ-
ed as routine documents. Those in Category A are all docu-
ments passing at a very high level, including communica-
tions intended for the guidance and recording the views of
the Prime Minister or recording discussions at a very high
level.
c

The basis for an immunity claim, then, having been
laid, it is next necessary to consider whether there is any
other element of public interest telling in favour of produc·
tion. The interest of the proper and fair administration of D
•. justice falls under this description. It is hardly necessary
to state that the mere fact that the documents are or may
be 'relevant' to the issues, within the extended meaning of
relevance in relation to discovery, is not material. The
question of privilege or immunity only arises in relation to
'relevant' documents and itself depends on other considera-
tions viz, whether production of these documents (admittedly
relevant) is necessary for the due administration of justice."

It may well be arguable whether, when one is faced
with a claim for immunity from production on 'public F
interest' grounds, and when the relevant public interest is
shown to be of a high, or the highest, level of importance,
that fact is of itself conclusive, and nothing which relates
to the interest in the administration of justice can prevail
against it. G

A claim for public interest immunity having been
made, on manifestly solid grounds, it is necessary for those
who seek to overcome it to demonstrate the existence of a
counteracting interest calling for disclosure of particular H
documents. When this is demonstrated, but only then,
may the court proceed to a balancing process."
,.•.

844 ' SUPREME COURT REPORTS (1982) 2 S.C.R.

A It was thus held. that the documents should be produced for in·
spection by the House of Lords. As· the said case was not one where ' -
without inspection of ·documents it was possible to decide whether
the balance of interest lay for or against disclosure, after inspecting
the documents tlie majority of the Lords arrived at a finding of fact
that none of the documents contained such confidential matters as
B could form the basis of' a plea pf privilege. Lord Wilberforce,
however, dissented and held that the Minister's certificate would
amount to public intere.st immunity, and the documents could not
be inspected.

c This case also has absolutely no application to the facts of the
present case because this Court after hearing the arguments of the
parties on the issue of privilege by an interim order held that the
court was entitled 'to inspect the documents and after inspecting the
documents I am clearly of the view that having regard to the matter,
the heavy stakes involved, the disclosure would amount to denigra-
D tion of not only the judiciary but also the other constitutional
functionaries who have figured in the case, resulting in the gravest
possible injury to public interest and to the running of public
services.

In the aforesaid case, Lord Edmund Davies classed the docu-
E ments into three categories, which may be extracted thus :

"Category A
These consist of communications between, to and from
ministers (including ministers' personal secretaries acting on
behalf of ministers) and minutes and briefs for ministers
F and memoranda of meetings attended by ministers. All
such documents relate to the formulation of the policy of
the government ..... " The minister thereafter sets out
various aspects of government policy in relation to the
financial difficulties of Burmah.

G Category B
These consist of communications between, to and from
senior officials of the Department of Energy, of the
Treasury, and of the bank including memoranda of meetings
H . of and discussions between such officials and drafts pre-
pared by such officials (including drafts of minutes and
. briefs comprised in category A), all such communications
S.P. GUPTA v. UNION (Fazal .(l.li;J.),
' . . .. I -
845

and· drafts relating to the formulation of one or more A
aspects, of the policy described iri category f".·"

Category' C
These consist of memoranda of telephone,Co!lversations
and meetings between senior representatfves of major com-
panies and other businessmen on the one .. hand and a B
minister or senior officials of government departments
and of the bank on the other and memor"nda of
meetings of such o'fflcials ai;id briefs for ministers and drafts
of such briefs, all recording or otherwise _referring to com-
mercial or financial inform-ation communicat,ed in confidence
by Such' company representatives and businessmen."
c
,,
After mentioning the categories, Lord Davies observed as
follows:-
"There can be no doubt that the 'court has power to
inspect the documents privately. This much clearly laid D
down in Conway v. Rimmer (1) I qo not consider
th.at existence of such power, in cases re~ponsibly
regarded by the court as doubtful, can be treated as itself
detrimental to the public interest. Indeed, I, am of opinion
that it is ·cal'culated to promote the public interest, by
adding to public confidence in the administration of E
justice." · ·

It is true that ihe majority opinion was that the plea of privilege
should be 'overruled. but although the categories, mentioned above,
consisted of confidential documents they all related to purely com-
mercial transactions and did not contain any' constitutional colour F
or any ~lemen,t of affairs of the State. The same cann-ot be said so
far as the documents in the instant case are concerned. These
documents are not only of great public importance but are directly
concerned with the affairs of the State· in that the Council of
Ministers while giving advice to the President for not'extending the
term of Justice Kumar had expressly relied on these documents G
though it has not been shown to our satisfaction that these docu-
ments form part of the Memo. of Advice tendered to the President.
In such a case, the documents would have been beyond any enquiry
under Art. 74 (2), apart from the question of the application of
ss. 123 and 124 of the Evidence Act. H ..

(I) [1968J A.C. 910.
846 SUPREME COURT REPORTS (1982) 2 S.C.R.

A Another case relied upon by the petitioners was Neilson v.
Laugharne(1) Lord Denning approached the question with his usual
ingenuity and observed as follows : . -
"This modern development shows that, on a question
of discovery, the court can consider the competing public
B interests involved. The case is decided by the court holding
the balance between the two sides. One of them is asserting
that, in the interest of_ justice, the documents should be
disclosed. The other is asserting that, in the public interest,
they should not be disclosed. Confidentiality is often to be
considered. So is the need for candour and frankness.
c
Once it is decided that the public interest is in favour
of non-disclosure, the decision is regarded as a precedent
for later situations of the same kind."
D
Lord Denning ultimately held that in his opm10n the documents
were privileged. It may be noted that the documents in respect of
which privilege was sought were merely .statements before the police.
Thus, even though the documents were doubtless confidential, a
possible view could be taken that the plea of privilege should not be
E allowed. In spite of these facts, the majority of the Law Lords
agreed with Lord Denning and held that there was a real danger to
public interest if disclosure was made. In this connection Lord
Oliver observed thus :

"Taking all these considerations into account, I think
that there is a very real danger that the prospect of disclo-
F
sure on discovery of material gathered in the course of
such an inquiry will inhibit the proper conduct of the
inquiry and thus frustrate the purpose of the legislature in
making statutory provision for it. In my ijudgment, there-
fore, the public interest requires that these documents
G should be protected as a class, and I accordingly concur in
the conclusion of Lord Denning M.R. I agree that the
appeal should be dismissed."

Thus, although this case makes a slight departure from the
H view taken by the earlier cases it has not favoured the : extreme . .
(I) [1981] l All ER 829.
s.P. GUPTA v. UNION (Faza/ Ali, J.) 847

position which seems to have be!ln taken by the petitioners op the A
plea of privilege and which has been clearly negatived by the deci-
sions of our own court.

Reliance was also placed by Mr. Sorabjee on a book 'Public
Law ( 1980)' by I.G. Eagles where at page 275 the author makes the
following observations regarding Cabinet papers : B

"If the reason for excluding cabinet or related docu-
ments is to safeguard the proper functioning of the higher
organs of the state, then that reason is wholly inappro-
priate where what is charged is the grossly improper func-
tioning of these very org ms. The interest of the wider c
community in getting to the bottom of such charges is so
great that it should not be impeded by a mere rule of
evidence. Nor can the decision to admit or exclude be
safely left to those who are themselves charged with mis-
conduct; (nor for that matter can it be left to their political
D
associates or even their opponents)."

With due respect to the learned author, the principles have
been rather broadly stated and do not fit in either with the demo-
cratic set-up of our country or with the spirit of our Constitution.
For instance, Cabinet decisions, however wrong or proper they may
be, are, undoubtedly secret documents and if any such document
E
forms part of the advice tendered to the President then there is a
clear constitutional mandate by virtue of Art. 74(2) preventing the
court from embarking on any inquiry into these documents. Thus,
the question of disclosure cannot arise in such cases and the obser-
vations of the author become wholly inapplicable to the situations
F
• contemplated by our Constitution and the statutory laws. In these
circumstances, therefore, I cannot accept the view of the author,
extracted above.

It would thus be seen that even from E1glish decision>, it is
clear that the court itself should prevent disclosure of documents G
whose production will be contrary to public interest even if no claim
is made by a Minister or other high official on his behalf. This was
held, as we have pointed out, in Swkey's case (supra) as also in
Conway's case (supra) where Lord Reid has clearly 1stated that it is
the duty of the court to prevent disclosure of documents even H
without the intervention of a Minister, where serious injuries to the
national interest is apparent. Thus both the leading cases of Eagland
848 SUPREME COURT REPORTS (1982) 2 S.C.R.

.A and Australia have not accepted the liberal doctrine of candour
I
expounded by the American· authors. In the instant case, it is 1
manifest that the Union oflndia bas not taken the plea of privilege
merely to hide the truth or to prevent the court frorr knowing the
truth. In fact, both the Attorney-General and~the Solicitor-General
had frankly conceded and voluntarily produced the documents before
Bl the court for inspection in order to judge whether the disclosure of
documents would injure the public interest. This shows the bona fide
of the stand taken by the Union of India. As, however, my Brother
' the documents.. the' Union
Judges after inspection decided to disclose
of India gracefully accepted the decision. I might mention that this
is not one of those cases where a litigant is trying to conceal a docu-
cI ment which may destroy his case.or scuttle his defence .. This seems
to be the cardinal principle behind the doctrine of Candour adum-
brated by the American decisions.

I have summarised the opinions of the English, American and
Australian courts on the question of privilege. While applying the
law to Indian conditions which are essentially different from those
prevailing in England, America or Australia, two important factors - •
have to be borne in mind-

(I) that so far as our country, is concerned we have chosen
E. to base it on the British pattern with some additions,
alterations or innovations to suit our. own local, social
and economic conditions because our ways of living
and thinking, our attitude towards life and its various
phases and above all, the mode of governance of the
country are very different from and have nothing in
F common with the United States of America. Whereas •
in America there is mass education, illiteracy is the
common feature of the masses of our country. We are
no doubt making fast prog~ess but it will require quite
sometime before ·we become as advanced as the United
States of America.
G
Even though the recently decided English cases
may have taken a much broader and a more liberal
view, the founding fathers of our Constitution had
H. before them the old view and this Court has consis-
tently followed the English decisions so far as the
question of privilege is concerned.
S.P. GUPTA v. UNION (Fazal Ali, J.) 849

· (2) While- neither in England, Australia nor America there A
is any codified law laying down the principles and the
grouuds on which privilege can be claimed, in India
we have ss. 123 and 124 of the Evidence Act which
govern the conditions under which a ·plea of privilege
can be allowed or disallowed.
B
Another law which affects the question of privilege
is s. 162 of the Code of Criminal Procedure which has
also to be read in conjunction with ss. 123 and 124 of
,._. the Evidence Act.

Apart from these two sections there is also a constitutional c
provision which is enshrined in Art. 74(2) under which no enquiry
can be made by any Court in respect of the advice tendered by the
Council of Ministers to the.President. .In the instant case, the order
impugned has been passed by the President on the advice of the
Council of Ministers. Although it has been alleged in the note of
D
arguments that the contents of the documents were part of the
material on the basis of which advice was given to the President,
it has not been shown to· our satisfaction that the correspondence
contained in the documents formed part of the actual Memo. of
advice sent to the President. If such evidence was produced before
us then the matter wou!d have been put beyond· controversy because
E
apart from the question of privilege arising. under SS. 123 and 124
of the EvidenceAct, the enquiry or disclosure would be barred by
·the constitutional mandate contained in Art. 74(2).

In view of these drcumstances, therefore, before importing the
doctrines or the liberal trend of modern cases across the seven seas, F
we cannot overlook the,mandatory provisions of the Evidence Act
and the Gode of Criminal Procedure. Furt)lermore, while in England
and America the.democratic syst.em of Government has been existing
for more than two or thr~e centuries, our democracy is only three
decades old, which is a very small period In the life of a nation and
we h~ve yet to develop: our '1aw by a process of adaptation and G
· accommodation,· rejection ot mbdification or by a trial-and-error
method. This Court while construing ss. 123 and 124 of tl}e Evi-
dence Act was fully alive to the conditions prevailing in our country
and the manner in which the public services were run and the Central
Government or the State Governments took important decisions. H
Any revolutionary decisions so as to expose high confidential matters
to public gaze by following a policy of liberal disclosure of docu ·
850 SUPREME COURT REPORTS ( 1982] 2 S.C.R,
A ments ignoring the provisions of ss. 123 and 124 of the Act would
not only be detrimental to our progress but may cause serious
obstruction in the practical running of day-to-day affairs of the
Government or for that matter the governance of the country itself.

B For these reasons, therefore, while I have referred to the
foreign decisions I would like to confine my decisions mainly to
those English cases which apply to our present day conditions and
to the principles laid down by our own courts in their leading judg-
ments which have been discussed and analysed in this judgment.
While I am prepared to take a liberal view having regard to the
. --~

c fact that we have by our recent decisions widened the horizon of
Art. 21 so far as the inspection of the documents by the court is
concerned, but if after inspection of the documents the Court is
satisfied that the tests laid down by this Court in several cases are
not fulfilled then the plea of privilege must be upheld.

D Thus, after a full and complete analysis of the various factors
indicated above, it is establishec beyond doubt that so far as this
Court is concerned it bas chosen to follow the principle of English
law with suitable adjustments and modifications in determining the
plea of privilege under ss. 123 and 124 of the Act. This is, as it
should be, because as pointed by Kapoor J. in Sodhi Sukhdev Singh's
E
case (supra) that since the Evidence Act was enacted during the
British rule and we have generally adopted the English system in
procedural matters, we should not depar(from the basic and essential
principles of of interpretation as laid down by the English law. I,
however, respectfully agree with Subba Rao, J. that while construing
F ss. 123 and 124 and applying the principles of English law, we must •
do so against the background of the Socialist State and the egali-
tarian society which is the goal of our Constitution instead of con-
fining the contours of privilege in a strait-jacket; in suitable cases
a liberal view can bf' taken by this Court without violating the
express language or the general spirit of the statutory provisions of
G the Evidence Act. I might mention that so far no case has ever
held that ss. l 23 and l 24 are unconstitutional and this could not
be so because these p1ovisions deal with matters relating to great
public interest. Even in _the course of arguments before us it has
not been suggested that these sections are violative of any of the
H Articles of the Constitution. Mr. Garg appearing in Tarkunde's
case had hinted that the aforesaid sections should be- interpreted in
the light of Art. 21 but he has not categorically contended that the
~,P, GUPTA v. UNION (Fazal Ali, J,, 851

aforesaid sections are violative of any of the provisions of the A
Constitution.

Another important circumstance that has .to be taken into
consideration is that even after more than three decades of our
independence, the Parliament despite so many socio-economic
changes all over the world has not thought it advisable or necessary 8
to amend the provisions of the Evidence Act so as to liberalise or
widen the scope or the policy of privilege contained in ss. 123 and
124 of the Act by incorporating the principles laid down in the
)..- . recent English or American cases. This intrinsic circumstance
demonstrably proves that the view taken by the Supreme Court
over the years is correct and does not call for any amendment of c
the Evidence Act by the Parliament. On a parity of reasoning, the
..... irresistible conclusion that follows and the natural presumption that
arises is that our legislature did not intend to make a departure from
the earlier English decisions either by ·incorporating or adapting the
principles of American law on the subject. I might even go to the
)I . extent of saying that it will not be unreasonable to presume that the
Founding Fathers of the Constitution and the Parliament thereafter D
having been fully aware of the view taken by the American courts
fo. recent decisions has affirmatively chosen. to raject the liberal and
somewhat dangerous doctrine of candour. For instance, as dis-
cussed above one of the American case11 has gone to the extent of
holding that even military secrets can be disclosed in suitable cases.
Our courts have clearly .held that so far as Defence secrets or good E
neighbourly relations with Nher countries are concerned, there is
complete bar to the disclosure of these matters or documents relating

. to these matters which are clearly covered by s. I 23 or. s. I 24 of
the Act.
F
There is an·other fact of life which, however unpleasant, cannot
be denied and this is that precious little are our masses or litigants
concerned with which Judge is appointed or not appointed or which
one is continued or not continued. The high sounding concept of
independence of judiciary or ·primacy of one or the other of the G
Constitutional functionaries or the mode of effective consultation
are matters of academic interest in which our masses are least inter-
ested. On the other hand, they are mainly concerned with dangerous .
,l
forces at work and evils reflected in economic pressures, inflationary,
tendencies, gruelling poverty, emancipation of women, maintenance H
of law and order, food and clothing, breacl ~.ns\ butter, and abQve an.
the serious problem of unemployment •.
852 • SUPREME COURT REPORTS (1982] 2 s.c,R,

A It is only a sizeable section of the intellectuals consisting of
the press and the lawyers who haye made a prestigious issue of the
the independence of judiciary. I can fully understand that lawyers
or other persons directly connected with the administration of'justice
may have a grievance however ill-founded that improper selection
of Judges or interference with· the appointment of Judges strictly
B according to constitutional provisions may mar the institution of
judiciary and therefore they may to some extent be justified in vindi-
cating their rights. But at the same time, however biting or bitter,
distasteful and diabolical it may seem to be, the fact remains that
the masses in general are not at· all concerned with these legal niceties
and· so far as administration of justice is concerned they merely
c want that their cases should be decided quickly by Judges who
generate confidence. They are least concerned with individual
Judges or the mode or manner of their appointment. Carried by the
stormy and emotional debate of the lawyers appearing for the peti-
tioners and their egoistic slogan that independence· of judiciary was
in danger, this Court ought not to have broken the ageold solid and
D sacrosanct tradition of upholding the plea of privilege which caused
serious injury to the public interest. But lo and behold ! the result
of the disclosure has revealed widespread dangers and ills, for any-
body in the street .without appreciating the niceties of law looks
upon the judiciary as suspect. Did we disclose the documents to
produce such disastrous results ? It is difficult to construct an
E edifice but very easy to demolish the same. But, alas ! we have
demolished it and caused irreparable damage. for which our future
generation will never forgive us. Whether I was right in upholding
thr plea of privilege, or my Brothers in ordering disclosure of docu-
ments, only time will tell.

F
Coming to the practical side of the dangerous consequences
of disclosure which might highlight my view that after inspecting
the documents, it was not in public interest to order disclosure of
the contents of the documents, the following considerations have

G
swayed with me :
..
(a) appointment of High Court judges are highly confiden-
tial matters containing frank and free legal views ex.
pressed by the CJ of the High Court, CJI and the
Central Government represented by the Law Minister
H and the Council of Ministers. These authorities have
expressed their views in the secret correspondence on
~he distinct 1l~sur11ni;:~ !Ind belief .that for the last two
.S.P. GUPTA v. UNION (Fazal Ali, J.) 853

centuries such documents have always been treated as A
secret, confidential and privileged and until today no
disclosure of such documents has ever been allowed by
any court. Thus, in my . opinion, any disclosure of
the contents of the documents. would be extremely
derogatory to the High constitutional position that
these Constitutional functionaries enjoy and would B
in the long run prove counter-productive and destroy
the sacrosanct consultative, process as envisaged by the
;..- . Constitution.

(b) If disclosure is allowed, it will bring into disrepute the
judicial institution itself and lead to a continual pro-
c
,cess of washing of dirty linen and perpetual mudsling-
. ing by allowing the so called wronged persons to make
allegations and counter-allegations against the Govern-
ment and the CJ concerned as was sought to be done
.. in this very case. It is true that even after the contents
D
of the documents are disclosed, the petitioners cannot
be allowed to travel beyond the material disclosed by
the documents but even that material could be ex-
ploited and affect the secrecy of such high constitutio-
nal officers and raise a controversy which will ultimately
lead to opebing a pandora's box which is neither in
the interest of the judiciary nor even of the lawyers.
E
I fail to see how in the long run the disclosure benefits
the Judge. In the ultimate analysis such a course of
action apart from involving the CJI and CJ, Delhi
High Court and Law Minister into serious controversy
would destroy the reputation of the judge himself F
howsoever loudly he might proclaim his innocence.
Taking the case of the petitioner-Kumar at the highest
and assuming that the petitioner is reinstated and he
·ultimately gets the satisfaction of his right having bee.n
vindicated, can he deny that in view of the serious
differences of opinion between the .CJ, Delhi High G
Court under whom he had worked and the CJI, a size-
able section of the people might still believe that the
integrity of the Judge was not beyond doubt which may
have prompted the CJ under whom he worked not to
recommend his case for extension. Even if this im· H
pression is carried by a small section of the people,
it will be a great slur on. ti:\<; functioning of the Judge.
854 SUPREME COURT REPORTS (1982] 2 S.C.R

A My personal conception of a Judge is that he should
be above all criticism and controversy; be should be
blameless and spotless, full of virtues and free from
vices like a 'diamond in the sky', like Caesor's wife
above reproach. It is in my opinion better not to be
a Judge at all than to be a controversial Judge.
B •
(c) It is not that for the first time that the term of an
Additionnl Judge has not been extended or a Judge
has been dropped. The various schedules given by the
respondents show quite a few instances where Add!.
Judges were sent back after their period was over
c without any protest or objection. '

(d) Indeed, if a really conscientious judge would have been
in the position of petitioner-Kumar he would. have
silently walked out of the show in the larger interests
of the great and sacrosanct institution which he was
D serving instead of insisting on disclosure and thereby
drawing himself into a serious controversy to vindicate
his supposed right. I have already pointed out that
it is not for the first time that the term of an Addi-
tional JU<;lge has not been extended : in the past also
Judges have been dropped and one of the schedules
E given by the Solicitor-General is full •of such inst~nces.
Such Judges never raised any controversy regarding
their not being reappointed and got reconciled them-
selves without any protest or objection perhaps in due
deference to the maintenance of the purity of the great
institution of justice.
F
I cannot help commending the conduct of Justice
Ismail who actually resigned and chose to quit his
office instead of pursuing the matter further in the
larger interest of the purity of administration of justice.
The life of a judge is th it of a hermit and he must
G
inculcate a spirit of self-sacrifice and should take his
profession in this holy spirit.

(e) The subsequent events following the disclosure of the
documents which have been fully published by the
H
press and other media clearly show that there has been
a serious charact~r assasination of a high constitu-
S.1>. GUPTA v. UNION. (Fazal Ali, J.) 8$$

tional functionary for merely expressing his opinion A
in a very frank and honest manner and that too behind
bis back. The contents of confidential notes and
letters have been exploited for their personal ends by
interested parties. Thus, the apprehension and danger
which I had predicted from disclosure has come to be
true and henceforward there would be hardly any Head B
of a Department who can function properly of effec-
tively with the sword of Democles banging over his
head. No high authority would now venture to record
..._. adverse annual confidential reports on the conduct of ·
his subordinates or express bis honest opinion how-
soever unsatisfactory the conduct of subordinate c
may be.

There is yet another distressing feature 'of the dis-
closure of documents. It would appear that the CJ,
Delhi High C~urt was castigated as being dishonest
and prejudiced against Justice Kumar for having re- D
fused to recommend his extension or reappointment.
The same is being openly said in the Press regarding
the CJI in respect of his adverse comments on Mufti
Bahauddin, Acting Chief Justice_ of J & K High Court.

While CJ, Delhi has given cogent reasons for not
E
t . recqmmending the reappointment of Justice Kumar in his
proposal to the Law Minister (a copy of which was sent to
CJI) which was followed by a full and frank discussion .
between CJ, ·oelhi and CJI, there is nothing to show that
the materials or the data on which the CJI formed his
F
opinion against Justice Mufti Bahauddin and as he says in
his proposal found some substance in the complaints yet
all this was done when Justice Bahauddin was neither a
party to the present proceedings, nor was he ever heard in·
his defence and yet he has b.een publicly condemned thanks
to the disclosure. However, in the instant case, we are not· G
at' all concerned with the case of Justice Mufti Bahauddin
but I have given this instance to show that if disclosure of
confidential doucuments are liberally allowed by throwing
public interest to the winds., what dangerous consequences
can follow which may injure· innocent constitutional func- H
tionaries. In the case of Justice Kumar, CJ, Delhi High
Court and CJI have not revealed the source of their infor-
SUPREME COURT REPORTS [I ~82) 2 s.c.R..

A mation and in my opinion rightly because anyone who gave
them the information must have done so in confidence and
according to the· correspondence, it, appears that senior
colleagues of the CJ, Delhi High Court and eminent lawyers
had supplied the information to him and similar authorities
had given some counter information to the en.
B
Thus, such an awkward and embarr;ssing situation is bo~nd to
develop if disclosures are liberally made as a result of which serious
injury is caused to public interest. The most unfortunate part of the
disclosure in this case is that persons who are not before the court
c have been involved in serious I: gal and political controversy which
has, in my opinion, caused se~ious damage to the high judicial insti-
tutions of the country, posing a very serious problem to the Central
Government a.nd the public services.

D The Solicitor-General made a feeble attempt to argue before
me that since I have dissented from the majority view and upheld
the plea of privilege I should not deal with the contents of the docu-
ments in my judgment. This argument, which appears to me to be
somewhat extraordinary, cannot be accepted because the decision of
the majority amounts to .the law laid down for the whole country
E under Art. 141 of the Constitution and is as such binding on me as
on others. As a result of the mafority decision, the documents
disclosed form part of the record and. if I shut my eyes to these docu-
ments merely because I have dissented frqm the majority view, it
would perilously amount to being subversive of judicial discipline.
I have, however, carefully waded through the documents and I do
F notthink that much can be made of the contents and recitals in the
documents. These are my reasons for upholding the plea of
privilege taken by the Union in the cases of Mr. Kumar and Mr.
KBN Singh.

G A careful perusal of the letters written by the CJ, Delhi High
Court to the Government as also to the CJI would reveal that the
stand taken by CJ, Delhi has been consistent throughout. He has
honestly and frankly taken the stand that in his view as the repu-
tation of Justice Kumar was not above board and his performance
H was rather slow, he was not prepared to recommend his reappoint- ·
ment after the expiry of his term. He has diselused in his letter the
grounds for coming to this conclusion which were derived partly
S.P. GUPTA v. UNION (Fazal Aii, J.) s57
from knowledge which be got from senior lawyers or senior collea- A
gues and partly from certain facts. After sending the letter he had a
full discussion with the CJI on all the points which are contained in
the first letter which the CJ, Delhi wrote to the Law Minister. The
CJI, however, took the stand that on his inquiry made from the
lawyers and Judges of the High Court, he had no reason to doubt
the .integrity or honesty of Justice Kumar. It is also admitted that B
the CJ, Delhi had no animus against Justice Kumar and there was
no reason why he should have expressed his opinion refusing to
recommend his reappointment, without any sufficient reasons or due
J.· . to enmity. The only argument advanced against the CJ, Delhi was
that he had sent a letter to the Law Minister in which he had
disclosed some data and details, and had requested him to keep c
them secret, and had also prayed that the letter may not be shown
to anybody else as "it was meant for him.· The argument was that
there is no evidence to show that the materials disclosed to the Law
Minister were shown to the CJI. It is, however, not disputed that
the CJ, Delhi wrote such a letter to the Law Minister after his
D
• discussion with the CJI and the possibility that he may have discus-
sed all matters including the materials put in writing to the Law
Minister with the CJI cannot be excluded.

At any rate, without going into further details as several cons-
titutional functionaries were involved, two facts emerge :-

(I) that CJ, Delhi who had undoubtedly a better chance
of observing the performance and the functioning of
Justice Kumar,· was in a position to get first-hand
knowledge of his reputation, has honestly believed that
Kumar's reputation of integrity was doubtful. He has
not revealed the sources from which he came to know F
about the reputation of Justice Kumar. The CJI,
however, took a contrary view but he has also not
disclosed the names of the lawyers or Judges who had . '
given him a contrary version.

In my opinion both of them did not disclose the G
names because the Judges or the lawyers concerned
must have given the information in confidence and
they would have been seriously einbarrassed if their
names were disclosed: ·

(2) These views ·were put before the Central Government
H
and it was open to the President to accept one view or
858 SUPREME COURT REPORTS [1982) 2 s.c.R.
A the other. The President chose to 11ccept the view
taken by the CJ, Delhi more particularly because he
WaS in a position tO have first-hand information both I
regarding the reputation and working of the Addi-
tional Judge.

B In these circumstances, it cannot be said that the action of the
President was tainted by malice or that there was no effective consul-
tation. This aspect of the matter has be en elaborately dealt with by
my Brothers Bhagwati, Desai and Venkataramiah, JJ with whom I
am in general agreement. --.
C I might just state that even if the documents were not disclosed,
the conclusion would have been the same because in the affidavits
it was not disputed that ·the two CJs had taken a contrary vi~w
regarding the doubtful reputation of Justice Kumar, nor was it
&uggested that CJ, Delhi had any ill-will or animus against Kumar.
The disclosure of the documents, however, unfortunately resulted in
0 grave and serious consequences of far-reaching effect on the future
of not only the judicial institutions but also almost all the Govern-
ment departments.

While agreeing with Brothers Bh.agwati, Desai and Venkatara-
miah, JJ. regarding the interpretation of Art. 224, I·would, however,
E express my short opinion on the subject.. Although it is true that
by fixing the strength of permanent and Additional Judges of each
High Court, the Central Government appears to have created two
parallel lines of recruitment so that the appointment of an Additio-
nal Judge was a sort of training ground for being appointed as a
Permanent Judge whenever a permanent vacancy arose; It has
F
already been pointed out by Brother Venkataramiah J. that this
procedure was against the very spirit and tenor of Art. 224 which is
extracted thus :-

"224. Appointment of additional and acting Judges.

G (I) If by reason of any temporary increase in. the business
of a High Court or by reason of arrears of work therein,
it appears to the Pretident that the number of the judges
of that Court 5hould be for the time being increased,
the President may appoint duly qualified persons to be
H
additional judges of the Court for such period not
exceeding two years as he may specify.
S.P. GUPTA v. UNION (Fazal Ali, J.) 859

(2) When any Judge of a High Court other than the Chief A
Justice is by reason of absence or for any other reason
unable to perform the duties of his office or is appoint-
ed to act temporarily as Chief Justice, the President
may appoint a duly qualified person to act as a Judge
of that Court until the permanent judge has resumed
his duties. B

(3) No person appointed as an additional or acting Judge
of a High Court shall hold office after attaining the
Jo- • age of sixty-two years."

If properly read, this Article envisages certain conditions C
precedent before an appointment under_ Art. 224 can be made and
also prescribes the nature and the term of the judge appointed. In•
the first place, it requires that an Additional Judge can be appointed
_only if-

(I) there is any tern porary increase in the business or' a D
High Court, for instance, where by ·virtue of some new
temporary law passed, a spate of litigation crops up
but that ends with duration of the Act or with the
completion ol the temporary reforms, etc.I contem-
plated by the statute. Such an appointment is a kind
of an emergency appointment which is to last until the E
temporary increase or arrears are disposed of;

(2) where by reasons of heavy ar"rears of work it becomes
necessary to· appoint an Additional Judge, the appoint-
ment is made under Art. 224.
F
The Article, therefore, contemplates only a tenure appointment
to meet a particular contingency and is not meant to be permanent
,.. feature so as to form a training base for recruiting judges from the
training base to the permanent cadre. This point need not detain
us any further in view of the statement made by Mr. Mridul on
behalf of the Law Minister that it has now been decided as a matter G
of policy by the Government not to appoint Additional Judges for a
period of less then one year in special cases and two years normally.
If this is done in future, then the spirit of the Constitution would be
amply fulfilled and the controversy would be set at rest.
H
A more important feature is that the nature of the appointment
under Art. 224 ii; a pure tenure appointment for a fixed period and
S60 SUPREME totm'r. ~EPOlnS [1982] 2 s.c.k.
A once the period expires, there is no question of extension of that
period or reappointment. In other words, once the time for which
a Judge bas been appointed expires, the appointment of the _Judge
ceases to exist. That being so, whenever a judge is sought to be
appointed afresh, the constitutional functionary will have to go back
to Art. 217 even if a judge is to be appointed under Art. 224 and the
B question of suitability would be the first criterion. As in the case
of initial appointment under Art. 217, so in the case of a fresh
appointment after the period mentioned in Art. 224 expires, there is
no legal right to be appointed nor does non-appointment give rise
to any legal or constitutional infirmity so as to be the subject of a
'judicial review.· It is a different matter that if an additional judge
c is considered for a permanent appointment afresh, the fact that he
has acquired some experience would undoubtedly be an important
• factor to be taken into consideration while judging the suitability of
the candidate concerned. At the same time, the constitutional
functionaries cannot shut their eyes to the facts which may have
come to their knowledge either against the Addition.al Judge or in
D his favour.

Thus, the position is that even if an Additional Judge is not
appointed afresh and somebody else is appointed, there is no ques-
tion of judicial review nor .is there any question of the non-appoint-
E ment of an Additional Judge afresh casting any reflection or asper-
sion on: the reputation or character of an Additional Judge because
he was appointed only for a particular period and for a particular
purpose and is not on probation: Both Brother Desai and Brother
Venkataramiah JJ. have stressed this aspect of the matter in their
own way and I agree with their views.
F ..
While dealing with the facts of Justice Kumar's C,!ISe, Brother
Venkataramiah has observed that although there was full and
effective consultation between the CJ, Delhi, the CJI and the Law
Minister, therefore, the non-appointment of Mr. Kumar is not
vitiated by any constitutional infirmity. At one place, however,
G Brother Venkataramiah has observed as follows :-

"Perhaps it would have been acceptable if the case w~s
that the Prime Minister was favourably disposed towards
Shri S.N. Kumar but the Law Minister had tried to mislead
H her."
(Emphasis mine)
S.i'. GUPTA v. UNION (Fazal Ali, J~> . S6t
With due respect to my learned Brother I am unable to agree A
with these observations which cannot be spelt out from the corres-
pondence between the constitutional functionaries mentioned above.
In fact, a close and careful perusal of the c0rrespondence between all
the constitutional functionaries, (CJ, Delhi, CJ!, and the Law ·
Minister) would clearly show that the role of the Law Minister has
been very fair and just from start to finish. The Law Minister B
insisted on the materials before taking a decision against Mr.
Kumar. These materials were supplied to the Law Minister by the
CJ, Delhi. He had also discussions with the CJI. Even thereafter
the Law Minister wante!i to plug all loopholes in order to satisfy
hiinself fully before taking a final decision in the nfatter, and that is
why he wrote to the CJ, Delhi to furnish a complete data and better c
particulars which was done by him (CJ, Delhi), through his letter
dt. 7.5.31.
..
It is. obvious that the CJ, Delhi expressed his desire that the
full material which was supplied to the Law Minister may not be sent
to the CJI but that was perhaps because the CJ, Delhi had oral D
discussions with the CJI in respect of all relevant material. The
Law Minister also took care to ignore the CBI reports against
Mr. Kumar because he wanted to proceed purely on legal and
relevant materials before him. This shows the objectivity and the
fairness of bis attitude in coming to a fi·nal decision. Merely because
he bad advised the Prime Minister to accept the opinion of the Chief
l!l
Justice of Delhi, it cannot be said that he tried to mislead the Prime
Minister. In my opinion, to suggest even indirectly that the Law
Minister attempted to mislead the Prime Minister, in view of the
circumstances mentioned above, would br to make a most unchari-
table remark against him amounting to inflicting an 'unkind cut
F
indeed'. My Brother Bhagwati, J. has demonstrably shown that there
is nbt a shred of evidence nor any reasonable basis for holding that
there was a conspirary between CJ, Delhi and Law Minister to oust
Mr. Kumar. The allegation of the alleged conspiracy is totally
unfounded and smacks of absolute recklessness. Indeed if the Law
Minister wanted to drop Mr. Kumar without any further inquiry he G
could have used the I.B. Reports-that he completely ignored them,·
proves his honesty of purpose. Merely because while exercising a
constitutional function the Law Minister preferred the opinion of·
CJ, Delhi to that of CJI, no motive could be imputed to ,him, parti-
cularly when we have rejected the doctrine of Primacy of CJI, as H
dealt with by Desai J., with whom I fully agree.
862 •. SUPREME COURT REPORTS (1982) 2 R.S.C •

A I entirely agree with the very clear and adroit exposition of
the constitutional aspect of the Art. 224' by Brothers Bhagwati and
Desai JJ. as also with the most elaborate, careful and detailed
analysis of Kumar's case in the light of the correspondence disclosed.
I also agree with the opinion expressed by Brother Venkataramiah
J. but would like to add a few lines to highlight some aspects of the
B reasons given by Brothers Bhagwati and Venkataramiah JJ. which
seem to me to be either inconsistent with the stand taken by them
or do not accord with my view. Hence, I find myself bound to
express my short opinion on these matters .only.

Brother Bhagwati J after carefully analysing the facts of
c Kumar's case as spelt out from the correspondence disclosed and
the affidavit filed by Mr. Kumar has returned a clear finding that the
conduct of CJ, Delhi was throughoot honest and bona fide and he
had acted as a responsible and honest CJ. I fully agree with this con-
clusion but Brother Bhagwati J. appears to have found fault with the
CJ, Delhi for expressing his desire to the Law Minister to keep the
D
contents of his letter dated 7.5.81 secret and not to place the same
before the CJI. Brother Bhagwati, J . has himself pointed out that CJ.
Delhi had given cogent reasons for requesting the Law Minister not
to disclose the contents to CJI atld yet in his concluding portion
while not doubting the bona fide of the CJ, Delhi, he seems to
suggest that he (CJ, Delhi) ought to have shown greater courage of
E
conviction so as not to have been cowed down by the apprehension
that CJI might feel offended and in this connection observed as
follows:-

"We must, of course, observe .that in our opinon,
F howsoever strong and cogent might be the three reasons
given by him, the Chief Justice of the Delhi should never
-
have aske·d the Law Minister not to place his letter dated
7th May, 1981 before the Chief Justice of India ....... He
should not have bothered whether by his action in putting
the facts on record jn the letter dated 7th May, 1981 the
G Chief Justice of India would be offended and his relations
with the Chief Justice of India would be spoilt."

Perhaps in making these observatioons with great respect, .
Brother Bhagwati J., did not fully appreciate the substantial and
H compelling reasons why CJ, Delhi had made a somewhat unusual
though fully justifiable request to the Law Minister not to place the
letter before the CJI. As the data and material supplied to the Law
SJ'. GUl>TA v. UNION (Fazal Ali, J.) 863
Minister in the letter dated 7,5.81 had already been supplied to the A
C.tl or, at any rate; oraily discussed with him, it was not necessary
for the Law Minister to have disclosed the contents of the said letter
which would be more or less a surplusage and would have naturally
embittered the relations between the two high constitutional func-
tionaries (CJ, Delhi and CJI).
B
Secondly, if we put ourselves in the place of CJ, Deihl we
would have done the same in the circumstances. Hete was a Chief
Justice who was only recently made permanent and was to continue
as CJ for quite some time and so Was 'the· Ci!. In these circum-
stances, it is natural and obvious that CJ, Delhi would not like to
join issue With CJI at any stage or at every step which would create
c
difficulties in the smooth tunning of the High Court.·

. Thirdly, since CJ, Delhi was frank, forthright and firm·to stick
to his stand despite pressures. till the last, disclosure of conten~s to
CJI, was wholly unnecessary and, in my opinion, CJ, Delhi rightly D
thought that there was no use entering in an endless controversy and
a consistent legal tug of war with CJI for whom not only he but
every Judge has the greatest respect.

Finally, CJ, Delhi at the time when he niade the request could
hardly imagine or conceive that the majority of our Brother Judges
would perm!t disclosure of the documents leading to a public debate
E
in respect of high official secrets which for the last two centuries had
never. been disclosed. CJ, Delhi may have thought that if the matter
leaked out, it was likely to be exploited by M"r. Kumar and his

. friends which would bring his court to serious disrepute.

1 I feel that in view of the conspectus of the circumstances
F
mentioned above and those detailed by Brother Bhagwati J., CJ,
Delhi was fully justified in requesting the Law Minister not to reveal
the contents of his letter dated 7.5.81 and to let the matter rest where
it was. It is true that occasions may arise when a judge in the
discharge of his judicial functions has sometimes to perform an G
unpleasant duty but where awkward situations can be avoided with
tact and wisdom, the exercise of power is most laudable and beyond
criticism .

.• For these reasons, therefore, I am unable to agree with the
H
observations made by Brother Bha~wati J. on, this as\'ect of the
matter only.
864 .SUPREME COURT REPORTS ( J982] 2 S.C.R.

As regards the documents pertaining to Justice K.B.N. Singh's
case which have been disclosed I shall discuss them while dealing
with Transferred case. No. 24 of 1981.

Transferred Case No. 24 of of 1981.

B We now propose to deal with the case of D. N. Pandey and
others in which Justice K.B.N. Singh, Chief Justice of Patna High
Court has now been transposed as petitioner No. 3. All the connec- .
ted petitions in respect of the transfer of Justice K.B.N. Singh from
Patna to Madras High Court involve common points. The:;,'peti- .:
tioner, Justice K.B.N. Singh was a practising Advocate of the Patna
c High Court and was appointed a Judge of the said High Court on
September 15, 1966 and was made permanent Judge from March 21,
1968. Thereafter, he was appointed Acting Chief Justice of the
Patna High Court for a short while and as permanent Chief Justice
on July 6, 1976. He was administered the oath of office on. July 19,
1976. Since then, the petitioner continues to be the permanent CJ
D of Patna High Court.

By virtue of a notification dated January 19, 1981, the peti-
tioner was informed that the President, after consultation with the
CJI, was pleased to transfer him to Madras High Court as Chief
Justice with effect from the date he assumes charge of th·at office.
E A similar notification was issued by which Justice M.M,'.K. Ismail,
CJ Madras High Court was transferred as CJ of the Kerala High
Court but as Justice Ismail proceeded on leave and ultimately retired
from service the petition which was filed against the order trans-
ferring him to Kerala no longer survives. Miss Lily Thomas who
appeared on behalf of Justice Ismail, however, confined her argu-
F ments only to the question that the petitioner (Justice K.B.N. Singh)
should not have been transferred to Madras.

It appears that after the notification, Mr. M.G. Ramachandran,
Chief Minister of Tamil Nadu took great exception to the appoint-
ment of the petitioner as CJ, Madras High Court mainly on the
G
ground that he was not conversant with Tamil language and, there-
fore, he would not be able to function properly in the jMadras High
0

Court. We are, however, not concerned with thes e matters at the
present moment.
H·
Coming now to the facts which are germane for the purpose
<,>f deciding these petitions, the same may be summarised thus. The
li.1>. OtJl>tA v. tJNlON (FazaJ Ali, J.) 865
petition et was appointed acting Governor o'f Bihar from 31st January A
1979 to 31st September 1979. The cir, who is respondent No. 2
in T,C. 24/81, visited Patna in February 1980, according to the peti-
tioner, for inaugurating the International Rotary Conference. The
petitioner met the CJI in Patna and accompanied him to Nalanda
and Rajgir. It was alleged by the petitioner that during his visit to
Bihar, the Hon'ble CJI did not give him any inkling of his transfer B
to Madras or for that matter to any other place. It was for the
first time on January 5, 1981 that he received a telephone call from
the CJI informing him that Justice Ismail was being transferred to
,. Kerala and the petitioner would have to go to Madras. He then
asked the CJI why he had decided to send him to Madras to which
the CJI replied that it was the Government's policy that had necessi- c
tated his transfer from Patna to Madras. The petitioner states that
he was quite upset and told the CJI that his mother who lives with
him was seriously ill and bed-ridden and was not in a position to
leave Patna without the risk. of her life and also mentioned other
circumstances and difficulties and requested that his transfer may
not be insisted upon. The CJI is alleged to have told him that he D
was making a note of these circumstances. Three-four days later
the petitioner came to Delhi and called on the CJI and told him 'of
his acute and insurmountable personal difficulties to wliich reference
had been made by him during his telephonic talk with the CJI. The
petitioner was with him (CJI) for about 10-15 minutes at his resi-
dence but he found the CJI absolutely non-commital in respect of · E
his transfer. The petitioner informed the CJI that he might be given
a chance to remove any wrong impression that may have been
created in his mind. The CJI, however, did not put any question
or material to the petitioner.
F
The petitioner alleges that his transfer was notified without his
previous consent nor did he give his consent, nor was he even con-
sulted in any manner about his transfer to Madras. The petitioner
_further submits that no reasons, groun,ds or material necessitating
or justifying his transfer from Patna to Madras were ever disclosed
to him or discussed by the Piesident or the Government of India or G
anyone acting on their behalf or even by the CJ I. He also denies
that the transfer was necessary in public interest. This matter is a
question of Jaw for the courts to examine. His main griev.ance was
that had he been given a chance to express his opinion he would
have pointed out his compelling personal circumstances and difficul- H
ties, more particularly the advanced age of his mother who wa&
more than 85 years and was bed-ridden for two years,
866 sui>ttEME cotJRt RE~oHs ii 9s2j 1 s.c.rl
..
A The petitioner took the plea that he was not conversant with
Tamil language, which was the official language of the State of Tamil
Nadu, and this would therefore be a serious impediment in his func-
tioning as the Head of judiciary in that State He further alleged
that his transfer was made without any effective consultation between
the Government of India and the CJI and that it was based on irre-
8 levant and non•existent factors which were never disclosed to him.
Thereafter, he took some legal pleas regarding the validity of the
· transfer, which as pure questions of law we have already dealt with
whlie dealing with other cases. Then, he laid great stress .on the
statement made by en at Jaipur on January 19, 1981 that the judges
who were recruited with the understanding that they would not be
c transferred to other, States should not be asked after their appoint-
ment to go to other States and according to the petitioner the CJI
said that in su.:h transfers the problem of language, education of
their children could not be brushed aside. The petitioner seems to
suggest that by agreeing or sponsoring his transfer to Madras, the
CJI completely overlooked the .observations made by him in Jaipur.
D
Another technical objection taken by the petitioner was that
the transfer order was bad because no notification had been issued
by the President determining the compensatory allowance until a
Parliamentary legislation was passed as required by the provisions
E of Art. 222. He then made reference to the recommendations of
various Chief Justices Conferences held before his appointment. A
number of other pleas were taken by the petitioner, but Dr. Singhvi
appearing for him, in view of the delicate and sensitive questions.
that aro~e, very rightly decided to argue the case on the convergence
rather. than divergence of the issues raised by the petitioner in his
F petition or in his affidavits. ..
As a plea for disclosure. of the documents in the nature of
correspondence which led to the transfer of the petitioner from
Patna to Madras was also prayed for, a counter,.affidavit was filed
G by Shri T.N. Chaturvedi, Home Secretary opposing the disclosure
an\f taking the plea of privilege under ss. 123 and 124 of the Evi-
dence Act. The court by a majority of 6: I, .as in other cases, in
this case also overruled the plea of privilege and directed disclosure
of the documents concerning the correspondence but omitting the
notes and some minutes which fell within the ambit of Art. 74(2) of
H the Constitution. The Hon'ble CJI, who is respondent No. 2, filed
in his counter-affidavit on 29.9.8 l, as directed by us, where he oenied
or rebutted most of the allegations of fact made by the petitioner
S.P. GUPTA v. UNION (Fazal Ali, J.) 867
in his affidavit. The petitioner filed another rejoinder on 16.10.81 to A
the counter-affidavit of the CJI.
So far as the CJI is concerned, he admitted the fact that he
visited Patna in February ! 980 but denied that he had gone there
only for the purpose of inaugurating the Rotary International Con-
ference. He averred that he visited Patna in the exercise of his
B
official duties particularly in order to meet the Judges and the
members of the Bar and had informed the petitioner regarding his
visit to Patna on-23.2.1980. According to the CJI, inauguration of
Rotary International Conference was merely an incidental matter
which he did during his presence at Patna. He has also stated
that even before his visit to Patna he had received a letter
from the petitioner enclosing a list of some senior Advocates whom
c
be would like to meet individually but the CJI asked him to add
names of five more Advocates.

On reaching Patna, the CJI met the members of the Bar indi-
vidually on 24.2.80 and on the next day in the evening he met the
D·
members of the Advocates Association in the High Court premises.
He also admitted his visits to Nalanda and Rajgir. He further states
that during his visit to Patna he did not give the petitioner any
inkling about his proposed transfer to Madras because in February
1980 there was no proposal to transfer him anywhere. The proposal
of his transfer matured almost one year after. E
The CJI further states that be did have a talk over the tele-
phone with the petitioner on 5.1.81 and apprised him of the likeli-
hood of his being transferred to Madras and asked him if he had
anything to say. The CJI denied that he merely said that the
petitioner was being sent to Madras in view of the Government
F
policy but added that apart from the Government policy be bad
expressly told him that it was proposed to transfer him to
Madras because he was an experienced and senior Chief Justice.
The CJI admits that the petitioner had informed him that his mother
was bed-ridden and not in a position to go to Madras but he did
not tell him (CJJ) about any other difficulty. The CJI further states G
that the petitioner had hinted that if his transfer was insisted upon
he would prefer to resign. Thereupon, he (CJI) requested him not
to act in haste and to give the matter a close thought. He also in-
formed the petitioner that he was making a note of the difficulty
• expressed by him. He also requested him to come to Delhi and H
discuss the question of his transfer. The CJI further states that the
petitioner met him in Delhi 3-4 days later and was with him fo.r
868 SUPREME COURT REPORTS (J 982) 2 S.C.R.

A 10-15 minutes and acquainted him (CJI) of his acute and insur-
mountable personal difficulties in the event of his transfer to Madras.
The CJI further admitted that the petitioner was at his residence
on 8.1.1981 at 7.30 p.m. and during their discussion the question
of his mother's advanced age and illness also c.-i.me up which was
the only personal difficulty stressed by him (petitioner). The CJI
B told him that he was unable to agree with him because there were
other dependable persons in the family, including his brother S.B.N.
Singh, who could look after his mother. The CJI also states that
the petitioner gave him an impression that perhaps some complaints
may have been made against him to the CJI which he would like to
remove, on which the CJI assured him that he did not believe that
c his conduct was in any way blameworthy but certain persons were
exploiting their proximity to him which had created needless mis-
understanding and dissatisfaction. Other matters were also men-
tioned by the petitioner to the CJI which have no direct bearing
on the issue.
D
In para 5 of his counter-affidavit the CJI has averred that there
was full and effective consultation between him and the President on
the question of the transfer of the petitioner from Patna to Madras
and that every relevant aspect of that question was discussed
by him fully with the President both before and after he proposed
E the transfer. The other allegations made by the petitioner were
denied. The CJ! also stated that he was personally aware since
February 1980 that his (petitioner's) mother was advanced in age
and was not in a good state of health. Admitting the allegation of
the petitioner regarding his speech at Jaipur, the CJI mentioned in

F
his affidavit that he had given thoughtful consideration to the per-
sonal difficulty narrated by the petitioner during bis meeting. ..
Lastly, the CJI mentioned that as the petitioner was one of the
seniormost High Court CJs, he could function efficiently even despite
the language difficulty.

G The petitioner filed a rejoinder affidavit on 16.10.81 (hereafter
referred to as the 'second affidavit') where he reiterated the allega-
tions made in his first affidavit and denied some of the facts men-
tioned by the CJI. In his second affidavit he stated that the CJI
had said it was the Government's policy to effect transfers in batches
H of 2 or 3 judges. This statement is a little inconsistent with his pre-
\ious statement in his first affidavit where he had mentioned that he
was informed by the CJI that it was the Government's policy. In
S.P. OUPTA v. UNION (Fazal Ali, J.) 869

that affidavit he did not say about the transfer in batches of 2 or 3, A
• which seems to have been added in the second affidavit.
'
This is a most difficult and delicate situation where two high
Constitutional functionaries are involved and have given affidavits
and counter-affidavits. In a matter of such a serious magnitude, the
Court has to make a very careful and cautious approach having regard B
to the respectability of the persons who have sworn the affidavits.
We would, therefore, like to avoid unnecessary details and, as rightly
contended by Dr. Singhvi, confine our attention only to the points
of convergence without touching the issues of divergence. Before,
however, we deal with the admitted facts which emerge from the
affidavits concerned, it may be necessary to refer to the well settled c
law on the subject of effective consultation which is necessary con-
comitant of a valid and constitutional order of transfer passed by
the President.

Art. 222 constitutes a clear mandate that the transfer of a
Judge from one High Court to another can be made only in consul- D
tation with the CJI. As the connotation of the word 'consultation'
has now been well-settled by a long course of decisions of this Court,
it is not necessary for us to multiply authorities on this issue. We
shall, therefore, refer only to th0se decisions which lay down com-
plete and ·objective test for determining what constitutes effective
E
consultation in a particular case. To begin with, we shall start with
Seth's case which is the only decision directly in point and where the
matter was discussed fully covering all shades and aspects of this
important question. Before referring to that case a few introduc-
tory remarks may be necssary.
F
We have already indicated above that on an interpretation of
Art. 222 the proposal for transfer of a judge (which includes Chief
Justice) from one High Court to another may emanate either from
the President or from the CJI. Although according to the Memo.
which was produced before us, the practice is that the proposal
is to emanate from the President through the law Minister but, G
as we have already pointed out that the Memo, cannot override
the provisions of Art. 222 being only in the form of a guideline,
there is nothing to prevent the proposal emanating from the CJI.
In either case, however the process of effective consultation is to be
gone through according to the principles laid down and directions H
given by this Court. In the instant case, the admitted position is
that the proposal for transfer of the petitioner for the first time
870 SUPREME COURT REPORTS [I 982] 2 s.c.R.

A emanated from the CJI by virtue of his letter dated 7.12.80. At
that time the recommendation of the CJ[ was to transfer the peti-
tioner to Rajasthan which was later changed and by a subsequent
letter dated 20.12.80 the CJI proposed that t)le petitioner be trans-
ferred to Madras and Justice Ismail from M adra5 to Kerala. This
is the proposal which is in dispute in the present case.
B
In Seth's case this Court proceeded on the footing that the
proposal had emanated from the President and laid down detailed
guidelines and principles which should be followed in order to make
consultation effective. It is obvious that where the proposal err.a-
nates from the CH the same principles would apply though in the
c reverse process. In other words, what the President is required to
do under Art. 222 if the proposal emanates from him has to be done
by the CJI if he is the author of the proposal of transfer. The
present CJI in his majority judgment has considered the matter fully
and exhaustively and his judgment contains the most brilliant and
scientific exposition of the doctrine of consultation. While dwelling
D on the attributes of effective consultation, Chandrachud, J. (as he
then was) observed as follows :

"It casts an absolute obligation on the President to
con~ult the Chief Justice of India beforP transferring a
Judge from O!le High Court to another. The word "may"
E in article 222(1) qualifies the last clause which refers to the
transfer of a Judge and not the intervening clause which
refers to consultation with the Chief Justice of India. ·•
The President may or may not transfer a Judge from one
High Court 10 another. He is not compelled to do so.
But if he proposes to rransfer a Judge, he must consult the
F Chief Justice of India before transferring the Judge. That is
in the nature of a condition precedent to the actual transfer of
the Judge. In other words, the transfer of a High Court
Judge to another High Court cannot become effective unless
the Chief Justice of India is consulted by the President in
behalf of the proposed transfer. Indeed, it is euphemistic
G to talk in terms of effectiveness, because the transfer of a
High Court Judge to another High Court is unconstitutional
unless, before transferring the Judge, the President consults
the Chief Justice of India.

H
But \here can be no purposeful consideration of a
matter, in the absence of facts and circumstances on the
S.P. GUPTA v. UNION (Fazal Ali, J.) 871
basi' of which alone the nature of a problem involved can A
be appreciated and the right decision taken. It must, there-
fore, follow that while consulting the Chief Justice, the
President must make the relevant data available to him on
the basis of which he can offer to the President the benefit
of his considered opinion. lf the facts necessary to arrive
at a proper conclusion are not made available to the Chief B
Justice, he must ask for them because, in casting on the
President the obligation to consult the Chief Justice, the
Constitution at the same time must be taken to have im-
posed a duty on the Chief Justice to express .his opinion on
nothing less than a full consideration of the matter on
which he is entitled to be consulted. The fulfilment by c
the President of his constitutional obligation to place full
facts before tile Chief Justice and the performance by the
latter, of the duty to elicit facts which are necessary to
arrive at a proper conclusion are parts of the same pro-
cess and are complementary to each other The faithful
observance of these may well earn a handsome dividend D
useful to the administration of justice. Consultation within
the meaning of article 222(1) therefore, means full and ejj'ec-
tive, not formal or unprodurtive consultation.

Thus, deliberation is the quintessence of consultation.
That implies that each individual case must be considered E
separately on the basis of its own facts.

The word 'consult' implies a conference of two or more
... persons or an impact of two or more minds in respect of
a topic in order to enable them to evolve a correct, or at
F
least, a satisfactory solution. In order that the two minds
may be able to confer and produce a mutual impact, it is
essential that each must have for its consideration Juli and
identical facts, which can at once constitute both the source
and foundation of the final decision.
G
(Emphasis mine)

Similarly, Krishna Iyer J. speaking for 'himself and one of us
(Fazal Ali J.) described the consultative process thus :
H
"The consultation, in order to fulfil its normative
function in Art. 222(1), must be a real, substantial
872 SUPREME COURT REPORTS (1982 J 2 S.C.R.

A and effective consultation based on full and proper
materials placed before the Chief Justice by the Govern-
ment. Before giving his opinion the Chief Justice of India
would naturally take into consideration all relevant factors
and may informally ascertain from the Judge concerned if
he has any real personal difficulty or any humanitarian
B ground on which his transfer may not be directed. Such
grounds may be of wide range including his health or
extreme family factors. It is not necessary for the Chief
Justice to issue formal notice to the Judge concerned but
it is: sufficient-although it is not obligatory-if he ascertains ·•
these facts either from the Chief Justice of the High Court
c or from his own colleages or through any other means which
the Chief Justice thinks safe, fair and reasonable. Where a
proposal of transfer of a Judge is made the Government
....
must forward every possible material to the Chief Justice so
that he is in a position to give an effective opinion."

D Bhagwati J. (One of us) agreed entirely with the observations
extracted above.

In an earlier Constitution Bench decision of this Court in
Chandramouleshwar Prasad v. Patna High Court & Ors.(1) while
E dealing with the intent and purpose of Art. 233, the principles of
which equally apply to consultation under Art. 222, Mitter J.
observed thus :

"Consultation with the High Court under Art. 233 is
not an empty formaliry. So far as promotion of officers
F to the cadre of District Judges is concerned the High Court
is best fitted to adjuge the claims and merits of persons to
be considered for (promotion ..• Consultalion or deliberation
is not complete or effective before the parties thereto make
their respective points of view known lo the other or others
and discuss and examine the relative merits or their views.
G If one party makes a proposal to the other who bas a
counter proposal in his mind which is not communicated to
the proposer rthe direction to give effect to the counter
proposal withoutanything more, cannot be said to have
been issued afterconsultation." (Emphasis mine)
H
[ ( 1) [I 970] 2SCR 666.
S.P. GUPTA v. UNION (Fazal Ali, J.) 873

This case was followed both by Chandrachud J. and Krishna A
Iyer J, and one of us (Fazal Ali J) in Seth's case where it was held
that the observations made in this case constitute the true meaning
and content of consultation as envisaged by Art. 222(1) of the
Constitution.

In Chandra Mohan's case (supra) this Court made the following B
observations regarding the process and purport of consultation :

"That this constitutional mandate has both a negative
and positive significance is made clear by the other provi-
sions of the Constitution wherever the Constitution intended
to provide more than one consultant, it has said so : see c
Arts. 124 (2) and 217(1). Wherever the Constitution pro-
vided for consultation of a single body or individual it said
so; see Art. 222. Art. 124(2) goes further and makes a
distinction between persons who shall be consulted and
persons who may be consulted. These provisions indicate
that the duty to consult is so integrated with the exercise D
of the power that the power can be exercised only in con-
sultation with the person or persons designated therein.

Analysing the ratio of the decisions in Seth's case and Chandra-
mouleshwer Prasad's case (supra) the following necessary concomi-
tants of an effective consultation may be stated : E
(I) that the conclutation contemplated by Art. 222 must
be: full and effective and is an essential ingredient of
the exercise of power under Art. 222.

(2) that once when the President decides to transfer a
judge, he must consult the CJI before transfer; the F
consultation before transferring a judge is, as it were, a
condition pn,cedent to the actual transfer of the judge.

(3) if the consultation with the CJI has not been done
before transferring a judge, the transfer becomes
unconstitutional. G
(4) The President must make the relevant data and the
necessary facts available to the CJI so that he (CJI)
may arrive at a proper conclusion. In case any facts
are wanting the same should be supplied to the CJI and B
this is an imperative duty or obligfltion cast on the
President who initiates the proposal.
874 SUPREME COURT REPORTS (1982] 2 S.C.R.

A (5) The fulfilment by the President of his constitutional
obligation and performance of his duty by the en are
parts of the same process and after this process is fully
complied with, the consultation becomes Full and effec-
tive and not formal or unproductive.

B (6) That sufficient opportunity should be given to the
authorities concerned to express their views so as to
tender advice as deliberation is the quintessence of
consultation.

(7) After the data, facts or materials are placed before the
c consultee and the consultant, there should be a full and
complete application of minds in respect of the subject
to enable them to reach a satisfactory conclusion. In
other words, the two minds must be able to confer
--
and produce a mutual impact on the indentical facts
which would constitute both the source and the foun-
D
dation of the final decision.

(8) The (;JI owes a corresponding duty both to the
President and to the Judge who is proposed to be
transferred to consider every relevant fact before
tendering his opinion to the President.
E
(9) Before giving his opinion the CJI must take into consi-
deration all relevant facts and should informally
ascertain from the Judge if he has any personal
difficulty or any humanitarian ground on which his
transfer is proposed to be made and having done so,
F must forward the same to the President.
(These principles were laid down in Seth's case)

(IO) Consultation or deliberation is not complete until the
...
parties make their points of view known to the other
G or others and discuss and examine the relative merit of
their views. If one party makes a proposal to the other
who has a counter proposal which is not communicated
to the proposer, the direction to give effect to the
counter-proposal without anything more will not
H amount to consultation.

(This was held in Chandramouleshwar' s case (supra)
S.P. GUPTA v. UNION (Fazal Ali, J.) 875

We shall now state the admitted facts which emerge from the A
two affidavits of the petitioner and the counter-affidavit of the CJI
to show whether the tests mentioned above have been fully satisfied
or not. It is clearly established both from the petitioner's affidavit
and the counter-affidavit of CJI that during his (CJIJ visit to Patna
there was absolutely no suggestion or proposal to transfer the peti-
tioner from Patna to Madras. The petitioner categorically states B
this in para 8 of his first affidavit (filed on 16.9.81). This fact is
endorsed and admitted by the CJI in para 2(e) of his counter-affidavit
where he says thus :
.. "it is true that I did not tell him then that he was to
be transferred from Patna. That was because in February
1980 there was no proposal to transfer him. He was trans· c
ferred nearly one year later.:•

Thus, the first fact on which there is no controversy or diver-
gence is that during his visit to Patna in February 1980 the CJI did
not give any indication to the petitioner regarding his transfer to D
Madras as there was no such proposal.

A persual of the two affidavits would clearly show that there
is no averment either by the-petitioner or by the CJI that they ever
met at any other place between February 1980 and January 5, 1981.
It must, therefore, be taken to be established that after his visit in E
February 1980 the first time CJI had a talk with the petitioner was
only on 5.1.1981. In this connection, averments are to be found in
para 8 of petitioner's first affidavit and in para 2(f) of CJl's counter
affidavit where he states thus :

''It is true, as stated by Shri K.B.N. Singh in paragraph F
8 of his affidavit, that I conveyed to him on the evening of
January 5, 1981 over the telephone that it was proposed to
transfer Shri Justice M.M. Ismail to Kerala and that he,
'\.- Shri K.B.N. Singh, may have to go to Madras."

Another conclusive fact which inevitably follows from the G
aforesaid two averments is that even when the CJI sent the proposal
dt. 20.12.80 of the transfer of the petitioner from Patna to Madras
and that of Justice Ismail from Madras to Kerala, there was neither
any talk or discussion nor any consultation with the petitioner. We
have highlighted this important fact because from the observations H
extracted above one of the essential ingredients emphasised by this
Court and even by the CJI himself w~s that there should be a com-
876 SUPREME COURT REPORTS (1982) 2 s.c.R.

A munication of ideas before the proposal of transfer emanates. We
shall elaborate this aspect a little later.

According to the petitioner he was told by the CJI on
telephone that he was to be sent to Madras in pursuance of a
B Government policy. The CJI in his counter-affidavit in para 2(g)
stated that he did not merely indicate Government policy but also
stated that it was necessary to appoint an experienced and senior CJ
in place of Justice Ismail. In the circumstances, therefore, we would
prefer the statement of the CJI to that of the petitioner particularly
in view of the fact that in his second affidavit the petitioner has . ;

c introduced an additional fact to the effect that the CJI had told him
that it was the Government policy to effect transfers in batches of
two or three. This minor contradiction is, however not of much
value because the fact remains that the petitioner was sounded by
the CJI for the first time on 5.1.81 over the telephone.
-
D The petitioner states that he explained to the CJI that his
mother was seriously ill and bed-ridden and was not in a position
to be moved and added that if his transfer was insisted upon, he
might be compelled to resign. The statement is to be found in para
8 of the petitioner's first affidavit. This fact is admitted by the
E CJI in para 2(h) of his counter-a::!idavit which runs thus:

"It is true that Shri K.B.N. Singh told me over the
telephone that his mother was bedridden and was not in a
p0sition to go with him to Madras."

F The CJI however denies that the petitioner told him of any
other personal circumstance by reasons of which he was unable to go
to Madras. We will accept this statement of the CJI also in preference
to the statement made by the petitioner. The CJI admits that the
petitioner had indicated his intention to resign if his transfer was
insisted upon but he cautioned him to consider the matter more
G thoroughly before taking a final decision. On this point also there
does not appear to be any controversy as there is a large measure of
agreement in the statements contained in the affidavits of the peti-
tioner and the CJI.
H ..
We then come to the finale of the drama which ii the most
important factor to determine a~ to whether or not tl1ere was an
S.P. GUPTA v. UNION (Fazal Ali, J.) 877

effective consultation as contemplated by Art. 222. Before however A
we deal with aspect of the matter we might mention that in the
present case the letter dated 7.12.80 sent by the CJI to the Law
Minister clearly shows that it was the CJI who had initiated the
proposal unlike in Seth's case where the proposal was initiated by
the President through the Law Minister. If this was the position
then the fqrmalities and the duties that the President had to comply B
were now to be observed by the CJI, that is to say, it was for the
CJI to consult the Judge concerned, consider his difficulties and then
come to a final conclusion. Further, it was also for the CJI to have
placed the entire facts, data, difficulties and viewpoints mentioned to
•• him by the petitioner, before the President. Even if the CJI was not
impressed by the difficulties expressed by the petitioner the materials c
and data given to him either 0rally or in writing had to be commui-
cated to the President because the possibility of the President taking
-- a different view cannot be reasonably excluded.
According to the averments made by the petitioner in para 8
of his &econd affidavit, he was not with the CJI for a period of more
than 15 minutes. He further denied that ·apart from his mother's D
• advanced age and illness no other facts were mentioned before the
CJI. According to him, he had told the CJI that being the eldest
son it was a sacred obligation to keep his mother with him and
having regard to the close attachment with her, he could not leave
her, with any of his brothers or other members of the family E
which was divided and partitioned. It may be relevant to note
that in para 9 of his first affidavit the petitioner merely stated
that he told the CJI of his acute and insurmountable personal
difficulties without detailing them. He also admits that he was with
the CJI at his residence on 8.1.81 for 10-15 minutes. He further
mentioned that the CJI might have received complaints against him F
and he wanted to remove the wrong impression created against him.
Para 9 of his first affidavit which contains details of the discussions
he had with the CJI, does not at all mention the further facts which
the petitioner has mentioned in para 8 of his second affidavit about
the sacred obligation, his mother's illness, inability of other members
• of her family to look after her. In view of this ommission we would G
accept the affidavit of the CJI which is fully corroborated by what
the petitioner himself stated in his first affidavit. Although we may
not go to the extent of saying that the subsequent statement of the
petitioner made in para 8 of his second affidavit was an afterthought
but in the circumstances it is sufficient to state that we would H
prefer to rely on the affidavit of the CJI as tbe subsequent facts were
not indicated in the first affidavit of the petitioner. On the other
878 SUPREME COURT REPORTS (1982) 2 s.c.a.

A hand, the CJI in para 3 of his counter-affidavit replying to the state·
ment of the petitioner that he (CJI) may have received baseless
complaints, averred that he tried his best to convince him (petitioner)
that he did not believe this bis (petitioner's) conduct was blame-
worthy and left him free to explain any matter which according to
him had created dissatisfaction about the working of the High Court.
B Thereupon the petitioner narrated to him that there were number
of persons inspired by commercial and other extraneous consi-
derations who tried to influence him (petitioner) administratively or
judicially. The en however assured him that certain persons were
exploiting their proximity to him which had created needless misun-
derstanding and dissatisfaction. These details, mentioned by the .'
c CJI, have not been contradicated or denied by the petitioner and
we fully accept what the CJI had said in para 3 of his conter-
affidavit.

As regards others matters, the CJI does say that other
issues were also discussed on the evening of January 8, 1981 but
D they had no bearing on the matters in issue. In para 4 of his
counter-affidavit the en admitted the statement of the petitioner,
made in para 10 of his first affidavit, that he did not convey his
consent to the proposal of his transfer, but the en added that he
was consulted about his transfer to Madras. The consultation re-
ferred to by the en is obviously to the telephonic talk on 5.1.81 and
the personal meeting between them on the evening of 8.1.81.

These are the points of convergence on which by and large
there does not appear to be any serious controversy and even if
there is any, we have preferredto rely on the affidavit of the CJI
as in the normal course of business we must, so long as the law
F
permits.
..
The most crucial averment by the CJI which forms the bul-
wark of the essential ingredient of effective consultation is to be
found in para 5 of his counter-affidavit which runs thus:
G
"I deny the statement in paragraph 13 of the affidavit
of Shri K. B. N. Singh that his transfer to Madras was
made without effective consultation between ·me and the
Government of India. There was full and effective consul-
tation between me and the President of India on the ques-
H
tion of Shri K. B. N. Singh's transfer from Patna to Madras
as the Chief Justice of the Madras High Court. Every
S.P. GUPTA v. UNION (Fazal Ali, J.) 879

relevant aspect of that question was discussed by me fully A
with the President both before and after I proposed the
transfer ...... Every relevant circumstance, including the
personal difficulty mentioned by Shri K. B. N. Singh
was considered by me carefully and objectively before
coming to the conclusion that he should be transferred
to Madras. I was personally aware since February 1980 B
that his mother was advanced in age and was not in a good
state of health."

So far as the first part of the affidavit is concerned that is a
pure question of law, viz. whether on the facts effective consultation c
was proved or not. The CJI categorically states that every relevant
aspect of the question was discussed by him fully with the President
both before and after he proposed the transfer. It may be noticed
that the name of · petitioner figures in the first proposal sent by the
CJI to the Law Minister on 7.12.80 wherein he had clearly recommen-
ded that the petitioner be transferred as CJ, Rajasthan High Court. D
This proposal was, therefore, not merely an information but a
regular proposal by which the CJI had recommended Justice
K.B.N. Singh to be transferred to Rajasthan. We have already
pointed out that between February 1980 and January 5, 1981 there
is no evidence at alL nor any allegation or avcrment either in the
affidavits of the petitioner or of the CJI to indicate that he had E
either orally or in writing ascertained the views of the petitioners
when he (CJJ) by his aforesaid proposal recommended the transfer
of Justice K.B.N. Singh to Rajasthan as Chief Justice. It must,
therefore, taken to be established that there was no discussion at
all nor any consultation between them when for the first time the
F
ball was set in motion through the proposal of recommendation sent
by the CJI to the Law Minister on 7.12.80. Even so we may not
attach much significance to this fact because this proposal ultima-
tely fell through and was substituted by a later proposal
sent on 20.12.80. In his Jetter dated 20.12.80 the CJI wrote
to the Law Minister that in view of the fact that a vacancy G
would occur in the office of CJ, Madras High Court he proposed
that Justice K. B. N. Singh be transferred as CJ, Madras High
Court. This is the proposal which is in dispute in the present
case. It is common ground that even between 7th and 20th December
1980, there was no talk or consultation between the petitioner and H
the CJI. The position is that until 5.1.81 the petitioner was not given
880 SUPREME COURT REPORTS (1982] 2 s.c.R.

A any idea or inkling about his being transferred to Madras High
Court. Admittedly, for the first time the petitioner was informed
by the CJI over the telephone on 5.1.81. This was followed by a
meeting and detailed discussion by the CJI with the petitioner at the
former's residence in Delhi on 8.1.81 at about 8.00 p.m.

B
The fact before the proposal recommending the transfer of
Justice K.B.N. Singh to Rajasthan or to Madras, there was no con-
sultion between the CJI and the petitioner, conclusively proves
one of the first ingredients of the consultative process, viz. con-
sultation by the CJI with the proposed transferee should always be • •
c held as a first step towards making the consultation constitutionally
effective was not observed. This was held, as extracted above, by
CJI in Seth's case where he has gone to the extent of holding that if
there is no such consultation before the transfer, then the transfer
becomes unconstitutional. This, therefore, appears to be the first
-
D constitutional infirmity in the consultative process as contemplated
by Art. 222.

This now brings us to January 8, 1981 when there was a full
discussion between the petitioner and the en. We shall accept the
statemennt of the en made in bis counter-affidavit, in toto that he
E
had discussed the matter threadbare with the petitioner and consi-
dered his difficulties. This limb of the consultative process was no
doubt fully complied with as required by the constitution.

Then we come to the third aspect of the consultative process.
F According to the en he has met the President and discussed every
aspect of the matter, disclosed to him by the petitioner. Unfortuna-
tely, the en does not disclose the exact constitutional authority with
whom he had discussed these matters, although it,,would have been
much better if he had done so and that would have put the entire
matter beyond any controversy. On this point, Dr. Singhvi as also
G
Mr. B.e. Ghosh appearing for one of the petitioners vehemently
contended that as the CJI was making a statement in an affidavit
before a court of law, there was no justification for him to use
the word 'president' and he should have mentioned the name
H of the exact authority with whom he had disscussed the matter,
failing which this part of the affidavit should be rejected as being
vague. Having regard to the very high position that the CJI
S.P. GUPTA v. UNION (Fazal Ali, J.) 881

occupies, his word is entitled to the greatest weight and respect, we A
would draw all presumptions within the bounds of law in favour of
the CJI and presume that by using the word 'President', the CJI
obviously intended the constitutional authority, who was being con-
sulted generally before or after the proposals for transfers were made
viz., the Law Minister. We will also go even to the extent of holding
that perhaps he may have had some discusdon with the Law Minister B
also. What facts he may have revealed and. in what way he put
forward the point of view of the petitioner we are not able to say,
because the affidavit of the CJI is absolutely silent on this point.
"' . Giving however the widest possible connotation to the words used
oy the en. viz., 'every relevant aspect of question', would include
all the personal difficulties which were mentioned to him by the c
petitioner, we are yet faced with another serious difficulty.

In Seth's case the CJI has himself clearly held that deliberation
is the quintessence of consultation. Thus, according to the CJ! bim- 0
sel f even if he had disclosed or placed all the materials before
the Law Minister, he ought to have been given sufficient time for deli-
beration over the matters so as to be able to make up his mind,
whether to agree or disagree with the CJI, and to advise the President
accordingly. It may be that the personal difficulties may not have
weighed with the CJI but the possibility of the Law Minister being E
impressed by them cannot be excluded. But as things stood, we·
\•·
find that the Pri .ne Minister had already signed the file relating to
transfer on 9-1-81 and it can safely be presumed that the file must
have been sent by the Law Minister to the Prime. Minister either
sometime in the morning of 9th or late at night on 8th. This would
leave no time at all to the Law Minister or the Prime Minister to F
deliberate on the various personal issues raised by the petitioner in
his discussion with the CJI. Indeed, if prior to sending the formal
propJsal recJm.nending the transfer of the petitioner the en would
1
have taken the precaution of as certaining his views there would have
been sufficient time for the Law Minister or the President to
deliberate. G

It was strongly urged by the petitioner that from the statement
of the Law Minister produced by the Solicitor-General before us it
would appear that no minutes were recorded and the CJI had only H
mentioned to the Law Minister about his proposal to transfer the
882 S1JYR£ME COURT REPORTS (1982) 2 s.c.R.

A petitioner. Thus, rrom the facts it should be inferred that there was
no discnssion between the en and the Law Minister about the per-
sonal difficulties of the petitioner. It is true that from the file
prcjuced before us no minutes seem to have been recorded about
the discussion which the CJ[ had with Law Minister either on the
8th night or before that but that by itself would not exclude oral
B discussions having taken place after the detailed talk the en had
with the petitioner on the evening of Stb. This, therefore, does not
·advance the case of the petitioner any further.

· Apptyllig the ratio of Chandramouleshwar' s case {supra) to the
c facts of this case, the position may be stated thus-here the CJI
made a proposal for transfer of the petitioner to Madras but this
proposal was not communicated to the petitioner who may· have
had a counter-proposal in his mind which also was not communicated
to the President who was the person who decided the matter
. finally.
D
Thus, even though we may not disbelieve every letter and
every word contained in the counter-affidavit of CH and give him
the iull benefit of all possible legal presumptions, we come to the
inescapable ccnclusion that the constitutional requirements of an
effective conclusion have not been proved beyond reasonable doubt
E inasmuch as-

(l) the petitioner was not consulted before the fot1Dal
proposal, recommending him for transfer to Rajasthan
and then to Madras, was sent to the Government.

(2) that there is no mention at all in any of the proposals
dated 7·12-80 or 20-12-80 regarding any discussion
having been held with the petitioner.
\
(3) that there is nothing to show that the President or the
concerned constitutional authority had sufficient time
to deliberate over the pros and cons of the transfer
particularly in view of the difficulties placed by the
petitioner,

H (4) the case squarely falls within the ratio laid down in
Clumdramouleshwar' s case (supra) discussed above
which had been approved by the en himself and
S.P. OUPTA v. UNION (Faza/ Ali, J.) 883

Krishna Iyer J. and one of us (Fazal Ali J.) in Seth's A
case.

In view of the circumstances discussed above the consultative
process as contemplated by Art. 222 is clearly vitiated which renders
the order impugned passed by the President ·constitutionally B
invalid.

We must hasten to add that we have taken the greatest possi- '
ble care to see that no finding is given or observations made by us
which may either directly or indirectly cast any kind of aspersion on
the recitals in the counter-affidavit of the CJ I nor is there any cir-
c
cnmstance proved in this case which may amount to such an asper·
sion. As already observed by us we have accepted the affidavit of
the CJI in toto giving the due respect that it deserves. We have
decided this case purely on the constitutional infirmities present in
the consultative process and that too on the basis of the observa·. D
tions made and the decision given by. the CJI himself in Seth's
case.

The last point of law that was urged by the petitioner was that
the transfer was constitutionally invalid because one of the essential ""
E
conditions of Art. 222 had not been fulfilled in this particular case.
,~,

· It was argued that Art. 222(2), which is extracted below, requires a
Presidential Order by which the transferee Judge would be entitled
to such compensatory allowance as the President may by. order
fix :
F
· "222(2). When a judge has been or is so. transferred,
he shall, during the period be serves, after the commence-
ment of the Constitution (Fifteenth Amendment) Act, 1963, ·
as a judge of the other High Court,. be entitled to receive in
addition to his salary such compensatory allowance as may G
be determined by Parliament by law and, until so deter-
mined, such compensatory allowance as the President may
by order fix.''

H
It was contended that this mandatory provision· of Art. 222 (2)
·has not been complied with, w~. however, find absolutely no substa·
884 SUPREME COURT REPORTS (1982] 2 S.C.R,

A nee in this argument because while A rt. 222 (2) does require that on
transfer from one High Court to another, compensatory allowance
may be paid; it does not state that the Presidential Order should issue
pari passu the order of transfer. Such an order could follow transfer.
Moreover, as the petitioner never cared to join his new assignment
and before he could do so the writ petitions were filed and proceed-
B ings were stayed, there was no occasion for the President to pass the
order directing compensatory allowance to be paid to him until the
validity of the transfer of the petitioner was finally adjudged by this
Court. This is not a case where a judge or a CJ having been trans-
ferred had joined his new assignment and started working and still
no Order of compensatory allowance was made by the President. •
c
Before finally closing this Chapter we might mention that
another reason given by Brother Venkataramiah J. for upholding the
impugned Order was that under S. l 14(e) of the Evidence Act there
is a pres um pt ion that official acts must be deemed to have been
D actually done, this Court must presume that if there was any infirmity
in the consultation the same must have been complied with. With
great respect to our learned Brother, we are however unable to agree
with this argument. The presumption applies only where there is no
challenge to the constitutional validity of an official act. Where an
act is found to be per se unconstitutional, the question of raising a
E presumption does not arise because once it is held, as found in this
case, that the consultation did not fulfil the constitutional require-
J'
ments, the order impugned would become void ab initio and 1non.est.

We are fortified in our view by a decision of this Court in
F Collector of Customs, Baroda v. Digvijaysinhgji Spinning & Weaving
Mills Ltd.(1 ) where Subba Rao J. (as he then was) made the follow-
ing observations :-

"The High Court in effect drew a presumption in
favour of the regular performance of an official act. But
G this presumption is only optional. In a case like this when
the validity of an order depends upon the fulfilment of a
condition, the party relying upon, the presumption should
at least sl,ow that the order on the face of it is regular and
is in conformity with the provisions of the stat\lte."
H
(1) (1962] 1 SCR 896.
. '
S.P. GUPTA v. UNION (Fazal Ali, J.J 885

An identical view was taken in an earlier case repoted in AIR A
1943 FC 75. In the instant case in view of our clear finding that
the essential ingredients of effective consultation as required by
Art. 222 not being proved, the question of drawing a presumption
under S. 114(e) of Evidence Act does not arise.

B
For the reasons given above we hold that the Order of the
President transferring the petitioner, Justice K.B.N. Singh from Panta
to Madras is constitutionally invalid and we hereby quash the notifi-
cation dated 19-8-81 passed by the President.

c
The fact that the Order of transfer in this particular case has
been held to be invalid and quashed, will not preclude the Govern-
ment from making fresh orders of transfers after formulating a
general policy of transfers on the lines and the manner indictated by
us so that every High Court has a Chief Justice from outside and at
.. • the initial stage one-third of the strength of the Judges is recruited
from outside the State.
D

Thus, the position is that while I have expressed my separate
opinions on Art. 222 (T.C. No. 22/81), the Circular and the policy
of Transfer, question of Privilege and Transferred Case No. 24/81 E
and have made some observations on other questions also
but subject to the observations made I would entirely agree with
Brother Bhagwati, Desai and Venkataramia'1 JJ. in respect of Arts. 217
and 224, on primacy with Brother Desai J. and regarding Kumar's
case (T.C. No. 20/81) and the question of locus with Brother
Bhagwati J. F

The result is that petitions ansmg out of transferred cases
Nos. 19, 20, 21 and 22 of 1981 are accordingly dismissed. Writ
Petition No. 274 of 198 l, Transferred Case Nos 2 and 6 of 198 ! are
accordingly disposed of. Special Leave Petition (civil) No. 1509/81 is
G
dismissed as withdrawn.

Petitions arising out of Transferred. case No. 24/8 l are allowed
but without any order as to costs., H
886 SUPREME COURT REPORTS [19821 2 s.c.R.

A TULZAPURKAR, J. On March 18, 1981 Hon'ble Shri P. Shiv
Shankar, Minister for Law, Justice and Company Affairs, Govern-
ment of India addressed the following Circular letter to the (I)
Governor of Punjab and (2) Chief Ministers (by name) (except
North-Eastern States) :

B "D.O. No. 66/10/81-Jus Minister of Law,
Justice & Company Affairs,
India, New Delhi-11000 I.
March 18, 1981

My dear,
c
It has respeatedly been suggested to Government over
the years by several bodies and forums including the States
Re-organisation Commission, the Law Commission and
various Bar Associations th at to further national integration
and to combat narrow parochial tendencies bred by caste,
D
kinship and other local links and affiliations, one third of
the Judges of a High Court should as far as possible be from
outside the State in which that High Court is situated.
Somehow, no start could be made in the past in this direc-
tion. The feeling is strong, growing and justified ti. at some
E effective steps should be taken very early in this direction.

2. In this context, I would request you to-

(a) obtain from all the Additional Judges working in the
High Court of your State their consent to be appointed
F as Permanent Judges in any other High Court in the
country. They could, in addition, be requsted to name
three High Courts, in order of preference, to which
they would prefer to be appointed as Permanent Judges;
and

G (b) Obtain from persons who have already been or may in
the future be proposed by you for initial appointment
their consent to be appointed to any other High Court
in the country along with a similar preference for three
High Courts.
H
3. While obtaining the consent and the preference of
the pers011~ )ll\:ntiOQ\lQ ip paragraph 2 above, it may be
~.i>. OUPTA v. UNI~N (Tuizapurkar, i.)
made clear to them that the furnishing of the consent or the A
indication of a preference does not imply any commitment
on the part of Government either in regard to their appoint-
ment or in regard to accommodation in accordance with
the preferences given.
· 4. I would be grateful if action is initiated very early B
by you and the written consent and preferences of all Addi-
tional Judges as well as of persons recommended by you
for initial appointment are sent to me within a fortnight of
the receipt of this letter.

5. I am also sending a copy of this letter to the
Chief Justice of your High Court.
c
With regards,

Yours sincerely,
Sd/-
(P. Shivshankar)" D
It further appears that prior to as well as after the issuance of
the aforesaid Circular letter.by the Union Law Minister on March 18,
1981, in several High Courts, including High Courts of Allahabad,
Bombay and Delhi. the President · of India acting under Art. 224
granted short-term extensions for three months, six months or a E
year to sitting Additional Judges whose initial terms were about to
expire but since such. short-term extensions became a frequent
phenomenon. particularly after the issuance of the aforesaid Circular
letter, it created great consternation in the legal and judicial circles
in the country. These two actions of the Union 'Government, namely,
the issuance of the Circular letter dated March IS, 1981 and the F
grant of short-term extensions led to legal action being taken
challenging the same which is the subject matter of the instant
adjudication.

Having regard to their high position as a consitutional func-
tionary all the sitting Additional Judges in various High Courts,
G
though agitated by these two actions of the Union Government
understandably felt reluctant to adopt legal steps against the same
(barring the exception of Mr. Justice S. N. Kumar who as
a party-respondent to the writ petition filed in Delhi High H
Court has actively supported the challenge to these actions and
has also challenged the further action of dropping him
SUPREMB COURT REPORTS (19821 2 s.c.A.
A out-right that occurred during the pendency of the pettition) but
the legal profession which was vitally interested in the maintenance
of an indepenent and fearless Judiciary-with its concomitant power
of judicial review-a basic feature of our Constitution and also a
necessary postulate for the legal profession, felt terribly disturbed
and thought of taking action challenging the same and the sequel
B was the filing of four writ petitions one in Allahabad High Court, two
in Delhi High Court and one in the Bombay High Court, all of which
were transferred to this Court, being Transferred Case No. 19 of 1981
Shree Gupta's Writ petition No. 4845/81 in the Allahabad High
Court), Transferred Case No. 20 of 1981 (Shri Tarkunde's Writ Peti- ..
tion No. 882/81 in Delhi High Court), Transferred Case No. 21 of
c 1981 (Shri Kalra's Writ Petition No. 636/81 in Delhi High Court) and
Transferred Case No. 22 of 1981 (Shri Iqbal Chagla's Writ Petition
No. 527/81 in the Bombay High Court). Excepting the Transferred
Case No. 21 of 1981 where only short term extensions are challenged,
in the other three cases both the actions have been challenged.

According to the petitioners both the aforesaid actions of the
D Union Government forming part of a Scheme constitute a direct
attack on ihe independence of the Judiciary, which is a basic
feature of our Constitution, and being .i~legal and unconstitutional
are liable to be and deserve to be quashed or struck down. As
regards Circular letter it is pointed out that it is in two parts; (i)
E in relation to sitting Additional Judges in all the States of India(ex-
cept Noth-Eastern States) it seeks to obtain their consent in substa-
nce to their transfer as Permanent Judges to ·states other than their
-
own and(ii)in relation to the proposed appointees(either from the Bar

F
or services) for initial appointment (either as Additional or Perma-
nent Judges) it seeks to obtain their consent for being appointed ..
to any other High Court in the country '.meaning other than their
home-State High Court); and in this behalf it also seeks from them
their choice by naming three High Courts ia order of preference to
which they would prefer to go; and this is being done with
a view to implement the policy of having one-third of the Judges
G of a High Court, as far as possible, from out side the State in
which that High Court is situated on grounds of furthering national
integration and combating narrow parochial tendencies, bred by
caste, kinship and other local links and affiliations. According
to the petitioners this Circular letter seeks to effect, in substance
H
and reality, a mass transfer of sitting Additional Judges as also of
S.1'. GUPTA v. UNION (Tu/zupurkar, J. ) 889
the proposed appointees based on a policy decision unilaterally taken A
by the Law Minister/Uni0n Government and as such violates the
requirements of Art. 222 (1) of the Constitution as laid down by this
Court in Shankal Chand Seth' s(1 ) case inasmuch as such mass trans-
fers on alleged grounds of policy are outside its scope and further
it reduces the efficacy of the consultation with the Chief Justice
of India contemplated therein to a meaningless formality B
by presenting a transfer proposal to him as a fait accompli, the same
being backed by the consent of the concerned Judge or the proposed
appointee to his transfer. It is also contended that the Circular
Jetter is illegal as being without authority of law. Thirdly, as far
as the sitting Additional Judges are concerned, it is contended that.
inasmuch as para 3 of the Circular letter makes it clear that even c
if consent is given and preference is indicated there is no commit-
- ment on the part of the Government either to appoint them as
Permanent Judges or accept their preference, the said letter con-
tains, by implication, a threat, to them that if they do not give
their consent they will not be either continued as Additional
Judges or confirmed as Permanent Judges, the said statement in D
para 3, by necessary implication, also contains a threat that the
Government would watch their performance in matters to which the
Government, Government Bodies and Corporations are parties be-
fore them and would appoint them as Permanent Judges only if
they were found to toe the Government line and as such it constitutes
gross interference with administration of justice and is subversive of E
judicial independence; moreover, the consent is sought to be obtained
under threat, coercion and duress and also in advance and in
abstract and the same would be no consent in law. As regards the
proposed appointees it introduces any additional qualification for
being appointed as additional or Permanent Judge not warranted by
the Constitution. Fourthly, it is contended that the said statement in F
para 3 of the Circular letter also shows that there was no justi-
fication for writing the said letter at all and the same was written
mo/a fide for a collateral purpose, namely, to by-pass Art. 222 and
confront the Chief Justice of India with a fait accompli when the
proposal to transfer such Judge would be forwarded to him; fur-
ther to exercise the power of appointing additional Judges not for G
the purpose for which that power has been conferred but for the pur-
pose of carrying out the so-called "policy" o the Goverment is
also ma/a fide in the sense that th: power is being exercised for a
collateral purpose foreign to the purpose indicated in Art. 224.
Fifthly, the petitioners have contended that the Circular letter, under H
fl) [1978] ISC R 423.
890 SUPREME COtiRT REPORTS [1982j 2 s.c.ii.
which absolute power and discretion is claimed to the effect that
A there is no obligation on the part of the Union Government to con-
tinue the sitting Additional Judges after the expiry of their initial
term notwithstanding pendency of arrears of work or to make
them permanent as and when permanent vacancies become avail-
able and to appoint different persons for different periods as
Additional Judges in the vacancies of sitting Additional Judges
B after their initial terms have expired, is a clear abuse
of the power conferred by Art. 224 (I) of the Constitution, because
the power being purposive is coupled with a duty to exercise the
same when the conditions precedent mentioned in the provision +
exist and the Circular letter which claims such absolute power is
violative of the provisions of Art. 224; in any case the course
c proposed in the said Circular letter in exercise of such absolute
power claimed thereunder is contrary to the established constitu-
tional convention and practice (specified later) that has grown over
the years in the matter of appointment of A,dditional Judges and
--
confirming them as Permanent Judges and, therefore, bad in law
inasmuch as Art. 224 (I) has been interpreted and worked having
D regard to the said convention and practice. Sixthly, the petitioners
have contended that the Circular letter is violative of Art. 14 inas-
much as it makes invidious discrimination against those who would
be refusing to furnish their consent as they will suffer a disadvan-
tage, while those who would be furnishing their consent will be at
an advantage and even within the class of those who would be
E furnishing their consent it gives to the Government unfettered and
unguided power or discretion to pick and choose i. e. select some
for being shifted to High Courts other than their home State
High Courts and to retain and appoint others in their home-
State High Courts-which power can be exercised either by
way of punishment or by way of favouritism; and in this
F behalf reliance is placed on the Law Minister's statement made
in Parliament in response to a Calling Attention Motion by
some Hon'ble Members on 16th April, 1981 to the effect "it is
not the intention of the Government _to appoint all Additional Judges
to outside Courts". Without prejudice to these contentions, it is lastly
G contended by the petitioners that in the appointment of Additional
Judges of one High Court as Permanent Judges of another High
Court or in the appointments of the Members of the Bar practising in
one High Court as Additional or Permanent Judges of another High
Court pursuant to the consent obtained under the said Circular
H letter. the consultation with the Governor of that other State and
particularly with the Chief Justice of that other High Court would
be illusory and an empty formality and as such the said Circular
U>, GUPTA v. UNION (Tulzapurkar, J.) Mt

letter is violative of the . Art. 217 of the Constitution. For these A
reasons the petitioners have prayed for the quashing of the said
Circular letter as also of the consent, if any, obtained thereunder.
as being illegal, unconstitutional and void and its withdrawal, non.
use and non implementation by the Government.

As regards short·term extensions for three months, six months B
or a year granted to sitting Additional Judges upon the expiry of
their initial term, which have become a frequent phenomenon after
the issuance of the Circular letter dated March 18, 1981, the
+ petitioners have contended that such short·term extensions are
directly subversive of the independence of Judiciary and not contem-
plated by the Constitution. According to the petitioners the power c
to appoint an Additional Judge "for such period not exceeding two
... years as the President may specify" in Art. 224(1) has invariably
been exercised by appointing Additional Judges initially for a period
of two years, which has come to be regarded as the 'normal term',
that when the said period is about to expire if there is no vacancy
of a Permanent Judge in that Court it has been the practice to
D
continue such Judges for a further term of two years and if a perma-
nent vacancy arises to confirm the seniormost among them as a
Judge of that High Court. The petitioners have contended that
such a constitutional convention and practice has grown over the
years and the provisions of Art. 224(1) have been worked in accor-
E
dance with such convention and practice. It·is further pointed out
that when a member of the Bar is appointed as an Additional Judge
of a High Court an undertaking is usually given by him to the Chief
Justice that if and when a .Permanent Judgeship of the Court is
offerred to him he will accept it but if he declines to do so he will
not practise before that High Court or any Court or Tribunal subor- F
dinate to it; (at any rate, such an undertaking is obtained in the
Bombay High Court), the postulate of such undertaking is that an
Additional Judge appointed from the Bar should not be allowed to
revert to the Bar and, far from being dropped, will be offered a
permanent vacancy as and when it arises in that court. In other
words a member of the Bar who accepts the appointment of G
an Additional Judge has legitimate expectation that he will
be confirmed as Permanent Judge of that High Court when a
vacancy occurs and in the past he has been confirmed except in
the rarest of cases. According to the petitioners the power claimed
under Art. 224(1) not to continue the Additional Judge, even if H
temporary increase in the Court's business persists or pendency of
arrears justifies such continuance, after the expiry of the initial term
892 SUPREME COURT REPORTS. [1982] 2 s.c.R.
A
and not to make him permanent even if a vacancy of permanent
post occurs and to appoint another person as Additional Judge by
ignoring the legitimate expectancy of the sitting incumbent whose
initial term has expired, apart from involving an unjustified departure
from the well recognised and established practice, amounts to breach
B
of faith with the concerned Judge and further to ask such Additional
Judge who has given such undertaking to agree in advance to a trans-
fer (or even to accept fresh appointment) to other High Courts as a
Permanent Judge also involves similar breach of faith . with that
Judge; such departure and breach of faith amounts to a clear abuse
c of power and the purported exercise of the power in that manner
would be illegal and void. So also the claim made by the Govern-
ment that Art. 224(1) only fixes the maximum period of two years
at a time, tbat the Article does not limit the discretion of the
Government in the matter of the period for which an Additional
Judge can be appointed except in regard to the ceiling of two years,
D and that the appointment can be for a shorter period and that period
is not justiciable is untenable in law and clearly wrong because,
apart from involving an unjustified departure from the well recog-
nized and established practice, it introduces an element of insecurity
of tenure having serious repercussions on the independence of
Judiciary and also undermines people's confidence and faith in it.
E
It may be stated that the petitioners have cited specific instances
of Additional Judges having been granted short·term extensions for
three months, six months or a year in Allahabad, Bombay and Delhi
High Courts and have also cited instances of Additional Judges
being dropped in the purported exercise of such absolute power
F claimed under Art. 224( I). Grievance has specifically been made in
respect of the individual cases of three Judges of the Delhi High
Court, (a) Mr. Jmtice 0.N. Vohra (as he then was), (b) Mr. Justice
S.N. Kumar (as he then was) and (c) Mr. Justice S.B. Wad. It is
pointed out that these three Judges were initially appointed with
G effect from 7.3.1979 as Additional Judges in the Delhi High Court
for a term of two years but on the expiry of the said initial term
each one of them was granted a short-term extension of three months
with effect from 7.3.1981 and at the expiry of their said period of
three months on 6.6.198 l the first two have been dropped out-right
H and Mr. Justice Wad has been granted an extension for a further
period of one year with effect from 7.6.1981. Such short-term
extensions for three months granted to all the three after the expiry
of their initial term of two years, as also the short-term extension of
S.P. GUPTA v. UNION (Tulzapurkar, J.)

one year granted to Justice Wad with effect from 7.6.1981 have been A
challenged as being illegal and unconstitutional and the out-right
dropping of the first two Judges has been challenged also on the
ground of malafides both legal and factual in Transferred Case No.
20 of 1981; however, relief is claimed only in respect of the dropping
of Mr. S.N. Kumar and not of Mr. O.N. Vohra.
B
Jn the context of their challange to short-term extensions the
petitioners have submitted that Art. 216 of the Constitution casts a
primary obligation upon the President mandatorily to provide
adequate strength of Permanent Judges to cope with the normal
business in every High Court so as to ensure its disposal within
reasonable time and to review such strength from time to time so c
that arrears do not accumulate and justice to litigants is not unduly

- delayed, while the power to appoint Additional Judges under Art.
224( I) (a provision substituted in its present form by the Constitution
Seventh Amendment Act, 1956) and the exercise thereof are only
dependent upon the fulfilment of either of the two conditions mentio·
ned therein, namely, (a) temporary increase in the business of a D
High Court or (b) arrears of work therein; and it is only upon the
fulfilment of either one or the other or both the conditions in a High
Court that the President can appoint duly qualified persons to be
Additional Judges of that Court for such period not exceeding two
years as he may specify, but if the said conditions are not fulfilled
and the objective facts unmistakably demonstrate that the increase E
of business is not of a temporary character but is a permanent
increase every year or that the arrears have increased and accumula ·
ted to an appreciably disturbing level with no reasonable prospects
of substantially reducing the same over a period of years, the Presi-
dent cannot resort to Art. 224( 1) but has to increase the permanent
strength by making permanent appointments under Art. 217. In
F
any case Additional Judges cannot be appointed while keeping per-
manent posts vacant as is happening at present frequently. The
petitioners have further submitted that in view of undisputed data of
the regular increase in the normal business of almost all High Courts
and mounting arrears therein-a reality being within the knowledge G
of the President-the decision to keep a large number of sitting
Judges as Additional Judges would be arbitrary and unconstit1.1tional
and a clear case exists for declaring them to be deemed to have
become permanent or directing the President to make them
permanent by appropriately increasing permanent strength in the H
concerned High Courts and this Court should pass appropriate
orders in this behalf.
SUPREME cotJR.t REPORTS [19&21 2 s.c.it.
A The contesting respondents (who are mainly the Union of India
and the Union Law Minister) through Counter-Affidavits filed by
Shri K.C. Kankan, Deputy Secretary, Department of Justice,
Ministry of Law, Justice and Company Affairs, have resisted the writ
petitions on several grounds. In the first place it is contended that
the petitioners (barring Shri S.N. Kumar who as party-respondent in
B Transfer Case No. 20 of 1981 has supported the challenge and
sought relief) who are legal practioners have no direct interest in the
subject matter of the writ petitions and cannot be regarded as the
persons aggrieved by the impugned actions of the Government and
therefore have no locus standi and as such the petitions are liable to
c be dismissed. Secondly, it is contended that though Shri S.N.
Kumar could be regarded as a person aggrieved by the impugned
actions of the Government, he being a sitting Additional Judge from
whom consent under the Circular letter was sought and was granted
a short-term extension, his tenure having come to an end by effiux
--
of the period for which he was appointed he is no longer concerned
D with the impugned Circular letter nor with the short-term that had
been granted to him and after he has ceased to be a Judge of the
Delhi High Court he does not have any vested or enforceable right
against the President or the Union Government in the matter of
either continuation as an Additional Judge or appointment as a
Permanent Judge and, therefore, bis challenge as a party-respondent
E to the governmental action is not maintainable; in other words,
even on the assumption that the Government's actions are not
warranted by the constitutional provisions, the invalidity or uncons-
titutionality thereof does not give any corresponding right to him to
sustain the petition; in any .event the tenure fixed by the warrant of
I
his appointment as an Additional Judge having expired Sbri S.N.
F Kumar has no enforceable right either to continue as an Additional
Judge or to be appointed as Permanent Judge inasmuch as the power
to appoint a person a Judge of a High Court is discretionary with the
President and such discretion cannot be controlled by judicial review
by issuance of a mandamus and he is not entitled to any relief.

G As regards the impugned Circular letter it is contended that it
does not deal with transfer of sitting Additional Judges or of the
proposed appointees from one High Court to another nor does it
seek to obtain consent for such transfer but in relation to sitting
H Additional Judges it seeks to obtain their consent for being appoin-
ted as Permanent Judges to another High Court and in relation to
the proposed appointees it seeks to obtain their consent for their
~.t>. GUPTA v. UNION (Tulzapurkar, J.) 895

initial appointment (either as Additional or Permanent) to a High A
Court other than their home-State High Court and the action pro-
posed to be taken thereunder is for purposes of Art. 217 of the
Constitution; it is the case of the contesting respondents that when
an Additional Judge on the expiry of his initial term or extended
term is appointed as a permanent Judge it is a fresh
appointment by warrant under Art. 217 and there is no question B
of any transfer being involved in such a case and obviously in the
case of a proposed appointee (either from the Bar or services)
when he is being initially appointed there is no question of any trans-
fer in his case either; in othar words, according to the contesting
respondents Art. 222(1) of the Constitution is not attracted at all and
as such there is no question of the Circular letter violating the c
- requirements of the said article, much less there being any intention
on the part of the contesting respondents either to by-pass Art.
222(1) or to reduce the efficacy of consultation of the Chief Justice
of India contemplated therein in any manner. It is emphatically
denied that any mass transfers or individual transfers based on any ()
policy decision are being effected under the impugned Circular letter.
It is denied that the Circular letter is intended to affect the indepen-
dence of the judiciary in any manner or that the Circular letter
contains any threat of the type suggested or at all to the sitting
Additional Judges while seeking their consent. It is also denied that
the consent that is sought to be obtained under the Cireular letter is E
being obtained under threat, coercion or duress or that the same is
in abstract and it is pointed out that for making fresh appointments
I of sitting .Additional Judges, ·after the expiry of their term, to another
High Court and for making initial appointments of the proposed
appointees to a High Court other than their home-State High Court
their consent would naturally be required under Art. 217 and it is F
such consent that is being obtained from them under the Circular
letter. It is further denied that the statement contained in para 3 of
the Circular letter shows that there is no justification for writing the
.,. said letter at all or that the same was written ma/a fide for collateral
purposes as suggested or otherwise; it is pointed out that the legal
and constitutional position even before the sending of the Circular G
letter was that there was no commitment on the part of the Govern-
ment to appoint every Additional Judge as the Permanent Judge and
the true purport of para 3 of the said letter is that the furnishing of
consent will not change that position and will not now imply a
commitment and it was necessary to make the legal and constitutional H
position clear lest a different impression was created as also to avoid
any kgal arguments based . on the theory of promissory estoppel.
896 SUPREME COURT REPORTS [19821 2 s.c.11.

A According to the contesting respondents it is for the purpose of
implementing the policy of having one-third of the Judges of a
High Court from outside that the Circular letter has been issued and
it is a preliminary step in the direction of obtaining and collecting
data and information from persons who would be willing to get
appointed in other High Courts so that such information could be
B made available to the Chief Justice of India as also to the State
authoritie> and the Chief Justices of .the concerned High Courts for
effective consultation as envisaged in Art. 217 and as such the
Circular letter is perfectly legal and within the authority of Jaw. It ·•
is denied that the Circular letter confers unbridled or unguided
power on the Executive to pick and choose certain Judges for being
c transferred or shifted to other High Courts; it is pointed out that
such a contention is wholly mis-conceived for two reasons, namely,
that the letter does not speak of transfers at all but appointments to
other High Courts and secondly it cannot arm the Executive with
-
any powers, for whatever powers the Executive has are derived
from the provisions of the Constitution and that the Law Minister's
D statement in the Parliament on 16th April, 1981 has to be understood
in the context in which it was made. It is further denied that in
appointing Additional Judges of one High Court as Permanent
Judges of another High Court or in appointing Members of the Bar
practising in one High Court as Additional or Permanent Judges of
another High Court pursuant to the consent given under the Circular
E
letter, the consultation with the Governor of that other State or with
the Chief Justice of that other High Court would become illusory or
an empty formality because the data and particulars of the person
proposed to be appointed collected from other sources can and would
I
be made available to the Governor of that other State as also to the
Chief Justice of that other High Court and it is not the requirement
F
of Art. 217 that the constitutional functionaries mentioned therein
should be aware of such data and particulars of their personal know-
ledge; in fact, even the Chief Justice of the home-State High Court,
it is conceivable, may not have personal knowledge in that behalf ...
and may have to collect the data and particulars from other sources.
In other words, it is contended that if the data and particulars of the
G
person proposed to be appointed is collected by a Chief Justice
from other sources, his advice does not become illusory or an empty
formality and as such the Circular letter cannot be said to be vio-
lative of Art. 217.
H
As regards short-term extensions for three months, six months,
of il yeilr grilnted to sitting Additional Judges upon the expiry of the
!l.ti. otJtitA \i, tJNI01'1 (Tulzapurkar, J.) 891

Initial term and the other submissions made by the petitioners in A
regard to the President's powet undet Arts. 216, 211 and 224(1) the
contesting tespondettt!i have relied Upon the provisions of these Arti-
cles ror their true and proper construction; according to them
reading Arts. 217(1) and 224(1) together the position in law is clear
that no Additional Judge has any legal or constitutional right to be
continued as an Additional Judge on the expiry of his initial or B
extended term or to be made a Permanent Judge even if a vacancy
occurs in a permanent post in his High Court. Strictly speaking,
the tenure of an Additional Judge is fixed by the warrant of his
appointment and on the expiry of the period mentioned in the
warrant he ceases to be a Judge of the High Court and in either
extending him for a further term as an Additional Judge in the c
same High Court or in making him permanent in the vacany in a
- permanent post, a fresh appointment is involved, and the consul-
tative process envisaged in Art. 217(1) is attracted; in other words
he is in the same position as a proposed appointee for initial
appointment and the same position obtains if it is intended to
make him a Permanent Judge in some other High Court. It is D
further contended that the provisions of the concerned
Articles being very clear and unambiguous no convention or
practice that might have grown in the matter of appointment of
Additional Judges and confirming them as Permanent Judges (which
is denied) can alter or affect the interpretation of the said provisions.
Even an undertaking of the type indicated 'by the petitioners if obtain- E
ed from a member of the Bar while appointing him as an Additional
Judge cannot affect the true meaning and construction of the concer·
ned provisions. It is further contended that assuming (without
admitting) that an Additional Judge of a High Court gives the kind
of undertaking mentioned by the petitioners, particularly of the type
that is said to be usually obtained from him in the Bombay High
F
Court, no illegality takes place in asking him if he would agree to be
appointed as a Permanent Judge in any other High Court, as he shall
be so appointed only in pursuance of his consent. It is further
contended that if on true construction of these two Articles it is clear
that an Additional Judge has no vested legal or constitutional right
G
to be continued or to become permanent then it must be open to the
President to appoint different persons, who are fully qualified, to
be Additional Judges during different periods for disposing of
the arrears, though such appointments will have to be necessari-
ly made in accordance with the constitutional requirements of Art.
217. The contesting respondents have contended that the volume
H
of work in a High Court is of rc;)c;vl111ce in deciding whethel'
898 SUPREME COURT REPORTS [1982] 2 s.c.i.

A Additional Judges should be appointed and the same is of no ·rele-
vance with regard to a particular person to be appointed. Regardiug
short-term extensions that were granted it is explained that they
became necessary pending completion of inquiries into the com-
plaints that had been received against the concerned Additional
Judges and the constitutional functionaries desired to satisfy them-
B selves in that behalf before taking a final view. As regards the
individual cases of the three Judges of the Delhi High Court it is
pointed out that so far as Justice Wad is concerned he has now been
granted a long term of one year with effect from 7.6.1981 and he can
have no grievance and as regards the out-right dropping of Shri
O.N. Vohra and Shri S.N. Kumar it is denied that the same is illegal
c or unconstitutional or mala fide either in law or in fa ct; and it is
pointr.d out that since Shri Vohra is not seeking any relief before the
Court the action of dropping him need not be pronounced upon by
this Court and so far as Shri S.N. Kumar is concerned, action being
proper no relief can be granted to him. It is disputed that this
-
Court can grant the relief by way of declaring the sitting Additional
D Judges to be deemed to have become permanent or by directing the
President to make them permanent by appropriately increasing the
permanent strength in the concerned High Courts.

As stated at the outset by these writ petitions filed under Art.
E 226 of the Constitution the legality or constitutionality of the two
actions of the Union Government, namely, the issuance of the
Circular letter dated March 18, 1981 and the grant of short-term
extensions to sitting Additional Judges in various High Courts, is
being challenged and the first question raised by the contesting res-
pondents relates to the locus standi of the petitioners, who are legal
F practitioners in Allahabad, Bombay and Delhi High Courts, to
maintain their petitions seeking relief against these two impugned
actions. Jn my view the question of locus standi of the petitioners
in these cases has become academic inasmuch as admittedly in the
writ petition filed by Shri Tarkunde in Delhi High Court (being writ
petition No. 882/81) Mr. Justice S. N. Kumar (as he then was),
G impkaded as a party-respondent, has supported the challenge and
sought reliefs in respect of these impugned actions and as such the
challenges made will have to be gone into and decided by this Court.
In the case of Dwarkadas Srinivas v. The Sholapur Spinning & Weav-
ing Co. Ltd. and others(1) the constitutionality of the impugned Ordi- -L
H nance II of 1950 as well as of the Act XXVIII of 1950 which re-

(1) [1954) SCR. 674.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 899

placed it, whereunder the management of the Mills was taken over A
and run by the Directors appointed by the Central Government, was
challenged by Shri Dwarkadas Srinivas (plaintiff), a preference
share-holder of the Company and he also sought relief by quashing
the demand made for calls in respect of unpaid share capital by the
nominated Directors; a contention was raised about the locus standi
of the plaintiff to maintain the suit on the ground that it was the B
Company who ought to have filed the suit as it was affected by the
impugned Ordinance and the Act. This Court took the view that
the contention was of no avail because the Company had been
·• impleaded as a defendant to the suit and its old Directors had made
an application to the Court supporting the case of the plaintiff on
the ground that the Ordinance and the Act were void as they in- c
- fringed the Company's fundamental right under Art. 31(2) of the
Constitution. At page 714 of the report Justice Mahajan (as he
then was), who delivered the main judgment of the Court, observed
thus :
0
"I am further of the opinion that the question of the
locus standi of the plaintiff to raise the plea that the Ordi-
nance being void against the Company the Directors had
no authority to make the call, is really of academic interest
in this case because here the company has been impleaded
as a defendant. Its old directors have made an application E
to this Court supporting the case of the plaintiff on the
.ground that the Ordinance is void as it infringes the com-
pany's fundamental right under Article 31(2)."

Iii view of this legal position the learned Attorney-General for the F
Union of India made a statement at the Bar that he would not be
pressing the contention relating to locus standi of the petitioners.
However, Counsel for the Union Law Minister, one of the contes-
ting respondents, argued the contention at great length, by referring
to a large number of decided cases English, American and Indian as
well as by relying on passages and extracts from treatises of well- G
known authors, on the ground that in the other three writ petitions
none of the concerned sitting Additional Judges had come forward
to support the challenge and the maintainability of these writ peti-
tions will have to be decided by this Court. Since the said conten-
tion has been fully and elaborately discussed ·and dealt with by my H
brother Bhagwati in his judgment, I purpose to deal with it very
briefly.
900 SUPREMB COURT REPORTS [ 1982] 2 s.c.R.

A Counsel for the Union Law Minister. has urged that the peti-
tioners who are legal practitioners have no direct interest in the
subject-matter of the writ petitions and cannot be regarded as
'person aggrieved' by the two impugned actions, which really affect,
if at all, the sitting Additional ludges, who would be the aggrieved
persons and it is not as if they are under any disability to approach
B the Court for redress, as is shown by the fact that one of them has
done so and supported the challenge. It is contended that though
as practising lawyers either in their individual capacity or as repre-
senting some of the Lawyers Associations the petitioners may be
professionally interested in having a fearless and independent Judi-
ciary for proper administration of justice that by itself is not suffi-
c cient to give them the 'standing' to prosecute the petitions for the
reliefs sought, which really concern the sitting, Additional Judges
and not the lawyers. It is further submitted that even in 'public
interest litigations', (usually called 'public injury cases') though a
-
liberal approach is adopted by the Courts to reach all forms of
injustice, the personal injury test is not ruled out but at times the
D test of 'sufficient connection or 'special interest' is applied but in
the ins1ant case the petitioners neither qualitatively nor quantita-
tively have sufficient connection or special interest to prosecute the
petitions, the result of which would not affect them either directly or
even indirectly.

E
Since several decisions cited at the Bar on the question of
locus standi show that the attitudes of the Courts in England,
United States and this country have not been uniform but have
varied from case to case any attempt at laying down a general
principle for universal application would be futile. I would, how-
F ever, prefer to confine my attention to a few decisions of this Court,
which, according to me, throw sufficient light on this issue. It
may be stated that in two decisions, namely Adi P Gandhi'(') case
and Dabholkar' s(') case the question of locas standi was considered
in the context of the interpretation of the expression "persons
aggrieved" occurring in ss. 37 and 38 of the Advocates Act of 1961.
G Jn the former case, in relation to certain disciplinary proceedings
which had ended in no action being taken against the advocate con-
cerned, the question was whether the Advocate General of the State
was an "aggrieved person" within the meaning of s. 37 of the Act

H (I) [1971] 1 S.C.R: 863.
(2) [1976] 1 S.C.R. 306.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 901

for the purpose of preferring an appeal under that section and this A
Court by majority held that he was not and his appeal was incompe-
tent while the minority took a contrary view. After this decision
had been rendered, ss. 37 and 38 (which provided for an appeal to
the Bar Council of India and an appeal to the Supreme Court res-
pectively) of the Act were amended by expressly giving the right of
appeal to the Advocate General and the Attorney General suggesting B
hy implication a legislative approval and acceptance of the
minority view in that case. In the latter case, the errant advocate
having succeeded before th~ Bar Council of India, the State
Bar Council preferred an appeal to this Court under s. 38
and the question arose whether the State Bar Council was a
'person aggrieved' within the meaning of s. 38 and a Bench
of 7-Judges of this Court held upon a survey of the provision:; of c
- the Act and its scheme and purpose that the State Bar Council was
a 'person aggrieved'. Krishna Iyer, J. while delivering a concurring
judgment quote_d with approval Lord Denning's observations on the
Attorney General's standing in the well known case of the Attorney-
General of the Gambia v. Pi err a Sarr N Jie( 1) to the following effect : D

"... The words 'person aggrieved' are of wide import
and should not be subjected to a restrictive intepretation
They do not include, of course, a mere busy-body who is
interfering in things which do not concern him; but they do
include a person who has a genuine grievance because an E
order has been made which prejudically affects his interest.
Has the Attorney-General a sufficient interest for this pur-
pose? Their Lordships think that he has. The Attorney-
General in a colony represents the Crown as the guardian of
the public interest. It is his duty to bring before the Judge
F
any misconduct of a barrister or solicitor which is of suffi-
cient gravity to warrant disciplinary action."

Thereafter he proceeded to plead for a wider view being taken of
locus standi in public interest litigations and derived support for his
plea from certain observations of Professor S.A. de Smith and Pro-
fessor H.W.R. Wade, which he quoted, and then went. on to observe G
thus:

"The possible apprehension that widening legal stand-
ing with a public connotation may unloose a flood of
litigation which may overwhelm the judges is misplaced H
(1) [1961] A.C. 617.
902 SUPREME COURT REPORTS (1982] 2 S.C.R.

A because public resort to court to suppress public mischief
is a tribute to tthe justice system. In this very case, to
grant an exclusionary wind-fall on the respondents is to
cripple the Bar Council in its search for justice and insis-
tence on standards."

B In Municipal Council Ratlam v. Shri Vardhichand and Ors.( 1 )
this Court upheld the right of the residents of a certain locality in
Ratlam town to adopt proceedings under s. 133 of the Criminal
Procedure Code against the Municipal Council compelling it to
provide certain basic amenities like sanitary facilities on the roads,
public conveniences for slum dwellers who were using the road for
c that purpose and to abate nuisance by constructing drain pipes with
flow of water to wash the filth and stop the stench. While per-
mitting such legal action ventilating public grievances Krishna Iyer,
J. observed thus :
--
•
D "The truth is that a few profound issues of processual
jurisprudence of great strategic significance to our legal
system face us and we must zero in on them as they
involve problems of access to justice for the people beyond
the blinkered rules of 'standing' of British India vintage.
If the centre of gravity of justice is to shift, as the Preamble
to the Constitution mandates, from the traditional individu-
alism of locus standi to the community orientation of public
interest litigation, these issues must be considered. In that
sense, the case before us between the Ratlam Municipality
and the citizens of a ward, is a path-finder in the field of
people's involvement in the justicing process, sans which as
Prof. Sikes points out (Melvyn P. Sikes, Administration of
Justice), the system may 'crumble under the burden of its
own insensitivity'. The key question we have to answer is
whether by affirmative action a court can compel a statu-
tory body to carry out its duty to the community by cons-
tructing sanitation facilities at great cost and on a time-
G bound basis. At issue is the coming of age of that branch of
public law bearing on community actions and the Court's
power to force public bodies under public duties to imple-
ment specific plans in response to public grievances."

H
(I) [1981] I SCR 97.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 903

In the Fertilizer Corporation Kamgar Unions( 1 ) case the A
question for consideration was whether the workers in a factory
owned b' Government could question the legality and or validity
of the sale of certain plants and equipment of the factory by the
management and though the Court ultimately did not interfere
because it did not find the sale to be unjust and unfair or mala fide
on the maintainability of the challenge the Court has made certain B
observations having a bearing on the aspect of the workers' locus
standi. Chief Justice Chandrachud at p. 65 of the Report has
observed thus :

"Hut, we feel concerned to point out that the maintain-
ability of a writ petition which is correlated to the existence c
and violation of a fundamental right is not always to be
- confused with the locus to bring a proceeding under
Article 32. These two matters often mingle and coalesce
with the result that it becomes difficult to consider them in
watertight compartments. The question whether a person
has the locus to file a proceeding depends mostly and often D
on whether he possesses a legal right and that right is
violated. But in an appropriate case, it may become
necessary in the changing awareness of legal rights and
social obligations to take a broader view of the question
of locus to initiate a proceeding, be it under Art. 226 or
under Art. 32 of the Constitution. If public property is E
dissipated, it would require a strong argument to convince
the Court that representative segments of the public or at
least a section of the public which is directly interested and
affected would have no right to complain of the infraction
of public duties and obligations. Public enterprises are
owned by the people and those who run them are account- F
able to the people. The accountability of the public sector
to the Parliament is iQ.effective because the Parliamentary
control of public enterprises is "diffuse and haphazard".
We are not too sure if we would have refused relief to the
workers if we had found that the sale was unjust, unfair
or mala fide."
G

Since the question as regards 'access to justice', particularly under
Art. 226 of the Constitution, was dealt with Krishna Iyer, J. at some
..,.. length, Chief Justice Chandrachud did not consider it necessary to
H
(I) [l9ol] 2 S.C.R. 52.
904 SUPREME COURT REPORTS [1982] 2 S,C.R.
A dwell upon that topic. On that aspect Krishna Iyer, J. has at p. 74
of the Report made the following observations :

"Public interest litigation is part of the process of parti-
cipative justice and 'standing' in Civil litigation of that
pattern must have liberal reception at the judicial door-
B steps. The floodgates argument has been nailed by the
Australian Law Reforms Commission :

'The idle and whimsical plaintiff, a dilettante who
litigates for a lark, is a specter which haunts the legal
literature, not the court room.' (Prof. K.E. Scott :
c "Standing in the Supreme Court : A Functional Analy-
sis" (1973) 86.)

Again at p. 77 of the Report this is what he has observed :
-
"If a citizen is no more than a wayfarer or officious
D intervener without any interest or concern beyond what
belongs to any one of the 660 million people of this
country, the door of the Court will not be ajar for him.
But he belongs to an organization which has special interest
in the subject matter, if he has some concern deeper than
that of a busy-body, he cannot be told off at the gates.
E although whether the issue raised by him is justiciable may
still remain to be considered. I, therefore, take the view
that the present petition would clearly have been permissi-
ble under Art. 226."

In the instant case the impugued Circular as well as the short-
F
term extensions, according to the petitioners, are directly subversive
of judicial independence, which is a basic feature of our Constitu-
tion, in the upholding of which not merely the sitting Additional
Judges but also the lawyers practising in various High Courts are
keenly interested. In fact, in the task of administration of justice
G the role of Judges and the role of lawyers are complementary to each
other and the practising lawyers as a class are an integral part of
justicing machinery rendering assistance to the Judges in the dis-
charge of their function of reaching justice to the litigants appearing
before the Courts; in other words the practising lawyers who are
H nothing short of partners in the task of administration of justice
undertaken by the Judges, are vitally interested in the maintenance
of a fearless and an independent Judiciary to ensure fair and fearless
S.P. GUPTA v. UNION (Tulzapurkar, J.) 905

justice to the litigants. That being the position, can it be said that A
the petitioners either in their individual capacity or as ·representing
some cf the Lawyers' Associations (as is the case in the Bombay
petition) are way-farers, interlopers, officious interveners or busy-
bodies without any interest or concern of their own in the subject-
matter? In my view, the petitioners either in their individual
capacity or representing Lawyers' Association have not merely 8
sufficient interest but special interest of their own in the subject-
matter of the writ petitions and they cannot be told off at the gates
j and the petitions at their instance are clearly maintainable.

The next contention urged on behalf of the contesting res-
pondents has been that though Shri S.N. Kumar could be regarded c
as a person aggrieved by the two impugned actions of the Govern-
ment, he being a sitting Additional Judge from whom consent under
the Circular letter was sought and was also granted a short-term
extension, the issues raised in the case are not ju,ticiable at his
instance, much less at the instance of the petitioners. The conten-
tion is that Shri Kumar's term having come to an end by efflux of D
period for which he was appointed he is no longer concerned with
the impugned Circular-letter nor with the short-term extension that
had been granted to him and after he has ceased to be a Judge of
the Del.hi Hlgh Court he does not have any vested or enforceable
right against the President or the Union Government in the matter
of either continuation as an Additional Judge or appointment as a E
permanent Judue and, therefore, his challenge to the governmental
action is not maintainable. In this behalf Counsel contended that
in either extending an Additional Judge for a further term or in
making him a Permanent Judge in the vacancy of a permanent post,
. a fresh appointment is involved by issuance of a fresh warrant under
F
Art. 217(1) and the position of an Additional Judge on the expiry
of his initial or extended term is exactly the same as that of a pro-
posed candidate for initial appointment in that neither has any
enforceable right to be considered for the post, much less to be
appointed to it. Counsel pointed out that Art. 217( I) confers power
upon the President to appoint High Court Judges subject to the G
consultations mentioned therein but the President has a discretion
in the matter which cannot be controlled by judicial review by issu-
ance of a mandamus; in any event, non-appointment of a proposed
candidate for initial recruitment or non-continuance of an Additional
Judge on the expiry of his term does not give rise to any enforceable
obligation against the President/Union Government and in favour
of the person who is not appointed or not continued and, therefore,
.906 SUPREME COURT REPOTTS [ 1982] 2 s.c.R.

A even a breach of the constitutional mandate, such as total lack of
consultation or lack of full and effective consultation or consultation
getting vitiated by malafides, merely amounts to a case of complete
non-sequitor. In other words, Counsel contended that even on the
assumption that the Government's actions are not warranted by the
constitutional provisions, the invalidity or unconstitutionality thereof
B does not give any corresponding right to Shri S.N. Kumar to sustain
the petition.

The aforesaid contention of Counsel for the contesting respon-
dents directly raises two questions : (i) whether the proposed appoint-
ees (either from the Bar or services), who are being recommended
c for their initial appointments, and the sitting Additional Judges,
whose cases for their continued appointments either as Additional
Judges or as Permanent Judges on the expiry of their initial term are to
be decided, stand in the same class or category or is there any differ-
--
ence-a valid difference between the two and (ii) whether the non-
appointment either at the stage of initial recruitment or at the stage
D of continuance furnishes any actionable wrong for issuance of a
mandamus? In the context of these questions Articles 217(1) and
224(1) will have to be considered. Art. 217(1) runs thus:

"217(1) Every Judge of a High Court shall be appointed
E 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

F
or acting Judge, as provided in article 224, and in any
other case, until he attains the age of sixty two years." ..
Article 224 runs thus :

"224.(1) If by reason of any temporary increase in the
business of a High Court or by reason of arrears of work
therein, it appears to the President that the number of the
G Judges of that Court should be for the time being increased,
the President may appoint duly qualified persons to be addi-
tional Judges of the Court for such period not exceeding
two years as he may specify."
H
It cannot be disputed that Judges of the High Court occupy a
high constitutional position and a special machinery is provided for
" S.P. GUPTA v. UNION (Tulzapurkar, J.) 907

their appointment. For obvious reasons, the post of a High Court A
Judge is not filled in by inviting applications through advertisements
nor by holding test interviews; funher, the minimum qualifications
for appoinment as a Judge (prescribed in sub-Art. (2) of Art. 217)
would be possessed by numerous advocates and by a fair number
of service Judges but even so, the special machinery for making
appointments is indicated in Art. 217(1), obviously designed to re- B
cruit persons of great ability, high character and unquestioned inte-
grity to the Bench. All these factors go to show that at the stage
of initial recruitment under Art. 217(1), no one has a right to be
appointed a Judge of the High Court nor the right to be considered
for such appointment and, therefore, it does appear that the writ of
mandamus at the instance of an aggrieved person would not lie.
c
- But at the same time I am quite sure whether simply because a
mandamus directing the President to reconsider the case of a non-
appointee may not lie it would be correct to say that in the case of
non-appointment at the stage of initial recruitment the mandate of
consultation becomes otiose, superficial or inconsequential, or that D
a positive breach thereof may not provide any relief whatever to
the aggrieved person but since that question does not arise in the
instant case I would rather leave it open for decision in an appro-
priate case and proceed on the basis that a mandamus for recon-
sideration of his case would not lie as the aggrieved person does not
have the right to be considered. But question is whether the sitting E
Additional Judges, whose continuance either for an extended term
or as Permanent Judges is to be determined on the expiry of their
initial term, stand in the same position as that of proposed appoin-
tees for initial appointment ?

It is true that, unlike a Permanent Judge whose tenure is fixed
F
by reference to his age, the tenure of an Additional Judge when
appointed under Art. 224(1) is fixed by the warrant of his appoint-
ment and on the expiry of the period mentioned in the warrnnt
he ceases to be a Judge of the High Court. It is also true that this
continuance as an Additional Judge for any further term or as a
Permanent Judge in the vacancy of a permanent post cannot be G
thought of unless for continuance as Additional Judge either one or
the other or both the pre-conditions mentioned in Art. 224(1) obtain
in that High Court, and for continuance as a Permanent Judge the
normal business of the High Court justifies the filling up of the
vacancy in the permanent post. In other words pendency of work H
must justify such continuance-temporary increase in the business
of the High Court or arrears of work therein or both for extension
908 SUPREME COURT REPORTS [1982) 2 s.c.R.

A of his term and normal business (current institutions) for making
him permanent. The question whether obtaining of the pre-condi-
tions mentioned in Art. 224(1) or the pendency of normal business
is alone enough for such continuance or any other requirement
(suitability as adjudged during the consultation under sub-Art. (I)
of Art. 217) is also necessary is a different aspect, which I propose
B to deal with later and need not be mixed up with the question under
consideration at the moment. In other words, granted the pre-
conditions in Art. 224(1) and also the pendency of the normal
business, the question is whether an Additional Judge whose term is
about to expire has any enforceable right to be considered (even
assuming that suitability is also required to be taken into account
c at this stage) for his continuance either as an Additional Judge for
a further term or as a Permanent Judge if a vacancy in the perma-
nent post is available ? -
In order to deal with the aforesaid question, Art. 224(1), inser-
D ted in our Constitution by the 7th Amendment Act, 1956, will have
to be considered in proper perspective having regard to the reasons
and purposes for which and the circumstances in which it came to
be enacted. Prior to that, in the Government of India Act, 1915
the provision to appoint Additional Judges to any High Court 'as
may be required' by the Governor-General in Council was contained
E in the proviso (i) to Sec. 101 (2) while in the Government of India
Act, 1935 the provision was to be found in Sec. 222(3) which was
almost in similar terms as the present Article except that the power
was conferred on the Governor-General acting in his discretion.'
When the Constitution was framed the provision Draft Article 199
was deleted because of the strong plea made against it by several
F Members of the Constituent Assembly including eminent authorities
in this field like Sir Tej Bahadur Sapru, Shri K.M. Munshi and
others, mainly on the ground that Members of the Bar recruited as
Additional Judges will revert to the Bar on the expiry of their term
and such reversion to the Bar was manifestly dangerous to the fair
administration of justice and opposed to public interest. In 1956 it
G was felt that the provision for recalling retired High Court Judges
to function on the Bench for short periods (loosely called Ad-hoc
Judges) was found to be neither adequate nor satisfactory and the
same (original Art. 224) was deleted and replaced by "a provision
for appointment of Additional Judges to clear off arrears" (vide
H · statement of Objects and Reasons) and the present Art. 224(1) came
to be enacted. In other words the existence of a large volume of
mounting arrears in several High Courts and the necessity to clear
S.P. GUPTA v. UNION (Tulzapurkar, J.) 909

off the same provided the basis for inserting the provision in the A
Constitution. That this is the rationale of the provision for appoint-
ment of Additional Judges has been clearly indicated by the Madras
High Court in Kandasami Pillai v. Muthuvenkataba!a( 1 ) where in the
context of the provision contained in the Government of India Act,
1915 that Court held that "the object of the proviso to S. 101 (2) of
the Government of India Act, 1915, clearly was to provide for B
occasions when the permanent strength of the High Court is unable
to cope with the work of disposal, but the work is not sufficient to
justify the appointment of . another permanent Judge, by enabling
additional Judges to be appointed from time to time for such fixed
periods not exceeding two years as may be found necessary; the
proviso mu&t therefore be read as meaning that appointments may c
be made from time to time for such period, not exceeding two

-- years, as may be required from time to time on each occasion when
the power is exercised." (vide Head Note in the Report). Thus, the
very purpose and raison d' etre of Art. 224(1) being the existence of
arrears of work and clearance thereof, it stands to reason that
sitting Additional Judges who have already been selected and D
appointed for the very purpose must be considered for continued
appointments if the arrears obtain and go on mounting in their
High Courts.
Secondly, on a comparison of Arts. 216 and 224(1), it will
appear clear that the former deals with the appointment of Perma" E
nent Judges to dispose of the normal business whereas the latter
deals with appointment of Additional Judges whenever there is either
a temiJorary increase in the normal business of a High Court or
arrears of work therein. It seems the work in a High Court has
been classified into three categories. namely, (a) Normal business
indicated by the current annual institutions (suits, writs and other
F
proceedings), (b) Sudden temporary increase in business over and
above the normal institutions, such as filing of hundreds of peti-
tions challenging an enactment, like for instance Money Lenders
Act, which will disappear when the validity or otherwis~ of the
enactment is pronounced upon and (c) Arrears of work meaning the
normal or ordinary work which the permanent strength has not been
G
able to cope with and dispose of within a reasonable or stated
period, say one or two years and has accumulated; and it is clear
that Art. 216 has to be resorted to for the first category of work and
Art. 224( I) for the other two categories. But it was not disputed H
(I) [1917] 33 Mad.L.J. 787.
910 SUPREME COURT REPORTS (1982) 2 S.C.R.

A bdore us that Art. 224(1) appears to have been construed and
worked by; all concerned under sorre misapprehension in the sense
that it has been resorted to even in situations where Art. 216 ought
to have been resorted; for, since the insertion of Art. 224(1) in the
Constitution it has been the invariable practice to appoint every
Judge (whether from the Bar or Services) initially as an Additional
B Judge for two years and then to make him permanent in due course.
i.e. as and when a permanent vacancy arises in that High Court.
Such a practice, though contrary to the clear intendment of the
said two Articles, followed by')he President or the Union Govern-
ment has given rise to a legitimate expectancy on the part of the
sitting Additional Judges (whether from the Bar or Services) to be
c considered for their continuance either for an extended term or for
making them permanent on vacancies arising in permanent posts.
fn fact after following such practice over the years and thus putting
all the Additional Judges into the belief that they will be confirmed
in normal course it does not behove the appointing authority to say
that the sitting Additional Judges have no right to be considered for
D their continuance either for an ext~nded term or for making them
permanent. Clearly, by reason of the said practice though followed
under some misapprehension they have such a right.

Thirdly, so far as the sitting Additional Judges recruited under
E Art. 224(1) from the Members of the Bar are concerned, they would
be having such legitimate expectancy and the right to be considered
for continuance for two additional reasons, namely (a) a well estab·
lished constitutional convention or practice has grown over the years
since after the insertion of the provision in the matter of appoint-
ment of such Additional Judges and confirming them as permanent
F Judges-the convention or practice being, that notwithstanding the
words "for such period not exceeding two years as the President
may specify" occurring in Art. 224( I), the appointing authority has
invariably exercised the power under that Article by appointing
Additonal Judges initially for a period of two years, which has come
to be regarded as the 'normal term', that when the said period is
G about to expire if there is no vacancy of a permanent Judge in that
Court to continue such Judges for a further term of two years and
if a permanent vacancy arises to confirm the senior most among them
as a Judge of that High Court, and (b) the undertaking taken from
them at the time of their initial appointment that "if and when a
H permanent Judgeship of that Court is offered to them they will
accept it and not decline the same." It may be stated that so
far as the Born bay High Court is concerned a further undertaking is
S.P. OUPTA v. UNION (Tulzapurkar, J.) 911

obtained by the Chief Justice of that High Court from such Judges A
to the further effect that "if they decline to accept such permanent
Judgeship though offered or in case they resign from the Office of
Additional Judge even before the question of their confirmation is
taken up they will not practice in that High Court or in any Court
or Tribunal subordinate to that High Court." It may be pointed
out that since 1956 barring very few or exceptional instances the B
aforesaid convention or practice has almost invariably been followed
and the same has grown out of two weighty considerations : (I) that
it is not in public interest to permit them to revert to the Bar, and
J.
(ii) not to lose or fritter away the experience and expertise gained
by them in administering justice during their initial term, and as
regards the undertaking mentioned-above the same became necessary
c
because at the time of the insertion of Art. 224(1) into the Constitu·
tion no provision wa~ inserted imp:>sing any ban or prohibition on
practice by such Additional Judges after expiry of their term, as was
thought of in 1949 when Draft Articles 199 (dealing with Additional
Judges) and 196(b) (dealing with ban on their practice) were consi·
D
dered together and deleted together. It will be pertinent to mention
here that during the Parliamentary debate over the relevant Bill
which sought to introduce Art. 224(1) into the Constitution great
anxiety was shown by several Members to see to it that such Addi·
tional Judges, when recruited from the Bar were not permitted to
revert to the profession on the expiry of their term and a categorical
E
suggestion was put forward that when a Member of the Bar was
appointed as an Additional Judge it must be done with a view to
make him permanent in due course and if that was not possible an
Additional Judgeship should not be offered to a Member of the Bar.
In fact in Lok Sabha, Shri Tek Chand, M.P. from Ambala-Simla
had opposed the recruitment of any Member of the Bar as an Addi- F
tional Judge and suggested that such recuritment should be confined
to District Judges, whik in the Rajya Sabha Shri P.N. Sapru from
Uttar Pradesh strollgly pleaded that in appointing Additional Judges
care should be taken to appoint Members of the Bar who were not
likely to revert to the profession on the expiry of their term, that
is to say "appoint a man whom you are going to appoint as a G
Permanent man". These views expressed during the debate on the
Bill have been referred to merely to bring out the genesis out of
which the aforesaid convention or practice grew and the undertaking
commenced to be taken from Members of the Bar. Even as late as
on June 29, 1967 in a Note prepared by him Justice K.N. Wanchoo H
had also stated thus :
912 SUPREME COURT REPORTS [1982] 2 S.C.R.

A "When a Member of the Bar is appointed an Addi-
tional Judge, it must be with a view to make him permanent
in due course. If that is not possible, Additional Judgeship
should not be offered to a Member of the Bar. I agree
that an undertaking should be taken from Members of the
Bar that they will accept a permanent Judgeship when
B offered to them in due course ............ "

(Note quoted in the Shah Commission's Interim Report-I
Para 7.23 at page 52)

If the genesis of the aforesaid convention or practice as well as the
c undertaking is nothing but public interest in the sense that public
interest is served : (al by not permitting them to revert to the Bar
on the expiry of their term, and (b) by not losing or frittering away
the experience or expertise gained by them in administering justice -
during their initial term, then it is these very aspects of public interest
which form the compelling reasons to consider their cases for their
D continuance either by extending their term or making them perma-
nent in preference to outsiders or freshers. It is not as if that these
two aspects of public interest giving rise to the convention or practice
and the undertaking are merely factors to be taken into account
while deciding upon their continuance but along with the · disability
emanating from the undertaking these aspects confer upon them a
E legitimate expectancy and the enforceable right not to be dropped
illegally or at the whim or caprice of the appointing authority but
to be considered for such continuance in that High Court.

-
There has been no answer from the side of the contesting
F respondents and in fact it was not disputed by Counsel on their
behalf that the practice to appoint every Judge (whether from Bar or
Services) initally as an Additional Judge for two years and then to
make him permanent in due course ,.without considering the question
as to which one of the two Articles was attracted has been followed ....._,
by the appointing authority and 'therefore, it it clear that on this
G ground alone it can be held that the sitting Additional Judges have
an enforceable right not to be dropped illegally or at the whim or
caprice of the appointing authority but to be considered for their
continuance either by extending their term or making them perma-
nent until this practice is changed and a proper practice is introduc-
H ed which can be done only after having made a complete and
correct assessment about the requisite strengths of Permanent as well
as Additional Judges for every High Court depending upon statistical
S.P. GUPTA v. UNION (Tufzapurkar, J.) 913

data to be collected throwing light on 'normal business, 'temporary A
increase' and 'arrears of work' after fixing rate of disposal per Judge
per year and defining what should be termed as main cases, miscel·
laneous cases or interlocutory cases etc.
As regards the constitutional convention or practice and the un-
dertaking which have been pressed into service in relation to Bar re-
cruits as Additional Judges for basing their right to be considered for B
their continuance on the expiry of their initial term, the learned
Attorney-General appearing for the Union of India raised a two fold
contention. Regarding the former he urged that a constitutional con-
vention or practice, howsoever wholesome, can not affect, alter or con-
trol the plain meaning of Art. 224(1) which according to him gives
absolute power and complete discretion to the President in the matter c
-0f continuance of sitting Additional Judges on the expiry of their
- initial term, the pendency of arrears being relevant only for de-
ciding whether or not Additional Judges should be appointed
and not relevant with regard to a particular person" to be
appointed. As regards the undertaking he pointed out that the
usual undertaking obtained from a Member of the Bar in D
all High Courts-and for that matter even the additional
undertaking that is being obtained in the Bombay High Court if
properly read will sh ow that it merely creates a binding obligation
-0n the concerned Member of the Bar but does not create any
-0bligation or commitment on the part of the appointing authority
to make the offer of permanent Judgeship to him. It is difficult to E
accept either of these contentions of the learned Attorney General.
It was not disputed before us tha(constitutional conventions and
practices have importance under unwritten as well as written Cons-
titutions and the position that conventions have a role to play in
interpreting Articles of a Constitution is clear from several decided
cases. In U.N.R. Rao v. Smt. Indira Gandhi(1) Chief Justice Sikri F
observed thus : "It was said that we must interpret Art. 75(3) accor-
ding to its own terms regardless of the conventions that prevail in
.--. the United Kingdom. If the words of an Article are clear, notwith-
standing any relevant convention, effect will no doubt be given to the
words. But it must be remembered that we are interpreting a Consti-
tution and not an Act of Parliament, a Constitution which establishes G
a Parliamentary system of Government with a Cabinet. In trying to
understand one may well keep in mind the conventions prevalent at
the time the Constitution was framed." In State of Rajasthan v.
Union of India( 2 ) also the importance of a constitutional convention
H
(!) [197!1 Suppl. SCR 46.
(2) (1978] 1 SCR 1.
914 SUPREME COURT REPORTS (198 2] 2 S.C.R.

A or practice by way of crystalising the otherwise vague and loose
content of a power to be found in certain article has been empha-
sized. In the State of West Bengal v. Naripendra Nath Bagchi(1) the
entire interpretation of the concept of "vesting of control" over
District Courts and Courts subordinate thereto in the High Court
was animated by conventions and practices having regard to the
B history, object and purpose thatl ay behind the group of relevant
articles, the principal purpose being, the securing of the independence
of the subordinate Judiciary. It is true that no constitutional
convention or practice can affect, alter or control the operation of
any Article if its meaning is quite plain and clear but here Art.
224(1) merely provides for situations when Additional Judges from
c duly qualified persons could be appointed to a High Court and at
the highest reading the Article with s. 14 of the General Clauses Act
it can be said that the power conferred by that Article may be exerci-
sed from time to time as occasion requires but on the question as to
whether when the occasion arises to make appointment on expiry of
-
the term of a sitting Additional Judge whether he should be continu-
D ed or a fresher or outsider could be appointed by ignoring the
erstwhile incumbent even when arrears continue to obtain in that
High Court the Article is silent and not at all clear and hence the
principle invoked by the learned Attorney General will not reply.
On the other hand, it will be proper to invoke in such a situation
the other well settled principle that in construing a constitutional
E provision the implications which arise from the structure of the
Constitution itself or from its scheme may legitimately be made and
looking at Art. 224(1) from this angle a wholesome constitutional
convention or practice that has grown because of such impli-
cations will have to be borne in mind especially when it serves
F to safeguard one of the basic features which is the cardinal
faith underlying our Constitution, namely, independence of the -
judiciary. In other words a limitation on the otherwise absolute
power and discretion contained in Art. 224(1) is required to be read
into it because of the clear implication arising from the said cardinal
faith which forms a fundamental pillar supporting the basic structure
of the Constitution, as otherwise the exercise of the power in the
G absolute manner as suggested will be destructive of the same. That it
is not sound approach to embark upon 'a strict literal reach' of any
constitutional provision in order to determine its true ambit and
effect is strikingly illustrated in the case of Art. 368 which came up
H
(I) [1966] l SCR 771.
S.P. GUPTA v. UNION (Tulzapurkar, J. ) 915

for consideration before this Court in Keshavanand Bharti' s(1 ) case A
where this Court held that the basic or essential features of the
Constitution do act as fetters or limitations on the otherwise wide
amending power contained in that Article. In Australia limitations
on the law-making powers of the Parliament of the Federal Com-
monwealth over the States were read into the concerned provisions
of the Constitution because of implications arising from the very B
Federal nature of the Constitution : (vide-T/ze Lord Mayor·
Councillors and Citizens of the City of (1-felbourne v. The Common
wealth & Anr.( 2 ) and the State tJf Victoria v.. Th~ Commonwealth of
Australia.(3) As regards the undertakings of the type mentioned
above, it is true that strictly and legaliy speaking these undertakings
only create a binding obligation on the concerned Member of the c
- Bar and not on the appointing authority but it cannot be forgotten
that when such undertakings were thought of, the postulate under-
lying the same was that there was no question of the appointing
authority not making the offer of permanent Judgeship to t.he concer-
ned Member of the Bar but that such an offer would be made and
upon the same being made the sitting Additional Judge recruited
from the Bar should not decline to accept it and revert to the Bar.
r am therefore clearly of the view that the aforesaid convention or
practice and the undertaking serve the cause of public interest in
two respects as indicated above and those two aspects of public
interest confer upon these sitting Additional Judges recruited from
the Bar a legitimate expectancy and the enforceable right not to be
E
dropped illegally or at the whim or caprice of the appointing autho-
rity but to be considered for continuance in that High Court,
either by way of extending their term or making them permanent
in preference to freshers or outsiders and it is impossible to
construe Art. 224(1) as conferring upon the appointing authority,
absolute power and complete discretion in the matter of appointment
F
of Additional Judges to a High Court as suggested and the suggested
construction has to be rejected. In view of the above discussion it
is clear that there is a valid classification between proposed appoin-
tees for initial recruitment and the sitting Additional Judges whose
cases for their continuance after the expiry of their initial term are
G
to be decided and the two are not in the same position.

The next question hotly debated at the Bar has been whether
while exercising the power under Art. 224(1) of the Constitution at

( 1) [1973] Suppl. SCR I. H
(2) 74 C.L. Reports p. 31.
(3) 112 C.L. Reports 353.
916 SUPREME COURT REPORTS [ 1982] 2 s.c.R.

A the time of determining whether the sitting Additional Judges should
be continued either by way of extending their term or by way of
making them permanent it is open tJ the President (Appointing
Authority) to resort to the consultative process under Art. 217(1)
on the aspect of suitablility again or the exercise of the power should
be strictly governed by the consideration as to whether the pre-
B conditions mentioned in Art. 224(1) obtain in the concerned High
Court and pendency of work justifies the filling up of the permanent
vacancies or not ? Counsel for the petitioners have contended that
while deciding upon the continuance of the sitting Additional Judges
of a High Court, who have already been selected and appointed as
, such, the consultative process mentioned in Art. 217(1) is not
c attracted for the purpose of considering suitability again, the same
having been gone througa on~~ and for all at the stage of their initial
recruitment and the appointing authority has merely to see whether
one or the other or both the pre-conditions obtain or not and on
-
being satisfied about their existence it must continue the sitting
Additional Judges for a further term and if vacancies in the per-
D manent posts are available to make them permanent in that High
Court on being satisfied that pendency of normal business justifies
the same. In support of this contention reliance has been placed on
the fact that for all purposes the sitting Additional Judes of a High
Court are in no way different from its Permanent Judges as regards
(a) qualification for the appointment; (b) salary and other service
E conditions; (c) criteria for their selection; (d) their position, juris-
diction, powers and privileges; (e) oath of office to be taken by
them and (f) the grounds and procedure for their removal and it
has been pointed out that Additional Judges are not on probation
and cannot be regarding or dealt with as probationers. Principally,
the bringing in of the consultative process ·under Art. :'.17(1) on the
F
point of suitability again at the stage of deciding upon their continu-
anc~ is objected to on three grounds : (a) it amounts to making
their continuance dependent upon the evaluation of their capacity,
character, integrity and fitness as emerging from their work, perfor-
mance and behaviour during their initial term and runs counter to
G the well-settled position that they are not on probation, (b) if in
that process they are dropped because of suspected misbehaviour or
reported lack of integrity, it would, in substance and reality, mean
their removal merely on the basis of n:ports, rumours and gossip
jeopardising their security and independence without resorting to the
H regular process of removal laid down in Art. 124(4) and (5) read
with Art. 218 and the Judges (Inquiry) Act No. 51 of 1968, and (c)
it is bound to affect the quality or character of justice administered
S.P. GUPTA v. UNION (Tulzapurkar, J.) 917

by them during their initial term or at any rate towards the end of A
their term because human nature being what it is their work, perfor-
mance and behaviour will be guided by the anxiety to keep them-
selves on the right side of the Chief Justice of the High Court, the
Chief Justice of India and the appointing authority and every
litigant will be entitled to complain that as against the State he has
been denied equal protection of the laws and equality before law; in
B
other words, violation of Arts. 14 and 21 is involved and in this
behalf reliance has been placed on Krishna Gopal v. P.C. Sethi(1) and
In Re The Special Courts Bill, 1978.(2)

On the other hand Counsel for the contesting respondents have
urged that since in either granting an extension to these Additional
Judges on the expiry of their initial term or in making them perma-
c
- nent a fresh appointment is involved the consultative process covering
suitability under Art. 217( I) is clearly attracted; even otherwise,
going through the consultative process at this stage is both necessary
and desirable inasmuch as an erroneous appointment of an unsuit- D
able person produces irreparable damage to the faith of the commu-
nity in the administration of justice causing serious injury to public
interest though failure to appoint a deserving person is not likely to
inflict such irreparable injury and therefore it is but proper that at
the time of their reappointment these sitting Additional Judges
should pass the test of suitability (i.e. capacity, character, integrity E
and fitness) under Art. 217(1) and it is unthinkable that if all the
constitutional consulting functionaries are of the agreed view and the
appointing authority shares the same view that by reason of what
has happened in the mean time an erstwhile Additional Judge is no
longer fit to be appointed he should nonetheless be appointed.
Counsel for the contesting ·respondents refuted each one of the F
grounds urged by the petitioners in support of their objection to
bringing in the consultative process inclusive of suitability again at
the stage of reappointment of the sitting Additional Judges. Regard-
ing the aspect of probation, Counsel accepted the position that
Additional Judges are not and cannot be said to be on probation
but according to him what is meant by that is that, unlike a proba- · G
tioner who is liable to be removed during his probationary period if
he is found unfit or unsuitable and who is confirmed only upon satis-
factory completion of the probationary period, the sitting Additional
Judges, not being on probation, have an indefeasible tenure though
H
(1) [1974] 2 SCR 206.
(2) (1979] 2 SCR 476.
918 SUPREME COURT REPORTS [1982] 2 s.c.R.

A for short periods fixed in their warrants of appointment and during
the fixed tenure they can be removed only by following their regular
process laid down in the Constitution and Judges (Inquiry) Act,
I 968; any further appointment is always the result of a fresh consi-
deration and fresh consultation with the consulting functionaries
mentioned in Art. 217(1) To suggest that they should be reappoint-
B ed as a matter of course if the pre-conditions of Art. 224(1) subsist
or pendency of work justifies their confirmation and then take steps
for their removal under Art. 124(4) and (5) read with Art. 218 and
Judges (Inquiry) Act, 1968 would be manifestly unsound, if not
absurd. Counsel disputed that if as a result of the consultative
process undertaken they are dropped it amounts to their removal
c because, according to him, it becomes a case of non-appointment
after their inital term has expired. Counsel strenuously disputed
that bringing in the process of consultation under Art. 217(1) inclu-
sive of suitablity again at the stage of reappointment would affect the
quality or character of justice administered by them during their
--
initial term or towards the end of their term as suggested hy the
D petitioners and no question of any violation of Art. 14 or 21 as
involved and the two decisions relied upon by Counsel for the
petitioners do not support that contention.

I have already come to the conclusion that there is a valid
classification between the proposed appointees for initial recruitment
E and the sitting Additional Judges whose cases for their continuance
on the expiry of their initial term are to be decided and have further
held that unlike the former the latter have a legitimate expectancy
and an enforceable right not to be dropped illegally or at the whim
or caprice of the appointing authority and to be considered for
F their continuance either as Additional Judges or as Permanent Judges
in their High Court. From this conclusion certain consequences
logically ensue. First, if the sitting Additional Judges have this
enforceable right to be considered for their continuance, it must
follow that the eventual non-continuance, if any, can become a
justiciable issue open to judicial review, if such non-continuance is
J-.
G based on extraneous or non-germane considerations or is ma/a fide
in law or in fact, and in that sense it will not be a case of non-
appointment as is the case qua the proposed appointees at the stage
of their initial recruitment. Secondly, it also follows that in substance
and reality in extending their term or making them permanent in their
H High Court no 'fresh appointment' in the sense of initial or fresh
recruitment is involved, except for the formality of issuing a fresh
warrant of appointment and taking a fresh Oath. If that be the
S.P. GUPTA v. UNION (Tulzapurkar, J.) 919

correct position then all the submissions made on behalf of the A
contesting respondents on the basis that granting them extension or
making them permanent involves a 'fresh appointment' must be
rejected and logically speaking the consultative process in so far as
suitability under Art. 217(1) is concerned is not attracted at all.

Even so, in view of the aspects of public interest that have B
been pressed into service, the question may be considered as to
whether, when their continuance on the expiry of their initial term
is being determined, the test of suitability under the consul-
tative process of Art. 217(1) should be invoked or gone through
afresh ? The question thus posed assumes great significance but
is ticklish and defines easy solution in view of the cogent and C
almost convincing rival submissions made on either side as

- summarized above but the answer to the same will have to be
found only on objective considerations. At the outset it may be
stated that it was not disputed before us that sitting Additional
Judges are not on probation and cannot be regarded or dealt with
as probationers. Question is what is the implication of admitting D
the position that "an Additional Judge is not a Judge on probation'~
as has been done by Shri Kankan in his counter-affidavit dated July
22, 1981 (filed in the Transfer Case No. 20 of 1981)? It is true as
has been pointed out by the learned Attorney General that they are
not probationers in the sense that they have an indefeasible tenure E
though for the periods fixed in their warrants of appointment and
that during such fixed tenure, like the Permanent Judges, they can
be removed only by following the rugular process for it as indicated
in the Con stitutfon and the Judges (Inquiry) Act, 1968 but in the
. context of their having an enforceable right not to be dropped
illegally and to be considered for their continuance, will it be F
possible to confine the concept of probation to these two aspeet
mentioned by him ? Does it ~ean that for deciding upon .their
continuance they should be treated as on probation ? The learned
Attorney-General did not mince words when he contended that they
.--
'
should pass the test of suitability again at the time of declcling upon
their continuance because he asserted that what has ,happened int.he G
mean time during their short tenure (meaning their work, perfor-
mance and behaviour as throwing light on their capacity, character,
integrity and fitn'ess) should be taken into c~nsideration. It cannot
be disputed that aspects like slow disposal, unsatisfactory perfor·
mance; inefficien'cy, incompetency, suspected misbehaviour. and/or H
reported la.Ck of integrity all converge on suitability and therefore all
920 SUPREME COURT REPORTS [I 982J 2 S.C.R.

A these will have to be taken into consideration as suggested by him.
However, the full implication of the admission made on behalf of
the contesting respondents is that Additional Judges are not appoin-
ted to try out their fitness pending their further continuance either
as Additional Judges or as permanent Judges; they are appointed,
having passed the suitability test at the initial stage, to dispose cases
B instituted in the High Court in accordance with their Oath "Without
fear or favour, affection or ill-will" from the very first day of their
assuming office, though the occasion to appoint them arises because
of a sudden increase in the work of High Court or arrears of
work therein; in fact appointment of Additional Judges on probation
would be destructive of judicial independence. If, therefore, the
·C Additional Judges are not on probation in any sense of the term,
how can their continuance either as Additional Judges or Permanent
Judges be made to depend upon the evaluation or assessment of
their suitability as emerging from their work, performance and
behaviour during their initial term ? Clearly the answer would be
-
in the negative. On this reasoning aspects like slow disposal, unsatis-
D factory performance, inefficiency and incompetency get easily ruled
out but the real problem that requires to be faced is what should
happen whom aspects like suspected misbehaviour and/or reported
lack of integrity on their part during their short tenure come to the
fore? This is the knottiest problem that has engaged my long and
anxious consideration. Baldly put, the question is : Should an
E
Additional Judges whose misbehaviour or lack of integrity has come
to the fore be continued as an Additional Judge or confirmed as a
Permanent Judge ? The answer at the first impulse and rightly would
be in the negative but the question requires deeper consideration.
If the misbehaviour or lack of integrity is glaringly self-evident the.
question of his continuance obviously cannot arise and in all
F
probabilities will not engage the attention of the appointing autho-
rity, for, the concerned Judge in such a situation would himself
resign but when we talk of misbehaviour or lack of integrity on the
part of an Additional Judge having come to the fore, by and large
the instances are of suspected misbehaviour and/or reported lack of ,.L,

G integrity albeit based on opinions expressed in responsible and respec-
table quarters and the serious question that arises is whether in such
cases the concerned Additional Judge should be dropped merely on
opinion material or concrete facts and material in regard to allegations
of misbehaviour and/ or lack of integrity should be insisted upon ? In
H my view since the question relates to the continuance of a high
constitutional functionary like the Additional Judge of High Court
s.P. GUPTA v. UNION (Tulzapurkar, J.) 921

it would be jeopardising his security and judicial independence if A
action is taken on the basis of merely opinion material. Moreover,
no machinery having legal sanction behind it for holding an inquiry--
disciplinary or otherwise against the concerned Judge on allegations
of misbehaviour and/or lack of integrity obtains in the Constitution
or any 1aw made by the Parliament, save and except the regular
process of removal indicated in Art. 124(4) and (5) read with Art. 8
218 and the Judges (Inquiry) Act, 1968. Therefore, the important
question that arises in such cases of suspected misbehaviour and/or
reported lack of integrity is who will decide and how whether the
concerned Judge has in fact indulged in any misbehaviour or act of
corruption ? In the absence of satisfactory machinery possessing
legal sanction to reach a positive cone! us ion on the alleged misbeha- c
viour or an act of corruption the decision to drop him shall have

- been arrived at merely on the basis of opinions, reports, rumours or
gossip and apart from being unfair and unjust to him such a course
will amount to striking at the root of judicial independence. The
other alternative, namely, to continue him as an Additional Judge
for another term or to make him permanent if a vacancy is available D
and then take action for his removal under the regular process indi-
cated in Art. 124(4) and (5) read with Art. 218 and Judges (Inquiry)
Act, 1968 may sound absurd but must be held to be inevitable if
judicial independence, a cardinal faith of our Constitution, is to be
preserved and safeguarded. Not to have a corrupt Judge or a Judge
who has misbehaved is unquestionably in public interest but at the
E
same time preserving judical independence is of the highest public
interest. It is a question of choosing the lesser evil and in inevitable
course has to be adopted not for the protection of the corrupt or
dishonest judge but for protecting several other honest, conscientious
and hard-working Judges by preserving their independence; it is a
price which the Society has to pay to avoid the greater evil that will
F
ensue if judicial independence is sacrificed. Considering the question
from the angle of public interest therefore, I am clearly of the view
that while considering the question of continuance of the sitting
Additional Judges on the expiry of their initial term either as
Additional Judges or as Permanent Judges the test of suitability
G
contemplated within the consultative process under Art. 217(1)
should not be invoked-at least until such time as proper machinery
possessing legal sanction is provided for enabling a proper inquiry
against an alleged errant Judge less cumbersome than the near
impeachment process contemplated by Art. 124 (4) and (5) of the H
Constitution.
922 SUPREME COURT REPORTS [1982] 2 S.C.R.

A However, the third ground of objection to bringing in the
consultative process covering suitability under Art. 217(1) at the
stage of deciding upon their continuance does not impress me much.
It is difficult to accept the contention that bringing in the suitability
test under Art. 217(1) at that stage is bound to affect the quality or
character of justice adminstered by the sitting Additional Judges
B during their initial term or towards the end of their term. In fact,
so far on every occasion the consultative process inclusive of the
suitability test under Art. 217(1) has been resorted to while consider-
ing the question of granting extension to the Additional Judges or
making .them permanent on the expiry of their initial term and no
one has suggested that because of this their work, performance or
c behaviour was or has been guided by the anxiety to keep themselves
on the right side of the Chief Justice of the High Court, the Chief
Justice of India or the Appointing Authority. Instances are not
wanting when within the first few days of their assuming office they
have deliverec-1 judgments dissenting from their Chief Justice as also
--
of having rendered decisions un-palatable to the Executive when their
D
term was about to expire. If the basic assumption made while
putting forward the argument is not well-founded then there will be
no question of any violation of Arts. 14 and 21 being involved. The
two decisions on which reliance has been placed also do not support
the contention urged on behalf of the petitioners. In the former
decision (P.C. Sethi's case) (supra) though the Chief Justice's order
transferring the election petition from a Permanent Judge and allo-
cating it to an ad hoc Judge appointed under Art. 224A was set
aside on the facts of the case, this Court at page 215 of the report
observed thus :-

F It seems indeed desirable that election petitions should
ordinarily, if possible, be entrusted for trial to a permanent
Judge of the High Court, even though we find that addi-
tional or acting judges or those requested under Article
224A of the Constitution to sit and act as judges of the
High Court, if assigned for the purpose by the Chief
G Justice, are legally competent to hear those matters."

If anything the observation suggests is that there is nothing illegal
or improper if Additional or Acting or ad hoc Judges hear
and dispose of election petitions, though in that particular case
H because of 'special facts and circumstances' obtaining therein the
Chief Justice's order was interfered with. In the other case (In re
The Special Courts Bill, 1978 (supra) Cl.'7 of the Special Courts Bill
s.P. GUPTA v. UNION (Tulzapurkar, J.) 923

provided that Special Courts were to be presided over either by a A
sitting Judge of a High Court or by a person who had held the office
of a Judge of a High Court to be nominated by the Central Govern-
ment in consultation with the Chief Justice of India and this Court
pointed out a couple of infirmities in that Clause, namely, a retired
Judge of the High Court unlike a sitting Judge did not enjoy security
of tenure and would be holding his office as a Judge of the Special B
Court during the pleasure of the Government and it was conceivable
that such a Judge presiding over the Special Court, if he displayed
strength and independence might be frowned upon by the Govern-
ment and there was nothing to prevent the Government from termi-
nating bis appointment as and when it liked. It was further pointed
out that though his appintment was required to be made in consul- c
tation with the Chief Justice of India there was nothing in the Bill
- to show that his termination will also require similar consultation
and even if it were assumed that such consultation would be made
even for his termination the process of consultation, with its own
limitations, would be a poor consolation to an accused whose life
D
and honour was at stake. It is true that these infirmities in CI. 7 of
the Bill were pointed out by this Court to emphasize the aspect that
appointing a retired High Court Judge as a Judge of the Special Court
who is to be nominated by the Central Government to try a special
class of cases may not inspire confidence not only in the accused but
in the entire community. It is also true that on these infirmities being E
pointed out the then Central Government accepted the suggestion of
the Court that only a sitting Judge of a High Court would be appoin-
ted to preside over a Special Court and that such appointment will
be made with the concurrence of the Chief Justice of India. How-
ever, all these observations and views that emerge from the opinion
or advice which this Court gave to the President in a Reference under F
Art. 143(1) of the Constitution, on which Counsel for the petitioners
placed great reliance, must be understood in the context of the
Special Courts Bill which had been drafted by the then Central
Government for the purpose of trial of special type of offences
allegedly committed by persons holding high public or political
offices in the country in the peculiar circumstances that obtained G
during the last Emergency and for some period prior thereto, under
which a special expeditious procedure for trial other than the normal
procedure contained in the Criminal Proeedure Code has been
prescribed and those observations and views, therefore, would be
inapplicable to the issue raised before us, for parity of reasoning, in H
the absence of parity of situation, is of no avail. However, for th11
924 SUPREME COURT REPORTS [1982] 2 S.C.R.
A reasons indicated earlier, in my view, at the time of deciding upon
the continuace of the sitting Additional Judges on the expiry of
their initial term the consultative process should be confined only to
see whether the pre-conditions mentioned In Art. 224(1) exist or not
or whether pendency of work justifies their confirmation or not and
the test of suitability contemplated within the consultative process
B under Ari. 217(1) cannot and should not be resorted to at all.

The next question that requires consideration is whether in the
consultative process contemplated by Art. 217(1) is any primacy
intended to be given to the views or advice to be tendered by the
Chief Justice of India in the matter of appointment of a High Court
c Judge or whether from amongst the three consulting functionaries
the President (appointing authority) is entitled to choose or perfer
the views or advice of anyone to those of the other or others ? It
may be stated that this question really arises only in regard to the
views or advice tendered on the suitability aspect and not on the
aspect touching the existence of the pre-conditions of Art. 224(1) or
D pendency of work justifying confirmation, because the former aspect
is a matter of subjective assessment while the latter depends on·
objective facts over which no difference is likely to arise. I would
also like to observe that the aforesaid question cannot at all arise in
view of my conclusion that the test of suitability falling within the
consultative process under Art. 217( I) cannot and should not be
E resorted to, while deciding upon the continuance of sitting Additional
Judges. Obviou~ly the question cannot arise in cases of non-appoint-
ments qua proposed appointees at the time of their initial recruitment,
for such non-appointments are cases of non-sequitur. My conclusion
thus completely obviates dilemma posed in the question. However,
I shall be considering this question on the assumption that I am
F wrong in my view that the test of suitability is attracted and should
not be invoked at the time of deciding upon the continuance of the
sitting Additional Judges. The question of primacy obviously has to
be considered by keeping in mind the object or purpose of providing
for such consultation which was explained by Dr. Ambedkar in the
Constituent Assembly thus :-
G
''There can be no difference of opm10n in the House
that our judiciary must both be independent of the execu-
tive and must also be competent in itself. And the question
H is how these two objects could be secured. There are two
different ways in which this matter is governed in other
countries ...... {Here follows a reference to the practices
s. P. GUPTA v. UNION Tulzapurkar, J.) 925

A
-
obtaining in Great Britain and the United States) ........... .
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 B
matters of this sort, and my judgment is that this sort of
provision 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
c
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 al/ow the
Chief Justice practically a veto upon the appointment of
D
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."

(Vide Constituent Assembly debates 1949. Vol 8, page. E
258) (Emphasis supplied)

In other words the object of providing for such consultation clearly
is that the same should act as a controlling or limiting factor on the
discretion vested in the President while performing his executive
F
function of making appointment of High Court Judges and neither)
the President nor the Chief Justice should have a power to veto a
proposal. Further, this question will have also to be considered in
the light of what this Court has said .about the almost binding
character of the resultant advice flowing from the consultative
process. In Sankalchand Sheth' s case (supra) dealing 'with the efficacy G
of consultation with the Chief Justice of India under Art. 222(1)
Krishna Iyer, J. at page 502 of the report, observed :

"It must also be borne in mind that if the Government
departs from the opinion of the Chief Justice of India it has H
to justify its action by giving cogent and convincing reasons
for the same and, if challenged, to prove to the satisfaction
926 SUPREME COURT REPORTS (1982) 2 S.C.R.

A of the Court that a case was made out for not accepting the
advice of the Chief Justice of India ........... Of course, the
Chief Justice has no power of veto, as Dr. Ambedkar
explained in the Constituent Assembly."

In Shamsher Singh's case(1) the Court was dealing with consultation
B with the High Court under Art. 234 read with Art. 235 and in that
behalf Krishna Iyer, J at p. 873 of the report has observed :

"In all conceivable cases consultation with that highest
dignitary of Ihdian justice will and should be accepted by
the Government of India and the Court will have an oppor·
c tunity to examine if any other extraneous circumstances
have enterec:l 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
D considerations vitiating the order."

Keeping both the above aspects in mind one has to consider
the question of primacy and in order to consider the same it will be
necessary to set out Art. 217( 1) which runs thus :

E "217( I) Every Judge of the 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 Addi-
F tional or Acting Judge as provided in Art. 224 and in any
other case until he attains the age of 62 years."

On the question as to whether any primacy is intended to be
accorded to the views or advice that would be tendered by the Chief r-.
Justice of India. during the consultative process over the views or
·G advice of the other two consulting functionaries (Governor of the
State and the Chief Justice of the High Court) or whether all the
three consulting functionaries are of co-ordinate authority so as to
acccord equal efficacy to each one's views or advice, the Article is
clearly silent and simply because the expression 'consultation' has
H
(I) [1975] I S.C.R. 814.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 927

been used, it does not mean that the President has absolute authority A
or discretion in the matter because as explained by Dr. Ambedkar
consultation has been provided with the object of limiting the
authority or discretion of the President. Question is whether when
the three functionaries differ in their views or advice had not the
President a choice to prefer the views or advice of one of the three?
Counsel for contesting res~ondents contended that the President B
must have the right to make a choice as no one functionary has been
given any primacy and in support Counsel strongly relied upon the
fact that during the constituent assembly debates a specific amend-
ment was moved by Mr. B. Pocker Saheb from Madras to the
original Draft Article 193( I) (which was in identical terms as the
present Article in so far as is material) to the effect that the every c
Judge should be appointed by the President "on the recommendation
....... of the High Court concerned, after consultation with the Governor
of the State concerned and with the concurrence of the Chief Justice
of India"' clearly seeking to give higher importance or status to the
Chief Justice of India in the matter (vide Constituent Assembfy
Debates 1949, Vol VIII page 658) but the &aid amendment was
D
rejected and the Draft Article became the present Art. 217(1). It
was urged that the rejection of the amendment is a clear pointer
indicating that the Constituent Assembly wanted to give coordinate
authority to each one of the three consulting functionaries and no
primacy was intended to be given to the views or advice of any E
. - particular functionary .

In the· first place in the very nature of things it is difficult to
accept the submission that all the three consulting functionaries under
Art. 217(1) must be regarded as of co-ordinate authority for the simple
reasons that on aspects like capacity, character, merit, efficiency and
F
fitness which converge on the suitability of the person proposed for
appointment the Governor of the State will be least informed and
will have nothing to say whereas the Chief Justice of the High Court
and Chief Justice of India, being best informed, are well equipped
to express their views and tender advice; further it is an accepted
position which has been alluded to by the Law Commission in its G
14th Report, that it is because of the financial aspect (salary and
emoluments of a High Court Judge being charged on the Consoli-
dated Fund of the State) and information about the antecedents,
local affiliations and like other matters, capable of objective proof.
concerning the proposed appointee which the State Executive would H
be possessing, that consultation with the Governor haseenb provided
928 SUPREME COURT REPORTS (1982] 2 S.C.R.

A for. It is, therefore, difficult to regard the Governor of the State
as being of co-ordinate authority with the other two consulting
functionaries especially on the aspect of suitability which is the
primary thing in the matter of making appointment of High Court
Judges.· Secondly, in my view. Mr. Pocker Saheb"s rejected amend·
ment has nothing to do with the primacy question at all because
B . it was concerned with the effort at complete exclusion of the execu-
tive interference in the matter of appointment of the High Court
Judges .. If the amendment had been accepted the result would have
been that the appointment shall have been made with the initiation
of the proposal ·by the Chief Justice of the H;gh Court, the consul-
tation with the State Executive being retained because of the financial
c aspect and information regarding antecedents, etc. and only upon
the concurrence of the Chief Justice of India, which, in other words,
means the Chief Justice of India would have had the power to veto
any-proposal. In my view, conferring a power of veto on the Chief
Justice of India is entirely different from the prim1cy being given to
his views or advice over and above the views or advice of the other
consulting functionaries, as a limiting factor on the President"s
D discretion. Dr. Ambedkar also understood the proposed amendment
of Mr. Pocker Sahib in this manner and pleaded for its rejection on
the ground that it sought to confer a power of veto on the Chief
Justice of India which he thought was undesirable. The rejection
of the amendment, therefore, has no bearing whatsoever on the
E question of primacy with which the Court is concerned at the
moment: Thirdly, once it is realised that the scope and ambit of
fa:! and effective consultation requires that all the material facts and
records concerning the proposed candidate must be made available
to both . these consulting functionaries by placing the same before
each during the consultative process and that each consulting
F · functionary must consider the same or identical material and
exchange eachone's views thereon with the other there js no merit }--
left in the argument that the Chief Justice of the High Court has a •
closer opportunity to assees the suitability of the proposed appointee;
surely it is not a case of watching the demeangur of a witness so as
. to put the assessment cir the Chief Justice of the High Court on any
G higher footing.· Having regard to these aspects, particularly the last
one, one will have tci consider \Vhethcr any primacy could be and
should be given to the views and advice tendered by the Chief Justice
of India to the President in the matter of appointing High Court
Judges. l must confess that the Article does not expressly suggest
H that any primacy is to be accorded to his advice during the consul-
s. P •. GUPTA v. UNION (Tulzapurkar, J.) 929

tative process undertaken in Art. 217(1) but, in my view, the scheme A
of consultative process contemplated by that Article evisages consi-
deration of identical facts and materials bearing on the suitability of
the candidate by both the consultingfunctionaries,~namely, the Chief
Justice of the High Court and the Chief Justice of India, as also an
exchange of their views on such material, and thereafter placing of
the entire material together with each one's vieWs thereon and the
B
tendering of the advice or final recommendation by the Chief Justice
of India to the President whose decision should be guided by such
advice or final recommendation so tendered. If such be the scheme
envisaged by Art. 217(1)-and I am of the opinion it does envisage
such a scheme, then cl early by implication primacy is intended to be
given to the advice that would be tendered by the Chief Justice of
c
India to the President. In any event, I would suggest that evolving
such a scheme regarding the consultative process under Art. 217(1)
would be in fitness of things as primacy shall have been given to the
advice or final recommendation to be tendered by the Chief Justice
of India who happens to occupy the highest .constitutional position o.
as the head of the Indian Judiciary. It may be noted that giving
primacy to the advice of the Chief Justice of India in the matter of
appointment of High Court Judges is not to give power to veto any
proposal as was contemplated by Mr.. Pocker Saheb's amendment
nor would giving such primacy to his advice mean that the Chief
Justice of India would be enjoying unfettered arbitrary powers, for, E
if his advice has proceeded on extraneous or non-germane considera-
tions the same shall be subject to the judicial review just as the
President's final decision is so subject if he were to disregard the
advice of the Chief Justice of India unless the same is justified for
cogent and convincing reasons. But the point I would like to em-
phasise is that construing Art. 217(1) as envisaging the scheme of the
nature indicated above would go a long way in preserving judicial
independence rather than not according primacy to Chief Justice of
India's advice and permitting the President to act 'as an arbiter
between the divergent views of the two high constitutional func-
tionaries and leaving him to prefer the views of one to the other.
' G
Having considered the question of· primacy as aforesaid, I
would like to make a couple of observations on the basis that the
suitability test is required to be passed by the sitting Additional
Judges over again at the time of deciding upon their continuance
either as Additional Judges or as Permanent Judges. The consul· •H
tative proC1 ss even on this occasion must be full, complete and .
effective as is the case with the consultative process that is required
930 SUPREME COURT REPORTS (1982] 2 S.C.R.

A to be gone through under Art. 222(1) when the question of transfer
of a Judge from one High Court to another High Court is consi-
dered. Further, the procedure to be followed at the time of
undertaking such consultative process must also ensure fair play qua
the concerned sitting Additional Judge. In other words, though
the principie of natural justice in its full vigour is not contemplated,
B the sitting Additional Judge should not receive a raw deal at the
bands of the consulting functionaries. and either one or the other or
if necessary both should hear him, especially if any adverse material
1, is weighing in their minds against him, just as in a case under
Art. 222(1) the personal difficulties and other grounds of objec-
tions of the proposed transferee are considered by the consulting
c functionary. In other words, in my view the scope and ambit

-
~ of the consultr.tive process under Art. 217(1) and 222(1) are and
must be the same.

I shall next deal with the question of short term extensions
which have been challenged by the petitioners as being directly
D subversive of the independence of Judiciary and, therefore, not
contemplated by the Constitution. The contesting respondents in
that respect have placed strong reliance upon the provision contained
in Art. 224(1) to suggest that such short-term extensions are contem-
plated and fall within the power conferred upon the appointing
authority under that Article. It is true that Art. 224(0 confers
E power on the President to appoint duly qualified persons to be
Additional Judges of a High Court if the pre-conditions mentioned
therein exist "for such period not exceeding two years as he may
specify". Relying on the phrase "for such period not exceeding
two years as be may specify" occurring in the Article, the contesting
respondents have claimed that that phrase only fixes the maximum
F period of two years at a time, that the Article does not limit the
•
discretion of the appointing authority in the matter of the period
for which an Additional Judge can be appointed except in regard to
, the ceiling of two years and that the appointment can be for a
shorter period which period is not justiciable and what has been
urged is that the period must of necessity get co-related to the
G continued existence of the pre-conditions relating to the volume of
work for which the appointments are to be made, Such a literal
construction is difficult to accept because no provision of the Cons-
titution can be interpreted in a manner which will be in conflict with
any of the basic features of the Constitution and the cardinal
H
principle of independence of Judiciary is one such basic feature;

0
s.P, GUPTA v. UNION (Tulzapurkar, J.) 931

therefore, the construction to be put on the phrase in the Article A
must be consistent with the said principle. It cannot be disputed
that security of tenure ensures judicial independence and tenures for
short-terms like three months, six months or nine months bring in
insecurity directly impinging on judicial independence and also tend
to shake the faith of the community in the administration of justice
and, therefore would be unconstitutional. Moreover, granting short· B
term extensions for periods Hke three months, six months, or nine
months 'pending inquiry into the complaints' said to have been
received against some of the sitting Additional Judges, as has been
admiKed by Shri Kankan in his counter-affidavit on behalf of the .
contesting respondents, would be clearly outside the contemplation
of the Constitution for no machinery having legal sanction behind it
c
... has been provided for either in the Constitution or any other law
authorising such inquiry or investigation into the complaints against
sitting Additional Judges and the practice of giving short-term
extensions on such ground must be deprecated and regarded as
unconstitutional. I have already held that the suitability test is not
attracted while deciding upon th~ continuance of the sitting Addi··
tional Judges but assuming that it is requited to be gone through the
process must be completed well in advance of the date of expiry of
their initial term or if for any reason it cannot be so completed the
concerned Additional fodge must be given extension for at least one
year. In this behalf I would again like to refer to the constitutional E
convention or practice that has grown over the years, notwith-
standing the phrase "for such period not exceeding two years as he
may specify" occurring in Art. 224(1), which is to appoint Additional
Judges initially for a period of two years, which has come to be
regarded as the 'normal term' and on the expiry of this term to
continue them for a further period of two years and so on till they F
are confirmed as Permanent Judges, subject, of course, to the pre·
conditions continuing to obtain in that High Court and it has been
pointed out that Art. 224(1) has been worked in that manner over
the years. In any case. n" extension for less than a year should ever
be granted irrespective of whether volume of work justifies it or not
simply with a view to give the Judge concerned fixity of tenure for G
that period. Further, it is extremely desirable and necessary that
orders granting extensions to sitting Additional Judges or making
them permanent are issued and intimated to the concerned Judges
and not merely to the Constitutional authorities as was suggested
during the vacation hearing, well in advance of the date of expiry of H
their term and not at the eleventh hour keeping them on tenter-
hooks till the last moment. After all the sitting Additional Judges
932 SUPREME COURT REPORTS (1982) 2 S.C.R.

A are high Constitutional functionaries possessing the same position,
powers and privileges as the Permanent Judges, and deserve due
consideration and respectful treatment at the hands of the appoint-
ing authority.

, Apropos their challenge to short-term extensions the petitioners
B have contended that Art. 216 of the Constitution casts a primary
obligation upon the Presiden~ mandatorily to provide adequate
permanent strength to every .High Court to cope with its normal
business so as to ensure its disposal within reasonable time and to
review such strength from time to time so that arrears dp not
·accumulate and justice to li.tigants is not unduly delayed, while the
c power to appoint Additional Judges under Art. 224(1) is only to
meet, (a) temporary increase in the business of the High Court or
(b) arrears of work therein, and the complaint is that the appointing
authority or the Union Government has failed to discharge its
-
mandatory obligation under Art. 216 and has gon~ on appointing
Additional ·Judges even when a substantial increase in the normal
D business is there in almost every High Court justifying the reviewing
of the permanent strength of those High Courts. The contention has
been that the objective facts obtaining in many High Courts
unmistakably demonstrate that the increase of business is not of a
temporary character but is a permanent increase every year and that
the arrears have increased and accumulated to an appreciably
E disturbing level with no reasonable prospects of substantially reduc-
ing the same over a period of years and, therefore, the President
cannot resort to Art. 224( I) but has to increase the permanent
strength by making permanent appointments under Art. 217 read
with Art. 216. In any case it is urged that Additional Judges cannot
be appointed while keeping permanent post vacant as is happening
F at present frequently. The submission of the petitioners therefore
has been that in view of such reality, obtaining in various High
Courts the action on the part ·of the appointing authority in keeping
a large number 0f sitting Additional Jud!jes as Additional Judges
would be arbitrary and unconstitutional and a clear case exists for
declaring them to be deemed to have become permanent or for
G directing the President to make them permanent by appropriately
increasing the permanent strength in the concerned High Courts and
it will be within the powers of this Court to pass appropriate· orders
or give necessary directions in this behalf. In support of these submis-
H sions statements containing statistical materials pertaining to Bombay !

High Court and Delhi High Court were relied upon .and on the I
!
S.P. GUPTA v. UNION (Tulzapurkar, J.) 933

question of Courts' power to grant appropriate reliefs reliance was A
placed upon two decisions of this Court, namely, Shewpujanrai
·lndrasanrai Ltd. v. The Collector of Customs and Ors. (1) and Y.
Mahaboob Sheriff and Ors. v. Mysore Stat~ Transport Authority
and Ors.(2)

On the other hand,. Counsel for the contesting respondents B
denied that the appointing authority has failed to discharge its obli-
gation to provide adequate permanent strength in the High Courts.
It was not disputed that the volume of work in almost every High
Court has increased tremendously and heavy arrears have accumulated
and are ever mounting but it is pointed out that whenever any Chief
Justice of any High Court had asked for a.n increase either in the per- c
manent strength or in the strength of Additional Judges such request
was always considered and responded to satisfactorily. On the ques;
tion of liquidating arrears it has been pointed out that the problem is
not merely related to the strength of either permanent or Additional
Judges obtaining in a High Court but depends on numerous other
factors and several suggestions in the directiOn of finding a solution D
to that problem have been under active consideration of the Union
Government. Counsel, however, strenuously disputed th:it in this
area appertaining to executive function of the· appointing authority
and/or the Union Govern.ment this Court can grant relief by way of
declaring the sitting Additional Judges to be deemed to have become
permanent or by directing the President to make them permanent by E
appropriateJy increasing the permanent strength in the concerned
High Courts as has been prayed for by the petitioners.

On a consideration of the two relevant Articles, namely, 216 and
224(1) it seems to me quite clear that Art. 216 unquestionably casts
a mandatory obligation on the President (appointing authority) . to F
provide adequate strength of permanent Judges in every High Court
to cope with and dispose of its normal business and further to review
periodically such permanent strength. The word "shall" and the
further words "such other Judges as the President ma" from time to
time deem it necessary to 'appoint" occurring in the A;ticle are a clear
pointer in that direction. Art. 224(1) as has been stated earlier, G
confers power on the President to appoint Additional Judges only to
meet the situation arising from (a) temporary increase in the business
of the High Court, or (b) arrears of work therein. In other words

(I) [19591 2 S.C.R. 821 at 840 and 841. H
(2) [1960] 2 S.C.R. 146.
934 SUPREME COURT REPORTS [1982) 2 s.c.R.

A if the increase in the work or business of the High Court is not of a
temporary character but a permanent increase every year resort will
have to be made to Art. 216 and not to Art. 224(1). Further I·
would also like to observe that ordinarily it will not be proper to
appoint an Additional Judge in a High Court while keeping a perma-
nent post vacant or unfilled. But beyond making these observations
B which should guide the exercise of the power both under Art. 216
and Art. 224(1) by the appointing authority I am satisfied that it will
not be proper for this Court to give the directions or reliefs sough. t
by the petitioners for the reasoas which I shall presently indicate.
In the first place it cannot be disputed that appJinting Judges to a ~·

High Court either as permanent Judges or Additional Judges is
c purely an executive function entrusted by the. Constitution to the
appointing authority and it will not be proper for this Court to usurp
that function to itself or is1ue any directions in that behalf unless
forced by glaringly compelling circumstances. Secondly, no directfon
or relief as sought is possible unless a full, complete and correct
assessment about the requisite strengths of Permanent I as well as
D Additional Judges of every High Court as on a particular date is
made available to the Court. Thirdly such assessment about the
requistite strengths for every High Court must depend on statistica~
data to be collected thtowing light on 'normal business', 'temporary
increase', and 'arrears of work' in each Hfgh Court after fixing the
rate of disposal per Judge per year and defining what should be
E regarded as 'main cases', 'miscellaneous cases' or 'interlocutory
cases' etc; the norm in regard to such matters being a variable·
criterion requiring refixation depending on facts, circumstances and
situation as and when they devefop. It would therefore, be extre-
mely difficult for this Court to issue directions or grant reliefs of
the nature sought by the p~titioners. Moreover, relief by way of
declaring the sitting Additional Judges to be deemed to have become
permanent is sought on the footing that the President sb.ould be
deemed or taken to have done what. be ought to have done in the
circumstances of the case but it will be difficult to accept the p·osition
that when the President has appointed a duly qualified person as an
Additional Judge for two years be should he deemed to have appoin-
G
ted him as the permanent Judge under Art. 216. Though no parti-
cular Article is referred to in the warrant of appointment reference
in the warrant to the fact that the person has been appointed "an
Additional Judge" and the mentioning of the short-period therein will
clearly negative any intention on the part of the President to appoint
H
·him a permanent Judge, notwithstanding the duty having arisen in
S.P. GUPTA v. UNION (Tulzapurkar, J.) 935

the circumstances of the case to 111ake a permanent appointment., A
For these 'reasons I do not think that this Court should issue the
directions or grant reliefs sought by ·the petitioners in this behalf
and it is hoped that the observations made above will guide the
future course of action of the appointing authority.

The next question on which a great deal of argument was B
advanced at the Bar by Gounsel for the p::titioners is whether before
effecting a transfer of a Judge from one High Court to another his
'.consent' to such transfer should he obtained or not, that is to say,
whether the words "with his consent" should be read into · Art.
222(1) of the Constitution or because a. transfer involves a 'fresh
appointment'. Article 222 (1) runs thus : c
"The President may, after consultation with the Chief
- Justice of India, transfer a Judge from one High Court to
any other-High Court."

It must be observed that this question was considered and decided
by this Court in Sankalchand Sheth's case (supra) in the negative by
D
a majority of 3:2 but according to Counsel for the petitioners the
majority view requires reconsideration and since these cases were
heard by a larger Bench of seven Judges he addressed the. Court
elaborately on the point. Before a dealing with the various aspects
of the contention urged by the Counsel for the petitioners in this
behalf it will be desirable to set-out in brief the background in which
E
that question arose for consideration and in what manner the same
was dealt with in that case both by the Gujarat High Court at the
initial stage and by this Court in appeal. During the last Emergency
a mass transfer of Permanent Judges from one High Court to
another was attempted in the name of national integration and in F
May 1976 it had been proposed to transfer 56 JudgC<s of the various
High Courts and as the first instalment 16 Judges, including Cb.ief
Justices, were in fact transferred. Justice Sankalchand Sheth, one
of the transferees, was shifted from Gujarat High Court to the High
Court of Andhra Pradesh. 'He filed a writ petition in the Gujarat
High Court against the Union of India and Chief Justice A.N. Ray G
challenging the order of transfer as void :and inoperative, inter-alia
on grounds of promissory estoppel, no effective consultation: and
want of consent on his part which should be read into Art. 222(1).
The Union of India in its affidavit in reply supported the impug11ed
order, inter-alia, on the ground that the power of the President to H
transfer a Judge was absolute save and except that he had to co11sult
the Chief Justice of India and as this had been done the transfer was
•
936 SUPREME COURT REPORTS (1982) 2 s.c.R.

A valid; that there was no question of promissory estoppel and that no
consent was required. No reasons were given for the transfer but
the policy of transfer was justified on the ground of national inte-
gration. No ·affidavit in reply was filed by the Chief Justice of
India who was the 2nd respondent .to the petition. The matter was
heard by a Full Bench of Gujarat High Court which unanimously
·u rejected the petitioner's plea of promissiory stoppel. By a majority,
consisting of Metha and D.A. Desai, JJ. the Full Bench rejected the
petitioner's contention that 'consent' must be read into Art. 222(1)
and also the contention that as a transfer of a Judge involves fresh
appointment such appointment could not be made without the
Judge's consent. A.D. Desai, J. however, in a minority view, upheld
c the petitioner's contention as regards 'consent' on both the grounds,
that is to say, he held that 'consent' must be read into Art. 222(1)
and that since a transfer of a Judge involves a fresh appointment it
could only be done with the Judge's consent. However, all the three
Judges unanimously held that the order of transfer was void as
-
it had been made without the requisite consultation with the Chief
·D Justice of India as contemplated by Art. 222(1) on its true interpre-
tation. Feeling aggrieved by this judgment of the Gujarat High
Court the Union of India preferred an appeal to this Court under
Certificate granted by the High Court, which was heard by a Cons-
titutfod' Bench of five Judges of this Court. On a statement being
made by the learned Attorney-General for the Union of India to the
E
effect that on the facts and circumstances of the case on record the
then Government did not consider that there was any justification
for transferring Justice Sheth from Gujarat High Court and propo·
sed to transfer him back to that High Court, Counsel for Justice
Sheth stated that his client was prepared to withdraw his writ
F petition with the leave of the Court. Though the appeal got settled
as above to the satisfaction of Justice Sheth, the Constitution Bench
desired to consider important issues arising in the case which related
to the aspect of judicial independence involved in transfer of High
Court Judges and after hearing arguments from Counsel on either
side delivered its judgment expressing its views on the issues
G involved. It may be stated that the plea of promissory estoppel was
not pressed and was not considered by this Court. On the aspect of
'consent' of the Judge concerned qua Art. 222(1) the Bench was
divided in its opinion, the majority of the Court (Chandrachud,
Krishna Iyer and Fazal Ali, JJ) upon a consideration of the wording
H of the Article itself in the context of the scheme, other provisions and

•
S.P. GUPTA v. UNION (Tulzapurkar, J.) 937

all relevant aspects held that as a matter of construction 'consent' A
could not be read into Art. 222(1) and further that consent of the
Judge who was transferred was not necessary as transfer involved
no fresh appointment; the majority further held that the power to
transfer could not be exercised by way of punishment but could ~e
exercised only in public interest and after consultation with the Chief
Juetice of India and that public interest and consultation with the
B
Chief Justice of India were sufficient safeguards against the abuse of
power under Art. 222( I) and with these built-in-safeguards it was
unnecessary to read 'consent' in that Article. Bhagwati, J. upheld
both the contentions of the original petitioner, namely that as a
matter of construction 'consent' should be read into Art. 222(1) and
secondly consent of the concerned Judge who was transferred was
c
necessary as a transfer involved a fresh appointment. Untwalia, J.
held that ·although consent could not be read into Art. 222(1) as a
matter of co'nstruction, such consent was necessary because the
transfer of a Judge involved a fresh appointment.

It may be stated that before arrivin.g at the aforesaid conclu-
D
sions the Judges have expressed their considered views on several
aspects concerning the power of transfer vested in the President
under Art. 222(1) in the -context of the concept of independence of
judiciary to which a brief reference will be appropriate. In the first
place all the Judges have emphasised the fact that the framers of our E
Constitution had taken the utmost pains to secure the independence
of the Judges of the Supreme Court and the High Courts and in that
behalf several provisions in the Constitution were referred to-a
position which was not disputed by the Attorney-General for the
Union of India. Further, all the Judges rejected the claim made on
behalf of the Union Government that the power conferred on the
President under Art. 222(1) was absolute or that if he were to
"consult" the Chief Justice of India there was an end of the matter
and the order of transfer could ·riot be questioned. The Court held
that the power ·of transfer conferred on the President under
Art. 222(1) was subject to two built-in-safeguards : (i) that it must
be exercised in public interest alone and not in order to punish a G
Judge or to make him toe the Government line and (ii) that it must
be exercised after full, complete and effective consultation with the
Chief Justice of India; in other words an order of transfer would
become a justiciable issue and. be liable to be quashed or set-aside if
(a) it was not in public interest or (b) ·it was passed without full, H
complete and effective consultation or (c) if the opinion or advice
938 SUPREME COURT REPORTS (1982] 2 s.c.a.

A of the Chief Justice of India was ignored or brushed aside without
cogent reasons. On the sco~ and efficacy of consultation contem-
plated under Art. 222(1) two learned Judges Chandrachud, J. and
Krishna Iyer, J. dealt with those aspects at some length and the
other learned Judges have substantially expressed their agreement
with their views on the point. The effect of the observations ori the
B scope of consultation can be briefly stated thus : Consultation with
the Chief Justice is obligatory and a condition precedent to lhe
exercise of that power by the President; such consultation must be a
real, substantial and effective consultation and in order that it should
be so, all relevant facts in support of the proposed action of transfer·
must be placed before the Chief Justice and all his doubts and
c queries must be adequately answered; the consultation casts an
obligation and a duty on the Chief Justice to elicit information not·
merely from the President and the Judge concerned but from such
quarters as he thinks fit on . all relevant aspects bearing on the
desirability, advisability and necessity of the proposed transfer
including factors personal to the Judge concerned such as his health,
D extreme family factors involving dislocation etc. so as to leave him
no grounds to complain of arbitrariness or unfairplay. On the
efficacy of the resultant advice tendered by the Chief Justice, Krishna
Iyer, J observed at page 502 of the Report thus :

"Secondly, although the opinion of the Chief Juslice of
India may not be binding on the Government it is entitled
to great weight and is normally to be accepted by the
Government because the power 1under Art. 222 cannot be
exercised whimsically or arbitrarily."

F Again after quoting a passage from the judgment in Chandramou-
lehwar' s(1) case and after referring to his own judgment in Shamsher
Singh's case (supra) in -which he struck the same chord, he observe.d
thus:

"It must also be borne in mind that if the Government
G
departs from the opinion of the Chief Justice of India it has
to justify its action by giving cogent and convincing reasons
for the same and, if challenged, to prove to the satisfaction
of the Court that a case was mad.e out for not accepting
H the advice of the Chief Justice of India."

(1) [1970] 2 SCR 666.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 939

The learned Judge has further gone on to .observe thus : A

·"The dangers of arbitrary action or unsavoury exercise
has been minimised by straight-jacketing of the power of
transfer. Likewise, the high legal risk of invalidation of
the Presidential .order made. in the teeth of the Chief
Justice's objection, runs in an added institutional B
protection. For, it is reasonable for the Court, before
which a Judge's transfer 'is ·challenged, to take a skeptic
view and treat it as suspect if the Chief Justice's advice has
• been ignored."

It may also be stated that according to Chandrachud, J just
c
- as the safeguard of public interest kept transfers. by way of punish-
ment outside the purview of Art. 222(1) the safeguard of effective
consultation also indicated that policy transfers on a whole-sale
• basis were also outside the scope of that Article. As regards the
plea of nati~nal integration on the basis of which the transfers of D
16 permanent Judges were sought to be justified, Chandrachud, J
expressed the view that it was a moot point whether it would be
necessary to transfer Judges from one High Court to another in the
interest of national integration but since it was a policy matter the
Court was not concerned, with it directly but suggested that consi·
dering the great inconvenience, hardship and possibly a slur which a E
transfer from one High Court to another High Court involves, the
better view would be to leave the Judges untouched and take other
measures to achieve that purpose, and further . added that if at all
on mature and objective appraisal of the situation it was still felt
that there should be a fair sprinkling in the High Court judiciary
• of persons belonging to other States, that object could be more F
easily and effectively attained by makii;ig appointments of outsiders
initially but he categorically observed that the record of the case
before the Court did not bear out the claim that any of the 16 High
Court Judges had been transferred in order to further the cause of
national integration and the true position was far from it. On the
question of non-consensual transfers being within the Article Krishna G
Iyer, J. summed up the position thus :

"Logamachy may confuse, philosophy may illumine,
teleology may shed interpretative she.en. We have consi- H
dered the design, the source, the impact and the engineering
aspects of Article 222. At the end of the journey we feel
940 SUPREME COURT REPORTS (1982] 2 s.c.R.
A clearly that the powl.lr of non-consentaneous transfer does
exist. Salutary safeguards to ensure judicial independence
with concern for the All-India character of the superior
courts in the context of the paramount need of national
unity and integrity and mindful of the advantages of inter-
state cross-fertilisation and avoidance of provincial pervi-
B
ciousness were all in the caiculations of the framers of the
Constitution. A power is best felt by its aware presence ·
and rare exercises."

Counsel for the petitioners principally urged two grounds
c before qs which according to him necessitate a reconsideration of
the majority view in Sankalchand Seth's case about non-consensual
transfers being within the purview of Art. 222(1). which I propose to
discuss one after the other. In the first place according to Counsel
one of the principal reason's why the majority felt that there. was no
need to read the words "with his consent" into Art. 222(1) was that •
-
D the power to transfer thereunder could not be exercised ,by way of
punishing a High Court Judge, which aspect was exclusively govern-
ed by Art. 218 read with Art. 124( 4) and (5), but had to be exer·
cised only in public interest and after effective coasultation with the
ChieOubtice of India and that public interest and such consultation
were sufficient safeguards against the abuse of power under that
Article but the safeguard of public interest so as to prevent the
exercise of the power by way of punishment will be found to be
illusory if the examples of transfers in public interest as have been
given by Chandrachud, J. in his judgment are carefully scrutinised;
for, according to Counsel the illustrative cases of transfers in public
interest as given by the learned Judge on analysis will be found to
p involve misbehaviour' mentioned in Art. 124(4) and therefore fo
those illustrative cases though the transfers may appear to be in
-
public interest in one sense they would be really by way of punish-
ment and as such there is a contradiction at the heart of the judg-
ment. Reliance in this behalf was placed on the following passage
occurring in the judgment of Chandrachud, J. at page 446 :
G
"Experience shows that there are cases, though fortu-
nately they are few and far between, in which the exigencies
of administration necessitate the transfer of a Judge from
H one High Court to another. The factious local atmosphere
sometimes demands the drajiing of a Judge or Chief Justice
from another High Court and on the rarest occasions which
S.P. GUPTA v. UNION (Tulzapurkar, J.) 941

can be counted on the fingers of a hand, it becomes neces$ary A
to withdraw a Judge from a circle offavourites and.non-
! avourites. The voice of compassion is heard depending upon
who articulates it. Though transfers·in such cases are pre-
eminently i'n public interest, it will be impossible to achieve
that purpose if a Judge cannot be transferred without his
consent. His personal interest may lie in continuing in a B
Court where his private interest will be served best, where-
as, public interest may require that this moorings ought to
be severed to act as a reminder that . "the place of justice is
hallowed place."
c
It is pointed out that in the cases mentioned above, if the veil of

- the language of judicial courtesy was lifted, it will appear clear that
the power of transfer that would be used would be to punish a Judge
for misbehaviour, for which, as the judgment points out, action has
to be taken only under Art. 218 read with Art. 124(4) and (5). For
K instance, a transfer brought about by '.'the factious local atmos- D
' phere" put in plain language means that a Judge or Chief Justice is
failing to administer justice impartially by favouring or disfavouring
'a faction; similarly, where a transfer is effected in order "to with-
draw a Judge from circle of favourites and non-favourites" it would
be a clear case of the Judge being guilty of gross misbehaviour in clear
violation of his judicial oath. It is, .therefore, urged that though E
in such cases, the transfers may apparently be in public interest
they are really by way of punishment and as.such the safeguard of
public interest is of no avail. In fact, according to Counsel transfers
of such Judges would run counter to public interest as these Judges
.. should not be inflicted on other High Courts to vitiate the atmos-
phere there. Counsel further urged that if regard be had to the F
ordinary dictionary meaning of tlie word 'punishment' it is clear
that punishment means : "pain, damage or loss inflicted" (without
any retributive or judicial character) and in this sense every transfer
of a High Court Judge from one High Court to another without his
consent would amount to punishment since it inflicts on hm:: per-
sonal injury, loss or damage in the sense of uprooting him from his
G
moorings, his being required to have two establishment, suffering
a dislocation in family affairs, etc., apart from the I slur involved in
being so transferred. It is further pointed ·out that the main safe-
guard is of public interest and the safeguard of effective consultation H
is secondary arising out of and in furtherance of the main safeguard
and as such if the principal safeguard fails the secondary safeguard,
942 SUPRl!Mll COURT REPORTS [1982] 2 s.c.R.

A which is in furtherance of it, would also fail. If, therefore, both the
safeguards, the principal as well as the secondary, become illusory
and if punishment is involved in every transfer without consent then
one of the principal reasons suggested by the majority for not read-
ing consent into the Article must disappear and there would be the
need to read 'consent' into the Article so as to obviate the element
B •of punishment.

It is difficult to accept the aforesaid line of argument as necessi-
tating the reconsideration of the majority view in Sankalchand Sheth' s
case (supra) for the reasons whbh I shall presently indicate.
c But before dealing with the contention I would like ·to observe
that I am in agreement with Counsel for the petitioners that the
illustrative cases given in the passage quoted above are in substance
where Judges could be. said to be guilty of. misbehaviour falling
-
under Art. 124(4) and that their transfer to other High Courts, apart.
D from being by way of punishment, would amount to doing great dis
service to public interest. In this context I would like to emphasize
that the safeguard of public interest read into Art. 222(1) is not
intended for protecting any black-sheep in the judiciary but for
protecting the numerous honest, conscientious hard-working Judges
and I have always been of the confirmed view that no corrupt or dis-
E honest Judge, and nor a Judge, who contrary to his oath of office,
indulges if' any kind of favouritism while discharging his duties-
who could be likened to a rotten egg, should -be tolerated m the
judicial basket and he deserves to be dealt with under Art. 218 read
with Art. 124(4) and (5) but not by transferring him to another
High Court, for, such a transfer would be contrary to public interest.
F That is why I would reiterate that a transfer by way of punishment
for misbehaviour is clearly outside the purview of Art. 222(1) and
similarly, any transfer with an oblique motive or for an oblique
purpose, such as for not toeing the line of the Executive or for
rendering decisions unpalatable to the Executive or for having for·
some reason or the other fallen from the grace of the Executive,
G would also be outside its purview and liable to be struck down, if
oblique motive or purpose is established.

Turning to the contention, it must, in the first place be pointed
out that the mere fact that the illustrative cases of transfers given
by Chandrachud, J. in his judgment as being in public interest are
in substance and reality cases of transfers by way of punishm~nt
s.P. GUPTA v. UNI (Tulzapurkar, J.) 943

does not mean that there can be no cases of transfers purely in A
public interest without any element of punishment being involved.
Cases of transfers .in public interest pure and simple without involv-
ing any element of punishment are conceivable with the result that
the safeguard of public interest dwelt at length in the judgment
cannot be said to be illusory or otiose. When Art. 222, as inserted
anew by Drafting Committee in the Revised Draft Constitution B
prepared on November 3, 1949, was discussed in the Constituent
Assembly on November 16, 1949. Dr. B. R. Ambedkar indicated
the purpose of inserting the provision in the Revised Draft and gave
at least two instances of transfers which would purely be in public
interest. This is what he said :
c
"T1e Drafting Committee felt that since all the High
Courts so far as the appointments of Judges is concerned
form now a Central subject it was desirable to treat all the
Judges of the High Courts throughout India as forming one
single cadre like the I.C.S. and that they should be liable D
to be transferred from one High Court to another. If such
power was not reserved to the Centre the administration
of justice might become a very difficult matter. It might be
necessary that one Judge may be transferred from one High
Court to another in order to strengthen the High Court else-
where by importing ,better talent which may not be locally E
available. Secondly, it might be desirable to import a new
Chief Justice to a High Court because it might be desirable
to have a man unaffected by local politics or local jealousies.
We thought, therefore, that the power to transfer should
be placed in the hands of the Central Government.
F
We also took into account the fact that this power of
transfer of Judges from one High Court to another may be
abused. A Provincial Government might like to transfer
... .>' a particular Judge from its High Court because that Judge
had become very inconvenient to the Provincial Govern-
ment by the particular attitude that he had taken with
G
regard to certain judicial matters or that he had made a
nuisance of himself by giving decisions which the Provincial
Government did not like. We have taken care that in
effecting these transfers no such considerations ought to H
prevail. Transfers ought to take place only on the ground
944 SUPREME COURT REPORTS (1982) J S.C.R.

A of convenience of general administratidn. Consequently, we
have introduced a provision that such transfers shall take
place in consultation with the Chief Justice of India. who
can be trusted to advise the Government in a manner
which is not affected by local or personal prejudices." (vide :
Constituent Assembly Debates Vol. 11 p. 580).
B
It is thus clear that transfers under Art. 222(1) have to be made
only in public interest the ground being convenience of the general
administration and the two instances given by Dr. Ambedkar (vide :
the underlined portion in first para) would clearly fall within the
c ambit of this ground and such transfers would be purely in public
interest without any element of punishment being involved therein.
Yet another instance of a transfer which' could be said to be purely
in public interest would be where the same is effected for remedying
unsatisfactory working conditions obtaining in a High Court for
reasons beyond the control of the Judge concerned and for which
-
D he js not responsible in any manner; similarly if a particular Judge
by reason of his nature and temparament is unable to get along
with the Chief Justice.or any of his colleagues in a High Court his
transfer would be in public interest and not by way of punishment in
the sense· in which that expression is to be understood in the
context of the power to transfer· under the Article. In such cases the
E power to transfer a Judge from one High Court to another without
his consent would be appropriate and justified. Coming to the
aspect"of punishment put forward by Counsel for the petitioners it
must be observed that when it is said that the power of transfer
under Art. 222(1) cannot be and should not be exercised by
way ·of punishment what is intended to be conveyed is that the
F judge concerned should not be 2ransferred for misbehaviour falling
under Art. 124(4). or with oblique motive or for oblique pur-
pose indicated above, which alone would be by way of punish-
ment in the co1 rect sense of that expression in the context of
the power as contained in the Article and not that he should not ' l
be subjected to the kind of punishment which is inherent in the
G transfer. In my view, there is a clear distinction between the
punishment involved in making the transfer for misbehaviour or out
of oblique motive and the punishment which 'is inherent in the order
of transfer in the sense of infliction of personal injury, loss or ·
damage arising out of his moorings being severed, he being required
H to have two establishments of his suffering a dislocation in his
S.P. GUPTA v. UNION (Tulzapurkar, J.) 945
•
family affairs, etc. Further, it is not as if this latter aspect of A
punishment which is inherent in an order of transfer is being totally
ignored before passing the order of transfer, for, precisely~these
very aspects concerning the Judge proposed to be transferred are
required to be taken into consideration and given due weight by .the
Chief Justice of India during the consultative process which he is
required to undertake for observing the second safeguard of full and
B
effective consultation. It is, therefore, not. possible to accept
the contention that the two safeguards of public· interest and effective
consultation subject to which the power of transfer is to be exercised
are either illusor; or unreal and if they afford real protection to the
Judge concerned agabst the abuse of power as suggested in the c·
majority view there would be no need to read consent into Art.

- 222(1).

The other ground which necessitates the reconsideration of the
majority view, according to the Counsel;for the petitioners, is that
while rejecting the contention of the original petitioner that a trans- D
fer of a Judge from one High Court to another involves "a fresh
appointment" and, therefore, his consent to the transfer would be
necessary, both Chandrachud,·J. and Krishna Iyer, J. have proceeded
on the basis that the Government oflndia Act 1935 did not contain
any provision for the transfer of a Judge and contrasted s. 220(2) pro-
viso (c) of that Act with Art. 217(i)(c) of the Constitution and took
the view while enacting the latter provision the framers of the Consti-
tution had made a distinction between "appointment" and 'transfer'
by using these two expressions in contra-distinction with one another
while providing that "the office of a Judge shall be vacated by his
being appointed by the President to be a Judge of the Supreme Court
or his being tran~ferred by the President to another High Court with- F
in the territory of.India" (see : Art. 217 (I)(c)). In other words, by
contrasting the provision contained in s. 220(2) proviso (c) of the
Government ofindia Act 1935 with Art. 217 (I)(c) of the Consti-
tution both the learned Judges took the view that the expression-
'appointment' in the first part :of. the latter provision meant 'fresh
appointment' while the expression 'transfer' used in the latter part
G
did not mean fresh appointment .and for taking such a view and that
the two expressions had not been interchangeably used reliance was
placed on the supposed absence of any provision for a transfer of a
Judge in the Government of India Act, 1935.' But Counsel has sub-
mitted that Government of India Act, 1935, did contain a provision
H
for the transfer of a Judge and in that behalf reliance was placed
946 SUPREMB COURT RBPORTS · [1982) 2 s.c.R.

A upon the fact that proviso (c) to s. 220 (2) was introduced with
retrospective effect from April I, 1937 bys. 2 of the India (Miscella-
neous Provisions) Act, 1944 enacted by the British Parliament and it
was pointed out that though the actual proviso (c) used the word
'appointment', the Marginal Note of s. 2 ran thus : · "Judges to
vacate office on 'transfer" and even during the discussion that took
B place on the Bill, Earl of Munster addressing the House of Lords
and the Secretary of State for India Mr. Amery addressing the House
of Commons while explaining the provision that was being inserted
with retrospective effect stated that the said provision was being
made providing for vacating !ht< office of a . Judge on his transfer
c to another High Court or to the Federal Court. In other words, what·
bas been urged by counsel for the petitioners ·is that the Marginal
Note to s. 2 of the India (Miscellaneous Provisions) Act, 1944 as
well as the debates in the House of Lords and House of Commons
clearly indicate that proviso (c) which was added with retrospective
-
effect to s. 220(2) of the Government of India Act, 1935 really dealt
D with transfer of a High Court Judge when he was either appointed
to another High Court or to the Federal Court, that is to say, the
expression 'appointment' had been used really to connote a
transfer, suggesting an interchangeable use of the two expressions
by the British Parliament and, therefore, the basis adopted by the
learnedPudges for drawing a distinction between 'appointment' and
E 'transfer ' would disappear and, therefore, the conclusion arrived at
would not be correct. Counsel fairly stated that Reports of British
Parliamentary Proceedings compiled by Hansard were not available
to him when Sankatchand Sheth's case (supra) was argued by him
before this Court but have since been made available now and he
was making his submission before us. There may be some force in
F the submission but in my view the submission is not adequate to
necessitate a reconsideration of the majority view for two reasons.
In the first place the assumed basis (which is now found to be wrong
for making the distinction between 'appointment' and 'transfer' in
Art. 217(1)(c) was merely used for refuting an argument of the
original petitioner that since ins. 220(2) proviso (c) of the Govern-
G ment of India Act, 1935 appointments to Federal Court were clubbed
with the appointments "to another High Court" and since the Judges
consent was necessary in both the cases the Court should read the
corresponding provision of the Constitution in Art. 217 (l)(c) to
mean that a process of the transfer of a Judge from one High Court
H to another involves a fresh appointment and in that connection it
S.P. GUPTA v. UNION (T'u/zapurkar, J.) 947

A.
was said that the Government of India Act, 1935 did not contain
any provision for a transfer of Judge. Secondly, apart from that
reason, several other reasons have been indicated in the judgment
why a transfer of a Judge does not involve a fresh appointment,
such as non-issuance of a fresh warrant of appointment, no consul·
tation as contemplated under Art. 217 taking place but only of the
B
kind contemplated by Art. 222(1), etc. The first reason does smack.
of formality but the second cannot be regarded as unsubstantial,
for the nature of the two consuitations is different and the fact that
only that kind of consultation contemplated nnder Art. 222(1) takes
place emphasises the position that it is not a fresh appointment.
In view of this position the second ground on which the reconsider-
ation of the majority view is sought is of no avail.
c

- Having regard to the aforesaid' discussion, in my view, no caie
could be said to have been made out for reconsidering the decision
of the majority in Sanka/chand Sheth's case (supra), according to
which non·consensual transfers are within the purview of Art. 222(1). D
The other submissions in support of the conte11tion that 'consent'
should be read into that'Article as a matter of construction or that
consent of the concern€d Judge is necessary as a transfer involves
fresh appointment, which were reiterated in brief before us, have all
been dealt with and answered by the learned Judges who pronounced
the majority view in Sankalchand Sheth's case (supra). I am, there- E
fore in agreement .with the majority view that non-consensual
transfers are within the purview of Art. 222(1).

Before parting with the decision in Sankalchand Sheth's case
(supra) I would like to refer to certain observations made by Chandra-
.. chud, J. in connection with policy transfers as I feel that they need
some clarification and apropos those observations I would like to
F
deal with and make my observations with regard to the two policies
which appear to have been accepted in principle, though not fully
formulated and formally· declared by the Union Government in
·connection with the transfer of High·Court Judges. In Sankalchand
Sheth's case (supra) a view has been expressed by Chandrachud, J. G
that the . safeguard of effective consultation .suggests that policy
transfers on wholesale basis are outside the purview of Art. 222(1)
and in tbis behalf the pertinent observation's made by him are as
follows:-
H
"Thus, deliberation is the quintessence of consultation.
That impli\!~ that each. i11djvidual case must be considereq
948 SUPREME COURT REPORTS · (1982) 2 s.c.R.

separately ·on the basis of its own facts. Policy transfers
on a wholesale basis which leave no scope for considering
the facts of each particular case and which are influenced
by one sided governmental considerations are outside the
contemplation of our Constitution."
(vide p; 454 of the Report).
B
The last sentence in these observations is likely to create a wrong
impression that if large number of transfers are made pursuant to a
general policy these would be outside the purview of Art. 222(1) of
the Constitution but that is not what is really intended to be
conveyed. The emphasis clearly is on wholesale transfers without
c considering each individual case on its own merits being outside the
purview of Art. 222(1) and more so when such wholesale or mass
transfers are influenced by one-sided governmental considerations
which would be outside the purview' of the A_rticle. In other words, it
is clear that even if a transfer is effected pursuant to a general policy
adopted by the Government the same must satisfy requirements of
D Art. 222(1), that is to say, it must be in public interest and made
after full and effective consultation. Ordinarily no general policy
will be adopted unless it clearly serves some public interest and
hence when a transfer is stated to be pursuant to such general policy
it will be a difficult task for the Judge concerned to establish that it
has been made for extraneous considerations but all the same- a
transfer based on a general policy will have to satisfy the require-
ments of Art. 222(1) and if extraneous considerations are establish-
ed the same will have to_ be struck down.

In this context I would like to refer to one aspect which was
F debated at the Bar, whether before any such general policy is adopted
by the Government any consultation with the Chief Justice of India
is necessary or questions of policy are exclusively to be deciped by
-
the Government? It· is true that Art. 222(1) merely refers to
consultation of the Chief Justice of India on specific individual
proposals for transfer as and when these are made and nothing is
G mentioned therein as regards consultation with him on points such
as whether and if so what policy or policies should be adopted . for
. effecting transfer of Judges from one High Court to another. It is
also true that ordinarily policy matters would be decided upon by
the Government. But propriety requires and perhaps smooth
workin? thereof ma~ ne~ssitate consultation with ~he <;:hic;f Justice::
S.P. GUPTA v. NION (T'ulzapurkar, J.) 949

who is the highest administrative head of the country's Judiciary A
especially as the policy or policies to be adopted are in relation to
transfer of High Court Judges. But, as stated earlier, even after a
general policy in the matter of transfers of High Court Judges is
framed and adopted wh~never a transfer is to be made in pu.rsuance
of such policy the proposal, before it culminates into an order, will
have to satisfy the requirements of Art. 222(1). B

Coming to the two policies which the Union of India seems
to have accepted in principle though not fully formulated by fixing
the mechanism or modality of procedure, it may be s.tated that one
such policy is to have one-third of the Puisne Judges in a High c
-
Court from outside the State-a policy which has been referred to
· in the Circular dated March 18, 1981 and the other is the policy to
have Chief Justices of all the High Courts from outside-a policy
that became the subject-matter of debate in Shri K.B.N. Singh's
case. With;ut going into the merits or demerits of either of them
and without going into the question whether there are proper or D
justifiable grounds for adopting either of them, that is to say,
whether either of them serves any public interest or- not, I would
like to deal with a couple of aspects touching these policies which I
feel it is necessary to clarify at this stage. It was suggested at one
stage during the arguments that individual selective transfers are
prone to be punitive in character but once a general policy is adop- E
ted there will be no scope for raising a contention that the transfer
made in pursuance thereof is a punitive transfer. In fact, the argu-
ment went to the length of equating individual selective transfers
with punitive transfers and policy transfers as being always
. above board. Such an extreme contention is difficult to accept.
It will not be correct to say that a policy transfer, that is to say,
F
a transfer based on or made in pursuance of a general p.Jlicy
would necessarily be non-punitive in character nor would it
be correct to say that every selective transfer i.s necessarily punitive.
Taking the policy of having one-third Puisne ·Judges in a High
Court from outside, it will be clear that in the absence of any .G
mechanism or modality of procedure giving guidelines as to how
that one-third complement will be chosen for implementing it, such a
policy would obviously be fraught with the danger or vice of discri-
mination; further, if a. vacancy a'rises in that complement of that
High Court then filling it up in the absence of proper guidelines H
would again be arbitrary. Similarly, even the policy of having the
Chief Justices of all the Hig4 <;:ourts from outside staqds the risk: of
950 SUPREME CO~RT REPORTS (1982] 2 S.C.R.
r
A being abused by the Executive in the absence of proper guidelines
being provided in the matter of regulating which Chief Justice shall
be posted in what particular High Court; this assumes significance
in federal polity like ours. It is t bus clear that a policy transfer
withuot fixing the requisite mechanism , or modality of procedure
which ensures complete insulation against the Executive interference
B could be a punitive transfer in the sense of having been effected with
some oblique motive. Even with proper mechanism or modality of
procedure a transfer can be made for extraneous considerations' and
will be liable to be struck down if it is so established. But admit-
tedly no mechanism or modality of procedure of any kind bas been
fixed or decided upon so far and, therefore, bow can it be asserted
c that every policy transfer made in pursuance of either of these two
· policies-wo_uld necessarily be above board? In other words, merely
adopting a general policy, which is or may be broadly supportable
for reasons of public interest, would not be sufficient to insulate
transfers hr High Court Judges against Executive interference unless
-
D adequate mechanism or modality of procedure in that behalf is also
fixed and followed in practice. Conversely, a selective transfer in an
appropriate case for strictly objective reasons and in public interest
of general administration could be non-punitive. In other words,
each case of transfer, whether based on :i policy_ or a selective trans·
fer, will have to be judged on the facts and circumstances of its own
E for deciding whether it is punitive fo character in the sense of having
been effected with some oblique motive or not.

Coming to the impugned Circ~lar letter dated March 18, 1981
it is clear that the petitioners on .the one band and the contest-
ing respondents on the other are at great variance with each other
on the true nature, content and effect thereof whereas according to
the petitioners the Circular letter seeks to effect, in substance and ..
reality, a mass transfer of sitting Additional Judges as also of the
proposed appointees based on a policy decision unilaterally taken by
the Law Minister and or the Union Government and in that behalf
seeks to obtain tpeir consent under threat, coercion and duress,
G according to the contesting respondents no such transfers are intend-
ed at all but the Circular letter merely seeks to obtain consent from
sitting Additional Judges for their appointment as Permanent Judges
of other High Courts on the expiry of their initial term or extended
term and consent from the. proposed appointees for their initial or
first appointment to High Courts other than their home-State High

" \:ourts and the action proposed to be tak~n thereunder is for
t4i;

(
S.1>. GUPTA v. UNlON (Ttilzapurkar, J.) 9si
purposes of Art. 217 of the Constitution and no threat, coercion A
or duress is involved in obtaining such consent. The impugned
Circular letter has already ·been set out verbatim at the commence-
of this judgment and a careful analysis of the contents thereof brings
out the following seven aspects very clearly : 1n the first place the
action proposed ·in para 2 thereof (of obtaining consent) is being
taken with a view to implement a policy suggested by several bodies B
and forums "to have one-third of the Judges of a High Court, as far
as possible, from outside the State in which that High Court is
situated" for "furthering national integration an'd combatting narrow
parochial tendencies bred by caste, kinship and other local links
and affiliations"; secondly the letter records that as'no start could
somehow be made in the past in that direction the feeling was strong, c
growing and justified that some effective steps should be taken very
early in that behalf; thirdly, para 2, which specifies the action to be
taken, is in two parts; (i) in relation to sitting Additional Judges in
all the States of India (except North-Eastern States), it seeks to obtain
their consent "to be appointed" as Permanent Judges to High Courts D
in States other than their own and (ii) in relation to the proposed
appointees (either from the Bar or services) for initial appointment
(either as Additional or Permanent Judges) it seeks to obtain their
consent for being "appointed to" in any other High Court in the
country (meaning other than their home-State High Court); fourthly,
in this behalf it also seeks from them their choice by naming three E
High Courts in order of preference to which they would prefer to
go; fifthly, the sitting Additional Judges and the proposed appointees
from whom such consent and preferences are sought are to be told
clearly that furnishing of the constent or the indication of a prefer·
... ence does not imply any commitment on the part of the Government
either in regard to their appointment or to accommodation in accor- F
dance with the preferences given; sixthly, the letter strikes a note of
urgency and requests the addressees thereof to initiate action very
early and after obtaining the written consent and preferences
from the persons concerned to forward the same to the Law Minister
within a fort-night of the receipt of the letter; lastly, the Circular
letter has been addressed by the Law Minister to the Governor of G
Punjab and all Chief Ministers of the States (except North-Eastern
States) requesting them to obtain such consent and preferences from
all Additional Judges as well as the proposed appointees, with merely
a copy of the letter being sent to each of the Chief Justices of the
concerned High Courts. H
952 SUPREME COURT REPORTS [1982] 2 s.c.R..
A Counsel for the contesting respondents pointed out that.when
an Additional Judge is appointed under Art. 224 (1) jiis tenure is
fixed by the warrant of his appointment and on the expiry of the
period mentioned in the warrant he ceases to be a Judge of the High
Court and he has no vested right either to be continued or to be made
.. perma11ent and in_ either extending hini for a further term as an
B· Additional J udje or in making him permanent in· the vacancy of a
permanent
.
post, a fresh appointment is involved by issuance of a
~

fresh warrant under Art. 217 (1) and as such there is no question of
any transfer being involved in such_ a case, while in the case of a
proposed appointee (either from the Bar or services) when he is
being initially appointed obviously there is no question of any
c transfer in his case either and it is from such persons that consent
is being sought under para 2 of the Circular letter and the same is
for 'afresh appointment' in the case of the former and 'an initial
appointment' in. the case of the latter under Art. · 217 (l) of the
Constitt1tion. Counsel further pointed out that para 2 of the
Circular letter uses the expression "to be appointed" in the case of
D sitting'Additional Judges as also in the case of proposed appointees
and the word "transfer" has not been used at all and as such counsel
contended that the Circular letter does not deal. with the topic of
transfer of Judges at all. Reliance io this behalf is also placed on
the Law Minister's statement in Parliament made on. 16th April,
1981 in response to the Calling Attention Motion by Shri Rashid
Masood and other M.Ps. and the answers given by him to the
questions put to him by several Members during the discussion that
followed, wherein he clarified the position that consent from sitting
Additional Judges was sought under the Circular letter for their
fresh appointments under Art. 217 and not for their transfers and
Art. 222 was not attracted at all. It was further contended that
para 3 of the Circular letter merely clarified the legal and constitu-
tional position that obtained even before the sending of the letter
•
that there will be no commitment on the part of the Government
either in regard to the appointment or in regard to the accommoda-
tion in accordance with preference given and that such clarification
G of the legal position was necessary lest a wrong impression was
created that furnishing of eonsent or indication of preference would
imply such a commitment as also to avoid any legal arguments based
on the theory of promisory estoppel and no threat, coercion or
duress could be inferred from the contents of para 3 of the Circular
H letter. The question is whether this is the true nature and effect of -
the Circular letter.
s.P. GUPTA v. UNION (1'ulzapurkar, J.) 95j

It is true that according to its dictionary meaning the word A
'transfer' means 'removal from one place or position to another',
but it is not such physical shifting of a person from one place to
another with which the Court is concerned in the case; the Court is
concerned with the concept of transfer contemplated in Art.
222 (1) of the Constitution which says: "The President may, after
consultation with the Chief Justice of India, transfer a Judge from
one High Court to another High Court".· This clearly refers to the
transfer of a person, who is already a Judge of a High Court. As
stated earlier, para 2 of the Circular letter refers to two categories
of persons, namely, sitting Additional Judges and the proposed
appointees (either from the Bar or services) and it would be clear
that in the case of the latter who are being initially appointed c
- Judges, either as Additional or Permanent, to .some High Court
there would be no question of any transfer in their case as contem-
plated in Art. 222 (I). It is difficult to accept the petitioners
· / contention that in regard to these proposed appointees recommended
for their initial appoin tnient the .Circular letter seeks to obtain their
consent for their transfer, though in being appointed to other D
High Courts they would within the dictionary meaning of that
expression be shifted and perhaps uprooted from their usual place of .
work, namely, their home-state High Courts. The question really
is whether in the case of the former category, namely, sitting
Additional Judges whose cons~nt is sought for · 'being appointed' to
High Courts other than their own High Courts a transfer is involved E
and whether the Circular letter in substance and reality effects their
transfers as contended by the petitioners. In the earlier part of this
judgment it has been pointed out that a valid classification subsists

.. between proposed appointees who are being recommended for their
initial appointments and sitting Additional Judges whose initial or
F
extended term is about to expire. In the case of the former they
have no right to be considered for the post of a High Court Judge
nor have they, even after being recommended on completion of the
consultative process by the three constitutional functionaries mention-
ed in Art. 217 (1), any right to be appointed and, therefore, have
no remedy against their non-appointment but in the case of the G
latter the position is entirely different. It is true that under Art.
224 (1) read with Art. 217 (I) the tenure of an Additional Judge
fixed by his warrant of appointment comes to an end at the expiry
of the period mentioned in the warrant and he ceases to be a Judge
of the High Court, but .for reasons already discussed in the earlier H
part of this judgment he has a legitimate expectancy and an enforce-
able right not to be dropped illegally or at the whim or caprice of
954 SUPREME COURT REPORTS (1982] 2 S.C.R.

the appointing authority but to be considered for being continued as
Additional Judge or made permanent in that High Court. The
convention or practice and the undertaking taken from the member
of the Bar at the time of his initial appointment make it clear that
he has such enforceable right to be considered for being continued
or made permanent in that very High Court. That is how Art.
B 224 (1) ha8 all along been understood and worked. He is not in
the same. position as a proposed candidate for initial appointment.
In substance and reality in extending his term or making him
permanent in that High Court no "fresh appointment" is involved,
except for the formality of issuing a fresh warrant of appointment
and taking a fresh oath. If in the case of such sitting Additional Judge
c his consent is sought for being 'appointed to' another High Court it is
virtually and in substance seeking his consent for his transfer from
his own High C~urt to another High Court' falling within the
concept of transfer contemplated in Art. 222 (1). It is true that
-
para 2 of the Circular letter uses the expression "to be appointed"
but it is not the nomenclature or label used that would be decisive
D of the matter but one has to look to the substance and looked at the
Circular from this angle it is clear that in so far as sitting Additional
• Judges are concerned their consent is sought for transferring them
from their own High Court to other High Courh and the attempt
in substance is to transfer them under the guise of making fresh
appointment on the expiry of their initial or extended term.
Further, considered in the light of the historical background, there
appears to be some force in the petitioners' contention that the Cir-
cular letter is another attempt on the part of the Union Government
this time to effect mass transfers of sitting Additional Judges, the
previous attempt to effect mass transfers of Permanent Judges during
the last Emergency having failed. (One such transfer was success-
F fully challenged and all the transferred Judges, except those who
were unwilling, were repatriated to their own High Courts). This
Court in Sankalchand Sheth' s case (supra) has laid down the safeguard
of public interest and the stringent condition of full and effective
consultation with the Chief Justice of India which are required to be
observed before the power of transfer under Art. 222 (1) can be
G exercised and the Circular letter appears ·to be an attempt .to
circumvent the safeguard and the stringent condition by resorting to
transfers of sitting Additional Judges under the garb of making
fresh appointments on the expiry of their initial or extended term.
H
Reliance on the Law Minister's statement made in Parliament
on 16th April, 1981 clarifying the position that consent from sitting
S.P. GUPTA v. UNION (Tulzapurkar, J.) 955

Additional Judges is being sought under the Circular letter for their A
fresh 'appointment' and not for their transfers and that Art. 222
was not 'attracted at all will be of no avail in view of the conclusion
reached above that it is not a case of fresh appointment but in
substance their consent is being sought for their transfer. This
apart, the fact that the Circular letter was intended to effect transfers
of sitting Additional Judges be..:omes amply clear from what B
transpired during the debate that followed the Calling Attention
Motion of Shri Rashid Masood and other M.Ps. and particularly '
from admissions made by the Law Minister himself under stress
of questions in the nature of cross-examination put to him by
Members of Parliament. It will be pertinent to mention that the
c
-
subject matter of the Calling Attention Motion moved by
· Shri Rashid Masood and other Members as a matter of urgent
public importance is captioned in t~e relevant proceedings of
Lok Sabha Debates as "Circular letter to Chief Ministers of States
about the consent from Additional Judges for transfer to other
High Courts". This clearly suggests that even Members of
Parliament regarded the Circular letter as dealing with the topic of
'o
obtaining oonsent from sitting Additional Judges for their transfer
from their own High Courts to other High Courts but apart from
what several Members of Parliament felt about it, even the Law
Minister, while asserting that the Circular letter dealt :with th~ subject
of fresh appointments of sitting Additional Judges on the expiry of
their initial term or extended term and not their 1ransfer and the
E
consent thereunder was merely sought for making their fresh appoint-
ments under Art. 217 (1), explained the genesis and reasons which
prompted him to issue the Circular and in that behalf stated that the
.. various complaints were pouring in about prejudiced attitudes bred by
kinship and other local links and affiliations etc., that political links
had also. been mentioned in certain cases· and various State authorities
had expressed their reservations about the continuance of some
Additional Judges and it was felt that in some cases of this kind
if Additional Judges could be made permanent in other High Courts
there could be no valid objections to. sus:h appointments as their
service would then be outside the local setting in which G
they had the roots. Such a statement on the part of the Law
Minister by way of explaining the genesis and reasons for the
issuance of the Circular letter undoubtedly lends considerable force
and support to the petitioner's contention that 'furthering national
integration and oombating parochial trends' is merely a garb used B
and the real intention is to transfer such sitting Additional Judges
who have become unpalatable to the State authorities because of
956 SUPREME COURT REPORTS {1982) 2 s.c.ll. ·

A alleged political links obviously not to their liking; or whom the
concerned State authorities have come to regard as black-sheep
from their point of view. At one stage during the deba'te when
the facts, that the Law Commission in its 80th Re?ort had made a
distinction between initial appointees and the sitting Additional
J1!_dges in the context of their recommendation of having -0ne
B third of the Judges of the High Court from outside and that it
had suggested that their recommendation should be implemented
, in the case of the former, were brought to the notice of Law
Minister this· is how the Law Minister reacted:

"May be that according to him (Hon'ble Member who
c brought the aforesaid facts to his notice) the Additional
Judges would not come within the purview of the initial
appointment. Then I would put it in a different form. I
have given the reason as to why we have to ask for the
-
Additional Judges (consent) also. Things being what they
are, I would like to ask the Hon'ble Member, when com-
D plaints come where it is not possible to convincingly prove,
then, what should be done with such Additional Judges i
Are they to be dropped ? · I take a safer approach, namely,
if they are appointed elsewhere, then this allegation which
persists c_ould be avoided."·

E This statement clearly suggests that in regard to sitting
Additional Judges against whom complaints are received but it
is not ·possible to convincingly prove them the Law Minister
clearly contemplated the shifting of sµch Judges elsewhere so as to
avoid allegations being persisted against them and presumably for
F
doing so an opportunity presents itself when their term is about to
expire. Then follow two important sets of question an~ answer
-
which put the matter beyond doubt that even the Law Minister
admitted in terms that what is being done under the Circular is
a transfer of Additional Judges. The following are the questions
and answers :
•
G 'Shri Satish Aggarwal.' "Excuse me, Mr. Law Minister.
You have stated a particular situation, where there is
evidence but not sufficient, what should be done : a transfer
can be made. It is only applicable in cases which are
ad hoc. But what about cases when complaints are there
H
with regard to those who are permanent Judges ? That
does not solve the problem. You are applying your stick
S.P. OUl>TA v. UNION (Tulzapurkar, J.) 957

only to those who have finished a two or three years A
period."

Shri P. Shiv Shankar : "I have never said 'ad hoc.'
Where the additional Judges are there, each complaint will
have to be considered on its own merit and a decision
could be either to drop a person based on evidence or to see B
if lie could betransferred.''

r Shri Bapusaheb Parulekar : "You have stated : 'I may
add that it is not the intention of the Government to
appoint all Additional Judges from outside the State.' c
-
What is the criteria ? You can victimise any person if
this is the policy of the Government. Is it not ?"

Shri P. Shiv Shankar : "I can assure my friend, it is
not a· question of victimisation. As I said each case will be
considered on its own merit. It is not the intention that D
everyone should be transferred, That is all. (Interruptions).
Perhaps he is going back to the same ground on the ques-
tion of sporadic transfer of Chief Justice and Judges· and
so on. The position is very simple. Supposing there is
any material bearing on a particular case, that would be .
considered on its own merit. It is not the intention that E
everyone should be transferred. I think I have covered all
the points raised.'.'
It is significant that though in the· first ·set of question and answer
.. both the Hon'ble Member and the Law Minister have used the
expression. 'transfer' in the context of what is· being done to the
F
Additional Judges on receipt of complaints against them and
evidence in respect thereof is not sufficient, in the second set the
Hon'ble Member specifically used the expression 'to appoint' in the
context of Additional Judges intended to be brought from outside
but even then the Law Minister in his reply stated that "it is not
the intention that everyone should be trans!erred." This shows G
that under the stress of questions truth has come out that the
Circular is intended to effect transfers of sitting Additional Judges
from their own High Court to another High Court fa respect of
whom complaints have been received but evidence in support is
insufficient and that will be done at the time of expiry of their H
initial or extended term. The reference to other portions of the
Law Minister's statement and answers given by him on the Floor
958 SUPREME COURT REPORTS [982] 2 s.c.a..

A of the House has been made with a view to ascertain the real
intention behind the issuance of this Circular letter because it is
the Law Minister alon_e, and not a Deputy Secretary in his
department, who can depose about it and the Law Minist_er in spite
of being impleaded eonominee a . party to the proceedings has
chosen not to file his own affidavit in the case.
B
On the question whether the consent sought thereunder from
the sitting Additional Judges is induced by threat; coercion or
duress or not, regard will have to be had to four or five
aspects about the Circular letter that emerge clearly on the record.
In the first place instead of seeking their consent through the
c Chief Justices of the concerned High Courts, which would have
been in keeping with decorum and dignity of the high office held
by them, the Circular letter in utter impropriety .requests the
Executive Head (the Governor of Punjab and all Chief Ministers.
-
of the States) "to obtain from all the Additional Judges ...
their consent to be appointed as Permanent Judges in any . other
D High Court" together with their order of preferences, which
smacks of demonstrating the power of the Executive over the
Judiciary. Secondly, the tenor of the letter in executive arrogance
presumes that the consent sought will be forthcoming from all the
sitting Additional Judges in as much as the possibility of consent
not forthcoming from some or any of them has not been considered
E or dealt with in the letter. Thirdly, paragraph 3 of the letter, by
necessary implication, contains a threat to the Additional Judges
that they would not be continued as Additional Judges or confirmed
as Permanent Judges and inay be dropped unless they furnish

F
their consent in as much as without more it merely states that
furnishing of consent as well as indication of the preferences does
not imply any commitment on the part of the Government either
-
in regard to their appointment or accommodation in accordance
with the preferences given; such misgiving which naturally arises
from this kind of a statement ought to have been "removed by ,-.
'
clearly indicating the consequences of non-furnishing 'of the consent.
It ought to have been stated clearly and categorically that
G
non-furnishing of the consent will not be held against any
Additional Judge and wilf not come in his way of being continued
or being made permanent and further that furnishing of consent
by an Additional Judge will not enable him to steal a march
H over those who have either not furnished or refused to furnish
their consent in the matter of making them permanent. · Both
these things were vital and ought to have been stated in order
S.P. GUPTA v. UNION (Tulzapurkar, J.) 959

to remove all misgivings and omission to do so clearly leads to A
the inference . that the statement in para 3 of the letter, by
implication, contains a threat to the Additional Judge of the
type Indicated above. The explanation given on behalf of the
contesting respondents that para 3 was by way of merely
cfarifying the legal and constitutional position obtaining in
the matter even before the sending of the Circular letter, namely, B
that there was no commitment on the part of the Government'
to appoint every Additional Judge as a Permanent Judge and
that it was necessary to ·make legal and constitutional position
clear lest a different impression was created as also to avoid any
legal argument based on the theory of promisory estoppel is
hardly convincing; for, if para 3 was inserted only with a view c
to clarify the legal and constitutional position it. was all the more

- necessary to state the consequences of non-furnishing of the
consent in the manner indicated above to r~emove all misgivings.
Fourthly, the Circular letter is obviously intended to have adverse
impact on the sitting Additional Judges' right on the expiry of l)
their initial term or extending term,-:--it being merely a right to
be considered for being continued or made permanent. Fifthly,
the timing of the Circular is significant in considering its effect
and impact on the sitting Additional Judges; the Circular letter .
has been issued by the Law Minister"on March 18, 1981 at about the
time when politicians and persons occupying high positions had E
been indulging in a campaign of denigrating the nigher Judiciary,
treating every Court decision adverse to Government as a deliberate
and motivated attack on the Executive. A Chief Minister of a pro·
minent State had described it as the "Dictatorship of the Court"
while a Cabinet Minister in the Central Government had
.. bracketed the J ueliciary with the opposition parties and had been
complaining that they were not cooperating with the Government;
F
the highest Executive Head at the Centre had prior to March 18,
1981 ·publicly stated: "The former Janta Regime had made a
lot of appointments in the Judiciary on political basis .that a ·
dilemma , faced by the ruling party ,was whether these persons
appointed .on political basis in Judicial Services should be allowed G
to continue and if they ar.e continued how can we expect justice
from them ? What is their credibility ?" It is true that in this
behalf the petitioners have relied upon extracts from Newspaper
reports of such statements and utterances but when .these have
been made part of their pleadings by the petitioners (vide para 2 of H
Shri Tarkunde's petition and para 43 (0) of Shri Gupta's petition)
~. duty is cast
' . . - respondents
on the conte~ting . . to
. .
deal with the same
' .. '
960 SUPREME COURT REPORTS [1982] 2 s.c.R.

A in reply and from the counter-affidavits filed in reply by
Shri Kankan on their behalf it will appear clear that there is no
denial that such statements and utterances were made by the
persons concerned. In reply to para 2 of Shri Tark.unde's petition,
Shri Kankan has merely averred that "the views stated to have been
expressed by the Chief Minister of a State and a Cabinet Minister
8
would have been their personal views and do not and could not have
conveyed the policy of the Government", while there is no specific
reply to para 43 (0) of Shri Gupta's petition at all but an omnibus
general submission in regard to para ·43 (H) to para 43 (Q) has
been made by Shri Kankan by stating thus : "with regard to paras
43 (H) to 43 (Q) I submit that these paras are full of surmises
c and conjectures". From this state of pleadings it will appear

-
clear that there is no denial that the concerned Chief Minister
and the Cabinet Minister and the highest Executive Head at the
Centre·had made the Several statements and utterances attributed
to them as quoted from the extracts of the Newspaper reports
D and at the highest Shri Kankan .desired to suggest that these
statements and utterances were their personal views and not of
the Government. It cannot be disputed that such statements
and utterances from persons . occupying high positions in the
Government help create an atmosphere of fear-psychosis for the
not-so-sterner stuff in the 'judiciary; secondly, even taking the
E assertion of Shri Kankan that these statements and utterances.
-represented their personal views at its face value (which it is
difficult to do) one cannot be sure when these personal views
imperceptibly or unobtrusively become the views of the Government
and the basis of a Government policy, as has happened
here, for, the Circular letter does reflect partly some of
F the views contained in · this statements ·and utterances. ...
The question is what impact the Circular letter will create on
the minds of the sitting Additional Judges whose terms would
be coming to an end on the expiry of the. periods specified in their
·warrants in the light of the atmosphere of fear:psychosis created by
such statements and utteranCt(S made by persons occupying· high posi-
G tions in the Government ? The answer is too obvious to be stated.
Reading 'it as a whole and in the light of the aspects discussed above,
the Circular letter clearly exudes an odour of executive dominance and
arrogance intended to have coercive effect on the minds of the sitting
Additional Judges by implying a threat to them that if they do not
H furnish thefr consent to be shifted else-where. they will not be
continued nor made permanent but would be dropped. The Circular
Jetter, th\:refore1 which sc,:e~s to o1;>tajn t4e consent of the;: sitting
S.i'. GtJPTA v. UNION (Tulzapurkar, J.) 961

Additional Judges to their transfers from their own High Court to A
another High Court induced by threat, coercion or duress clearly
amounts to Executive interference with the Judiciary and impinges
on its independence and as such is illegal, unconstitutional and void
and the consent if any either already obtained thereunder or that
may be obtained; would be equally void,
B
Once the conclusion ls reached that the Circular letter seeks to
effect in substance and feality transfers of sitting Additional iudges
from their own High Courts to other High Courts oli the expiry of
.
y their initial tetrn ot extended term and .the consent sought from them
thereunder is for such transfer and not for their 'fresh appointment'
as permanent Judges of other High Courts, the challenge to the same
c

-
. as being violative o(Art. 222( I) of the Constitution becomes quite
apparent. . It was sought to be urged at one stage that if on t~ue
construction of Art. 224(1) the sitting Additional Judges during
their tenure are outside the pale of transfer under Art. 222(1) then
the question of the impugned Circular being violative of Aft. 222(1)
does not arise. It is difficult to accept this contention because even
assuming that Art. 224(1) is construed in the manner suggested the
Circular aims at transferring the sitting Additional Judges not during
their tenure but just on the expiry of their term and if their contin-
uance as permanent Judges (and not as Additional Judges because
the Circular talks of appointing them as Permanent Judges) does not E
involve a fresh appointment as held above, the question of.challenge
to the Circular as being violative of Art. 222(1) very much survives.
In Sankalchand Sheth's case (supra) this Court took the view that
full and effective consultation by the President with the Chief Justice
of India under Art. 222( I) of the Constitution implies that each
individual case must be considered separately on the basis of its own F
• facts and "policy transfers on a whole-sale basis which leave no
scope for considering each particular case and which are influenced
by one sided Governmental considerations are outside the contem-
.plation of our Constitution" (vi de observations of Cbandrachud, J.
as he then was, at page 454 of the Report). The transfers of sitting
Additional Judges contemplated by the Circular (for which their G
consent is sought thereunder) are based on the policy to have one
third ·of the Judges of a High Court from outside without each
individual case being considered on its own facts and merits and
therefore such transfers based on policy accepted or adopted by the
Law Minister and/or the Union Government would be outside the H
purview of Art. 222(1). In any case,-and this is important-it
cann?t be disputed that by procuring the consent of the sittin~
962 SUPREME COURT REPORTS [1982) 2 S.C.R.

A Additional Judges for their transfers from their own High Court to
another before undertaking any consultation with the Chief Justice
of India clearly reduces the full and effective consultation contem-
plilted under that Article to a mere formality, if not to a mockery,
for, it is obvious that such consultation and the advice which Chief
Justice will be tendering following upon such consultation will not be
B of any use or avail as the consent to such transfer shall have already
been procured from the concerned Additional Judges. The consul-
tation and the resultant advice of the Chief Justice will be robbed of
its real efficacy in face of such pre-obtained consent. The Circular
which has such effect is clearly violative of Art. 222( I); in fact it will
have to be regarded as having been issued mala fide for a collateral
c purpose namely to by-pa11s Art. 222(1) and confront the Chief Justice
of India with fait-accompli when the proposal to transfer such Addi-
tional Judge would be forwarded to him and as such the same is
illegal and unconstitutional and deserves to be struck down. -
The 'next challenge to the impugned Circular letter based on
D Art. 14 also seems to be well-founded and the same is irrespective of
whether the Circular Jetter deals with transfers of Additional Judges
or their fresh appointments and the initial appointments of the pro·
posed appointees. Briefly stated the contention is that in regard to
the sitting Additional Judges it makes an invidious distinction bet-
ween those who would not be furnishing their consent and
E
those who would not be doing so or would be refusing to furnish
their consent, in-as-much as the former would be at an advantage
. while the Jetter will suffer a disadvantage and even within the class
of those who would be furnishing their consent it gives to the
Government unfettered and unguided power or disc etion to pick
F and choose, that is, to select some for being shifted to High Courts
other than their own while retain and appoint others in their own
..
High Courts-which power can be exercised either by way of punish-
ment or by way of favouritism. It is further pointed out that the
Circular letter will encourage an ig11ominous race amongst self-seek-
ing Judges to look to the Government for appointment as Permanent
G . Judge~ out of turn or select placis which are centres of power.
Counsel further contended that even in regard to the proposed
appointees (either from the Bar or Services) recommended for their
initial appointments, though no question whatsoever may arise in
case of .non-appointment, discrimination is bound to result in the
B case of those who are appointed and who have furnished their con·
sent inasmuch as from amongst such con11enting appointees the
(Jovernment has unfett~red and unguided power to select som~ for
S.P. GUPTA v. UNION (Tulzapurkar, J.) 963

being appointed to other High Courts and to appoint others to their A
home-state High Courts. Thus discrimination is writ large on the
face of the Circular letter and the seeds of
destruci"ion of judicial
independence are inherent therein.

/
Dealing with the case of sitting Additional Judges first, it can-
not be disputed that the Circular letter intends to confer advantage
to those who would be furnishing their consent and make those who
would not be giving their consent or would be refusing to give their
consent suffer a disadvantage. This position emerges very clearly
from what has been stated by Shri Kankan in paragraph 6 of his
counter-affidavit filed in reply to_ Shri Iqbal Chagla's petition. This is
what he has categorically asserted: "It is_ not, however, the intention c
of the letter that a permanent or further appointment will be denied

- to a Judge only on the ground that he has not given his consent; in
fact, a further appointment to an Additional Judge ·has recently been
given even though he had not given his consent. By no stretch of
construction or from the facts and circumstances existing can it be
D
sought to be inferred that failure to give consent would necessarily
involve an Additional Judge ceasing to be a Judge." The first sen-
tence clearly means that the ground that an Additional Judge has
not given his consent could along with other grounds be the basis
of denying to him a permanent or a further appointment and this is
put beyond doubt by ·the last sentence where it is stated that failure E
to give consent would not necessarily invol•e the dropping of an
Additional Judge which means failure to give consent may involvo
the dropping of such Additional Judge. In other words, there is no
doubt that failure to furnish consent under the. Circular letter is
bound to put the concerned Additional Judge to disadvantage of not

- being extended or not being made permanent or of being dropped
altogether and correspondingly it confers some advantage on those
who would be furnishing their consent, That the Circular letter
F

was not a preliminary step in the direction of collecting data and
information from sitting Additional Judges which coul.J be placed
. -,, before the Chief Justice ·or India when the consultation process under G
Art. 217( I) would be gone into, ai; has been now stated by
Shri Kankan for the contesting respondents, but was arid is intended
• to be acted upon forthwith by conferring an advantage on those who
would be furnishing their consent is clearly borne out by the stand
taken by Shri "Kankan on behalf of the contesting respondents at the
stage of the appeal preferred by them against the interim relief H
granted by the learned Single Judge in Shri Iqbal Chagla's
·writ petition; by the interim relief g_(~.n.ted by the learned
964 SUPREME COURT REPORTS (1982] 2 s.c.R.
A Single Judge the contesting respondents were restrained by
an injunction from implementing the Cir~ular letter or from
acting in any manner upon the consent if obtained from any
person following on or arising from the said Circular letter and '
while challenging this order of interim relief as being erroneous and
ought not to have been made at least on the ground of balance of
•B convenience, Shri Kankan in para 3 of his affidavit dt. 23rd April,
1981, (filed in the Bombay High Court) asserted that the balance of
convenience lay in refusing to grant an injunction rather than to
grant one because it was claimed that persons who would be willi.ng
to give their consent to be appointed as Judges in High Courts other
c than their own should not be deprived of the chance of such appoint-
ment merely by reason ofthe petitioners' having moved the Hon'ble
Court questioning the validity of the Circular and that it would be
against the public inter.est to delay or hold up appointments of
persons as Judges to other High Courts by reason of pendency of the
writ petition. It is thus clear that the contesting respondents were
-
D and are interested in forthwith acting upon the consent that would be
obtained from the sitting Additional Judges under the Circular letter
by giving them a chance in the matter of their appointments as
Permanent Judges in preference to those who would not be furnish-
ing their consent. The Circular letter thus makes invidious discrimi-
nation against those sitting Additional Judges who would not be
E furnishing their consent as they will suffer a disadvantage, while those
who would be furnishing their consent will be at an advantage.

Secondly, the Circular letter see.ms· to confer unfettered and
unguided power on the Government to indulge in picking and choos-
ing even within the class of those Additional Judges who shall have
F furnished their consent in the sense it will be up to t be Government
to select some from that class for being shifted to High. Courts other
than their own and to retain and appoint others in thc;ir own High
-
Courts. In this behalf reliance bas been placed upon the statement
made by the Law Minister on the floor of the Parliament on April 16,
1981 to the effect that it is not the intention of the Government to . L.
G appoint all Additional Judges to outside High Courts This state-
ment clearly suggests that the Government will be indulging in pick-
ing and choosing while appointing some Additional Judges to
outside High Courts and retaining and appointing others in their own
High Courts and in the absence of any guidelines the power can be
H exercised arbitrarily, either by way of punishment or by way of
favouritism as pointed out by the petitio1rers.
' "• • . ' I •
S.P. GUPTA v. UNION (Tulzapurkar, J.) 965

As regards the proposed appointees (either from the Bar or A
services) recommended for their initial appointments, there will be
no question of discrimination in the case of those who have not
been appointed at all but in the case of consenting appointees dis·
crimination is bound to arise because of unfettered and unguided
power or discretion vesting iri the Government to pick and choose
from amongst the consenting appointees, for, in their case also it B
will be up to the Government to decide and select some for being
appointed to High Courts other than their home-State High Courts
and appoint the others in their home-State High Courts. Having
regard to the aforesaid position it is abundantly clear that invidiou>
discrimination is writ large on the face of the Circular letter and the
same is clearly violative of Art. 14 and as such unconstitutional and c
liable to be struck down .
...... In the result the impugned Circular. letter, in my view, deserves
to be struck down for the aforesaid three reasons.

·'( Coming to the specific individual case of Shri S.N. Kumar (res- D
pondent No 3 in Transfer Case No. 20 of 1981) it may' be stated that
the gravamen of the challenge is directed against the President's
action in dropping him outright on the expiry of his extended short
term on June 6, 1981, i.e. during the pendency of the case before
this Court and the action is challenged by the petitioners as well as
E
by Shri S.N. Kumar as being violative of Art. 224 (1) as also
Art. 217(1) and hence illegal, unconstitutional and void. Principally,
it is contended that the decision of the appointing authority not to
continue but to drop him is vitiated by legal mala-fides inasmuch as
assuming that the case is governed by Art. 217( I) there . has been no

- full o.r effective eonsultation between the President and the other
constitutional functionaries, particularly the Chief Justice of India
as contemplated by that Article and therefore the said decision must
F

be regarded as void and non-est. The contesting respondents have
joined issue by asserting that there was full and effective consultation
.- a-s required by Art. 217(1) .
G
At the outset it may be stated that the petitioners had pleaded
(vide para 11 (w) of Shri Tarkunde's petition) that the Chief Justice
of Delhi High Court and the Chief Justice of India had recommend-
ed extension to three Judges (including Shri S.N. Kumar) for the
.'( . full period of two years but there was a half-hearted and vague H
denial thereof by Shri Kankan in his Counter-affidavit dated July 22,
1981 who merely stated that the ;\foresaid statement that both the
966 SUPREME COURT REPORTS [1982] 2 ~.c.tt,

A Chief Justices had recommended extension to the concerned three
Judges for two years was untrue and incorrect, without specifying
whether, if not both, any one had done so and if so who had
+
recommended it, and further if the recommendation was not for all
the three Judges it was for whom and if not for two years for
what period? A vague denia I like this meant no denial at all.
B Shri S.N. Kumar in his 'Counter Affidavit dated July 17, !981 had
also asserted that the Chief Justice of Delhi High Court had told him
and a number of his colleagues that he (Chief Justice) had recommend-
ed the extension to the concerned three Judges (including himself),
y
to which there was a reply from Shri T.N. Chaturvedi, Secretary
c (Justice) Government of India, in his Affidavit dated August 25, 1981
to the effect that in the nature of things the Chief Justice of Delhi
High Court could not have told Shri S.N. Kumar that he had made
a recommen<:lation in his (Shri S.N. Kumar's) favour and Shri
Chaturvedi further averred categorically : "I state that as a matter
of fact there was real and effective consultation with the two Chief
--
Justices and the President preferred the views of the Chief Justice of
D
Delhi High Court which were not favourable for a further appoint·
ment of.S.N. Kumar:" By implication it became obvious that there
was complete divergence between the two Chief Justices in their views
on the point of Shri S.N. Kumar's continuance and that the Chief
Justice of India had made a recommendation favourable to Shri
E S.N. Kumar. In such state of pleadings a question naturally arose
whether this divergence has arisen oi;i. a consideration of the
same or identical material by both the Chief Justices or otherwise ?
Meanwhile, a Newspaper Report appearing in the issue
of Hindustan Times of July 10, 1981 under the. caption "Govt. over-
ruled Chandrachud's. views'', not merely stated that, though the
F Chief Justice of India had dismissed the allegations against Shri
S.N. Kumar as "unsubstantiated" and had recommended his confir-
mation, the Government had placed greater reliance on the views of
the Chief Justice of Delhi High Court but went fQrther and asserted,
the reporter claiming to have had a look into the files, that certain
correspondence ~between the Chief Justice of Delhi High Court and ·
G Union Law Minister had been marked for "Law Minister's eyes"
suggesting thereby that the same was meant for being kept away
from the Chief Justice of India. On the aforesaid Newspaper Report
being made a part of his pleading by Shri Tarkunde by annexing a
copy thereof to his Rejoinder Affidavit dated August .3, 1981,
H Counsel for the petitioners repeatedly sought information from the
learned Attorney General appearing for the .Union of India on the
s.P_. GUPTA v._ UN(ON (Tulzapurkar, J.) 967

I point whether any . part of the correspondence between the Chief A
i Justice of Delhi High Court and the Union Law Minister had been
kept away from 1he Chief Justice of India as, if that were true, it
would directly vitiate the consultation contemplated by Art. 217(1)
but instead of making any statement furnishing the correct informa-
tion on the point the learned Attorney General claimed privilege
even in regard to ;such information. It was in these circumstances B
that this Court on October 16, 1981 directed disclosure of relevant
documents contained in the file relating to Shri S.N. Kumar concern-
ing his short term extension and eventual non-continuance for the
purpose of ascertaining whether there has or has not been full,
complete and effective consultation between the appointing authority
on the one hand and the constitutional functionaries on the other,

- particularly the Chief Justice of India. On the question of privilege
claimed by the contesting respondents in respect of the relevant files
and documents my learned brother Bhagwati has dealt with and
discussed the issue elaborately and exhaustively after referring to all
the relevant authorities cited at the Bar and since I am agreeing with
D
his view on the point I am not dilating on it at all. I adopt all that
he has stated on the issue in his judgment. The position needs to be
• made perfectly clear that the disclosure has been ordered by the
Court only for the limited purpose mentioned- above and. not for
deciding upon the merits or demerits of the grounds on which each
of the Chief Justices made his own recommendation nor is the Court E
concerned with the truth or otherwise of the facts or materials on
the basis of which each one acted. After the disclosure was made
Counsel for Shri S.N. Kumar was understandably anxious to address
the Court on the merits and demerits of the grounds which prompt-
ed the two Chier' Justice to make their divergent recommendations F
-- and desired to vindicate his client's honour and fair name before
the Bar of this Court but we prevented him from doing so by-cate-
gorically telling him that it was not the function of this Court to go
into the merits or demerits of the grounds or truth or falsity of the
·--- material and that the disclosure had a limited purpose and if upon ·
the scrutiny of the disclosed material the Court came to the conclu- G
sion that there was no full or effective consultation with the Chief
Justice of India the appointing authority's decisionldropping his client
may have to be quashed and the matter may have to be sent back to
the appointing authority for fresh consideration and passing appro-
priate orders after undertaking the requisi~e consultation under H
Art. 217(1) again and in that process fair-play will require that his
c!ien t gets full opportunity to have his say in vindication of his
·honour and fair name. The main question, therefore, that arises for
968 SUPREME COURt RilPbRts [1982] 2 s.c.tt.

A our consideration is whether it could be said on a perusal of dis-
closed documents that full and effective consultation as contemplated
by Art. 217(1) between the President on the one band and the
Constitutioual · functionaries on th<; other, particularly the Chief
Justice of India, had preceded the impugned action of dropping
Shri S. N. Kumar outright. It is clear that if the answer is in the
B affirmative the impugned action will have to be upheld, but if it is in
the negative the sarri,e will have to be regarded as vitiated by legal
ma la fides and will have to be struck-down.

Having regard to the decisions of this Court in Chandramoule-
shwar Prasad's case (supra) and Sankalchand Sheth's case (supra) it
c can now be regarded as well settled that consultation implies a con-
ference of two or more persons or an impact of two or more minds
in respect of a topic in order to enable them to evolve a correct or
atleast a satisfactory solution and that in order that the two minds may
be able to confer and produce a mutual impact it is essential that each
-
must have for its consideration full and identical facts, which can at
D once constitute both the source and foundation of the final decision.
It is equally well settled that consultation or deliberation! is not com-
plete or effective before the parties thereto make their respective •
points of views known to the other or others and discuss and
examine the relative merits of their views. In the latter decision
Chandrachud, J. as he then was has at page 453 of the Report
E
observed :

"It must therefore follow that while consulting the
Chief Justice, the President must make the relevant data
available to him on the basis of which, he can offer to the
F President the benefit of his considered opinion . ,. ,, ,, ,, ,. .
The fulfilment by the President of his constitutional obliga-
-
tion to place full facts before the Chief Justice and the
performance by the latter of the duty to elicit facts which
are necessary to arrive at a proper conclusion are parts of
the same process and are complementary to each other".
G
Again, Krishna Iyer, J (for himself, Bhagwati and Fazal Ali, JJ) has
(at p. 495 of the Report) observed thus :

"We consult a physician or a lawyer, an engineer or an
H architect and thereby we mean not casual but serious, deli-
berate seeking of informed advice, competent guidance and
considered opinion. Necessarily, all the materials in the
s.P. GUPTA Ji. UNION (Tufzapurkar, J.) 969 "

possession of one who consults must be unreservedly placed A
before the consultee. Further, a reasonable opportunity for
getting information, taking other steps and getting prepar-
ed for tendering effective and meaningful advice must be
given to him. The consultant, in turn, must take the matter
seriously since the subject is of grave importance. The
parties affected are high-level functionaries and the impact B
of erroneous judgment can be calamitous". (Emphasis
supplied)
y
'' It is in the light of these well settled principles concerning consul-
tation that the disclosed material will have to be scrutinised for
deciding whether in the instant case there has been full and effective

- consultation between the President and the Chief Justice of India in
the matter of the impugned decision that was taken in regard to ·
Shri S.N. Kumar.

In all I3Udocuments compnsmg correspondence between the
Chief Justice of Delhi High -Court and the Union Law Minister,
D
between the Chief Justice of India and the Union Law Minister and
between tlie Chief Justice of D~lhi High Court and the Chief Justice
of India and some notings made by the Union Law Minister have
been disclosed. A perusal of this material clearly shows that, though
initially the non-recommendation of extension to Shri S.N. Kumar E
was thought of on four grounds : (a) his behaviour in Court, (b) his
slow disposal, (c) his doubtful integrity based on unverified and
uninvestigated complaints and (d) adverse IB reports, ultimately the
decision to drop him, according to the Union Law Minister's noting
dated May 27, 19~l, was based-on and confined to the aspect con-
.. cerning his 'reputation and integrity' and the correspondence clearly F
shows that the two Chief Justices held exactly divergent and opposite
views regarding the said ground on which the final decision was
based: The correspondence and notings bring out the following
facts very clearly: (a) the Delhi Chief Justice's view regarding Shri
S.N. Kumar's integrity was based on (i) serious complaints (both
oral and in writing) received by him against Shri S.N. Kumar, G
including some received from the Union]Law Minister himself and
(ii) doubts expressed by some responsible Members of the Bar and
some of his colleagues about his integrity; and while admitting that
he had no investigating agency to. find out whether the complaints
were genuine or not, he informed the Union Law Minister that he H
could not recommend Shri S.N. Kumar's continuance as injhis view
"reputation of integrity is just as important las the person actually
, 970 SUPREME COURT REPORTS (1982] 2 s.c.R.

A being abo•e board"; (b) the Chie( Justice of India felt that the
material mentioned by the Delhi Chief Justice for <loubting Shri S.N.
Kumar's integrity was too vague and his independent inquiries from
the Members of the Bar and the Bench of the Delhi High Court
showed that Shri S.N. Kumar was a man of unquestioned integrity
and justified a favourable recommendation for his continuance; (c)
B the Chief Justice of India by his letter of the March 14, 1981 had
requested the Delhi Chief Justice to furnish him with "further
details" and "concrete facts" in regard to the allegations against
Shri S.N. Kumar and the Union Law Minister also, in view of the 'y
.,
insist~nce of the Chief Justice of India, had by his letter of April 15,
1981 called for such "concrete material" with hisEcomments thereon
c from the Delhi Chief Justice so that the . basis on which he had
formed his view about Shri S.N. Kumar's reputation for integrity
would be available to Government; (d) no "further details or
concrete facts or material" as desired by the Chief Justice of India
were ftrnished to him by the Delhi Chief Justice but the Delhi Chief,
Justice ~ent a lengthy Jetter of five pages dated May 7, 1981 to the
D Union Law Minister marked "Secret-for personal attention only"
whieh contained "further details and concrete material~" including
references to specific cases (with suits Numbers and titles) wherein
according to him Shri S.N. Kumar's integrity had been doubted; and
(e) the Delhi Chief Justice had, both before and after the issuance
of the aforesaid letter, during his discussions with the Law Minister
E
requested the latter that his letters marked as above may be kept
secret for his personal attention only, that is to say, these may be
avoided from being brought to the notice of the Chief Justice of
India and he also explained to him the reasons for the same and the
Law Minister's notings show that he responded to that request; in
fact, by his letter of May 29, 1981 addres~ed to the Delhi Chief
Justice, which happens to be last letter in the file, the Union Law
-
Minister has placed on record the fact that, as per the request of the
Delhi Chief Justice, letters marked "Secret-:-for ;iersonal attention
only'', including the Jetter of May 7, 1981, had been kept confiden-
tial from the Chief Justice of India and had not been shown to him.
G In other words, ·it is abundantly clear from the correspondence and _
notings that "further details" or "concrete facts or material"
regarding Shri S.N. Kumar's integrity, though specifically asked for
by the Chief Justice of India, were not furnished to him and the
letter dated May 7, 1981 which contained such further details and
H; concret_e facts or. materials was deliberately kept out of his way.

)
•
S.P. GUPTA v. UNION lTulzapurkar, J.) 971

Counsel for the contesting respondents, however, pointed out A
that after the Chief Justice of India bad sent bis letter of March 14,
· 1981 to the Delhi Chief Justice calling for "further details" and
"concrete facts", the two Chief Justices had a meeting on March 26,
1981 and an oral discussion bad taken place· between the two, and
counsel contended that during this oral discussion the Delhi
Chief Justice must have given these "further details" and "concrete B
facts or materials" to the Chief Justice of India and such i~ference
becomes probable from tbefact that long.before the letter dated May
7, 1981 was disclosed under this Court's order dated October 16,
1981, Sbri S.N. Kumar bas in bis counter-affidavit dated July 17,
1981 made a reference among others to three suits being Summary
Suits Nos. 1408/79, 1409/79 and 1417/79 which happen to be very c
three suits wherein, according to Delhi Chief Justice, his integrity
bad become questionable and presumably be got particulars of these
suits from the Chief Justice of India when the Chief Justice of India
had a lengthy.discussion with him about his work and other general
matters. True, there was a meeting and oral discussion between the
r.
two on March 26, 1981 but it is impossible to accept the aforesaid
D
contention of the Counsel that in the oral discussion "further
detaiis" and "concrete facts or material" must have been disclosed
to the Chief Justice of India for three reasons. First, what trans-
pired between them during the said discussion has been referred to •
and recorded by the Chief Justice of India in his letter of May 22,
1981 addressed to the Union Law Minister and this is what he has·
E
said in that letter : "The Chief Justice (meaning Delhi Chief Justice)
met me on March 26, 1981, when he told me that Justice S.N.
Kumar was very slow in his disposal and that he doubted his inte-
grity because even after Justice S.N. Kumar's allocation of work
changed from the Original Side to the Appellate Side he still continu• F
ed to hear the part-heard cases on the Original Side." As regards
the latter aspect the Chief Justice of India had all along maintained
that that conduct on Shri Kumar's part by itself could not be
regarded as blame-worthy in view of long standing practice obt~ining
in that behalf in Delhi High Co:irt, and without more from that
alone no inference of corruption or lack of integrity could be drawn. G
In other words, details of the com.plaints received against Shri S.N.
Kumar cir particulars of specific cases wherein Sbri Kumar's
integrity had become· suspect were not mentioned to the Chief
Justice of India otherwise the Chief Justice or India would have
referred to this aspect while recording what transpired between them. H
The Delhi Chief Justice's letter to the Chief Justice of India on
March 28, 1981, immediately following upon the meeting and oral
972 SUPREME COUkT REPORTS (1982) 2 s.C.R.

A discussion is of no use because beyond stating that he had an oppor-
tunity "to discuss this delicate matter with yotl" and further stating
that as regards the complaints about Justice S~N. Kumar's integrity
and general conduct '"the matter has already been discussed between
us" no further details are recorded as to what transpired between
them during their meeting. Even in his letter of even date (March
B 28, 1981) addressed to the Union Law Minister the Delhi Chief
Justice merely records baldly thus-"I have since had an opportunity
to discuss the entire matter in detail with the Chief Justice of India"
without mentioning what was discusssed. Therefore, the only record
of what was discussed between them is to be found in the letter of
May 22, 1981 written by the Chief Justice of India to the Union
c Law Minister and as stated earlier this record of what transpired
between them in the meeting does not show that "further details"
and "concrete facts and materials" in relation to complaints about
lack of integrity of Shri S.N. Kumar were disclosed or discussed by
the Delhi Chief Justice with the Chief Justice of India. Secondly, if
during the oral discussion "further details" and "concrete facts or .
D materials ' which find a place in the letter of May 7~ 1981 had been
disclosed, discussed or placed before the Chief Justice of India it was
simply pointless for the Delhi Chief Justice to mark his letter dated
May 7, 1981 'Secret-for personal attention only' and further to
request the Union Law Minister to keep it away from the Chief
Justice of India and for the Union Law Minister to comply with
E such request. Admittedly the letter was kept confidential from him
and was not s~own to him. The very fact that this letter dated May
7, 1981 was kept away from him at the insistance of the Delhi Chief
Justice clearly shows that "further details" and "concrete facts or
materials" asked for by the Chief Justice of India were not placed
before him. Thirdly, just as the Chief Justice of India during his
F discussion with Shri S.N. Kumar put to him and got his explanation
regarding aspects like his behaviour in Court, his slow disposal his,
dealing with Original Side part-heard matters notwithstanding
change in his assignment from the Original .Side to Appellate Side ,1
etc., he would have also put to him and got "his explanation about
the "further details" and "concrete facts or material" in regard to
the allegatjons against his integrity, had he (the Chief Justice of
India) known such "further details" and "concrete facts or materials"
and this has not happened. The reliance on Shri S.N. Kumar's
counter affidavit dated July 17, 1981 wherein a reference has been
H made by him to the three Summary Suits Nos. 1408, 1409 and 1417
of 1979 is of no avail, for, if his counter-affidavit in that behalf is
carefully scrutinised it wiil appear clear that he has made a refere~c
S.P. GUPTA v. UNION (Tulzapurkar, J.) 973

to these three suits alongwith six or seven others suits and all in. A
connection with explaining ~he charge of impropriety on his part
in taking up these part-heard matters even after his assignment had
. been changed from the Original Side to the Appellate Side and he
· explained it on the basis of a long standing practice obtaining in that
behalf in Delhi High Court. He has not referred to these suits by
way of explaining the allegations of corruption or behaviour raising B
doubt about bis integrity. Any one who goes through the disclosed
material carefully cannot fail to come to the conclusion that vital
material in the shape of "further details" and. "concrete facts" was
deliberately kept away from the Chief Justice of India; · The conten-
.' ...I . ____ tion has, therefore, to be rejected.
. .--.......... ·
c
If the reasons, which prompted the Delhi Chief Justice to keep
away his communication of May 7, 1981 containing vital material
in the shape of "further details" and "concrete facts" from the Chief ..
Justice of India, are · scrutinised· and these have been mentioned in
the Law Minister's noting of May 19, 1981 and .his letter of May 29,
1981-it"will·appear clear that apart from being vague they show a D
lack of proper perception on his part of the true nature of the
obligations cast. on him under the Constitution. In substance the
sum total of his reasons comes to this :-(i) that he did not want to·
be embarrassed by the likely disclosure of the contents of his commu-
nication dated May, 7, 1981 to Shri S.N. Kumar as had happened in
the case of his e.arlier communication dated 19th February, 1981 to E
the Chief Justice of India and (ii) that as he could not desist from
expressing without fear or favour what he felt about certain matters
(in relation to Shri S.N. Kumar) he communicated all that he wanted
to say about him to the Union Law Minister through his letter of
_May 7, 1981.but at the. same time because he was particular that his
relations with Chief Justice of India should not be spoiled he desired
F
that the contents of that communication should not be shown or
made known to the Chief Justice ·of India. As . regards· (i), all that
can be said is that it is surprising how he expected the Chief Justice
of India not to put to Shri S.N. Kumar and seek his explanation on
whatever he had come to kriow against him ·from any source includ-
• ing the Delhi Chief Justice, in fact, before supplying any material to G
the Union Law Minister he himself ought to have apprised
S.N.· Kumar of all the material and all that he had heard about him
and'held discussion with him to ascertain his version thereon and
then conveyed both sides of the picture to . the other functionaries.
As ·regards (ii), it must be first observed that ·full and effective con- H
sultation as contemplated by Art. 217(1) required of him to place all
relevant and material facts about Shri S.N. Kumar before the Chief
974 SUPREME COURT REPORTS [1982) 2 s.c.R.

A Justice of India even at the cost of spoiling of his relations with the
Chief Justice of India if it came to that and secondly, it was an
unreal as well as erroneous apprehension on his part that a full
disclosure of facts and material about Shri S.N. Kumar accompanied
by his frank and honest opinion thereon would have spoiled his
relations with the Chief Justice of India; in any event maintaining
B good and cordial relations with the Chief Justice of India was
thoroughly irrelevant in the context of discharging constitutional
obligation. Having regard to the well-settled principles concerning
consultation referred to above it is clear that both the· Union Law
Minister as well as the Delhi Chief Justice have failed to discharge
their cons{itutional obligation in the matter of consultation contem·
c plated under Art. 217(1). In the first place, contrary to the principles
laid down-by this Court in Sankalc hand Sheth' s case (supra) that the
President must make the relevant data available to the Chief Justice
of India for obtaining his considered opinion, the Union Law Minis-
ter did not forward the complaints which he had received against
Shri S.N. Kumar to the Chief Justice of India (which he forwarded to
D the Delhi Chief Justice); secondly, the Chief Justice did not forward
"further details" and· "concrete facts or materials" touching
Shri S.N. Kumar's integrity to the Chief Justice of India inspite of
the latter having specifically called for the same, and thirdly between
them the Union Law Minister and the Delhi Chief Justice saw to it
that the communication of May 7, 1981 (from the Delhi Chief Justice
E
to the Union Law Minister) which contained "further details" and
"concrete facts or materials in regard to the allegations of lack of
integrity against Shri S.N. Kumar was kept confidential from the
ChiefJustice of India and was not shown to him. It is thus amply
clear from the record that ,the facts which were taken into considera-
F tion by the Union Law ~·linister and the Delhi Chief Justice and
which provided the basis to the. appointing authority to arrive at the
impugned decision were not placed before the Chief Justice of India,
and, therefore, there was neither full nor effective consultation bet-
ween the President and the Chief Justice of India as required by
Art. 217(1) of the Constitution.
G There is another aspect relating the procedure that has to be
foll~wed while undertaking such full and effective consultation
namely, that the procedure must iensure fair play qua the concerned
Judge. That the sc~pe and ambit of con$ultation includes fair-play
qua the concerned Judge is clearly laid down in Sankalchand Sheth's
H
case (supra) in the context of question· of the Ju<;!ge's ~ransfer and
the same position must obtain in regard to consultation under
s.i>. oi:Ji>TA ii. tiNION (Tulzapurkar 1 J.) 91$.

Art. i 17(1) in the Icon text of the question of the continuance of an A
Additional Judge on the expiry of. bis initial or extended term,
especially when it has been held that the such Additional Judge has
a legitimate expectancy and a right to be considered for co,itinuance
either for another term or as a Permanent Judge and the considera-
• tion of his case would suffer grave infirmity and illegality unless the
B
consultation is again full and . effective, that is to say, all facts con-
cerning him are before all the functionaries undertaking the consulta"
tion including his version on facts allegedly adverse to him. In other
words, the procedure to be followed in such consultation under
y
'. Art. 217(1) qua an Additioni+I ~udge must ensure fair-play !n rel!ltion
to him. If a person has a right to be considered how can such right
be effective unless he has an opportunity to meet or explain the
c

- alleged adverse material against him. Sans such opportunity his
right to be considered will be illusory and unreal. The question is
whether the procedure followed in Shri S.N. Kumar's case ensured
fair-play qua him. It is clear from the record that "further details"
and "concrete facts or materials" in regard to the allegations of lack D
of integrity against Shri S.N. Kumar were not put to him nor was
his explanation thereon sought; and there is no reason why
Shri S.N. Kumar's averment that the said material was never
disciosed to him nor put to him by anvbody should not be accepted.
The question of Chief Justice of India disclosing or putting to him
the said material obviously does not arise, for he himself was not E
apprised of such "further details" and "concrete facts or materials"
but the same constituted the basis on which the Delhi Chief Justice
and the Union Law Minister acted leading to the impugned
decision and therefore it was up to the 'Delhi Chief Justice to have
apprised Shri S.N. Kumar of such. material by telling him.that the
.. same is likely to be held against him and by' seeking his explanation F
or version thereon and it was up to the :Union· Law Minister to see
to it that such procedure was followed through the Delhi Chief
Justice before advising the appointin'g authority to act on the same.
The record does not show that anything of the kind was done and
in. that sense also there wa> no full and. effective consultation which
vitiates the impugned decision. In short in Shri S.N. Kumar's case G
it is quite clea,r that both these high constitutional functionaries,
namely the un;on Law Minister and the Delhi Chief Justice abdi-
cated their constituti onal responsibility or to use Justice Krishna
Iyer's language they utterly failc;q tq <;lischar~e their "accountability
to the ju$tice constitut;ncy ,"
916 3UPRBMB COURT RBPORTS [19821 2 s.c.R.

A The result is that the impugned decision against Shri
S.N. .Kumar is vitiated by legal ma/a fides and as such must. be held
to be void and non-est and his case must go back to the President
for re-consideration and passing appropriate orders after the requi-
site consultation ris undertaken afresh, with due observance of
adequate fair-play,
B
Writ Petition No. 274of1981.

and y
I
Transferred Cases Nos. 2, 6 and 24 of 1981.
c
In the above matters, with the resignation of Shri M.M. lsma,il
Chief Justice of Madras High Court which has become effective, this
Court is only concerned with the challenge made to the transfer of
Shri K.B.N. Singh, Chief Justice of Patna High Co11rt to Madras
-
High Court. Initially by a writ petition No. 2224 of I 98 I filed in
0 the Patna High Co'11rt the challenge was made by two lawyers,
Shri D.N. Pandey and Shri Thak11r Rampeti Sinha, the Secretary
and President respectively of Bihar State Socialist Lawyers Associa-
tion which Shri K.B.N. Singh was impleaded as respondent No. 3 but
after it was transferred to this Court and became the subject matter
of transfer Case No. 24 of 1981 at his request by this Court's order
E dated September 15, 1981 Shri K.B.N. Singh was , transposed as co-
petitioner and he has filed a self-contained comprehensive affidavit
dated September I 6, 1981 making all the necessary averments and
submissions in support of the challenge.

F The brief facts c'ollcerning Shri K.B.N. Singh's transfer are
..
there : while he was practising as an advocate of the Patna High
Court, Shri K.B.N. Singh was appointed as Judge of that High Court
on September 15, 1966; he was made permanent fodge of that High
Court on March 21, 1968; he was first appointed Acting C~ief Justice
and later-on Permanent Chief Justice of that Court by the President-
G
ial Notification dated July 7, 1976 and he assumed charge of that
office on July 19, 1976. For about 9 months, i.e. from January to
September 21, 1979 he functioned as an Acting Governor of State of
Bihar whereafter he resumed work as the Chief Justice. By the
impugned Notification dated January 19, 1981 the President, after
H
consultation with the Chief Justice of India, was pleased to transfer
J:!i~ as the <;:hief Justice of the Hi$h Coµrt of Madras wit!:\ effect
§.P. GUPTA JI, tiNiON (tuizapurkar, J.) 977
from the day he would assume charge of his office. It is this trans- A
fer that is being challenged by Shd K.B.N. Singh and other peti-
tlonets on four or five grounds, namely, (a) Art. 222(1) does not
ret'er to a Chief Justice and hence the impugned transfer is outside
Its purview; (b) since the said Article properly construed covers only
Consensuai transfers the irnpugued transfer, which is admittedly non-
consensual, is bad in law; (c) it has not been effected in public B
interest; (d) it has been effected without full and effective consulta-
tion contemplated by Art. 222(1) and (e) the procedure followed in
effecting the same did not ensure fair-play in relation to him and· the
.Y transfer is punitive in character. On behalf of the contesting res-
pondents, amongst wMm is included the Chief Justice of India who
has been impleaded as party-respondent No. 2, the challenge is c
refuted under each of the heads. It is contended that the transfer of

- a Chief Justice falls within the purview of Art. 222(1), that non-
consensual transfers also fall within its scope and purview, that the
impugned transfer bas been effected in public interest, that there
. wasfull and effective consultation between the President and the
Chief Justice of India as contemplated by Art. 222(1) and that the D
procedure followed in effecting the same was quite fair and that the
impugned order had been made after giving Shri K.B.N. Singh full
opportunity to place his point of view and difficulties before the
Chief Justice and after these were objectively considered. It is cate-
gorically denied that it is a punitive transfer.
E
At the outset it may be stated that Counsel for Sbri K.B.N.
Singh and the other petitioners did not seriously press the contention
that the transfer of. a Chief Justice from one High Court to another
·was not within the purview of Art. 222( l) for the reason that it was

- difficult to maintain that a Chief Justice was not included or could
not fall within the expression "a Judge of a High Court"; similarly,
having regard to the conclusion reached in the earlier part of the
judgment that consent cannot be read in Art. 222( l' .and that the
F

• said Article covers non consensual transfers it is unnecessary to deal
with the second contention again at this stage. The real questions
that arise for determination in regard to the transfer of Shri K.B.N. G
Singh, therefore, are whether the transfer has been ordered in public
interest, whetQ.er there has been full and effective consultation bet-
ween the President and the Chief Justice of India as required by Art.
222( I) and whet~r the procedure that ,was followed ensured fair-play
in the sense that Shri K.B.N. Singh was heard fully and his say wa~
"'· taken into consideration before effectin~ 4is transfer,
918 SUPREME COURT REPORTS [1982] 2 s.c.R.

A On the aspects or the scope and limits or the power to transfer
a Judge under Art. 222(1) and the built-in-safeguards to
prevent its abuse this Court in Sankalchand Sheth' s case (supra) has ,
clearly laid down that the said power is circumscribed by two impor-
tant safeguards, namely, : (I) the exercise of the power is conditioned
by the requirements of public interest and cannot be exercised by
B way of punishment and (2) cthere must be a full, complete and effec-
tive consultation between the President and the Chief Justice of India
before an order under that Article can be made. Chandrachud, J.
(as he then was) has observed (at p. 456 of the Report) thus :

"Article 222(1) postulates fair play and contains built-
c in-safeguards in the interests of reasonableness. In the first

D
place, the power to transfer a High Court Judge can be
exercised in public interest only. Secondly, the President
is under the obligation to consult the Chief Justice of India
which means and requires that all the relevant facts must be
placed before the Chief Justice. Thirdly, the Chief Justice
-
owes a corresponding duty, both to the President and to the 'r
Judge who is proposed to be transferred, that he shall
consider every relevant fact before he tenders his opinion
to the President. In the discharge of this constitutional
obligation, the Chief Justice would be within his rights, and
indeed it is his duty whenever necessary, to elicit and
E ascertain further facts either directly from the Judge concer-
ned or from other reliable sources. The executive cannot
and ought not to establish rapport with the Judges which is
the function" and privilege of the Chief Justice. In substance
and effect, therefore, the Judge con"cerned cannot have
F reason to complain of arbitrariness or unfair play, if the
due procedure is followed."

It is by reference. to these principles that the question will .
have to
-
be considered whether the impugned transfer is vitiated on any of
•
the three grounds mentioned above. ,. '.-,

G
Learned Counsel for the petitioners (including Shri K. B. N.
Singh) urged that the three grounds or aspects really get . intermixed
and will have to be considered together in light of the relevant mat-
erial on record and according to counsel the material on record
H clearly shows that the impugned transfer stands vitiated by the in-
jp firmities indk11ted each of the; said wounds. Counsc;I contended that
S.P. GUPTA v. UNION (T'ulzapurkar, J.) 979

a mere recital in the Presidential Notification that the transfer has A
been ordered by the President "after consultation with the Chief
Justice of India" is not enough and will not avail the contesting res-
pondents and when the factum of full and effective consultation. has
been put in issue the respondents have to show demonstrably that
there has been such full and effective consultation as contemplated
by Art. 222(1) and the material produced is lacking in this behalf B
particularly when the normal procedure was reversed in that the
proposal for transfer in the instant case emanated from the Chief
Justice of India and further there was nothing to show whether
the communication received from the Chief Minister of Madras con-
taining grounds of his objection to the ·proposed transfer had been
placed before· the Chief Justice of India. It was further contended c
- that it has not been shown that the transfer is in public interest or
what category of public interest is being served thereby. It was pointed
out that there is a divergence between the transferring authority (the
President) and the Chief Justice of India as to the reasons for which
the impugned· transfer has been made; whereas according to the
transferring authority it was in pursuance of a policy of having D
all Chief Justices in every High Court from outside, according to the
Chief Justice of India it was a selective transfer made in an appro-
priate case for strictly objective reasons, but the tramfer could not
be for the reasons of the policy because that policy had not been then
and has not been even now finally formulated or adopted and if it is
a selective transfer it has been by way of punishment and therefore
bad in law. It was also contended that no reasons or gmunds
necessitating or justifying the transfer nor materials in support there-
of were ever disclosed or discussed with Shri K.B.N. Singh by any
one on behalf of the transferring authority or by the ·Chief Justice
-- of.India, that the advanced age and serious illness of his mother and
his other difficulties were not properly considered and as such ' fhe
F
procedure followed lacked fair-play and for all these reasons the
impu~ned transfer deserves .to be quashed or set-aside.

In view of the aforesaid contentions raised by the Counsel for
the petitioners it will be necessary to indicate briefly the relevant G
material on the record and ascertain what facts or aspects emerge
clearly therefrom so as to adjudicate upon the V!!lidity or otherwise
of the grounds of attack levelled against the impugned transfer. The
entire relevant materi.al requiring analysis and consideration consists
of: (a) Self-contained compre4eqsive ~ffidavit dated September 16,.
980 SUPREME COURT REPORTS [1982] 2 s.c.R.

A 1981 of Sbri K.B.N. Singh filed after be was transposed as a co-
petitioner containing all the relevant averments arid submissions in
support of the challenge; (b) Counter-affidavit dated September 24,
J981 of Sbri Kankan filed on behalf of the Union of India; (c)
Rejoinder-Affidavit dated September 28, 1981 of Sbri K. B. N. Singh
in reply to Shri Kankan's counter-affidavit; (d) Counter-affidavit
dated September 29, 1981 of the Chief Justice oflndia, re>pondent
No. 2 (e) Rejoinder-affidavit dated October 16, 1981 of Shri K.B.N.
Singh in reply to the counter-affidavit of Chief Justice of India;
(f) Relevant correspondence between the Chief Justice of India on
y
the one hand and the Union Law Minister and the Prime Minister J,

on the other and between the Chief Minister of Madras and the
c Union Law Minister contained in a file pertaining to the impugned
transfer disclosed by the Union Government pursuant to this Court's
order dated November 2, 1981; (g) Relevant notings in file No.
50/6/80-Jus pertaining to the appointment of Chief Justices of Delhi
High Court and Andhra Pradesh High Court in the context of the
-
proposed general policy of having all Chief Justices in various High
-D Courts from outside also disclosed pursuant to this Court's order
.dated November 18, 1981.

Reading items (f) and (g) together the following facts or aspects
emerge very clearly on the record :

(I) a general policy to have Chief Justices of all the High
Courts from outside was being evolved by the Union
Government, who had almost decided to accept the basic
principles underlying it but had not finally formulated or
adopted the same because the mechanism or modality of
F procedure had yet to be decided upon and fix:!d and the
notings in file No. 50/6/80-Jus clearly show that the appoint-
--
ments of the two Acting ChiefJustices as ·Permanent Chief
Justices of Delhi High Court and Andhra ·Pradesh High
Court were made on the understanding that they will be :._,
liable to be transferred "if eventually a decision is taken
that every Chief Justice must come from outside";

(2) that the Government's view in regard to such policy
was put across to the Chief Justice of India but the Chief
Justice of India was "firmly opposed to a whole-sale trans-
fer of the Chief Justices of the High Courts" and had stated,
-
;

"~ take the view, wh~ch I b21, ve expressed from time to time
S.P. GUPTA v. UNiON (tulzapurkar, J.) 981.

that such transfers may be made iii appropriate cases for A
strictly objective reasons"(vide letter dated December 7,1980
from the Chief Justice of India to the Union Law Minister).

Reading the correspondence at item (f) above, the following
additional facts or aspects emerge clearly :
B
(3) that transfers of some of the Chief Justices had
been engaging the attention of the Chief Justice of
India for the past few months; and he had made perso-
nal inquiries in this behalf and had met several lawyers
and Judges of the concerned High Courts and on the· . c
basis of the data which he had collected and which he

-- had considered with the greatest objectivity he had
suggested transfers of certain Chief Justices inclu-
ding that of Shri K. B. N. Singh (vide letter dated
December 7, 1980) ;
-I D
I

(4) that initially on December 7, 1980, the recommendation
was to transfer Shri K. B. N. Singh to Rajasthan High
Court to take the place of Shri K. D. Sharma, Acting
Chief Justice there, who was proposed to be transferred
as the Chief Justice of the Kerala High Court, but after E
the Union Law Minister had pointed out certain diffi-
culties in the chain of the connected transfers, the Chief
Justice of India gave a fresh thought to the problem
and by about December 20, 1980 in supersession of his

. previous proposals the Chief Justice of India recommen-
ded that Shri M. M. Ismail Chief Justice of the F
Madras High Court should be transferred as the Chief
Justice of the Kerala High Court and Shrl K.B.N.
. Singh should be transferred as t~e Chief Justice of the
·Madras High Court ;

I G
(5) that these suggested transfers including that of Shri
K.B.N. Singh, apart from being discussed in the corres-
p·ondence were also discussed orally in meetings and over
telephone by and between the Chief Justice of India on
the one hand and the Union Law Minister and the H
Prime Minister on the other an inference arising from
the corresponndence at item (f) itself.
982 SUPREME COURT REPOTTS [1982] 2 s.c.:l.t

· Reading items (a) to (e) above; and particularly the self-
oontained comprehensive affidavit of Shri K.B.N. Singh, counter-
affidavit of the Chief Justice of India and rejoinder-affidavit of
Shri K. B. N. Singh in reply thereto together and proceeding
on the basis of points of convergence only and excluding or ignoring
the points of divergence between ihem arising from their respective
• affidavits, the following additional facts or aspects emerge very
clearly :

(6) that much prior to his suggesting the transfer of Shri
K.B.N. Singh from Patna to Rajasthan High Court on 'r< (
7-12-1980, the Chief Justice of India had paid a visit to
Patna High Court in February, 1980 after disclosing
to Shri K.B.N. Singh the purpose of his visit and had
during thafvisit met on February 24, 25 and 26, 1980
the Hon'ble Judges of that High Court and the Mem-
bers of that Bar individually, the Members of the
-
D Advocates' Association collectively and the Judges of
the District Court at Patna and held discussions with
them, and on his objective assessment of the situation
and the data collected he concluded that dissati~factory
working conditions obtained in the High Court;

E (7) that in regard to the proposai to transfer Shri K.B.N.
Singh from Patna to Madras High Court, Shri K.B.N.
Singh and the Chief Jm;tice of India had discussions
with each other on two occasions-one on the 5th
January, 1980 over phone and the other on January

F
8, 1981 at the residence of the Chief Justice of India.
What transpired between the two on these two occa- ..
sions is very material and again leaving points of
serious divergence and proeeeding on the points of
broad convergence between the two it can safely be
stated that this is what transpire.cl between them :
On January 5, 1981 the Chief Justice of India inform-
ed Shri K.B.N. Singh over phone that it was propo-
sed to transfer Sbri M.M. Ismail to Kerala and that he
(Shri K.B.N. Singh) may have to go Madras; on fur~
ther query as to the reason for it, the Chief Justice
H of India referred to Government policy but further
specifically conveyed to him that it was proposed to
transfer Shri M.M. Ismail from Madras and it was ·
$. P. GUPTA v. UNION ('f'ulzapurkar, J.) 983

necessary to appoint an experienced and senior Chief
Justice in his place; during the telephonic talk Shri
K.B.N. Singh told the Chieflustice oflndia that his
mother was seriously ill and bed ridden and was not
in a position · to move out of Patna and accompany
him to Madras and further told him that if his trans-
fer was insisted upon he would prefer to resign where- B
upon the Chief Justice of India requested him not to
act in haste and to give the matter a close thought; the
Chief Justice of India also added that he (Chief
Justice) was making a note of the personal difficulty
mentioned by him and that it will have to be taken
into consideration before a final decision was taken;

- the Chief Justice of India also requested him to go over
to Delhi to discuss the question of his transfer. During
the meeting that tbOk place at the residence of the
Chief Justice of India on 8th January, 1981 !lt about
7.30 p.m. the proposed transfer was further discussed
and when during the discussion the question of his D
mother's advance age and illness cropped up, the
Chief Justice of India told him that he was unable to
agree with his view on the matter as there were other
dependable persons in his family who could look
after his mother, that in any case his brother Shri
S.B.N. Singh, who was practising in the High Court, E
was quite capable of looking after his mother, to
which Shri K.B.N. Singh replied that his mother had
a special attachment to him and that he could not
leave her to the care of his brother and other members
.. of the family; during the discussion Shri K.B.N. Singh
told the Chief Justice of India that it was possible
F
that baseless compla.ints, which were the bane of Bihar,
might have been made to him, and if so, he would
like to remove any wrong· impression tha.t might have
been created, whereupon the Chief Justice of India
told him that he never went by baseless ccmplaints G
and he did not believe that his (Shri K.B.N. Singh's)
conduct was blame-worthy but that if he wanted to
explain any matter, which according to him, had crea-
ted dissatisfaction about the working of the High
Court, he was free to do so; further, during the dis· H
cussion the Chief Justice of India assured him that he
984'. SUPREME COURT REPORTS [1982) 2 S.C.It

A did not bold that he (Shri K.B.N. Singh) himself was
to blame but certain persons were exploiting . their
prox,imity to him which had created needless misunder-
standing and dissatisfaction. It may be stated that
Shri K.B.N. Singh in bis rejo.inder aflidavit has admit-
ted that during the discussion the Chief Justice of
B India did mention to him that certain persons were
exploiting their· proximity to him and that there was
misunderstanding and dissatisfaction in the High Court;

(8) the Chief Justice of India has in terms stated on oath
c that there was full and effective co°;isultation between
'1im and the President of India (meaning the President act-
( ing on advice of Council of Ministers) on the question of
Shri K.B.N. Singh's transfer from Patna to Madras and
that every relevant aspect of that question was discussed
-
by him fully with the President (acting as such) both before
D and after he had proposed the transfer and that ever-y
relevant circumstance, incluc\ing the personal difliculty
mentioned by Shri K.B.N. Singh was considered by him
carefully and objectively before coming to the conclusion
that be should be transferred to Madras; he has further
stated that the paramount · consideration in the impugned
E transfer was public interest and that it was not i:>Y way of
any punishment at all and that he came to the conclusion
on a dispassionate assessment of the relevant facts and
circumstances, including the language difficulty involved,
•
that Shri K.B.N. Singh was suited for being transferred to

F
Madras High Court and that it was necessary so to transfer
him. The Union of India through the counter-affidavit ..
of Shri Kankan bas denied that the impugned order was
passed without effective consultation between the President
of India (meaning acting on the advice of Council of
Ministers) and the Chief Justice of India and asserted that
relevant considerations were taken into account by the
G President (acting as above) and that the imp\lgned transfer
has been made only in public interest and is not punitive in
character.

H To the aforesaid facts or aspects that emerge
clearly from the relevant materials on the record two
more facts will have to be added as having come on
S.P. GUPTA ·v. UNION (Tulzapurkar, J.) 985

record through the statements made by the learned A
Solicitor-General in answer to pointed queries made
·by the Court.to elicit requisite information and such
a course was adopted by the Court with a view to
avoid burdening the record with additional files con-
taining the notings which were, however, produced
for Court's inspection and these facts 'are :

(9) that pursuant to the executive instructions contained
in the 1972 MEMORANDUM dealing with the proce-
dure to be adopted in connection with the appoint-
ment and transfer. of Judges of. High Courts the Union
Law Minister ·had ascertained the views of the concerned
c
- Chief Ministers, namely, the Chief Minister of Madras, the
Chief Minister of Kerala and the Chief Minister of
Bihar on 3rd, 4th and 6th January, 1981 respectively, in the
matter of the proposed transfers;
D.
(10) that ·the effective decision on the impugned transfer
was taken by . the Prime Minister on 9th January, 198·1
whereafter the ·necessary and relevant papers were forwar-
ded to the President of India and the impugned Notifica-
tion was issued on 19th January, 1981.

At the outset, I wotild like to observe that a ·needless·COR·
tr()versy was raised as to whether the impugned transfer has been a
policy transfer. (i.e. a transfer pursuant to the policy of having
Chief Justices of all the High Courts from out.side) or·a selective
• transfer and a great deal of confusion was added to it by the state- F
ment which the learned . Solicitor-General appearing on behalf of
the 'Union of'lndia was instructed to make .during the h~aring As
discussed and explained in the earlier part of this judgment it can-
·not be accepted as an invariably correct proposition that a policy
transfer would always be .non-punitive in character or that a selec-
tive transfer would necessarily be a punitive transfer. It has been G
pohted out earlier .that a policy to have one-third of the 'Puisne
Judges ofa High Court from outside, in ·the absence of any
'tnechanism or modality of procedure giving guidelines as to how
•that onetthird number will be chosen for implementing it, would
·obviously be fr mght with the vice of discrimination; similarly even H
the policy of having the Chief Justices of all the High Courts from
outside stands the risk of being abused by the :i;!xecutive in the
986 SUPREME COURT REPORTS [I 982] 2 S.C,R.,

A absence of proper guidelines being provided in the matter of regulat-
ing whic;h Chief Justice· will be posted in what particular High
Court. A policy transfer, therefore, without fixing the requisite
mechanism or modality of procedure that ensures complete insula-
tion against executive interference, could be a punitive transfer in
the sense of having been effected with some oblique motive whereas
B a selective transfer in an appropriate case for strictly objective
reasons and in public interest could be non-punitive, with the result
that each case of transfer, whether based on a policy or a selective
transfer, will have to be judged on the facts and circumstances of its
own for deciding whether it is punitive in character in the sense of
having been effected with some oblique motive or not. :In the instant
c case, having regard to the facts mentioned at Nos. 1 and 2 above,
the impugned transfer must be regarded as a selective transfer and
not based on the policy in the comtemplation of the Union Govern-
ment, notwithstanding the reference to 'Government Policy' made by
the Chief Justice of India during his telephonic talk with Shri K.B.N.
-
Singh on January 5, 1981. Since the impugned transfer order in
D the ultimate analysis is of the transferring authority (the President)
this Court wanted to know from the learned Solicitor General as to
what were the reasons which prompted the transferring authority to
pass the impugned order and therefore, a clarification was invited,
but the statement that was made by him on November 12, 1981, o(
course, under instructions from proper quarters, instead of clarify-
E 'ing the position made it more puzzling. The statement in subs-
tance was that the Chief Justice of India bad suggested certain
transfers, including the impugned transfer, in pursuance of his own
view that transfers should be made in appropriate cases strictly for
objective reasons but the Government had acceded to the transfers
F proposed by him as "(!) it was felt that not agreeing to these trans-
fers may be construed as though the Government is departing from
..
the view of having Chief Justices from outside; (2) the policy aspect
could still be pressed into service later". The statement gives the
impression that the transferring authority agreed to the transfers
because it did not want to depart fr0m its view of having Chief
G Justices from outside but at the same time it categorically states
that it was felt that the policy could be pressed into service later;
the second part of the statement clearly suggests that the policy,
which had not been till then clearly formulated, could be a'nd was
to be pressed into service later meaning thereby that the instant
H transfers were not in pursuance of the policy. Perhaps what is
S.P. GUPTA v. UNION (Tulzapurkar, J.) - 987

sought to be conveyed is that each one of the instant transfers was A
a selective transfer appropriately made strictly for objective reasons
and justified by reasons for which the Chief Justice of India had.
recommended them but at the same time they indirectly helped the
Government in achieving the same result which would have been
achieved had the transfers been made in pursuance of the policy
B
which the Government intended to have. That this was intended to
be conveyed by the statement of 'Nov.ember, 12, 1981 has been
made clear by the learned Solicitor General later on, for, in his
written note filed before this Court on November 18, 1981, he has
,x
, made the following categorical statement : "The impugned transfer,
though not in pursuance. of a policy decision, yet ls a step forward
which is consistent with the view of appointing Chief Justices from
c
outside. The impugned transfer order, is, however, valid in that it
satisfies the requirements of Art. 222". · In other words, even as a
selective transfer the Union Government found it justified for
reasons given by the Chief Justice of India and valid under Art. 222
(I) but at the same time accepting his advice and recommendation D
amounted to taking a step forward in the direction of their
intended policy. But even if it were assumed at the highest that the
two parties to the consultation (the Transferring Authority and
·the Chief Justice of India) had different reasons for agreeing
to the ultimate result this cannot vitiate the consultation con-
templated by Art. 222 (!), for, consultation, as has been pointed out E
by this Court in Sankalchand Sheth's case (supra), requires the
parties thereto to make their respective points of view known to
each other and discuss and examine the relative merits of their views
and as has been put aptly by Krishna Iyer, J. at page 496 of the
report "Consultation is different from consentaniety. They may
discuss but may disagree; they may confer but may not concur." F
But, apart from this aspect of the matter it seems sufficiently clear
that the impugned transfer has been a selective transfer in the instant
case and it will have to be decided whether it properly falls within
Art. 222 ( 1), the same having been made after observ.ing the safe-
guards of public interest and effective consultation and after
following the procedure that ensured fair play
G

The main question that arises in the case is whether the
impugned transfer, being a selective transfer, has been really made
in public interest or by way of punishment. In this behalf Counsel H
for. Shri K.B.N. Singh 4as raise\! a two-fold contention wtiich has to
988 SUPREME COURT REPORTS [1982} 2 s.c:R.

A be squarely dealt 'with. In the first place it has been urged that
merely asserting that the said tran·srer has been made in public
interest without categorising the public interest served thereby would
be of no avail; and secondly, it is clear on record that during his
visit to Patna in February, 1980 the Chief Justice of India had
collected some data and information which showed that certain
B persons were exploiting their proximity to Sbri K.B.N. Singh and
this bad created considerable misunderstanding and dissatisfaction
in the working of the High Court which seems to have necessitated
or justified Shri K.B.N. Singh's transfer and this certainly implies
some reflection on Shri K.R.N. Singh's behaviour and the inference
)<,
is inescapable that the transfer is by way of punishment and that '
c too is made without disclosing the data or particulars to him
amounting to unfair-play. It is not possible to accept either of
these two contentions for the reasons which I will presently indicate.
It is not correct to say that the contesting respondents have been
merely 'asserting baldly that the impugned transfer has been made
in publio interest without categorising the public interest served
0 thereby. Actually two categories of public interest have been
indicated by the Chief Justice of India in bis counter-affidavit; so
far as the shifting of Shri K.B.N. Singh from Patna High Court is
concerned the reason indicated is that cert.ain persons were exploiting
their proximity to Shri K.B.N. Singh which had created considerable
misunderstanding and dissatification in the working of the High
Court and surely reinedying dissatisfactory working conditions in a
High Court serves one kind of high public interest; and so far as
his posting at Madras High Court is concerned, the Chief iustice
of India felt that it would be in fitness of things that an experienced
and senior Chief Justice like Sbri K.B.N. Singh be posted as the
Chief Justice of one of the premier High Courts in the country. It
F
is difficult to countenance any suggestion that either of these consi-
derations which weighed with the Chief Justice of India does not
-
serve public interest. The first contention, therefore, must be
rejected. Coming to the punishment aspect strenuously pressed by
Counsel for Shri K.B.N. Singh I would like to observe that it will
G not be correct to draw an inference of the concerned Judge's con-
nivance or complicity in . every case where persons close to him
exploit their proximity to him while handling their matters in the
High Court and in the absence of any connivance or complicity on
his part, such exploitation of close proximity would not imply any
H reflection on the Judge concerned. It is conceivable that undesirable
iu;:tivities are indulged in without !lis ~nowJ~d~ci or consent~nay even
s.P. GUPTA v. UNION (Tulzapurkar, J.)
.
989
'

against his wishes and sometimes despite counter measures adopted A
by him, and yet such exploitation of close proximity and the
undesirable activities would spoil the atmosphere and lead to
dissatisfactory working conditions in the High Court. In such a
case if the atmosphere has to be improved and dissatisfactory
working conditions have to be remedied it may become inevitable to
transfer the concerned Judge without any blame attaching to him B
whatsoever; it is obvious thllt such a transfer will not carry any
reflection on him. Further if the data or information, which leads
to the discovery of dissatisfactory working conditions in the High
Court, were also to indicate the concerned Judge's connivance or
complicity in the exploitation then only the question of putting the
same to him will arise but not otherwise. The instant case seems to c
be of that type, for, during his discussion with Shri K.B.N. Singh the
Chief Justice of India had repeatedly told him that it was not his
practice to take into account any baseless complaints, that he did
not believe that his (Shri K.B.N. Singh's) conduct was blameworthy
in any manner and even when he mentioned this particular aspect
about certain persons exploiting their proximity to him which had
D
led to needless misunderstanding and dissatisfactory working con-
ditions in the High Court he specifically assured hili;l that he was
not to blame for it nor responsible for it. No material appears to
have been placed before Chief Justice of India by anyone even
remotely suggesting that there was any connivance or complicity on ·
the part of Shri K.B.N. Singh in the matter of exploitation of pro·
E
ximity leading to dissatisfactory working conditions in Patna High
Court and there is no reason why the statement of the Chief Justice
of India that Shri K.B.N. Singh was not responsible nor was to
blame for it should not be accepted. In the absence of any con-
nivance or complicity on his part in the matter of the exploitation, F
no reflection on Shri K.B.N. Singh is implied simply by reason of
his transfer, which must be regarded as having been made, with a
view to remedying the dissatisfactory working conditions in that
High Court and no unfair play was involved in the proceduce
followed by the Chief Justice of India. In the circumstances it is
clear that the impugned transfer has been in public interest and not G
by way of punishment. · ·

On the question whether there has been full and effective con-
sultation between the transferring authority (the President) and
the Chief Justice of lridia it is true that a mere recital in the
990 . StJl>REME COURT REPORTS (1982] 2 S,C,ll
A impugned Notification dated 19th J~nuary, 1981 about such consulta-
tion will not be of much avail especially wheh the factum of such
full and effective consultation has been put in issue but here the
contesting respondents' case on that aspect does not rest merely on
the recital to be found in the impugned Notification but they have
produced sufficient material on record to show that there was full and
B effective consultation as contemplated by Art. 222 (I} before the
impugDed order was made. Pn the question as to whether there
was consultation between the transfecring authority on the one
hand and the Chief Justice of India on the other and if so, what
transpired during such consultation. Sbri K. B. N. Singh "". I
obviously has no personal knowledge and one will have to consider
c what one or both the parties to the consultative process have to say
on the matter. It is well-known that in writ proceedings the affida-
vits counter-affidavits and rejoinder-affidavits filed by the parties con·
stitute not merely their pleadings but also partake of the
character of evidence ·in the case and it is from this angle that the
counter-affidavits filed on behalf of the contesting respondents, parti-
cularly that of the Chief Justice of India, a party to the consultative
process, will have to be examined. Keeping the recital •about the
consultation with him that is to be found in the impugned Notifica-
tion aside, t11ere is a positive statement on oath made by the Chief
Justice of India in his counter-affidavit dated September 29, 1981
that there was full and effective consultation between him and the
E . President of India on the question of Shri K.B.N. Singh's transfer
from Patna to Madras and that every relevant aspect of that ques-
tion, which would include the language difficulty involved as well as
the personal difficulty of Shri K,B.N ..Singh, was discussed by him
fully with the President both before and after he had proposed the
transfer and it is obvious that this statement of the Chief Justice of
F
India partakes of the character of the evidence seeking to prove the
factum and contents of the ·consultation. Far from there being·
anything on record which may detract from this averment, there is
positive other . material on record to corroborate the same. The
correspondence file disclosed by the Union Government clearly
G shows that lhe question of Sh.ri K.B.N. Singh's transfer was dis-
cussed and considered fully by and between the Chief Justice of
In.dia on the one band and the Union Law Minister and the Prime
Minister representing the transferring authority on the other not
merely through correspondence but also orally in meetings and over
H telephone. Presumably basing himself on this correspondence file
Shri Kankan in his counter-affidavit dated September 24, 1981 has
S.P. GUPTA v. UNION (Tulzapur~ar, J.) 991

denied that the impugned order was passed without effective consul- A
tation between the Chief Justice of India and the President of India
(of course meaning --the President as the constitutional head acting
on the advice of Council of Ministers) and has further asserted that
the relevant considerations were taken into consideration by the
President (acting as such). It was argued that the data collected by
the Chief Justice of India during his visit to Patna High Court in B
February, 1980 does not seem to have been placed before either the
Union Law Minister or the Prime Minister but such an argument
has to be rejected· because the Chief Justice of India's letter dated
December 7, 1980 to the Union Law Minister,· wherein the referenct
to the col.lection of such data by the Chief Justice of India as a
result of his discussion . with several lawyers and Judges of the con- c
cerned High Courts and to his having considered the same with
greatest objectivity has been made, itself states ' that the same was
written "in furtherance of" the discussion which both of them had
on the previous day i.e. on December 6, 1980, on many an impt>r-
tant matter concerning the High Courts. It was also argued that
the statement of the Chief Justice of India in his counter-affidavit D
that he had discussed the question of impugned transfer with the
President of India is vague inasmuch as it has not been clarified as
to with whom from the side of the transferring authority he had
these discussions, whether with the 'l.Jnion Law Minister or with
the Prime Minister or with the {'resident himself personally; this
argument has also to be rejected, for the relevant correspondence
disclosed by the Union Government clearly shows that the Chief
Justice of India had these discussions about the impugned transfer
both with the Union Law Minister, and the Prime Minister and
neither the . Chief Justice of India nor Shri Kankan has suggested
that the Chief Justice of India had discussed the question personally
with the President of India. When the correspondence indicates F
clearly the two functionaries from the side · of the transferring autho-
rity with whom the Chief Justice of India had discussions and there
being no whisper either from the Chief Justice of India or from
Shri Kankan that there were personal discussions with the President,
it is ridiculous to suggest that the statement of the Chief Justice of
India in that behalf is vague. With this material on record I did not
G
appreciate the necessity ?r desirability of any clarificatory statement
coming from the President that the issue was never discussed by the
Chief Justice of India with him personally. What is more, it is
surprising that in face of such correspondence showing discussion
H
on the subject with. the Union Law Minister the Solicitor General
992 SUPIU!ME COtJRT kE1>01ltS [1981) 1 s.c.1:
A should have been instructed to make a statement which he did on
November 11, 1981 to the effect "the Chief Justice of India
mentioned to the Law Minister about his proposal to transfer
Shri K.B.N. Singh". The twist given in the statement that the
Solicitor-General was instructed to make cannot escape this Court's
attention. Why was it necessary? Be that as it may the material on
B record clearly shows that the impugned transfer was fully discussed
by the Chief Justice of India with the Union Law Minister and the
Prime Minister. It was also faintly argued that the last discussion
between the Chief Justice of India and Shri K.B.N. Singh having )" i
taken place in the evening at about 7.30 p.m. on 8th January, 1981,
the matter could not have been discussed further between the Chief
c Justice of India and the transferring authority before the effective
and final decision was taken by the Prime Minister which is said to
have been done by her on 9th January, 1981. The argument is
merely required to be stated to be rejected, for even after the last
discflssion between the Chief Justice of India and Shri K.B.N. Singh '
was over there was ample time and opportunity for the Chief Justice·
D
of India to pilt across all that transpired between him and
Shri K.B.N. Singh together with his reaction thereon either to the
Union Law Minister or .the Prime Minister or to both orally either
in a meeting or on the telephone • before the final and effective deci-
.
sion on the impugned transfer was taken by the Prime Minister.
E From the materi~I produced on record, therefore, it is abundantly
clear that there was full and effective consultation between the trans- i
ferring authority on the one hand and the Chief Justice of India on
the other in regard to the impugned transfer as contemplated by
Art. ·222(1) before the effective decision thereon was taken, and if
the consultation has been full and effective as contemplated by
F Art. 222( I),. as is shown by the material produced on record, the
contention that the normal procedure ought not to have been
reversed and th'e proposal should· have emanated from the President 1
and not from the Chief Justice of India as is the case here loses its
significance. Moreover, there is no hard and fast rule as to from
whom a proposal for transfer should emanate.
G
On the last aspect as to whether the procedure followed by
the Chief Justice of India ensured fair- play in relation
Shri K.B.N. Singh or not the material on· record clearly shows that
the Chief Justice of India had discussed all the relevant aspects
H concering the impugned. transfer· with Shri K.B.N. Singh including "·
his personal difficulty' pertaining to his mother's advanced age and'

·.
S.P. GUPTA v. UNION (Tulzapurkar, J.) 993

serious illness. That the Chief Justice of India took a different view A
about .it does not mean that any unfair-play was involved. After
all in his view p.ublic interest outweighed the considerations of
personal difficulty as well as the language difficulty which were put
before him. As discussed earlier there being no charge nor any
imputation against Shri K.B.N. Singh there was no question of
giving him an opportunity to meet any. It is thus clear that the 8
procedure that was followed ensured complete fair-play qua
Shri K.B.N. Singh.

It was next contended by Counsel for Shri K.B.N. Singh that
the Executive Instructions in Para 12 of the Memorandum of 1972,
containing the procedure to be adopted in connection with transfers
c
· of High Court Judges issued by the Central Government, in the
matter of consultation or ascertainment of the views of the Chief
Ministers of the States involved in a transfer had not been followed
·in this case. The contention was, however, not pressed when the
learned Solicitor-General after consulting the relevant files, made a D
statement at the Bar that in the instant case the Union Law Minister
had consulted and/or ascertained the views of the Chief Ministers of
Tamil Nadu, Kerala ·and Bihar on 3rd, 4th and 6th January, 1981
respectively in. the matter of the proposed fransfers. Further, in my
view the question whether the Tamil Nadu Chief Minister's letter
pointing out language difficulties was actually placed before the Chief E
Justice of India or not would not be material if the Chief Justice of
India was apprised o~ the grounds of o_bjection based on language
difficulty and he had considered them and the material shows that
the Chief Justice of India had taken into consideration the objections
based on language difficulty.
F
Counsel for Shri K.B.N. Singh in the last resort faintly· urged
that simultaneously with the passing of the impugned order the pro-
visions of Art. 222(2) ought to have been complied with and since
no order fixing compensatory allowance to Shri K.B.N. Singh was
passed upon his transfer the impugned transfer order would be in- G
valid. It is impossible to accept such a contention, for, Art. 222(2)
does not provide that the order fixing compensatory allowance to
the transferee Judge has to be issued simultaneously along with the
transfer order; all that it provides is that when a Judge has been or
is transferred after complying with the requirements of sub-Art.(1) ll
he shall, during the period he serves as a Judge of the other High
Court, be entitled to re!ieive, in additi<:>ll to his sala1?', such compe~-
. 994 SUPREME COURT REPORTS (1982) 2 s.c.R.

A satory allowance as may be determined by Parliament by law and,
until so determined, such compensatory allowance as the President
may by order fix. It is obvious that such an order fixing the com·
pensatory allowance could follow and would have followed in the
instant case within reasonable time but there the occasion to make
such order got postponed because of the stay ·of transfer that was
8 ordered by this Court.

In the result it is clear that the impugned transfer must be held
to be a valid transfer under 'Art. 222( I) of the Constitution.

Before parting with these cases I would like to place on record
c my sense of appreciation and gratitude to all the learned Counsel
who have rendered great assistance to the Court by' arguing their·
respective points with exceptional ability and skill. ·I have always
held the view that the quality of a judgment rendered by a Court
varies in direct proportion to the quality of assistance received by it
from counsel appearing before it and whatever little I have been
able to do in these cases it is mainly due to the excellent assistance
received from counsel and I thank them. At the same time I cannot
help keeping on record a feeling of uneasiness which I entertained
during the hearing of ·Shri K.B.N. Singh's case because of the
manner in which that case was conducted by the contesting respon-
dents through the learned Solicitor General, for which I hasten to
E add, that the Solicitor General is not at all responsible, though on
occasions he was required to do sorpe tight-rope walking, obviously
1
under instructions. On more occasions than one I was left in. doubt
whether they were really interested in having the transfer order
upheld. The statement which the Solicitor General was instructed
to make on November 12, 1981 in which a twist was given sugges-
F ting, contrary to the documentary record, that the Chief Justice of
India· had, instead of "discussing" the proposal of transfer,
"mentioned" the same to the Law. Minister, ca!!not be otherwise
explained. I have !ii ready mentioned that I have failed to appre~
ciate the desirability or necessity of the statement made on behalf
of the President of India disowning the "personal discussion" with
G
the Chief Justice of India on the issue of transfer, especially when
the latter had not raised a whisper about such personal discussion.
After all is said and done, it must be observed that while acting
administratively the attitude and behaviour of the Chief Justice of
India was befitting the paterfamilias of the Judiciary. The way he
H dealt with the cases of Shri S.N. Kumar and Shri K.B.N. Singh has
S.P. GUPTA v. UNION (Tu!zapurkar, J.) 995

bee, objective and judicious-by refusing to rely on unconfirmed A
reports, rumours or gossip in the case of the former. and by follow-
ing a procedure that ensured fair play in the case of the latter.

The other aspect, I would •like to refer to is the manner in
which a section of the Press bas behaved in this case. I am
B
constrained to observe that a section of the Press while reporting
the proceedings of this Court in this case seems to have, without
fully realising the scope and purpose of the disclosure ordered by
the Court, exceeded its limits of fair reporting and fair comment by
discussing the merits and demerits of the grounds on which recom-
mendations were made concerning the Judges or the truth or falsity
of the disclosed material; assuming that this Court was intending
c
to adjudicate on the merits or demerits ·of the gr11unds of the
recommendations made or on.tnith or falsity of the materials even
then how could the Press, before this Court has finally adjudicated
upon the issues involved, pronounce its verdict-which it almost
did-on the high constitutional functionaries involved by holding a D
trial by Press ? The disclosure, which became necessary in the
highest public interest of administration of justice-for seeing that
injustice was not perpetrated and justice was meted .out to high
judicial functionaries under the Constitution, was not intended for
being useJ for such purpose. Such behaviour of a section of the
Press has been most distressing and bas unnecessarily affected the E
image of Judiciary and · the high constitutional functionaries
involved.

In conclusion I would pass the following order :

(I) Writ Petitions in Transferred Cases Nos. 19-22 of 1981 F
are allowed.

- (2) The impugned Circular letter dated March 18, 1981 is
quashed and struck down as impinging .on judicial
independence and as being violative of Articles 22Z(l)
and 14. G
(3) In future extensions to sitting Additional Judges should
normally be for two years and no extension to •any
Additional Judge for less than a year be ever
·. granted, H
996 SUPREME COURT REPORTS ( J 982] 2 S.C.R.

A (4) The decision to drop Shri S.N. Kumar is quashed and
his cas,• is sent back to the President for reconsideration
ano passing appropriate orders after the requisitw con-
sultation is undertaken afresh, ·with due observance of
adequate fair play. ·

B (5) 'Since Sbri K.B.N. Singh's transfer is held to be valid,
Writ Petition No. 274 of 1981 and those in transferred
Cases Nos. 2 6 and 24 of 1981 are dismissed.

(6) Each party will bear its ·own costs in these cases.

-
s:P. GUPTA V.>UNIO:N (Desai, J.) 997
. A
DESAI, J. March 18, 1981, till law courts and lawyers in their
present form and structure survive, would be remembered as a day
r
that raised ~ storm of controversy leading to a spate of writ peti-tions
in different High Courts in the country. The Law Minister of the
Government of India selected that fateful day for iswing a circular,
forwarded it .to the Chief Ministers of all States and the
B
.• ;-<, Governor of Punjab requesting them to obtain the consent of
additional judges working in the High Court in their respective
States with preference limited to three stations, for being appointed
as permanent judges in High Court other than the High Court in
which they are, at present, appointed and functioning. A similar
c
consent was also to be obtained from those· who may be recommen-
ded in future for appointment as judges of the High Court.

It appears that the first salvo was fired by Shri S.P. Gupta, D
Advocate practising in the Allahabad !Jigh Court who filed
a writ petition in the . Allahabad High Court impleading
President of India, Union of India, Chief Justice of. India, Chief
Justice of Allahabad High Court and Governor of State as respon-
dents praying 'for a writ, direction or order in the nature of manda- E
mus directing the President to appoint judges of the High Court in
accordance ~ith the constitutional scheme etc. There was also a
pr~yer for a ,ijirection to appoint three named judges as permanent
judges but t6is prayer was not pressed. This petition was filed, it
appears, on the very day on which the circular was issued. After F
it was admitted, the petition was twice amended with the leave of
the Court, the first order being dated· May I, 1981 and the l>econd
being July 20, 193·1. Respondent I, President of India, Respon-
dent 3, Chief Justice of· India and Respondent 5, Governor of
Uttar Pradesh .were subsequently dropped and their names from the
G·
array of respondents were deleted. This petition stood. transferred
to this Court by the order dated May I, 19$1, 11;nd i~ w11~ re~istered
as Transferred Cas~ NC?, I? of 1981.
·.»·
\
H
998 SUPREME C::OURT REPORTS [1982] 2 S.C.R.

A •
After the issue of the impugned circular dated March 18,
1981, some events occurred which may be briefly noticed. ·The initial
term of appointment of three additional judges of Delhi High Court,
Mr. O.N. Vohra, Mr. S.N. Kumar and Mr. S.B. Wad expired on
March 6, 1981, and each of them was appointed as an additional
B judge for a period of three months. This short-term extension presu-
mably provoked Shri J.L. Kalra and some others, practising advocates,
to file Writ Petition No. 636 of 1981 on March 26, 1981, in the
High Court of Delhi impleading Union of India as the sole respon-
dent. A number of prayers have been made in this petition, one
C which deserves mention is that a direction be issued that Shri N.N.
Goswami, Shri Sultan Singh and Shri O.N. Vohra, three additional
judges of the High Court of Delhi be appointed as permanent judges
and a further direction that the term of Shri S.N. Kumar and
Shri S.B. Wad, additional judges functioning in the same ·Court be
D extended for a period of two years. By an order made by this
Court on May 1, 1981, ~his writ petition stood transferred to this
Court and is registered as Transferred Case No. 21 of 1981.
i

E As a sequel io the issuance of the impugned circular
dated March 18, 198 J , a special general meeting of the Advocates
Association of western India was held at Bombay on April 3, where
a resolution was adopted questioning the propriety of obtainin:i the
consent of additional judges to be appoined as permanent judges in
F other High Courts in advance and further resolved to lodge a strong
protest with the Union of India. A. similar resolution appears to
be adopted by the Bombay Bar Association at its Extraordinary
-
General Meeting held on April 7, 1981. Ultimately Shri Iqbal
M. Chagla and three other advocates filed a Writ Petition No. 527/81
G in the High Court of Bombay questioning inter alia that the circular
issued by the Law Minister on March 18, 1981 ·be declared ultra
vires· and voi"d and as a consequence, consent, if any given, and
consequent action, if any, taken, be declared null and void. An
H injunction was sought restraining the respondents from Implementing
the impugned c;irc;ular and an interim relief in terms of this prayer
S.P. GUPTA v. UNION (Desai, J.) 999

was also sought. The respondents impleaded were the Law Minister, A
Union of India and ten additional judges of Bombay High Court.
This Petition was admitted and rule nisi wa' issued and ad interim
injunction was granted. This led to filing of an appeal by Union of
India before a Division Bench of the Bombay High Court. Sub-
sequently by an .order of this Court, this case stood transferred to
this Court under Article I 39A and is registered as Transferred B
Case No. 22 of 1981.

Shri V.M. Tarkunde, former Judge of Bombay High Court and
Senior Advocate practising in the Supreme Court, General Secretary
of the Citizens for Democracy and President of the People's Union
for Civil Liberties filed writ Petition No. 882 of I 9s.I in the High
c
Court of Delhi on April 22, 1981, im.pleading initially Union of India

- as the sole respondent. It appears that subsequently the Law
·Minister and one Mr. P.K. Kathpalia, Additional Secretary, Depart-
ment of Justice were impleaded as respondents 2 and 3 respectively.
The petitioner also filed CMP. No. 13425/81 requesting this Court D
to direct that Mr. Justice O.N. Vohra and Mr. Justice S.N. Kumar
be impleaded as respondents. CMP. was allowed by the order dated
July 7, 1981. Shri.O.N. Vohra and Shri S.N. Kumar, Additional
Judges of Delhi High Court who were given extension for
three months commencing from March 6, 1981, to June 5, 1981,
were impleaded as· respondents 4 and 5'. Of the two additional E
judges so impleaded respondent 5 Shri S.N. Kumar has participated
in the proceedings and has appeared through his counsel Shri R.K.
Garg. The principal question raised' was that independence of
judiciary being the basic and fundamental feature of our constitution,
any action of the executive which would be subversive of the inde-
pendence of judiciary, must be declared unconstitutional. It was F
stated that the circular of the Law Minister of March 18, 1981,
directing the Chief Ministers of States to obtain consent of an addi-
tional judge for being posted as permanent judge in other High
~Court giving him an option to disclose his preference limited· to three
.-\. stations and a similar consent to be obtained in 'advance from a
person to be recommended for appointment as a judge of the G
High Court is subversive of the independence of judiciary. It was
submitted that the extension of the term of an · additional judge or
bis appointment as a permans:nt judge cannot be left to the un-
fettered discretion of 'the executive because it would make a serious
inroad on the independence of )udiciar~. ;\n<;>ther important ~on" R
1000 SUPREME COURT REPORTS , (1982] 2 S.C.R.

A tention raised in the petition was whether short-term extension of
additional judges is permissible under Article 224 and whether it is
open to the executive to appoint additional judges leaving vacancies
in the permanent strength of the High Court judges unfilled, even
though the arrears are mounting. A specific contention was raised
with specific reference to the position of the Delhi High Court
B alleging that it would be contrary to the constitutional intendment
underlying Article 216 to maintain half the strimgth of the Delhi
High Court as additional judges. This petition under an order
made by this Court stood transferred to . this Court under
Article 139A and is registered as Transferred Case No. 20of1981.

c
In all these petitions, Mr. K.C. Kankan, Deputy Secretary
in the Department of Justice, Ministry of Law, Justice and Company
Affairs has filed bis counter-affidavit with regard to the circular of.
the Law Minister and other contentions. It was stated that the
prese,nt Government is vitally concerned in maintaining the indepen-
D dence of judiciary and in the administration of justice according to
the rule of law. With regard to the circular dated March 18, 1981,
issued by the Law Minister, it was submitted that the circular is not
meant to be covert method to transfer judges from one High Court
to other High Court circumventing the requirements of Article 222(1)
or ratio of the decision in Union of India v. S. H. Sheth.(1) It. was
E in terms stated that the failure of the judge to give consent would
not be a relevant factor while considering him for appointment as a
permanent judge or for a second term as an additional judge, as the
case may be. It was stated that the appointment of additional
judges for two years or for shorter period bas been done after
following the constitutional provision in this regard and keeping the
F public interest in view. With regard to tqe second appointment
of an additional judge after the expiry of the first ·term, it was stated
that it is a fresh appointment and fresh warrant has to be issued and
judge bas to take a fresh oath as prescribed and, therefore, the full
round of consultation under Article 217 will have to be gone·
through. Reference was made to the guidelines prescribed for the
G disposal of cases by a High Court Judge and these guidelines provide
a yardstick for calculating the nun 1ber of additional judges. It is
also stated that the strength of the Delhi High Court was raised
in June, 1979, and a proposal of the Chief J1,1~tice of Delhi High

II ~1) p978] 1 S.c;R. 423 1
S.P. GUPTA v. UNION (Desai, 1.) 1001

Court for sanction of two extra judges was approved. Short term A
appointments were sought to be justified on the plea that there were
valid reasons for such short term appointments and privilege was
claimed against disclosure of papers relating to appointment of
additional Judges. It was specifically denied that the circular was
pieant to be .utilised for transfer of judges circumventing the require-
ments of Article 222. It was stated that complaints have been 8
received about the prejudicial attitude of certain judges including
additional judges, bred by kinship and other local links and affilia-
tions. Political links have also been mentioned in certain cases and
various State authorities have expressed their reservations about
continuance of some additional judges. These matters were generally
G
- mentioned to- the constitutional authorities. There is an averment
in the affidavit that it is not the intention of the Government to
appoint every additional judge in another State. This is specifically
referred to because a serious controversy developed that the Govern-
ment wants to arm itself with power to pick aqd choose judges for
transfer outside the State and that this would provide an opportunity D
for extending political patronage so that judges, to avoid harassment
of being appointed to a High Court outside their . State may lean
towards the Government for their survival. Explaining the raison
d'etre it was stated that the purpose behind the circular dated
March 18, 1981, was to take steps in the direction of having outsider
in the High Court to help in the process of national integration and E
also to improve the functioning of various High Courts by having
in each High Court the presence of a number of judges who would
not be swayed by local considerations or affected by the issues which
arouse passions and emotions. Support was drawn for this state-
ment from the 14th Report of the Law Commission and from the
latest 80th Report of the Law Commission presided over by F'
Mr. H.R. Khanna and from the study group set up by the Adminis-
trative Reforms Commission. It was in terms admitted that the
additional judge is not a judge on probation. It was stated that
short term appointments are made pending the final decision, a
thing which would appear objectionable in view of the mandate of G
Article 224. Power was claimed by the executive to appoint any
additional judge for any shorter period as may be considered justi-
fied. If conceded, this can lead to a logical absurdity, namely, from
day to day, the situation very difficult even to conceive in any form
of political society one may think of. However, mitigating circum-
stance was pleaded that additional judges for shorter periods have n·
1002 SUPREME COURT REPORTS [ 1982) 2 s.c.lt

A
been appointed in special circumstances and only when there are
exceptional factors necessitating appointments for shorter periods.
In respect of Shri 0. N. Vohra and Shri S. N. Kumar, it was stated
that the short-term appointment was made to enable the Govern~
ment to take a final view having regard to the complaints that have
been received against some of them after consultation with the
B constitutional authorities. The statement in the petition that the-
Chief Justice of Delhi High Court and Chief Justice of India both
had recommended the appointment of these two judges for a further
period of two years was denied. It appears that the Chief Justice of
Delhi High Court had not recommended Shri S. N. Kumar for
c appointment as additional judge after expiry of his initial term of
two years on March 6, 1981. The incorrect averment in the petition
has found its place in an order made by' the vacation Judge on
June 6, 198i. At the appropriate place, it will be pointed ·out
that Chief Justice of Delhi High Court had; for .his reasons, declined
to recommend appointment of Shri S. N. Kumar as an additional
D judge on the expiry of his first term on March 6, 1981.

As almost identical contentions have been raised by
Mr. Kankan in the various affidavits filed by him in every case,
it is not necessary to recapitulate them ·here except recalling one
E averment made in his counter affidavit filed on July 6, 1981, in reply
to the petition filed by Sbri Iqbal M. Chagla and others in Bombay
High Court because it was the subject matter of debate. In para 9
(vii) it is stated that the data collected pursuant to the circular issued
by the Law Minister would be made available to the
Chief Justice of India, Chief Justice of the High Court concerned
F and the Governor of the State. The submission was that the cir-
cular was issued for data collection is a subterfuge resorted to, to
·provide an innocent cloak to a dagger aimed at independence of
judiciary.

It may be briefly mentioned here that Writ J>etition No. 274/81
G
filed in this Court and Transferred Cases No. 2, 6 and 24/81 were
listed to be beard along with the present batch of cases with a view
to avoiding the repetition of the arguments on points· common to
. both sets of cases. In the first group of cases the question of con-
H struction of Articles 217, 224 and other connected articles pro-
minently figured in the context of circular of the Law Minister
dated March 18, 1981, seeking consent of additional judges for
S.P. GUPTA v. UNION (Desai, },) 1003

being appointed as permanent judges in ot,her High Courts and the
t short term extensions given to Shri O.N. Vohra, Shri S.N. Kumar
and Shri S.B. Wad, additional judges of Delhi High Court and the
final non-appointment of Shri O.N. Vohra and Shri S.N. Kumar.
The submission was that the circular of the Law Minister manifests
a covert attempt to transfer additionaljudges from one ,High Court
to other High Court withoiit consulting the Chief Justice of India
B
as required by Article 222 (1) and thereby circumventing the majo-
rity decision in Mr. Sheth's case. The Central theme was the
scope, ambit and content of consultation which the President
must have with the three constitutional functionaries set out in
Article 217 (1). In the second group of cases, the question arose
in the context of transfer of Shri K.B.N. Singh, Chief Justice of
c
- Patna High Court as Chief Justice of Madras High Court con-
sequent upon the transfer of Shri M.M. Ismail, Chief Justice of
Madras High Court as Cl\ief , Justice of Kerala High Court by
Presidential Notification dated January 19, 1981, in exercise of the
power conferred upon him by Article 222. The controversy centred D
down the scope, ambit and content of consultation that the President
must have with the Chief Justice of India before exercising the
power to transfer under Article 222. Thus, the scope, ambit and
content of Consultation under Art. 217 as also one under Article 222
which, as Mr. Seervai stated, was more or less the same though the
different facets on which consultation must be focussed may differ in E
the case of transfer and in the case of appointment, figured pro-
minently in both the groups of cases. The parameters of scope,
ambit and content of consultation both under Article 217 (1), 222
and 224, were drawn on a wide canvass to be tested on the touch-
stone of independence of judiciary being the fighting faith and F
fundamental and basic feature of the Constitution. It was stated
that if the consultation itself is to provide a reliable safeguard against
arbitrary and naked exercise of power against judiciary; the proce-
dure of consultation must be so extensive as to cover all aspects of
the matter and it must be made so firm and rigid that any contra- G
vention or transgression of it would be treated as mala fide 'or sub-
versive of independence of' judiciary and the decision can be
corrected by judicial review. Therefore, at the outset it is necessary
to be properly informed as to the concept of indepedence of judiciary
as set out in the.Constitution. H
1004 SUPREME. COURT REPORTS [1982) 2 S.C.R.

A The entire gamut of arguments. revolved principally round the
construction of Articles 217 and 224 in one batch of petitions and
Articles 222 in another batch but the canvass was Sf)read wide
covering various other Articles of the Constitution, analogous pro-
visions in· previous Government of India Acts, similar provisions in
other democratic constitutions and reports of Law Commission.
B Rival construction canvassed centred upon the pivotal assumption
that independence of judiciary is a basic and fundamental feature of
the Constitution which has its genesis in the power of judicial" review
which enables the. court to declare executive and legislative actions
ultra vires the Constitution. In this connection we are not starting on
a clean slate as the contention in this very form and for an avowed
c object was widely canvassed in S.H. Sheth v. Union of Jndia,(1)
and in Union of India v. S.H. Sheth (supra) some additional dimen·
sions were added to this basic concept of independence of judiciary
while both the parties vied with each other as in the pa$! (See state~
ment of Shri S.V. Gupte, then Attorney General in Mr. Sheth's case),
D on proclaiming their commitment to independence of judiciary
though in its scope and content and approach there was a marked
divergence. ·

. Petitioners in both the batches of petitions passionately
asserted that independence of judiciary is the basic postulate of our
E Constitution and any interpretation of the articles in the fasciculus
of articles relating to judiciary must keep it inviolate. The con-
struction, asserted the petitioners; which would make any inroad on
tlie absolute independence of judiciary must be rejected because the
entire edifice of Parliamentary democracy as envisioned in our
Constitution rests on. the firm structural foundation of the indepen·
F dence of judiciary. It was asserted that Parliamentary democracy
of Westminster model with a written Constitution and with division
of functions amongst the three branches of the Government; the
executive, the legislature and the judiciary postulate that where a
transgression of power takes place there must be a body of inde·
pendent persons with power to correct deviations, so that a11 ~con
G stitutional functionaries act within the· framework of the power and
perform duties as envisaged by the Constitution. This role, it wa11
averred, rightly belongs and has been unreservedly assigned to the
judiciary 'as a sentinel on qui vive' and in order that this branch

H (1) 17 GLR 1017.
s. P. GUPTA v. UNION (Desai, J.) 1005

which has a duty to check excess or transgression of or arbitrary A
exercise of power, functioned 'without fear or favour and solely
committed 'to the upholding of the Constitution' must be free
wholly and unreservedly from the other more powerful organs
of the Indian polity, namely, the executive and the legislature.
B
Developing this submission reference was made to various
provisions of the Constitution and the interpretation put on some
of those provisions by the decisions of this Court. It was urged that
independence of judiciary bas been put beyond the pale of contro-
versy in the Court but this Court must spell out its contours and
limits, the fringes and the horizon, so that wherever an intrusion c
takes place or an erosion is threatened it can be checkmated by
judicial review.

A reference to some of the important provisions of the Consti-
tution would bear repetition though they have been enumerated at
length in Mr. Sheth's case. .Taking cue from the Act of Settlement 0
of the United Kingdom and section 220(2) of the Government of
India Act, 1935, whereby tenure of judges was altered from King's
pleasure to one during .good behaviour in U.K. and. India respecti-
vely, Article 217(1) and Art. 124(2) ensure tenure during good
behaviour up to the age of 62 and 65 years respectively to the High
Court and Supreme Court Judges. Article 202(3)(d) and Art. 112(3) E'
(d)(i) provide that expenditure in respect . of the salaries and
allowances of High Court Judges and the salaries and allowances
and pensions ·payable to Judges of the Supreme Court of India is
charged on the consolidated fund of each State and of India
respectively. Article 203(1) and Art. 113(1) ensure that so much of
F
the estimates as relate to the expenditure charged upon the Consoli-
dated Fund of a State and Consolidated Fund of India. shall not be
submitted to the · vote of the legislative assembly and the Parlia-
ment respectively. High Court Judges and the Judges of .the
Supreme Court are assured salaries guaranteed by the Constitution
as set out in Schedule II by virtue of Art. 221 (I) and Art. 125(1) G
and a further assuranc!l is held out by the provi-so to Art. 220 and
Art. ·125 that the same shall not be varied to the disadvantage
of a judge after his appointment. Article 211 in respect of
Judges of High Court and Supreme Court, and Art. 121 in
respect of Judges of the Supreme Court as also of a High
Court immunise them i11 discharge of their duties from discussion
in the legislature of a State and Parliament respectively save and
/
1006 su:PRllMll COURT RllPoiltS 11982} 2 s.C.tl.
A
except where an address to the President is presented praying for
removal of the Judge as provided in Art. 124(4) and (5). Article 215 t
and Art. 129 make the High Court and -Supreme Court respectively
a Court of Record with power of such Court inciuding the power to
punish for cvntempt of itself. The power to appoint officers and
servants of the High Court and· officers 'and servants of the Supreme
B
Court is conferred on the Chief Justice of the State under Art. 229
and upon the Chief Justice oflndia under Article 146 and conditions
of service of the officers and servants of High Court as well as
officers and servants of the Supreme Court shall be such as may be
prescribed by rules made by the Chief Justice of the High Court or
c by the Chief Justice of India, as the case may be, but in each case
this power is to be ·exercised subject to the provisions of any law
made by the legislature of any State or the Parliament, as the case
may be, and in case of rules relating to salaries, allowances, leave
or pension would require in case of High Court the approval of the
Governor of the State and in case of Supreme Court approval of
D the President. ·

By Article 233 . and 235 members of the subordinate judiciary
are brought under the control of the High Court and except for
initial entry and final exit they are under the direct control of the
High Court.
E
In cases dealing with subordinate judiciary by a catena of
decisions commencing from State of West Bengal v. N.N. Bagchi(1),
and ending with Shamsher Singh v. State of Punjab(2), it has been
authoritatively laid down that in matters concerning the c0nduct and
F discipline of District Judges, their further promotion and confirma-
tions, disputes regarding their seniority, their transfers, the placing
of their services at the disposal of the Government for ex cadre
posts, considering their fitness for being retained in service and
recommending their discharge from service, exercise of complete f
· disciplinary jurisdiction over them including initiation of disciplinary
G inquiries and their premature retirement, the members of the
subordinate judiciary are under the direct control of the High Court.
In Shamsher Singh'.< case, the learned Chief Justice observed :

H (1) [1966] 1 S.C.R. 771. .
(2) [1975] I S.C.R 814..
u•; GtJPtA v. UNION (Desai, J.) 1001

"The members of the subordinate judiciary are not only A
under the control of the High Court but are also under the
care and custody of the High Court".

It has been said that subordinate judiciary have no two masters.

After reviewing all these provisions and the decisions in
B
Mr. Sheth's case, Chandrachud, J. (as he then was) in his leading
judgment observed that: "it is beyond question that independence of
1
' the judiciary is one of the foremost concerns of our Constitution,
Constituent Assembly showed great solicitude for the attainment of
that ideal devoting more hours of debate to that subject than to any
c
- other aspect of the judicial provisions". "If the beacon of the
judiciary were to remain bright, the courts must be above reproach,
free from coercion and from political influence' (see The Indian
· Constitution--Cornerstone of a Nation by Granville Austin,
pp. 164-65). Sardar Vallabhbhai ·Patel tersely observed that the
./ judiciary should be above suspicion and should be above party
0
influence. Dr. A:rnbedkar concluded the debate saying that there
would be ng difference gf opinion that the judiciary had to be
independent of the executive".

In another judgment forming part of the majority vie.w,
Krishna Iyer, J. speaking for himself and Justice S. Murtaza E
Fazal Ali at p. 485, after referring to various provisions of the
Constitution, observed that "these muniments highlight the concern
of the founding fathers for judicial insulation, a sort of Monroe
doctrine". Tuning in his own words in Shamsher Singh case that
fearless justice is a prominent creed of our Constitution and the
independence of. judiciary is the fighting faith of our founding
F
document, he reasserted that the creed of judicial independence is
our constitutional 'religion'.

Justice Bhagwatl in his dissenting judgment at p. 473 observed
that 'independence of judiciary was held to be a part of our G
ancient tradition which has produced great judges in the past and
judicial independence is prized as, a basic .value and so natural and
inevitable that it has come to be regarded and so ingrained in the
life and thought of the people that .it is now almost taken for granted
and it would be regarded an act of insanity for any one to think
H
otherwise.
1008 StJPlltlME COURT tlEPOll.TS (i982) 2 s.c.tl.
A Having showered encomiums on the independence of judiciary,
Justice Krishna Iyer was not oblivious to the fact that judiciary a
non-elective institution, has an elitist approach with little or 'no
accountability. Having bew immunised from any discussion in the
Parliament or the Legislature of a State and by the sword of
Contempt of Court Act from public criticism, it remains within it!i'
B insulated vaults and more often has been found to be utterly
unaware of the mores of the day. Conceding that indep~ndence of
judiciary must be ensured and its immunity from executive and
legislative overt and covert pressures or intrusions,' must be guaran-
teed in larger public interest, the role of judge power and the
c immunity of the judiciary must be studied, "with aware allegiance
to the scheme and sweep of the Constitution with insightful homage
to the soul of the Paramount Parchment and with sociological
appreciation that our economic and political order of which the legal
order is but a juridical reflection is sharply pluralist. The apparatu-
ses of activist justice, working under such societal strains and stresses 'r
D and charged with engineering progressive change through the law,
may .have to enjoy more than traditional functfonal freedom. For,
in a dynamic democracy with goals of transformation set up by the
Constitution, the judge, committed to uphold the founding faiths
and fighting creeds of the nation so set forth, has to act heedless
of executive hubris, socio-economic pressures and diahard
E obscurantism".

Mr. Sorabji reinforced the conclusion reached in Mr. Sheth
case that independence of jud;ciary is the fighting faith of the
founding fathers when he drew our attention to 'the Government of
F Canada' by Dawson, 2nd edn. Revised 1954, wherein it is said that
the unique functions which the judiciary perform in the Govern-
ment make imperative that they should be given a position quite
different from that of the great majority of Government officials. It
was, however, conceded by the same author that the judges cannot
remain completely unaffected by their envirnoment and cannot and
G. should not be indifferent to the effects of their decisions on the social
and political needs of the nation. There will alway!! be some
interplay among the habits of mind of the judge, the society in
which he lives, 11nd the decisions which be renders. This view
reflects wl at was urged as value pa1:king in the matter of appoint-
H ment of judges to which i reference will be presently
S.P. GUPTA II. UNION (D~sai, i.) 1009

made. The au~hor concludes that the 'fundamental decisions in a
democracy arise from a constant .interchange of desires and com·
mands, tentative advances and retreats, experiments and consolida-
tions, the adoption· of cine policy, the rejection of another, the·
haphazard and almost unconscious acceptance of a third, com-
promises without number-all forming a part of the extremely
complex process of determining and applying public policy'. Aware- B
ness of these constitutional changing values must inform the judicial
personnel and in the superior judiciary the value system of the judge
unconsciously but invariably. reflects in his judgments. Thus the
coincident that what is disclosed by the people to the Parliament
which in turn went to the Cabinet and · to the administration and
the resulting action, has to be remembered so that 'the stream of c
command-albeit somewhat uncertain and wandering, and some-
times showing little perceptible motion-and also a means whereby
honesty and efficiency and devotion to public duty can be appraised
and suitably recognised'. No doubt, people do see in judicial
independence a greater promise of justice than could be obtained
through the application of ordinary political sanctions but it has a D
continuous interplay of forces and interaction of various organs
ultimately converging on realisation of constitutional goals.

Attention was also drawn to 'Judges on Trial' by Shetreat, E
1976 Edn., and after reading out the struggle for judicial indepen-
dence, p<'inted reference was made to the fact that since Coke's
disgrace 'the Crown could no longer expect to obtain the moral
support which it had hitherto received from decisions pronounced
by the Bench of the judges who were comparatively at least, with
the men who held office subsequently to Coke's disgrace, indepen- F
dent of the favours and the anger of the Crown'.

Nor independence of judiciary is some a priori concept, a ·fact
when judges attempt on their own insulation is occasionally clouded G
or overlooked. Independence of judiciary under the Constitution
has to be interpreted within the framework and the parameters of
the Constitution. There are various provisions in the Constitu-
tion which indicate that the Constitution has not provided some-
thing like a 'hands off attitude' to the judiciary. The power of H
appointment of High Court Judges and the Judges of the Supreme
~ourt vests in the Presidept ~nd the President bein¥ a contitution~
HHO stJPR.ilMll coutti 11.litioitts Ii ~82i 2 s.c.k.
A head, he ls constitutionally hound to act according to the advice of
the Council of Ministers. One can profitably refer to a number of
Articles in the Constitution conferring power on other constitutional -1- •
institutions such as the executive which when it acts within . the
limits of power will have a direct'impact on the ·functioning of the
judiciary. To briefly refer to some of these provisions, Art. 32 (3)
B confers power on the Parliament to frame· a law, inter alia,
empowering any other Court to exercise within local limits of its
jurisdiction any of the powers exercisable by the. Supreme Court
under Article 32. Article 133 (3) confers power on the ·Parliament
to enact a law enlarging the jurisdiction of the Supreme . Court.
•·
c Article 135 preserves the existing jurisdiction of the Supreme Court
but makes it subject to the law made by Parliament which might
otherwise provide. . Article 138 enables Parliament to enlarge the
jurisdiction of the Supreme Court in respect of certain matters.
Article 139 contemplates confe'rment on Supreme Court by a Jaw of
Parliament all powers to. issue writs. for any purpose other than
those mentioned in clause (2) of Art. 32. Article 140 provides for
D
parliamentary legislation even in regard to supplemental powers of
the Supreme Court. Article ·J 30 enables the Chief Justice of India
with the approval of the President to provide f~r sitting of Supreme
Court at places other than Delhi. Similarly, Articles 225, 230, 231
and 237 confer power on Parliament to make law directly impinging
E upon the jurisdiction of the High Courts. Article 126 vests power in
the President to appoint acting Chief Justice and it does not postulate
consultation with any functionary in the judiciary. The position
under Arts. 127 (1) and 128 point in the si;ime direction, subject, of
course, to the construction canvassed for on behalf of the petitioners
which would be examined a little while after. This conspectus of
F articles, not meant to be exhaustive, do indicate that Parliament
has power to regulate Court's jurisdiction and as Hart and Webster
in the 'Federal Judicial System' at p. 317 said that "the bald truth
is, isn't it that power to regulate jurisdiction is actually a power to
regulate rights to judicial process whatever they are and substantive.
rights generally."
G
Undoubtedly judiciary, the third branch of the Government
cannot act in isolation. They a"le ensured total freedom, of course,
after entering the office, from any overt or covert pressure or inter-
ference in the process of adjudicating causes brought before them
and to this end they are ensured tenure, l?ay, I,Jension, J?rivileges and
...

s.P. GUPTA V. UNION (Desai, J.) 1011

certain basic conditions of service. The judiciary like any other A
constitutional instrumentality has, however, to .act towards attain-
ment of constitutional .goals. This in one sense is conceded by
Mr. Seervai who led on 'behalf of the petitioners when in his
Sir Chimanlal Seta:Jvad Lectures styled : 'The position of the
Judiciary under the Constitution of India', he tersely observed as
under: B

"The Court is ·essentially a check of the past upon the
present. But it is the present that represents the will ·of
... the people and it is that will that must ultimately be given
' effect in a democracy. If the democratic bases of our
system are to be respected, the review power of one non- c
democratic organ in our government should be exercised
with seJf. restraint".

It would thus unquestionably appear that the independence of
judiciary is not to be determined in all its ramifications as some D
a priorrconcept but it has to be determined within the framework
of the Constitution. True, that the thrust is to ensure that adjudi-
cations are untramelled by external pressures or controls and it was
conceded that independence of judiciary under· the Constitution is
confined to the adjudicatory functions of the .Courts and tribunals
and they are insulated from executive control in that behalf. It .is E
not unlikely that the total insulation may breed ivory tower attitude,
a bishop delivering sermon from the pulpit and therefore no claim
to be imperium in-imperio can be extended to the judiciary or for
that matter to any other instrumentality under the Constitution. It
is not as if judicia( indepen(lence is an absolute thing like a brooding
omnipresence. Nothing is more certain in a modern society, declared F
U.S. Supreme Court in the mid century, than the principle 'that
there are no absolutes'. Nor should judges be independent of the
broad accountability to the nation and its indigent and injustice
ridden millions. Therefore, consequently one need not too much
· idolise this independence of judiciary so as to become counter-
productive. G

A further submission. was that the concept of judicial indepen-
dence may be examined in the context of parliamentary democracy
where other. organs of tbe Government, namely, the executive and H
the legislature are elected people's representat.ives while we have
~schewed the c;l~1ttive ~leme'!-t in· appointment of judges. Thjs
1012 StJl>Rl'!Mtl COURt lll'!PORts [1982) 2 s:c.1t

A absence of elective element in judges with guaranteed tenure,
conditions of service and immunity from criticism denies any
method of accountability of judiciary l!nd the power ofjudicial
review often described as undemocratic {see Schwartz 'A Basic
History of U.S.A. Supreme Court, p. 87) can set at naught the will
of the people expressed through its chosen representatives. Jn
8 order to mitigate the trend disclosed by total aloofness, the consti-
tution makers conferred power of appointment in the President
advised by the council of ministers an elected body so as to make
judiciary accountable 'and responsible to the constitutional goals.
It was urged that this methodology will permit 'value packing' in
the judiciary. The expression 'Packing' raised a derisive laughter.
c It is a much misunderstood word. One must reject emphatically
any packing of courts of persons of the belief, hue and colour of tte
party in power but it is equally undeniable that all the.three organs
of the Government must work towards realisation of constitutional
goals and the judiciary has to be inspired by the values enshrined
in the Constitution if rule of Jaw is to run akin to rule of life and a
D
feudal society is to be transformed into an egalitarian society by
the rule of law, an introduction of the element of reflection of
popular will so as to make judicial system more viable and effective
as an instrument of change is inevitable and total aloofness of
judiciary is inconceivable. While undoubtedly political packing
E must be abhored, in putting the independence of judiciary on
pedestal one cannot lose sight of the fact that the judiciary must
keep pace with the changing mores of the day, its decision must be
informed by values enshrined in the Constitutibn, the goals set
forth in the fundamental Jaw of the land, peoples' yearning desire
for a change for the better and the promised· millennium. An
F activist role in furtherance of the same is a sine qua non for the
judiciary. If value packing connotes appointment of persons other-
wise well qualified as required by the constitution but having the
additional qualification of awareness of the high priority task of
eradication of poverty, removal of economic disparity, destroying
the curse of illiteracy, ignorance, exploitation, feudal overlordship,
G coupled with conscious commitment to administering socio-economic
justice, establishment of a just social order, an egalitarian society,
then not only the va,lae packing is not to be frowned upon nor
thwarted by entrenched establishment prone people but it must be
advocated with a crusader's zeal. And judiciary cannot stand aloof
and apart from the mainstream of society. This will en$ure it!i ;..
S.P. GUPTA :V. UNION (Desai, J.), 1013

:broad accountability to injustice ridden masses and therefore.it is A
not :unnatural that the status quoists can enter .their caveat to value
packing but which does not commend. ·while appointing each
individual the constitutional .philosophy of each individual ought to
be a vital consideration and if this is labelled as value packing, it is
neither unethical nor .unconstitutional nor a weapon to strike at
independence of judiciary.

What should be the ideal method for selecting personnel
entrusted with the task of dispensing justice has been 'an endless
source of discussion. In the democracies the world over till today
there are two known methods of selection appclintment and election.
As election method haS' not been accepted by the Constitution, it
need not detain us. Constitution provides for appointment of judges
·of the High Court and the Supreme Court by the highest executive
in the country, the President. And even in this sphere, in view of
the provisions contained in Article 74, the President will be guided
by the advice of fhe Council of Ministers. Undoubtedly, therefore,
the power to appoint judges vests in the executive. This power was
specifically conferred after a long debate to which reference will be
presently made. But before coming down to the debates of the
Constituent Assembly bearing on the subject, a brief survey of the
methodology adopted by various democratic countries in the matter
of appointment of judges would prove illuminating. ·1n U.S.A. all
the federal court judges are appointed by the President subject to
confirmation by a simple majority vote of the Senate. The Attorney
General has a d'ecisive voice in the nomination made by the Presi-
, ' F
dent. In the later months of the Truman Administration, the
12 member committee of federal judicial set up of the American
Bar Association has come to play an increasingly significant role in
the appointive process of the f~deral judiciary in tbe U.S A. but the
·power still vests in the President whose nomination must be ratified .
by the Senate meaning thereby the power is in the executive with a G
legislative veto over it. In the United Kingdom Lord Chancellor is
the Queen's chief adviser on the selection. Lord Chancellor presides
from the Woolsack over the House of Lords .• He is a member of
the Cabinet. He is also the head of the Judiciary and thus combines
in his person the three~fold function of executive, legislative and H
judicial. Ev!!n though tlJ.y§ tp~ power js jn e~e<;utiv~ 1 Richard
1014 SUPREME COURT REPORTS [19821 2 S.C.R.
A
M. Jackson in his 'Study on the Machinery of Justice in England',
noticed that political considerations have hardly entered the process
of judicial selection since 1907. In France the President of the
Republic who is charged by the Constitution to be "guarantor of the
independence of judicial authority", selects the judges. They are
chosen either by the 11 member Counsei/ Superieur de la Magistrature
B
in the case of Cour d' Appeal and Cour de Cassation, or by th~
Minister of Justice who may consult with, or receive advice from,
the High Council in the case of lower courts. The High Council
consists of the President of the Republic, the Minister of Justice, and
nine persons with legal background chosen by the President for
0 a once-renewable term of four years (see The Judicial Process by
Henry J. ·Abraham p. 31). Garner, in bis "Political Science and
Government" at-p. 726 notices tha_t in nearly all countries other than
the U.S.A., the judges are appointed by the executive and even in
the U.S.A., it is the method followed for the selection of the federal
judges. In countries having the cabinet system of Government this
D in effect means appointment by the Minister of Justice. In Foot-note
No. 107, he notices that in Belgium the judges of the Court of
Cassation must be appointed from two lists of nominees, each
containing twice as many names as there are vacancies to be filled,
one presented by the court itself, the other by the Senate. This
system represents a com bi nation of co-operation, election· and
'E appointment. In principle, it has much · to commend and it has
been advocated in: France by various jurists and commissions on
judicial reform. Garner at p. 728 recalls the statement of
Dean Hal~ in his study wherein he thus evaluates the system of
appointment by the executive : "Of all the methods of selecting
judges, of which we have actually had considerable experience in
F this country, that of appointment by the executive has unquestion-
ably produced the ablest and most satisfactory courts." Prof. Laski
in his Grammar of Politics, p. 545, notices that there are two
-
methods of selection-election and nomination, and in England where
practically all judicial appointments are under the control of the
G Lord Chancellor the nomination system is followed and there is
similar practice in France, Italy and Germany where all judicial
appointments are nominated by the executive. He proceeds to
point out that of 'all methods of appointment, th.at of election by
the people at large is withol!_t exception the worst. He notices with
H satisfactiolil that most of the great judges in recent English history,
µi.en like lllackburn, Boweni W11tson: Macna&hten: wm: entirely
§.I'. GUPTA v. UNION (Desai, J.) 1015

unknown to the public outside and they were all ap?ointed by
nomination. He concludes that by a process of elimination the
choice is thrown back upon nomination as the best method available
for choice. This method is also not fruitful because it leaves the
door too wide open for measurement of fitness in terms of political
eminence rather than judicial quality and he illustrates this statement
B
by pointing out that Lord Halsbury used his power of nomination to
elevate members of his own party. As a via media, he suggests a
compromise by recommending that the appointment should be made
on the recommendation of the Minister of Justice with the consent
of a standing committee of judges which would represent all sides of
their work. Be that as it may, this bird's eye view of the world
phenomena should be sufficient to convince us that power to ·
c
· appoint judges where election method is eschewed is always vested
in the, executive and that' it has not been found to be subversive of
independence of judiciary. At this stage it would be advantageous
to recall that in the 80th Report of the Law Commission of India, it
( has been frankly admitted that most of .the High Courts to which a D
refe1ence was made by the Law Commission about the existing
system of appointment of judges, have in their replies to the •
questionnaire, expressed· the view that the existing system is by and
large sound. Therefore, it is not possible to accept a sweeping
statement that the vesting- of the power of appoin(ment in the
executive is subversive of independence of judiciary.

I would here briefly refer to the relevant debate in Constituent
Assembly bearing on this topic. Winding up th~ debate on the
articles concerning judiciary, Dr. Ambedkar observed that : · ·
,
F
"With regard to the question of concurrence of the
· Chief Justice, it seems to be that those who advocate that
proposition seem to rely implicity both on the impartiality
of thi: Chief Justice and the soundness of his judgment.
I personally feel no doubt that the Chief Justice is a very
G
eminent person,. But after all, tht( 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 Justici: practically a veto upon the appointment of ·
Judges is really to transfer the authority to the Chief H
Justice which we are riot prepared to vest in .the Presideµ!
.•'·
10.16 StJPREME COURT REPORTS [19821 2 s.c.it

A. or the Gover~ment of the day.. I, therefore think that thai
is also a da~gerous proposition.(1)''

What is specifically moved and rejected while drafting the Consti·
tution cannot be introduced by the back door through the process
of interpretation. A specific amendment was moved to. the draft
B Article 193 (corresponding to Article 217 of the Constitution)•
The proposed·amendment reads as under(2) :

"That.for, clause (I) of Article 193, the following shall
be.substituted:
c:
(I) Every judge of a High Court shall be appointed by
the President• by a warrant under his liand and· seal
on the rec.ommendation of the . Chief Justice of the
High Court. concerned after consultation with the
--
Governor of.the State concerned and with the concur-
D~ rence of the Chief Justice of India and shall•hold office )
until,he attains the age of sixty-three years." (Under-
lini11g mine)
J-
A similar proposal· was also contained in the memorandum
representing the viewil of the Federal Court and of the Chief Justices
E representing all the Provincial High Courts of the Union of India
submitted to the Constituent Assembly. (See Shiva Rao : The
Framing of India's Constitution, Select Documents, Volume 4,
page 195)~ The implication of the amendment is that proposal for.

-
appointment of\ a judge of High Court can only be initiated upon
the recommendation of the Chief Justice which would imply that no
F one else can initiate the proposal for appointment of a High Court
judge, a~aspect which has 11ome relevance on the construction of
Article 217(1) but for the present discussion the importance.is of
ihe word 'Concurrence' in'. the proposed amendment. If the amend-
. ment had been accepted no appointment of· a.judge of High, Court
could be made unless the Chief Justice of India concurred in the
G. appointment. In other words, if the Chief Justice of India does
not approve the proposal, be would have a veto on the proposal
· and bis lack of concurrence would kill the proposal. The power of
' appointment which at present V~llts in tfi• Pr~ident would thus
n
. (1) C.A.O., Vel. g, !Si.
(2) c.•. D. Vol. 8, 674
s. ii. GUPTA v. UNION (Desai, J.) 1017,
A
stand transferred to the Chief Justice and if sucli a situation emerge.d,
it would have accord.ep great strength to the submission. Be it.
noted. that this amendment was negatived. In other words, the
Constituent Assembly in terms rejected any veto tq be vested in t\le.
Chief Justice of India in the matter of appointment of a High Court
judge. And. it is too late in the day to contend that debates in B
· Constituent ·Assembly do not provide an aid to construction of
articles of constitution or it is impermissible to refer to them. (See
State of Mysore v. R. V. Bidap (1974) l SCR' 589 at 592; Union of
India v. H. S. Dhillon (1972)
.
2 SCR 33 and Sagnata L
Investment
Ltd, v. Norwitch Corporation, (1971) 3 W.L.R. 133 at 137).
C,
In this cotntext, Mr. S.P. Gupta, petitioner appearing in
person contended that much of the evil flowing from the. power of
appointment of Judges of High Courts and Supreme Court
being vestedin the President would be eliminated if by a process of
interpretation the Court can eliminate the binding character of the
advice that may oe tendered to the president in discharge of his I)
function of appointing the judge. Article 74 (1) provides· that there
shaII be a Council of Ministers with the Prime Minister at the head
to aid and advise the President who shall, in the exercise of his
functions, act in accordance with such advice. A proviso has been
added· by the Forty-fourth Amendment Act, 1978, which enables the
Pre.sident to require the Council of Ministers to reconsider such
advice either generally or. otherwise but makes it obligatory on the
President to act accqrding to such advice tendered after reconsidera-
tion. The contention is that the President in discharge of his function
of appointing judges of Supreme Court and High Courts is to ~ct on
his own after consultation with the constitutional functionaries· set
out in Articles 124 and 217 and is not to act according to the advic!l
offered ey the executive in this bi!half. This would have necessi-
tated the ascertainment of tho position of the President in our Con-
stitutional scheme but a decision of the seven judges Cons.titution
Bll!llch of thii Court in Shamsher Singh'.s case has authoritatively
concluded this point. A.N. Ray, C.J. speaking for himself,
Palekar, Mathew, Chandrachud and Alagiriswami, JJ. has held that
the President is a constitutional or formal head and he must exercise•
his powers and functions conferred on him by or under the Consti~
tution on the aid and advice of his Council of Ministers. An
exception was noted in the case of Governor wl!i.ere the Constitu-
tion has coJ11ferred upon him an obligation to exercise his function
is l!is diseretion but tltere is no suoh pPovision in oasS' of. President
1018 SUPREME COOllT ilEPOR.ts [I 982) 2 s.c.k.

A . .
and it was concluded that the decision of any minister or officer
under the rules of business made under Article 77(3) is the decision
'
of the President. ln·a concurring judgment Krishna Iyer, J. speaking
for himself and Bhagwati J. succinctly observed that it is the func-
tion of the Council of Ministers to advise. the President over the
B whole of the central field and nothing is left to his· discretion or
excepted from that field by this article. After referring to the
debates in the Co?stituent Assembly, Iyer, J. concluded as
under:

"We declare the law of this branch of our Constitution
c to be that the President and Governor, custodians of all
executiye and other powers under variou~ articles, shall,
by virtue of these provisions, exercise their formal con-
stitutional powers only upon and in accordance with the
advice of their Ministers save in a few well known excep-
tional situations.
D
These exceptional situations need not be enumerated because they
do not touch upon the subject under discussion. Add to this the
consi.stent view of this ·court that the position of the President
under the Indian Constitution is akin to the position of the Crown
under the British Parliamentary system (See Ramjawaya Kapur v.
E State of Punjab,( 1) A. Sanjeevi Naidu v. State of Madras(2) U.N.R.
Rao v. Indira Gandhi,.(3) · In the case of U.N.R. Rao, the Cons-
titution Bench held that Article 74 (1) was mandatory and, there-
fore, the President could not exercise the executive power without
the aid and advice of the Council of Ministers. The larger Bench
overruled the decision of this Court in Sardarilal v. Union of India
& Ors.(4) Mr. Gupta, however, relied upon the decision of this Court
in Jayantilal Amritlal Shodan v. F.N. Rana & Ors., (6) some observa-
tions from which may at first blush seem to support the conclusion
reached in Sardari Lal'.< case. However, once the decision in
Sardari Lal' s case is overruled, observations in Shodhan's case may
be hardly of any assistance. Now, even Mr. Gupta concedes that
G .the power to appoint judges of the Supreme Court and High Court

(!) [1955] 2 SCR 236-237.
(2) [1970] 2 SCR 505 at 511.
H (3) . [1971] Supp. SCR 46.
(4) . [1971] 3 SCR 461.
(5) [1964] 5 SCR 294.
~.f>. GtJl>tA· v. tJNION (Desai, J.) 1019

conferred by Article 217 (!) and 124 is executive power and tl)e A
function . is executive function. But after an eleborate reference
to the debates in the Constituent . Assembly and especially the
stage at which an instrument of instructions was sought to be
prepared for providing guidelines to the President as to the manner
of discharging his function in the matter of appointment of judges
of High Courts and Supreme Court, it was urged that while exer·
B
cising the power in the matter of appointment of judges of High
Courts and Supreme Court the President was to act not according
to the advice of the Council of Ministers. Too much reference to
piecemeal debates at the drafting stage, provisions in the draft Con·
stitution and views expressed by different speakers during the
debates in the Constituent Assembly is likely 'to raise , a picture in
c
support of some of the provisions of the Constitution which 1:nay be

--
/

misleading. After a long debate, discussion, suggestions, amend·
ments, the e~d product namely, the provision finally inserted in tqe
Co~stitution must be examined. The history of the provision may
occassionally assist in illuminatin·g the blurred contours. But an· D
over emphasis on the history and debates divorced from the provi-
sion which finally emerged after mature deliberation would not hell?
in bringing out the clear intendment underlying the provision.
Drawing inspiration from the scheme of Section I 3 and 14 of
Government of India Act, 1935, an idea to prepare an instrument
of instruct_ions was certainly mooted but finally shelved. In this E
connection, it would be advantageous to remember that in the memo-
randum of May 13, 1947, prepared by the Constitutional Adviser
for the use of the.Union Constitution Committee, the principal pro-
-vision em bodied in this respect stated that there should be a Council
of Ministers to aid and advise the President in the exercise of his
functions, but it went on to add "except in so far as he is required
... by this Constitution to act in his discretion." A note was appended
F
to this clause which referred to the discretionary powers of the
President. Certain special responsibilities were set out in the
memorandum in respect of which, according to the note, President.
was required to act in his discrection. While discharging his
functions in respect of his special responsibilities wherein he wa·s G
required to act in his discretion, a Council of State whose composi-
tion_ was set out in the memorandum was proposed to be set up.
At a later stage, a suggestion was made that the subject-matter of
appointment of judges of High Court and Supreme Court should be
included in the instrument of instructions. The draft of instrument H
pf instruptjon~ was also prepa,r~d b~ !the~Orafting ~Committee. Thy
io2o SuPREMil COURT Rili>otrs f1982) 2 s.c.tl.

instrument listed six categories of appointment In regard to which
the President was required to consult the Advisory Boatd. Of the .,
six categories, two are : The Chief Justice and other Judges of
the Supreme Court and the Chief Justice and the other judges of
the High Court. Finally th1: very idea of instrument of instructions
and setting up of the Council of State or Advisory Board was
dropped. (See Shivarao : The Framing of India's Constitution, ,...
Vol. 4, Pages 338, 374, 491 and 492). A long debate spreading I

.over som~time took place as to where the power to appoint judges
must be centered. A ve,ry passionate plea was made for centering
)
this power in the Chief Justice of India. As has been pointed out
above this suggestion was specifically negatived and the power was ·
conferred on the President. Thus, if the power to appoint judges is
conferred on the President and that power is an executive power,
and fa the absence of a provision in the Constitution which permits
the president to act in his discretion, bereft of the advice of the
Council of Ministers, it is not posssible to hold that in the matter of
·-
'appointment of judges of High ·Court and Supreme Court, the
D
advice offerred under Article 74 is not binding on the President.
Where the President is not ~x pected to act on the advice of the
Council of Ministers a clear indication is given in the Constitution.
To illustrate the point, a reference to Article 103 would be pro- _J
fitable. Article 103 provides that if any question arises as to
E whether a member of either House of Parliament has become subject
to any of the disqualifications mentioned in Clause (I) of
Article 102, the question shall be referred for the decision of the
President and his decision shall be final. Sub·article (2) provides
that before giving any decision on any such question, the President
shall obtain the opinion of the Election Commission and shall act
F according to such opinion. The Constitution itself has made it
·obligatory upon the President not to act on the advice of Council
...
of Ministers but in accordance with the opinion given by the Election
Commission. Jn other words, the opinion given by the Election Com-
mission is binding on the President. Similarly, Article 217 (3) confers
.power on the President to decide the question of age of a judg·e of
G the High Court if any such question arises, after consultation with
the Chief Justice of India and the decision of the President shall be
final. The question arose in Union of India v. Jyoti Prakash Mitter,(1 )
as to the nature of the function discharged by the President while
determining the question of age of a High Court judse. Aftef

rn p97tJ 3 s.c.R. 483. '
S.P. GIJPTA v. UNION (D2Jai, J.) 1021

noticing tliat the President hy Article 74 of the Constitution is the A
Constitutional head who acts on the· advice of his Council of
Ministers in exercise of his function, this Court held that the Presi-
dent acting under Article 217(3) per form~ a judicial function of grave
importance under the scheme of our' Constitution. It was, there-
. fore; held that he cannot act on the advice of the ministers. Once
the function · of the · President while exercising power under B
Article 217 (3) is held to he judicial it follows as a necessary carol-
. Ia'.ry that the President has to act on his own after consultation with
. the Chief Justice of India but he cannot .act OD the. advice of. the
Council of Ministers because ·a person discharging a judicial or
quasi-judicial function cannot act at the behest or dictate of some C'
other authority. But it cannot be said that while. exercising the
power of appoi~tment of jYdges of the Supreme Court and High
Courts; the President is either · performing a judicial or quasi-
judicial function. It is admittedly · an executive function and
howsoever one may like to wish away the interference of the
. Council of Ministers in the matters of appointment of judges of High D
Courts and Supreme Court, the framers of the Constitution after
having examined various aspects of the matter . conferred power on
..,..
. . the President rejecting simultaneously the veto of Chief Justice or
of India: Once this funition is held· to be an executive function,
Article 74 world come into operation with all its rigours and the
>
President will have to act on the advice of Council of Ministers.

· Turning now to the group of cases in which circular dated
March 18, 1981 issued by the Law Minister, short term extension
·.given to Shri S.N. Kumar, additional judge of Delhi High Court
and his· subsequent non-appointment on June 6, 1981 figure pro-
minently, what is put in the forefront is position, privilege and status
of an additional judge appointed nuder Article 224. Article 224 is
iuch an inseparable adjunct of Article 217 that it was not. possible to
lay down precisely the construction of Article 224 divorced from or
de horse Article 217. Therefore, as a first step, one" must. now
dwell upon the proper•and precise construction of· Article 217 and G
224. Construction of a constitutional provision is of long term
. utility and therefore to eschew the heat and passion •,and dust of
raging controversy, it is always considered prudent to approach the
question of construction in abstract and thereafter I.he facts of a
given case may be examined in th~ light qf ti:!~ i;<!!l$truction put on B
a provisk>n of the Constitution, · - ·

I
1022 SUPREME COURT REPORTS [19821 2 s.c.11..

A The fasciculus of artic:les in Chapter V, Part VI, provide for a
High Court for each State. Article 216 provides for constitution of
High Court It reads as under :

"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."

Draft Article 192 corresponding to Article 216 may be referred to
here. It reads as under :

c "Every High Court shall be a court of record and
shall consist of a Chief Justice and such other judges as the
President may from time to time deem it necessary to
appoint."
-
There was a proviso to the draft J\rticle 192 which has not been
0 adopted while enacting Article 216. Article 217 provides for
appointment and conditions of office of a judge of the High Court.
It reads as under :
•

E "2l 7. Appointment and conditions of the office of a
Judge of a High Court-(!) 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

F
appointment of a judge other than the Chief Justice, the
Chief fostice 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 :

Provided that-
G
(a) a judge may, by writing under his hand addressed to
..,4fe. President, resign his office ;

(b) a judge may be removed from his office by the
President in the manner provided in clause (4) of
Article 124 for the.removal of a judge of the Supreme
<;:ourt ;
S.P. GUPTA v. UNION (Desai, J.) 1023

(c) the office of a judge shall be vacated by his being A
appointed by the President to bE a judge of the
Supreme Court or by his being transferred by the
President to any other High Court withiq the territory
of India.
B
(2) A person shall not be qualified for appointment as a
Judge of a High Court unless he is a citizen of India
and-

(a) has for at least ten years held a judicial office
in the territory of India ; or C
(b) has for at least ten years been an advocate of a
High Court or of two ·or more such Courts in
succession.

., Explanation-For the purpose of this clause- D
(a) in computing the period during which a person has
./ held judicial office in the territory of India, there shall
1 be included any period, after he has held any judicial
office, during which the person has been an advocate
a
of a High Court or has held the office of member of
E
a tribunal or any post, under th~ Union or a State,
requiring special knowledge of law ;

(aa) in computing the period during which a person has
been an advocate of a High Court, there shall be
included any period during which the person has held
F
judicial office or the office of a member of tribunal or
any post, under the Union or a State, requiring special
knowledge of law after ht became an advocate;

(b) in computing the period which a person has held
judicial office in the territory of India or been an G
advocate of a High Court, there shall be included
any period before the commencement of this Constitu-
tion during which he has held judicial office in any area
which was comprised .before the fifteenth day of
August, 1947, within India as ·defined by the Govern- l{
ment of India Act, 1935, or has been an advocate of
any High Court in any su9h !lr~!l, as the case may be,

•
1024 SUPREME COURT REPORTS (1982) 2 S.C.R,

A (3) If any question arises as to the age of a judge of High
Court, the question shall be decided by the President
after consultation with the Chief Justice of India and
the d.ecision of the President shall be fi~al."

· Article 222 confers power on the President to transfer a judge
B from one High Court to another. Article 224 provides for
appointment of add~tional and acting judges. It reads :

"224. Appointment of additional and acting Judges-
(1) If by reason of any temporary increase in the business
of a High Court or by reason of arrears of work therein,
c it appears to the President that the number of the judges of
that Court should be for the time being increased, the
President may appoint duly qualified persons to be additio-
nal judges of the Court for such period not exceeding two
years as he may specify.
D
(2) When any judge of a High Court other than ~the
Chief Justice is by reason of absence or for any other
reason unable to perform the duties of his office or is J
appointed to act temporarily as Chief Justice, the
E President may appoint a duly qualified person to act as
a judge of that Court until the permanent judge has
resumed his duties.

(3) No person appointed as an additional or acting judge
of a High Court shall hold office after attaining the
F age of sixty-two years;" ...
Article 224 initially enacted in the Constitution corresponding to
Draft Article 200 was deleted by the Constitution (Seventh Amend-
• ment) Act, 1956 and present Article 224 was substituted in its
place. By the Constitution (Fifteenth Amendment) Act, 1962
G original Article 224 deleted in 1956 was reintroduced as present
Article 224A.

Article 217 confers po"'.er on the President to appoint a judge
H of the High Court after ·consultation with the Chief Justice of India,
the Governor of the State and in case of appointment of a judge
pih~r tban tl)e <;:)lief J~~~jce, t)l~ Chief Justice of the High Court .

•
s. J>. GtJP'tA v. tJN10N (l>esai, J.) 1025
A
The power to appoint a judge of a High Court vests in the President
but it is hedged in with a condition that it can be exercised 'after
consultation with' the three constitutional functionaries set out in
the article. The use of the expression 'after consultation with'
instead of 'in consultation with' was harped upon to indicate that
the expression 'after consultation with' means that the power of B
the President remains intact but before exercise of the power the
duty is cast upon him to consult the three functionaries. If on the
other hand the expression 'in consultation with' was used it may
have indicated that the President shared his power with the three
, constitutional functionaries. Looking to the language of Article 217,
I see no distinction in the use of the two expressions which may c
have an impact on the construction of the article. The power is

--
the power to appoint and the limitation on the power is to consult
the three functionaries.

Ultimate power of appointment unquestionably vests in the
President. Before the power to appoint is exercised the President D
is under a constitutional obligation to consult the three constitu-
tional functionaries.

Jn practice ·the procedure for appointment has more or less
proceeded along the lines as indicated by the Law Commission in
its 14th Report, Vol. I. p. 71. Briefly recapitulated, it appears that E
the Chief Justice of the High Court forwards his recommendation
to the Chief Minister who in turn forwards his recommendation in
consultation with the Governor to the Minister of Justice. Formerly
it used to be Home Minister. If the Chief Minister does not agree
with the recommendation of the Chief Justice he makes his own
recommendation but in such a situation the Chief Justice is given an F
opportunity to make his comments on the recommendatfon made by
the Chief Minister. Either agreed or the rival recommendations
are then forwarded to the Minister of Justice• who forwards the
recommendation to the Chief Justice of India. After obtaining
opinion of the Chief Justice of India the Minister submits his advice
to the President as to the selection to be made. The Law Commis·
G
sion noticed that this procedure places the Chief Justice in an
awkward position. In practice occasionally the Chief Justice may
have a judge appointed at the instarce of the locar executive and
against his own preference. In order to obviate executive inter- H
ference in the matter of appointment of judges the Law Commission
recommended that Article 217 must be suitably amended to provide
•
io26 SuPREME COURT REPORTS [I982j 2 s.c.tt.
A
for appointment of a High Court Judge on the recommendation of
the Chief Jugtice of the High Court which would in practice lead
to a situation where one not recommended by the Chief Justice
can never be appointed as a High Court judge. Undoubtedly
Chief
/
Justice of the High Court would be the most competent
B. person to evaluate the merits, ability and efficiency of a person
recomrnended but as noticed by the Law Commission there may be
and frequently there are other matters relating to the person
recommended which the State executive would alone be in a position
to know and of which they may inform the Chief Justice. Such
other matters may include, factors such as the local posit ion of the
c person proposed, his character and integrity, his affiliations, which
may have considerable bearing upon his efficient functioning l:\S a .
judge and all these may not at all be within the knowledge of the
Chief Justice of the High Court. Approaching the matter from ti).is
angle the Law Commission rejected the submission that the State
executive should have no share in the decision making process for
D. appointment of a judge of the High Court and ultimately expressed
a considered opinion that where the Chief Justice of the High Court
recommends a person for a judgeship, the State executive should
have an opportunity to offer its comments upon that recommenda- ......
).
tion but that such consultation with the State executive should be
limited to other factors such as have been enumerated hereinbefore
E It may be mentioned that this recommendation of the Law Commis-
sion was not accepted by the Government. The fact remains that
even a body Ii~e the Law Commission was of the considered opinion
that it would not be conducive to appointment of suitable persons
to totally exclude the State executive in the decision making process

F
for appointment of a judge of the High Court. Fourteenth report
~as submitted in 1958 but as late as 1980 in Eightieth Report the Law
Commission has reafhrmed the view that the present procedure. is
good. Therefore, it is not possible to accept rather° au extreme
-
;

argument that.participation of the executive in the decision making
process for appointment of a judge would be subversive of the
ii:J.dependeoce of the judiciary. In fact, viewed from another angle
ai~o it wQuld be impermissible to exclude participation by the State
executive in this process. The power to appoint a judge of the
High Court is in the President. When appointed by the President
th'e judge would be working as a judge of the High Court to which
he is appointed. His salary, pension, aliowances, etc. would be
H
chargeable on the Consolidated Fund of the State. ProbiJ.bly
influenced by these considerations the Constitution itself provides
s.P. ouf>fA v. UNION (Desai, J.) 1021
for giving a share to the State executive in the decisio_n making A
process and it would be contrary to the intendment of the constitu-
tion to exclude it by process of interpretation.

The Constitution-makers attached a high degree of importance
to the office of a judge of the High Court. By a conscious effort
they were insulating the judiciary against executive interference and, B
therefore, made the task of removal of a judge once appointed very
difficult, if not impossible. It was conceded on all sides that the
Judges (Inquiry) Act, 1968 has provide~ such an elaborate and
cumbersome procedure that it would be rather next to impossible to
impeach a judge. Once, therefore, someone is appointed as a judge
of the High Court under Article 217, he is to be suffered even c
though his continuance may not be conducive to the fair adminis-

-- ·tration of justice. Extreme care was, therefore, focussed on the
question of initial appointment, probably in order to see that error
of judgment of one or the other constitutional functionary may not
go unnoticed. Three qigh constitutional functionaries were involved
in the process of appointment of a judge o(the High Court, and each D
one, namely, the Chief Justice of the High Court, the Governor of
the State, are the highest judicial and executive functionaries in the
State and the Chief Justice of India holder of the highest judicial
office in thti country, were to be consulted before the President took
the step of making an appointment under Article 217. When three
such high constitutional functionaries participate in the process
of consultation there would be a remote or minimal chance of some
·infirmity being over-looked or any vital consideration relevant to the
process of appointment being ignored and the best man will be
selected. In the ultimate analysis consumers of justice are interested
in securing undiluted j~stice free not only from b}as or subservience
but free from predilections, aberrations, preconceived notions and
·personal philoscrphies of incumbent of the office of a judge. In a
country ruled by rule of law, respect for the Jaw is a sine qua non
and the respect for law would increase and enhance directly in the
proportion to the work of judges in law courts which would inspire
confidence. Mr. Justice Arthur T. Vanderbilt in the "Challenge on G-
Law Reforms" (Princeton : Princeton University Press, 1955), pp.
4 and 5 vividly stat.ed which bears quotation :

" ......... it is in the courts and not in the legislature
that our citizens primarily feel the keen, cutting edge of the H
law. If they have respect for the work of the courts, their
respect for law will survive th'e short-comings of every other
1028 SUPREMll COURT RlJPORTS (1982] 2 s.c.a.

A branch of government; but if they lose their respect for the
work of the courts, their respect for law and order will
vanish with it to the great detriment of society."

There seems to be, therefore, no doubt that actuated with a burning
desire that the best one is selected for appointment, while vesting the
B
power in the highest executive of the country three high cons-
titutional functionaries were involved in the decision making process.
The State executive, therefore, must participate as intended by the
Constitution in this process and its role cannot be minimised by the
sp·ecious plea that it might erode independence of judiciary.
c
Experience gained for a period of three decades in working
Article 217 undoubtedly with some rare exceptions would show that
the framers of the Constitution envisaged that by a process of discus-
sion amongst themselves, by cross fertilisation of inforn:iation from
--
each other, if these three high constitutional functionaries reached a
D
consensus it will eliminate even the microscopic error in making the
appointment. Undoubtedly, in saying this the role of the President
ill making the final appointmen_t is not to be minimised.

But Mr. Garg contended that looking to the position of
E the Chief Justice of lndia as the incumb~nt of the highest
office at the apex of the judiciary, in the event of an unfor-
tunate, albeit undesirable situation of the difference of opinion
amongst the three constitutional functionaries, the view expressed
by the Chief Justice of India must have prima9y. This submission
may be examined ftom two independent standpoints. First, is there
F anything in the language of Article 217 which places Chief Justice
of India on a pedestal in relation to the other tw<5 constitutional
functionaries ? And secondly, is the Chief Justice of India in a
position more advantageous compared to other two functionaries to
be infallible in his view ? Brusquely stated, does he have a veto over
G the view expressed by the other two constitutional functionaries ?
The last question can be answered at once. In the earlier portion
of this judgment a statement by Dr. Ambedkar opposing an amend-
ment to draft Article 193 (corresponding to Art,icle 217) making
concurrence of Chief Justice of India for appointment a sine qua
H non describing it as a dangerous proposition has been noticed.
What is specifically rejected cannot be brought in by the back door.
S.P. GUPTA v. UNION (Desai, J.) 1029
I
Article 217 on its own language and intendment repels the con- A
tention. The President is under constitutional obligation to consult
the~three constitutional functionaries. Bach is on par. They are co-
ordinate authorities. There is no relative hierarchy. At any rate,
the appellate jurisdiction of the Chief Justice of India functioning as
' a judge of the Supreme Court over a decision of the Chief Justice of
the High Court would not provide an indicium that the view of the B
Chief Justice of India in administrative matters has predominance
or overriding effect over the view of fhe Chief Justice of the High
Court. It must be recalled that in the process of drafting the Cons-
titution there was some suggestion that the Supreme Court shall
have administrative1supervision over the High Court and this sugges-
tion was rejected. Initiation of proposal for appointment of High c
Court Judge is not a judicial function of the Chief Justice of the High
Court. While performing this function Chief Justice of the High
Court is not under the administrative subordination of the Chief
Justice of India. Further, as the system functions, proposal for
appointment of a High Court judge is initiated by the Chief Justice
of the High Court. The person recommended may be a member of D
the Bar or from the subordiaate judiciary, say a District Judge. As
the High Court has both administrative and judicial control over the
subordinate judiciary, the Chief Justice'of the High Court is more
knowledgeable about the capacity, ability and eligibility of a District
Judge for being considered for the post 9f High Court Judge. Chief
Justice of India will have very little information about the capacity, E
eligibility and quality of a District Judge. Similarly, while recom-
mending a person from the Bar in the State, Chief Justice of the
High Court is more advantageously placed compared to Chief

-
of India. And, Chief Justice of India will have t9 depend upon
his sources of information which may not either exclude grapevine F
or hearsay. He has little or no opportunity of seeing the member
of the Bar functioning as a lawyer in the Court. Cumulatively, there-
fore, Chief Justice of the High Court is more advantangeously placed
compared to the Chief Justice of India in this behalf. About the
various other factors which enter into the verdict, the State execu-
tive will be more favourably placed than the Chief Justice of India G
because it has its own instrumentalities for inquiry and information.
Therefore, the view of the Chief Justice of India cannot have any
primacy in this behalf.

Reference in this connection to an observation in Shamsher H
Singh' s case that : "in practice the last word in such a sensitive
subject must.belong to the Chief Justie9 of India, the rejection of
sui>RIJME couit'f REPORfs [19821 2 s.c.a.
A his advice being ordinarily regarded as prompted by oblique con-
siderations vitiating the order'' (at p. 873), is not opposite; Shamsher
Singh belonged to the subordinate judiciary and while·examining his
case reference was made to Union of India v. Jyoti. Prakash Mitter( 1 ),
in which case the question of determination of the age of a judge
and the construction of Article 217(3) .figured. Article 217(3) obliges
B the President to consult the Chief Justice of India before deciding
the question as to the age of a judge of the High Court. The view
expressed therein would not support the contention about primacy,
because unlike Article 217 and similar to Article 222, ChiefJ ustice
of India is the only constitutional functionary required to be
consulted by . the President while discharging his function under
c Article 217(3).

Mr. Seervai in this t:ontext urged that the Chief Justice of
ln<!ia has been given the position of primacy because hi,s training
as a judge gives him a judicial outlook which would help him to
D consider the appointment of judges in a judicial spirit. Further, the
C::hief Justice of India having reached the qighest position in the.
judiciary is free from even a suggestion that his action was actuated
by a desire to secure a promotion for hims<;lf in the judicial hi<;r-
a~chy. Add to this the consideration thp.t if p11roc;hi;t) and locaJ
considerations are to be excluded in the appointment of High Court
E judg~s, the Chief Justice of India is more likely· to e11clude such
considerations than the Chief Justice of a High Court. To say that
high constitutional functionaries like the Chief Justice of· a High
Court would not be free from sucp short:comings set out above and
that the Chief Justice of India wo~ld be free from such shortcomings
appears to be an unwarranted assumption. It is well-known t~at
some Chief Justices declined to come to the Supreme Court and had
...
they come atleast one of them was likely to be the Chief Justice of
India by vertical movement according to seniority. If he declined
to become the Chief Justice of India and continued to remain Chief
Justice of High Court, merely because he opted for Higli Court
judgeship would not be sufficient to reje9t h_is opinion. or merely
G
because Chief Justice of India who opted to come to the Supreme
Coui:( and became the Chief Justice of India, his view as Chief
Justice of India should have greater weight. The submission is not
basically sound to over reach the plain intendment of Article 217.
It was said that if the submission that the view of the Chief Justice
H \\ ' .

(1) [1971] 3 S,C,R. 483.
s.t>. Gi:JPTA v. UNION (Desai, 1.J i6Ji

of India should be accorded primacy is rejected, in the unfortunate A
event of divergence of opinion between the Chief Justice of India
and the Chief Justice of High Court, the executive would function
like an umpire and that this would erode independence of judiciary
and to avoid this undesirable situation the Court must lean in
favour of according primacy to the view of the Chief Justice of India.
In support of the submission, the expression 'pater familias' used by B
,-..-<.'
me in my judgment in· Mr. Sheth's case in reference to the Chief
Justice of India was relied upon and it was urged that this very
description would unerringly point in the direction of the primacy
being accorded to the view of the Chief Justice of India. Undoubt-
edly, I described the Chief Justice of India as pater familias ·of
judiciary. And that was in the context of the consultation which the c

-- President must have with the Chief Justice of India before exercising
the power under Article. 222. But let it not be overlooked tha.t there
was no question ofprimacy to be accorded to the view of the Chief
Justice of India with regard to the advice proferred by him when con-
sulted under Article 222 because he is the . only constitutional func-
tionary required to be consulted. The very expression 'primacy'
D
envisages two or more coordinate authorities, one having a preferen-
tial position over the other. Such a situation does not arise under
Article 222 and, therefore, torn out of context the use of the expres- .
sion paterfamilias would not help. Therefore, it is not possible to
accept the submission that the view of the Chief Justice of India E
when consulted under Article 217 would have primacy over the view
of the Chief Justice of the High Court.

Interestingly a reference in passing may be made to the diver-

-
gent views on this aspect even amongst the petitioners. Article 222
which confers power on the President to transfer a judge of the High
F
Court to another High Court provides that the power to transfer can
be exercised in consultation with the Chief Justice of India. While
hearing the petition challenging the transfer of Chief Justice K. B. N.
Singh of the Patna High Court to the Madras High Court, Dr. Sing-
hvi appearing for Mr. K. B. N: Singh vehemently traversed the argu-
ment of Mr. Garg that the view of the Chief Justice' of India
G
must have primacy and it was ~aid that no such primacy
as is contended for can be accorded to the view of
the Chief Justice of Ind;a. Specific submission was that if
the proposal for transfer is initiated by Chief Justice of India
it would be violative of Article 222. If Article 222 which
confers power on the President to transfer a judge from one
High Court to another High Court is hedged in .with a

•
1032 SuPREME COURT REPOllTS [1982) 2 S.C.lt.
A cnndition that it can be exercised after coasultation with the Chief
Justice of India and this consultation has been held to be an adequate
safe¥uard against improper transfer in Mr. Sheth's case, and even
though that being the only safeguard, it was submitted that the view
of the Chief Justice of India cannot have primacy; how would
it be proper to accord primacy when Article 217 mandates
B consultation with three constitutional functionaries including
the Chief Justice of India? Primacy has the flavour of veto
and if conceded the authority to be consulted would become the
final decision making authority. No canon of construction permits
such a thing to be done. As stated by Dr. Ambedkar the Court
cannot assign to one authority powers explicitly granted to another.
c This will be elaborated at a later stage. Therefore, also, the conten-
tion about primacy of the view of the Chief Justice of India must
be negatived.
-
The next limb of the argument is as to whether the proposal
D ' for appointment can be initiated by the Chief Justice of the High
Court or the Chief Justice of India only or it can be initiated by
any of the four constitutional functionaries adumberated in Article
217. In this context the practice followed till the 14th Report of
the Law Commission and till the 80th Report has been set out earlier J
in this judgment. Even, the LJlW Commission, after noticing the
E defects and drawbacks in the procedure followed for appointment
under Article 217 ultimately recommended that Article 217 be
suitably amended so that the proposal for appointment of a High
Court judge must initiate upon the recommendation of the Chief
Justice meaning thereby that the Chief Justice alone would be able

F
to initiate the proposal. It expressly stated 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. In its view, if the
State executive disagrees with the recommendation of the Chief
-
Justice for such other reasons as mentioned in.the Report it should
be open to it to disagree with the !ecommendation and request the
Chief Justit:e to make a fresh recommendation. The weighty re-
G commendation of Law Commission that a proposal for appointment
of a High Court judge can originate only upon the recommendation
of the Chief Justice was in terms negatived by the Constituent
Assembly.(1 ) There is nothing in the language of Article 217 that

H
(1) C.A.D. Vol. 8 p. 674.
U'. GUPTA v. UNION (Desai, i.) 1033

A
the proposal cannot he initiated by any of the four constitutional
functionaries set out in the article. If elaborate provisio:: was made
for appointment of a High Court Judge with a view to securing the
appointment of the best available man at the relevant time it would
not be co'-?ducive to effectuating the purpose underlying the article if
the proposal can be initiated by the Chief Justice of the High Court 8
alone. Cases are not unknown where the Chief Justice of the High
Court having his own philosophy adopted the same as his yard-
stick to determine suitability for appointment and thereby excluded
from his consideration a sizeable section of the Bar. Similarly the
Chief Justice of India can also initiate a proposal because if he finds
someone practising in the Supreme Court as one suitable for appoint- c

-
ment to the High Court, we see nothing objectionable or improper
in his initiating the proposal. Similarly, there could not be a blanket
embargo on the State executive initiating the proposal. We agree
that the State executive shnuld not make its own recommendation
and forward it directly to the Centre. The State executive initiating
the proposal must first forward it to the Chief Justice of the High 0
Court who would be better informed about the practising advocates
as well as the District Judges subordinate to the .High Court, and
seek the views of the Chief Justice. The view of both may be
'forwarded to the Chief Justice of India. The process of consultation
must go on whatever new facts relevant to the consideration are
elicited or obtained by any of the constitutional functionaries for E
consideration of the other constitutional functionaries and this may
ultimately lead to a possible consensus, amongst all the constitutional
functionaries and translate the purpose underlying Article 217 into
reality by appointing the best man to this high office. The sub-
mission that any proposal from the State executive or even from
the Central Executive fcir consideration of the other two constitu· F
ti on al functionaries would make a serious inroad on the independence
of judiciary is to ignore the role assigned to these two constitutional
.~ functionaries in the process of appointment. However, the consul-
..
·~

tation must be not merely formal but of substance and the scope
aod the content of the consultation will be presently examined. G

But before spe}ling out the scope and content of consultation
envisaged by Article 2J.7, it is necessary to refer to Article 224.
Frankly, the scope, ambit and the underlying purpose of Article 224 H
,hjj.s i:onsumed maximum tinw llt tqe beai"in¥ of th~sc; rriatters: lq
l034 iUPREME COURT REPORTS [1982] 2 s.c.a.

A the draft constitution there was no provision similar to present
Article 224, which was introduced by Constitution (Seventh Amend-
ment) Act, 1956. However, Article 192 of the Draft Constitution
provided for constitution of a High Court consisting of a Chief
Justice and such other judges as the President may from time to
time deem it necessary to appoint. There was a proviso to this arti-
B cle which provided that the judges ·so appointed together. with any
additional judges appointed by the President in accordance with the
next following provisions of the Chapter shall at no time exceed in
number such maximum as the President may by order fix in relation
to that Court. Article 216 corresponding to draft Article 192 with-
out proviso has not cast any obligation on the President to fix
c maximum nu)llber of judges that can be appointed in a given High
Court. It provides for a flexible situation, in that the President
niay, from time to time, appoint such other judges when deemed
necessary to appoint. If the number was fixed, by the Constitution,
every time a constitutional amendment would become necessary if
-
more judges were required to be appointed. Pragmatism and flexi-
D
bility informed the approach of the Constituent Assembly in deleting
the proviso and thereby removing the obligation of the President
to fix maximum number of judges in relation .to each High Court.
Article 224 makes provision for appointment of additional judges.
The concept of additional judges also figured in the proviso lo
draft Article 192. Therefore,. when the draft constitution envisaged
E
appointment of additional .judges, the expression 'additional judge'
may be understood in contra-distinction to permanent judge or an
acting judge or recalling of a .retired High Court judge. The ex-
pression 'permanent judge' in· relation to High Court judge is to be

-
found· in Article 220 which pro.hibits a permanent judge of a High
Court from pleading or acting in any court or before any authority
F
in India except the Supreme Court and the· other High Courts. One
can legitimately say that the framers of the Constitution envisaged .
appointment of an additional judge in the High Court in contra-
distinction to a permanent judge or acting judge. A retired judge
. of a High Court who is requested to sit and act as a judge of the
G High Court is not deemed to be a judge of the High Court, and can
be given no label or nomenclature and is certainly not an additional
judge as contemplated by Article 224.

Article 224 ~(l) enables the President to appoint . additional
H judg'.!s of a High Court if the conditions enabling the exercise of
•
SJ>; OUt>TA v. UNION (Desai, J.) 1035

power are satisfied. There are two situations. contingencies or A
eventualities in which alone an additional judge can be appointed in
a High Court and they must ore-exist before an additional judge
can be appointed. These are: (I) if by reason of. any temporary
increase in the business of a High Court; or (2) by reason of arrears
of work therein, it appears to the President ·that to deal with the
B
--
\
aforementioned situations it is necessary to increase the number of
High Court judges for the time being, he may dq so and may pro-
ceed to appojnt duly qualified persons to be additional judges of the
court for such period not exceeding two years, as he may specify.
There is thus the power to appoint .additional judges with a limita-
tion on power that it can be exercised if one or the other or both of
the aforementioned pre-conditions for the exercise of the power are c
- satisfied. If one or the other or both of the pre-requisites are satis-
fied the President may proceed to appoint an additional judge but
in the absence of both there is no power in the PreRident to appoint
an additional judge in the High Court. Appointment cannot be
made for a period exceeding two years and before or while making
the appointment the number of judges in the High Court may be
D
increased for the time being that is not permanently. Recalling
Article 217 (I) which confers power on the President to
( appoint a judge of the High Court, one can say without the
fear of contradiction that the expression 'judge' in Article 217
includes an additional judge. If the pre-conditions set out in Article
E
224 are satisfied and the President proceeds to exercise the power to
appoint an additional judge, he can appoint only such person who is
qualified. . The eligibility qualifications for being appointed as a
judge of the High Court are set out in sub-article (2) of Articles 2 I 7

- and it is unnecessary to recall those qualifications save and except
saying that the qualifications for a judge to be appointed under
Article 2 I 7 or an additional judge to be appointed under Article 224
(1) are the. same. However, the tenure of a judge appointed under
F

Article 217 and one appointed under Article 224 materially differs.
A High Court judge appointed under Article 217 is entitled to hold
office until he attains the age of 62 years, but in the case of an
additional judge the period has to be specified and the maximum G
period that can be specified by the President for which .he can hold
office is two years. The view that the expression 'judge' in Article
217 includes an additional judge is reinforced by the fact that while
introducing Article 224 by Constitution (Seventh Amendment) Act,
1956, a consequential amendment was insert\:d in Article 217. In the H
absence of the. amendnm1t 1 an ~dditional judge would enjoy tenur~
1036 SUPRBME COURT REPORTS [1982] 2 s.c.R.
A till he reached the age of sixty-two years. In order to avoid any
confusion in this behalf the words "shall hold office in case of an
additional judge or acting judge as provided in Article 224 and in
any other case, until he attains the age of 62 years" were added in
Article 217. If the expression judge in Article 217 were not to
include an additional judge it would be redundant to incorporate the
B maximum tenure of two years prescribed in Article 224 for an
additional Judge in Article 217. It was however, foreseen that if
the necessary amendment was not incorporated in Article 217 one
could have argued with confidence that even the additional judge
would retire on attaining the age of 62 years. Therefore, to put the
matter beyond the pale of controversy while introducing Article 224
c in 1956 a consequential amendment was made in Article 217 that the
tenure of an additional judge shall be as set out in Article 224 and
that it cannot exceed .two years. It is nof necessary to refer to the
tenure of an acting judge as envisaged in Article" 224 (3) because
that aspect is not relevant to the present discussion. So far there is
-
no controversy.
D
It may be mentioned that an additional judge appointed under
Article 224 and a judge of a High Court appointed under Article
217 as far as pay, privileges, duties, obligations, adjudicatory powers )
are concerned, are on par, the glaring difference being in the tenure.
E But, in this context our attention was drawn to Krishan Gopal v.
Shri Prakash Chandra & Ors. (1) An election petition was filed in
the Madhya Pradesh High Court which in course of time came to be
assigned to Suraj'Bhan, J. who had retired on Fe1iruary 2, 1971,
but the Chief Justice of Madhya Pradesh High Court, after obtain-

F
ing previous consent of the President, requested Suraj Bhan, J. to sit
and act as a Judge of that Court under Article 224A of the Consti-
tution. Before the allocation of the election petition to Suraj Bhan,
J. the same was being heard by Vyas, J. and when an intimation
-
was ~ent to the petitioner that his petition was allocated lo Suraj
Bhan J. he objected to the same. Suraj Bhan, J. rejected his appli- .}-
cation upholding the order of allocation of the petition to him.
G This order was challenged by a petition under Article 226 of the
Constitution for the issuance of a writ of mandamus. directing
Suraj Bhan, J. to forbear from giving effect to the order of the
Chief Justice. A Bench of the Madhya Pradesh High Court dis-
missed this writ petition. Upon a certificate under Article 132, an
H
P> [1974) 2lSG~ 2()(i,
S.P. GUPTA v. UNION (Desai, J.) 1037

appeal was filed in this Court. In this case construction of Article A
224A caine up before this Court. Two contentions were urged on
behalf of the appellant. They were: (i) that a person requested to
sit and act as judge of the High Court under Article 224A was not
a judge of the High Court for the purpose of Section 80A of the
Representation of the People Act, and (ii) that even assuming that
he was a judge for th(f pu~ose of Section 80A of the Act, the elec- B
tion petition could not, after it had been entrusted to a permanent
judge, be allocated to a judge appointed under Article 224A. This
Court rejected both the contentions but finally observed as under :

" ..... All the same, looking to the special facts and
i circumstances of this case, we are of the opinion that it is c
fit and proper and in the interest of justice that the election
petition filed by the appellant be tried by another learned
judge of the High Court who may be assigned for the pur-
pose by the Chief Justice <0f that Court. lt seems indeed
desirable that the election petitions should ordinarily, if
• possible, be entrusted fo.r trial to a Permanent Judge of the D
High Court, even though we find that the 'additional or
acting judges or those requested under Article 224A of the
Constitution to sit and act as judges of the High Court, if
assigned for the purpose by the Cbief Justice, are legally
·competent to hear those matters."
E
This question is hardly ofany assistance on the question of eligibi-
lity, capacity .and competence of an additional judge to undertake
any adjudicatory process of any matter assigned to him by the Chief
Justice.and'no distinction can be made between a permanent judge,
if one. appointed under Article 217 can be so designated and an ,
additional judge appointed under Article 224. F
- · If an additional judge can only be appointed either by reason
of temporary increase in the business of the High Court or by reason
of arrears of work therein, what would be the position of such an
additional judge at the expiration of his period of two years consti-
tutionally fixed if the temporary increase and/or the arrears to deal
G
with which he was appointed remain unabted ? In other words, if
the temporary increase to clear which he was appointed continues
to remain uncleared or the arrears to tackle which he was appointed
not only neither decrease nor wholly get eradicated but remain at the
same level or may be found mounting up what would · be the rig~t to H
further continuance of the additional judge? Some vital questions
arise qua the position and continµan<;c, of im additional judge,
1038 SUPREME COURT REPORTS (1982) 2 S.C.R,

A The questions posed are of such dimension and magtiitu<le in
the field of constitutional law and of such far-reaching effect, defy·
ing simple and straight forward solutions _bee ause extreme position
~as adopted on both sides. Wisdom and circumspection should
therefore be our watch words.
B ,
The questions posed are : is the additional judge, given the
continued existence of situation which necessitated his initial ap?oint·
ment, entitled as a matter of right to be 'reappointed for a further
period of two years ? If in the mean time there is a vacancy in the
permanent strength of the High Court, is the additional judge with-
c out anything more entitled to be appointed as permanent judge ? If
additional judge was appointed by reason of any temporary increase
in the business of the High Court or by reason of arrears of work
therein or if the temporary increase has become a permanent feature
of the High Court and if the arrears have not only not been reduced
but are mounting up meaning thereby that the pre-requisites, exis-
-
D - tence of which enabled the President to exercise the power of
appointment of additional judge, continue to exist, is he entitled to·
be re-appointed · as a matter of right ? Could he be deemed to be
deemed to be permanently appointed ? Answer posed on the other
side was that(he had no right to be considered nor is he deemed to
be appointed as permanent judge even if he is available and it would
E
be open to the President to appoint any one else without considering
the case of the additional judge whose tenure has come to an end. In
other words, he has neither weightage nor a right to be considered.
He is on par, according to· the learned Attorney General, with
""any other person in the Bar or in the subordinate judiciary.
F
One submission may be disposed of at the outset. Conceding
the contention of Mr. Seervai that the position, powers, privileges
-
and jurisdiction of permanent and additional judges of High Court
and the qualifications for their appointment are the same, but the
G marked contract in the raison ~'etre of their appointment and the
tenure for which they are appointed cannot be overlooked. The
present agonising situation arose from a common understanding of
the requirements of Article 224 both by the judiciary and the execu·
tive in making appointments of High Court Judges since 1956 till to-
H day: Every High Court has a sanctioned strength of permanent judges.
and additional judges. Save rare exceptions, not easily noticeable,
whenever a vac~ncy ar()se in the permanent ~trength, the ~eniormost
S,P, GUPTA v. UNION (Desai, J.) 1039

additional judge was offered the permanent vacancy and in the
vacancy so caused in the strength of additional judges ·a fresh
appointment was made. When I say seniormost additional judge, I
only refer to the length of period for which the judge has worked
and one who has worked for the .longest duration amongst additio-
nal judges is described by me as seniormost. If the tenure of
--
/ '
an additional judge· specified by. the President in the warrant of
appointment expires and there is no vacancy in the permanent
cadre of High Court judges obviously such additionai judge was
u&ually offered a further tenure. of ordinarily two years.
,
c
While making the fresh appointment the procedure followed
was one prescribed in Article 217. Article 224 cannot be divorced
fro,m Article 217 because an additional judge appointed under
Article 224 is a judge witqin the meaning ·of the expression in
Article 217 and such an additional judge before entering upon his
office has to make and subscribe an oath or affirmation according D
to the form set out in the Third Schedule. Article 224 obliges the
President to specify the tenure of the additional judge for such·
period npt exceeding 2 years. Now, therefore, if the additional judge
with the knowledge of the specified period of tenure enters upon
his office, makes and subscribes to the oath and starts functioning
as a judge of the High Court, undoubtedly when the period expires, E
if nothin.g else takes place he ceases to be a judge of the High
Court. Assuming that 'be has to be appointed again, the whole
gamut of consultation as constitutionally ordained in Article 217
bas to be gone through over again. Harsh though this may appear,
it is an inescapable situation flowing from the provisions of ihe
Constitution. Now if the process of consultation starts over again F
:undoubtedly the various constitutional functionaries are bound to
express their opinion on the relevant merits and demerits off the
judge and the expression of opinion would be more or less
-on the same lines as when a p~rson is being appointed for the first
time as a judge. of the High Court. Whatever canon of construction
one may resort to, it is not possible to hold -that the consultation in
G
respect of an additional judge who has been once appointed and
whose tenure has expired and being eligible, is being considered for
appointment afresh for a fresh tenure', the relevant consideration
which would govern the decision for appointment would be different,
save and except saying that the constitutional functionaries will have
R
the additional benefit of the ex:periencc:i <.>f th!.! person cMcerned a&
1040 SUPREME. COURT REPORTS {1982] 2 S.C.Jl

A a judge of the High Court for the period he was appointed and he
worked~

Three different contentions have been advanced in this behalf
and each one will have to be separately examined. One submission
B of Mr. Garg strongly supported by Mr. Seervai, and learned advoca-
tes for the other petitioners is that the additional judg~ is not on
probation and, therefore, his eligibility or all those relevant conside-
rations in service jurisprudence which are taken into account while
0

offering a substantive appointment to a probationer could not be r
brought into consideration. The contention is that his qualifications
c for being appointed as a judge have once been examined and accep-
ted, when he was appointed as additional judge, these considerations
cannot be re-examined. And at any rate, it is not open to the
Chief Justice of the High Court to sit in appeal over the judgments ··--
of the judge concerned and reach his own conclusions about the
judicial capacity as flowing from the judgments of the judge. Another
D limb ·of the submission is that in order to ensure independence of ,.
judiciary, an additional judge who has functioned as a judge and
- has had numerous occassions to deal with a litigant, namely, the
executive which has the power to make fresh appointment, should
not be at the mercy of the executive and, therefore, it was urged by
Mr. Seervai that if one or other of the two pre-conditions in Art. 224
E which enabled the President to exercise the power of appointing an
additional judge continues to exist a fresh appointment must either
follow as a matter of right or if the conditions for exercise of the
power continue to exist he must be deemed to have been appointed
as a permanent judge. The submission is that the permanent judge
F is appointed for the routine work of the High Court including the
work to deal with the arrears and if the work load is sufficient for
the permanent strength at the time of initial appointment and conti-
-
nues to disclose the same position, the initial appointment of the
additional judge was not within the purview of Article 224 but it
must be deemed to have been within the purview of Article 217 and,
G therefore, mch a judge would be a permanent judge. On the other
hand, learned Attorney General contended that if the appointment
is made within the four corners of Article 224, the assumption is that
' the judge so appointed wou!d either deal with the problem arising
out of the temporary increase in the business of the High Court or
H tackle the arrears to clear which he was appointed and it is not a rele-
vimt consideration whether be bas suq:eeded or not succeeded ~n<;I it
S.1>. Gul>TA v. UNION (.Desai, J.) io4i
would be open to the Government· to appoint him or to appoint A
anyone else completely ignoring any claim of such an additional
judge whose tenure has expired. it was asserted with emphasis that
· such an additional judge has. no right to be reconsidered and the
situation at the expiry of his tenure is the same JlS it was at the time
of his entry and he or any other person could have been appoin-
ted and he is not entitled to be considered in priority or preference B
to any other person who can be picked up from the Bar or from
the subordinate judiciary. Extreme illustrations were given to
make good either point df view by both sides but the illustrations
· hardly if ever provide a reliable yard-stick to interpret a constitu-
tional ~rovision.
c
-· In an emotionally surcharged voice we were told that there
were more than 65 additional judges on April 1st, 1980 all over the
country whose fate is in balance and, therefore, the Court should be
very careful and circumspect in putting such construction on Article
224 which would not leave these 65 additional judges to the vicissi-
tudes of executive smile or frown. On the other hand we were told D
that the whole conspectus of the Articles with which the Court is
dealing with in these matters were debated over a long period in the
Constituent Assembly and the trend indicates that speaker after
speaker repeatedly asserted that the mechanism for appointment of
judges must be so devised that the best in the country is available
E
for this high constitutional office and that the checks and balances
provided must be such as to weed out and eliminate the unworthies.
It was therefore, said that such rigid construction should be avoided

.. which would enable an additional judge who made himself thorou-
ghly undesirable during the period of his tenure be foisted upon the
society and the consumers of justice booause the .door against his F
exit is tightly bolted. We have thus to steer clear of all these
extreme propositions.
-~ We were told that constitutional conventions and practice are a
sure guide to. ascertain, decipher and unravel the intendment of the
various articles. The constitutfonal conventions and practices as a11
G
aid to construction were canvassed because Article 224 has been so
implemented under a common· belief albeit mistaken of the executive
and judiciary that the present impasse is the end-product of it.

The proviso to draft Article 192 envisaged appointment of H
addititional judges but the tenure of such additional judges was not
specified. However, when the Constitution was adopted and Article
1042 SUPREME COURT REPOkTS [1982] 2 s.c.ll.

A 216 took the place of draft Article 192, the proviso wa.i deleted.
Article 216 casts _an obligation on the President to appoint a Chief
Justice and such other judges from time to time as he deems it
necessary to appoint. T)lerefore, the power to appoint coupled with
a duty to appoint bas been cast on the President. It is not
B necessary to consider whether this duty can be enforced by
a mandamus. An extreme illustration was taken that
the President may appoint one Chief Justice and one additional judge
and the consumers of justice would suffer inordinate delay in dispo-
sal of their cases if the judiciary denies to itself power to issue a
mandamus to the President to perform his function to appoint such
c number of judges keeping in view the institution, disposals and
arrears, to be able to dispose of cases speedily and within a reason-
able time. Such an illustration overlooks a vital point that the arrears
in the courts are not attributable solely to the inadequate number of
judges in each High Court. It would be merely adding to the length
---
of this judgment if all the causes more vital than the inadequacy of
D the number of judges contributing to the mounting arrears are
enumerated here. But I cannot resist the femptation of referring to
what Mr. Seervai bluntly stated to the Court that to a considerable
extent the senior members of the Bar are responsible for the sorry
state of affairs more so because the courts have refused to enforce
the provision in Order XVII, rule 2, Code of Civil Procedure namely
E that non availability of counsel ii not a ground for adjournment.
Present malaise in this court was also touched upon by him. Be that
as it may, the Committee appointed by the Government presided over
by the 'then Chief Justice of India, Shri J. C. Shah, extensively exam-
ined the question of mounting arrears in the High Courts and found

F
that the inadequacy of number of judges in each High Court is rela-
tively a minor factor contributing to the mounting arrears but there
are more weighty factors which.are to be tackled with.
-
In a parliamentary democracy with a written . Constitution in
G which three organs of .the Government are clearly marked out, it
becomes a primary duty of the State to provide for fair atld efficient
administration of justice. Justice must be within tl)e easy reach of
the lowest of the lowliest, Rancour of injustice hurts an individual
leading to the bitterness, resentment and frustration and rapid eva-
H poration of the faith in the institution of judiciary. Two vital limbs
of the justice system are that justice must be within the easy reach of
the weaker sections of the society and that it must be attainable ~itb-
s.1>. GUl'TA v. UNION (Desai, J.)
A
in a reasonably short-time, in other words, speedily. Leaving aside
other factors contributing to the arrears in courts, it cannot be gain-
said that in each High Court adequate number of judges must be
appointed an<! the situation in each High Court must be regularly
reviewed by the President so as to efficiently discharge the duty cast
on him by Article 216. In the course of hearing a statement was, .B
made on behalf of the Union of India that the Government is taking
steps to review the strength of each High· Court to determine the
adequate strength of each High Court and then to take steps to .make
appointments according to the targets so devised. As thi; statement .
is a solemn undertaking to this court, it may be reproduced in
extenso : c
- "The Union Government has decided to increase the
number of posts of Permanent judges in the various
High Courts keeping in view the load of work, the
guidelines prescribed and other relevant considerations.
In fact in 1980 itself, on the basis of institution, disposal D
and arrears of cases and the guidelines prescribed, the
' Governments of seven Siates where the problem was
more acute, had been addressed to consider augmenta·
tion of the Judge strengths of their High Courts. It
has been decided that where necessary the guidelines
prescribed will be suitably relaxed by taking into acco- E
unt local circumstances, the trend of litigation and any
other special or relevant factors that may need conside-
ration. The Union Government will take up the matter

- with. the various State Governments so that after con-
sulting the Chief Justices of tlie High Courts, they
expeditiously send proposals for the conversion of a .
substantial number of posts of Additional Judges into
F
/

those of permanent judges.

· (2) The Union Government has also decided that ordina-
rily further appointments of Additional Judges will not G
be made for periods of less than one year."

But to say that_ a litigant who wants his case to be disposed of as
early as possible being convinced that his case is not handled by the 9
Court for want of adequate number o(judges can bring an action to
1044 SUPREME COl:JR't REPORTS [1982] 2 s.C.IL

A issue a mandamus to the Government to appoint adequate number
of judges requires more elaborate arguments and :in view of the state-
ment it is not necessary to deal with the submission. An additional
error in the submission founded on a mistaken belief is .that all short-
comings and infirmities in the system can be rnmedied by judic.ial
process. There is no greater error than entertairning such unwarran-
ted· belief. Courts cannot cope with all infirmities in the system.
That is the admonition of Frank Purter, J. I quote :

"In a democratic society like ours, relief n:iust come
through an aroused popular conscience that sears the
conscience of people's representatives."'
c (Baker v. Car) 16.

Failure to perform duty of appointing adequate" number of judge~ in
High Courts cast on the President by Article 216 would make him
answerable to the Parliament and not to the Court.

0 The problem of: arrears is much too complex to be referable to
one single cause, namely, inadequate strength. Obligate the Presi-
dent by a mandamus to appoint adequate numbe1r of judges in High
Courts and this intractable problem defying solution would evaporate
like the morning dew, betrays woeful lack of appreciation of Parki-
son's Law that large number of judges may result in further mount-
E ing of arrears. Not the number ·the system is cancer ridden. The
justice delivery system of this country is utterly alien to the
genius of this country. This is a smuggled system from
across the shores imposed upon us by the empire builders
for their own political motives and during the foreign rule a
class came into existence which has enormously benefited by
F this justice delivery system. to the detriment of teeming millions
and, therefore, they have become the protagonists of the system. A
society composed of 70% illiterates living• in rnral backward area
having some simple easily solveable problems by the common sense
approach of local populace is being served with a highly complex
time consuming, cost mounting, justice delivery system evolved over
G centuries for a cent percent literate society. What a paradox? The
utter failure of the system stems from the fact that it ·is an alien
system unsuited to our genius. It has become static and non-func-
tioning if not counter- productive. Both the judges and the lawyers
failed to 11uitably revise the system to suit the needs of a republican
H
form of Government and egalitarian society with emphasis on socio·
.
s.i. GUPTA v. UNION (Desai, J.) 1045

economic justice. We adiµinister justice in a foreign language not A
understood by a very large number of litigants. If the litigant is ·
present in the Court he hardly understands what is going on. The
judgments are written in a foreign language and the seeker of justice
hardly knows what has happened to his cause or controversy which
be has brought before the Court. In search of justice he is chasing
a mirage, in the process spending his hard-earned fortune. This is·. · B
, the basic draw-back and this aspect can be examined in meticulous
detail but this is neither the place nor the environment for
elaboration.

Examining first. the contention whether an additional judge is
on probation during the period of his initial tenure or till he is offe-
c
red a permanent vacancy, it must at once be said that in case of a
High Court judge, a high constitutional functionary holding a high
constitutional office the expression 'probation' is wholly inept and
inappropriate and apt to prove misleadin.g. . Such worda from the
service jurisprudence would be of no assis.tance. One must keep in
D
view the scheme envisaged by the Constitution for deciding the posi-
tion of the additional judge.

Before the scheme is examined the common error of executive
and judiciary in making appointments of High Court judges for a E
period commencing from 1956 till today must'be examined. Article
224 was not meant to provide an entry door for becoming a judge of
a High Court under Article 217. Article 224 was for a specific and
specified purpose. When the Constitution came into force in January
1950 present Article 224 A was Article 224. Article 224 A enables
the Chief Justice of a High Court with the previous consent of the Il
President to request any person who has held the office of a judge of
a High Court to sit and act as a judge of the High Court. It was
I
believed that whenever work-load in the High Court temporarily
" goes up, retired ju,dges of the High Court may be requested to sit and
act as judges of the High Court and the problem of work-load in the
High Court can be solved. In 1956 it was found that this system G
has not worked satisfactorily. This becomes clear ftom the 'objects
and reasons' set out in the Bill seeking to amend the Constitution by
substituting Art. 224 in its pres~nt form. Therefore, the present Art.
224 was introduced and as pointed out earlier, it was meant to confer
power on the President to increase for the time being the number of H
•

1046 SUl>llEME COURT REPORTS [1982) 2 s.c.a.
A
judges in a High Court and to appoint additional judges to fill in the
increased strength. This power can be exercised if one or the other
of two pre-requisites set out in Article 224 is satisfied, namely, tem-
porary ·increase in the business of a High Court or by reason of
arrears therein·.. The J\rticle was enacted to meet these two specific
B situations only. In practice it appears and not controverted by any-
one, in fact admitted, that the article was worked ·as if an entry in
the High Court for a permanent judgeship is via Article 224, namely,
by first being appointed as an additional judge and then when a
vacancy occurs in the permanent strength of the High Court, to be
appointed as a permanent judge. This has been invariably the prac-
c tice save in rare cases ascertainable by microscope. Every one was
ordinarily first appointed as an additional judge and in course of
time.even after once, twice or thrice being appointed as an additional
judge till the vacancy occurred in the permanent .strength that one
became a permanent judge. This is clearly contrary to the intend-
ment of Article 224, and the present malaise arises out of this imper~
D missible, yet. without exception or with rare exceptions, use of Article
224 both by the executive and judiciary. This has also led to inac-
tion on the part of the President in not reviewing regularly and at
regular intervals the permanent strength of the High Courts. Even
Chief Justices were unconcerned about the undesirable situation
in that they have asked for increase in the strength of
E additional judges. In 1979, Chief Justice of Delhi. High Court
even with 10 additional judges asked for two more without
any attempt at reviewing the strength of perman<:nt judges.
If permanent strength was reviewed from time to time the renewal of
. tenure of an additional judge twice or thrice could have been avoided.
· If an additional judge was appointed to deal with te!Jlporary increase
F in work and his term is renewed twice or thrice and the temporary
increase has become a permanent feature of the High Court, what
was needed was increase. in the permanent strength of the High
. Court. It is 1.mbecoming for a High Court judge to be on two years
tenure repeatedly. That is clearly contrary to what. was intended by
Article 224.
G

Ordinarily an additional judge save in rare cases was always
offered a permanent judgeship unless he himself wanted to opt. In
H order to curb and thwart an undesirable practice of a. person return-
ing to the Bar after adorning the Bench for a short-time, a system of
taking an undertaking from ari additional judge, that if offered he
S.P. GUPTA v. UNION (Desai, J.) 1047

A
will accept the permanent judgeship was commenced upon a note of
the former Chief Justice of India, Mr. Wanchoo, though the practice
does not appear to be universal. The tendency to return to the Bar
after adorning the Bench for some time was to be thwarted. The
undertaking was devised to meet this situation. This would however

·--
\
show that save in rare exceptional case, first appointment was as an
additional judge. An additional judge will have a fixed tenure and
can safely return to Bar with a perceptible added advantage because
B

it was felt that there was no other way except to offer first appoint-
ment as an additio.nal judge, and therefore a system of taking the
undertaking was devised. But again save in rare exceptional cases
an additional judge on the occurring of a vacancy in the permanent c
strength was always offerred a berth; From this invariable practice,
a firm belief, therefore, deveioped that an additional judge enters
upon office with almost an unwritten albeit incontrovertible assurance
to be appointed a permanent judge. Howsoever strong the belief
may be, it is not borne out by · the constitutional provision. After
all, the appointment was as an additional judge within the:; constra- D
ints and limitation of Article 224 and no canon of construction would
permit the court to treat the appointment as one under Article 217.
If therefore, the tenure was of two years, on the expiry of it the
appointment will have to be a fresh appointment and for making
such a fresh appointment, consµltation as ordained by Article 217 is
inescapable. Once the consultation starts, all pos.sible hazards in E
,. the process of consultation cannot be wished away and the appoint-
ment has to be afresh.

.. It w9uld be at this stage worthwhile to examine the submission
that constitutional convention and practice provide a reliable aid to
construction of constitutional provisions. It was also urged that in .F
interpreting a constitutional provision implications arising from the
constitution have to be borne in mind. The submission is that the
court should not dismiss the universal practice invariably followed for
a quarter of a century in the matter.of appointment of additional and
permanent judges of the High Court as a common error or common ·. G
undergtandin:g· qf the scope, content and ambit of Article 224, but the
Court must proceed on the basis that both the executive and the
judiciary who have a vital role to play in the matter of appointment
of additional and permanent judges of the High Court unambiguously
understood Article 224 to provide the only entry door for permanent H
judgeship and made recommendations leading to appointments on
the clearest and unquestionable understanding that once an additional ·
1048 SUPREME COURT REPORTS [1982] 2 s.c.R.
A judge is appointed in course of time when a vacancy arises in the
permanent strength he would become the permanent judge. In other
words, from the day of his entry he is more or less a permanent judge
and there was no question of examining his merits and demerits on
the expiration of each tenure during the period of his additional
judgeship leading in a given situation to his n01;i-appointment.
B

Constitutional interpretation has .been a fruitful subject of
discussion amongst judges, jurists and authors. Number of canons
have been devised for interpretation. Language being an imperfect
vehicle of translating thoughts and intend1Uents, when the legisla-
c ture finishes its task and produces a legislation in more general
terms, while applying its various provisions to cases and controver-
sies brought before the Court, a debate always ensues as. to what
was intended by the legislature in usinl;l a certain expression. 'A
word is not crystal, transparent and unchanged; it is the skin of
living thought and may vary greatly in colour and content according
D to the circumstances and the time in which it is used'.(1) Word when '
used in a certain context may mean a different thing than when used
in a different context and therefore, while construing particular
word or expressfon in a statute it is better to read the statute as a J
whole and ask oneself the question : 'Jn this state, in this context,
relating to this subject-matter, what is the true m1:aning of the
E
word'. If this is true of an Act of Parliament, it is equally true of
the fundamental law of the land, viz., the Constitution.

Aids to construction help in finding out the intendment of the
F provisions.- It is the duty of the Court to ascertain the intendment of
a provision which comes up for construction. What was the purpose
in enacting the provision and whether it was to meet or remedy a
-
certain situation or provide for a certain eventuality, :are all relevant
considerations in ascertaining the. intendrnent of the Constitution.
Ascertain the underlying purpose and give suc.h construction to the
provision as would effectuate the purpose. One such aid, it was
G urged; is the prevalent conventions and ccnstitutional practices.
Where a Constitution has wor.ked for a reasonably long time, con-
ventions which grow up relevant to the constitutional provisions or
the constitutional practice can be a torch-bearer in ascertaining
ff
(I) Holmes, J. in Towne v. Eigner, 2-45 U.S. 418 at 425.
(2) [1948] 2 All E. R. 995, 998.
S.P. GUPTA v. UNION (Desai, J.) 1049

the intendment of the provisiOns because over a period the provision A
has been so understood and worked that it can be safely said that
it was correctly and wisely understood and accurately applied.
, Coupled with this is the fact that implications which arise ·from the
structure of the Constitution itself or from the constitutional scheme
may be legitimately made. An implication was raised from the
federal character of the Australian Constitution in The Lord Mayor, B
Councillors and Citizens of the City of Melbourne v. The Common-
wealth & Anr.(1) wherein it was observed that the inten-
tion is to be plainly seen· in the very frame of the Constitution,
namely, the federal character of the Constitution. As a corollary
the provision contrary to the implications to be derived from the
federal character of the Australian Constitution was challenged as c
ultra vires in The State of Victoria v. The Commonwealth of
Australia,(2 ) wherein the State of Victoria had challenged the power
of Parliament of the Commonwealth requiring the State to pay pay-
roll tax upoq wages paid by it to its employees in certain depart-
ments claiming that the legislation was contrary to the implications
of the Australian Constitution. A question was raised in that case
D
as under·:

"Does the fact that the Constitution is federal carry with
it implications limiting the law-making powers of the E
Parliament of the Commonwealth with regard to the
States".

The question was answered in the affirmative both on principle
and authority.
F
Similarly, in Commercial Cable Co. v. Government of New·
foundland,(3) the Privy Council read a limitation on the prerogative
power of the Governor conferred by the Letters Patent imposed by
the constitutional practice of the colony. The Privy Council again
in British Coal Corporation & Ors. v. The King,( 4 ) after referring to G
its Constitution under the Act for the Better Administration of
Justice in His Majesty's Privy Council and further referring to the

(1) 74 Commonweatth Law Reports 31 at 70,
. (2). 122 Commonwealtd law Reports 353.
(3) [1916] 2 A.C. 610,
(4) (1935] A.C. 500.
1050 SUPREME COURT REPORTS [ 1982] 2 s.c.R.

A provisions set out in the Act for the conduct of appeals, observed
that the Judicial Committee as established by the Act after hearing
the appe~I could make a report or recommendation, to. His
Majesty in Council for his decision, the nature of .such report or
recommendation being always read out in the open court. Pro-
ceeding further it was held that even if the Judicial Committee of the
8 Privy Council is regarded as a judicial body or court, all it can do
is to report and recomn;end to His Majesty in Council by whom
alone the order in Council, which is made to give effect to the report
of the Committee, is made. Having determined the legal position
of the Judicial Committee, it was further held as under to which
specific reference was made ;
c
"But according to· constitutional convention it is un-
known· and unthinkable that His Majesty.in Council should
not give effect to the report of the Judicial Committee, who
are thus in truth an appellate Court of law, to which by
D the statute of 1833 all appeals within their purview are
referred".

Similarly, in Re. Alberta Legislation,(1) it was held that the
Parliament of Canada posse~ses authority to legislate for the protec-
J
tion of the right. of freedom of press. That authority, it was said,
E rests upon the principle that the·powers requisite for the protection
of the Constitution· itself arise by necessary implication fr_om the ·
British North America Act as a whole. A little further it was
observed that the provincial legislature is not entitled to interfere

-
with the working of parliamentary institutions of Canada as con-
templated by the provisions of British North America Act and the
F Statute of Dominion in Canada. Such limitation, it was neld, is
necessary in order to afford scope for the working of such parlia-
mentary institutions and in this region of constitutional practice it
is not permitted to a provincial legislature to do indirectly what
cannot be done directly. This decision was followed in Saumur v.
City of Quebec and Attorney General of Quebec .(2)
G
Jn the State of South Australia & Anr. v. The Commonwealth
and Anr.,(3) it was held that some implications arise from the struc-

H (0 (1938) 2 Dominion Law Reports 81 at p. 107.
(2) (1953r4 Dominion Law Reports 641 at 672.
(3) 65 Commonwealth La.w Reports 373;at 447.
\

S.P. GUPTA v. UNION (Desai, J.) 1051

ture of the Constitution itself, but it is· inevitable also that these
A
implications can only be defined by a gradual process of judicial
decision.

rn U.N.R. Rao v. Smt. Indira Gandhi,(1) a question was in terms
raised thaCthe Court should interpret Article 75 (3) according to
its own terms regardless of the conventions that prevailed in the B
United Kingdom. Rejecting this contention, this Court observed
as under:

"If the words of an article are clear, notwithstanding
any relevant convention, effect will no doubt be given to
the words. But it must be remembered that we are inter- c
preting a Constitution and not an Act of Parliament, a
Constitution which establishes a parliamentary system of
government with a Cabinet. In trying to understand one
may well keep in mind the conventions prevalent at the
time the Constitution was framed".
D
This would show that in arriving at the. true intendment of Article
75 the Court not only took assistance of the form of Government·
established in India by the Constitution but simultaneously referred
l to the conventions in the United Kingdom and other countries
having similar political system being adjuncts of parliamentary form
of Government. E

Implication but not the spirit arising from the Constitution
is another aid to construction. After referring to some of the
Canadian decisions, Sikri, C. J. pointed out in His Holiness
Keshavananda Bharti Sripadagalavaru v. State of Kera/a,( 2 ) that
some of the judges in Canada have implied that . freedom F
of speech ·and freedom of the Press cannot be abrogated by
Parliament or Provincial legislatures from the words in the Preamble
to the Canadian Constitution, i. e. "with a Constitution similar in
principle to that of the United Kingdom". Examining the submis-
sion in th1t case about implied and inherent limitations on the
amending power of Parliament, Shelat, J. recalled the statement that G
the rule is established beyond cavil that in construing the· Constitu-
tion of the United States, "what is. implied is as much a part of the
instru~ent as what is expressed"( 3) and after reviewin~ a large

(I) [1971] Suppl. S.C.R. 46 . ff
. (2) (1973] Suppl. S.C.R. 1 @ 152.
!J) American Jurisprudence (2q), Vol. 16, p. 25!,
1052 SUPREME COURt REPORTS [1982] 2 s.c.R.

A number of foreign decisions it was observed that the concept of
implications can be raised from the language and context of the
various provisions (seep. 258). At page 316, Hegde, J. observed
that implied limitations on the powers conferred ullider a statute
constitute a general feature of all statutes. The positiolll cannot be
different in the case of powers conferred under a Com>titution. A
B grant of power in general terms or even in absolute term's may be
qualified by other express provisions in the same enactment or may
be qualified by the implications of the context or even by considera-
tion arising out of what appears to be the general scheme of the
statute.

C In Chapter III, Sir Ivor Jennings in The Law and the· Cons-
titution, refers to the conventions of the Constitution. At p. 80, the
author observes as under : ·

" 'Political institutions', said John Stuart Mill, 'are the
work of men; owe their origin and their whole existence to
D human will. Man did not wake on a summer morning and
find .them sprung up. Neither do they resemble trees,
which, once planted, 'are aye growing', while: men 'are
sleeping'. In ~every stage of their existence they are made
what they are by voluntary human agency'. But men being J
E what they are, they tend to follow rules of their own devi-
sing; they develop habits in government as elsewht:re. And
when these men give place to others, the same practices
tend to be followed. Capacity for invention is limited, and
\ when an institution works well in one way it is dee'med
unnecessary to change it to see if it would work equally

-
F well in another. Indeed, people begin to think that the
practices ought to be followed. It was always so done in
the past, they say; why should it not be dom: so now ?
Thus within the frame work of the law there is room for
the development of rules of practice, rules which may be
followed as consistently as .the rules of law, and which
G determine the procedure ·which the men conct:rned with
government must follow".

Constitutional convention is broadly defined as rul,es of political
practice which are regarded as binding by those to whom they apply
H but which are not laws as they are not enforced by the Courts
(p. J 21). It may be an aid to construction but not positive rule of
Jaw! brea.ci:i of which is remediable by court action. It must, '!\ow-
S.P. GUPTA v. UNION (Desai, J.} 1053

ever, be remembered that the conventions grow around and upon A
the principles of a written constitution. The conventions generally
grow where the powers of the Government are vested in different
persons or bodies or where, in the words of Sir William Holds-
worth,(1) there is a mixed Constitution. But conventions do pre-
suppose the law and any convention contrary to the written context
is of no validi_ty. The conventions are built, in the first instance,
on the foundation of law but once they are established, they tend
to form the basis for the Jaw. It may, however, be noticed that
these rules of law which are conventions are a mere matter of
. practice and their effect must change with the changing circumstances
of national life. That apart, what is sought is not enforcement of
the convention in the court but its being invoked as an aid to 'C
construction of Article 224. Does it help in that behalf? W. A.

-- Wynes in Legislative, Executive and Judicial Powers in Australia,
p. 29 foot note 20, noticed that in the Commonwealth v. Colonial
Combing, etc. Co. Ltd.,(Z) Isaacs, J. drew attention to the duty of the
Judiciary to recognise and give effect to new positions and
circumstances in the national life. The conventions of the Constitu- 0
tion, he said, are not to be omitted from construction in its inter-
pretation.

1 Implications arising from the provisions of the Constitution,
constitutional conventions and constitutional practice all stand on a
different footing. A constitutional convention when spread over a E
long period, of immemorial antiquity, followed invariably becomes
·- . entrenched as a rule of law but any convention contrary to the
written provision is of no validity. Implications may arise from
· the context' in which a provision is placed or the use of the language
in the provision or from the nature of the power claimed vis-a-vis

- the whole constitutional scheme. That was how implied limitations
on the power of Parliament to amend the Constitution were spelt
out in Keshavananda Bharti's case. Constitutional practice may be
F

spelt out as a course of conduct over a rea-;onably long period
which may indicate how the authorities charged with a duty to
implement the constitution have worked out or implemented a
G
certain provision of the"Constitution.

To begin with as pointed out earlier, a constitutional conven·
tion must be founded on some provision of law. They provide 'the

(I) The Conventions of the 18th {:\lqtµry Consti\l!li91! 17 Lowa Law H
Review, p. 162.
{2) (1922) 31 CLR at pp. :438-439,
1054 SUPREME COURT REPORTS [1982] 2 S.C.ll.

A flesh which clothes the dry bones of the law, they make the legal
situation work, they keep in touch with the growth of ideas; a
constitution· does not work itself, it is worked by men. It is an
instrument of national co-operation and the spirit of co·operation
is as p.ecessary as the instrument. Conventions are ruks elaborated
for effecting that co-operation'.(1) As Oppen Heimer in the Cons-
B titution of the German Republic, p. 9, observes, that 'conventions
which have already begun to quite a considerable extent, not only
to supplement, but also to modify, if not actually supersede express
provisions' grow within a short time. It would thus distinctly
appear that any convention contrary to the provisioµ of the Cons-
titution and its basic intendment cannot be given i:ffect to as a
c convention. Its genesis must be in the provision itself.

If Art. 224 conferred power on the President to appoint
additional judge only in the specified situations s:et out in
the article and for a fixed limitec1 duration beyond which even the
President had no power to appoint, it cannot be said that because
D the way in which the article has been worked, a constitutional con-
vention has grown up that every additional judge right from the day
of his entry irrespective of his two years' tenure would be deemed to
be appointed as a permanent judge or would be entitled as a matter of
rigbt to a renewal of his tenure till a permanent vacancy occur~. Such
a construction of Article 224 would run counter to the plain intend-
E ment of the Constitution and no such convention can be spelt out as
would pro tanto amend Article ; 24. Nor any such implication can
be raised that an additional judge is deemed to be appointed as a
p.ermanent judge or he is entitled as of right to a renewal of his
tenure till a permanent berth is found for him.

Frankly, there is some force in the submission that a practice
has grown up for over last quarter of a century (I 956-81) that
whenever an additional judgeship is offered to a person, he accepts it
in the reasonable belief that in course of time he would get a berth
-
as a permanent judge. It may generate hope in him and his expec-
tations could be said to be well-founded and reasonable more so it is,
G save in rarest of rare cases, invariably done so far. At the minimal
./ most he is entitled to be first considered for a fresh tenure of two
years or when the permanent vacancy arises for appointment to that )

permanent vacancy before any rank outsider is considen:d given the
. situation that the prerequisites which necessitated his initial appoint-
H ment continue to exist.

0,) The Law and the Constitution br Sir lv9r Jeannings, p. St,
S.P. GUPTA v. UNION (Desai, J.) 1055

No cases were pointed out to us that where there were addi- A
tional judges in the High Court and a permanent vacancy occurred
someone was appointed who had not functioned as an additional
judge. An additional judge was usually offered permanent judgeship.
Maybe, there might be some rare cases in which some fortunate few
were directly appointed as permanent judges but no case was
brought to our notice where there were additional judges in a High
B
Court and a permanent vacancy occurred and overlooking the
claims of all additional judges either a member of the Bar or a
District Judge was directly appointed to that permanent vacancy.
Therefore, there is no gainsaying the fact that a practice was
followed for over 25 years that an additional judge was always first
considered and he was entitled to be considered for a fresh tenure if
c
there was no permanent vacancy and if there was a vacancy in the

-- permanent strength, for being appointed as a permanent judge.. A
contention of the learned Attorney-General to the contrary that he
has no priority, preference, weightage or right to be consi-
dered and that he is on par with any other man who can be brought
D
from the market would be subversive of the constitutional scheme
and must be rejected. An additional judge who has worked for the
period of his tenure has a weightage in his favour compared to a.
fresh appointee and any process of appointment while filling in a
vacancy must commence with the additional judge whose tenure has
come to an end and has led to the.vacancy. E

-- Two consequential limbs of the same submission may be dealt
with here. If Article 216 postulates fixing of a permanent strength
of the High Court and review of the strength at regular intervals and

- if Article 224 enables the President to appoint additional judges in
the two contingencies mentioned therein, would it be open to the
President to appoint an additional judge when there is a vacancy
in the permanent strength of the High Court. The constitutional
F

scheme is that ordinarily there should be permanent judges of the
High Court. Article 224 is an enabling provision conferring power
-00 the President. to appoint additional judges to meet a specific
:situation, namely, a temporary increase in the work of the High G
·Court or the arrears in the High Court. Ordinarily, therefore, the
•constitution envisages appointment of permanent judges. Perma-
nent judges are appointed to deal with the regular work of the
High Court and the strength is fixed keeping in view the institutions H
and disposals and minimum work-load which each judge is supposed
to hand,l~, When permanent stren?th gf the High Court is fixe(\
1056 SUPREME COURT REPORTS (1982] 2 S,C,R

A and there is a vacancy, it would mean that for the routine work of
the High Court the number of judges is inadequate and, therefore, it
is incumbent upon the President to fill in the vacancy unless it can be
made out that the workload in the High Court does not justify the
appointment. But if the permanent vacancy is not filled in and the
President proceeds to appoint an additional judge, which can only
B be done if there is a temporary increase in the work of the High
Court or if there are arrears, it would mean that the regular work
is not sufficient for the sanctioned strength of permanent judges and
vacancy may remain unfilled, an additional ·judge is necessary as if
temporary increase in the work of High Court or arrears cannot be
dealt with by permanent judges. Two situations cannot co-exist.
c Additional judges can be appointed when the permanent judges
while dealing wit~ the regular work of the High Court are
unable to. deal with such temporary increase in the work of the High
Court or clear the arrears. If the permanent strength is reduced
by not filling in a vacancy and it is considered not necessary to fill
-
in such vacancy it would only imply that not "only regular work of
D the High Court is being adequately handled but any other work in
the High Court can also be handled by the number of judges
• then · working in the High Court. in such a situation appoint·
ment of additional judge cannot be justified and in the absence of r.
pre·conditions set out in Article 224 the appointment of an addi-
tional judge would. be plainly outside the purview of Article 224 and
E
-·
contrary to the intendment of Article 224. Therefore, when a
permanent post is vacant an additional judge cannot be appointed.

But having said this, it must also be conceded that an addi·
tional judge even if appointed, could not be deemed to be a perma-
F nent judge. If the President appoints an additional judge and speci-
fies his tenure as two years in the warrant of appointment. it is not
open to the appointee to ignore the tenure and to expect ·the
-
appointment as being of a permanent judge. A reference in this
connection was invited to the ·waterside Workers' Federation of
Australia v. J. W. Alexander Ltd.( 1 ) Section 12 of the Common-
wealth Conciliation and Arbitration Act provided ,for the appoint-
G
ment of a President · The provision was to the effect that "the
President shall be appointed by the Governor-General from amongst
the Justices of the High Court. He shall be entitled to hold office
during good behaviour for seven years, ... " The Constitution pro·
H vided for tenure of High Co1,1rt Judgt)~ guring good behaviour and

(1) 25 CLR~434.
s. i>. GUPTA v. UNION (Desai, J.) 1057

they were not removeable except by the Governor- General in A
Council on address from both houses of Parliament praying for such
removal on specified grounds (see s. 72). The contention was that if
the President was to be Justice of the High Court and the tenure
was only for a period of seven years, this was contrary to section 72
of the Constitution and the appointment is invalid and that the
appointment being non-severable from the main Act, the whole Act . B
was invalid. The Chief Justice who presided over the Bench held
that the word 'appointed; is used in the sense of assignment and the
life tenure is not whittled down by making a specific appointment
for a certain period. I Views contrary to the view of the Chief Justice .
are also expressed but this decision hardly helps in resolving the
problem posed in this case.
c

-· If the President even by a misconception bf a situation, makes
an appointment specified in Article 224 limited for a duration of
two years, it is inconceivable that the appointee can ignore the tenure
and claim to be appointed as a permanent judge. Undoubtedly con-
sultation for the purposes of Article 224 and for appointing a D
permanent judge under Article 217 is of the same width and dimen-
sion and the constitutional functionaries involved in the process of
appointment are all the same, nonetheless power of the President to
appoint for a fixed duration in a given situation even if the situation
is shown not to exist, cannot be understood to mean that the Presi-
dent had some other power under some other Article and is deemed
E
to have acted under that Article. In such a situation it may. possibly
a·ppear that the initial appointment was bad. It was, however, urged
that while purporting to appoint an additional judge under Article
224, the clear and unmistakable intention was to appoint a perma-

- nent judge, this intention cannot be defeated by use of such words
as 'additional' and 'for two years'. The Court must give effect to
the intention. It was said that the judge was appointed not because
F

tliere was temporary increase in the work of the High Court or the
arrears therein but to deal with the cases in the High Court and in
~ .. such a situation the appointment has 10 be under Article 217. If it
is so, the judge would be dtiemed to be appointed a permanent judge
with the tenure prescribed in Article 217. The submission is that
the intention was to exercise power under Article 217 but by a mis-
taken understanding it was treated under Article 224 and the tenure
was, therefore, limited to two years but thi"s is done in disregard of
> the duty of the President under the Constitution, and the Court H
should not disregard the intention and must enforce the duty Specific
submission is that in a conflict between a qualified intention and an
toss SUPREME COURT REPORTS [1982) 2 s.c.R..
A obligatory duty, the Court would enforce the latter. Reliance was
placed on Shewpujan Rai v. Collector of Customs(1 ), wherein the
Collector of Customs ordered confiscation of gold and imposed ,
penalty of Rs. 10 lacs on payment of which gold was to be released.
Penalty was levied with two conditions and it was conceded that he
had no power to impose conditions. The question, was whether the
B whole order was void, or two impermissible conditions could be -~-

severed and order upheld. This Court he!d ·that the iimpermissible
conditions were severable and they were struck down and order was
upheld. In this connection, reliance was also placed on the decision
of Y. Mahaboob Sherif} and Others v. Mysore State Transport Autho-
rity and Ors.,(2) wherein the question was whether a permit granted
c for one year was according ,to law. Section -58(l)(a) read with sec-
tion 58(2) of the Motor Vehicles Act enabled the Authority to grant
permit for a period not t less than three years. It was urged that
order granting permit was bad being outside the provision. This
Court held that the intention to grant permit was manifest and
-
giving effect to the intention directed the Authority to issue a permit
D for a period not less than three years and not more than five years ..
as the Authority may specify. I fail to see how these would render
any assistance in this case. Here the President has specifically set
out in the warrant of appointment that the Judge is appointed as
'additional. judge' for 'a period of two years'. Even if the pre-
requisite for exercise of power was absent and, therefore, it was an
E impermissible exercise of power under Art. 224, there was no inten·
tion to appoint a permanent judge which this Court by a deeming
fiction can enforce. Doctrine of severability is not attracted. The
intention not shown to be to appoint permanent, as: two years'
tenure furnishes contrary indication the submission that Court must
F enforce it must be negatived.

I may then turn to the next submission incidental to the points
under discussion. It was said that if an additional judge bas to be
appointed.either for dealing with the temporary increase in the work
of the High Court or for tackling arrears in the High Court the
G constitution-makers believed that the situation has reached such a
stage that an additional judge if appointed for a period of two
years would be able to bring relief. It may be that the problem
may not be wholly solvt:d within the period of two years but the
reasonable expectation was that i} period of two years would pro-
H
(I) [1959] 2 SCR 821.
(2) (1960) 2 SCR 146.
s.i>. GUPTA v. UNION (besai, J.) 1059

vide adequate length of time to the additional judge to deal with A
-;-
the problem for. tackling which he is appointed. Therefore, Article
224 provides for a tenure not exceeding two years. By and large
save with very recent rare exceptions the appointment or"additional
judge in the first instance has always been for two years. And it
should be so, because no· one is unaware of the three dimensional
, _problem of arrears corroding the vitals of the justice delivery system B
. and presenting a formidable threat to it.· There is no short-cut and
there are no readymade solutions and the problem cannot be over-
night wished away. In fact, with sadness the agonising fact must
be confessed that no serious efforts have been made to tackle the
problem and whatever spasmodic or sporadic attempts have been
made have proved counter-productive. It was, therefore, assumed c
- that a period of reasonable duration such as two years would give
adequate opportunity to an additional judge appointed for a specific
task and the approach in appointment would be a result oriented
approach. If this was the underlying assumption in enacting Article
224, the appointment of short-term duration of six months or in the
two cases before us, of three months, is inconsistent with the intend-
D
ment of Article 224 ancl unbecoming of the dignity of a High Court
. Judge. Article 224 confers power on the President. It is
enacted for a specific purpose. There is an underlying purpose
while conferring such power on the President. To effectuate that
purpose not only a power of appointment is given but the President'' E
is authorised to make such an appointment for a period not exceed-
ing two years. If when making the appointment for an additional
judge it must be deemed to have been assumed that there is such
temporary increase in the work of.the High Court or there are such
arrears that it has become a compelling necessity to appoint addi-
" tional judges to deal with the situation, the appointment for such a F
ridiculously short duration of three months or six months appears
not only to be an exercise iii futility but is inconsistent with the
in tendment of Article 224. Appointment under Article 224 can
only be made as repeatedly pointed out, to meet the specific contin-
gencies. Such appointment cannot be made for the purpose of
making inquiry into the ~uitability, eligibility or fitness of the in- G
cumbent additional judge at the time of consideration of his appoint-
ment for a fresh term. In this behalf both the judiciary and the
executive are in the same bracket. In the case of Mr. S. N. Kumar
and Mr. O. N. Vohra, the Chief Justice of India recommended an
extension for a period of six months in order to gain time to make e·
inquiries in respect of complaints which appear to have been men-
io60 SUPREME CoURT REPORtS [19821 2 s.c.i.
A tioned by the Law Minister in the correspondence. This is utterly
impermissible. Chief Justice of India could not have recommended
extension of six months, not for dealing with temporary. increase nor
for tackling arrears, but for gaining time to complete his inquiry.
The Law Minister in bis turn presumably must have advised the
President to grant extension .for three months. Such short-term
B appointments are wholly inconsistent and contrary to the clear
intendment of Article 224 and unbecoming of the dignity of a High
Court Judge. I am not prepared to believe even on a hypothetical
case that in foreseeable future a situation may arise when an appoint-
ment of an additional judge is necessary for such ridiculously short-
term of three months or six months to dispose of temporary increase
c in work or to tackle arrears. If such a situation can be imagined,
better let that work be dealt with· by permanent judges rather than
appointing persons to such high constitutional office for a ridicul-
ously short period.

To put the position beyond the pale of controversy, it must be
D emphasised, even at the cost of repetition, that whenever the t::nure
of an additional judge is about to expire, sufficiently in advance the
process of consultation for considering his case for appointment as
envisaged by Article 217 must start and it must proceed along the
hitherto chalked out lines. It bas to be completed sufficiently in
advance before the tenure is to expire and a decision has to be taken.
E If the incumbent of the office is considered suitable for a fresh
tenure, keeping in view the only two relevant considerations, namely,
the existence of the temporary increase in the work of the Court
or the continued existence of the arrears for resolving or tackling
which the judge was appointed, his fresh tenure should be fixed.
If on objective consideration it appears that the situation is not
F
likely to improve even within a period of two years, normally the
fresh tenure should be of two years unless a contrary legitimate
~·decision verifiable on• 0bjective facts is reached that the problem can
be resolved within a short ~riod which should in no case be less
than one year. One cannot appoint the lowest grade servants on
such a short term duration of six months or three montns. It vio-
G
lently hurts the dignity of a Judge of a High Court to be appointed
for a period of six months or three months and that during this
period he is not supposed to clear the arrears. to deal with which be
was appointed but during the.period of three months either the
executive or the Chief Justice of India will be holding their inquisi-
H tions to consider his future suitability; a decision which these two
high constitutional functionaries could not reach within a period of
!.~. OUPTA v. UNION (Desai, J'.) 1061

two .years for which initially the additional judge was appointed. A
We emphatically declare that short-term extensions of three months
or six months are beyond the intendment of Article 224. Ordinarily,
- as herein indicated the fresh tenure 'must b.e for two years subject
to the overriding consideration that if an honest and legitimate
opinion ·can be formed by all the constitutional· functionaries that
the temporary increase in the ·High Court or the . arrears to tackle
which the additional judge was appointed could be resolved to.the
satisfaction of all within a period of say one year, the duration can
he of one year, b!!t not less than that. in any case. ·
~··.
. :iL
In passing it was briefly stated that there can be a short-term
appointment when in a near future . a vacancy in the permanent
c
cadre of the High Court is likely to occur. • That approach is hardly
relevant because even if the additional judge is appointed, say for a
period of one year, and a vac~ncy · occurs 'within three months of
his appointment, there is no bar in law in offering him the perma-
nent appointment and if the workload still justifies, 'to appoint some- ' D
one else as an ·additional judge. ·
. . .
· The stage is now reached where it 'would be appropriate to
deal with the scope a~.· content. of. consultation ·as envisaged. by
Article 217. It may be reca !led .that . Article 222 also provides for
consultation with the Chief Justice of India when the President E
proposes . to transfer a judge of. a. High Court to another High
Court. The question posed is. whether. consu !talion as envisaged
.by Article 217 and, the. consultation envisaged by Article 222 is
the same or · there is some. marked divergence in ii. Mr. Seervai
in terms said that scope and ambit of consultation with constitutional
F
functionaries both under :Article .. 217(1) and Article 222(1) is the
same only content may differ because the. purpose of consultation
. under both the articles is different, to wit, under. A~ticle. 217, con·
sultation is to be had for appointment as High Court Judge while
'under Article 222(1) consultation is rfor the purpose of transfer of a
High Court judge from one High Court to another High Court. G
There are a number of articles in the. Constitution .which provides
for consultation with different authoriiies. Article 124(2) provide
for appointment of a judge of. the Supreme Court by the President
after consultation with the Judge of the Su.preme Court and· of the
High ·courts in States as the. President may. deem necessary and the • H
proviso to Article 124(2) makes it obligatory on the· President to
consult the Chief Justice oi'India ill case of appointment of a Judge·.·

•
ici62 SUPRllMB CoURT REPORTS f1982J 1 s.c.il..
A othtr than the Chief. Justice of India. The .marginal note of Article
143 which confers advisory jurisdiction on the Supreme Court speci-
fies the power of the President to consult Supreme Court. Article
217 provides for consultation with the Chief Justice _of the High
_ . · Court, Chief Justice of India and the Governor of the State while
making appointment of· a Judge of the High Court; Article 222
B
provides for consultation· with the Chief Justice of India before
transfer.ring .a Judge of the High Court to any other High Court.
Article 233 provides for appointment of the District Judges by the
Governor of the State in consultation with the High Court. Article
234 provides for recruitment of persons other than District Judges
to the judicial service in accordance with the rules made by the
c Governor in that behalf after consultation with the State Public
.Service Commission an'd with the High Court exercising jurisdiction
in relation to the State. Article 320(3} makes consultation obliga-
tory with the Union Public Service Commission or State Public
Service Commissions, in respect of inatters specified in the article.
D The word 'consultation' has thus been used in different contexts and
different 'authorities are required t~ be consulted for different pur-
poses before exercise of· certain power. Obviously, therefore, the
scope and content of consultation may vary from situation to situa-
tion. The word 'consult' has been defined to mean •fu discuss some-
thing together, to deliberate', deliberation being the quinte(sence of
E consultation .. The word 'consult' would ·ta!ce its colour and its con-
tent and scope will depend upon .the context in which it is used. If
the consultati'on is for appointment all those relevant considerations
. which enter the verdict before an appointment is made would be the
subject matter of consultation. If the consultation is for transfer- .
of a High Court Judge under Article 222(!} the word 'consultation'
F would mean examination of all those relevant aspects to be presently
mentioned including the consequences ·of transfer. Chandrachud, J.
affirmed the observatfon in Chandramouleshwar Prasad v. Patna High
Court & Ors.,(') on what constitutes consultation within the meaning
of Article 233(1}. It reads as unde~:. ·
•
G "Consultation or deliberation is not complete or effec-
tive before the parties thereto make their respective points
•of view known to the other or others and discuss and exa·
mine the relative merits of their ·views. If one party makes
a proposal-to th~ other who has. a counter proposal in his
. mind which is not communicated to _the propo_ser the

(I) [1970} 2 SCR 666:
..
•
S.P. GUPTA v. UNiqN (Desai, J.) 1063
direction to give effect to the counter proposal without any-
A
thing more cannot be said to have been issued after con-
sultation".

The observation provides the content and ambit of the process of
consultation. Though this ·observation has been made in the con-
B
text of Article 23 3( I) but it is accepted as applicable to consultation
in Article 222( I) and in my opinion it is good law even for Article
217(1). At another stage it was observed that 'deliberation is the
quintessence of consultation'. That implies that each individual case
must be comidered separately on the basis of its own facts. Iyer, J.
in bis concurring opinion in Mr. Sheth's case, recalling the observa- c
--
tion in Chandramouleshwar Prasad's case extracted hereinbefore,
observed that consultation in order to fulfil its normative function
must be real, substantial and effective consultation based on full and
proper materials placed before the constitutional functionaries. In
the context of consultation@for transfer be examined various facets
on which consultation must be focussed and concluded that the D
Government must forward every possible material to the Chief
Justice of India so that he is in a position to give an effective opinion.
Maybe, the opinion of the Chief Justice of India may not be binding
on the Government, but it is entitled to great weight and is nor-
mally to be accepted by the Government in order to avoid the charge
that the power is exercised whimsically or arbitrarily. These obser- E
vations on the scope and content of consultation in the context of
Article 222 would mutatis mutandis apply to the scope and ambit of
consultation in Article 217. To recall the words of Justice K. Subba

.. Rao ask them was in R. Pushpam & Anr. v. State of Madra1,(1) the
word 'consult' implies a conference of two or more persons or an
impact of two or more minds in respect of a topic in order to enable
F
them to evolve a correct, or at least, a satisfactory solution·, would
provide a rational, legal and constitutional yardstick to measure and
ascertain the scope and content of consultation as contemplated in
Article 217( I). It must 'not be forgotten that the consultation is
with reference to the subject-matter of consultation, and therefore, G
the relevant facets of the subject-matter must be examined, evalu-
ated and opined upon to complete the process of consultation.

Reverting to Article 217(1 ), the consultation is for the. purpose
of appointment of a judge of High Court. The constitutional func- H
(1) AIR 1953 Madras 392.

•
1064 SUPREME COURT REPORTS (1982] 2 S.C.R.

A tionaries to be consulted are the Chief Justice of the High Court,
Governor of the State and Chief Justice of India. Attention must
first be focussed on what are the relevant considerations apart from
the qualifications prescribed in the Constitution while making a pro-
posal for appointment of a High Court Judge. The questions, one
would pose to oneself are : (i) does ·he satisfy the qualifications
B prescribed in Article 217(2); (ii) whether he is of sufficiently mature
age which is generally considered a good guide for a sombre app-
roach in a Jaw court; (iii) is he of unimpeachable integrity; (iv) has
he a spotless character; (v) is he a man of reliable habits; (vi) what
is his equipment in.law; (vii) does he subscribe to the social philo-
sophy and values enshrined in the Constitution; (viii) does he suffer \
C· from any insurmountable aberrations; (i,X) does he disclose a capa-

-
city to persuade and be persuaded; (x) would he have a team spirit;
(xi) has he a quick grasp, a .smart intellect and a compassionate
heart. These are only illustrative and not exhaustive. As pointed
out earlier, the Chief Justice of the High Court who would ordi-
narily and generally speaking be the initiator of the proposal would
D evaluate the candidate in his mind froni all these angles and set out
his opinion in the proposal formulated by him.. The State executive
will focuss on the aspects other than his legal acumen and equip-
ment, his grasp, his ability to deal with complex legal problems
being brought before him, because in that behalf the Chief Justice
is more advantageously placed. Undoubtedly, on character and
E integrity with the resources at the command of the State it could
express its opinion. If it has some other opinion which runs counter
and contrary to what the, Chief Justice of the High Court has stated,
it must inform the Chief Justice of the High Court of whatever is in

F
its possession and permit the Chief Justice of the High Court to
react. After this two-way discussion has followed, the. proposal
may be sent to the Union Minister of Justice who in turn must pass
it on to the Chief Justice of India. The Chief Justice of India, free
-
from local, parochial, regional, caste considerations prevailing at
the State level would in meticulous detail examine all aspects of the
matter. If he has reliable sources for collecting further information
G it would be open to him to do so. If he collects something which
appears to be. not known either to the Chief Justice of the High
Court or the State executive, he may set out the same and refer the
proposal back for the consideration of the aforementioned two
authorities. After this exhaustive discussion not expected to be
H the oral or telephonic discussion or personal discussion-if there is a
meeting of the minds on relevant aspects of the matter with possible
S.P. tlUPTA v. UNION (l>esai, J.) 1065

differences of opinion, the same has to be dealt with by the Minister A
of Justice who may in turn give his advice, not examinable by the
Court, to the President. The consultation has to be meaningful,
purposeful, result oriented and of substance. Much water has flown
below the bridges when initially it was said that when a duty is cast
to consult the authority, one who has to consult, has to inform of
its proposal to the authority to be consulted and wait for some time B
for reply and forget the whole thing. After the decision in Mr.
Sheth' s case it is now the law of the land that wherever the President
can exercise power in consultation with the Chief Justice of India
or oth ~r constitutional functionaries, the consultation has to be on
all relevant aspects which would eater the final verdict. All the
parties involved in the process of consultation must put all the c
material at its command relevant to the subject under discussion
-- before all other authorities tv be consulted. Nothing cao be kept
back. Nothing can be withheld. Nothing can be left for the eye
of any particular constitutional functionary. To recall the words
of Justice Iyer io Mr; Sheth' s case at p. 506, all necessary facts in
D
support of the proposed action of transfer must be communicated to
him aod all his doubts aad queries m'JSt be ad~quately atuwered by
the Government. The President has, however, a right as rightly
conceded by Mr. Seervai upon consideration of all relevant facts
to differ from the other constitutional functionaries for cogent
reasons and take a contrary vie\\'.. Chandrachud, J. in his judgment
E
stated as under : ·

"Article 222(1) which requires the President to consult
the Chief Justice of India is founded on the principle that

. in a matter which concerns the judiciary vitally, no decision
ought to be taken by the executive .without obtaining the
views of the Chief Justice of India who, by training and
F
experience, is in the best position to consider the situation
fairly, competently and objectively. ~ut there can be no
purposeful consideration of a matter, in the absence of
facts and circumstances on the basis of which alone the
nature of the problem involved can be appreciated and the ,.,
'-J
right decision taken. It must, therefore, follow chat while
consulting the .Chief.Justice, the President must make the
relevant data available to him on the basis of which he
can offer to the President the benefit of his considered
opinion. If the facts necessary to arrive at a proper con- H
plusion ar~ pot made avail\\l?!e.i to the Chief Justice, he
1066 SUPREME COURT REPORTS [1982] 2 s.c.R.
•
A must ask for them because, in casting on the President, the
obligation to consult the Chier Justice, the Constitution at
the same time must be taken to have imposed a duty on
the Chief Justice to express his opinion on nothing less
than a full consideration of the matter on which he is
entitled to be consulted. The fulfilment by the President of
B his constitutional obligation to place full facts before the
Chief Justice and the performance by the latter, of the duty
· to elicit facts which are necessary to arrive at a proper
conclusion are parts of the same process and are comple-
mentary to each other. The faithful observance of these
may well earn a handsome dividend useful to the adminis-
c tration of justice. Consultation within the meaning of
Article 222(1), therefore, means full and effective, not formal
or unproductive consultation".

So far there is no controversy.
--
D The learned Attorney-General, however, contended that the
consultation is obligatory when the Pres!dent proceeds to exercise
his power of appointment but in the case of non-appointment
consultation is not obligatory. There is an apparent fallacy in this
submission. This argument proceeds on the erroneous assumption
that there is something like a process of appointment and a distinct
E and independent process of non-appointment. Can one start a
process of non-appointment either in case of a fresh appointee or
in case of a fresh tenure of an additional judge who bas already
served as High Court judge for the period for which he is appointed
by the President under Article 224 ? What has ·to start is a process

F
of appointment. The Chief Justice, when there is a clear vacancy,
has to initiate the proposal for appointment. He may think of
selecting someone from the Bar or from the subordinate judiciary.
But what he initiates is a proposal for appointment. It is unthink-
-
able that the Chief Justice of High Court would start a proposal
for non-appointment for the first time. Such a situation is possible
in case of an additional judge, an aspect to be presently examined.
G But save such a situation what happens is that the Chief Justice of
the High Coiltt thinks of certain names and ultimately reaches his
own decision and initiates his proposal for · appointment. This is a
process of appointment. The. proposal is forwarded to the State
executive as consultation with the Governor is obligatory. Assuming
H
the Governor does not agree, is it that the further examination of
the proposal must come to an end ? That is not the constitutional
s P. GUPTA v. UNION (Desai, J.) 1061

scheme. The Governor may disagree or set out his valid reasons A
for disagreeing with the proposal of the Chief Justice but he cannot
put an embargo on further examination of the proposal by the other
constitutional functionaries. If the view advanced by Attorney-
General that once of the constitutional functionaries does not assent
to the proposal the proposal falls there and cannot be further
examined is accepted, it would be putting the power of veto on a B
constitutional functionary only entitled tl'> be consulted. On a true
interpretation of Article 217, the proposal must move further. It
must reach the Chief Justice of India and the Minister of Justice.
There might be differences of opinion as they have surfaced in the
case of Mr. S. N. Kumar and Mr. o. N. Vohra. That is inevitable
when four constitutional functionaries are involved in the decision c
making process. Ultimately the President may. not accept the pro-

- posal and drop the proposal resulting in non-appointment. The
non-appointment is the end product of a process of appointment.
There is nothing like an independent process of non.-appointment.

D
This aspect becomes vital in the case of additional judge.
When initial term for which the additional judge was appointed is
about to expire, if one can legitimately think of a process of non-
l appointment, the Chief Justice of the High Court may sit silent till
the last day and the judge walks out.' Does he have a veto sub-
si/entio over other constitutional functionaries ? The answer is an E
emphatic no. If must be the obligatory duty of the Chief Justice
to initiate the proposal. Maybe, his initiation of the proposal may
start with a recommendation that he is not in favour of a fresh term
for the concerned additional judge. He is entitled to express his
opinion. Proposal has, however, to be proceeded further and must
be sent to the Governor of the State who with his own opinion F
endorsed in the proceeding should forward the same to the Minister
of Justice and who in turn must send it to the Chief Justice of India.
No constitutional functionary merely entitled to be consulted has a
right to kill the proposal on his own. When there ~re differences of
opinion qua a person amongst the three constitutional functionaries
entitled to be consulted, it is inevitable in the very scheme of things G
that the President will have to choose keeping in view the fundamental
assumption underlying this complex scheme that the best must be
appointed and the doubtful must be eliminated. Therefore, there is
nothing like a process of non-app9jntrqeqt ill respect of which
(:On.sultation ~~n pe ~~9~e\Ved'. · ·
1068 SUPREME COURT REPORTS [ 1982] 2 s.c.R

How far the provision contained in Article 124 would be helpful
in ascertaining the scope of consultation in Article 217 as also the
contention about primacy of the opinion of the Chief Justice of
India and the response to the argument on behalf of the respondents
that the three constitutional functionaries to be consulted are
coordinate authorities. In fact, reference to Articles 124 and
B 126 ill only incidental because the construction of these two
articles did not figure directly in the contentions canvassed in these
cases. Attention was drawn to them to point out that there are
situations envisaged by the framers of the Constitution where the
President, the highest executive in the country, may proceed to
appoint Chief Justice of India, the highest at the apex cif the judicial
c hierarchy, without consultation with any functionary in the judicial
branch of the State. Article 124 provides for establishment and

--
constitution of Supreme Court. Sub-article (2) provides that every
judge of the Supreme Court shall be appointed· by the President by
warrant under his hand and seal after consultation with such of the
judges of the Supreme Court and of the High Courts in the States as
0 the President may deem necessary for the purpose and shall hold
. office until he attains the age of sixty-five years. There is a proviso
which is material. It reads as under :

"Provided that in the case of appointment of a judge J
E other than the Chief Justice, the Chief Justice of India ·
shall always be consulted."

Sub-Article (2) of Article 124 which provides for appointment of
every judge of the Supreme Court will comprehend appointment
of Chief Justice of India also. Incidentally it was also pointed out

-
that upon a superficial view of Article 124, Chief Justice of India
F
may be appointed by the President without consultation with any
functionary in the judical branch. Article 126 caters to a situation
where an Acting Chief Justice of India is required to be appointed.
It provides that when the office of the Chief Justice of India is
vacant or when ·the Chief Justice is, by reawn of absence or other-
G wise, 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 purpose.

Now, power is conferred on the President to make appointment
H of judge of Supreme Court after consultation with such of the judges
of the Supreme Court and of the High Courts in the States as the
President may deem necessary. The submission is that the expres-.
S.P. GUPTA v. UNION (Desai, J.) 1069

A
sion 'may deem necessary' qualifies the expression 'consultation' and
that if he deems 'otherwise the President can proceed to make
appointment of the-Chief Justice of India without consultation with
any of the judges of the Supreme Court and.of the High Courts. In
oth<:r words, it was submitted on behalf of the respondents, the
President has a discretion to consult or not to consult judges of ~he
Supreme Court and High Courts before making appointment of
B
Chief Justice of India. It was pointed out. that where consultation
is obligatory it is specifically provided and reference was made to the
proviso extracted hereinabove wherein it is stated that it would be
obligatory upon the President to consult the Chief Justice of In.dia
before making appointment of a judge of the Supreme Court other
than the Chief Justice of India. Undoubtedly, the proviso leaves
no option to the President but to consult the Chief Justice of India
while making appointment of a judge of the Supreme Court other,
than the Chief Justice of India, but it is· rather difficult to accept the
construction as suggested on behalf of the respondents .that in
making appointment of the Chief Justice of India the President is at D
large and may not consult any functionary in the judicial branch of
·the State before rr aking appointment of Chief Justice of India. The
expression 'may deem necessary' qualifies the number of judges of
the Supreme Court and High Courts to be consulted. What is
optional is selection' of number of judges to be consulted and not
the consultation because the expression 'shall .be appointed after E
·consultation' would mandate consultation. ·An extreme submission
that the President may consult High Court judges for appointment
of the Chief Justice of India omitting altogether Supreme Court
judges does not commend to us, because the consultation· with such
of the judges of the Supreme Court and of the High Courts would
clearly indicate that the consultation has to be with some judges of F
the Supreme Court and some judges of the High Courts. The
conjunction 'and' is clearly indicative of (be intendment of the
framers of the Constitution. If there was disjunctive 'or' between
Supreme Court and High Courts in. sub-article (2) of Article 124
there could have been some force in the submission that' the
President may appoint Chief Justice of India ignoring the Supreme G
Court and after consulting some High Court judges. Undoubtedly,
sub-article (2) does not cast an obligation t0 consult all judges of
the Supreme Court and all judges of the .High Courts but in practical
working the President in order to discharge his function of selecting
the best suitable person to be the Chief Justice of India must choose H
1070 SUPREME COURT REPORTS [I 982] 2 S.C.R

A such fair sprinkling of Supreme Court and High Court judgts as
would enable him together enough and relevant material which
would help him in decision making process. Mr. Seervai submitteJ
that this Court must avoid such construction of Article 124 which
would enable the President to appoint Chief Justice of India without
consultation with any judicial functionaries. That is certainly
B
correct. But then he proceeded to suggest a construction where, by
a constitutional convention, any necessity of consultation would be
obviated and yet the executive power to be choosy and selective in
appointment of Chief Justice of India can be controlled or thwarted.
He said that a constitutional convention must be read that the
c seniormost amqngst the puisne judges of the Supreme Court should
as a rule be appointed as Chief Justice of India except when he is
physically unfit to shoulder the responsibilities. This constitutional
convention, it was said, when read in Article I 24(2) would obviate
any necessity of consultation with any functionary in the judicial
branch before making appointment of Chief Justice of India and yet
D would so circumscribe the power of the President as not to enable
the executive to choose a person of its bend_ and thinking. In this
very context is was pointed out that Article I 26 permits the President -
to appoint even the junior-most judge of the Supreme Court to be
an Acting Chief Justice of India and it was said that such an
approach or such construction of Article 126 would be subversive
E oft he independence of judiciary. It was said that if the junior-most
can be appointed Acting Chief justice of India, every judge in order
to curry favour would decide in favour of eKecutive. And as far as
Article I 24 is concerned it was said that if the conventioR of seniority
is not read in Article 124(2), every judge of the Supreme Court
would be a possible candidate for the office of Chief Justice of India
F and on account of personal bias would be disqualified from being
consulted. There is no warrant for such an extreme position and
the reflection on the judges of the Supreme Court is equally unwar- .
-
ranted. On the construction as indicated above there will be positive
limitation on the power of the President while making appointment
of Chief Justice of India and it is not necessary to read any limitation
G on the power of the President under Article 126 while making
appointment of a judge of the Supreme Court as Acting Chief
Justice of India. But the observation is incidental to the submission
and may be examined in an appropriate case. And the question of
construction is kept open.
H
s.P. GUPTA v. UNIO~ (Desai, J.) 1071

If it is held that an additional judge before he is not appointed A
for a fresh term on the expiry of bis initial term of ap~ointment has
a weightage in that he has a right to be considered before he is drop-
ped and that this consideration must proceed along the line of con-
sultation under Article 217 with three constitutional functionaries .md
if in the ultimate analysis he is not appointed without completing the
· process of consultation, is the decision open to judicial review ?
B
Simultaneously, the question would be whether in the case of a first
appointment from the Bar when the 1 Chief Justice may proceed to
cast his glance on the Bar for selecting the best person and initiate
the proposal for appointment of a particular person which gets stuck
up or dropped before completing the process of consultation. is such
a decision subject to judicial review ? Is the Court in a position to
c
grant any relief? There is no doubt in my mind on one point that
whenever a proposal for appointment i~ initiated by any of tl1e COflS·
titutional functionaries before it can be killed at any stage the pro-
cess of consultation must go through in its entirety. When I say that
the process of consultation must go through in its entirety I mean D
that the initiator of the proposal must forward the proposal to other
constitutional functionaries according to the channel and the proposal
must reach ultimately the President. It is not open to any pf the
constitutional functionaries entitled to be consulted. to sit tight over
the proposal without expressing opinion on the merits of the propJ-
sal and by sheer inaction kill the proposal. Viewed from this angle E
when a term of additional judge is about to expire it m!lst b~ d~emd
obligatory on the Chief Justice of the H•gh Court in which the alJi-
tional judge is functioning to initiate the proposal very much in time
for completing the process of consultation through various stages
before the period of initial appointment expires. Maybe, that the

- Chief Justice is not willing to recommend him fo( his own reasons.
He may say so and forward his own view through the appropriate
channel of communication for consultation. The Chief Justice of tl:ie
F

High Court has no veto by sheer inaction to deal with tile fate of
an additional judge. That is not the role assigned to him and he
cannot arrogate the same to himself by his own inactioil. It mw b'
that in case of a fresh appointment the Chief Justic~ may nit initiate G
· the proposal at all be<'.ause he may not be inclined to fill i 1 th~ vac1-
ncy. But it is equally possible that in such a situation any other
f
constitutional functionary entitled to be consulted in the matter of
appointment of a judge of the High Court can iniaite the prnpJs:d
and the proposal must move along and reach each c.Jnstit·itional H
1072 SUPRBMB COURT REPORTS ( 1982) 2 S.C.R.

A functionary entitled to be consultrd ultimately culminating in the
proposal reaching the President with all the collected material in the
process of consultation. So far there is no . controversy. The. ques-
tion is, if in case of an additional judge in whose favour there is
a weightage and he is entitled to be considered as held above, a pro-
posal is killed or an affirmative decision is reached not to appoint
B him without completing the process of consultation in its letter and
spirit, would the additional judge be entitled to question the validity
of the decision and would the decision be subject to judicial review.
The answer is in the affir~ative. This right to question tl:ie decision
and the power in the Court to grant relief whatever may be the form
in which the relief may be moulded, flows directly from the ·right of
c the additional judge to be considered for being appointed for a fresh
term or as a permanent judge. Right to be considered for a further
term or as permanent judge necessitates full and effeptive consulta-
tion. Any .drawback, defect or deficiency in the process of consulta-
tion may invalidate the decision. Such invalid decision when ques-
--
tioned, the court may not be able to direct appointment, but the
D court can certainly give a direction to complete the process of consul-
tation which may lead to a different result because the assumption is
that high constitutional functionaries involved in the p·rocess of con·
sultati'on will act bona fide and in the highest tradition of fair adminis-
tration. If the decision is shown to be based on extraneous or
J
irrelevant considerati~ns or malafide such' executive decision is always
E
open to judicial review. I need not affirm this well-established pro-
position by precedents. The case of a seniormost District judge may
be on par with the additional judge. But the same cannot be said
for a fresh appointee. He was not entitled to be appointed. He had

-
no right to the post. When a person is being selected from the Bar,
F even if a proposal is initiated and is killed without completing the
process of consultation there being ·no right in such person to the
post or he is not entitled as a matter of right to be. appointed, the
decision not to appoint him will not be a subject-matter of judicial
review, because it is not possible to grant him any relief.

G
Having examined the true'meaning and effect of the relevant
articles of the Constitution and keeping in view what is discussed
hereinabove, it is now time to turn to the two petitions, one filed by
the four Bombay Advocates brought before this Court in Transferred
H Case No. 22/81 and the second filed by Shri V. M. Tarkunde in the
High Court of Delhi and brought before this Court in Transferred
S.P. GUPTA v. UNION (Desai, J.) 1073

' 20/81. These two cases specifically challenge the constitu-
Case No. A
tional validity of the circular dated March 18, 1981, sent by the Law
Minister, Government of India, to the Governor of Punjab and the
Chief Ministers of all States in India, and secondly granting of short-
term extension to three judges of Delhi High Court, Sarvashri O. N.
Vohra, S. N. Kumar and S. B. Wad, and subsequently not appoint-
B
ing Shri 0. N. Vohra and Shri S. N. -Kumar by not granting them a
fresh tenure of High Court judgeship.

Law Minister appears to have stirred up the hornet's nest by
the impugned circular dated March 18, 1981.. This circular in its
preamble recites that repeated' suggestions have been made to the c
Government by several bodies and forums including the States Reor-

-- ganisation· Commission, the Law Commission and various Bar Asso-
ciations that to further national integration and to combat narrow
parochial tendencies bred by caste, kinship and other local links and
affiliations, one third of the judges of a High Court should as far as
possible be from outside the State -in which the High Court is situa- D
ted. With a view to taking first step towards this goal the circular was
issued. The circular desired the Chief Minister of each State and the
Governor of Punjab to obtain from all the additional judges working
in the High Court of the. State their consent to be appointed as per-
manent judges in any other High Court in the country. An oppor-
tunity was given to. such judges to riame three preferences in which E
each of them would like _to be appointed as permanent judge. A
further request was that whenever in future a proposal is made for
initial appointment as a High Court judge· is must be accompanied
by the consent of the person so recommended to be appointed to any
other High Court in the country coupled with the preference limited
to three. It was made abundantly clear that uption to give preferen-
ces does not imply on the part of the Government a commitment
either to appoint the person concerned or to appoint him necessarily
at anyone of the three preferences. A copy of the letter was also
sent to the Chief Justice of each High Court. Constitutional validity
of this circular is questioned in the petition filed by Shri Iqbal M •. G
Chagla and Others. The submission is fiat with a view to circum-
venting the rat.io in the majority judgment in Mr. Sheth's case this is
a covert attempt at transferring judges under coerced consent. The
web of the argument was woven around the alleged covert attempt
by the circular to transfer each Additional judge to a High Court H
other than the High Court in which he is functioning. The circular
1074 SUPREME COURT REPORTS [l 982) 2 S.C.R·

A was read and re-read before the Court. Having examined it with
microscopic meticulousness I find it impossible to read any overt or
covert attempt at transferring judges from one High Court to other
High Court by this Circular. There is 'not even a whisper of transfer
in the circular. But in this connection our attention was invited to
the statement made by Law JV, inister in connection with calling atten-
B
tion motion on the impugned circular in Lok Sabha on April 16,
1981. In course of the discussion Law Minister appears to have
. stated that if there is a complaint against an additional judge, 'it has
to be examined on merit and a decision taken. The decision could
be eirher to drop a person based on evidence or to see if he could be
0 transferred.(1) At a later stage it would be made abundantly clear
that transfer power conferred by Article 222 cannot be exercised by
the executive to punish a judge because of complaints against him
which may on enquiry be found to be of substance. But that is
another aspect. Circular is not devised as a weapon of mass transfer
--
outside the Constitution. But use of word 'transfer' in the discus- •
D sion cannot be read torn out of context. A little later at column 273
Law Minister states that Chief Justice of India inquired whether it
was the intention of the Government to transfer each and every judge
and this showed that Chief Justice of India was labouring under a
mistaken impression that circular was devis~d for mass transfer but
Law Minister explained to him that it is not a case of transfer at all
E but it is a case of fresh appointment and it is not the intention 'to
appoint every additional judge outside.' The later part of the state-
ment has raised another crop of controversy to be presently dealt
with but there is no whisper of transfer in the circular. As has been
pointed out earlier, an additional judge has a J!laximum tenure of
two years. At the end of two years he gets a fresh appointment
F either as a permanent judge or an additional judge for a further
period of two years. The consent for fresh appointment is a must. It
is open to an additional judge whose tenure comes to an and to dec-
line the fresh appointment at least in the High Courts where under-
taking is not taken to accept permanent appointment, if offered. If
. he' is, therefore, to be appointed again, necessarily it can be done
G with l is consent. The consent to be obtained i& of additional judge.
Additional judge is now being told that it is possible that he may, be
appointed in some other High Court, and that therefore, while giving
consent for being appointed for a fresh term or as permanent judge

H I
. (l) Lok Sabha Debates Fifth Series, Vol. XVI, No. 42, Column 27 I.

I
S.P." GUPTA v. UNION (Desai, J.) 1075

he is informed that he may be appointed in some other High Court
A
and that he may give his consent with the knowledge of it. The fresh
appointment is not a transfer. In fact, in the course of this judgment
it will be succinctly thrashed out that a judge who is transferred
cannot be said to be appointed afresh to the High Court to which he
is transferred. Once it is held that the circular was not a covert way
B
of transferring a judge because transfer was not even on the distant
horizon, the whole edifice of argument built over the decision in Mr'.
Sheth's case tumbles down. To be specific, a fresh appointment
cannot be bracketed with a transfer more so when the submission
that transfer i_mplies fresh appointment has been rejected in the past
and is being rejected by this judgment. Consent is sought from an
additional judge whose tenure is about to expire and to whom a fresh
c
tenure is to be offered. Ipso facto it will be a fresh appointment.
Initial tenure having come to a close, he is offerred a fresh appoint-
ment, in another High Court. It being a fresh appointment, it is
being done with his consent. In case of such a fresh appointment
one cannot say that the additional judge· is transferred on the eKpiry D
of his fir.st tenure, to another High Court where .he is appointed
afresh with a fresh tenure. The concept of transfer is foreign to the
situation. Once the alleged noxious feature of transfer being in the
I
circular is taken out, there is nothing in the circular which . would be
''-
in contravention of any particular constitutional provision.
E
It was also stated that the expression 'obtain' in the circular
has the element of coercion and a consent ceases to be consent if it
is obtained under coercion. It was said that consent and coercion
go ill together because forced assent would not be consent in the eye

- of law. It was said that the threat implicit in the circular becomes
evident because the Chief Minister, the strong arm of the executive
is being asked to obtain consent. If every little thing is looked upon
with suspicion and as an attack on the independence of judiciary,
F

it becomes absolutely misleading. Law Minister, if he writes
directly ·to the Chief Justice or the judge concerned, propriety of
the actio~ may be open to question. Chandrachud, J. has warned G
in Mr. Sheth's cdse that the executive cannot. and ought not to
establish rapport with judges (p. 456 CD). Taking this direction in
. its letter and spirit, the Law Minister wrote to the Chief Ministers.
The Chief Minister in turn was• bound to approach the Chief Justice
This is also known to be a proper communication channel with ·H
judges of High Court. In this context the expression 'obtain' would
only mean request the judge to give consent if he'so desires. If he
1076 SUPREME COURT REPORTS [1982] 2 s.c.a.

A gives the : consent, well and good, and if does not give, no evil
consequences are likely to ensue. I am not impressed by the sub-
mission of the learned Attorney-General that one who gives consent
may have some advantage over the one who does not. I do n'ot see
any remote advantage and if any such advantage is given and if
charge of victimisation is made out by the judge not giving consent,
B the arm of judicial review is strong enough to rectify the executive
error.

It was, however, said that what is not stated in the circular is
more objectionable and of devastating effect than what is stated. It
c was urged that omission to mention in the circular- that one who
would not give consent would not suffer -any evil consequences or
would not be placed at a comparative disadvantage to one who gives
consent, a~d this would precisely convey a threat to the judge either
to give consent or suffer consequences because the negative assurance
is not offered. That i~ hardly the correct way of reading the circular.
--
D Let it be noted that no positive advantage was to accrue to one who
gives his consent. . If any positive advantage was to be giv~n to one {
who gives consent and if it had been spelt out, there would have
been some force in this submission but mere omission to mention
any evil consequences fl.owing from not giving consent would not
necessarily imply that such would be the case. Similarly, the state-
E ment in the circular that giving an opportunity to indicate preferences
would not imply that the Government would be bound to give the
additional judge an appoin1rr.e1 t or he would be at least given a
station of his choice out of the three preferences indicated by him
would mean that while unillaterally obtaining consent on one hand,
there was 'no quid pm quo that the appointment would be given.
F This .is clearly reading the circular with coloured glasses and the
submission is unwarranted by the language used in it. If an option
to indicate preferences is given and option is exercised, undoubtedly
that by itself cannot obligate the Government to appoint an addi-
-
tianal judge for a fresh term or a new entrant either an additional
or a permanent judge, because various factors will have to taken into
G consideration over 'and above his consent and preferences in making
the appointment. Consent is asked for at a stage prior to the
decision to appoint is taken. Therefore, this caution was 11bsolutely
necessary and bas been rightly stated, that it implies any promise to·
do a certain thing. It was then urged that if every additional judge
H was not to be posted outside the State, the executive will have an
oppoitunily to pick and choose, favourites protected, disfavoufttes
S.P. GUPTA v.. UNION (Desai, J.) 1077

pushed out and this would strike a heavy or a near fatal blow at the A
independence of judiciary.· Apprehension vioced is utterly unwar-
ranted because in every appointment of an additional judges as
permanent judge in any High Court, the Chief Justice of India is to
be consulted and his views would always receive the weight they
enjoy. Therefore once Chief Justice of India gives his considered
opinion with respect to every proposal, the element of picking and B
choosing is effectively curbed or controlled. With these observations,
I broadly agree with the view taken by Bhagwati J. in his judgment
that there is nothing in the circular which would render it constitu-
tionally invalid.

Turning now to the petition filed by Shri V.M. Tarkunde in
c
which Shri S.N. Kumar has been joined as respondent 5 and who

-· has participated in the proceedings questioning the validity of the
short-term extension granted to him and his subsequen(non-appoint-
ment. Shri Kumar was appointed an additional judge of Delhi
High Court for a period of two years by a Presidential Notification
dated March ~. 1979., His term was to expire on March 6, 1981.
The Chief Justice of Delhi Court· by his letter dated February 19,
1981, addressed to the Law Minister, did not recommend an
extension for Shri Kumar. While stating that the oendency in the
Court still justified the appointment of addi.tional ,judges, he consi-
dered it his painful duty not to recommend Shri Kumar for three
E
reasons : (i) that there have been serious complaints against Shri
Kumar both orally and in writing and on examination he was of the
opinion that the 'complaints were not without basis', (ii) responsible
members of the Bar and some of his colleagues whose names he was
reluctant to mention have also complained about Shri Kumar ;

- (iii) that Shri Kumar has also not been very helpful in disposing of
cases. He said that he has no investigating machinery to conclusively
find out whether the complaints were genuine1 or not but all the same
the complaints have been persistent. A copy of this letter was sent
F

to Chief Justice of India. Response of the Chief Justice of India as
evident from his note dated March 3, 1981, and his letter dated
March 14, 1981, was that he. would like to look carefully into the G
charges against Shri Kumar because in his view the letter of Chief
Justice of Delhi High Court dated February 19, 1981, 'was too vague
to accept that Shri Kumar lacks integrity'. Consistent with his desire
to look carefully into the charges and to gain time for the same
he recommended that the term of Shri O.N. Vohra, Shri S.N. Kumar
and Shri S.B. Wad be extended for ~ix µJ\)n~hs, This js bow tht!
1078 SUPREME COURT REPORTS (1982] 2 S.C.R

A ball was set rolling for short-term extension. The duration for
which extension was to be given and the reasons for such short-term
extension are both contrary to the mandate of Article 224 as has +
been pointed out earlier. As a matter of fact, taking cue from the
recommendation of the Chief Justice of India, the Law Minister
B improved upon it by granting extension of three months which would
expire on June 6, 1981. To continue with the chronology by the
letter dated March 19, 1981, the Law Minister conveyed to the
Chief Justice of Delhi High Court the reaction of the Chief Justice
of India to the observations made by the Chief Justice for not recom-
mending extension of Shri Kumar especially the charge of Vagueness
c and requested the Chief Justice to offer his ~omments on the question
of continuance or otherwise of Shri Kumar in the light of the view
. expressed by the Chief Justice oflndia. On March 28, 1981, the
Chief Justice of Delhi High Court replied to the letter dated March
19, 1981, of the Law Minister. In this letter the Chief Justice of
Delhi High Court informed the Law Minister that he had since recei-
D ved a letter from the Chief Justice of India asking him to furnish him
with "details and concrete facts in regard to the allegations against
Justice Kumar". This has reference to the letter of Chief Justice of
India dated March 14, 1981, to Chief Justice of Delhi High Court.
He proceeds further to state that he has since had an opportunity to
discuss the entire matter in detail with the Chief Justice of India. This
E sentence was relied upon by the learned Solicitor· General to submit
that the Court should note that prior to March 28, 1981, the Chief
Justice of Delhi High Court met the Chief Justice of India and
discussed the entire matter in detail wfth the Chief Justice of India
with reference to the recitals in his letter dated February 19, 1981.
He said that read in juxtaposition, the only permissible inference is
F that at this meeting there was full and elaborate discussion with
regard to what Chief Justice of Delhi High Court had written in his
letter dated February 19, 1981, by which he had declined to recom-
mend the extension of the term of Shri Kumar. It was, therefore,
-
said that the three reasons which prompted the Chief Justice of
Delhi High Court not to recommend Shri ·Kumar must have been
G thoroughly discussed and thrashed out because the expression 'entire
matter in detail' would leave no room for doubt that nothing was
withheld, nothing was assumed and every aspect was gone into.
The Chief Justice of Delhi High Court proceeds further to state that
afier this discussion which appears to have taken place on March
H 26, 1981, he addressed ~ lett~r dated M~n;h 28 1 1981, to the Chief
$.I'. GUPTA v. UNION (Desai, J.) 1079

A
Justice of India, a copy of which was annexed to the letter dated
March 28, ·J981, to the Law Minister. Thus on March 28, 1981. the
Chief Justice of Delhi High Court wrote two letters, one to the Law
Minister and another to Chief Justice of India and a copy of the
. . '
Jetter to Chief Justice of India was annexed to the letter addressed
to the Law Minister. Reverting to the letter dated March 28, 1981, .B
written by the Chief Jmitice of Delhi High Court to the Chief Justice
of India, it may be noted that in this letter the Chief Justice .of Delhi
High Court in terms says that since receiving the letter dated March
14, 1981, with regard to Mr, Justice Kumar, he had also had an
opportunity to discuss this 'delicate matter' with the Chief Justice of
India. He refers to the three points made by him in his letter dated
February 19, 1981, which means that at the meeting on March 26,

- 1981, the very three points referred to by the Chief Justice of Delhi
High Court in' his letter dated February 19, 1981, came up for dis-
cussion and the discussion was in details and the matter is styled as
delicate because it involved the painful task of talking about the
integrity of a colleague. But there is a further averment in the letter D
which leaves no room for doubt that during this meeting inte!!rity
and general conduct of Shri Kumar was discussed between them.
With regard to'the other point about Shri Kumar not being helpful
in the work of the High Court he appears to have enclosed a
statement of disposals of Shri Kumar. Bven in this letter it is
conceded that t.he Chief Justice of Delhi High Court has no investi-
gating agency to conclusively find out whether the complaints are
genuine or not. Then he proceeds to make a point that in such
a delicate matter as reputation of a colleague working in the High

.. Court, 'there would be some who would support the allegatiOns and
there will be some who would refute them', and, therefore, an affirma-
tive decision of a conclusive nature is by its very nature not possible.
JI
The Chief Justice of Delhi High Court also noticed the divergence
of opinion that may be expressed by different people. One thing
that emerges clearly from this correspondence is that question of
.character and integrity of Shri Kumar came up for detailed discussion
'between the Chief Justice of Delhi High Court and the Chief Justice G
oflndia at their meeting on March 26, 1981. I propose to ignore
any other complaint against Shri Kumar or inadequacy of his dis-
posals because these aspects are not relied upon for non-appointment
of Shri Kumar. Ultimately, the decision not to appoint him was
founded upon his reputation about integrity. On April 15, 1981, H
the La'Y Minister wrote to Chief Justice of Delhi High Court reques-
ting him that it may be that he ma~ t!Q~ lll\Vll investigating machine~
1080 SUPREME COURT REPORTS (1982] 2 S.C.R

A to conclusiveJy establish the truth of the complaints against Shri
Kumar; nevertheless he must have had some material which provided
the basis on which he concluded that Shri Kumar's reputation for
integrity was not above board and recommended that he may not
be continued, and it would be necessary for the Government to have ·
the material and his comments. There is some reference to a
B
complaint by Shri Sabir Hussain against Shri Kumar in this letter
but I propose to ignore it because it is hardly relevant save and
--
except saying that it was relied upon by the learned Solicitor-General
to urge that the Chief Justice of Delhi High Court had acted most
objectively and in a wholly unbiased manner. That may come
a later on.

In the meantime on April 22, 1981, a writ petition was filed
by Shri V.M.,Tarkunde in the Delhi High Court questioning the
validity of the Circular of the Law Minister dated March 18, 1981,
and in this writ petition, inter alia, relief was sought in the form of
-
D a direction to convert 12 posts of additional judges in Delhi High
into permanent judges and to appoint Shri N.N. Goswami,
Sbri Sultan Singh and Shri O.N.- Vohra as permanent judges and to
appoint Shri S.N. Kumar and Shri S.B. Wad, additional judges of
Delhi High Court for a full term of two years. By an order made
by this Court on May I, 1981, this case stood. transferred to this
E Court. When the matter was pending before this Court an Order
was made on May 8, 1981, directing the Union of l~dia to decide
not less than 10 days before June 6, 1981, whether any. of the three
additional judges which included Shri S.N. Kumar should be
appointed for a further term . as additional judge or they · should
F be appointed as permanent judges or otherwise.
·-
In the mean time on May 7, 1981, in response to the letter
dated April 15, 1981, of the Law Minister, the Chief Justice of Delhi
High Court has written a long letter and which bas been the subject-
G matter of intensely ferocious controversy both as to the significance
of its contents, propriety of the request contained in the letter not
to show the same to the Chief Justice of India and the violation of
the constitutional mandate of consultation as prescribed by
Article 21.7, in the letter not being shown to the Chief Justice of
H India enabling him to offer bis comments and takiQg a decision not .~
toITappoint Shri Kumar. The letter dated May 7, 1981, is a long
epistle. At the top it i~ µientioneq "~ecret (for personal attention
S.P. GUPTA v. UNION (Desai, J.) °1081

only)". The Chief Justice of Delhi High Court refers to his meeting A
with the Chief Justice of India on March 26, 1981, and then pro·
ceeds to state that as desired by him, he wrote his letter ·.dated
March 28, 1981, a c9py of which was forwarded to the
Law Minister. The expression 'as desired by him' has been
a subject-matter of rival contentions. The learned Solicitor-
General urged that this statement clearly conveys that the B
Chief Justice, of India himself desired after discussion at the meeting
on March 26, 1981, that. the Chief Justice of Delhi High Court
should not refer to the details of discussion and, therefore, wrote his
letter dated March 28, l 981, to the Law Miilister in abstruse terms.
The specific suggestion is that even in the letter dated March 28,
1981, the Chief Justice of Delhi High Court did not furnish details
,_c
to the Law Minister as it wa> so desired by the Chief Justice of
India.' Then he proceeds to state that somewhere early in May 1980,
one of his colleagues met him and said that he was rather perturbed
about information with him to the effect that if a substantial amount
was paid to Shri Kumar, suits brought by a ·particular party against
an insurance company would be decided in favour of the party. 0
The Chief Justice states that he did not pay much attention to the
earlier reports but when this was brought to his notice and he not
being the Chief Justice at t~at time, he thought that after summer
vaca!ion to save Shri Kumar from. any embarrassment, he should be
put on a jurisdiction other than original jurisdiction and accordingly
when he became the Acting Chief Justice and constituted the Benches E
for the second half of 1980, Shri Kumar was assigned to a Division
Bench on the appellate side. He then proceeds to state that even
though Shri Kumar was assigned the work of the Division Bench, he
carried with him amongst others, three suits Nos. 1409 of 1979,
1417 of 1978 and. 1408 of.1979 filed by Jain Sudh Vanaspati Ltd.
and Jain Export Pvt. Ltd. against the New India Assurance Co. Ltd.
F
He further states that in August 1980 the same col)eagu_e talked to
him and another ,colleague joined saying that doubts were being
expressed about the integrity of Shfi Kumar vis-a·vis the aforesaid
cases and some others. As the Chief Justice was an Acting
Chief Justice, he did not want to take any precipitate action but he,
G
however, made discreet inquiries from some of the leading counsel
and they in strict confidence supported the allegations. This
impelled the Chief Justice to look into the allegations more carefully
when it transpired that it was not only the three suits mentioned
bereinabove but other single Bench matters were also retained . by H
Shri Kumar on his bo~rd despite being put in the Division Bench.
SUPREME coutt REPoRTS [1~821 i s.c.l\.

A He points out ' there. was a. long list of such suits carried by
Shri Kumar with him and that some of the parties in the suits were
rich and influential parties including some former Princes. He pro-
ceeds to state that in January 1981, he looked into the matter a
little more deeply and made further inquiries and even though some
lawyers were non-committal, others however asserted with some
B force that Sbri Kumar's reputation was not above board. This led
to his discussing the matter with some of his colleagues beside11 the
two who had earlier spoken to him, and they also said that uncon-
firmed reports have been circulating in the Bar which were not very
complimentary to Shri Kumar. This made the Chief Justice to con-
clude that reputation for integrity of Shri Kumar 'was not what
c . should be for a Judge of the High Court'. He then proceeds to
refer.to the complaint of Shri Sabir Hussain against Shri Kumar in
which he exonerates Shri Kumar. He deals with the quantum of
work disposed of by Shri Kumar, an aspect which is not relevant
for the present purpose. There is some reference to the conduct of
Shri Kumar in his work as a judge in the Court. He concludes
D the letter by saying that he has already ex pressed his view
that Shri Kumar should not be continued but it is for the Govern-
ment to decide whether it would like Shri Kumar to continue as a
Judge of-the Delhi High Court. Undoubtedly, this letter has not
been brought to the n~tice of the Chief Justice of India.
E
Thereafter the Law Minister wrote to the Chief Justice ofJndia
on May .::1, 1981, enquiring from him whether he had completed
his inquiry in regard to the complaints regarding Shri Kumar's
integrity and general conduct which the Chief Justice of Delhi High
Court had discussed with him as mentioned by him in bis letter
F dated March 28, 1981. He requested the Chief Justice oflndia to
forward the advice in regard to the continuance or otherwise of Shri
Kumar and Shri S.B. Wad. To this letter the Chief Justice of India
replied by his letter dated May 22, 1981, in which after referring to
the three points made by the Chief Justice of Delhi High Court in
his first Jetter dated February 19, 1981, for not recommending con-
G tinuance of Shri S.N. Kumar, he proceeded to state that the Chief
Justice of Delhi- High Court met him on March 26, 1981, and ·
amongst others, he stated that he doubted the integrity of Shri
Kumar because even though his assignment was changed he still
continued to hear part-heard cases on the original side. The Chief
H Justice of India then proceeds to state that he has made the most
careful and extensive enquiries in regard to both these matters and
'

~.i>. GUP'i:A v. UNION (f>esai, J.) 1083

he was satisfied that there was no substance in any one of them.
A
He proceeded to state that he made enquiries not only from the mem-
bets of the Bar but from the sitting Judges of the Delhi High Court
which showed that it is a common practice in the Delhi High Court
that even after the allocation of a judge is changed from the original
side to the appellate side and vice versa, he continues to take up part-
B
heard cases on which a substantial amount of time has been alrnady
spent. In his view, therefore, Shri Kumar did nothing out of the
way or unsual in taking up part-heard cases after the allocation of
his work was changed. He specifically disagreed with the view of the
Chief Justice of Delhi High Court for non-continuance of Shri
Kumar and further proceeded to assert that . not one member of the
Bar or of the Bench doubted the integrity of Sbri Kumar, and on the
c
- other hand several of them stated that he is a man of unquestionable
integrity. He concluded the letter by saying that Shri Kumar's
term should be extended by a further period of three months.. I
have not been able to appreciate the last line of this letter as to why
a further three months' extension is recommended. If Shri Kumar's D
integrity in the opinion of the Chief Justice of India was beyond
reproach, the fact whether he was slow in the disposal of work or
other minor considerations should not have come in the way of the
Chief Justice of India recommending a full term extension. It
appears, however, that this three months' extension was recommen-
ded because some reports of the intelligence branch in respect of E
Shri Kumar were also forwarded to the Chief Justice of India and
probably the Chief Justice of India was to respond to the same.
That the Chief Justice of India did by his letter dated May 29,
1981, and after having expressed his opinion with regard to . the·
details of the report not disclosed to the Court the Chief Justice of
India r~commended a full term extension for Shri Kumar. F

The sole contention raised by Shri R.K. Garg in this behalf
is that the consultation envisaged by Art. 224 read with Art. 217(1)
must be full, and meaningful and if that is the criterion, failure of
the Law Minister, may be on the request of Chief Justice of Delhi
High Court, to disclose the letter dated May 7, 1981, of the Chief
G
Justice of Delhi High Court or its contents to the Chief Justice of
India would unmistakably show that the process of consultation
was not complete and, ·therefore, the C'.onsequent decisiori
not to accept Shri Kumar by not giving him any extension beyond
H
June 6, 1981, is violative of the constitutional mandate and, there-
1bS4 SUPREME COURT REPORTS t1982] 2 s.c.R.
A fore, invalid. Keeping aside for the time being the propriety of the
request made by the Chief Justice of Delhi High Court that his
letter dated May 7, 1981, should not be shown to the Chief Justice
of India, what is required to be determined is whether the contents
of the letter and more particularly the reasons and materials which
prompted the Chief Justice of Delhi High Court to come to the con-
B clusion that the reputation for integrity of Shri Kumar was not .what
should be for a judge of the High Court, were brought to the notice of
the Chief Justice of India at any point of time and whether he had a
chance to think and deliberate over it. And if the answer is in the
affirmative, mere failure to show the letter dated May 7, I 981,
c would not invalidate the decision. Without going into the further
details in this behalf, it clearly transpires that at the meeting bet-
w. en the Chief Justice of India and the Chief Justice of Delhi High
Court-on March 26, 1981, there was a specific discussion of all the
three points, including one of lack of integrity of Shri Kumar.
-
Once the question about the integrity of Shri Kumar came up for
D discussion between these two high constitutional functionaries with
a specific reference to the view of the Chief Justice of- Delhi High
·Court not to recommend Shri Kumar for further continuance, the
conclusion is inescapable that all aspects hearing upon the integrity
of Shri Kumar must have been discussed between the two high
constitutional functionaries. That is why the Chief Justice of Delhi
High Court says in his letter dated March 28. 1981, that he had
discussed the entire matter in detail with the Chief Justice of India.
This is further borne out by what the Chief Justice of fndia writes
in his letter dated May 22, 1981, that at the meeting between them
on March 26, 1981, the reasons which prompted the Chief Justice
of Delhi High Court not to recommend continuance of Shri Kuinar r
F were discussed and this discussion included the complaint of Chief
Justice of Delhi High Court about Shri Kumar's integrity. There
is a specific reference to Shri Kumar keeping to himself the part-
heard cases after his assign~ent was changed, in the letter of the
Chief Justice of India. This clearly indicates that there was thread
bear discussion on this point and the discussion would include the
G material wh.ich the Chief Justice of Delhi High Court had and
whicl1.i he would necessarily refer to, to justify the view taken by
him. There is another internal evidence to bear out this conCiusion.
Shri Kumar himself filed an .affidavit on July 17, 1981, much before
the hearing commenced in this case and much before disclosure of
H the relevant correspondence was ordered by this Court. In this
affidavit he clearly refers to his retaining some of the part-heard
U>. GUPTA v. UNION (Desai, J.)

cases after Q.is assignment was changed and this list includes the A
three suits referred to in the Jetter of the Chief Justice of Delhi High
Court dated May 7, 1981. What has prompted this explanation
about the aforementioned three suits by Shri Kumar much before
the disclosure was directed and he had a chance to look into the
correspondencd would be self-evident. The only permissible infe-
rence is that in his meeting with the Chief Justice of India which he B
refers to in para 18 of his affidavit he must have been informed by
the Chief Justice of India that with reference to his handling of the
aforementioned three suits and bis tugging on to it after his assign-
ment was changed gave rise to the belief that. it was being done with
some ulterior motives and the Chief Justice of India could have
only gathered this information from the Chief Justice of Delhi High
c
- Court at their meeting on March 26, 1981. This is further internal
evidence to buttress the conclusion that everything including all
details set out in the letter dated May 7, 1981, concerning Shri •
Kumar's integrity was the subject-matter of discussion between the
Chief Justice of Delhi High Court and Chief Justice of India at
)
their meeting on March 26, J98 t. If that be so, the conclusion is
D
inescapable that the consultation is complete. Consultation need
not take any particular form. · The essence of consultation is deli-
beration. And if the two high constitutional functionaries met for
the avowed object of discussing continuance of Shri Kumar with
specific reference to the doubt about his integrity, it would be rea~
E
sonable to hold that all aspects were considered, gone into and
thrashed out. In this view of the matter non-showing of the letter
dated May 7, 1981, to Chief Justice of India wQuld not detract from
the fullness of consultation as required by Art. 217. For these

- reasons and some more discussed by Bhagwati, J. with whom I
agree, it must. be held that there was fuH and effective consultation
on all relevant points including those set out in the letter dated
May 7, 1981, and the submission must accordingly be rejected.
F

Before I conclude, ~ would like to record my disapproval of
the request made by the. Chief Justice of Delhi High Court to the
Law Minister for not showing the Jetter dated May 7, 1981, to the
G
Chief Justice of India. If independence of judiciary is likely to be
threatened, it may or may not emanate fr.om the executive or from
some outside agency but it would be corroded by the action of the
members of the judiciary itself,' by internal corrosion, and if proof H
for this were needed, it is demonstratively supplied by a very impro-
per request made by the· Chief Justice of Deihl High Court to the
1086 SOPRB~B cOUkT kilt>ORts [t982] 2 S.C.R.
A Law Minister not to show the letter dated May 7, 1981, to the
Chief Justice of India. I am unable to conceive a situation where
in the correspondence, assertions, statements, expression
of doubts concerning a high judfoial functionary like a judge of the
High Court can be made by the Chief Justice of a High Court ·
which be is not willing to show to the Chief Justice of India. I am
B ··-----
not implying any hierarchy. I put them on par and accord status
and dignity to the high offices occupied by both. They may differ.
Healthy difference is the life blood of honest opinion. But it is
unthinkable albeit wholly improper for a Chief Justice of a High
Court to write to the· Law Minister something which he is
e not prepared to show to the Chief Justice of India. This conduct,
if allowed to pass uncensured, would give rise to such fissiparous
tendencies which would wholly undermine the independence of
judiciary. -
I also feel that the way in which the Chief Justice of Delhi
0 High Court has dealt with the case of Shri O.N. Vohra leaves much
to be desired. The Chief Justice of Delhi High Court seems to be
completely unaware of his duty and obligation while recommending
or refusing to recommend a colleague for extension. He holds no
position superior tci a High Court Judge functioning in his Court.
E He is only first amongst equals enjoying the status not on merits but
on accident of seniority. He is not supposed to sit in judgment over
the decisions of his colleagues. · Where does he get this authority
passes comprehension ? Mr. O.N. Vohra took a dignified ·stand and
did not participate in this squable, undignified as the whole episode

F
appears to· be. Had he come and participated, may be the
Chief Justice of Delhi High Court would have found his position so
untenable that there would have emanated a strong censure about
the method and manner of his dealing with his colleagues. These
-
may appear to be strong words but they still fail to express my
feelings adequately. I say no more.
G
There was one more submission which may be noticed in
passing and I refer it only for future purpose. If a Chief Justice
of a High Court gets information reflecting upon the character and .
integrity of a colleague or complaints about his behaviour in the
Court, fair play in action demands that before relying upon it and
H taking a st :p of f'ar reaching c_onsequence concerning the career and
dignity of the colleague, he should in confidence talk to the
S.1>, auP'tA v. UNION lDesai, J.) 1087
A
colleague. In these days when relations betwee11 the Bench and the
Bar have sunk abysmally low, that ruinours, canards, character
assessination flourish in the grapevine, if credence is to be given
to such . rumours because about integrity usually foolproof
facts are not available, but reputation for integrity being relevant,
apart from any principle of natural justice which does not surface in B
this discussion, fair play in action demands that they should first be
brought to the notice of the colleage not for his explanation but
even for future rectitude. If the whole thing stops the decisive
action can be deferred. If it continues to flourish, the Chief Justice or
a High Court in discharge of his constitutional duty of recom-
mending or not recommending continuance of an additional judge
may proceed to act as he considers befitting the high dignity of the
c
- office he holds; but to make assertion in secret and confiden-
tial letters without giving the slightest inclination to the colleague
and then to shrink back to the extent of not permitting the same to
be shown to the paterfamilias in the judiciary scales the height of
impropriety .. Let the past be buried and bygones be bygones but in D
future a conduct and approach commensurate with the high office
held by the Chief Justice of High Court must inform his action.
Fair play in action is the watchword of judiciary and if it is extended
to all others, a colleague in the High Court should not be at a com-
parative disadvantage.

I would, therefore, like to recall what happened in the course
of hearing of these matters. At one stage the. Bench unanimously
suggested to the learned Attorney-General that even accepting his

- contention that the consultation was full and meaningful and
there was no defect or deficiency in it, a person who has worked as
a Judge of a High Ceurt for two years and three months should not
be made:; to leave the institution with a wrench that a raw deal has
F

been done to him and, therefore, Government of India may show
the letter dated May 7, 1981, to the Chief Justice of India, request
him to give his comments on the same and after considering the
same in the light of the comments of the Chief Justice of Delhi High G
may mould the final decision concerning Shri Kumar. The learned
Attorney-General replied that the Government of India has no objec-
tion to showing the letter dated l\lay 7, 1981, to the Chief Justice.of
India. That is poor solace because the Jetter since disclosure had
H
become public property, the media having published the same. But
the learned Attorney Gtneral informed us that 'the Government of
JOSS SUPREME (;OURt REi>otrs f1982] i s.c.il.
A India was not prepared to reconsider the decision. Apart from the
judi~i~ry and the. public, Goverm~ent. ?f India must be equally
sens1t1ve and considerate about mamtammg both the dignity and
independence of judiciary. It would add 'to the statute of the
Government of India and reject unsubstantiated criticism that un-
warranted attacks are made on the judiciary by the executive if the
B letter dated 7th May 1981 is shown to the Chief Justice of India
and his comments are invited and then a decision is taken
whether or not to reappoint Shri Kumar as an additional Judge.

While holding that _there was full, effective ·and meaningful
C consultation, and on this account the petitions in this group are
liable to be dismissed, I suggest that the Government of India may
show the letter dated May 7, 1981, to the Chief Justice of India,
request him to give comments and after receiving the comments,
decide whether Shri Kumar should or should not be appointed as
an additional Judge of Delhi High Court. This is not a direction
D but merely a suggestion for the acceptance of the Government if
thought fit.

In the second group of cases the first is a writ petition No.
274/8 l filed by an Advocate practising in the Supreme Court, Miss
Lily Thomas, impleading therein the Union of India represented by
E the Secretary, Ministry of Law as the sole respondent and in which
the only prayer in the last paragraph is that this Court may be ....
pleased to give true interpretation of Article 222 of the Constitution
of India. In the body of the petition it was averred that President
of India in exercise of the power conferred by Article 222 (I) of the
F Constitution has made an order transferring Mr. lustic! M.M.
Ismail, the then Chief Justice of the Madras High Court as Chief
· Justice, Kerala High Court. The question posed was whether the
--
power to transfer a Judge of a High Court conferred on the P.resident
under Article 222 can be used to defeat the right of puisne judges of
the High Court to be considered for the post of Chief Justice of the
High Court wherein a vacancy may have occurred, It was averred
G
that on the elevation of Mr. V. Balakrishna Eradi, the then Chief
Justice of Kerala High Court to. the Bench of the Supreme Court of
India, the office of Chief Justice, Kerala High Court has been render-
ed vacant and other considerations being equal, the next senior-most
pui°me judge who should legitimately occupy the same office is Mr.
Justice Subramania Poti or any other judge of the Kerala High
+
Court. It was contended that the expression 'judge' in Article 222
S.'P. GUPTA v. UNION (Desai, J.) 1089

does not comprehend Chief Justice and, therefore, the transfer of
Chief Justice M.M. Ismail as Chief Justice of Kerala High Court is
ex facie illegal. It was also contended that this power to transfer
was to be exercised in public interest and the power has not been
conferred for the purpose of providing the executive with a weapon
to punish a judge who does not toe its line and that exercise of such B
power would be subversive of the independence of judiciary. An
application for adding parties was made in which 9 other persons
were so'ught to be impleaded as respondents, one of them being Shri
K.B.N. Singh, Chief Justice of Patna High Court who was under an
order of transf\:r as Chief Justice Madras High Court. There was
also a prayer for urging additional grounds and the whole of the c
prayer clause was amended and by the amended clause a declaration
was sought that Article 222 of the Constitution is illegal and un-

-- constitutional. A further declaration was sought that the transfers
- of Chief Justice M.M. Ismail and Chief J,ustice K.B.N. Singh as Chief
Justice of Madras and Kerala respectively being not in public interest
and also pecause Article 222 does not confer ariy power to transfer D
) a Chief Justice, is unconstitutional by an order made by this Court
- on February 4, 1981, from amongst those sought to be arrayed as
respondents, the prayer to join Mr. M.M. Ismail and Mr. K.B.N .
.singh alone was granted and in respect of others the application was
rejected. - Rule was issued after recording a statement that the
petitioner will not press ground No. 5 challenging the constitutional
validity of Article 222 of the Constitution.

One Shri D.N. Pandey, Advocate, filed C.W.J.C. No. 2224/81
in the High Court of Patna impleading the Union of India, Chief

- Justice oflndia, Shri K.B.N. Singh, Chief Justice of Patna High
Court, Registrar of Patna High Court as respondents, praying for an
appropriate writ or order directing the respondents to forbear from
giving effect to the order of the President dated January 19, 1981,
F

transferring Sbri K.B.N. Singh, Chief Justice of Patna High Court. as
Chief Justice, Madras High Court with effect from the date he
assumed charge of his office. By an order made by a Bench of the G
Patna High Court, Shri Thakur Rampati Sinha, President, Bihar
State Socialist Lawyers Association, was permitted to be added as
petitioner No. 2. Various contentions have been raised in this
petition and they will be dealt with at tlie appropriate place. By an
order made by .this Court the petition stood transferred to this Court H
and numbered as Transferred Case No. 24/81. After the petition
was transfem;<j !<? ~his 9ourt, ~hfi K.~.N. Sin?h applied for tran~-
1090 SUPREME COURT REPORTS [1982) 2 S.C.l.
A
posing him from the array of respondents as petitioner and the same
having been granted, Shri K B.N. Singh is now petitioner No. 3,
in this case and be is represented by counsel Dr. L.M. Singhvi. In
this petition Shri K.B.N. Singh has filed a short affidavit on
September 7, 1981, followed by a detailed affidavit on September 16,
B 1981. Shri K.C. Kankan, Deputy Secretary, Department of Justice,
Ministry of Law, Justice and Company Affairs, filed the counter-
affidavit on September 24, 1981. Shri K.B.N. Singh filed a rejoinder
affidavit on September 28, 1981. The Chief Justice of India filed
his counter·affidavit on September 29, 1981, to which a rejoinder
affidavit was filed by Shri K.B.N. Singh on October 16, 1981. A
c rejoinder affidavit was also filed by Thakur Rampati Sinha on behalf
of petitioners 1 and 2 on October 16, 1981.

One P. Subramaniam filed Writ Petition No. 553 of 1981 in the
Madras High Court challenging the constitutional validity of Noti-
-
D fication dated January 19, 1981, by which Shri M.M. Ismail, Chief
Justice, Madras High Court was transferred as Chief Justice, Kerala
High Court. Jn this petition Union of India represented by the
Secretary, Ministry of Law, Justice and Company Affairs was
impleaded as the sole respondent. Union of India moved this Court
under Article 139 A (I) requesting the Court to withdraw to itself
E the aforementioned Writ Petition pending in the Madras High
Court on the ground that petitions raising identical questions have
already been transferred to this Court.1 This Court having granted
the request, the writ petition stood traM°ferred 'to this Court and
numbered as Transferred Case No. 6/81.

F One A. Rajappa, an Advocate of Madras, filed Writ P.etition
No. 390/81 in the Madras High Court questioning the constitutional
validity of the Notification transferring Chief Justice Ismail to Kerala
-
High Court, inter alia, contending that Article 222 does not com-
prehend power to transfer a Chief Justice. In this petition he implea-
ded the Union of India, Registrar of the Madras High Court,
G Registrar of the Kerala High Court and Registrar of the Patna High
Court as respondents. An application to transfer this petition to this
Court under Article 139A was moved. This Court accepted the
transfer application by its order dated February 3, 1981, and accor-
dingly the ca8e stood transferred to this Court an,d numbered. as
H Transferred Case No. 2/81.
S.P. GUPTA v. UNION (Desai, J.) 1091

One Ripudaman Prasad Sinha had filed C.W.J.C. No. 312/81
A
in the Patna High Court for a writ of quo warranto seeking infor-
mation as to how after the Notification dated January 19, 1981,
transferring Shri K. B. N. Singh, Chief Justice, Patna High
Court, as Chief Justice, Madras High Court, he continued
to occupy the office of Chief Justice, Patna High Court. This
B
petition came up for admission before a Bench of the Patna
High Court. At the oral hearing a question was posed to the
petitioner why he had not produced the presidential notification and
on this short ground the writ petition was rejected. An oral prayer
. for a certificate to appeal to the Supreme· Court was also rejected.
Hence he filed Special Leave Petition (Civil) No. 1509 of 1981. He
has impleaded Shri K.B.N. Singh" Union of India and the Chief
c
Justice of India as respondents.

- Mr. K.C. Kankan filed his counter-affidavit in 'fransferred Case
No. 24/81, inier alia; contending that the .fact that the mother of D
Shri K.B.N. Singh is aged about 85 years and is ailing and bed-
ridden for last two years was present to the mind of the Chief Justice
of India. The Chief Justice of India can certainly be presumed to
-
\
have knowledge not only about this fact but the other fact that
Tamil language is freely used in Tamil Nadu and Shri K.B.N. Singh
is not conversant with it. It is stated that Shri K.B.N. Singh had E
an effective opportunity to represent his case before the Chief Justice
l
of India. Then it is further averred that Chief Justice of India had
visited Patna as mentioned by Shri K.B.N. Singh himself. It is
further stated that the Chief Justice of India while making recom-
mendations for transfers pointed out that he had met several lawyers

- and judges of the concerned High Courts and expressed the view
that on the basis of data which he collected and which he had consi-
dered with greatest objectivity, Shri K.B ..N. Singh should be transfer-
red. It is not disputed that for misbehaviour as adumberated in
F

Article 124, transfer is not the remedy and that transfer can only be
··--\. ordered in public interest without regard to any complaint of mis-
behaviour. Denying the averment of Shri K.B.N. Singh that trans- G
fer was based on considerations which are not genuine· and germane,
it was stated that Shri Singh has given no basis for his averment
that the transfer order i' likely to have been made because either the
Hon'ble Chief Justice of India or the President of India or both of
them have been ·misled by interested parties. It was asserted that H
considerations relevant to transfer were taken into account by the
Chief Justice of India !\~ ~lso by the P~~siden~ of !ndi~, The re'luest .
1092 SUPREME COURT REPORTS (1982] 2 S,C.R.
A of Shri K.B.N. Singh for disclosure of documents bearing upon his
transfer was resisted by Shri I.N. Chaturvedi, Secretary Department
of Justice, Ministry of Law, Justice and Cpmpany Affairs, claiming
privilege against disclosure of documents.

B Transferred Case· No. 24/81 arising from the writ petition filed
by Shri D.N. Pandey in which Mr. K.B.N. Singh at his request was
transp<.'sed as petitioner No. 3, was heard as the main care and
other petitioners an.d their learned counsel were permitted ·to inter-
vene at the hearing of this case.

c Dr. L.M. Singhvi who led, ably supported by Shri H.M.
Seervai and Shri Soli Sorabjee, put in the forefront the contention that
the power to transfer a judge of the High Court is an extra-ordinary
power vested in the President, the highest exec'utive in the country,
which has to he exercised according to the advice of the council of
ministers, if not properly controlled and adequate safeguards provi·
<led, would render indepedence of judiciary a myth. Keeping aside,
therefore, the facts of the case, it would be advantageous at this
stage to find out the purpose for which such power is conferred on
the President under Article. 222, the circumstances in which the
power can be exercised highlighting the constraint or limitations on
the exercise pf power which would be .safeguards against arbitrary
E exercise of power.

To repeat, on the question of construction of Article 222 we
are not breaking a fresh ground. It was the subject-matter of a
very intelligent and enlightened debate in the Gujarat High Court
F wherein Mr. S.H. Sheth, a judge of the Gujarat High Court challen·
ged his transfer to Andhra Pradesh High Court. This debate con-
tinued unabated in the apP.eal against the decision of a special
bench of the Gujarat High Court to this Court. Barring some addi-
-
tional submissions the arguments covered the familiar ground. I
say familiar because I had the privilege of bearing arguments at the
G time of admission of the Special Civil Application filed by Mr. S.H.
Sheth in the Gujarat High Court and also when the petition was
finally beard. The appeal against the decision of the Gujarat High ·
Court quashing the order of transfer of Mr. S.H. Sheth and issuing
a manda~us to the Union of India directing it to forbear from
H giving effect to the transfer order was heard by a Constitution
Bench or this Court presided over by Shri Y;V. Chandrachud, who,
11s the quirk of fate shows, in his capacity [as Chief Justice now is
S.P. GUPTA v. UNION (Desai, J.)' 1093

one of the respondents in this group of cases. As we are to a
considerable extent on a familiar grourid, in order to avoid inere
repeat performance, it would be conducive to proper adjudication
· of issi:tes raised, to recall what has been the view of the Constitu-
tion Bench of this Court in Mr. Sheth's case. After briefly referr-·
ing to the position thus established, I would refer to additional ·
contentions and also a fervent appeal for accepting the minority B
view in Mr. Sheth's case be.cause very persuasively it was argued
that this larger Bench must re-examine the issue in its entirety. The
emotional appeal was founded on the submission that since the
decision in Mr. Sheth's case disturbing trend_s have appeared in the
.".\
Indian polity and even though once thwarted, a claim to naked
and arbitrary exercise of power for transfer having been made on
c
behalf of the Union of India and it being further shown that the
safeguard which appealed to the majority view in Mr. Sheth's case
havhg been found to be of slender strength, the Court should fui-
ther insulate the judiciary from continuing threats emanating from
powerful executive quarters.
D

In constitutional interpretation while value system may have
a fair sprinkling, emotions, sentiments, unfounded su.spicions, wild
apprehensions and imaginary threats have no place. Equally, a
possible chance of abuse of power would not permit denial of power
if it is conferred. We will have to be all the more circumspect,
imbued with wisdom and restraints because let it not be said· by the
posterity that the judges interpreting the judiciary provisions in the
Constitution 'have re-written the Cons'itution for their own total
and absolute insulation from any quarter so .that an otherwise ir-

-
removeable elitist in.stitution may. become so entrenched as to be F
impervious to the realities of the situation. We wish to steer clear
of what Professor ·Friedmann stated, ·between the scylla of sub-
servience to Government and the charybdis of remoteness from cons-
tantly changiag social pressures and economic needs (see Law in
a Changing Society by W. Friedmann).
G
Let us then first recapitulate what has been the majority view
in Mr. Sheth's case.

S.H. Sheth, a judge of the Gujarat High Court was transferred
as per the Presidential Notification dated May 7, 1976 as Judge of H
the High Court of Andhra Pradesh. Mr. Sheth challenged the
order of transfer in a petitiou t!i~t lw tiled in Gujarat High Cour~
' '
I
1094 SUPREME COURT REPORTS (1982] 2 s.c.R.

A on June 16, 1976, in which he impleaded Union of India and the
then Chief Justice of India as respondents. This petition was
heard by a special Bench of Gujarat High Court which by a unani-
mous order dated November 4, 1976, voided the order of transfer.
An appeal by certificate was preferr~d by the Union of India to
this Court which was heard by a Constitution Bench of this
B Court.

Let me recapitulate the contentions canvassed on behalf of
Mr. S.H. Sheth in his petition questioning the validity of the order
made· under Article 222(1) by which he was transferred from the
C office of the judge of the High Court of Gujarat to the office of the
Judge of High Court of Andhra Pradesh. The constitutional validity
of the order of transfer was challenged on the following grounds :

(i) The order was passed without bis consent, such con-
sent must be necessarily implied in Article 222(1) of
--
D the Constitution and, therefore, the transfer of a judge
from one High Court to another High Court without
his consent is unconstitutional;

(ii) The order was passed in breach of the assurance given
E on behalf of the Government of India by then Law
Minister Shri A.K. Sen who, while moving the Cons-
titution (Fifteenth Amendment) Act, 1963, said in the
Lok Sabha that "so far as High Court Judges are
concerned they should not be transferred except by
consent." Mr. ·sheth having accepted judgeship of

-
F Gujarat High Court on April 23, 1969, on the faith
of the Law Minister's assurance, the Government of
India was bound by that assurance on the doctrine of
promissory estoppel;

(iii) The order of transfer militated against public interest.
G The power conferred by Article·222(1) was conditioned
by the exigencies and requirements of public interest
and since his transfer was not shown to have been
made in public interest it was ultra vires; and

(iv) The order was passed without effective consultation
' with thr <;:!hief /ustice of India. 'Consultation' in '
S.P. GUPTA v. UNION (Desai, J.) 1095

Article 222( 1) means 'effective consultation' and since
A
the pre-condition of Article 222(1) that no transfer can
be made without such consultation was not fulfilled,
the order was bad and of no effect.

B
Though the full bench of the Gujarat High Court by an unani-
mous order struck down the order of transfer they arrived at this
conclusion by different processes of reasoning, one judge took
the view that in not consulting or informing Mr. Sheth of even
---ti,
the proposal of transfer, it being an administrative executive action
in violation of the principles of natural justice and hence the order c
was bad. The second judge took the view that the order was un-
constitutional because it was passed without Mr. Sheth's consent
and secondly because it was passed for a collateral purpose. The
• third judge took the view that the mass transfers of 16 judges which
were effected with one stroke though each judge Play have had
peculiar personal difficulties to contend with and considering that D
the Union of India had failed to disclose the nature and content of
the consultation with the Chief Justice of India, the consultation
was not meaningful and that the pre-condition for exercise of power·
I
l in Article 222(1) was not satisfied and, therefore, the order was void.
All the three judges unanimously rejected the challenge to the order
pf transfer on the ~round of promissory estoppel. E

In the appeal preferred by the Union of India only two con-
tentions were examined by the Constitution Bench of this Court.
They were : (i) the independence of judiciary being the ·basic and F
fundamental feature of the Constitution power of non-consensual
transfer to be exercised by the executive, a litigant before the judge
in large number of cases, would be subversive of the independence
of judiciary and therefore, the Court-must read in Article 222(1)
that the power to tranllfer. can only be exercised with consent of the
judge proposed to be transferred; and (ii) that the power to trans- G
fer High Court judge having been conferred on the President it can
only be exercised in public interest and that before exercise of such
power there must be full, effective and meaningful consultation
between the President and the Chief Justice of India. Under the
second submission, the scope and content of the consultation neces- H
sary to satisfy the strin&ent requirem¥1lt~ Qf Article 222 have been.
fully thrashed out. ·
1096 SUPREME COURT REPORTS (1982) 2 S.C.R.

A The leading judgment of majority view by Chandrachud, J.
after referring to various articles of the Constitution held that the
provisions set out in the judgment indisputably are aimed at
insulating the High Court judiciary and even officers and servants of
the Court from the influence of the executive. The observation of
Krishna Iyer, J. in Shamsher Singh's case that fearless justice is a
B prominent creed of our Constitution and the independence of judi-
ciary is- the fighting faith of our founding document, was affirmed.
It was also held that power to transfer the High Court judge is con-
ferred by the Constitution in public interest and .not for the purpose
of providing the executive with a weapon fo punish a judge who
does not toe its line or who for some reason or other has fallen from
c its grace. Thirdly, it was held that the two-fold limitation on the
power of the president to transfer a High Court judge, namely, that
it can be exercised in public interest and that it can only be exercised •
after full, effective and meaningful consultation with the Chief Justice-
of India would provide sufficient safeguards against arbitrary exercise
of power and accordingly the contention that in order to insulate
D
the judiciary from executive interference the Court should rea.d into
Artkle 222 the words 'with his consent' was rejected. What cons-
titutes meaningful, effective, full and substantial consultation h~:s been
succinctly set out in a paragraph at p. 453 which has been extracted ')-
hereinbefore. Briefly to recapitulate in the present context,
E 'president must make relevant data available to the Chief Jus1ice of
India on the basis of which he can offer to the president the benefit
of bis considered opinion. If the facts necessary to arrivf: at a
proper conclusion are not made available to the Chief Justice of
India, he must ask for them because in casting on the President the
obligation to consult the Chief Justice of India, the constitution at
F the same time must be taken to have imposed a duty on the
Chief Justice of India to express his opinion on nothing less than
...
a full consideration of the matter on which he is entitled to be con-
sulted. The fulfilment by the President of his constitutional o bliga-
tion to place full facts before the Chief Justice of India and the
performance by the latter of the duty to elicit facts which are neces-
G sary to arrive at a proper conclusion are 'parts of the same process
, and are complementary to each other. The faithful observance of
these may well earn a handsome dividend useful to the admin.istra-
tion of justice.' Consultation within the meaning of Article 22:~ (I),
therefore, means full and effective, not formal or unproductive con·
H sultation, ·Concluding on this point,
I
it was observed as under :
S.P. GUPTA v. UNION (Desai, J.) _- 1097

"Article 222(1) .post{Jlates fair play, and con~ain~
A
built in safeguards in the interests ofreasonableness. In.the
fir~t place, the power to transfer a High Court judge caq be
exercised in public interest only. Secondly, the President
is under an obligation to consult the Chief Justice of
India. which means and requires that all the. relevant
facts must be placed before the Chief Justice. Thirdly,
the Chief Justice owes a corresponding duty, both to the
President and to the judge who is proposed to. be trans-
ferred, that he shall consider every relevant fact before - he -
tenders his opinion to the President. In the discharge of
this constitutional obligation the Chief Justice would be
within his rights, and indeed it is his duty whenever neces-

- sary, to elicit and ascertain 'further facts. either directly from
the judge concerned or from other reliable sources. The
executive cannot and ought not to establish rapport with
the judges which is the function and privilege of the Chief
Justice. In substance and effect, therefore, the judge
concerned cannot have reason to complain of. arbitrariness
or unfair play, if the due procedure is followed. (p. 456).

Krishna Iyer, J. speaking for himself and S. Murtaza Fazal
Ali, J., while concurring with this view, observed that the President
E
must communicate to the Chief Justice all the material he has. and
the course he proposes. T,he Chief Justice in turn must collect
necessary information through responsible channels or directly,
acquaint himself with the requisite data, deliberate on the informa-

.. tion he possesses and proceed in the interests of the administration
justice to give the president such counsel of action as he thinks will
further the public interest, especially the cause of the justice system.
(p. 496). At another place it was observed as under:

"Before giving his opinion the Chief Justil:e of India
would naturally take into consideration all relevant factors
and may informally ascertain from the judge concerned if
G
he has any real personal difficulty or any humanitarian
ground on which his transfer may not be directed. Such
grounds may be of a wide range including his health or
extreme family factors. It is not necessary for the ·
C::hief Justice to issue formal notice to the judge concerned
H
but it is sufficient-although it is not obligatory-if he
SUPREME CotJR.t Rl!POR.ts (19821 2 s.c.A.
A • ascertains these facts either from the Chief Justice of the
High Court or from his own colleagues or through any
'other means which the Chief Justice thinks safe, fair and
reasonable. Where a proposal of transfer of. a judge is
made the Government must forward every possible
material to the Chief Justice so that he is in a position to
'B
give an effective opinion. Secondly, although the opinion
of the Chief Justice of India may not be binding on the
Government it is entitled to great weight and is normally
to be accepted by the Government because the power
under Article 222 cannot be exercised whimsically or
arbitrarily." (pp. 501-502).
c
The majority view is that it is not possible to read words 'with
his consent' in Article 222 and non-reading oi these words would not
jeopardise independence of judiciary otherwise guaranteed by the
-
Constitution. It was held that a non-consensual transfer is within
D the purview of Article 222.

On the question of policy transfers which loomed large in the
present case, Cbandracbud, J. observed that whether it is necessary
to transfer judges from one High Court to another in the interest
of national integration is a moot point, but that is a policy matter
E with which Courts are not concerned directly (see p. 450). At another
place he held that policy transfers on a wholesale basis which leave
no scope for considering the facts of each particular case and which
are influenced by one-sided governmental considerations are outside

F
the contemplation of our constitution (p. 454). Krishna Iyer, J'. in
this context expressed himself in a forceful way when be said that :
'to promote the community's concern for impeccabl~ litigative justice,
policy oriented transfer of judges after compliance with constitu-
-
tionally spelt out protocols inay not be ruled out' (see p. 501).
Untwalia, J. after, attempting to spell out specific public interest to
subserve which a transfer of a High Court judge can be ordered,
ultimately concluded that 'these are matters of policy decision e11ti-
G rely within the realm of the governmental power' (p. 507). The
minority view of Bbagwati, J. and Untwalia, J. held that non-
· consensual transfer is outside the purview of Article 222 but both
of .them reached. the conclusion by a different process of reasoning.
Bbagwati, J. held that having examined various provisions _of the
H Constitution unerringly pointing towards assuring independence of
jud~ciary fro111·executive pressure, to further fortify and insulate it,
S.t>. OtJi>TA .v. UNION (besai, J.) 1099

the Court should r,ive to the expression 'transfer' in Article 222 a
limited meaning that it only comprehends consensual transfer and
compulsive transfer is not within the purview of the Article.. Unt-
walia, J. held that 'there may be necessity and justification on the
ground of public interest or policy for the transfer of judges from
one High Court to another, although it may be few and far between
B
or even punitive in character, but to do so without the consent of the
judge concerned will bring about devastating results and cause dam-·
age to the tower of judiciary and erosion in its independence.' He
was, therefore, of the view that an additional safeguard is necessary
to insulate the judiciary and he found that safeguard by holding that
a judge cannot be transferred under Article 222 without his consent.
Bhagwati, J. agreed with Krishna Iyer, J. on the scope and content of
c
consultation and Untwalia, J. agreed with Chandrachud, J. on the
scope and content of consultation under Article 22~. Scope and
ambit of consultation under Article 222 (I) has been dealt with in the
earlier part of this judgment and it is unnecessary to repeat it here.
D
The obligation to consult may arise in different contexts and in
different circumstances and situations and for different purposes.
Duty or dbligation to consult inheres full, effective and meaningful
consultation. The situation and context and purpose of consultation
would define parameters of consultation. Within the parameters all
relevant considerations on which consultation to be effective must be
focussed, must be precisely laid down. It was admitted on all hands.
that transfer is likely to cause hardship and inflict injury both private
and to some extent public. In Shamsher Singh' s case it is in terms sta-
ted that sometimes transfer is more harmful than positive punish-
ment. Before the judge is made to suffer hardship or he is required
to suffer injury, certain relevant question have to be examined and F
answered so that even a remote chance of transfer by way of punish-
ment may be scrupulously avoided and a firm decision is reached that
it is for achieving an avowed public interest. In the context of trans-
fer of a judge fr~m one High Court to another High Court, the ques-
tions which must engage the attention of the concerned authorities
may be briefly e11:umerated. They are : (i) why this particular judge
G
is selected for transfer ; (ii) what would be the personal difficulties
faced by him in the event transfer is ordered, such as whether his
· .. wife is gainfully· employed, whether his children are taking education
or ·are gainfully e_mployed, whether the old parents dependent on Mm
H
would be seriously inconvenienced, whether he is being pushed out'
froin a station which is considered good to a station not so good;

\
1100 SU.llltEME COllR.1' RllPOltTS [1982) 2 s.C.k.
A w~ether it, is likely to attach any stigma, whether he would have to
~aintain two establishments, and finally ; (iii) whether the public
interest for which he is required to be transferred would far outweigh
his inconveniences, difficulties and even a possible stigma. Selective
transfers generally give rise to canards because ordinarily High Court
judges are not transferred and as fate as 1963 the then Law Minister
B
Mr. A. K. Sen assured the Parliament that a High Court judge should
. not be tran~ferred except by consent and this policy is departed from.
Once one or the other judge is specifically selected for transfer, even
if it is proclaimed to be in public interest, such as a senior, experien-
ced and competent judge is required for other High Court, this hardly
c satisfies anyone and the judge really suffers character assassination.
It is, therefore, absolutely necessary that all these aspects and many
more that can be enumerated, must be specifically and individually
examined, discussed, deliberated upon and finally a decision must be
r~ached that the public interest for which transfer is proposed would
be served by the transfer. Specific public interest must Qot be left to
D guess worJ.c but must be precisely stated. and must be such that it
would far outweigh the personal difficulties, inconvenience and the
possible stigma.

Principal contention canvassed in the High Court and in this
Court in Mr. Sheth's case was that non-consensual transfer is outside
E the purview of Article 222. This contention would have . stood con-
cl~ded by the majority decision of the Constitution Bench but as the
inatter is before a larger Bench, M.r. Seervai made a valiant effort to
persuade us ·t9 hold that in view of the recent disturbing trends sur-
facing in the. Indian polity, such as continuous denigration of judi-
ciary and experience proving the safeguards spelt out in Mr. Sheth's
case against the abuse of transfer power, broken reed, coupled with
the claim for naked and arbitrary power, the time has come to recon-
sider the majority view in Mr. Sheth's case by further buttressing
independence of judiciary and completely insulating it against com·
pulsive transfers by accepting the minority view in Mr. · Sheth's case,
that a non-consensual transfer is beyond the purview of Article 222.
G In support of this submission Mr. Seervai drew attention to some
observations in the judgipent of Chandrachud, J. and Iyer, J. which
according to him a,re factually incorrect and a decision based on
shch.incorrect assumption would render the majority view not sus-
tainable.' I remain unconvinced. In my detailed judgment in Ivlr.
H
Sheth's case. in the Gujarat High Court I have given long and elabo-
rate reasons for rejecting the contention that non-consen~ual trims-
S.1'. GUPTA v. UNI6N ([Jesai, J.)

A
. fers are not within the purview of Article 222. I would not reiterate
them because I unreservedly accept the majority view of this Court
in Mr. Sheth's case as cotrect. I would, however, briefly deal with
some of the submissions of Mr. Seervai in this behalf.

The first error in the majority judgment which, · it was conten- B
ded, would necessitate reconsideration of the majority view that it is
not necessary to read the words 'with his consent' in Article 222 (!),
· was that the majority view proceeds on the erroneous assumption
that the Government of India Act, 1935, did not contain any provi-
sion for transfer of a High Court Judge. Chandrachud, J. has obser-
ved that the Government of India Act (1935) did not contain any
c
provision for the transfer of a judge. That . is why it provided that
the office of a judge shall be vacated either on the judge being appoin.
ted to be a judge of the Federal Court or on being appointed as a_
judge of another High Court (p. 448). Krishna Iyer, J. 'who concurs
with the majority view has in this context observed that ithas already D
been pointed out above that the Government of India Act did not
contain any provision for transfer which was effectuated by appoin-
ting a judge of one High Court to be a judge of another High Court'
(p. 493). In this connection it may as well be J?Ointed out that in the
minority judgment, Bhagwati, J. who accepted the contention that
Article 222 (I) comprehends only consensual transfer bas also obser- E
ved that ' ... there was no specific provision in the Act (Government
oflndia Act, 1935) conferring power to transfer a High Court judge.
The po_wer to transfer a High Court judge was expressly conferred
for the first time under the Constitution ... .' (p. 473). Therefore, the
assumption that the Government of India Act, 1935, did not contain
.
a provision for transfer, which on further examination turns out to
be erroneous, did not materially affect the outcome because while
F
accepting this position that there was no such provision, the majority
reached the conclusion that Article 222 (I) does not cater to only
consensual, and that lion-consensual transfer is within the purview of
Article 222 (1). The minority reached an exactly opposite conclusion
relying on this very aspect. It would, therefore, appear that the G
assumption is not so material as to necessitate reconsideration of the
majority view. Even otherwise Jet me see whether presence or abse-
nce of the provision to transfer a judge in the Government of India
Act 1935, has any bearing on the question of construction of Article
222 (1). e

-._ :.i...€
1102 SUPREME COURT llEPORt$ t19821 2 s.c.R.
A
Section 220 of the Government of India Act, 1935, provided
for constitution of High Courts. Sub-section (2) of section 220 pro-
vided that 'every judge of·a H!gb. Court shall be appoi~ted by His
Majesty by warrant under the Royal Sign Manual and shall hold
office until he attains the age of sixty years'. There is a proviso to
8 this sub-section, paragraph (c) of which states that the office of a
judge shall be vacated by hjs being appointed by His Majesty to be a
. judge of the Federal Court or of another High Court; It was assu-
med during the course of arguments in Mr. Sheth's case before this
Court that paragraph (c) of the proviso to section 220 (2) formed
part of the Government of India Act, 1935, as originally enacted. On
c investigation that does not appear to be correct. It is now pointed
out that paragraph (c) of the proviso to sub-section (2) of section 220
was introduced by section 2 of the India (Miscellaneous Provisions)
Act, 1944. By section 6 of the 1944 Act retrospective operation was
given to the amendment introduced by section 2 from the commence-
ment of the Government of India Act, 1935. The marginal note to
D section 2 of the 1944 Act reads: "Judges to vacate office on transfer."
Referring to this provision it was urged that the word 'appointed' in
paragraph (c) also comprehends transfer and it was spelt out that the
'office of a ju'dge of the High Court would be vacated not only on his
appointment as a judge of the Federal Court but also on his being
transferred to another High Court. Earl of Munster during the
E debate on the provision pointed out that a judge of a High Court on
being appointed to the Federal Court or on being transferred to ano-
ther High Court would not retain his office of the judge of the High
Court from which he was transferred. In this context he made refe-
rence to section 10 of the Supreme Court of Judicature Act, 1925,
which provided that the office of any judge of a High Court shall be
F vacated on his being appointed as a judge of the Court of Appeal.
Mr. Pethick Lawrence explaining the provision pointed out that the
transfer of a judge of a High Court'to another High Court was impli-
cit in the provision itself and that the proposal is merely intended to
be beyond question what was certainly the intention in regard to it.
In this context the provision contained in section I 03 of the Govern-
G ment-. oflndia Act, 1915-19 was recalled. In section 103 provision
was made for rank and precedence of the High Court judges inter se
according to the seniority of their appointment unless otherwise pro-
vided in the patents. This provision was omitted from the Govern-
ment of India Act, 1935, but it was said that it makes no difference
H
because a similar provision existed and continues to exist i.n the High
C:::ourts Act or the Charter Act of 1861. At this stage it would be
S.P. GUPTA v. UNION (Desai, J.) 1103
A
worthwhile to recall that in the draft constitution there wa11 no speci-
fic and positive provision for transfer of a High Court Judge. Draft
Article 193 (I} proviso paragraph (c) had almost bodily incorporated
paragraph (c) of sub-section (2) of section 220, Government of India
Act, 1935, in that it was provided that the office of a judge shall be
vacated on his being appointed by the President to be a judge of the B
Supreme Court or of another High Court. And recalling the amend-
ment made to section 220, paragraph (c} of the proviso to sub-sec.(2}
by the 1944 Act while retaining the word 'appointed' in the body of
the paragraph, the marginal note set out the word 'transfer' meaning
that the expression'appointed'in the context of a judge of a High Court
from one High Court to another High Court obviously comprehends c
- his transfer. However, when the drafting committee forwarded the
revised draft constitution as passed by the Constituent Assembly at
the second reading, it recommended certain amendment and changes.
One such amendment was present Article 222. The Drafting Com-
mittee while forwarding its report with a draft constitution as revised
by it, stated that it has 'proposed the insertion of Article 222 to en- D
able the President to transfer a judge of a High Court from one High
J Court to another. The proposed provision of the Constitution would
' not permit of any compensatory allowance being given to judges on
such transfer. Power has accordingly been reserved to Parliament
to determine by law the compensatory allowance to be paid in case
they are so transferred, and, until, Parliament so determines, to the E
President to fix by order the quantum of such allowance.' This
insertion of Article 222 was accepted by the Constituent Assembly
and simultaneously clause (c) of the proviso to Article 217 (I) was

- amended to read the word 'transfer' in place of the word 'appointed'.
It thus transpires that there was a provision in the Government of
India Act, 1935, sinee its commencement for transfer of High Court
judges from one High Court to anoth@r High Court and to that
F
extent the assumption of absence of such a provision as stated in
_,J_ .
... Mr. Sheth's case is erroneous. What is the sequeter? If there was
power to transfer a High Court judge in 1935 Act, logically the
argument that our Constitution has adopted the basic scheme of that
Act must inevitably lead to the conclusion that the Constitution G
makers wanted such power to be conferred and made an explicit
a
provision in Article 222. Whether on ~ransfer fresh appointment
is made so as to necesssitAte the consent of the transferred judge will
be presently examined. But presence or absence of a power to trans-
fer a judge in the Government of Inqia Act 1935, would not be deci- H
sive of the matter because the Constituent Assembly demonstrably ex
1104 SUPREl.JE COURT REPORTS (1982} 2 s.C. It

A pressed its intention to confer power on the President to transfer a
judge as indicated in Article 222 {I). The statement, therefore, in the
judgements of Chandrachud, J., Bhagwati, J. and Krishna Iyer, J. in
Mr. Sheth's case that the Government of India Act, 1935, did not
contain any provision for transfer <;>fa judge would not in any manner
detract from the binding character of the ratio of the majority
B
judgment, nor on this account a re-examination become.s neces-
sary.

It was urged that transfer of a judge of one High Court to
another High Court constitutes fresh appointment and, therefore, if
c initially a man cannot be appointed without his consent because if
such a power was to be conferred on any one it would be a conscrip-
tion or we may be thrown back to the days of slavery and, th~refore,
if transfer of a judge of the High Court amounts to a fresh appoint-
-
ment, ipso facto it cannot be done without his consent. The majority
view in Mr. Sheth's case ·has rejected this contention and in my
D. opinion for very cogent and valid reasons. Briefly, the reasons for
accepting the majority view may be ·stated.
)
Submission is that on transfer a High Court judge ceases to be
a judge of the High Court where he was functioning and is appoint·
E ed a judge of the High Court to which he is transferred and, there-
fore, it is a fresh appointment and therefore it can only be with his
consent.· When it was pointed out that the framers of the Constitu-
tion used the words 'appointment' and. 'transfer' in Article 217 (I)

F
proviso (c), in collocation, they must be aware that the connotation
of the two words are different and the word 'transfer' in itself does
not involve a fresh appointment, it was said that the words have
-
been used interchangeably and recourse was taken to the defini-
tion of 'actual service' set out in clause {I I) to Second Schedule
which includes joining time on transfer from a High Court to
the Supreme Court or from one High Court to anothe~. It was
submitted that the word 'transfer' if it does n'ot include
appointment is inappropriate when used in the context of a
transfer from High Court t0 the Supreme Court because that
is unquestionably an appointment which cannot be made without
consent of the person concerned. Proceeding further it was said that
it is well recognised that use of different words does not necessarily
produce a change in the meaning (see Maxwelrs Interpretation of
Statutes, 11th Edn., pp. 286-289). Reliance was placed on State of
S,P, GUPTA v. UNION (Desai, J.) 1105

Bombay v. Heman Alreia,(1) which decision was referred to with app-
roval in Keshvananda Bharati' s case by Chandrachud, J. (p. 966).
Attention was also invited to Edward Mill.~ v. Ajmer,(2 ) where this
Court did not find any materi.al difference between two expressions
'existing law' and 'law in force. While defining the expresstion 'actual
service' in clause 11 (b) of the second Schedule to the Constitution B.
the word 'transfer' is used in the context, of physical movement,
that is, leaving one place and going to another place and the time
spent in the process. But the expression 'transfer' is used in Article
222 to mean transfer from one High Court to another High Court,
the· person so transferred continuing to be a High Court judge wi~h
continuity of service and there is no break. · Undoubtedly the oath
to which a judge of the Higti Court must subscribe provided that he
takes oath as Judge on being appointed to a designated High Court

-- and, therefore, on transfer when he goes to another High Court he
has to subscdbe to a fresh oath as being appointed to that High
Court. But in service jurisprudepce appointment by transfer is a well
recognised concept involving continuity of office without break. D
Thus fresh oath does not imply that his appointment as High Court
judge comes-to an end. What comes to an end is his appointme.nt
as a judge of a particular High Court and not the holder of the
constitutional office of High Court judge and Article 217( I) provides .
for appointment of a High Court judge and not judge of a parti-
. cular High Court. He continues to hold office even when transferred. E
But when he reaches the other High Court he subscribes to an oath
to be a judge of that High Court, not that he subscribes to an oath
to be· a judge. The jurisdiction to function as a High Court judge is
not ambivalent but the judge functions as a judge of a particular
High Court and enjoys the jurisdiction of a High Court judge in

- relation to the High·Court to which he is thereby attached.

Same conclusion inevitably follows when viewed from another
- angle. Article 217 (I) prescribes consultation with three constitu-
F

• tional functionaries before appointing a person as a High Court
judge while Article 222 (I) obligates consultation only with Chief
Justice of India while transferring a judge from one High Court to G
another High Court. If transfer were to mean a fresh appointment
and yet it can be carried out by mere recourse to Article 222 (l),
the only limitation on the power of the President while ordering
transfer is to have consultation wHl:i tq~ <;:hief Jµ~tice of India, while

(!) AIR 1952 Bombay 161
(2) [1955] 1 SCR 735,
1106 SUPREME COURT REPORTS [1982] 2 s.c.R.

A if the President is making an appointment of a High Court judge
within the contemplation of Article 217 (I) the President is under a
constitutional obligation to consult not only the Chief Justice of
India but the Chief Justice of High C0urt to which appointment is
being made as also the Governor of the State in which the High
Court is situated. Mr. Seervai in this context urged that the two
8 articles must be harmoniously construed and achieve the har-
monious construction he submitted that even though in the case of
a transfer under Article 222 (I) the Chief Justice of India is not bound
to consult the Chief Justice of the High Court but normally it is his
d.uty to do so as a responsible person and that Article 222( I) does not
preclude such consultation. One cannot read into an article what is
G not prescribed because if consultation is obligatory it cannot be left to
the discretion of the Chief Justice of India to consult someone as
a responsible person. Maybe, that the field of consultation, i.e.
the aspects to be taken into consideration in the process of consul-
tation for Article 217 (I) and Article 222 (I) are different but the
--
difference cannot be wished away by merely suggesting something
0
as a matter of prudence. This is inherent evidence suggesting that
transfer of High Court judge does not mean a fresh appoint- · ·
ment.
)
But the most insurmountable impediment I find in the sug·
E gested construction is that the court is not merely called upon to
construe the word 'transfer' but re-write the Article in the name of
construction. Is it permissible? Should the judges constitute them·
selves a Constituent Assembly ? To answer it in the affirmative
would be a dangerous proposition. In fact, in this context the cau-
tion adminis!ered by Mr. Seervai himself in his Constitutional Law
F of India, 2nd Edn., Vol. III, while commenting upon the decision
of this Court in Manohar v. Maruti Rao,(1) may be profitably referred
to. He says at p. 1878 'th at no doubt there is a limited senoe in
-
which in interpreting the law the judge may make law in the sense
of adopting one of two or more alternatives, if such alternatives are
G open, or evolving a new principle to meet a new or unusual situation.
But it is not given to him to write his own theories, likes and dislikes
into the Constitution and the law'. The further comment is that
'the personal views of a judge are irrelevant in the matter of inter-
pretation of a constitutional provision. A further warning was
administered that no scientific theory propou.nded in a i:)ook: can
H
(1) AIR 1979 $.C. 10~4.
s.i>. GUPTA v. UNION (Desai, J.) i 101

form the basis of a judgment, for it is opinion evldefice, and such an A
evidence is admissible on condition that the scientific witness goes
into the bolt and is cross-examined. The serious objection is to the
Judge Writing philosophical and social thesis. Now, interpretation
or a constitutional provision is both an art and a science but while
resorting to well·know canons of construction unwittingly the pet
theory that the independence of judiciary is prized so high that in B
order to achieve it if it becomes a ·compelling necessity the provi·
sion of a constitution may be re-written, no canon of construction
permits this to be done. We must always remember that we are called
upon to construe the Constitution, the fundmental law of the land.
No doubt 'a broad and liberal spirit should inspire those whose duty
if is to interpret it, but I do not imply by this that they are free to c
stretch or pervert the language of the enactment in the interest of
any legal or constitutional theory or even for the purpose of
supplying omissions or of correcting supposed errors' .(1) The Con-
stitution-makers clearly envisaged a power to transfer a High Court
judge and conferred it on the President and howsoever we may
disapprove this power we cannot wish this power away by re-writing
D
the Article. There is no power in-the Court to re-write the Article.
Dr. Ambedkar who piloted the Constitution in his speech on
November 25, 1949, on the motion that the Constitution as settled
by the Constituent Assembly be p~ssed, adopted the following
observation with approval : - E

''.Courts may modify, they cannot replace. They can
revise earlier interpretations as new arguments, new points
of view are presented, they can shift the dividing line in
marginal cases, but there are barriers they cannot pass, F
• definite assignments of power they cannot reallocate. They
can give a broadening construction of existing powers, but
they cannot assign to one authority powers explicitly granted
to another".

{Underlining mine) G

If we read the words 'with consent' not - only the power of the
President is totally taken away blft the power is re-allocated to the
fjudge who is to be transferred, namely, he cannot be ordered to -be
H
(1) Jn.Fe: 1h {q1tr?l f1c,~irct ad l'oar
- . 1938
Act, ' '
F.C.R.18
,; ,. . : ... ,
at 37.
1108 SUPREME COURT REPORTS (1982] 2 S.C.ll.
A transferred but he can be requested a request which can be finally
turned down.

The suggested construction is contrary to jurisprudential con-
cept of power. It was never disputed that Article 222 (I) confers
power on the President to transfer a judge from one High Court to
another High Court. The only limitation on the power is a prior
consultation with the Chief Justioe of India. Now, if the power to
transfer vested in the President can only be exercised with the con-
sent of the judge who is to be transferred, does there reqiain any
power in the President to discharge his constitutional function
entrusted to him by Article 222 (1) ? When power is vested in a
c person or a constitutional functionary there ought to be •he subject
and object of power. Power is generally defined as 'ability con-
ferred upon a person by the law to alter, by his own will directed
to that end, the rights, duties, liabilities or other legal relations,
either of himself or of other persons. Powers are classified either as
public or private. Power is said to be_ public when it is vested in a
D
person as an agent or instrument of the functions of the State
Amongst others, it contains executive authority.( 1 ) The correlative of
power is liability. This connotes the presence of power vested in
someone else, as against the person under liability. It is the posi-
tion of one whose legal rights may be altered by the exercise of a
power. Hopefield describes power and disability as jural contradic-
tion. Now, if the power is in the President, there is a liability as
jural correlative in thejudge who can be transferred. And that power
remains power if the liability can be imposed without consent. The
moment the concept of consent is imported the power ceases to be
power and becomes disability. It either becomes immunity
or disability, more appropriately disability, in the sense of lack
F
of pow1:r. (2) Is it open to the Court by a process of interpretation
to neutralise the powet and thereby remove the disability which was
constitutionally provided? I consider it impermissible and, there- ·
fore, also the contention that the Court should read the words 'with
-
his consent' in Article 222 (1) must be rejected. ·
G
What then is the check against arbitrary exercise of power
conferred by Article 222(1) once the argument that it can only be
exercised with the consent of the ju~ge to be transferred is rejected.

H (I) Salmond:on Jurisprudence by Fitzgerald, 7th Edn. pp. 229-230
(2) (See for;this'_discussion pages.229 _and 230 of Salmond on. ~mis!lrudf(llce bl;'
fiti:~erald,_ 7th· Edn.).
S.P. GUPTA v.· UNION (Desai, J.) 1109

A
This power to transfer a High Court judge has ~rightly been descri-
bed as an extra-ordinary power. The question then is, unless · a
positive check on its arbitrary exercise emanating from judiciary is
found, this extra-ordinary power is likely to undermine indepen-
dence of judiciary. It was said that the best check would be if
this power can be hedged in . with conditfon that it can only be B
exercised with the consent of the judge, a submission which has not
commended to me. Now, if this safeguard of reading consent in
Article 222 is rejected, is there any other safeguard against arbitrary
exercise of power ? We were repeatedly' remiiided that this power
was positively abused in 1976 when 16 judges were transferred
en masse and it is well recognised that what bas been once done, if c
not restrained or checked, may be done again. In Mr. Seth's case

-·
the first safeguard against arbitrary exercise of power waa found in
the obligatio11 cast on the President to consult the Chief Justice of
India and, therefore, the parameters of consultation were drawn
very wide so that the power may not be exercised to the detriment of
the judge for a collateral purpose. The second safeguard was found 0
in reading into Article 222 that the power to transfer a High Court
Judge can ouly be exercised in public interest. Chandrachud, J.
a
held that the power to transfer High Court Judge is conferred by
the Constitution in public interest and not for purposes of pro"viding
the executive with a weapon to punish a judge who does not toe
E
its line or who for some .reason ·or the other has fallen from its
grace. At another place it was observed that if the power of the
President who is to act on the advice of Council of Minister to
transfer a High Court judge under Article 222(1) is strictly limited
to cases in which the transfer becomes necessary in ·order to sub-
serve public interest, in other words, if it be true that the President
... has no power to transfer a High Court Judge for reasons not being
F
in public interest but arising out of whim, caprice or fancy of the
executive, or its desire to bend a judge to its own way of thinking,
there is no possibility of any interference with the independence of
judiciary if a judge is transferred without his consent. The same
view is shared by Krishna Iyer, J. in his concurring judgment. G
Therefore, the majority declined to read the words 'with his consent'
in Article 222( !). The majority, therefore, concluded that non-
consensual transfer is within the purview of Article 222(1). Even
the minority does not question the view that the power to transfer a.
judge can only be exercised in publi~ in~en;s~.
1110 SUPREME COURT REPORTS [19821 2 s.c.R.
A
The public interest me public policy is an unruly horse and
is incapable of any precise definition and, therefore, it was urged
that this safeguard is very vague and of doubtful utility. It was
urged that these safeguards failed to checkmate the arbitrary exer-
cise of power in 1976, This approach overlooks the fact that the
B Lakshman Rekha drawn by the s~feguards when transgressed or
crossed, the judicial review will set at naught the mischief. True it
is that it is almost next to impossible for individual· judge of a High
Court to knock at the doors of the Courts because access to justice
is via the insurmountable to mountain of costs and expenses. This
need not detain us because we have seen that in time of crisis the
0 Bar has risen to the occasion twice over in near past though it must
be conceded that judicial re.view is increasingly becoming the pre-
serve of the high, mighty and the affluent. But the three safeguards,
namely, full and effective consultation with the Chief Justice of
India, and t):iat the power to transfer can be exercised in public
interest, and judicial review, would certainly insulate independence
-
D of judiciary against an attempt by the executive to control it.

There was a lively debate as to whether transfer of a judge
who has to some extent becomes obnoxious in a High Court would )
be in public interest. Chandrachud, J. observed that "experience
E shows that there are cases, though fortunately there are few and far
between, in which the exigencies of administration necessitate the
transfer of a judge from one High Court to another. The factious local
atmosphere sometimes demands the drafting of a judge or Chief
Justice from another High Court and on the rarest of rare occasions
which can be counted on the fingers of a hand, it becomes necessary
F to withdraw a judge from a circle of favourities and non favourities.
The voice of compassion is heard depending upon who articulates it.
Though transfers in such cases are pre-eminently in public interest,
-
it will be impossible to achieve that purpose if a judge cannot be
transferred without his conse~t. His personal interest may lie in
continuing in a Court where his private interest will be served. best,
G
whereas, pubiic interest may require that his m,1orings ought to be
served to act as a reminder that 'the place of justice is a hallowed
place'. " This approach mixes up two independent problems.
While transfer in public interest is conducive to independence of
judiciary, such power when exercised with a view to punishing a
H
judge becomes counter-productive. To punish a High Court judge
by an impermissible method is not in public interest. And if a
S.P. OUP1'A v. UNION tDesai, J.) 1111

judge is uprooted from one place because he has made himself. A
obnoxious, the transfer its::lf may inflict punishment. · In the whole
controversy in this case this is the grey area and it is difficult to
give precise answer either way. •

~--.---
Public interest is an expression incapable of any precise defini- B
tion nor what constitutes public interest is capable of specific enume-
ration. A negative definition was attempted by learned . Attorney-
General when he said that if a judge is guilty of misbehaviour or is
suffering from incapacity he ought to be removed and not transferred
but if the judge is not guilty of. any misbehaviour but because of
activities of some others bas become ineffective his transfer could be c
said to be in public interest. One can visualise a situation when a

-· judge having an expertise in some specialised branch of ·law may be
required to be transferred to another High Court where it becomes
necessary to strengthen that department. Transfer in sue~ a situa-
tion would indisputably be in public interest. Unquestionably such
transfer may cause some inconvenience or hargship to the transferred D
judge, bu by no stretch of imagination it can be said to cast either a
slur or that the order was passed with a view to punishini him. Such
a situation in our vast country with number of High Courts can be
easily envisaged. A transfer of this nature even if it involves to the
judge concerned some hardship, some inconvenience some pecuniary
loss, yet his outstanding merit which necessitated his transfer for E
strenghening another High Court would far outweigh the personal
considerations. If it is recognition of merit, the judge would
himself hardly make any grievance about it. To question such a

-
transfer as not being in public interest by illustration that there are
three judges of same eminence in three High Courts, what basis can
be adopted for the transfer of a judge is too hypothetical to need an F
answer. No rule can be framed to meet with such a situation. A
threat of a resignation by such a judge is inconceivable. One can
visualise a number of situations where a transfer can be in public
interest and when a transfer is effected . in public interest and when
questioned, the authority exercising the power of transfer must make
good the claim of public interest. To say that public interest is not a G
sufficient safeguard is to deny what is being day in and day out done
in Court, viz.; that a certain action being in public interest. is upheld.

But the serious and fairly difficult question is, whethe,r a judge H
can be transferred on account of complaints against him or on acco-
ib12 stJPRilM£ COURT RJiPOR'rS [1982) ~ s.c.tt.
A
unt of anythin_g in his conduct or behaviour. Let us put the negative
inJhe.majority view in the forefront. Chandrachud, J. has in most
uneq!Vvocal terms stated that 'the power' to transfer a High Court
judge is conferred by the Constitution in public interest and not for
the purpose of providing the executive with a weapon to punish a
B judge who does not toe its line or who, for some reason or the other,
has fallen from its grace (p. 444)'. At another place he said that he
has taksn the view that a High Court judge cannot be transferred as
matter of punishment as for example the views which he bona fide
holds and that his transfer, being conditioned by the requirements of
public interest, cannot be effected for an elltraneous purpose (p. 446),
c Bhagwati, J. observed that 'it would be gross abuse of power to disp-
lace him from his High Court and transfer him to another High
Court by way of punishment because he has decided cases against the
Govt. lt is a power conferred on the President to be exercised in fur-
therance of public interest and not by way of victimisation for incon-
venient decisions given by a High Court judge' (p. 460). Krishna
-
D Iyer, J. in this context has observed that 'the nature of judicial pro-
cess is such that under coercive winds the flame of justice flickers,
faints and fades. The still small voice is smoothened by subjective
tirbulations and anxieties and, if coerced, trembles to objectify law
and justice. The true judge is one whose soul is beyond purchase by
threat or temptation, popularity or prospects'. At another stage it is
E observed that 'environmental protection of the judicial echelons from
executive influence, by transfer or other deterrent, is in public inter-
est'. Coupled with this is the view expressed that 'considering the
great inconvenience, hardship and possibly a slur which transfer from
one High Court to another involves the better view would be to leave

F
the judges untouched and take other measures to achieve the purpose
pleaded, namely, national integration'. Transfer thus casts slur. If,
therefore, a judge is transferred because he is involved in local fac-
tious atmosphere o~ has a circle of favourities and disfavou'rities it
-
would be obviously by way of punishment and would cast a slur and
stigmatise the judge. Mr. Seervai pointed out that while conceding
in the majority view that transfer involves a slur, the illustrations
G given by Chandrachud, J., clearly show that transfer in such situa-
.tions would be by way of punishment. Power conferred by Article
222 (1), (rankly, cannot be exercised with a view to punishing the
judge. It can only be exercised in public interest for achieving some
larger public good. But it was urged that if a judge is not guilty of
H high misdemeanour sufficient to impeach him but behaves in a
manner which brings administration of justice into disrepute a trans-
s.P. OUPTA v. U~ION (Desai, J.) 1113

fer which with a view to uprooting him from an atmosphere in which
A
he has become inconvenient, would be to the good of that judge and
in the interest of purity of administration of justice and such a trans-
fer cannot be said· to cast a slur of stigma on· the judge concerned.
On an earlier occasion this view appealed to me. In my judgment in
Mr. Sheth's case, I observed in this behalf as under :
B
"I specifically asked Mr. Seervai, taking cue from his
Sir Cliimanlal Setalvad Lecture titled 'Tipping the
Scales' where he refers to 'reigning favourite' that there
is a judge in the High Court. He i.s a very competent
judge. But he has developed certain local angularities c
- which have vitiated the court's atmosphere. He is a
good judge and the drawback is not so grave to call for
his impeachment; what was. required was to free him
from local peculiar undesirable influence. Would not
his transfer solve the problem to the satisfaction of all.
He was asked whether he would not mind being trans- D
ferred. He candidly said 'No'. How is the problem
to be solved ? Transfer of such a judge is in public
interest, cannot be gainsaid. He is not willing to be
transferred and he would not give his consent. If the
power to transfer is further limited by reading into ·
Article 222 the words 'with his consent' by process of E
interpretation, Article 222 becomes a constitutional
deadwood. He cannot be transferred. He cannot be
continued at that place, and there is no tangible suffi-

-
cient proof for impeachment. Law Commission in its
Fourteenth Report, Vol. I, p. 99 rejected a transferable
cadre of High Court Judges. But Mr. Seervai in his F
lecture observed that the Commission did not consider
separately 'whether the power to transfer a Judge would
not in the last resort be used as a remedy for an admit-
ted evil (p. 118). Then there must be power in s0me
·one to transfer the Judge albeit without his consent.
· And if we read down the Article as suggested there is
G
no way out. Mr. Seervai said that the resultant situa-
tion is that there are two public interests in the field
and they appear to be in conflict with each other, to wit
(i) transfer of a judge without his consent by a litigant, H
namely, executive would undermine judicial indepen-
dence which is a cardinal · feature of the Constitution;
1114 SUPREMll COURT RllPORTll (1982) 2 s.c.R.

A and (ii) image of dame. justice would be tarnished
'unless the Judge is transferred- so as to. save him from
the undesirable environmental influence affecting his
integrity. The answer is that the Court, in such a situ-
ation; must determine the dominant public interest and
B give precedence to it over the . confliciing subservient
interest which must give way. Said Mr. Seervai, tole-
rate the situation rather than undermine judicial inde-
- · pendence by compulsory transfer by the Executive. It
often happens that the principles when pushed,to logi-
'- cal end lead to two irreconcilable positions. · In such a
· conflict choice has to be made. Cardozo in his Nature
c_ of Judicial Process (p. 40-41) vividly describes. this con-
flict by saying that force of logic of one should prevail
. .over the other, and the choice is made by the judicial
inind born of its conviction that the one to be selected
, . would lead to justice. in the end, the principle which
, is thought to be most fundamental to represent the Iar-
:D 1. ger and deeper social interests must put its competitors
to fight. · Approaching from this angle, he said, if you
cannot . impeach the · judge, · tolerate but you
· cannot transfer him without his consent becanse that
· 1 . would impinge upon the higher public interest, namely,

E independence of judiciary and would nullify the cardi-
nal feature of the Constitution."

,;

·But on deeper thinking l believe that selective transfer .of individual
judge for something improper in his' behaviour or . conduct would
F- certainly cast a slur or attach a stigma and would leave .such indeli-
.. hie mark on the character of the judge that even in ·the High Court
to which he is transferred he would be shunned· and the consumers •
of justice-would have little or no faith in his judicial integrity •. This
· is an inevitable outcome of selective transfer on the ground of· some
improper.streak in the conduct or behaviour of the judge. It is true
G that the procedure for impeachment is rather . very cumbersome and
it ought to be so because the ultimate power to impeach rests with
the Parliament. ·. Alld in. a .Parliamentary democracy the 'e:i:ecutive
. which controls a majority in Parliament would. be able to carry out
the threat of impeachment. •It may .be, as was urged, that the judge
,H may behave fn an impeccable manner but there are others function-
ing in the Court who would
. render judge's task of ,,judicial justic~
.",.' ';.. ... .. . ~- .
'

.. •
S.P. GUPTA v. UNION (Desai, J.) 1115

impossible. I fail to see bow transfer of such a weak and indecisive
A
judge unable to controi his relations, friends or associates would be
better of by transfer. Society would dub him a weak and imbecile
judge. One thing i~, therefore, certain that the power conferred by
Art. 222 (I) cannot be exercised with a view to punishing the judge
for anything improper in bis behaviour or conduct. What a deep · B
resentment and consequential character assassination a High Court
judge suffers by such selective transfer can be gauged from the reac-
tion of Shri M. M. Ismail. former Chief Justice of Madras High
Court who resigned only because according to him. the transfer was
by way of punishment and casts stigma on his judicial poise and
bearing. "Law Minister in his highly controversial circular dated
March 18, 1981, has stated that 'to further national integration and
c
to combat narrow parochial tendeneies bred by caste, kinship and

-- other local links and affiliations', some fresh steps are required to be
taken. Transfer to achieve such objects may apparently be in public
interest. Therefore, whenever the transfer answers to some objective
norms even if it causes personal inconvenience and hardship, it Ci!n D
be said to be in public interest. But the transfer of a judge noi ans-
wering to any objective norms but selectively made and founded
upon complaints and grievances relatable to the conduct or behaviour
\ of the judge would certainly cast stigma or slur and would be by way
of punishment and that cannot be inflicted by exercise of power under
Art. 222 (!). If transfer can be efft.>cted because there are complaints E
and grievances against a judge of a High Court on account of his
behaviour or conduct it would permit the executive after going thro-
ugh the process of consultation to rotate inconvenient judges and this
rotation causes such character assassination. on one band and hard-
ship and inconvenience on the other that it will be sufficient to drive

- out even a strong willed judge. Therefore, a transfer on account of
any complaint or grievance against a judge referable to his conduct
or behaviour is impermissible in exercise of power under Art. 222 (!)~
F

One more submission may be examined here. It was contended
that upon a true construction of Art. 222(1 ), a proposal for transfer G
cannot be initiated by the Chief Justice of India, it can only be
initiated by the President because the Chief Justice of India is the
'consultee'. The power of transfer is conferred on the President
and it can be exercised after consultation with the Chief Justice of
India. Chief Justice of India is thus the constitutional functionary H
to be consulted. Would initiation of a proposal for transfer
c:maMting from the Chief Jq~tice of India 1 a constitqtion;d fqn9-
1116 SUPREME COURT REPORTS [19821 2 s.c.a.
A tionary required to be consulted, by itself vitiate the proposal'? In
other words, can it be said that Art. 222 (I) envisages proposal for
transfer to be initiated by the President alone and after due del ibera-
tion and consultaion with the Chief Justice of India the proposal
can be carried out if deemed proper or be dropped ? Undoubtedly
the power is in the President to transfer and as a pre-condition the
B Chief Justice is required to be consulted. But on that account alone
it cannot be said that the Chief Justice of India cannot initiate the
proposal. Where power to do a thing is vested in a certain con-
stitutional functionary it is immaterial who draws the attention of
the constitutional fun.ctionary, the repository of power, for exercise
of the same. If the power is exercised after fulfilling all the
c pre-conditfons, · the mere fact that somebody irivited the

-
repository of power to exercise power which may tantamount to
• saying that someone initiated the proposal for exercise of the power,
such initiation of proposal would not l;ie unconstitutional or con-
trary to the constitutional mandate. The only caution that must be
required to be administered is and it has assumed importance in
D this case, that if Chief Justice of India who is the authority to be·
consulted in respect of a proposal for transfer himself becomes the
initiator of the proposal, the whole process of consultation must
move in such a manner as to ensure that the President who is
invited to exercise the power at the instance of the Chief Justice of
India has to apprise himself of all relevant considerations and has to
E fully inform himself of all the aspects of the matter and then the
power is to be exercised. When in Mr. Sheth's case it was said
that while consulting the Chief Justice of India the President must
make the relevant data available to him on the basis of which he
can offer to the President the benefit of his considered opinion, the
F
process ~ould have to be reversed when the Chief Justice of India
is the initiator of the proposal for transfer. It would be the con-
stitutional obligation of the ChiefJustice of India to place all rele-
vant data and material having an impact on the fina.1 verdict before
-
the Persident and the President in his turn must apprise himself of all
the relevant considerations. If there are either grey or blurred areas,
G it would be the donstitutional obligation of the President to call ··for
necessary information from the Chief Justice of India who being the
initiator of the proposal must. have considered all of them and
having brought to bear upon the subject his mature consideration
must have initiated the proposal and after all the relevant data
thus supplied, including the missing links, if any, as required
H by the President, the · President may either exercise the
11.r. GUPTA v. UNION (Desai, J;) 1117

power '.or on mature consideration may decline to exercise the power. A
Collection of i;elevant material, public interest involved, and the
decision recommending transfer must precede the proposal and the
same must accompany the proposal. A bald proposal unaccom-
panied by relevant material and the reasons for proposing transfer
and total absence of public interest sought to be served by the
proposal would certainly not satisfy the constitutional mandate of B
Art. 222 (I}. The fulfilment of the constitutional obligation in this
back1,round would be on the Chief Justice of India and the per-
formance by the President of his duty to elicit all facts which are
necessary to arrive at an appropriate conclusion are parts of the
same process and are complementary to each other. But with this
pre•caution, who initiates the proposal is irrelevant. In this context,
·c

-
however, my attention was drawn to a passage in my judgment in
Gujarat High Court in Mr. Sheth's case which gives an impression
that the President alone can initiate the proposal. In paragraph 140
it is stated that : 'it is not for a moment suggested that the pro-
posal for transfer must emanate from the Cllief Justice That is
0
not expected and it is bound to emanate from the. President. ·The
process for inception of the proposal is not to be reversed. Such a
thing may also be open to objection and the reason is apparent'.
At first blush this passage gives an impression that upon its true
construction Art. 222 (I) precludes anyone except the President of
Inch to initiate the proposal for transfer and that in any case the E
Chief Justice of India cannot inititiate the proposal. The observa-
tion was in the context of a submission that exercise of power of
transfer by the executive would be subversive of independence of
judiciary and that in order to eliminate arbitrary exercise of power
conferred on the President the Court must so construe Art. 222 (1)

- that the proposal for transfer must originate with the Chief Justice
of India. The submission presently examined is exactly the
converse but answering the submission before the High Court
F

it was observed that in order to ensure independence of judiciary it
is not obligatory that a proposal for transfer must emanate from the
Chief Justice of India.· The passage, therefore, must be •ead in
this light. G

Summing up the discussion, following propositions emerge
both on principle and authority. While testing the validity or
otherwise ·of an order of transfer of a High Court judge made by
the President in exercise of the power conferred by Art. ~22 (I)~
below. mentioned tests will have; ~Q '2~ applied:. · ·
1118 SUPREME COURT REPORTS (1982],2 s.c.R.
A (i) power to transfer a Judge of High Court is con-
ferred on the President which as part of the executive
function of the President he would, in view of Art. 74,
discharge according to the aid and advice received by
him from the Council of Ministers ;
B
(ii) · the power to transfer a High Court Judge thus is in the
executive which is the litigant in a very large number
of cases coming before a Judge of a High Court ;
1.-
(iii) the power to transfer a High Court Judge is extra·
c ordinary power ;

(iv) the limitation on the exercise of power is a full, effec-
tive and meaningful consultation with the Chief Justice
of India;
-
D
(v) the power to transfer can be exercised only in public ....-
interest and not according to the whim, caprice or
fancy of the executive or to remove an inconvenient
udge not toeing its line ; )
E (vi) the consultation to be effective must be focussed upon
such very personal factors as the family problems of
the judge, which include the position of his wife and
children and parei;its, the reasons for transfer whether
the transfer is actuated on account of anything in the
conduct or behaviour of the judge, whether the injury,
F inconvenience and difficulties experienced by the judge
consequent upon his transfer are such as to be
inconsequential in view of the larger public interest
-
f c r which the transfer is being ordered ;

(vii) would the transfer cast a slur or stigma on the judge
J-
G proposed to be transferred?;·

(viii) the policy universally followed till 1976 of not transferring
a judge of High Court without his consent is being shelved
H for achieveing some larger public interest or the so-called
public interest is 3 Qloii.k or devici.i to .strike at all inoon-
Ye!lient judge. :
S.P. GUPTA v. UNION (D€sai, J.J 1119

A
(ix) is the transfer intende\i to inflict punishment for mis-
behaviour not of adequate magnitude to invoke proceed-
ings analogous to impeachment as contemplated by Art.
124 (4) and (5) read with Art. 218 and Judges (Inquiry)
Act, 1968?
B
The allegations made and coun.tered in this group of petitions
may be examined on the touchstone of aforementioned well settled
propositions so as to reach an affirmative conclusion one way or the
other, whether the order dated January 19, 1981. transferring Shri
K.B. N. Singh, Chief Justice of Patna as Chief Justice, Madras, is
constitutionally valid or otherwise. ·
c

- Factual averments are set out in petitions as well as numerous
affidavits filed in the course of hearing of these petitions. Two
important affidavits are Shri K.B N. Singh, dated, September 16,
1981, and counter affidavit of the Chief Justice of India dated
September 29, 1981. Shrl K.B.N.·Singh filed on Octoher 16, 1981, D
an affidavit in reply to the affidavit of the Chief Justice of India. It
is rather unfortunate that there is divergence between the affidavits
of Shri Singh and the affidavit of the Chief Justice of India but the
painful and agonising task of searching where the truth lies is
spread by the stand taken by Shri Singh's learned counsel, Dr.
Singhvi, that he would not refer to any divergence between these E
affidavits and base his submissions on the points on which they
converge. The only difficulty we experienced is that in the course
of discussion some queries emerged and had to be left at that stage
because Mr. Parasaran, learned Solicitor-General to whom we

. addressed our queries, frankly confessed his inhability to help
because he did not· appear for the.Chief Justice of India. In Mr .
Sheth's case the Chief Justice on India appeared through counsel his
F

did not file his affidavit. In this case Chief Justice of India filed but
affidavit but did not appear through counsel to assist the Court. We
are therefore, left to fend for ourselves. But let it be made distinctly
clear that the affidavit of Chief Justice of India would be looked
upon as setting out the truth, and is entitled to undiluted respect
G
I
befitting the dignity of his office.

Shri K.B.N. Singh has filed as many as four affida.vits. It is
not necessary to recapitulate the averments in ,these affidavits. The ~
broad allegations which have a bearing 011 tl:ie i&sues under discus-
~ion may be briefly stated.. ·
1120 SUPREME COURT REPORTS [1982] 2 s.c.R.

A In his first affidavit dated September 7, 1981, the only aver-
ment worth referring to it that he had not at any titne consented to
his transfer to Madras and that no reasons, grounds, questions or
materials necessitating or justifying his transfer from Patna to
Madras were ever disclosed to him or discussed with him by the
8 President of India or the Government of India or by the Chief Justice
of India. He also states that it was not possible for him to give
consent to his transfer on account of a compelling personal problem,
namely, that his mother of advanced age is staying with him and she
is seriously ailing and bed-ridden for over two years and who is not
in a position to be moved out of Patna without risk to her life and
c is not in a position to leave her alone. Coupled with this affidavit
there was a request that from the array of respondents he may be

-
transposed as petitioner 3, which request was granted.

Consequent upon transposition of Shri K.B.N. Singh as
petitioner 3, detailed amendments to the petition preferred by two
D advoc:ates, would have been inevitable. With a view to avoiding the
same, Shri K.B.N. Singh was given liberty to file a detailed affidavit
setting out therein all his contentions. Pursuant to this liberty
. reserved in his favour he has filed a detailed affidavit dated
September 16, 1981, inter alia, contending that in February 1980,
the Chief Justice oflndia visited Patna for inaugurating International
E Rotary Conference. The fact that such a conference was held on
23rd and 24th February 1980 and that it was inaugurated by the
Chief Justice of India is not disputed but what is controverted is
. ~

that the visit was not specifically for the purpose of inaugurating
Conforence but it was an official visit incidental to which the invi-
F
tation to inaugurate the confer~nce was accepted. Shri Singh then
proceeds to state that during this visit the Chief Justice of India did
not give him any inkling of a proposal to transfer him. This is
admitted by the Chief Justice of India saying that at that time no
-
proposal for transfer of Shri Singh was even mooted and, therefore, \
there was no question of giving him any inkling in this behalf. Shri -.t
Singh then proceeds to state that on January 5, 1981, for the first
G time he received a telephonic message from the Chief Justice of
India that as Shri M.M. Ismail, the then Chief Justice of Madras
was proposed to be transferred to Kerala, in the consequential
uacancy in the office of Chief Justice, Madras, Shri Singh was
proposed to be-transferred. -Shri Singh enquired why he was being
H
transferred to Madras and the Chief Justice of India said that it
was 'Qovernment policy'. The fact that there was such a telephonic
s.i>. GUPTA .... UNION (Desai, i.) • 1121

A
conversation between Shri Singh· and the Chief Justice of India on
January 5, 1981, is admi.tted _and also that during this conversation
there was reference to 'Government policy' bearing on the question
of transfor was also referred to. What is disputed is thatfor;the
proposed transfer 'Government policy' was not the only reason:given
by the Chief Justice of India and the Chief Justice of India in his B
counter-affidavit has stated that over and above referring to Goyern-
ment policy, Shri Singh was informed that it was proposed fo transfer
Chief Justice M.M. Ismail from Madras and it was necessary to
appoint an experienced and senior Chief Justice in his place. Shri
Singh then asserts that he informed the Chief Justice of India that his
mother who lives with him was seriously ill and bed-ridden and was
not in a position to be moved from Patna without risk to her life.
c
This is admitted. The additional averment of Shri Singh that he also
stated certain other compelling and personal circumstances and diffi-
culties was disputed and denied. Undoubtedly the further averment
of Shri Singh that despite all these difficulties, if his transfer is insisted
upon he might be compelled to resign and such a statement having D
been made by him in the telephonic conversation is admitted by the
Chief Justice of India. ShriSingh was also informed that the Chief
Justice of India has taken note of the difficulties mentioned by
him and that it would be taken into consideration before a final deci-
sion was t'aken. The Chief Justice of India also requested Shri Singh
. during this conversation to come over to Delhi to discuss the ques-
tion of his transfer. Shri Singh further avers that he reached Delhi
three or four days after this telephonic conversation and according to
Chief Justice of India Shri Singh came to Delhi on January 8, 1981,
and met him at his residence. There is some divergence on the ques-

- . tion as to the duration of time for which Shri Singh was with the
Chief Justice of India. According to Shri Singh he was with CJiief
Justice of India for IO to 15 minutes while according to Chief Justice
of India he was with him for a period much 'longer than 10 to 15
minutes. During this discussion according to Shri Singh the Chief
Justice of India was non-committal in the matter of Shri Singh's
transfer. Shri Singh proceeded to tell the Chief Justice of India
during this conversation at the residence of the latter that it was pos- G
. sible that baseless complaints which are the bane of Bihar might have
been made to him and if so, he would like to remove any wrong
impression that might have been created. Even after this suggestion,
according to Shri Singh, the Chief Justice of India did not put any
question or material to him which necessitated or justified his trans- H
fer .• The version given by the Chief Justice of India in his counter-
.·
1122
• · . SUPREME COURT REPORTS (1982) 2 S.C.lt.

A affidavit is that the question of Shri Singh's mother's illness was dis-
cussed and the Chief Justice of India disclosed his inability to agree
· ... with Shri Singh 1hat there were no other dependable
~ .
persons . in
.
his'
family who. could lookafter his mother and it was . pointed out that
Shri s, B. N. Singh, the brother of Shri Singh who was a practising
advocate in the Patna High Court was quite .capab!e'of looking after
B the mother. The Chief Justice of India admits that during this dis-
cussfon Shri Singh pointed out that it was possible that some baseless
--
. ·:complaints may have been made to him (Chief Justice of India} and ·
'that he (Shri Singh) would like to remove any _wrong impression
which those complaints may have created.. On .this reference being
made by Shri Singh the Chief Justice of India told him that he did
c not go by baseless complaints, that he did not believe that his (Shri
·Singh's) conduct was blameworthy, but that if he wanted to explain
.. any matter, which according to him had created.dissatisfaction about
the working of the High Court he wa8 free to do so. · The Chief Jus-
.. : tice of india further states. that during this. conversation Shri Singh
told him how certain persons connected with the High Court were ·
D · influenced by.communal considerations and how he; on his own part,
did not permit communal or· any other extraneous considerations to
influence him administrativeiy or judicially•. The Chief Justice. of
. India further states that he (Chief Justice· of India} assured Shri J
Singh that . he did not hold that he (Shri Singh} hims;lf was to .
blame but that certain persons were exploiting their pft'.l'ximity to.him
·E which bad created needless misunderstanding and dissatisfaction •
• Number of grounds have been stated by Shri Singh in this affidavit
but these of which notice may be taken are that the transfer. is with-
out consent which according to him is impermissible, and that. the>
consultation was not full, effective and meaningful in that the rele-
vant consid~rations were not taken into a'.ccount, no verification of
facts was made and there was no relevant consideration for coming
• ' • c • ,

to a fair and considered conclusion that such a transfer would be in
public interest. One additional ground is that the impugned :order
_of transfer is punitive in character. Further, the transfer caused 'in-
jury and the injury is inflicted without . following' the principles
G of ~atural justice, and the transfer is not shown to be in public
iD.ierl!st.

Chief Justice of India filed his counter-affidavit dated Septem·
H·_: her 29, 1981. Shri Singh filed reply to the counter-affidavit on dcto~
ber 16, 1981. In between there are two affidavits, oneofShri K.C.
· Kankan, Deputy Secret~ry, Department of Justice, Ministry. of Law,
S.P. GUPTA v. ui-dON (Desai, J.) ni3
A
·Justice and Company Affairs, being counter-affidavit on behalf of the
Union of India, and the other by Shri T. N. Chaturvedi, Secretary,
Department of Justice, Government of India, specifically claiming
privilege against disclosure of certain documents called for by Shri
Singh.
B
By an order made by this Court, the Union of India was called
upon to disclose all relevant documents, notings, etc. bearing on the
question of transfer of Shri K. B. N. Singh. Pursuant to this order
a file was submitted to this Court containing the correspondence bet-
ween the Chief Justice of India and the Law Minister, Chief Justice
of India and the Prime Minister, and a letter from Shri M. G. Rama- c
chandran, Chief Minister of Tamil Nadu to Law Minister.

- The evidence furnished by the correspondence may have to be
evaluated, appreciated, analysed and examined along with the aver-
ments made in various affidavits. The correspondence has to be D
read in juxtaposition with the averments in the affidavits so that the
clear picture of fact situation may emerge which may assist in dispo-
sing of the contentions raised by Shri Singh.

The Chief Justice of India-wrote to the Law Minister on Decem-
E
ber 7, 1980. This is a fairly long letter, part of which refers to
filling in the vacancies in the Supreme Court which may be ignored as
being wholly irrelevant for the present purpose. The next subject
discussed is confirmation of Acting Chief Justices one of whom is
Shri K. D. Sharma, then Acting Chief Justice of Rajasthan High
Court and the recommendation is that he should be confirmed. There
F
is a reference to Justice Murti Bahauddin-Farooqi, then Acting Chief
Justice of Jammu & Kashmir. The ~ecommendation bearing on the
question of -::onfirmation of Justice Farooqi as Chief Justice is not
. -\_ .
relevant but as we are dealing with the transfer and as the proposal
has emanated from the Chief Justice of India, what were the relevant G
considerations present to the mind of the Chief Justice of India on
the question of transfer have a vital bearing on the final outcome
and, therefore, that part of the letter which recites a recommenda-
tion for· transfer of Justice Farooqi can be taken into account. This
is being referred to for a very limited purpose as to the overall view H
of the letter, the approach of the Chief Justice of India, the permea-
ting flavour in the letter that the transfer is consequent upon some
1024 SUPREME cotJR'i' REPORTS [19S2j 2 s.c.l.
A inquiries in respect of complaints against various Chief Justices and
this bas .a vital bearing on the topic of transfer. Viewed from this
angle, the statement in this letter that several complaints have been
received against Mr. Farooqi, some of which, on verification, seem
well-founded, bas a direct nexus to the recommendation that Mr.
Justice Farooqi, then Acting Chief Justice of Jammu & Kashmir
B should be transferred as a puisne judge of the Punjab & Haryana
High Court. As would be pointed out later, indisputably the trans-
fer was a direct consequence of complaints found well-founded on
verification and, therefore, the transfer was directly and irrevocably
related to the conduct of Justice Farooqi.
I

c Th t: Chief Justice of India then proceeds to state in unmistaka-
ble terms as under which is very very relevant

"Though I am firmly opposed ~o a wholesale transfer
of the Chief Justices of High Courts, I take the view,
D which I have expressed from time to time, that such
transfers may be made in appropriate cases for strictly
objective reasons. Personal considerations must, in the
matter of such transfers, be wholly kept out. The
transfer of some of the Chief Justices has been engag-
. ing my attention for the past few months. I have made
E personal inquiries in this behalf and have met several
lawyers and many judges of the concerned High Courts.
On the basis of the data which I have collected and
which I have considered with the greatest objectivity, I
am of the opinion that the following transfers may be
made". ·
F
Proceeding further in the letter the Chief Justice of India recommends
transfer of Sbri K. D. Sharma, Acting Chief Justice of Rajasthan as
Chief Justk:e of Kerala consequent upon the vacancy caused in the
office of Chief Justice of Kerala by elevation of tbe then incumbent
of office to the Supreme Court of India. In the- vacancy caused by the
G transfer of Shri K. D. Sharma in the Rajasthan High Court, the
recommendation was that. Shri K B. N. Singh, Chief Justice of Patna
High Court be tra~sferred and posted as Chief Justice of Rajastban
High Court and Shri Syed Sarwar Ali, seniormost puisne judge of the
Patna High Court should be appointed as Acting Chief Justice of
H Patna High Court. On the transfer of Shri Farooqi, Acting Chief
Justice of J.ammu & Kashmir High Court, Mr. Justice Mobllmmad
S.P. GUPTA v. UNION (Desai, J.) 1125
A
Hamid Hussain of the Allahabad High Court was to be promoted
- and posted as Chief Justice of Jammu _& Kashmir High Court. Then
follows a paragraph which must be extracted :

"That leaves for consideration the question of appoint-
ment of permanent Chief Justice of the Allahabad B
High Court. I am fairly satisfied that Chief Justice
Satish Chandra should be transferred from .the High
Court of Allahabad, but I do not want to express any
final opinion on this question until! I ascertain for my-
self the state of affairs in Allahabad. For that pur-
pose I will be going to Allahabad on December 31.
During my three days' stay at Allahabad, I will be

-· meeting various members of the Allahabad Bar as also
the Judaes of that High Court. In case T advise the
transfer of Justice Satish Chandra, he can be appoin-
ted as the Chief Justice of the Patna High Court.
D
That will create a vacancy in the_ office of the Chief
Justice of the Allahabad High Court for which a suit-
able recommendation can be made later. Justice
Satish Chandra's transfer to Patna, in case it is neces-
\ sary, may be made any time after January 15,
1981 ". E

This letter thus involves the transfer of Acting Chief Justice Mr.
Farooqi, Mr. Justice M.H. Hussain, Acting Chief Justice Mr. K.D.
Sharma, Chief Justice Mr. K.B.N. Singh and a near· certain trans-

- fer of Chief Justice Mr. Satish Chandra.

Leaving aside others, one incontrovertible fact may be noticed
here that prior to December 7, 1980, when a firm proposal was
F

made for transfer of Shri K.B.N. Singh from Patna to Rajas-
than High Court, there was neither a whisper or discussion between
. Chief Justice of India and Shri Singh concerning his transfer. The
G
proposal to transfer Shri Singh is a firm proposal not a tentative
one because the tentative suggestion couched in a different language
is in re~pect of Shri Satish Chandra, Chief Justice of Allahabad.
As far as Shri K.D. Sharma, Acting ChiefJustice of Rajasthan,
Shri K.B.N. Singh, Chief Justice of Patna, Shri Farooqi, Acting
H
Chief Justice of Jammu & Kashmir, and Shri M.H. Hussain, Judge of
Allahabad High Court, are concerned, there was a firm proposal

'
=\
\
1126 SUPREME COUil! RllPOllTS (1982) 2 S.C.R

A and it would mean that before making such a firm proposal the
Chief Justice of India must have taken all aspects bearing on the
question of transfer into consideration b. cause of transfer such high
constitutional functionaries as Judge or a Chief Justice of a High
C~urt is to be made after collecting relevant material, cool delibera-
tion, mature consideration and as an absolute necessity. If the
B propos~I to transfer Shri Singh was thus a firm proposal which if
the President had accepted without further question as it was com-
ing from the highest in the judiciary, the Chief Justice of India,
and Shri Singh was transferred, ex facie the validity of the transfer
... _......
would be open to serious question in view of the ratio in Mr. Seth's
case. Within 24 hours before the ink was dry on th~ first letter the
c Chief Justice of India, whose attention was drawn to serious error
in proposing transfer of Acting Chief Justice Shri K.D. Sharma from
Rajasthan to Kerala High Court by telephonic conversation, imme-
diately went back on the proposal. It transpii-es from the corres·
pondence that the Law Minister drew the attention of ~he Chief
--
D Justice of India that if Shri K.D. Sharma, Acting Chief Justice of
Rajasthan was transferred as Chief Justice of Kerala High Court,
he would become Chief Justice over six judges of Kerala High Court
who were senior to him by length. It was pointed out that Shri
Sharma was inducted as a Judge of the Rajasthan High Court in
in 1973 while the seniormost puisne judge in Kerala High Court
E Shri P. Stihramania Poli was inducted in the High Court in 1969
and that there were five other judges along with Mr. Poti who were
inducted into the High Court prior to 1973: If t~e proposal of the
Chief Justi<:e of India was implemented, a fairly junior judge would
become Chief J.ustice over his seniors, a thing which would be
seriously resented as the imposition would be utterly unjustified,
F destroying ruthlessly the natural expectations of judges who had
accepted Hi1gh Court judgeship between 1969 and 1973. It appears
this very relevant aspect was completely overlooked while making
the recommendation for the transfer of Shri K.D. Sharma to Kerala
High Court. This faux pas on being brought to the notice of the
Chief Justice of India was rightly accepted saying that the Chief
G Justice of India "did not realise that as many as six judges of the
Kerala High Court are senior to Justice Shri K.D. Sharma and that
makes it necessary to think abont the· matter d:fresh"; and, there-
fore, by letter dated December 8, 1980, the proposai to transfer
Shri K.D. Sharma as Chief Justice of Kerala was. cancelled and in
H supersession of that proposal a fresh proposal was submitted that
Shri K.D. Sharma be transferred to Sikkim and Shri M.M.S; Gujral,
S.P. GUPTA v. UNION (Desai, J.) 1127

the then Chief Justice of Sikkim be transferred as Chief Justice
A
Kerala. Even Mr. Gujral was inducted as a High Court judge
five months later than Mr. Poti. This fact was not considered
important enough in making the proposal. The other proposals
contained in the letter dated December 7, 1980, were reaffirmed
which would imply that Shri K.B.N. Singh's proposed transfer from
B
Patna to Rajasthan High Court was to be ordered.

The next letter dated December 18, 1980, by Chief Justice of
India to Law Minister reveals one more fact that before
the letter dated December 8, 1980, intimating the cancellation of
poposal of transfer of Shri K.D. Sharma to Kerala High Court c
reached appropriate quarters, the proposal was already processed
to the Prime Minister who appears to have approved the same and
this becomes evident from a recital in the letter dated December 18,
1980, that having communicated one proposal to the Prime Minister
in regard tJ the appobtment of Kerala Chief Justice (Shri K.D.
Sharma) consequent upon the impending elevation of the then D
Chief Justice to Supreme Court, it was some what awkward to
withdraw that proposal especially sine~ the Prime Minister was
-\ inclined to agree to that proposal.

Possibly with a view to apprising the Prime Minister as to the E
circumstances necessitating withdrawal of the proposal, on the same
day a letter was addressed by the Chief Justice of India to the
Prime Minister in which it was stated that while recommending

-
transfer of Shri K.D. Sharma as Chief Justice of Kerala High Court.
he had overlooked that Justic~ Shri KD. Sharma is junior to as
many six judges of the Kerala' High Court and, therefore, his trans· F
fer to that High Court was bound to invite a great amount of pub-
lic criticism and it would also create administrative problems in the
way of Justice Sharma himself. One other aspect in this letter
worth noticing is that the Chief Justice of India informed the Prime
Minister that he was trying to explore the possibility of recommend-
G
ing the appointment of the seniormost puisne judge of the Karnataka
High Court, Shri K. Bhimiah, as Chief Justice of Kerala High Court
In the penultimate paragraph of the letter the Chief Justice of India
reiterates that the other proposals, for example, the proposal of
transfer of Shri K.D. Sharma, Acting Chief Justice of Rajasthan
H
High Court to Sikkim and the transfer of Shri K.B.N. Singh, Chief
1128 sUtREMB COUkT REPORTS (1982J ~ s.C.R.
A Justice of Patna High Court to Rajasthan High Court . may await
further consideration. · The underlined portion of the letter extrac-
ted herei111 would show that the proposal to transfer Shri K.B.N.
Singh to Rajasthan was likely to be reviewed and reconsidered and,
therefore, the proposal itself may become tentative. But the next
letter to which presently a reference would be made would show
B that the transfer of Shri K.B.N. Singh was certain, only the station
may be reconsidered.

The Chief Justice of India wrote to the Law Minister on
J •
December 20, 1980, that is, two days after the letter to the Prime
Minister that having given the matter his most anxio.us considera-
c tion, he :proposed, in supersession of the previous proposals made
by him, that Shri M. M. Ismail, Chief Justice of Madras High Court
should be appointed as the Chief Justice of the Kerala High Court
and in the: consequential vacancy caused in the office of the Chief
Justice of Madras High Court Shri K.B.N. Singh, Chief Justice of
-
D Patna be transferred as Chief Justice of Madras. A further propo-
sal was that Shri Syed Sarwar Al~, seniormost puisne judge in the
Patna High Court should be appointed as Acting Chief Justice of
the Patna High Court. . There ends the correspondence.

The correspondence bearing on the question of transfer of
E Shri K.B.N. Singh, commencing from December 7, 1980, and end-
ing with the letter dated December 20, 1980, has been disclosed.
There is no contemporaneous written evidence bearing on this topic
either in the form of memorandum or notings. This becomes
explicit from the following paragraph in the statement made · on
behalf of Union of India by the learned Solicitor-General on
F November 12, 1981. Relevant paragraph in the statement reads as
under:

"Except the material brought on. record by the vario\js
affidavits filed on behalf of the Government of India
G in the case, the correspondence already disclosed and
the notings submitted to this Hon'ble Court with a
claim of privilege, there are no mlnutes recorded as to
any conversation between the Chief Justice of India and
the Union of India. No other data is available except
H what is in the above records"

(underlining mine)
s.P.'GUPTA v. UNION (Desai, J.) Jl29

Affidavits refer 'to telephonic conversation of Chief Justice
of India with Mr. Singh on January 5, 1981, and the meetting bet-
ween the two on January 8, 1981., File of notings was shown to the
Court. Dr. Singhvi submitted that if there is any relevant material
bearing on the question of transfer of Shri Singh it must be dis·
closed and consistent with our order for disclosure we would have
B •
been duty bound to disclose it. The fact that after perusing the file
we did not direct disclosure permits the irresistible inference that the
notings did not contain any relevant material. Therefore a fortiori
it follows that,except the correspondence disclosed there is no con-
temporaneous written record, nor notings or minutes of telephonic
communication relevant to transfer of Shri Singh. And it would
be imprudent to hold that such serious ,issue with forebodings of
c

- resignation is left to oral discussion between two high constitutional
functionaries to be conjured up by tapping memory as to what
transpired. Such an approach would expose high constitutional
functionary like Chief Justice of a High Court without remedy,
reprieve and relief. ~ D

Disclosed correspondence thus being the only source of what
happened during two weeks commencing from December 7, 1980,
and ending with the letter dated December 20, 1980, has to be
minutely albeit dispassionatley and objectively scanned. During E
the fateful period five Chief Justices and one puisne judge
were proposed to be transferred. They include Chief Justices
K.D. Sharma (Rajasthan), K.B.N. Singh (Patna), M .M.S. Gujral
(Sikkim), ·Acting Chief Justice Farooqi (J & K), Chief Justice

- M.M. Ismail (Madras) and Justice M.H. Hussain, a puisM judge of
the Allahabad High Court who was to be promoted, transferred
and posted as Chief Justice, Jammu and Kashmir. And notice the
F

rotational movement. Shri Sharma was first proposed to be moved
from Jodhpur to Ernakulam, i.e. Rajasthan to Kerala, from the
Hindi speaking belt to an area where Hindi is hardly welcome,
Shri Gujral moves from Sikkim to Ernakulam, that is, from
G
Sikkimese to Malayalam and from extreme norh to down south.
Within 24 hours the wheel turned almost 180 degrees when
Shri Sharma instead of going to extreme south, i.e. Ernakulam in
Kerala, is pu&hed to extreme north, Sikkim in the foothills of
Himalayas. Shri Singh is first proposed to be sent from Patna to H
Jodhpur, Rajasthan, both in Hindi speaking belt and then actually
~hifted to Madras, Hiil<li to Tamil,. seriously objected to by.
' ' .
1130 SUPREME COURT REPORTS [1982] 2 s.c.a.
A Mr. M.G. Ramachandran, Chief Minister of Tamil Nadu.
Shri Ismail moved from Madras to Kerala not very far. away
though from Tamil to Malayalam language area. Shri Farooqi who
was first in K~shmir, then sent to Allahabad, brought back to
Kashmir,. is proposed to be ·demoted and sent. to Chandigarh.
Shri Mohammad Hamid .Hussain moves from Allahabad to Jammu
8
• and Kashmir. The chequered history of this rotational movement
spreading over hardly 13 days would hardly satisfy the rigorous test
of a mature, objective, dispassionate consideration of the various
factors involved in the transfer. This is ·an the more so because
as it will be pointed out a little while latter that the Government of
India pm:sibly out of deference to Chief Justice of Indi~, which
c ought to be the right attitude, had simply abdicated itself and
accepted the proposals not for the reasons for which they were made
but for entirely contrary and opposite reasons. '

Transfer of Shri Singh is sought to be sustained on the ground
-
D that it is not by way of punishment nor on account of misbehaviour
or objectionable conduct on his part nor with a view to casting a
stigma on him but in larger public interest, namely, that he being an
experienced senior Chief Justice, such a person was required to man
a premier High Court like the Madras High Court. Does the
correspondence bear out this submision ?
l
E '
The letter dated December 7, 1980, read as a whole, piecemeal
or linewise hardly indicates that Shri Singh was proposed to be trans-
ferred bec:ause he was the senior experienced man and a. premier
High Court like the Madras High Court would require a senior ex-
F
perienced person. All High Courts are of eql!al irpportance, save that
some High Courts have a span of more than a century and others
were formed after the independence. When the submission that
-
transfer of Shri Singh was not in public interest is considered, it
would be pointed out that when transfer was first .mooted, there was
not even :1 remote possibility of Madras High Court requiring a
senior experienced judge.
G
With this background, if the letter dated December 7, 1980,
is read as a whole, an indelible impression is formed on the mind
that the governing consideration for recommending transfers was
that one or the other Chief Justice had made himself obnoxious
H on account of complaints against him. Mr. Justice Farooqi's case is
iin instance in point and it is incontrovertible that in his case it wa~
S.P; GUPTA v. UNION fDesni, J.) 1131
A
proposed that he be demoted and transferred from Jammu &
Kashmir to Chandigarh because several complaints had been received
against him some of which on verification seem well founded. And
this is the undertone of the whole letter because it is with reference
to Justice Farooqi that the proposals for transfer commenced in the
letter. And this is reinforced when one reads the case of Shri Satish B
Chandra, Chief Justice of Allahabad because it is suggested by the
Chief Justice of India that he is fairly satisfied that Shri Satish
Chandra should be transferred but that he will formulate· the pro-
posal by reaching a decision after a visit to Allahabad when he
proposed to meet various members of the Allahabad Bar as also
Judges of the High Court to ascertain the state of affairs in c
Allahabad. If Shri Sa ti sh Chandra is the senior, exeperienced

-
Chief Justice, that aspect is not to be collected by a visit to
Allahabad. If some other public interest requires transfer of
Shri Satish Chandra, a visit to Allahabad would hardly be enlight-
tening. If the state of affairs at Allahabad is required to be ascer-
tained a visit is inevita_ble. That such a visit was in contemplation D
is clearly stated and during this visit what was contemplated to
be done was a meeting with various members of the Allahabad '
,.
Bar as also Judges of the Allahabad High Court. And this
~
\ meetinl was for the avowed object of ascertaining the state
of affairs in Allahabad which will have a bearing on the
proposal to transfer · Shri Satish Chandra. Can it be said in all E
humility that the sequence of events herein .set out would not unmis-
takably show that the complaints against Shri Satish Chandra have
to be examined, the truth or otherwise of it has to be ascertained,
the degree of his unacceptability at Allahabad has to be determined

-
and upon all these considerations flowing invariably from complaints
againts Shri Satish Chandra, a transfer proposal would be submitted.
F
Add to this the statement in the letter dated December 7, 1980, when
the chapter on transfers opens that transfers be made in appropriate
cases for strictly objective reasons. In this connection Chief Justice
of India states that he has made personal enquiries in this behalf and
has met several lawyers and many judges of the concerned High
G
Courts and on the basis of the data collected during such visit and
enquiry which he has considered with greatest.objectivity, he propo-
sed transfers including that of Shri Singh. Therefore, .the transfer is
the outcome of enquiries from lawyers and judges, about local atmos-
phere qua a judge necessitating his transfer. The transfer in such a H
case would be clearly relatable to the alleged misl;>eh11viour1 if any!
P.r conduct of the judge.

•
1132 SUPREMB COORT RBPORTS [1982] 2 s.C.1l.
A Reading the letter as a whole and the permeating flavour emerging
from it is that the Chief Justice of India believed, truthfully and
honestly, but impermissible according to the ratio in Mr. Sheth's
case that the transfer in each case was to remove the judge from a
·-
certain :place because he had made himself obnoxious and that this
cannot be for any other reason except punishment because it has
B already been pointed out that transfer is more harmful than even
punishment. This conclusion is reinforced by a specific, unambigu-
ous assc:rtion extracted herein above that the Chief Justice of India
was opposed to the wholesale transfer of Chief Justices of High Courts
and that Qis approach was that : 'transfer may be made in appro-
priate cases for strictly objective reasons. Personal considerations
c .must be wholly kept out in such cases'. Analysing this sentence it
would mean that wholesale transfer of Chief Justices referable to an
objective norm that the Chief Justices shall always be from outside is
not acceptable to the Chief Justice of India. That is his view and he
strictly adheres to it. He is, therefore, certainly not proposing trans-
-
fers as and by way of policy. It would be so because in his leading
D judgment in Mr. Sbetb's case be bas expressed in no uncertain terms
that policy transfers on a wholesale basis which .Jeave no scope for
considering the facts of each particular case and which are influenced
by one:sided Governmental considerations are outside the contemp-
lation o(,our Constitution. The Chief Justice of India is thus oppo-
sed to policy transfers. Therefore, he .is not proposing these trans-
E fers by way of policy transfers. The Chief Justice of India is of the
view that the transfer may be made in· appropriate case, meaning
thereby selective transfers. Then be says that it must be for objec-
tive rea:ions. These objective reasons may include complaints against
the juclge concerned and the complaints, if found to
F be of substance, transfer may be ordered pursuant to the
complaints. Transfers on such complaints can be made and would
not be made punitive is also his view in the leading judgment in Mr.
-
Sheth's case. To recall his observation that the 'factious local atmos-
phere sometimes demands the drafting of a judge or Chief Justice
from another High Court and on the rarest of rare occasions which
G can be counted on the fingers of a hand, it becomes necessary to
withdraw a judge from a circle of favourities and non-favourities'.
Transfer for these reasons would, according to the view expressed by
Chandr.achud, J. in Mr. Sheth's case, be in public interest. This
itself is a moot point. Transfer in appropriate cases not answerable
II to any objective norms would be selective transfer. But in view of
the majority decisio!l iq Mr. $beth's ~ase, the more objectionable part
S.P. GUPTA v. UNION (Desai, J.) . l I 33
.
· is that personal considerations in the matter of such transfers be A
wholly kept out. If.by personal considerations it is meant the com-
plaints against judge then it becomes tautologous because objective
reasons remain unexplained. If by personal considerations what is
meant is personal difficulties, inconvenience~,. and hardships of the
judge consequent upon. the· transfer and if these are to be kept out of
consideration, the transfer order becomes bad in view of the ratio in B
Mr. Sheth's case. Therefore, summing up the whole approach under-
. lying the letter by which transfers were first proposed show that all
the relevant aspects were not taken into consideration, to wit, pro-
posal to transfer Sbri K. D. Sbarma:"'to Kerala, that these were not
policy transfers because the Chief Justice of India was wholly oppo-
sed to policy transfers ; that these were selective transfers in appro-
c

- priate cases meaning complaints against Mr. Justice Farooqi and the
future investigation of complaints against Chief Justice Satish
Chandra, and the data collected in coune of enquiry with lawers and
judges in respect of other j.udges whose transfer was proposed, that
the personal consideration, i.e. the personal inconveniences, hardships 0
and difficulties were to be kept out of consideration, and that the
transfers were to be for objective reasons, namely, complaints against
the concerned judges, were the governing considerations of the letter
and this was operating on the mind of the . Chief Justice of India
while proposing the transfers. It may also be recalled here that while
deciding the transfers the station to which the man is sent has a rele- E
vant consideration because as has been pointed out that some stations
are good and some are not so good. And while deciding the station
it is n"ecessary that the personal considerations of the judge may have
an important bearing, to wit, education of his children, environ-

- mental considerations, availability of medical facility, health of his
parents, if any, etc. and all these have to be kept in view in deciding
the station to which the judge is proposed to be transferred. Now,
here this aspect seems to have been taken for granted because on
p

December 7, 1980, Shri Sharma was proposed to be sent to Kerala
and on the next day be was shifted to Sikkim. Is there anything
comparable between Ernakulam and Sikkim save and. except that
tbey form part of India ? Shri Singh was proposed to be transferred
'G
first to Jodhpur and t.hen he was shifted to Madras. · Now, nothing
transpires from the record as to what relevant considerations about ,
selecting the station qua a judge have weighed with tp<,: C.::hic;f Justice
of India while making proposal for transfer,
a
1134 SUPREME COURT REPORTS (1982] 2 s.c.11. •
A One additional fact which I only propose to mention and not·
comment upon is that all the relevant considerations were not thoro·
ughly examined and analysed befc;ire making the proposal and this
becomt:s apparent from the fact that a very vital consideration that
a junior may not be imposed over a senior was wholly overlooked
when Mr. K. D. Sharma was proposed to be sent to Kerala because
there were six judges senior to Mr. Sharma who would be puisne
judges and over whom he would be the Chief Justice. And this is
admitt1ed when it is stated that that aspect while making the propo'sal
was overlooked. This is such a vital consideration that if the pro-
posal had been carried out, it would have admittedly invited a great
amount of public criticism and would have resulted in administrative
c problems in the way of Mr. Justice Sharma himself.

H may be fairly assumed here that at one stage the Chief
Justic<: of India considered it necessary in public interest to transfer
Mr. Justice Gujral from Sikkim but that proposal was eventually
-
dropped.
D
The most serious contention raised by Dr. Singhvi may now be
examined. Urged Dr. Singhvi, that before a transfer of a judge is
contemplated it is necessary to keep in view his personal problems
and it must bl: weighed in relation to the reasons for his transfer.
Wbeu a high constitutional functionary like the Chief Justice of India
E
make11 a proposal it is not conceivable tbat the proposal would be
made first and the relevant facts bearing on the subject may be collec-
ted afterwards and examined and evaluated later on, on a preposi-
tion that if it becomes so necessary the proposal may be withdrawn.
This is not how high constitutional functionaries discharge their con-
F stitutional obligations. Article 222 provides for a minimum safe-
guard 'of a consultation with the Chief Justice of India. What cons-
titute:;. meaningful, purposive and substantial consultation has been
set out earlier. It includes within its fold an inquiry into the perso-
-
nal factors of the judge such as the position of his wife, children,
, parents, other inconveniences and difficulties that he might experience
G on transfer. This can be gathered either from the judge concerned
or from other reliable sourc·es. But personal inconveniences at best
can be gathered from the person himself. ,

There is not a tittle of evidence that before proposing
the transfer of Shri K. B. N. Singh from Bihar to Rajasthan
B on December 7; !9~0 1 '1~ had p~~Jl given even a glimpse
• S.P.. GUPTA v. UNION (Desai, J.) 1135

of his proposed tratlsf~r. That ls an admitted position. A
p,fdthing was whispered to him, neither in February 1980 when the
Chief Justice o( India paid an official visit to Patna, nor at any time
till December 1, 1980 1 When a firm proposal emanated from the
Chief Justice of India and was handed in to the Government of
India for being implemented. In tbig connection it is stated in the
affidavit of the Chief Justice of India that the mother of Shri K.B.N. B
Singh is old and is not keeping good health was a fact known to
him since February 1980. The age and health of the mother, an
objective fact if known would by itself hardly be relevant. The real
'
- question would be, what is the position- of the mother qua the son •
and how much is she in her old age dependent on the son, and what
would be the result of bringing about an estrangement between the c
two. That is a vital consideration not the fact of her age and
present health. Till January 5, 1981. during which period two inde-
pendent proposals emanated from the Chief Justice of India for tran-
sfer of Shri K. B. N. Singh first to Rajasthan and neict to Madras, not
a whisper was made to Shri Singh about the proposed transfer.
Afterall, when a high con 'titutional functionary like the Chief D·
Justice of India makes a proposal how speedly it is
prossed at the highest level becomes discernible from the
fact that the proposal dated December 7, 1980, passed though
the Law Minister to the Prin;e Minister by December 9, 1980, and
was approved by the Prime Minister and embarrassment was felt as
disclosed by the letter of the Chief Justice of India. dated December E
18, 1980, while withdrawing the proposal. The incontrovertible
fact situation that emerges from reading the correspondence is
that the Chief Justice of India made the proposal for transfer of Shri
K.B.N. Singh in the letter dated December 7, 1980, reaffirmed it in
the letter dated December 8, 1980, described it as tentative by say-
ing that the proposal concerning Shri .K.B.N. Singh may wait fur- F
ther consideration by the letter dated December 18, 1980, and
affirmed it to be a firm pro-posal by letter dated December
20, 1980, without whispering a word to Shri K.B.N. Singh.
The proposal is unaccompanied by necessary relevant facts
videncing the relevant , public interest, and · it is ine-
vitable that it must be so. Public interest 'which necessitates trans- G
fer is not stated. There is not the slightest reference to the problem
of mother of Shri Singh. Maybe, Chief Justice of India may
consider it irrelevant from his standpoint. But President is entitled
to know every re1evant fact. And barring making proposal till
H
that day no relevant fact is coll~9t~<.t l\nd even if Chil,!f Justice of
1136 SUPREME COURT REPORTS (1982] 2 S.C.R.

A India had the facts, none were stated in the proposal, Would the
Chief Justice of India accept this proposal emanating in this form
from President without further inquiry ? He would send for all
~- ·.
relevant material which must be the source and foundation for
transfer. Should the President be denied the same considerations ?
And Pr1~sident says he had no discussion with the Chief Justice of
B
India. It was for the first time in a telephonic talk in the evening
of January S, 1981, the Chief Justice oflndia conveyed the propo-
sal for transfer to Shri K.B.N. Singh, By that time two firm pro-
• posals, one a tentative and another final were pending with the
Government of India. It would be stretching one's credibility to
c limit to hold that Chief Justice of· India postponed talking to Shri
Singh 1to a date later than the proposals. Chief JLstice oflndia is an
authority to be consulted but instead of being consulted he initiated
the proposal. The minimum that is expected of him is that. he
collect:; all relevant facts, also collects the relevant personal prob-
lems of the judge to be transferred, examines appraises and evalu-
D ates them from all objective standards keeping in view the possiole
inconvenience and hardship likely to be caused to' the judge and
comparable public interest which necessitates transfer and thereafter
puts forward the proposal. While discharging such a high consti-
tutional function of either initiating the proposal for transfer or for
being consulted for transfer it would be a failure to perform the
E constitutional duty if the proposal is made first, processed right up
to the Prime Minister in one case and collecting of the data is post-
poned to a later date. This is contrary to what Chandrachud, J.
has stated in his judgment in Mr. Sheth's case. To _recall, he said
that there can be no purposeful consideration of a matter in the
absence of facts and circumstances on the basis of which alone the
F nature of the problems involved can be appreciated and a right
decision taken. The deci~ion to ·be a right decision must follow
the c:ollecti:Jn of material and be· based on the material and that
collection of evidence is not an empty formality, for the record
only_.

G It was, however, said that before the proposal was finally imp-.
lementeg by the Presidential notification transferring Shri K.B. N. Singh
them was a full and effective consultation between the Chief Justice
of India and the President and that by that time the Chief Justice
of ladia was in possession of all the relevant and material facts.
H
Attention in this cotMX.t was inviteq to ·a statement in the affidavit
s.1>. GtJl>tA v. UNION (Desai, i.) i131
A
of the Chief Justice of India that 'there was a full and effective
consultation between me and the President of India on the question
of Shri K.B.N. Singh's transfer from Patna to Madras as Chief
Justice of Madras · High Court. Every relevant aspect of that
question was discussed by me fully with the President both before
and after I proposed the transfer'. With reference to the statement B
in affidavit a ·question was put to Mr. Parasaran, learned Solicitor
General as to whether the discussion involved in consultation was
personally with the President of India or the expression 'President
o( India' means Government of India and the consultation was
through proper channel as laid down in the rules of business. A
statement was read over to the Court by Mr. Parasaran, possibly c
as instructed by the President of India, that at no time the Chief

- Justice of India had any personal discussion with the President.
Therefore, one has to fall back on the discussion, if any, the Chief
Justice of India may have either with the Law Minister who as
Minister of Justice. according to the rules . of business would
be the proper person to deal with the problem of transfer. It appears 0
more or less the discussion has been by Correspondence. Even a
perfunctory knowledge about official correspondence would convince
anyone that if there is a continuous correspondence on the subject,
every letter would have a reference to the prior letter bearing on
the subject. Turning to tlte first letter dated December 7, 1980, in
which a proposal is made for transfer of Shri K.B.N. Singh from E
Patna to Rajasthan, there is not the slightest reference to any earlier
discussion oral or in writing between the, Law Minister and the Chief
Justice of India on the question of transfer of Shri K.B.N. Singh.
It may be that there was some public de bate about the transfer of '

- all Chief Justices of High ·courts pursuant to a policy which was
sought to be evolved that the Chief Justices of all High Courts must
be from outside the State. This evolving proposal was not acceptable
to the Chief Justice of India when be said in the first letter that he
F

is firmly opposed to a who! esale transfer of Chief Justices of High
Courts. Then he proceeded to point out transfers may be effected in
appropriate cases for strictly objective reasons. Having settled what
ought to be the governing form for transfer the Chief Justice propos-
G
ed transfer of Acting Chief Justice K.D. Sharma Chief Justice K.B.N.
Singh, Acting Chief Justice M.B. Farooqi and Justice M.H. Hussain
Recalling the statement in the affidavit that there was full and
effective consultation with the President of India prior to transfer, it
has to be evaluated in the light of the contemporaneous written
ff
evidence in the form of the I~tter of the Chief Justice of India dated
1138 stJPtu!ME cOtJR'r ll.EPOll'rS [1982] 2 s.C.tt

A December 7, 1980. And in the statement on behalf of Union or
India dated November 12,. 1981, it is specifically made clear that ,_
except the disclosed correspondence and notings !'or which privilege
is claimed there are no minutes or notes of discussion. I have shown
abovf: that there is no other contemporaneous written record except
the correspondence. The first proposal to t_ransfer Shri K.B.N. Singh
B finds its place in letter dated December 7, J 980. It is an admitted
position that prior to that there was no discussion between the Chief
Justic1: of India and the Law Minister. Equally it is an admitted
position that Shri K.B.N. Singh was not even whispered that Jt was
proposed to transfer him. It is also an admitted position that it was
c on January 5, 1981, that the Chief Justice of India talked with Shri
K.B.N. Singh for the first time in which he broached the subject of
transfor of Shri Singh. The inescapable conclusion is that a firm
proponal for transfer was submitted to Government as late as ...
December 20, 1980, and about 15 days thereafter Shri' Singh was
told for the first time about his proposed transfer and was invited
D to inform the Chief Justice of India about his' personal difficulties
and im:onveniences. Now, the order of transfer is dated January 19,
1981. In ·between Shri Singh met the Chief Justice of India on
January 8, 1981, and till the order of trans!'er was notified there is
nothing in the correspondence which shows .that there was any
further discussion. The firm decision was reached on January 8,
E 1981 it:ielf because it was stated to the court that the Prime Minister
approved the proposal of transfer of Shri Singh on January 9, 1981.
It is reasonable to believe that Law Minister must have processed
the proposal on January 8, 1981. The meeting between Chief
Justice oflndia and Shri Singh took place in the evening on January
8, 1981. This would establish that a firm proposal for transfer was
F made, processed and approved before collecting all the relevant
material which would considerably detract from the validity and
efficacy of the proposal. Even if subsequently gathered facts were
-
communicated to the President, one could have overlooked this
apparent defect but the written record does not bear out that the
President was informed of all the relevant facts.
G
One would have expected in this connection that while making
the proposal for transfer, the very letter would, in respect of each
judge proposed to be transferred, set out therein as to what were
the personal difficulties, what necessitates the transfer, which public
H interest was likely to bit served by the transfer and all these should
find their releva11.t place in the proposal itself. Oral dr telephonic
SJ'. GtJPTA v. UNION (.besai, J.) 1139

conversation while discharging important constitutional function A
affecting character and dignity of such high constitutional functionary
as Chief Justice of a High Court is entirely out of place. The only
ref~rence to the transfer of Shri K.B.N. Singh in the first letter is
as under·:

"The transfer of Justice K.D. Sharma will create a B
vacancy in the office of the Chief Justice of the Rajasthan
High Court. I recommend that Justice K.B.N. Singh; who
is the Chief Justice of the Patna High Court, should be
transferred as the Chief Justice of the Rajasthan High
Court."
c

- We struggled hard to find out from this long letter as to what
public interest prompted the Chief Justice of India to propose
transfer of Shri K.B.N. Singh to Rajasthan. The later suggestion
that Shri Singh's transfer was proposed to subserve the public
interest, namely, that he is a senior, experienced Chief Justice needed
- .... to preside over a premier High Court will not help because there
D
was no question of sending a senior, experienced Chief Justice to
Rajasthan High Court and at the relevant time there was no
\ proposal for transfer of Shri M M. Ismail, Chief Justice of Madras
High Court. Therefore, some other public interest must have
informed the Chief Justice of India to propose transfer of Shri Singh E
to Rajasthan. What inevitably transpires is that the transfer of
Shrj Singh from Patna is certain, reasons and place and public
interest may fill in the gap as situation demands. This is neither
consultation· nor appreciation of relevant facts to satisfy the rigorous
test laid down in Mr. Sheth's case.

- There is a further lacuna in th~ process of consultation and it
F

may be briefly mentioned here. While laying down the parameters
of the scope of consultation ·under Article 222 (1), Chandrachud,
J. in his leading judgment of the majority view in Mr. Shth's case
approved and affirmed the passage in Chandramouleshwar Prasad
extracted earlier. Approving the statement of law contained in the G
extracted passage, it was said in Mr. Sheth's case that in order that
the two minds may be able to confer and produce a mutual impact,
it is essential that each must have for its consideration full and .
identical facts, which can at once constitute both the source and
foundation of the final decision. If one party makes a proposal to
H
the other who has a counter proposal in his mind which is not
i 140 SUPRliAiE COURT REPORTS [l 982j 2 S.C.R.

A communicated to the proposer, th~ direction to give effect to the
counter proposal without anything more cannot be said to have been
issued after consultation (pp. 674-675). The question is, whether this
test is satisfied.

B Chief Justice of India unmistakeably asserts that he is opposed
to poliey transfers or wholesale transfers of Chief Justices
of the High Courts. He is of the view that transfers
may be made in appropriate cases for strictly objective
reasons. In other words, selective tran_sfers. Pursuant
to this view held by him he proposed amongst others the transfer
c of Sbri K.B.N. Singh. This proposal was to be proceilsed by the
executiv1:. It was incumbent upon the e)(ecutive to have requested
the Chief Justice of India to put all the materials and relevant facts
collected by him for consi ieration of the President. Obviously,
pursuant to a caution voiced by Chandrachud, J in Mr. Sheth's case
that as a high constitutional functionary like the Chief Justice of
D High Court was involved all the necessary relevant facts bearing on
the que>.tion of transfer must be collected by the Chief Justice of
India as this is founded on the principle that in a matter which
concerns the judiciary vitally; no decision ought to be taken by the
)
executive without obtaining the views of the Chief Justice of India
who, by training and experience, is in the best position to consi-
E der the situation fairly, competently and objectively. In order to
consider 1:very relevant fact in the discharge of this constitutional
obligation the Chief Justice of India would be within his right and
indeed it is his duty wherever necessary to elicit and ascertain
further facts either directly from the judge concerned or fro~ reli-

F
able soumes, but thereafter he has voiced a caution that 'the execu-
tive cannot and ought not to establish report with the judges which
is the function and privilege .of the Chief Justice'. Consistently
with this weighty judicial pronoun~ement the Chief Justice of India
-
alone will have to gather all material and the executive would be
well advised to keep hands off the judiciary. Therefore,· whatever
material the Chief Justice of India will have, has to be placed before
President. The correspondence manifests a woeful lack of any such
material being placed before the President. That apart, the Chief
Justice of India proposed selective transfers in appropriate cases
strictiy for objective reasons. Now, look at the performance of the
H executive. The executive appears to have accepted the proposal
not on merits but out of reverence for the Chief Justice of India
which constitutes a complete abdication of its function. This
S.l•. OUt>TA v. UNION (Desai, J.) 1141

becomes discernible when in the course of hearing in response to a A
query m'ade by the Court, the learned Solicitor-Oeneral made a
statement on November 12, 1981, which is material for the decision
on this point and, therefore, may be extracted hereunder:

"Throughout the Government had been of the view
B
that as a p·olicy the Chief Justices of the various High
Courts should be from outside their states. It is this policy
view that was put across ·to the Chief Justice of India. The
Chief Justice of India expressed that he was opposed to all
> • the Chief Justices of the High Courts being from
outside and was keen on transfers to be made in appropri-
ate .cases strictly for objective reasons. It is in . pursuance
c
of this view propounded by the Chief Justice of India that
·he suggested the transfers covered by the letters which in
his view were desirable. Government acceded to the trans-
fers proposed by the Chief Justice of India as (I) it was
felt that not agreeing to these transf~rs may be construed D
as though the Government is departing from the view of
.having Chief Justices from outside; (2) the policy aspect
could still be pressed i71to service later." ·

(Emphasis supplied)
E
-
At a later stage of the hearing to a further query by the Court Mr.
Parasaran in terms stated that the Government accepted the propo-
sal for transfer not for the reasons which prompted the Chief Justice
of India to propose transfers but for .its own reasons. Recalling
the test of consultation at this stage set out just hereinabove that if
one party makes a proposal to other who has a counter proposal
F
in· his mind which is not communicated to the proposer the direction
to give effect to the counter proposal without anything more, can-
not be said to have been issued after consultation', the proposal
was for a selective transfer definitely not in cons<;mance with any
policy Government of India may have in contemplation which was G
firmly opposed and the counter proposal was for policy transfer and.
giving effect to the counter proposal without anything more cannot
be said to be after consultation. The test of consultation certainly
is no.t satisfied because not only two minds have not been able to
confer and produce a mutual effect but each did not have full and H
identical facts and, therefore, the final decision cannot b~ said to
be the product of consultation and deliberation.
1142 SlJPllllME COtnl.t lllll'OR.tS [1982) 2 s.c.tl.
A
A very emotional and passionate appeal was made by Mr.
Parasaran to consider these transfers as policy transfers. In the
light of the statements hereinabove quoted, the appeal must fall on
deaf ears,, for, the Government of India had a policy in embryonic
stage and the Chief Justice of India was firmly opposed to any such
B policy be1:ause he is firmly committed to the view as laid down in
his majo:rity judgment in Mr. Sbeth's case that policy transfers on
a wholes.ale basis which leave no scope for considering the facts of
each particular case and which are influenced by one-sided govern-
mental considerations are outside the contemplation of our consti-
tution. He re-asserts this in his letter dated December 7, 1981.
c as
Apart from this; it is impossible to uphold this transfer a policy
transfer. It is no doubt true that laying down of a policy
is the fu:nction of the executive. If that policy relates to
judiciary, ordinarily the executive would be well advised to have
full and effective consultation with the Chief Justice of India, the
highest co1~stitutional functionary in the judiciary. The policy has
-
0 to be evolved and firmly laid. Views expressed do not constitute
..J-
policy. Now the question is, was there· any policy to which these
transfers can be related ? The view of the Government as expressed
by the Law Minister is that Chief Justice of every High Court shall
j
be from outside his jurisdiction. Maybe, the Government may lay
down such a policy and as and when laid down its constitutional
E validity may have to be examined. But one cannot accord the
status of policy to a view expressed by the Law Minister, may be
the official spokesman for the Department of Legal Affairs and
Justice of th~ Government of India. We were not told how a
policy is framed and firmly laid down. But a view occassionally

F
expressed does not have the trappings of a firmly laid down policy.
And it is not in dispute in this case. In the statement extracted
hereinabovc made on behalf of the Government of India, the policy
question wais to be examined at a later stage. A reference to the
-
statement of the Law Minister in the Lok Sabha on July 24, 1980,
upon a calling attention motion on the resolution of the Bar
Council of India disapproving Government proposal to appoint
G seniormost judge of a High Court as Chief Justice of another High
Court in the country, may be made. The Law Minister stated as
under:

"The Government has, however, received represen-
H tatiom; from various quarters urging that as a matter of
S.P. GUPTA v. UNION (Desai, J.) 1143

policy the Chief Justice of a High Court should be appoin- A
1 ted from outside the jurisdiction of that High Court.
This matter is actively engaging the attention of the Govern-·
ment. Even though Government's thinking has not taken a
final shape in the matter, the Government is prima facie of ·
the view that the proposal by and large merits favourable
consideration in the interest of sound judicial administration
B
and also the independence of the judiciary".

(Emphasis supplied~.

This statement would at once reveal that till July 24, 1980, the
c
matter was under consideration of the Government and that the
Government's thinking had till then not taken a final shape in the
matter. Then as late as September 3, 1981, the Law Minister in-
formed the Consultative Committee of the Ministry of Law, Justice
and Company Affairs that he had sought views of the Chief Justice
D
of India on the policy of having Chief Justices from outside as that
by itself would considerably. improve the functioning of the High
( Courts. The Law Minister further apprised the members of the
\ the approach of the Chief Justice in the matter of transfers and
appointments of outsiders. He proceeded to state that final decision
in the matter of a policy of transfers was stili to be taken. (under-
E
lining mine). At any rate, this unmistakable, unambiguous state-
ment of the Law Minister on September 3, 1981,.m:uch after the
commencement of hearing in this case in the Court, would remove
- any vestige of doubt that a decision on policy transfers was yet to,
be taken. There was a view expressed but no policy in July 1980,
there was no such policy in January 1981 when Shri K.B.N. Singh F
was transferred, there was no policy as late as September 3, 1981,
when the case was being heard and the statement made to this
Court on November Ii, 1981, that the policy aspect could still be
pressed into service later on, leave no room for doubt that the
impugned transfer was not a policy transfer. Therefore, the trans-
fer of Shri Singh cannot be upheld as a policy transfer. It is rather G
in this context surprising that the Chief Justice of India while firmly
opposing policy transfers in letter dated December 7, 1980, should
tell Shri Singh on January 5, 1981, that it was Government policy
to transfer judges. And there is nothing to show that between
December 7, 1980, and January 5, !980, Chief Justice of India. H
has veered round to the view of Law Minister because if he had, he
' .
1144 SUPREMll COUR.T RllPOtltS [I 982J 2 s.C.R.

A could have proposed transfer-of a large number of Chief Justices
and not confined himself to two only.

It may be mentioned in passing that there was-a very lively
debate about the power of the executive to lay down policy. It is a
B well.rec:ognised epithet of constitutional wisdom that in constitu-
tional matters the Courts do not decide what is not brought before
it nor would it prefer advice except in a reference unde:r:. Art. 143,
on the wisdom or validity of a future action. If there is no policy till
today it would be unwise to pronounce upon a future policy without
knowing what form and shape it would take. No carte blanche can
c be given in this behalf. How dangerous it would be can be illust-
rated by observing that if the policy were to be laid down by the
executive that a judge -of the High Court who decides the matter
against the Government will be transferred it would be an objective
norm because it can be easily ascertained whether a judge has decided
a matter against the Government. Such a policy, if at all laid down,
D would be complete 'anti-thesis of the independence of judiciary.
Therefore, I refrain from saying anything on the wisdom or validity -; -
of what is being proposed as a policy that every Chief Justice must
be from outside the state because there is no such policy and as and '
when it is laid down, if questioned; its validity will have to be t
examim:d.
E
0:11e more infirmity urged an~ likely to invalidate the order of
transfer may 'DOW be examined. The power to transfer a High
•.
Court judge can be exercised only in public interest. In the proposal
'-forwarded to the Government by the letter dated December 7, 1980,
and the letter dated December 20," 1980, for transferring Shri K.B.N.
F Singh first to Rajasthan and then to Madras, it is nowhere
stated what public interest is sought to be served by this transfer.·
This assumes importance because both the constitutional functiona-
ries invcilved in the process of consultation are operatin8 on different
wave leJagths, to wit, Chief Justice of India for selective transfers,
G President to buttress the position to evolve a policy in future. In
the affidavit it is stated that consequent upon the transfer of Shri
M.M. 11\mail from Madras to Kerala it was necessary to appoint a
senior, uxperienced Chief Justice in the Madras High Court. Perma-
nent and senior, experienced Chief Justice from outside to man a.
High Court seems to be a phenomenon of recent origin. Ordinarily
H . the seniormost puisne ju_dge is appointed as Chief Justice. There
s.f>. OUf>tA v. UNION (Desai, J.) 1145
A
were, of coutse, some cases in which the Chief Justice was brought
,.... . from outside and the cases pointed out were of Mr. Justice Das
sent to Karnataka, Mr. Justice Sarjoo Prasad going to Rajasthan,
and our esteemed . colleague Mr. Justice R.S. Pathak going to
Himachal Pradesh. But these cases are few and for between. The nor-
h1al rule of succession has been the seniormost puisne judge becom- B'
r ing the Chief Justice unless he was otherwise found to be unsuisable.
And the Chief Justice of India accepts unreservedly just and right-
ful expe'ctations of the seniormost puisne judge to be promoted as
Chief Justice when he suggests that Mr. Poti, seniormost puisne
judge in Kerala High Court will be deprived of his just and rightful
expectation to become Chief Justice on the transfer of Shri K.D. c

- .
Sharma, and therefore, further suggested that Mr. Poti be appointed
in a suitable vacancy as Chief Justice but outside Kerala, thereby,
of course, denying rightful expectation of the seniormost puisne
judge in that High Court. Now, Mr. P.R. Gokulakrlshnan is the
seniorm,ost puisne judge of the Madras High Court. Nothing is
pointed out why he would be considered unsuitable for being promo- D
ted as Chief Justice if it becomes necessary to transf~r Mr. Ismail.
Mr, M M. Isrnail who was seniormost puisne judge was promoted
as Chief Justice, Madras, on retirement of Mr. Ramaprasada Rao in
the year 1979 who had by that time to his credit experience of 12
years of High Court judgeship. How it became a compelling
E
necessity not to promote Mr. Gokulakrishnan even if Shri M.M.
Ismail was to be transferred, left us guessing. Mr. Gokulakrishnan
was appointed as permanent judge of Madras High Court on July
7, 1969. Mr. Poti was appointed as Additional Judge "of Kerala High
Court on March 20, J 969. {fa judge of a High Court after twelve

- years of High Court judgeship is not suitable for being promoted as
Chief Justice, he· would ordinarily never become suitable for that
post. But Mr. Poti is good enough to be appointed Chief Justice
but unsuitable for Kerala, for which Mr. Sharma an inductee of.
F

1973 was considered good enough to be permanent Chief. Justice.
Again, Mr. S. Sarwar Ali inducted as High Cou.rt Judge on July 6,
1970, was recommended to be posted as Acting Chief Justice of G
Patna High Court on the transfer of Mr. Singh. If Madras High
Court has a life span over a century, so also Patna High Court has
a life span over a century .. But Mr. Ismail, a senior experienced
Chief Justice is transferred to Kerala High Court, .a High Court
which came into existence as late as 1956 and just celebrated its H
Silver Jubilee. Delhi High Court has a permanent Chief Justice who
is an inductee of January 1969. Every attempt to find an objectivli

.
'

~·-
it46 SUPREME cOURT itl:i>bR:fs (198.ij 2 S.c;R;

norm or yardstick related to proclaimed public interest by which
these transfers can be measured or judged and for which they were
ordered has led me to a blind alley. For over 30 years with some few
exceptions the seniormost puisne judge was always promoted as the
Chief Justice except in the case of Himachal Pradei;h when on
setting up the High Court for the first time Mr. M.H. Beg was
B
transferred from Allahabad and promoted as Chief Justice and
posted at Simla. And also again when someone had not put in five
years of High Court judgeship before his turn to be elevated as
Chief Justice arrived. It is quite wellknown that next in line of
succession to the Chief Justice is always being trained be being
c normally associated with administration so that when the elevation
as Chie:f Justice becomes due he has already his grip over the
administration. In most of the High Courts seniormost puisne judge
is alwayi; entrusted with a large chunk of administrative work and,
therefore:, he is probably well acquainted and trained to take over
the responsibilities of a Chief Justice. There is no material on
-
D record which would show that Mr. Gokulakrishnan would not
compare favourably with Mr. Singh for being appointed as Chief
Justice of Madras High Court. Mr. P.S. Poti the senionpost puisne
judge of Kerala High Court and who is functioning as Acting Chief I
Justice since the elevation of the then Chief Justice of Kerala High I..
Court to Supreme Court has been a judge of the High Court since
E 1969. If 12 years of High Court judgeship does not make the
incumbent mature for Chief Justice one would be left guessing when
he would bec.ime one. And yet Mr. M.M. Ismail was transferred
to Kerala reverting Mr. Poti as Puisne judge. It thus appears that
the transfer of Shri Singh oh the ground that he is the seniormost
experienc:ed Chief Justice which would. be in public interest, fails to
carry coiilViction.

Dr. Singhvi, learned counsel for Shri Singh also contended that
-
the transfer of Shri Singh is punitive in character. The Chief Justice of
India sp~c1fically denies this charge. And further it is stated that
when Mr. K.B.N. Singh brought up the question of some baseless
G
complaints against him, the Chief Justice of India assured him that
he did nci·t go by baseless complaints and he did not believe that his
(Mr. Singh's) conduct was blameworthy. And the Chief Justice of
India further assured him that he. did not hold Mr. Singh was to
H blame but that certain persons were exploiting their proximity to him
which had creittec;l needless misunderstandiDJil ancl dissatisfaction,
s.i>. GUPTA v. uNibN (Desai; J) it47
thus th'e Answer of the Chief iustlce would certainly show that the A
complaints against Mr. Singh did not. provoke_ the transfer. Shri
Singhvi, however, tried to persuade us by. putting in juxtaposition
certain events which would permit an inference that the complaints
against Shri Singh formed the foundation for the order of transfer.
It was· pointed out that when in February 1980 the Chief Justice of·.
India visited Patna, he met lawyers and judges which may permit an B
inference that the complaints against Shri Singh must have been
voiced by those lawyers. · This feeling was uppermost in the mind of
Shri Singh because he himself broad ed the subject af'a meeting with
the Chief Justice of India on January 8, 1981, and even though the
Chief Jystice of India assured Shri Singh that he did not go by base-
less complaints and that he did not believe that his conduct was c
blameworthy but yet pointed out that certain persons were exploiting

- their proximity with him which had created needless misunderstan-
ding and dissatisfaction. · Drawing sustenance from this statement it
was contended that inferentially speaking the situation had reached
at Patna to such an impasse that Shri Singh was required to be uproo-
D
r· ted from that atmosphere and, therefore, the transfer and this being
a selective transfer it would attach stigma or slur While accepting
what' the Chief Justice of India says that the CO!,llplaints did not form
I
the foundation for transfer and that the Chief Justice was actuated
\ by the sole desire to subserve _the public interesHn proposing the
transfer of Shri Singh, selective transfers always give rise to canards E
and the transferred judge suffers character assassination. From this
limited point of view one cannot -escape the conclusion that such
transfer in the background stated would cast a slur and, therefore,
is punitive in character and that would also vitiate the order of
transfer.

- Having examined all the relevant considerations, regrettable as
it may appear, the conclusion is inevitabl_e that the order of transfer
F

ofShri K.B.N. Singh is vitiated for want of effective consultation and
the selective transfer would cast a slur or stigma. Add to this that
the public interest pleaded fails to carry conviction in the facts and
circumstances of this case and, therefore, the transfer .does not appear
G
to be in public.interest. For all these reasons the order of transfer
is vitiated and rr ust be declared void.

In the course of hearing petitioners requested the Court that the H
correspondence that passed between the Chief Justice of India, the
Chief Justice of Delhi High Court !Ind the Ll!W Minister in re?rd tQ
1148 SUPREME COURT REPORTS [1982) 2 S.C.R.

A the non-appointment of Shri S.N. Kumar as additional judge be dis-
closed. The Union of Jndia,.through the affidavit initially of Shri
S.M.H. Burney, Secretary, Ministry of Justice and subsequently by ....
the affidavit of Shri T.N. Chaturvedi, holding the same post, claimed
privilege on the ground that doctrine of candour demands that the
correspondence bearing on the question of appointment or non-
B appointment of high constitutional functionaries should not be dis-
closed. There was a similar request for disclosure of correspondence
that pasHed between the Chief Justice of India and the Law Minister
witb reference fo the transfer of Shri K.B.N. Singh, Chief Justice of
Patna High Court to Madras High Court. After hearing both sides
at considerable length and first perusing the documents ourstlves to
c ascertain whether disclosure of it would or would not be. in public
interest,\Je directed disclosure and deferred giving our reasons for
the same. I would, however, briefly say what I feel to be the fairly
antiquat1:d notion about the secrecy- in administration. Privilege was
claimed under section 123 of the Indian Evidence Act, 1872. Section
123 was enacted in the hey-day of the colonial regime. And more
-
D . than a century after when.the Raj has disappeared and a republican
form of Government under a liberal constitution is ushered in, we
are told that the principle enunciated in section 123 holds good.
What is :impermissible under section 123 is giving evidence derived
from unpublished official records relating to affairs of the State. It
was said that appoint!llent to high offices is such a'~11s.itive subject
El
...) .
that the expression 'affairs of the State' would be wide enough to
comprehend the same and, therefore, correspondence, notes notings
connected therewith forming part of unpublished official record can-
not be disclosed· to the Court except at the cost of injury to public
interest. Add to this the prohibition enacted in Article 74 that the
F court cannot inquire whether, if any, and if so what, advice was ten-
dered by the Minister to the President. Privilege was claimed and
disclosur1~ was opposed on the above mentioned ground. It was very
-
. passionately urged that no public interest would be served by wash-
ing the linen, dirty if it appears to be, in open and who is going to
be benefited by disclosure of such documents. In the State of Punjab
v. Sodhi Sukhdev Singh, (1) Gajendragadkar, speaking for Sinha, C.J.
G
and Wanchoo, J., referred to Duncan v. Cammell Laird & Co. Ltd ,(2)
wherein Viscount Simones L.C. deduced the principle which has to be
applied in such cases in the following words ;

ff (1) (1961] 2 SCR 371.
(2)~[li942] AC 624.
S.P. GUPTA v. UNION (Desai, J.) J 149

"Documents oth.erwise relevao,t and liable to produc- A
tion must not be produced if the public interest requires
that they should be withheld. This test may be founCi
to be satisfied either (a) by having regard to the con-
tents of the particular document, or (b) by the fact that
the document belongs to a class which, on grounds -of
B
public interest must as a class be ' withheld from
production.''

)
The question was whether the objection to production taken was
valid one or not. The House of Lords in the aforementioned case
held that an objection validly taken to production on the ground that c
- this would be injurious to public interest is conclusive. Having refer-
red to this observation, the majority decision further proceeded to
state that the decision in the case before it wherein privilege was clai-
med against disclosure must ultimately rest on the relevant statutory
provisions contained in Indian Evidence Act. The Court then refer-
red to Sections 123 and I 62 of the Indian Evidence Act. Referring
D
to the expression "affairs of the State" . in section I 23, the majority
judgment observed that in.the latter half of the Nineteenth Century
\ affairs of State may have had a comparatively narrow content, but
with the State in pursuit of its welfare actiyities which were formerly
treated as purely commercial, and documents in relation to such
E
commercial activities undertaken by the State in pursuit of public
policies of social welfare are also apt to claim the privilege of being
documents relating to the affairs of State. It is in the latter class of
documents the Court proceeded to determine the claim for privilege
fo such borderline cases.· The Court ultimately upheld the claim for
privilege. Duncan's case appears to be hovering over the entire dis- F
cussion. Then came Conway v. Rimmer. (1) This decision moved a
step further because it was held therein that the Court can inspect
the document to find out whether the claim to privilege is well meri-
ted. The view in Sodhi's case was to some extent diluted by.reference
to Conway. Two subsequent cases, The Science Research Council
v. Nasse, (2) and Burmah Oil Co. Ltd. vc Governor & Company of the G
\ Bank of England & Anr., (3) were also referred to. The discussion as
to what is laid down by the House of Lords in aforementioned cases
was ~o elaborate in the Court tl1~t !\t Qn~ ti.mi: ~ ~gspected that these

(1) [1968] AC 910. H
(2) [1980] AC 1028.
(3) [1980J AC 1090,
1150 SUPREME COUll'r REPORTS (19821 2 s.c.a,

A decision:; will have to be explained away, otherwise they are binding
~m us. · A specific question was put, should we mould our approach
dovetail:ing it to the changes in the view in the United Kingdom
. -
because it is an undeniable fact that on the question of privilege and
disclosure commencing with Duncan and ending with the last menti-
oned ca:>e, the view in this country has more or less changed shades
B with the view expressed by the House of Lords. In my opinion,
Section 123 must be construea on its own terins. Undoubtedly, a
century old provision enacted to some extent keeping in view the
needs of Empire builders must change in the context of the Republi-
can Government and the open society which we. have set up. Undoub~
tedly there must be such affairs of the State involving security of
c the nation and foreign affairs where public interest requires that the
disclosu:re should not be ordered. It is, however, equally well recog·
nised that fair administration of justice is itself a matter of vital pub-
lic internst. Therefore, if the two public interest conflict, the Court
will hav·e to decide whether the public interest which formed the
-
foundation for claiming privilege would be jeopardised if disclosure
D is ordered and on the other hand whether fair administration of jus-
tice wou)d suffer by non-disclosure and decide which way the balance
tilts. Viewed from this angle, it was stated in Conway that the Court
should balance public interest involved where a clash of public inter-
est is brought to its notice.. In the ultimate analysi.s the approach of
the Court while deciding the question of privilege would be that it
E has to balance public interest in just justice and just administration
of justice and state affairs at high .level in respect of appofotment to.
high constitutional offices and then decide which way the balance
tilts. Having formulated this test the answer was that a disclosure

-
in the interest of justfoe far outweighs the possible embarrassment
f::Ir by disclosing certain aspects. I do not propose· to deal with the
F matter further. Justice Bhagwati by a vrry elaborate discussion has
given reasons why the disclosure was necessary arid I find myself so
entirely in agreement with what has been stated by him that I do not
think I can usefully add anything to it.

G
The oniy point that now remains is whether the petitioners
Iqbal M. Chagla and three others in the petition filed in the Bombay
High Court, Mr. V.M. Tarkunde, petitioner in the petition filed in
tbe Delhi High Court and other advocates who have filed petitions in
H Patna and Madras High Courts have a locus standi to maintain the
petitions. Learned Attorney General did not raise this quesiion but
Mr, P.R,. Madu! Ie~rn\ld ~oi.p:is\ll w4Q appeared forthe L~w Minister
S.P. GUPTA v. UNION (Desai, 1.1 Il5I

in the first set of petitions seriously contended that the petitioners
have no locus standi. In fact . the matter h.as assumed ac~demic
·"". importance because in the 1st batch of petitions Shri S.N. Kumar,
the learned Judge of the Delhi High Court who was given short term
extension and was ultimately not appointed, has questioned the vali-
dity and legality both of•the circular issued by the Law Minister and
.the power claimed by the executive not to appoint an additional
B
judge after the expiry ;f his initial term. His locus standi is beyond
question. Similarly, in the other batch of petitions Shri K.B.N. Singh,
the Chief Justice transferred is transpos_ed as petitioner No. 3 in the
} '
petition filed by Shri D.N. Pandey and another advocate of the Patna
High Court and he has challenged the validity and ·legality of the
order. of his transfer. His locus slandi is beyond question. There-
c

- : fore, the contention about locus standi is now of academic interest
and I do not propose to deal with it. However, I am in full agree-
ment with my learned brother Bhagwati, J. who has discussed this
aspect in meticulous details.

- ,- That is the end of the journey. To sum up :
D

(I) An additional judge can only be appointed in the High
Court if the President is satisfied that there is a tempo-
rary increase in the work of the High Court or there
are arrears and for this purpose it is necessary to E
increase the number of judges in the High Court for
the time being.

(2) An additional judge appointed initially for a certain
tenure has a right to be considered' for fresh appoint-
ment on the expiry of the tenure and the consultation F
must proceed along the same lines as prescribed under
·Article 217. -

(3) Consultation under Article 217 must be full, effective
·~·
and meaningful and in the case of an additional judge,
if there is any defect, drawback or deficiency in the con- G
sultation the decision arrived at is open to judicial
review.

(4) Power to transfer a High Court judge· conferred by
Article 222 on -the President can be exercised after H
full, effective and meanin~ft1l 90~~1Jltl!ti9!1J with the
1152 SUPREME COURT REPORTS (1982] 2 S,C.'k. ·

A Chief Justice of India and this necessitates all the facts
in possession of one or the other constitutional func- . ..;.
tionary being fully exchanged and deliberated upon.

_ (5) Power to transfer a High Court judge cannot be exer-
cised with a view to punishing a jurlge or for any thing·
B in his conduct or behaviour which may cast a slur or
stigma on him.

(6) The circular of the Law Minister dated March 18,
1981, does not suffer from any infirmity and is not
constitutionally invalid.
c
-
Accordingly, Transferred Case No. 19/81 arising from the writ
petition filed by Shri S.P. ·Gupta in Allahabad High Court, Trans-
ferred Case No. 21/81 arising from the petition filed by Shri J.K.
Kalra: and others in the Delhi High Court, Transferred Case No.
22/81 arising from the petition filed by Shri Iqbal M. Chagla and
D three others in the Bombay High Court and Transferred Case No.
20/81 arising from the writ petition filed by Shri V.M. Tarkunde in
the Delhi High Court are dismissed. There will be no order as to
costs in all the matters.

Transferred Case No. 24/81 in 'which Shri K.]l.N. Singh, Chief
Justice of Patna High Court is transposed as petitioner No. 3 is allo-
wed and the order dated January 19, 1981, transferring him as Chief
Justi:ce of Madras High Co1Jrt is quashed and set aside and a manda·
mus is issued to the Union of India · directing it to forbear from

F
giving effect to the said order. There would be no order as to
costs.

In view of this decision no specific order is required to be made
.
in Writ Petition No. 274/81 filled by Miss Lily Thomas, Transfer-
red Case No. 6/81 arising from a writ petition filed by Shri P. Subra-
maniam in Madras High Court and Transferred Case No. 2/81 aris-
ing from a writ petition filed by Shri A. Rajappa ip the Madras High
G Court and they accordingly stand disposed of. There would be no
order as to costs. -

In view of the order quashing and setting aside f e order direc-
. ting transfer of Shri K.B.N. Singh as Chief Justice of Madras High
H Court, the special leave petition No. 312/81 filed by Shri Ripudaman
Prasad Singh has become infructuous and would $tand disp.Qs<;d of
ae<:ordin~ly wi~~ no order ~s ~Q costs througho~t,
S.P. GUPTA v. UNION (Pathak, J.) i!.53

PATHAK, J: Transferred Case No. 19 of 1981, filed by Shri S. A'
P. Gupta, an Advocate of the High Court at Allahabad, as a writ
petition challenges the validity of a Circular letter dated March 18,
1981 issued by Shri P. Shivshankar, Minister for Law, Justice and
Company Affairs in the Union Gover~ment and addressed to the
Governor of Punjab and the Chief Ministers of all the States, except
B
the north-eastern States, requesting them to obtain the consent of
Additional Judges serving in the High Courts to their appointment
as permanent Judges of other High Courts. Such consent was
also required from persons who had already been proposed or may
in the future be proposed, for initial appointment. He contends
also that the President has failed to appoint the necessary number
of permanent and additional Judges of the High Court of Allahabad
c
in accordance with Art. 216 and clause (!) of Art. 224 of the Consti-

- tution, and he assails the appointments of some Additional Judges
of the High Court for short terms of six months only when, accord-
ing to him, the Additional Judges should have been appointed as
. permanent Judges. In particular; he bas prayed for a declaration that D
three additional Judges, Mr. Justice Murli Dhar, Mr. Justice A. N.
r Verma and Mr. Justice N. N. Mittal be deemed to have been
appointed as permanent Judges and that the Circular letter of the
Law Minister is void.

2. Transferred Case No. 20 of 1981 filed. by Shri V. M. E
Tarkunde, a senior advocate of the Supreme Court as a writ petition
in the High Court of Delhi, also assails the Circular letter and the
appointments of three additional Judges, Shri 0. N. Vohra, Shri S.
N. Kumar and Shri S. B. Wad for a further period of three months
only. The petitioner prays that the Circular letter be declared void

.. and the posts of additional Judges in the Several High Courts be
converted into permanent posts. Of the three additional Judges
specifically named, Shri S. N. Kumar has entered appearance and
F

has supported the case pleaded by the petitioner.

3. Shri J. L. Katra and a few other advocates filed Transferred
Case No. 21 of 1981 as a writ petition. in the High· Court of Delhi G
and, inter alid, they have -prayed for mandamus to the Union -
Government to create an ·adequate number of posts of permanent
· and additional Judges and to make appointments to those posts.

4. Four advocates•practising in the High Court of Bombay,
H
Shri Iqbal M. Chagla, Shri C. R. Dalvi, Shri M. A. Rana and Shri

•
il54 SUPREME COURT REPORTS (1982} 2 S.C.R.

A Sorab K. J. Modi filed Transferred Case No. 22 of 1981 as a wnt
I •

petition in the High Court of Bombay questioning the validity of
.• ~

the aforesaid Circular letter dated March 18, 1981 and have prayed
inter alia for a declaration that the Circular letter is ultrµ vires and
void and that the Union Government should be directed not to act
on the consent conveyed by the additional Judges.
B

5. These four cases constitute a group raising substantially
common points for consideration.

c 6. There is a second group, also consisting of four cases, led
by Writ Petition No. 274 of 1981 filed by Miss Lily Thomas, an
advocate practising in the Supreme Court of India, under Art. 32 ·
of the Constitution. She challenges the transfer of Shri M. M.
fomail, Chief Justice of the Kerala High Court. Shri M. M.
famail has filed an affidavit stating that he has decided not to pro-
-
D C•eed to Kerala, nor to challenge the validity of the order of the
President transferring him but to proceed on leave preparatory to
rietirement by resignation of his office. Shri M. M. Ismail has
r·esigned since.
)

E 7. An Advocate, Shri A. Rajappa, practising in the High
_ Court of Madras, filed Transferred Case No. 2 of 1981. He prays
for a declaration that the order of the President transferring Shri M.
M. Ismail from the High Court of Madras to the High Court of
Kerala and Shri K.B.N. Singh, Chief Justice of the High Court of
Patna, to the High Court of Madras is void.
F -
· 8. Transferred Case No. 6 of 198( was filed in the High
Court of Madras by Shri P. Subramanian, praying for the same
reliefs as Shri Rajappa in Transferred Case No. 2 of 1981.

G 9. Two advocates, Shri D. N. Pandey and . Shri Thakur
:Ramapati Sinha, filed Transferred Case No. 24 of 1981 in the High
Court at Patna challenging the order of transfer of Shri M. M. Ismail
from the High Court of Madras to the High Court of Kerala and of
Shri K.B.N. Singh from the High Court of Patna to the High Court
of Madras. During the pendency of this w1it petition, Shri K.B.N.
Singh, who had b~en impleaded a~ a respondent, was transposed as
.a petitioner.

•
i ts.5
10· These cases raise constitutional questions of considerable A
significanc·e to. the judicial system in India. ·· They involve grave
issues of fundamental importance respecting the High ·Courts and
the Judges constituting them. They deeply. affect the Rule of Law
and the administration of justice.
B
The Rule of Law and the adminisrration ofjustice

11. India is a sovereign socialist secular democratic republic
...·
·governed by a written Constitution designed to sectire to all its
citizens justice, liberty, equality and fraternity in their various facets.
A constitutional democracy;. so portrayed has its institutions and c
values rooted in the Rule.of Law, and that is plainly demonstrated
by the provisions of our ·constitutional structure and the constitu-.
tional philosophy inspiring it: The; vitality of the Rule of Law
flows from those roots to the sever'al branches . of the constitutional
strUCture, sustaining and nurturing them and -giving them life and •
their intended significance; D
(
The Rule of Law is the Primary Principle of our Constitution,
and in its universality and omnipotence it postulates that no oiie,
neither State nor individual, shall act contrary to the law, and
. nobody shall be denied right• and justice.· The principal organs of
the State, the Executive, the .Legislature and the Judiciary are. E
governed by it and ·operate through it. In its daily· task of adjudi-
cating disputes, the Judiciary maintains the Rule of Law and enforces .
it. It ·does sci by interpreting tlie law and applying it and, in appro-
priate cases, decreeing its observance. · And in adjudging the consti~
-tutional validity· of degislation and• ex~utive: acts; it protects the
Law
Rule ·of embodied iri the Constitution. · F
}
12. In securing and promoting tlie ' resolution of· disputes· in ..
a legal forum. in accordance'' with established -legal • pr9cedure, the "
administration of justice ensures a 'peaceful and· orderly progress by
a people through constitutional methods . towards the . realisation of G
their aspiratioqs. And if it'. is ·to ·rule · their minds and hearts, the
administration of justice must enjoy their confidence: Public col)fi-
dence in the administration of justice is imperative to its effective«
ness, because ultimately, the ready . acceptance 'of: a judicial verdict'
. I-'
alone gives relevance to the ·judicial· system. While the adminisira: H
tion of justice draws its legal sanction from the Constitution; its
credibility rests in the 'faith• of· the· people. Indispensable to that'
1156 SUPREME COUR.T REPORTS (1982] 2 S.C.R.

faith is the independence of the judiciary,. An independent and
..
" -" impartial judiciary supplies the reason for the judicial institution,
;t also gives character and content to the constitutional milieu.

13. India;s statesmen, political leaders, eminent jurists and
B ·representatives of a broad cross-section of our n·ational life were
. engaged for about three years in forging a Constitution _worthy of
· India's greatness. In the fashioning of the provisions relating to the
•• judiciary, the greatest importance was attached . to securing the inde-
pendence of the judges, and throughout the Constituent Assembly
debates the most vigorous emphasis was laid on that principle. The
·-\- c judiciary in British India had by and large, for. a century of British
rule, enjoyed the respect and confidence of the people_ for its high
reputation of independence and impartiality. None the less· the
framers of the Constitution took great pains to ensure that an even
better and more effective judicial structure was incorporated in the
• Constitution, one which would meet the highest expectations of
judicial independence. In a land and among a people whose ancient
/values stemmed from Truth as a. Reality, culminating in the adoption .
of a national emblem confirming. that creed, they could have done
no. less. - · . _, ·

14. It is pertinent to observe that the High Courts under our
E Constitution have been conferred far wider jurisdiction and powers
than the High Courli under the Governm-ent- of India Act, 1935.
They enjoy not only the jurisdiction and ·powers existing before the
commencement of the Constitution· but by virtue of Article 226 they
have been vested with power to issue directions,. orders or writs to
any person· or authority; including any Government within their
F
{ territorial jurisdiction, and that power . is not limited, as it is in the

....
/ case of the Supreme Court of ·India, to the enforcement of the
rights conferred by Part III but extends to any other purpose .
Moreover, by Article 227 of the Constitution . the High Courts have
been granted ~the superintendence not merely over all courts subject
G to their appellate jurisdiction ,but indeed over all courts and tribunals
. throughout their territorial jurisdiction. Further, unlike the Govern-
ment of India Act· the Constitution has not prohibited the High
Cour.ts from enjoying original jurisdiction in .matters concerning the
revenue or concerning any act ordered or done in the collection
H thereof. The framers·of ·the Constitution evidently intended that
the widest amplitude of remedi~l action should be available to every
person throughout the territorial jurisdiction of the. High Courts.

l
S.P. GUPTA v. UNION (Pathak, J.) 1157

So great was the anxiety to ensure that the Rule of 'Law reigned A
supreme in each State throughout India.

15. It is in this context that the questions raised before us
may be considered.

The constitutional scheme concerning the High Courts B

16. The judiciary in India consists broadly of the Union
judiciary, the High Courts in the States and tbe Subordinate Courts
) > in those states. Chapter V of the Constitution deals with the High
Courts and its present provisione may be briefly surveyed. Article
214 requires that there shall be a High Court for each State, and
c
, Art. 216 deals with the constitution of every High Court. Art. 217
. lays down the procedure for appointment of a Judge of the High
Court, the circumstances in which the office of Judge is vacated,
the qualifications for appointment, and how the age of a Judge
shall be determined. Art. 218 provides for the removal of a Judge
D
from his office. Art 219 requires a Judge to make or subscribe an
-r oath or affirmation before he enters upon his office. Art. 220 places
a restriction on practice after a person has been appointed perma-
nent Judge. Art. 221 provides for payment to the Judge of his salary
·and entitles him to certain allowances and rights, and the proviso
declares that neither the allowances of a Judge nor his rights in E
respect of leave of absence or pension shall be varied to his tlisad-
vantage after his appointment. Art. 222 empowers the Ptesident to
transfer a Judge from one High Court to another in consultation
with the Chief Justice of India. Arts. 223, 224 and 224A enable
the appointment of an acting Chief Justices, additional Judges,
acting Judges and provide for former Judges to sit and act as Judges. F
Art. 225 defines the jurisdiction of existing High Courts and Art.
226 extends the jurisdiction to the issue of directions, orders and
writs. Art. 227 vests in the High Court the power of superinten-
dence over all courts and tribunals within its territorial jurisdiction.
Art. 228 empowers the High Court to transfer to itself cases pending
in a subordinate court involving a substantial question of law as to G
the interpretation of the .Constitution. Art. 229 provides for the
appointment of officers and servants of the .High Court, and Art.
230 for the extension of jurisdiction of the High Court ,to Union
territories. · Finally, there is provision by Art. 231 for establishing
a common High Court for two or more States or for two or more H
States and a Union Territory.
1158 SUPREME COURT REPORTS (1982) '.! s,.c.R.

A 17. An important point to note is that Chapter V relating to
the High Courts embodies a single organic scheme. The provisions
of that scheme are inter-related and often inter-dependent, and in
ord1er to appreciate the true purpose, scope and content of any
pro'lision it is necessary to examine it in the context of the entire
con:;titutional scheme. This is so, whether the question relates to
B the ;appointment of an additional Judge, or to the transfer of a
Judge from one High Court to another.

The constitution of the High Courts and t~e appointment of the Judges ·

c 18. In a modern democracy the supreme power of the State
.•
is shared between the three priI1cipal organs, the Exec~tive, t~e
Legislature and the Judiciary. Each holds a distinct position in t~e
overall constitutional scheme; and has broadly separate functions
and responsibilities from those vested in the other organs. .~ Consti·
D tutio:11 deems the simultaneous co-existence and effective functioning
of all three organs imperative to the proper working of the consti··
tutional system. It envisages that all three organs should function
contiiauously according to their true nature and responsibilities, so
·that in the totality the constitutional system is held in constant
balance. The constitutional document itself has made full and
E detailed provision for the constitution of each of these primary
organs of the State, so that at all times the constitutional system as a
whole is in full operation.

19. Article 216 provides that every High Court shall consist
of a Chief Justice and such other Judges as the President may from
F time to time deem it necessary to appoint. Plainly, while the Presi-
dent i!: vested with the power 'to appoint Ju~ge~, he is also unde~ a
constitutional obligation to ensure that the fligh Court is fµlly
· constituted. It is fully constituted when it consists of Judges sudi-
cient in number to regularly cope with and dispose of the work
falling within its j1;1risdiction. From the terms of .Art. 216 it is a\so
G plain that the constitutional obligation imposed on the President
extend:s to ensuring from time to time that the High Court consists
of a sufficient number of Judges. The expression "from time;: to
time" is significant. The responsibility imposed by Art. 21 (j requires
the making of a periodic review of the annual institution of cases
H and thtl pending strength of arrears resulting in a reasonable assess-
ment of the number of Judges needed in each High Court. It may
be observed that serious injury is possible to a constitutional
S.P. GUPTA v. UNION (Pathak, J.) 1159

dem9craey where this is not done, and ,the judiciary remains insuffi-
ciently manned and periahig cases coniinue to accumulate for long
periods. A continuing imbalance in the proper operation of the
constitutional system ranging over a long period of time by reason
of one of its primary organs remaining ill-equipped to discharge its
essential responsibilities cannot but be viewed with grave concern.
B

20. Article 216 speaks of Judges generally. A study of the
constitutional scheme embodied in Chapter V indicates that as a
general rule the appointment of permanent Judges is contemplated.
They are Judges who are entitled to continue ·in office until they
attain th~ age of 62 years, and whose tenure is fixed by the Consti· .c
tution itself. They are appointed with reference to the normal
workload of the court. A fixed tenure u'naffected by the discretion
of the executive safeguards the principle of judicial independence.
In spedal circumstances, however;" and in special circumstances only,
the appointment of additi_onal Judges or acting Judges is contemp-
lated under Article 224. An additional Judge is appointed under D
-- r clause (1) of Art. 224 where it appears to the President that by
reason of any temporary increase· in the business of~ High Court
or by reason of arrears of work therein the number of the Judges
of that court shouid be for the time being. increased. The number.
of Judges is increased only for the time being, and the appointment
E
of an additional Judge is, therefore, envisaged for a limited period
which, by clause (I) of Art. 224 must not exceed two years. A~
acting Judge is appointed under clause_ (2) of Art. 224 by the Presi-
dent when any Judge of a High Court other than the Chief Justice
is by· reason of absence or for any .other ·reason unable to perform
the duties of his office or is appointed to act temporarily as Chief F
Justice, a person so appointed can act as a Judge only until the
permanent Judge has resumec:l h.is duties. Both additional Judges
and acting Judges must be appointed from among duly qualified
·persons, that is to say, the qualifications prescribed in Artie!~ 217,
and they cannot be appointed to · hold office after attaining the age
of 62 years. It will be seen therefore that Art. 216 contemplates G
Judges who are permanent Judges, additional Judges or acting
Judges,' permanent Judges as a rule and additional Judges or acting
Judges in exceptional or special circumstances. A separate and
distinct category is that of former Judges of a High Court who
under Article 224A may be requested by the Chief Justice of a High H
Court, with the previous consent of the President, to sit and act as
a Judge of the High Court. Such a person does not fall within
1160 SUPRl!ME COURT REPORTS [1982] 2 s.c.a.

A Art. 216, for he is not a Judge of the High Court when so sitting
and acting. The President does not appoint him, but only gives
his consent to the Chief Justice to request the former Judge to sit
and act as a Judge of the High Court. The process of appointment
embodic~d in clause (I) of Art. 217 does not apply to him. It is for
that reason that express provision has been made in Art. 224A
B itself that while sitting and acting as a Judge of the High Court the
former. Jludge will be entitled to such allowances as the President
may, by order, determine and he shall have all the jurisdiction,
powers and privileges, but will not otherwise be deemed to be a
Judge of that High Court.

c 21. It may be pointed out that the Constituent Assembly was
not in favour of appointing additional or acting Judges, and although
in the Draft Constitution prepared by the Drafting Committee pro-
vision was made by Art. 198 for the appointment of temporary
Judges a.nd by Art. 199 for the appointment of additional Judges,
-
there wa.s strong opposition to their inclusion and those provisions
D were omitted when the Constitution was finally enacted.

The Draft Constitution provided by Art. 200 that the Chief
Justice of a High Court could request a former Judge of that court
to sit and act as a Judge of the Court. The provision was retained
E in the en.acted Constitution as Article 224, with this difference that
before making such request the Chief Justice had to obtain the
previous consent of the President and further his choice extended
not only to a former Judge of that High Court but also to that of
any other High Court. Apparently, it was felt that by enacting
Art. 224 there was no need to provide for the appointment of tem-
F porary o:r additional Judges. It was subsequently found that the
arrangement was not adequate, and for that reason the Constitution
(Seventh Amendment) Act, 1956 brought in the presen.t Article 224
providing for additional Judges and acting Judges and simultane-
ously deleted the original provisions respecting former Judges.
However, the need for former Judges continued to be felt, and the /'
G provision was reintroduced by the Constitution (Fifteenth Amend-
ment) Act, 1963 and was numbered as Article 224A.

22. The procedure for appointing a Judge of a High Court
H is set forth in clause (I) of Art. 217. A Judge of a High Court is
appointed by the President by warrant under his hand and seal after
S.P. GUPTA v. UNION (Pathak, J.) 1161

consultation with the Chier Justice or lndla, the Governor of the . A
State, and, in the case ·of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court. The appointment
of a Judge-is an executive act. The power to appoint is vested in
the President, who by virtue of clause (1) of Art. 74 is required to '
act in accordance with the advice of the Council of Ministers.. The
President may require the Council of· Ministers to reconsider such B
advice, either generally or otherwi'se, but he must act in accordance
with the advice tendered after such reconsideration. The nature of
, . '
the power exercised by the President under clause (1) of Art. 217
being executive in character, it, cann_ot be identified with the power
exercised under clause (3) of Art. 217 in regard to the determination
of the age of a Judge of a High Court. The power exercised under
c
- clause (3) of Article 217 has been held by this Court in Union of
India v. Jyoti Prakash Mitter ,(1) to involve a judicial function and
which therefore does not fall within the scope of clause (I) of
Art. 74,
D
23. While there can be no doubt that the appointment of a
Judge of a High Court lies in the executive power of the President,
A. it is not an absolute and U{lfettered power. It is conditioned by the
\
obligation imposed on the President to consult the Chief Justice of
India, the Governor of the State, and in the case of an appointment
of a Judge other than the Chief Justice, the Chief Justice of the
E
High Court 'The consultation is a constitutional imperative and the
process of consultation must precede the appointment. Three consti-
tutional functionaries are required to be· consulted, the Chief Justice
of India and the Chief Justice of the High Court, who are judicial

- functionaries, and the Governor of the State who is the executive
head of the State in respect of which the High Court has jurisdiction.
In this, clause (I) of Art. 217 makes a marked departure from
F

s. 220, Government of India Act, 1935. Under s. 220, a permanent
' Judge of a High Court was appointed in the absolute discretion of
' of the Crown, and the additional Judges appointed in the absolute
discretion, of the Governor General. In practice; of course, the
G
·chief Justice of the High Court was usually consulted, as well as
sometimes a few eminent leaders of the Bar who would not .be
interested in the appointment. But when the Constitution was being
drafted there was general agreement that the appointment of a Judge

(!) [1971) 3 SCR 483.

•
1162 SUPREME COURT REPORTS [19821 2 s.c.a.
A of a High Court should not be left to the unfettered discretion of
the Executive Government. The Constitution itself now imposed
......
the obligation to consult. Judicial independence under the Govern-
ment of India Act, 1935 had been assured by prescribing a fixed
tenure under sub-s. (2) of s. 220, and a Judge could not be removed
from his office except on the ground of misbehaviour or of infirmity
B of mind or bcidy and on a report by· the Judicial Committee of the
Privy Council that the Judge ought to be removed. There was the
further stipulation· by the proviso to s 221 that neither .the salary of
a Judge nor his rights in respect of leave of absence or pension could
be varied to his disadvantage after his appointment. Now, the
c independence of the judiciary can be fully safeguarded not by merely
conferring security on the Judges during their term of office but by

-
ensuring in addition that persons who are independent, upright and
of the highest character are appointed as Judges. Moreover, there
is always the fear that appointments left to the absolute discretion
of the appointing executive could be influenced by party considera-
D tions. The framers of the Constitution apparently had this in mind
when they decided to incorporate the prescription of consultation
in the terrns set forth in clause (I) of Art. 217. As Sardar
Vallabhbhai Patel explained in the Constituent Assembly on June
21, 1947 wben presenting the Report on the Principles of a Model
Provincial Constitution : ·
E
"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

F
any suspicion or doubt of such a nature. There is thus
enough guarantee provided for the independence of the
Judiciary."(1) ..
24. - As has been observed, clause (I) of Art. 217 prescribes
that besides the Governor of the State, the Chief Justice of India and '
the Chief Justice of the High Court must be consulted in the· /
G appointment of a Judge of a High Court. Three distinct constitu-
tional functionaries are involved in the consultative process, and
each plays a distinct role, and the nature and scope of the role are
indicated by the character and status of their respective offices. The
Chief Justic(: of the High Court is the head of the: i.ustltl!ioi;i, IQ. ~Nch
H
(1} Constituent Assembly Debates Vol. IV p. 694•

•
8. P; GtJi>tA 11. UNION (Pathak, i.)
the }udge wlll be a~poinhid. Ite is, therefore, particularly qualified· A
to know the needs of the court in the context of its present constitu-
tion and the work whi6h is pending. Generally, an appointment is
trtade either ftohi the High Court Bar or from the OistriCt Judiciary.
lii both cases, the Chief Justice can be expected to possess an intimate
knowledge of the legal ability of the person under consideration and
to have a sufficiently accurate estimate, of his character, antecedents B
and teputation, including his integrity, in the context of the legal
profession or the judicial service, as the case may be, as well as his
potential capacity as a Judge. It is also conveniently possible for
)
. him to obtain a fair measure of information in respect of a member
of a District Bar, should such a member be un·'er consideration. In
regard to persons practising in other courts or members of judicial c

- tribunals it is not difficult for Mm to secure adequate information.
It is apparently for this reason that the practice which has prevailed
for several years in this country postulates that it is the Chief Justice
of the · High Court who should initiate the process of appointment
by suggesting a person for the office of a Judge. But by virtue of
his position in the High Court and the State, the Chief Justice is also
exposed to local influences, and to prejudice or bias in relation to
lawyers appearing before him or judicial officers who meet him. His
assessment can be subjectively efiected. The Chief Justice of India
has been brought in, and it is apparent that, in virtue of the exalted
office held by hiin and the circumstance that he is far -removed from E
the local pull of influences and the temptations of partisanship, he
can be trusted to apply a strictly objective approach to the recom-
mendation proceeding from the High Court. Besides, the Chief
Justice of India possesses the advantage of viewing the matter from

- the superior plane of a national perspecti\'.e. He is seized with
knowledge of prevailing standards and trends in the different High
Courts, and as the head of the highest Court in India exercising
appellate jurisdiction over the High Courts by way of the widest
F

power under Article 136 he would be cognisant of the need to ensure·
that the highest quality was maintained in the appointment of Judges
of the High Courts. Indeed, he is expected by the Constitution to
keep himself adequately informed of the affairs of each High Court. G
For it is not merely for the purpose of appointing a Judge to the
High Court under clause (I) of Art. 2f7 that lie is to be consulted.
The President is also obliged to con·sult him before he can transfer a
Judge Urider clause (I) of Art. 222 f~om one High Court to another
High Court; a matter in which the Constitution does not expressly
stipulate consultatiQ!l c;vt;!l wjtil ~he <;:hief ~ustices of the two Hi~h
1164 SUPREME COURT REPORTS · · IJ 982) 2 s.c.R.
A Coutts concerned, the liigh Court f'tolll which the Judge is to be trans-
l'erred and the Jligh Court to which his transfer is contemplated. It
must also be remembered that in the determination of the age of a
Judge of a High Court under clause (3) of Att. 217 it is the Chief
Justice of India alone whom the President is required to consult,

B
25. The· part played by the Governor of the State must, it
,~ seems, be limited. The State Government possesses the advantage
of being able to secure information which may not be within the
knowledge of the Chief Justice in regard ·to the character and
integrity oif the p.erson recommended and his local position and
c affiliations. Besides, as the High Court is the highest court of the
State and the funds for it flow from the State Exchequer, it is only
logical that the State Government should be allowed a voice in asses- ,.._
,.
sing the suitability of the person recommended for appointment.(1 )
The State Government, however, can have no role in commenting on
his legal ability, knowledge of law and judicial potential.
D
26. The President is obliged to consider the advice tendered_
by the three constitutional functionarie's under clause (!)of Art. 217;
and in the evaluation of the advice from each he must bear in mind j
that the appointment under consideration is the appointment of a
Judge of a High Court, that is to say, a judicial appointment. Once
E that is kept in the forefront and it is apparent that the. person recom-
mended is of desirable personal character and reputation, the greatest
value should be attached to the advice tendered by the Chief Justice
of the High Court and the Chief Justice of India. The advice

F
tendered by the two judicial functionaries possesses a quality
peculiarly pertinent to the appointment of an able and
efficient Judge, It is, in a sense, "expert" advice, and where the
Chief Justicti of the High Court and the Chief Justice of India agree
-
o~ the recommendation it is within reason to hold that the Pr.:sident
will ordinarily accept the recommendation, unless there is strong
and cogent reason for not doing so, which must be a reason directly
G relevant to the purpose of the appointment. It may be reiterated
that the dc:parture made by clause (I) of Art. 217 of our Constitu·
tion from s. 220 of the Government of India Act, 1935 clearly
establishes that the advice tendered by the judicial functionaries was
considered 1:0 be a safeguard against arbitrary appointments and
H therefore entitled to the greatest weight. It may be pointed out

(1) Law Commonweattb of India, Fourteenth Report Vol. 1 p. 74.

\
S.P. GUPTA v. UNION (Pathak, J.) 1165

that appointments in England to the Court of Appeal, to the Judicial
-. Committee of the House of Lords and to the offices of Lord Chief
Justice, and Pre&ident of the Family Division are made on the advice
of the Prime Minister after consultation with the Lord Chancellor,
and the likelihood that . the Prime Minister may depart from the
recommendations of the Lord Chancellor can be contemplated "only B
in the most exceptional case" .(1)

27. At the same time I am unable to accept the contention
that as the Constitution stands today the President is obliged in all
)
cases to agree with a recommendation in which the Chief Justice of
the High Court and the Chief Justice of India have concurred. c
During the Constituent Assembly Debates a proposal was made by
a member that the appointment of Judges should require the
concurrence of the Chief Justice of India (although that suggestion
was made ·in connection with the appointment of Judges of the
Supreme ·court), but that proposal was not accepte'd. The Law
Commission of India( 2 ) surveyed the machinery for appointing a D
Judge of a High Court and considered it desirable that the provision
in clause (!) of Art. 217 should be altered to provide for "not
merely consultation with the Chief Justice of India but his concur-
rence in the proposed appointment". That recommendation has not
borne fruit and we are concerned with the position which prevailed
then and continues today. E
Does the advice given by the Chief Justice of India
have primacy over that rend~red by the Chief Justice of the
High Court?

28. A point has · been raised whether on a difference of F
opinion between them the advice of the Chief Justice of India can
be said to enjoy primacy over that tendered by the Chief Justice of
the' High Court. Nothing is laid down on the matter in express
terms in clause (I) of Art. 217. If by "primacy" is meant that the
opinion of the Chief ~ustice of India supersedes that or°the Chief
Justice of the High Court and can alone be considered, it is elearly G
against the provisions of clause (I) of Art. 217, for the clause inte'nds
that the President should consult both judicial functionaries, besides
the Governor. The advice of each, the Chief Justice of lndia and

H·
{I) J.A.G. Griffith: The Politi<;~ of Judiciary,'pp.17, 18 •.
(2) Ibid p. 75, • .. ·. . . . .
1166 SUPREME COURT REPORTS · [ 1982) 2 S.C.R.

A the Chief Justice of the High Court, has to be considered by the
President. The Chief Justice of India does not sit in appellate
judgment over the advice of the Chief Justice of the High Court,
and the fact that the former has given his advice cannot imply that
the advice' of the latter must be ignored. But it must be remem-
bered that the advice by the Chief Justice of India takes into account
B not only the primary material before him but also the assessment
made by the Chief Justice of the High Court, and t~erefore when he·
renders advice the assessment by the Chief Justice of the High
Court has also been considered by him. In other words, in forming
· his opinion and giving his advice, the Chief Justice of India will
take all the facts and circumstances into consideration, including the
c material circumstance that the advice. of the Chief Justice of the

D
High Court is the advice of an authority possessing the advantage
of direct and intimate knowledge of the requirements of the Court
and generally also of the person recommended, and thereafter he
will advic'e whether he endorses. the recommendation. In that sense,
it can be 8aid that the recommendation qf the Chief Justice of the
-
High Court is screened through the assessment made by the Chief
· Justice of India. The screening is a logical result of the Chief
Justice of India being brought in to express his opinion on the re-
commendation. · In passing, it may be observed that if any material )'
comes into the possession of the Chief Justice of India which was
E not before: the Chief Justice of the High Court it should be com-
municated to the Chief Justice of the High Court for his comments.
When the advice of the Chief Justice of the High Court and of the
Chief Justice of India 'is placed before the President, the President will
consider both and assess them in tl;e light of the positions held, and
the advantages possessed, by the respective functionaries in relation
F to the recommendation, and also bear in mind that while the Chief
Justice of the High Court bas the advantage of proximity in rela'tion
to the High Court and generally in assessing the ability and efficiency
of the person recommended, the Chief Justice of India enjoys the
advantage.:rns position of. being able to apply a more objective
judgment· and also of taking into account a national perspective
G and pr-esent standards and trends in other High Courts. In the
ultimate analysis, it would be unrealistic to suppose that the advice
rendered by the Chief Justice of India enjoys mere parity with that
of the Chief Justice of the High Court. If the Chief Justice of India
was intended to enjoy equal status merely with the Chief Justice of
H the High Court in 'this regard, it is difficult to appreciate why the
Chief Just::ce of India was b:rou~ht in at all, . especially when the
S.P. GUPTA v. UNION (Pathak, J.) 1167

advice expected of a judicial functionary for appointing a Judge of A
a High Court could be obtained from the Chief Justice of'the High
_; . Court alone. The constitutional scheme appears to iDdicate that
in matters concerning the High Courts there is a close cons.ultative
relationship between the President and. the Chief Justice of India.
In matters so serious as transfer of judges and the determination of
the age of judges, the Constitution bas appointed the Chief Justice B
of India as the sole functionary to be consulted by the President.
In that capacity, the Chief Justice of India functions under the
Constitution as a constitutional check on the. exercise of arbitrary
) power and protects t\le independep.ce of the judiciary.

The position relating to additional judges specifically c
29. It has been observed earlier that a High Court is intended
under Article 216 to consist of permanent judges as a rule. That
would accord with the principle of judicial independence because
thereby security of tenure is provided. The permanent Judges must
be in sufficient nml)ber to cope with the usual ·work of the High D
Court. There may, however, be exceptional circumstance, prevail-
ing over a brief period, which may call for a temporary accretion to
the number of Judges. Provision is found in Art. 224 for meeting
the exil!;ency. The President has power to appoint additional Judges
and acting Judges depending on the . nature of the exigency. Clause
(1) of Art. 224 deals with the appointment of additional Judges, E
and it is thb provision with which we are immediately concerned.
An additional Judge may be appointed where by reason of the
temporary increase in the business of a High Court or by reason of
.arrears of work therein it appears to the President that the number
of Judges should for the· time being be increased. The two condi-.
tions contr-01 the exercise of the power, and if neither is satisfied
F
there can be no case for appointing an additional Judge. The in-
crease in the business of the High Court must be temporary and
should be capable of being disposed of within a short period. Like-
wise, the arrears of work should be such that they cannot be expect-
ed to endure Jong. Inasmuch as the period of appointment of
G
additional Judges is prescribed as a maximum of two years, it is
only where the .disposal of the temporary increase in the business of
the High Court or the pending arrears of work is expected to take
about two years at the most that a case for appointing additional
Judges arises. If the increase in the business of the High Court or H
the volume of arrears of work is of a magnitude· which cannot ordi-
narily be disposed of within. two years! i~ js ~ ~a~e where the busj~
1168 SUPREME COURT REPORTS [1982] 2 S.C.ll.
A ness -0r work must be regarded as an accretion to the regular busi-
ness or work of the High Court, calling for an increase in the
strength of permanent Judges. A person appointed as an additional .-
Judge under clause (I) must be a "duly qualified" person. He must
be duly qualified for appointment as a Judge, '.the qualifications being
!hose prescribed in Art. 217. The appointment of an additional
B
Judge, like the appointment of a permanent Judge, must be made in
the manner prescribed in clause (1) of Art. 217.' The appointment
--
of an additional Judge, like the appointment of a permanent Judge,
must be made in the manner prescribed in clause (I) of Art. 217.
The process of consultation contemplated by that clause comes into
c play, and it is only after his suitability has been determined in
accordance with that clause that the additional Judge is appointed.
An additiional Judge discharges functions of the same character as
a permanent Judge. There is no difference whatever between the
two in status and the other incidents of office, except that an addi-
tional Judge can hold office only for the perfod specified in the
D warrant of his appointment. There is nothing in clause (1) of Art
224 to suggest that the temporary increase in ·the business of the
High Court or the pending arrears of work can alone be entrusted
to additional Judges. All that the clause provides is that either or
both conditions can constitute a reason for temporarily increasing )
the number of Judges of the High Court. Which work should be
E assigned to permanent Judges and which to a,dditional Judges is a
matter normally falling within the discretion of the Chief Justice of
. the High Court. It was observed by this Court in Krishan Gopal v.
Shri Prakash Chandra( 1 ) that "election petitions should ordinarily, if
possible, be entrusted for trial to a permanent Judge of the High
Court". But that was a mere expression of policy for the court
F affirmed that they "are legally competent to hear these matters".
It may be that despite the appointment of a reasonable number of
additional Judges, the ·temporary increase in the business of the
High Comt or the pending arrears of work may not be disposed of
within a period of two years aud may continue for a few more
months. There is reason to expect that the person. found fit for
./
G appointment as additional Judge and who has already gained profi-
ciency and experience will be appointed as a Judge for a further
period in order that the work may be disposed of and not 11llowed to
remain pe:nding.
H Y-
(1) p974J 2 SCR 206,
S.J>. GUPTA v. UNION (Pathak, J.) 1169

In passing, it may be observed that the period prescribed :.~Y A
clause (I) of Art. 224 for the appointment of'an additional Judge i~
put at a maximum of two years, but that does not mean that in every
case the appointment must be for two years. The appointment of
an additional Judge may be for a period less than two years, and the
period will be determined with reference to the time estimated for
disposing of the temporary increase in the business or the pending
arrears of work which occasioned the appointment. The period of
.appointment cannot be fixed on the basis of any other factor.
Where, as observed earlier, the work or business is not completed
within two years and calls for a further appointment of additional
Judges, the duration of the further appointment will be conditioned
again by the time assessed for disposing of the remaining business
c
or work. But it is to be distinctly borne in mind that additional
Judges can be appointed only where the temporary increase in the
business of the High Court or the arrears of work can be expected
to be disposed of within a period of two years and not very much
more If additional Juqges are appointed for successive periods D
of two years or more it is clearly a case where the increase in the
business of the High Court or the volume of the arrears of work
does not call for the appointment of additional Judges but for a
review of the number of permanent Judges. Appointments of
additional Judges for successive periods of two years or more cons-
titute a violation of the safeguard afforded by the appointment of E
permanent Judges for the protection of the principle of judicial
independence.

It appears that for several years now a practice has grown, to
which both the Executive and the Judiciary have unwittingly sub-
scribed, of maintaining a regular strength of additional" Judges and F
generally appointing a person as an additional Judge of the High
Court instead of appointing him directly as a permanent Judge of
the High Court. The additional Judge so appointed continues as
an ad.ditional Judge, until a vacancy in the office of permanent Judge
arises, whereupon such person is appointed as a permanent Judge.
If no vacancy arises before the expiry of the term of the additional G
Judge, he is appointed an additional Judge for a further term. A
regular strength of additional Judges is ·maintained in almost every
High Court which is burdened by a continuing backlog of pending I
cases. These arrears have assumed enormous proportions and cannot
possibly be disposed of for quite some years, let alone a period of two
years. A distortion of the constitutional scheme has resulted, and
the aberration has persisted by reason of the failure to realise that
1110 SUPlUJME COURt RllPoRtS [1982] 2 s.c.R..

A addition.al judges can be appointed only where the temporary
increase in the business or the arrears of work can be disposed of
ordinarily within two years, and that otherwise it is a case for
increasing the number of permanent Judges. The omission has
Jed to a serious state of affairs, which has affected the careers and
future of a large number of persons appointed as additional Judges
B in the High Courts. Having decided to maintain a regular strength
of additional Judges on a permanent basis, the practice also grew
of invariably appointing these additional Judges as permanent Judges·
as and when vacancies arose. That was principally prompted by
the disinclination to permit additional Judges on the expiry of their
terms as such, to revert to the Bar. It must be remembered .that
c when the Draft Constitution including Article 199 providing for
addition.al Judges was submitted for consideration there was strong
opposition to the inclusion of that provision. Several legal lumi ·
naries, including Sir Tej Bahadur Sapru objected to it on the ground
that such reversion to legal practice gav!l them an unfair advantage
over their colleagues and was embarrassing to the administration of
D
justice. Therefore, the Constitution as originally enacted did not
contain any provision for the appointment of additional Judges.
SubseqU1mtly, however, because of persisting ~rrears of cases in
most High Courts, the need was felt for making such provision and
it was inserted as ~lause CO. of Art. 224 by the Constitution (Seventh
Amendment) Act, 1956. It was thought that the evil of additional
E
Judges reverting to the Bar could be prevented by absorbing them
as permanent Judges, and in some Hj.gh Courts this was so:ught to
be secured by obtaining from persons appointed as additional Judges
an undertaking at the time of such appointment that they would not
refuse appointment as permanent J_udge if it was offered to them.
F In a few High Courts a further undertaking was secured to the effect
that in the event of the additional Judge refusing appointment as
permanent Judge or resigning before the offer was made he would
not pra1~tice in that High Court or in any Court or tribunal sub-
ordinate to it. It was intended that this practice should be extended
to all High Courts, for a suggestion was made on June 29, 1967
/
G by the then Chief Justice of India, Shri K.N. Wanchoo, "when a
member of the Bar is appoiQted Additional Judge, it must be with
a view to making him permanent in due course. If that is not

' possible, additional judgeship should not be offered to a member of
the Bar. I agree, therefore, that an undertaking should be taken
H from the: members of the Bar that they will accept a permanent
S.P. GUPTA v. UNION (Pathak, J.) 1111
.A
judgeship when offered to them in due course ...•" The practice of
additional Judges being appointed permanent Judges, the senior
most additional Judge being invariably appointed first, has been
followed in India almost without exception. Where no present
vacancy of permanent Judge was available, the additional Judge
was, on the expiry of his term, always appointed for a further term B
as additional Judge. We are informed that of 400 such appoint-
ments of additional Judges as permanent Judges the practice has
been breached in the observance on two or three occasions only.
This practice has been uniformly and consistently followed and has
crystallised into a positive rule of conduct. It is a rule of conduct
followed by the Government regularly and without interruption, c
almost entirely without exception, and has operat(\d consistently for
twenty five years on the basis of precisely defined norms in respect
of a general class. And it flows from the power of the State. It
a
prescribes channel of appointing Judges and is not inconsistent
with clause (I) of Art. 217 .. So long as it is not varied or supresed-
ed, it will operate as a rule of conduct binding on the President. On D
that edifice rests the ~efinite expectation of a large number of addi-
tional Judges. It may be added that during this period, direct
appointments from the Bar as permanent Judges have numbered 100
only. In the circumstances, the question which arises is : Are the
additional Judges entitled to claim appointment as permanent
Judges? · E

...
32. It is contended that as the volume of arrears of cases pending
in the High Courts is so great that they cannot be disposed of within
a period of two years, the position is th~t when the additional Judges
were appointed the appointment should have been instead to the F
office of permanent judges. Alternatively, it is urged that a direc-
tion should be issued to the President to appoint the additional
Judges as permanent Judges. Now the warrant of appointment
issued by the President recites that the appointment is of an addi-
tional Judge for the limited period specified therein. The intention
was to appoint an additional Judge and for the period specified. It G
is not open to the Court to alter the terms of the warrant.
Although it may be generally possible to say that the circum-
stances require an increase in the number of permanent Judges and
not the appointment of additional Judges, it is for the . President
under Article 216 to determine what should be the number of
H
permanent Judges. The Court cannot by judicial verdict decide
1172 SUPREME COURT lµJPORTS (1982] 2 s.C.R.

A how many permanent Judges are required for the High Court. And
if it is not competent to do so, it can neither regard the appoint-
ment of additional Judges as an appointment of permanent Judges
nor can it issue a direction to the Government that the additional
judges should be appointed now as permanent judges. ·

B ' 33. But while an additional Judge may not have a right to
be deemed to be a permanent Judges or be entitled to a direction
that he Ile so appointed, nonetheless he has, in my view, a right to
be considered for such appointment. His case must be distin-
guished from the case of a person considered for direct appointment
as a permanent Judge. The latter has no right to be considered· for
c appointment. The adqitional Judge, however, bas accepted office
within the framework of a definite and consistent practice practically
always followed and leading him to believe that he would be conside-
red for appointment in accordance with that practice. The require-
ment of an undertaking that he would not refuse an offer of appoint-
ment as permanent judge may, it is true, be a feature presently in
D some High Courts only, but it clearly demonstrates how the appoint-
ment of additional judges has been regarded by the ·President. It
cannot be said that because the undertaking was required in some
High Courts only, those High Courts are to be conside~ed to be
distinct from the others where no . such undertaking has been
required. The µndertaking merely confirms the practice on the
E
basis of which the appointments of additional judges have been
made in all the High Courts and which has been followed all along.
The additional Judges are persons who were found to possess the
same high order of character, integrity and legal ability as is required
in the case of permanent Judge. The standards for making
F appointment as additional jndge or as permanent judge are not
different. All the additional Judges accepted judicial office on the
assumption that the practice clothed with all the status of constitu·
tional reality would operate in their cases and that they would in
their turn be considered for appointment as permanent judges.. All
of them certainly believed that inspired by that trust, they abandoned
G their positions at the Bar and law practices assiduously bl)ilt up
over many years. As observed already, there is nothing in the
power of appointment vested in the President under clause (!) of
Article 217 to prphibit the appointment of permanent judges from
persons holding office as additional judges and in the order of
H seniority based on the date of such appointment. It has been stated
by the learn ~d Attorney General that the Government places great
S.P. GtJPTA v. UNION (Pathak, J.) 1173
A
value on the experience already acquired by the additional judges
and would be reluctant to allow them to revert to the Bar if on
consideration they were found suitable for appointment as permanent
judges. In my view, having regard to all the circumstances the
additional judges must be held entitled to consideration for appoint·
ment as permanent judges, or to consideration for further appoint· 8
ment as additional judges in the terms already set forth. That will
be so in the case of all additional judges appointed to that office in
the frame~work of the circumstances to which I have adverted.

)

34. The · next question to be considered is whether the c
consideration of persons serving as additional judges for
appointment to the · offioe . of permanent judges envisages
• a fresh application of the process envisaged under clause
(I) of Art. 217 in respect of all the matters to which consi·
·deration has already been given at the time of their appointment as
as additional Judges. On behalf of the petitioners it is contended D
> ( that the process of consultation must be confined to the question
whether a vacancy in the office of permanent Judge has arisen, or,
, if no such vacancy has arisen, whether the High Court continues to

' suffer from a temporary increase in its business of by continuing
arrears of work inasmuch "as suitability for holding the office of
judges has already been ·determined .when they were appointed
additional judges. It is pointed out, and that is conceded by the
E

learned Attorney General, that the additional Judges cannot be
considered to be J.udges on probation for the purpose of appoint·
ment as permanent Judges. Alternatively, it is urged that whatever
else may be open to consideration it is not competent for· the
appointing authority to consider the manner and quailty of their F
work as additional.judges. To my mind, there is no doubt whatever
that the provisions of clause (I) of Article 217 come into play when
an additional Judge is to be considered for appointment as permanent
Judge or even for further appoilltment as additional judge. The
·process involves the consideration of all the concomitant elements and

, factors which entered into the process of consultation at the time of
appointment earlier as an additional Judges, but it may be clearly
stated that no account can be taken of the merits ·of judgments,
decrees and orqers rendered by him or administrative orders or
directions made in the bonafide exercise of his functions as an
G

H
additional Judge. In the consideration of matters under clause (I) of
Art. 217 there will be a somewhat varied approach. The difference,
1174 SUPREME COURT REPORTS (1982] 2 s.c.R.
A and inevitably there will be a difference because the process has
already been applied earlier in the case of that person, will lie in the
reduced emphasis with which the consideration will be exercised ' ...
Ordinarily, the presumption will be that a person fou~d suitable fo;
appointment as an additional Judge continues to be suitable for
appointment as a permanent Judge. But· circumstances may arise
B and events may take place meanwhile which bear adversely on the
mental and physical capacity, character and .integrity or other
matters rendering it unwise to appoint him as a permanent Judge.
There must, however, be relevant and pertinent material before it
can be said that such a person has forfeited the badge of suitability
for appointment as a permanent Judge. There must be material
c which sufficiently convinces the reasonable mind that the person is
no longer suitable to fill the high office of a Judge. It is difficult to
define precisely the nature and quality of such material. If the
reputation of the person is in doubt, the doubt must be rooted in
reasonable foundation. It must not be forgotten that it is a case of
a person who has a right to be considered for appointment. It is a
D right to be considered fairly. The exercise of arbitrary judgment
' .....
is clearly ruled out. While I find it difficult to accept the plea that -
~uch a person is entitled as of right to be heard in regard to
material discovered against him I have no doubt that for the purpose
of discharging responsibilities invo I ved hr the process of consultation
the Chief Justice of the High Court and the Chief Justice of India
E will find it desirable in their· discretion to ascertain from him whether
there is any substance in what has been conveyed to them. In d.oing
so, the two judicial functionaries will not be conceding a right of
hearing to such a person. For a right to be heard involves on enquiry
of certain dimensions well known to the law- In doing so, the two
judicial functionaries will be acting within the scope of their legiti~
F mate duty of giving advice to the President if for that purpose they
acquaint themselves fully and truly, so far as they reasonably
conceive it necessary, to collect all available relevant information.
Surely if it is open to them togatlrer information from other sources
there is no valid reason why they should exclude the one person who
G would be in personal possession of material concerning information
operating to his detriment. But much will depend on the circums-
tances of each case. What needs to be considered is that the
constitutional duty to tender advice necessarily involves the obliga-
tion of ensuring that the advice, in the judgment of 'the functionary
H ten de ring it, is accurate and proceeds on the basis of reliable material.
Whatever verifica,tion is possible, there is no doubt that recourse
S.P. GUPTA v. UNION (Pathak, J.) 1175

should be had to it. There can be no half measures, and in the
A
discharge of that constitutional duty the response must be equal to
. the responsibility.

35. There is the contention that if the consultative process
under clause (1) of Art. ·217 applied again in all ·its comprehensive- B
ness in the case of a person who has already been found suitable
for appointment as additionai Judge, it must be regarded that while
serving as additional Judge he was in fact put on probation. The
submission appears to be misconceived. A person.is on probation
f when he is appointed to an office on the understanding that he will
be confirmed in that same office if found suitable. No such question
arises here. Then, the service of a person on probation can be
c

- terminated at will even before the expiry of the period of probation.
An additional Judge, however, is entitled to serve for the full period
specified in his appointment, and can be removed only under Article
218 read with cl. (4) and cl. (5) of Article 124.
D
f
The case of Shri S.N. Kumar

36. I , shall now consider the validity of the decision of the
Union Government not to appoint Shri S.N. Kumar as an additional
Judge for a further term. It is the admitted position that the
volume of work in arrears in the High Court of Delhi continues E
to be sufficiently large and would have otherwise justified his appoint
ment. It has been observed already that when, on the expiry of his
term, an additional Judge is considered for a further term in that
office his case attracts the provisions of clause '(l) of Article 217,

- and the President must consult the functionaries mentioned in that
clause. In the case of the High Court of Delhi, consultation is
called for with the Chief Justice of India and the Chief Justice of the
High Court only. The consultative process, it may be reiterated,
F

requires that all the material in the possession of the Chief Justice of
the High Court must be placed before ·the Chief Justice of India as
well as the President. Likewise, all the material in the possession
- of the Chief Justice of India must be placed before the President and
the Chief Justice of the High Court. So also; all the material
G

in t'1e possession of the President must be placed before·
the Chief Justice of India and the Chief Justice of the High
Court. A continuous process of consultation between all three H
authorities is mandated, · resulting ultimately in advice tender",
ed to the President by the Chief Justice of the High Court and
1176 StJPREMll COtJR'r REPORtS i1~82) 2 S.C.R.

A the Chief Justice of India. It is not necessary for me to enter into
the other questions raised in the challenge directed against the
decision of the Union Government not to appoint Shri S.N. Kumar
as an additional Judge for a further term. It seems to me sufficient
to say, on a review of the material before me, that there was no
effective and full consul.tation between the President and the Chief
B Justice of the High Court on the one hand, and the Chief Justice of
India on the other. The facts may be· recounted briefly.

37. Shri S.N. Kumar was appointed an additional Judge of the
0

High Court of Delhi for a period of two years by a notification
c dated March 6, 1979, and he assumed charge of his office the next
day. Shortly before the expiry of that period, the Chief Justice of
the High Court of Delhi addressed a letter dated February 19, 1981
to the Minister of Law, Justice and Company Affairs stating that
while the pendency of cases in the High Court justified the appoint-
ment of additional Judges and normally the extension of the tenure
-
D of an additional Judge was recommended in the circumstances, he
did not recommend the extension of Shri S.N. Kumar because, he
said, serious complaints had been received, both oral and in writing,
against him directly by the Minister as well as himself, that he had
examined those complaints and found that some of them were not
without basis, that responsible members of the Bar and some other
E colleagues had also complained about Sbri S.N. Kumar and that
although he had no investigating agency to enquiie conclusively into
the genuineness of the complaints the complaints had been persistent.
It was also pointed out that Shri S.N. Kumar bad also not been
helpful in disposing of cases. Finally, it was said, some responsible
members of the Bar as well as some colleagues expressed some
F doubts in regard to Sbri S.N. Kumar's integrity. A copy of the
letter was sent to the Chief Justice of India, on March 3, 1981,
the Chief Justice of India expressed a desire to look carefully into
the charges against Shri S.N. Kumar and pointed out that the letter
of the Chief Justice of the High Court appeared to be too vague to ,,
G persuade one that Sbri Kumar lacked integrity. The Chief Justice
of India recommended that Sbri Kumar be appointed for a further
period to enable him to make an enquiry into the matter meanwhile.
-
Sbri Kumar was reappointed as an additional Judge with effect from
March 7, 1981 for a period of three months. On March 19, 1981,
H the Law Minister wrote to the Chief Justice of the High Court draw-
ing his attention · to the observations of the Chief Justice of India
that the letter dated February 19, 1981 sent by the Chief Justice of
S.P. GUPTA v. UNION (Pathak, J.) 1177

High Court appeared to suffer from vagueness and it was therefore A
difficult to accept that Shri Kumar lacked integrity. It appears that
_, )
the Chief Justice of the High Court met the .Chief Justice of India
and discussed the case of Shri Kumar with him. On March 28,
1981 he wrote to him confirming that "with regard to the complaints
about Justice Kumar's integrity and general conduct, the matter has
already been discussed between us." On the same day the Chief B
Justice of the High Court wrote to the Law Minister enclosing a
copy of his letter to the Chief Justice of India and he informed the
Law Minister that he had had "an opportunity to discuss the entire
matter in detail with the Chief Justice of India.' He added :

c
"Perhaps 'you will co1:1sider this to _be sufficient
·~omments' on my part as desired by you in your letter
under reply about the observations of the Chief Justice
of India which you have quoted in your letter."

, In reply, the Law Minister wrote back on April 15, 1981 to the Chief
D
Justice of the High Court pointing ~ut that "you must have had
some material which provided the basis on which you concluded that
Justice Kumar's reputation for integrity was not above board and
recommended that he may not be continued. In view of the obser-
vations of the Chief Justice oflndia asking for concrete material, it E
would be necessary for us to have it with your comments." Quite
evidently, the Law Minister intended that the material should be
available to the Chief Justice of India also, so that all the material
should be considered by both of them. Thereafter, the Chief Justice
of the High Court wrote a Jetter D.O. No. 269-HCJ /PPS dated May
7, 1981, bearing the caption "SECRET (For Personal Attention F
Only)" and reading as follows :

"Dear Mr. Minister,

I am in receipt of your D.O. No. 50/2/81-Jus.
G
dated 15th April, 1981.

' Hon'ble the Chief Justice of India had made
certain observations with regard to my recommenda-
tion about Mr. Justice S.N. Kumar and the same were
H
communicated to me by you ·for my comments in your
D.O. No. 50/2/81-Jus., dated 19th March, 1981. Th((
1178 SUPREME COURT REPORTS (1982] 2 s.c.R.

A Chief Justice had also written to me a letter dated 14th
March, 1981; asking for ';details and concrete facts in
regard to the allegations against Justice Kumar." As ' ..
I wrote to you in my D.0. No. 293·HCJ/PPS, dated
28th March,1981, I discussed the matter with Hon'ble
the Chief Justice and as desired by him, in reply to his
B letter, wrote my D.O. No. 292-HCJ/PPS, dated March
2'8, 1981 a copy of which was forwarded to you.
Accordingly, it is not only enbarrassing but painful for
me to write this letter. As you, however, desire to
know what material provided the basis for me to
c conclude that Justice Kumar's integrity was not above
board, I give below some facts :

In the first half of 1980, Justice Kumar was sitting
singly and was doing mostly Original Side matters but
also some Appellate Side matters. Chance remarks
0 came to my knowledge about his conduct in Court as
well as about his integrity. Somewhere early in May,
1980 one of my colleagues met me and said that he
was rather perturbed about information with him to
the effect that if a substantial amount was paid to
Justice Kumar, suits brought by a particular party
E against an insurance 'company would be decided in
favour of that _party. I had not paid much attention
to the earlier reports but when this _was brought to my
notice, and I was at that time not the Chief Justice,
I thought to myself that after the summer vacations, to
save Justice Kumar from any embarrassment, he should
F be put on a jurisdiction other than original jurisdic-
tion. Therefore, when as Acting Chief Justice I consti-
tuted the Benches for the second half of 1980 I put
Justice Kumar in .a Division Bench to sit on the Appel-
late Side and Writ Jurisdiction. In my view this was a
safe way to finish the rumours if the same were in- ./
G correct and thus safeguard the reputation of a Judge.
Surprisingly enough, Justice Kumar did not release the
original suits, regarding which allegations had been
made, from his board and continued to deal with
these suits even in the second half of 1980. These
H suits were Suit No. 1409 of 1979, Suit No. 1417 of
S.P. GUPTA v. UNION (Pathak, J.) 1179

1978 and Suit No. 1408 of 1979 filed by Jain Sudh
A
Vanaspati Ltd. and Jain Export Pvt. Ltd., against the
New Iti.dia Assurance Co. Ltd. In August, 1980, the
same colleague of mine who talked to me earlier and
another collague mentioned that ·doubts were being
expressed about the integrity of Justice Kumar vis-a-
B
vis the aforesaid cases and some others. Since I was
only acting as Chief Justice at that time, I did not
want to take any precipitate action. I, however, made
discreet inquiries from some of the leading counsel and
they in strict confidence supported the allegations.
This made me IOok into the matter more carefully 'C
when to my astonishment I found that ·it was not only '
the three suits mentiohed above but that there were
other Single Bench matters also which had been retain-
ed by Justice Kumar on his board despite being put
in the Division Bench. There is fairly a long list of
these cases. In some of these the parties involved D
were rich and influential including some former
princes. After I was appointed Chief Justice early
in January, 1981; I looked into this matter a little
more deeply and made further inquiries. Some of the
lawyers were non-committal and understandably so.
Others, however, asserted with some force that Justice E
Kumar's reput.ation was not above board. I talked to
some of my other colleagues besides the two who had
earlier spoken to me. They also said that unconfirmed
reports have been circulating in the Bar which were
not very complimentary to Justice Kumar. This made
me conclude that the reputation for integrity of Justice F
Kumar was not what should be for a Judge of the
High Court. To my mind, reputation of a integrity is
just as important as person actually being above- board."

Then followed reference to a complaint made by one Mr. Sabir
Hussain, advocate and some data concerning the disposal of cases G
by Shri S. N. Kumar as well as allega.tions about some incidents
in his Court concerning his conduct towards counsel.

38. Some days after receiving this letter of May 7, 1981 from H
the Chief Justice of the High Court, the Law Minister recorded a
note on May 19, 1981 mentioning therein that before issuin~Jtbe
1180 SUPREME COURT REPORTS [1982] 2 S.C.R.
A letter the Chief Justice had requested him to treat it as a secret
document confined to his personal attention, and that he had given
certain reasons for wanting it treated so.· The Law Minister sought
advice from his Secretariat whether the communication of the Jetter
to the Chief Justice of India was unavoidable. This indicates that the
Law Minister has not decided, when he received the letter, whether
B he should withhold it from the Chief Justice of India. It is not appa-
rent what advice he received from his Secretariat, but it seems that he
ultimately decided to honour the request of the Chief Justice of the
High Court to keep the document secret. It appears that neither
the Law Minister nor the Chief Justice of the High Court did ever
c inform the Chief Justice of India of this Jetter of May 7, 1981 and
of its contents. A perusal of the subsequent correspondence confirms
that to be so, and indeed that was affirmed by the Law Minister in
his letter of May 29, 1981 addressed to the Chief Justice of the High
Court.

D 39. On May 27, 1981 the Law Minister recorded a note in
which inter alia he said :

"I presume that when C.J., Delhi and the C.J. of the
Supreme Court met, the former must have informed the
latter about the details that he had mentioned to me in his
E letter dated 7.5.81. · This presumption. is raised on the basis
of the letters from the Chief Justice, Delhi."

He went on to observe that on the question of the integrity of Mr.
Justice Kumar, the views of the Chief Justice of the High Court be
F preferred because he had the advantage of watching the work and
conduct of the Judges.

40. The first point to consider here is whether the informa-
tion contained in the letter dated May 7, 1981 of the Chief Justice
of the High Court was ev.er made known to the Chief Justice of
G India. There is no dispute that the Law Minister, in deference to the
wishes of the Chief Justice of the High Court, did not communicate
that information to the Chief Justice of India. The dispute centres
on whether the Chief Justice of the High Court had ever conveyed
H the particular information to the Chief Justice of India. In my
view, he never did so. There were no doubt .meetings between the
S.P. GUPTA v. UNION (Pathak, J.) 1181

Chief Justice of India and the Chief Justice of the High Court when A
the question relating to the ~integrity of Shri S.N. Kumar was dis-
cussed. Originally, the Chief Justice of the High Court had spoken
in the most general terms of complaint against the Judge. It seems
that subsequently on March 26, 1981 the Chief Justice of the High
Court told the Chief Justice of India that he doubted the integrity
of Shri S.N. Kumar because "even after Justice Kumar's allocation
B
was changed from the original side to the appellate side, he still
continued to hear the part-heard cases on the original side." This
was mentioned in the letter dated May 22, J981 written by the
Chief Justice of India to the Law Minister. The Chief Justice of
India understood the allegation in its limited scope, that is to say that
Shri S.N. Kumar was committing an irregularity in retaining origi-
c

-
nal jurisdiction part heard cases before him when he was now sitting
on the appellate side. In the same letter he said :

"As regards the complaint of the Chief Justice that
Justice Kumar's integrity was doubtful since he conti-
nued to take old part-heard matters even after the
D
allocation of his work was changed, I have made
enquiries ... "

and observed that it appear to be common practice in the Delhi
High Court that even after the Judge was moved from the original
side to the appellate side he continued to take up part-heard cases E
on which a substantial amount of time had already been spent. The
Chief Justice of India concluded that in the circumstances Shri
Kumar could not be said to have done anything out of the way in
taking up part-heard cases even after the allocation of work was
changed. The affidavit of Shri S.N. Kumar discloses that an enquiry
F
was made of him by the Chief Justice of India on why he continued
to deal with original work while sitting on the appellate side, and in
this connection he specifically refers to the three suits clearly men-
tioned in the Jetter dated May 7, 1981 of the Chief Justice of the
High Court. There is nothing to suggest that the Chief Justice of
India was ever apprised of the much more serious allegations con- G
tained in the letter of May 7, 1981 insinuating that the parties in
these suits and in certain other cases, which as part- heard cases
were said to have been retained by Shri Kumar for hearing, were
rich and influential persons and that the Chief Justice of the High
Court had "made discreet enquiries from some of the leading coun- H
sel and they in strict confidence supported the allegations" and that
this was the material which Jed ~Q <;iout:>t on the inte~ritr of th,~
1182 SUPREME COURT REPORTS (1982) 2 S.C.R.

A Judge. This material was certainly very grave, much more
than the mere allegation that the Judge was continuing
to bear part-beard suits which, without anything more, could have
been regarded at the worst as a mere irregularity. It took on a
different complexion when considered in the light of the more dama-
•
ging allegations made in the letter of May 7, 1981. I do not find
anything on the record from which it can be presumed that this
material was ever conveyed by the Chief Justice of the High Court
to the Chief Justice of India. When all the correspondence and
the affidavits on the record before us are considered together, that
appears to be the only conclusion. It is stregthened by the insistent
c request of the Chief Justice of the High Court to the Law Minister
that the letter of May 7, 1981 should not be disclosed to the Chief
Justice oflndia.

4 l. What is the effect of that ommission ? It is clear that
the Chief Justice of India had, for the purpose of tendering his
D advice in the process of consultation, decided to make enquiry from
Shri S.N. Kumar concerning, the allegations against him. He had
enquired, and Shri Kumar bad explained, about the Judge continu-
ing to hear part-heard cases even after he had been moved to the
appellate jurisdiction of the Court. Had the allegations contained
in the letter of May 7, 1981 been communicated to the Chief Justice
of India, he would have been in a position to determine for himself
by necessary enquiries, either from Shri Kumar or from other sour-
ces, whether there was any substance at all in those allegations.
Such an enquiry was material to enable the Chief Justice to decide
whether there was any substance in the allegations now made against
Shri Kumar, and in case on enquiry he was of opinion that the alle-
F gations were baseless he would have, while maintaining his recom-
mendation for a further term as additional Judge to be given to Shri
Kumar, communicated his views to the Law Minister in respect of
this further material. It must be remembered that the Government
was deciding against a further term to Shri Kumar solely on the
G ground of doubtful integrity, and clearlv the allegations
contained in the Jetter of May 7, 1981 were strongly influencing that
decision. That is apparent from the note drawn up by the Law
Minister on May 27, 1981 where he says: "The Chief Justice of
India in bis advice proceeds from the premises that taking up part-
heard cases after the allocation of work is changed does not amount
to lackin~lin inte~rity. ~If it ,\were ~th~t ~imple I would not have
S.P. GUPTA v. UNION (Pathak, J.) 1183

joined issue, but the details furnished by the Chief Justice of Delhi
A
High Court in his letter dated 7-5·81 go farther". It is an open
)' .>· . question whether the Law Minister would have continued to prefer
the views held by the Chief Justice of the High Court if the Chief
Justice of India had been informed of the allegations contained in
the letter and on subsequent enqumes had found that
there was no substance whatever in them. So Jong as the B
possibility remains, the conclusion must be that the process of
consultation with the Chief Justice of India was not full and effective
and the withholding of important and relevant material from the
• Chief Justice of India has vitiated the process. In my view, there
was a violation of the Constitutional requirement mandated by
clause (I) of Art. 217. It follows that the question whether Shri c
S.N. Kumar should be given a further term as additional Judge

- has to be reconsidered, and a decision taken only after full and
effective consultation as envisaged by the constitutional mandate.

The power to transfer a High Court Judge under clause
(/) of Art. 222. D

42, The most strenuous debate before us has been raised over
the scope and content of the power to transfer a Judge from one
High Court to another under clause (I) of Art. 222. The issues
raised are of great importance to the administration of justice and E
undeniably can produce far reaching consequences .
.. .
)
45. The matter has already received the attention of this
Court in Union of India v. Sankal Chand Himatlal Seth and Anr.(1)
and the majority opinion expressed therein is that the consent of the

- Judge is not essential to his transfer. It is urged that the view re-
quires reconsideration and that we, as a larger Bench, are compe-
tent to do so.
F

44. It is desirable in the first place to trace the history of the
\.., provision. Almost from the inception of the High Courts in India
Judges appointed to one High Court were thereafter appointed to G
another High Court. The practice continued under the Government
of India Act, 1935. The Government of India Act
did not contain any provJS1on corresponding to Art.
222 of our Constitution. But by section 2 and sub·s. ( 1) of s. 6 of
_....;- the India (Miscellaneous Prqvjsion) ~Act, 1944 statutory recogni- H
(1) [1978J l S.C.R. 423,
1184 SUPREME COURT REPORTS [1982] 2 s.c.R.

A
tion was given to the practice by enacting with retrospective effect
clause (c) in the proviso to sub-s. (2) of s. 220, which said :

"(c). The office of a Judge shall be vacated by his
being appointed by His Majesty to be Judge of the Federal
B Court or of another High Court."

Thatwas the only provision in the Act which could be said to
constitute evidence of the practice of moving a Judge from one High
Court to another Court. The clause was included as clause (c) of
the proviso to clause (1) of Art. 193 of the Draft Constitution, and
(J there was a suggestion that another clause be added as follows:-

"(d) Every Judge shall be liable to be transferred to other
High Courts."( 1)

The peremptory nature of the suggested clause may be noted. The
D
Drafting Committee considered the amendment unnecessary and
pointed out that there was no bar under Article 193 to a Judge of
one High Court being appointed a Judge of another High Court,
and drew attention to the existing clause (c) providing that the )
office of the Judge would be vacated on the Judge being appointed
E to any other Court.

In regard to another suggestion that a convention should be
....
.\:
established whereby a proportion of Judges in every High Court
could be recruited from outside the Province, the Drafting Commi-
F
ttee observed that there was no bar to such recruitment or to the
transfer of a ·Judge of a High Court to another High Court. It
seems, however, that subsequently the Drafting Committee changed
its mind and on reconsideration decided to incorporate an express
-
provision for the transfer cif High Court Judges. The provision
empowered the President to transfer a Judge from one High Court
to any other High Court. This provision was amended subsequently
G
by including therein an obligation to consult the Chief Justice of
India in the matter. Consequently, clause (c) of the proviso to
clause (I) of Art. 217 was altered so that in place of the word
"appointed" the word "transferred" would be read in conjunction .
H
(I) B. Shive Rao: The Framing of India's Constitution, Select Document~
P·
yo1. IV 16~.
s.i>. GuFrA v. UNION (Pathak, J.) 11SS
A
with the words "to any other High Court". The reasons given by
Dr. B.R. Ambedkar in the Constituent Assembly for proposing this
provision may be mentioned :

"The Drafting Committee felt that since all the High
- Courts so far as the appointment of judges is concerned
form now a central subject, it was desirable to treat all the
B

judges of the High Courts throughout India as forming one
single cadre like the I.C.S. and that they should be liable
to be transferred from one High Court to another. If such
power was not reserved to the Centre the administration
of justice might become a very difficult matter. It might c
be necessary that one judge may be transferred from one
High Court to another in order to strengthen the High
court elsewhere by importing better talent which may not be
locally available. Secondly, it might be desirable to
import a new Chief Justice to a High Court because
)
it might be desirable to have a man who is unaffected
D
by local politics and local jealousies. We thought therefore
that the power to transfer should be placed in the hands
of the Central Government.

We also took into account the fact that this power of E
transfer of judges from one High Court to another may be
abused. A Provincial Government might like to transfer
a particular judge from its High Court because that judge
had become very inconvenient to the Provincial Govern-

- ment by the particular attitude that he had taken with
regard to certain judicial matters, or that he had made a
nuisance of himself by giving decisions which the Provincial
F
Government did not like. We have taken care that in
effecting these transfers no such considerations ought to
prevail. Transfers ought to take place only on the ground
of convenience of the general administration. Consequently
we have introduced a provision that such transfers shall G·
take place in consultation with the Chief Justice of India
who can be trusted to advise the Government in a manner
which is not affected by local or personal prejudices.

H
The only question, therefore, that remained was
whether such transfer should be made so obligatory as not

•
1186 si.Ji>RBMil COURT Rili>oilrs [1982} 1 s.c.il.

A to involve any provision for compensation for loss incurred.
we felt that that would be a severe hardship .... '. . The ............ _

Drafting Committee felt therefore justified in making pro-
visions that where such transfer is made it would be per-
missible for Parliament to allow a personal ·allowance to be
given to a judge so transferred."
B
The statement gave reasons for making the express prov1S1on con-
ferring power to transfer and proceeded on the basis that the trans-
fer could be made obligatory on the Judge concerned, and that he
should be relieved to some degree against the hardship occasioned
c thereby provision was made for payment of compensation. Inciden-
tally, the statement also shows that the Drafting Committee was under
the impression that the Judges of the High Courts throughout India
should be treated as constituting a single cadre like the Indian Civil ,
Service. The statement can be regarded as of historical relevance
only. · In so far as it records the impression that the Judges of the
D High Courts form a single cadre it proceeds on an impression whicl1,
as I shall presently show, is totally erroneous. But it does mention
the reasons which prompted the Drafting Committee to include the
provision for transfer and compensation. The clause providing for
the payment of compensatory allowance to a transferred Judge
during the period he served as a Judge of the other High Court was
E omitted by the Constitution (Seventh Amendment) Act, 1956 but
thereafter was reinstated in appropriate language by the Constitution
(Fifteenth Amendment) Act, 1963.

45. The present Art. 222 reads :
F
. "222(1). The President may, after consultation with
t~e Chief Justice of India, transfer a Judge from one High
Court to any other High Court.

· · (2) When a Judge bas been or is so transferred, he
G shall, during the period he serves, after the commencement
of the Constitution (Fifteenth Amendment) Act, 1963, as a
Judge of the other High Court, be entitled to receive in
addition to his salary such compensatory allowance as may
be determined, by Parliament by law and, until so deter-
H
mined such as compensatory allowance as the President
may by order fix."
s.fl. dtJJITA v. UNION (Pathak, J.) 1181
A
I think it is necessary to remove the impression that the Judges
of the High Courts constitute a single All India cadre. The consti·
tutional scheme embodied in Chpter-V envisages each High Court
as a distinct entity from every other High Court. It is a complete,
self-contained and self-sufficient institution, independent of the
others and not related to them in any manner. Every High Court B
draws its own powers and jurisdiction from the provisions of the
Constitution, and in no way does it share them with the other High
Courts. When a Judge is appointed to a High Court, he is
appointed to that High Court only. It is for that reason clause
(c) of the proviso to clause (1) of Art. 217 enacts that the office of a
Judge shall be vacated by his being transferred to any other High c
Court. He is the holder of a distinct office, that of a Judge of the
High Court to whic.h he is appointed. It will be noticed that the
consultative process envisaged in clause (I) of Art. 217 involves in
his appointment requires the President to consult the Chief Justice
of the High Court to which his appointment is proposed\and the
Governor of the State concerned, besides the Chief Justice of India • D
.• The Chief Justtce of High Court is consulted because, as has been
observed earlier, he is intimately concerned with the appointment of
a competeent Judge to meet the particular requirements of his Courts.
The Governor of the State likewise is consulted .because he is con-
cerned about the quality of the administration of justice at its
highest level in the State. In the case of both functionaries, they E
....
>
are involved with the appointment in order to ensure tnat the Judge
appointed is most suitable in relation to that High Court. The
interests and needs of that High Court alone occupy the mind of
these two functionaries. A person may be found unsuitable, by
reason of association or other links, for being a Judge of the parti-
cular High Court, while he may be free from that embarrassment in F
respect of the other High Courts. It may be observed that the
Presidential Warrant appointing the Judge specifically mentions that
the appointment is as a Judge of the High Court named therein.
Moreover, the prescribed Form itself of the oath, which the Judge
must make and subscribe before entering upon his office shows
clearly that the appointment is confined to that High Court. We G
have been referred to Hira Singh v. Jai Singh,(1) wehere a full
Bench of the Allahabad High Court held that an additional Judge
of that court who had already _taken oath on such appointment was
not obliged to take oath again on his appointment as a permanent
H
(1) AIR 1937 All., 588,
StJPitBME COtJRt REi>oRTs [198.2] 2 s.c.a.
A Judge. The case is clearly distinguishable, for it was one where the
Judge continued to be a Judge of that court. He had not been
transferred to another High Court under our Constitution, the
Form reads:

"!, A.B., having been appointed Chief Justice (or a
8 Judge) of the High Court at (or of) ............ do swear in
the name of God solemnly affirm that I will bear true faith
and allegiance to the Constitution of India as by Jaw
established, that I will uphold the sovereignty and integrity
of India, that I will duly and faithfully and to the best of ,
c my ability, knowledge and judgment perform the duties of
my office without fear or favour, affection or illwill and
that I will uphold the Constitution and the Jaws." (1)

There is no All India Service of High Court Judges. Art. 215
.
speaks of a High Court for each State, and Art. 216 plainly declares
that the High Court shall consist of a Chief Justice and other Judges.
D
The Chief Justice is a Chief Justice of that High Court only and so
are the other Judges. The Judges of a High Court owe their
responsibilities and discharge their functions in relation to that
High Court only. They have no constitutional connection and no
legal relationship with the body of Judges of any other High Court.
E This position, in my view, cannot admit of any doubt.

46. · That being the position how then can the transfer of a
Judge from one High Court to another High Court be viewed in
law ? A Judge appointed to a High Court is entitled to continue
as a Judge of that High Court until he attains the age of 62 years,
F unless of course he resigns his office or is removed from it. His
transfer to another High Court involves the vacation of his office in
..
that High Court, that is to say, his appointment as a Judge of that
High Court stands terminated. This is confirmed by clause (c) of
the proviso to clause (I) of Art. 217. Simultaneously, without any-
thing more the transfer affects his appointment to the other High
G Court to which he is being sent. An order of transfer under clause (I)
of Art. 222 therefore, is a transaction in two parts, the termination
of the appointment as a Judge of the original High Court and the
simultaneous appointment as a Judge of the other High Court.
That view is supported by the circumstance that the power of

(1) Form No. VIII in the Third Schedule of the Constitution.
S.P. GUP'tA v. UNION (Pathak, i.)

A
transfer is vested in the President. It is significant in this connec-
tion that the President is also the appointing authority in the case of
appointments made under clause (1) of Art. 217 and is also vested
with the power of removal in cases falling under Art. 218 read with
clause (4) of Art. 124. Therefore it was necessary that the authority
who has been otherwise vested with the power to appoint a Judge B
and to terminate his appointment should also be the authority to
transfer him. It may be added that inasmuch as the transfer
constitutes an appointment of the Judge to the other High Court,
Art. 219 comes into play and, therefore, the transferred Judge must,
before he enters upon his office in that High Court, make or sub-
scribe an oath or affirmation according to the prescribed Form. c

47. It is necessary to observe that the appointment to the
other High Court involved in the order of transfer is an appoint-
ment attributable to the power under clause (I) of Art. 222, and
cannot be regarded as an appointment under clause (1) of Art. 217. D
Whereas in the latter the Constitution requires consultation with
the Chief Justice of India, the Governor of the State and the Chief
Justice of the High Court, in the case of an appointment by transfer
the Chief Justice of India alone is involved in the consultation. The
framers of the Constitution evident!}' considered it unnecessary to
include other functionaries. If they had to be included, they would E
have consisted of the Governor of the State and the Chief Justice of
the High Court to which the Judge was originally appointed as well
as the Governor of the State and the Chief Justice of the High Court
to which the Judge was being transferred. It was apparently consi-
dered that the consultation· with the Chief Justice of India would
suffice to take into account the relative interests of the two High F
Courts and the President would take into account the interests of
the two States concerned. In this regard, while there is no consti-
tutional requirement expressly mentioned in clause ( !) of Art. 222,
it is always open to the President and the Chief Justice of India to
make necessary enquiries of the two States and the two High Courts
affected by the transfer. The merit of involving the Chief Justice of
G
India alone in the consultative process under clause (!)of Art. 222
lies in this that the process of consultation can be more e~peditiousiy
completed and is to be preferred to the inevitably protracted process
called for by a constitutional requirement involving two States and
two High Courts. Whereas the Chief Justice of India can informally H
ascertain the views of the Chief Justice of the High Courts and
1190 SUPRBMB COllkt kEPOlttS (I 982) 2 s.c.i.
A
satisfy himself whether he should advise in favour of the transfer,
the President can similarly ascertain the views of the two States.
The need for a formal presentation before the President of advice
from the Chief Justices of the two High Courts, from the Governors
of the two States and from the Chief Justice of India is thus
B eliminated.

48. I shall now examine whether the power to transfer under
clause ( 1) of Art. 222 can be exercised only after securing the consent
of the Judge concerned or even without his consent. As I have
observed, the power to transfer was not expressly conferred by any
c provision under the Government of India Act, 1935. What was
done was to clarify that when a Judge appointed to one High Court
was thereafter appointed to another High Court, he must be deemed
to have vacated his office in the original High Court. In other
words, it was made clear that on his subsequent appointment he
could not be regarded as a Judge of two High Courts. That, it
seems to me, was the intent or the speeches made by the Earl of
Munster in the House of Lords and the Secretary of State for India,
Mr. L.S. Amery, and Mr. Pethick Lawrence in the House of
Commons when the India (tvfiscellaneous Provisions) Bill was intro·
duced in the two Houses. Although they spoke of "the transfer"
of High Court Judges, it is apparent that the word was used in the
E popular sense. It was not used in the particular sense of an obligatory
transfer. There was no provision then in the Government of India
Act for the appointment to another High Court of a sitting Judge
without his consent. Indeed, the word used in clause (c) of the
proviso to sub-s. (2) of s.220 of the Act was "appointed". That
was also the word used in the original clause (c) of the proviso to
F clause (1) of Art. 217 of our Draft Constitution. It was only when
Art. 222 was added that the word "appointed" was substituted by
the word "transferred" The difference between the two words
"appointment" and "transferred" in our Constitution is borne out
by the different terms used in clause (c) of the proviso to clause (1)
G of Art. 217, where it is declared that the office of a Judge shall be
vacated by his being "appointed" by the President to be a Judge of
the Supreme Court or on his being "transferred" by the President to
any other High Court. It is true that sub-clause (iii) of clause (b)
of paragraph 11 of the Second Schedule to the Constitution, which
H defines "actual service", speaks of "joining time on transfer from
a High Court to the Supreme Court or one High Court to another."
To my mind, that plainly is an error in the drafting of the provision.
$.1>. GtJP'tA v. UNION (Pathak, J.) 1191

It would seem that some of the provisions in the Schedules have not A
) ,.>-.
been framed with the care they deserved, because in another part,
Form IV in the Third Schedule, the Form of Oath or Affirmation to
be taken by the Chief Justice of India before entering upon his office
refers to him as the Chief Justice of the Supreme Court of India.
In clause (1) of Art. 124, and throughout the other provisions in the
B
body of the Constitution, he is described as the Chief Justice of
India.

49. It seems to me that clause (I) of Art. 222 was specifically
enacted in our Constitution for the purpose of empowering the
President to transfer a Judge without necessarily securing his consent.
c

- The power was intended to be in the widest terms and subject only
to the obligation to consult the Chief Justice of India. If transfer
was conditioned further by the imperative of securing the consent
of the Judge concerned, then having regard to past practice there
was in fact no need to enact Art. 222. A Judge can always be D
removed from one High Court to another with his consent. That
had not infrequently been done during the ninety years of the High
Courts in British India, and there was no reason why it could not
have continued in tl~e High Courts under our Constitution. But the
framers of the Constitution intended a departure from that position.
By clause (I) of Art. 222 in the terms enacted, they did not include E
,.. . the condition that the Judge concerned must consent to his trans-
j fer.

50. It was contended before us that clause (I) of Art. 222 was

- incorporated in the Constitution so that the Chief Justice of India
could be brought in for the purpose of ensuring that the transfer
was effected in the public interest only and not for the personal
benefit of a Judge. The argument is without substance. Public
F

power of this nature can be employed only in the public interest.
It may be that incidentally the transfer may advantage the Judge,
but in every ca~e the primary ground for transfer must be public
interest. It seems to me clear that unless clause (I) of Art. 222 had
G
been enacted, it was not possible for the President to transfer a
Judge from one High Court to another without his consent. If a
transfer only with his consent was contemplated, it would have been
sufficient to rely on the power of the President under clause (I) of H
Art. 217 to appoint the Judge to another High Court, and cl:.iuse (c::)
of the proviso to clause (1) of Art. 217 would remove any doubt that
1192 StJPRBME COURT REPORTS [1982) 2 s.c.R.

A by such appointment the Judge vacated his office in the original
High Court. There is no need to confer power in express terms to <A...·•

do a specific act which can be done with the consent of the parties
under the umbrella of a general power.

B 51. It is worthy of note that where the element of consent
was considered necessary, it was expressly mentioned in the Consti-
tution. The proviso to Art. 224A imposes that condition when a
former Judge of a High Court is requested by the Chief Justice of a
High Court to sit and act as a Judge of the High Court. So also
is the provision in Art. 128 in respect of former Judges of the
c Supreme Court, the Federal Court or of a High Court requested to
sit and act as a Judge of the Supreme Court. In contrast, when
under clause (I) of Art. 127 a Judge of a High Court is requested to
sit as an ad hoc Judge of the Supreme Court when a quoram of the
Judges of the Supreme Court is not available, the Judge of the High
-
Court is bound to accept the request and his consent is not neces-
D sary. Reference may also be made to the position in England where
under s.4 of the Supreme Court of Judicature (Consolidation) Act,
1925 the' High Court is divided into three divisions, the Chancery
Division, the King's Bench Division and the Probate, Divorce and
Admiralty Division. The puisne Judges of the High Court are
attached to the several divisions by a direction of the Lord
E Chancellor. Sub-s. (2) of s. 4 of the Act provides that any such
Judge may with his consent be transferred by a like direction from " ..
·~
one of the Divisions to another. It will be noticed that although
the three Divisions are part of the same High Court, nonetheless the
statute el)pressly insists that on a Judge being attached to one of the
F
Divisions he can be transferred to another Division only with his
consent. · The provision was reiterated in sub-s. (4) of s. l of the
Supreme Ccurt of Judicature (Amendment) Act, 1944.
-
It is contended that the element of consent must be imported
G in cl. (I) of Art. 222 because a fresh oath or affirmation is necessary
when a Judge enters upon his office in the other High Court, and
whether he will make and subscribe such oath or affirmation rests
necessarily within his volition. To my mind that consideration does
not necessarily lead to the conclusion sought to be inferred. If a
H transferred Judge refuses to make and subscribe such oath or affir-
mation he could be regarded, it seems as guilty of misbehaviour
warranting his removal.
S.P. GUPTA v. UNION (Pathak, J.) 1193

But the principal ground in support of 'the submission that a
A
transfer of a Judge of a High Court can only be with his consent
.. .>.
lies in the argument that such a transfer amounts to a punishment of
the Judge without trial and therefore the principle of judicial indepen-
dence is gravely prejudiced. That submission, to my mind, must be
tested by an examination of the grounds on which a transfer is
B
permissible. Clause (1) of Art. 222 does not mention the grounds
on which the Judge may be transferred. Plainly, inasmuch as it is
in the nature of a public power vested in a functionary of the State,
,._ it can be exercised only in the public interest. Public interest is the
touchstone on which every transfer must be tested. That is the
_ necessary limitation implicitly circumscribing the exercise of power
under clause (1) of Article 222. All grounds which can be said to
c
fall within that rubric may be entertained. But no ground which
falls within the scope of Art. 218 read with clauses (4) and (5) of
Art. 124 can be brought within that scope. The grounds envisaged
by those provisions are "proved misbehaviour or incapacity". In
relation to them express provision has been made by the Constitu- D
tion, the grounds being so grave that if established they can result in
one pen111ty only, that of removal of the Judge.

54. The removal of a Judge is a matter of the greatest serious-
ness. It affects not only the Judge personally but also, in a larger
E
sense, affects the general reputation of the Judiciary. Consequently,
the Constitution, by clauses (4) and (5) of Art. 124 and by The
Judges (Inquiry) Act, 1968 has made the removal subject to a consti-
tutional and statutory process consisting of several stages at each of
which the action for removal is screened. The Judges (Inquiry)

- Act, 1968 requiries a notice cf motion for presenting an address to
the President praying for the removal of a Judge. The notice must
be signed by a hundred members of the House of the People, where
F

notice is given in that House and by fifty members of the Council of
State where the notice is given in the Council. The Speaker or the
Chairman, as the case may be, may consult such person as he
thinks fit and after considering such material, if any, as may be G
available to him, he may either admit the motion or refuse to admit
the same. If the motion is admitted, the Speaker or the Chairman
will then constitute a Committee for the purpose of making an in-
vestigation into the grounds on which the removal is sought. The
Committee consists of three members, one chosen from among the H
Chief Justice and other judges of the Supreme Court, the other
1194 SUPREME COURT REPORTS (19821 2 s.c.R.

A being a Chief Justice of a High Court and the third being a dis-
tinguished jurist. The Committee is required to frame definite
charges against the Judge, and such charges together with the state-
ment of the grounds must be communicated to the Judge, who will be
given a reasonable opportunity of presenting a written statement of
defence. Where it is alleged that the Judge is unable to discharge
B the duties of his office efficiently due to any physical or mental
incapacity and the allegation is denied, the Committee may arrange
for the medical examination of the Judge by a Medical Board
appointed by the Speaker or, as the case may be, the Chairman.
The Medical Board undertakes the medical examination of the
Judge and submits a report to the Committee. During the investi-
c gation, the Committee is obliged to give reasonable opportunity to
the Judge of cross-examining witnesses, adducing evidence and of
being heard in his defence. At the conclusion of the investigation,
the Committee is required to submit its report to the Speaker or the
Chairman, as the case may be. If the report of the Committee
finds that the Judge is not guilty of any misbehaviour or does not
-
D suffer from any incapacity no further steps can be taken in either
House of Parliament and the motion pending in the House cannot
be proceeded with. If the report finds that the Judge is guilty, then
the motion together with the report of the Committee, is taken up
for consideration by the House or the Houses in which it is pending.
E Jf the motion is adopted by each House of Parliament in accor-
dance with clause (4) of Art. 124 read with Article 218, then the
misbehaviour or incapacity of the Judge is deemed to have been
proved and an address praying for the removal of the Judge must
. "...
be presented to the President by each House of Parliament in the
same session in which the motion has been adopted. It is clear that
F where an allegation of misbehaviour or incapacity is levelled against
a Judge, he has the opportunity to defend himself including the
right to lead evidence as well as to cross-examine witnesses produced
against him. At every stage of the process the statute provides for
-
careful 6consideration whether the motion for removal should be
continued. Allegations which are so grave as to attract such detailed
G procedure and which afford full opportunity to the Judge to defend
himself cannot possibly be made a ground for transfer of the Judge.
In my view, the grounds of misbehaviour or incapacity are clearly
ruled out from the scope of clause (I) of Art. 222. I am convinced
that the transfer of a Judge under that provision cannot be made
H for the purpose of punishing him. It was never intended that the
power shoµld b\: exercised to impose a penalty by way of punish-
S.P. GUPTA v. UNION (Pathak, J.) 1195

meat. To permit that would be to permit a violation of the princi-
A
ple of judicial independence, for the only grounds envisaged by the ·
• )i . Constitution for punishment are grounds constituting misbehaviour
and the penalty for which is removal from office.

55. In the transfer of a Judge from one High Court to another B
..... the principle of judicial independence and the rights of the Judge
are protected by two safeguards. The first is that incorporated in
clause (I) of Art. 222, that is to say, the obligation of the President
to consult the Chief Justice of India. The Constitution expects the
Chief Justice of fodia to ensure in the process of consultation that
the power to transfer is not used arbitrarily against a Judge of a c
High Court, that it is not employed as a disguise for punish-

- ing him, and that, even if the ground for the proposed transfer is
made out, it will be in the public interest to effect the
transfer. In this regard, the consultation with the Chief Justice of
India must, in my opinion, extend to the entire gamut of the
grounds on which the transfer is proposed, even where the grounds
...' are incorporated in a policy. The protection afforded to the Judge
by the obligation of consultation with the Chief Justice of India is
intended to be a complete protection. It must be borne in mind
that the Judge concerned is entitled to continue in the High Court
to which he has been appointed for the full period of his tenure.
It has already been observed that the transfer can be effected with- E
out the consent of the Judge. It is, therefore, necessary to cons-
.... true the scope of the safeguard of consultation in its fullest com-
• prehension. To properly discharge his responsibility in the matter,
the Chief Justice of India must consider himself obliged to entertain
not only the material furnished by the Preside.1t to him but he must
J4'
also make as full an enquiry as he conveniently can for the purpose
of determining whether a transfer should be advised. In that pro-
cess, he must determine not only whether the grounds on 'Vhich the
transfer proposed are made out but he must also consider as relevant
the personal circumstances of the Judge concerned. It is ultimately
in the public interest that the personal circumstances of the Judge
G
should be taken into consideration, for there may be a
case where they may hinder the proper discharge
of his duties in the High Court to which he is
transferred. In that connection it is only right that the Chief
Justice of India should satisfy himself by enquiring from the Judge
r+ H
himself about what he has to say in the matter of his transfer,
I 196 SUPREME COURT REPORTS [1982) 2 S.C.R
A both in regard to the grounds for the transfer as well as in
regard to any hardship or inconvenience which may be suffered
by him by such transfer. As a sitting Judge he is entitled to be
informed of the proposed transfer and of the grounds therefore
because his right to continue as a Judge of the High Court is placed
in jeopardy. It is a very different case from the transfer of an
B officer who is a member of a service and is ordinarily transferable.
As has been observed earlier, a Judge of High Court is not a member
of any All India Service of Judges. It may be made clear at this
stage that the Judge does not have a right of hearing in the sense
in which that right is generally understood in law. The scope and
degree of inquiry by the Chief Justice of India must rest in his
c discretion. All that is necessary is that the ]udge should know why

D
his transfer is proposed and he should be able to acquaint the
Chief Justice of India of any reason why he should not be transfer-
red. It m~y also be added that the process of consultation envisa-
ged under clause {I) of Art. 222 requires that all the material in
the possession of the President must be placed before the Chief
-
Justice of India, as well as such other information which he may
need and may call for in order to render his advice.

57. The advice tendered by the Chief Justice of India
should ordinarily be accepted by the President and in this
E regard the observations made in Union of India v. Sankal
Chand Himatlal (supra) will be fully attracted. Chandrachud, J.
as he then was, speaking for the majority of the Court, ...
relying on what Bhagwati & Krishna Iyer, JJ. said in Shamsher
Singh v. State of Punjab,( 1 ) observed "that in all conceivable cases,
consultation with the Chief Justice of India should be accepted by
F the Government of India and that the Court will have an opportunity
to examine if any other extraneous circumstances have entered inro
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 promoted by
G oblique considerations vitiating the order.' Krishna Iyer, J.
observed
t
"Although the opinion of the Chief Justice of India •'
H may not be binding on the Government it is entitled to

~5) [1975] 1 SCR,.
S.P. GUPTA v. UNION (Pathak, J.) 1197

great weight and is normally to be accepted by the Govern-
A
ment because the power under Article 222 cannot be
exercised whimsically or arbitrarily."

and further :

"It must also be- borne in mind that if the Government B
departs from the opinion of the Chief Justice of India it
has to justify its action by giving cogent and convincing
reasons for the same and, if challenged, to prove to the
satisfiction of the Court that a case was made out for not
accepting the advice of the Chief Justice of India.
c
-
He added:

"The danger of arbitrary action or unsavoury exercise
has been minimised by straight-jacketing of the power of
transfer. Likewise, the high legal risk of invalidation of

-. any Presidential order made in the teeth of the Chief
Justice's objection, runs in an added institutional protection.
D

For it is reasonable for the court before which a Judge's
transfer is challenged, to take a skeptic view and treat it as
suspect if the Chief Justice's advice has been ignored."

I am fully in agreement with those observations. It is open to a E
Judge who is ordered to be transferred to invoke the jurisdiction
of the court and seek judicial relief against the transfer on the ground
_of violation of clause ( l) of Art. 222 as construed by this Court.
This constitutes the second of the two safeguard mentioned

- earlier.

58. While on this point, I think it necessary to emphasis that
F

the power to transfer a Judge from one High Court to another under
clause ( l) of Art. 222 is an extraordinary power. Inasmuch as it can
be exercised without the consent of the Judge, it can constitute a
threat to the sense of independence and impartiality of the Judge.
It must, in my opinion, be used most sparingly and only for very
G
strong reason. It must be clearly understood that the onus of
justifying the transfer lies heavily on the State.

59. In the debates before us pointed reference was made to a H
policy contemplated by the Gov\lrQment in re~ard to the transfer of
1198 SUPREME COURT REPORTS [1982) 2 S.C.R.

A of the High Court. It seems to me that any policy governing the appli-
cation of clause (I) of Art. 222· must conform in all respects to the x "
.
scope and content of clause (I) of Art. 222. The power to transfer is
to be found in that clause, and every act of the Government be it the
framing and adoption of a policy or the actual order of transfer,
must fl!ll completely within the scope of that provision. The entire
B
content of power vested in the President respecting the transfer of
Judges of the High Courts must be traced to the confines of the
clause. 'Accordingly, any policy framed and adopted in this behalf
must be tested on the criterion of public interest, and it must be
clearly understood that "public interest" means here the interest of
c the administration of justice. That is the sole purpose of the grant
of the power under clause (l) of Art. 222. Now, if the framing and
adoption of a .Policy is an act of the President under the power
conferr~d by clause (I) of Art. 222, it must be subjected to consulta-
tion with the Chief Justice of India. That is an imperative
conditiqn grafted on the exercise of all power relating to the
-
D transfer of Judges of the High Courts. That the framing and
adoptioq of a policy should be governed by that condition is easily
explicable if it is appreciated that the policy constitutes the basic
consider11tion entering the order of transfer. All considerations
controlling the transfer of a Judge of a High Court must fall within
the scope of the consultative process. The Constitution intends
E that the Chief Justice of India should be consulted before a transfer
is ordered by the President. The consultation must travel over the . ,..
entire ~~ea of consideraiion which prompts the transfer. The scope x
of consultation is not limited to any particular. It must be remem-
bered that the Constitution has insisted on consultation with the

f
Chief Justice of India in order to protect the administration of
justice and its central principle, the independence of the judiciary,
from arbitrary encroachment by executive power. -
60. It is contended that policy making is the exclusive and
absolute preserve of Governmental power. While that may be so
ordinarily; it cannot be accepted here having regard to the plain
G
terms of clause (l) of Art. 222. It is also urged that the policy can
always be tested in a court of law for its constitutional validity. and
therefore the intervention of the Chief Justice of India in his consul-
tative capacity need not be contemplated. It is not possible to
H agree. Tb_e framing of a policy is an administrative exercise, and
calls for m~king a choice of one or more considerations for execu-
tive action:withi~ the fielq gf several consideration~. When the
$.!>. GUPtA v. ONION (Pathak, J.) iI99
Chief Justice of India is consulted ori the formation of a policy by A
the President, the consultation involves an administrative choice of
operating on an administrative plane. · When the President con-
sults the Chief Justice of India under clause (I) of Art. 222, it is
consultation in relation to an executive act.

The transfer of Shri K.B.N. Singh, Chief Justice, High Court of 8
Patna.

61. Shri K.B.N. Singh was a Judge of the High Court of
Patna from September 15, 1966. He was appointed Chief Justice of
that Cou~t and assumed charge on July 19, 1976. On January 19,
1981 the President issued a notification, after consultation with the
c
Chief Justice of India, transferring Shri K.B.N. Singh as Chief

- Justice of the High Court of Madras with effect from the day be
assumed charge of that office. The transfer has been challenged in
Writ Petition No. 274 of 1981 and Transferred Cases Nos. 2, 6 and
24 of 1981. The principal contentions· of the' petitioners are firstly,
D
that there has been no effective consultion as envisaged by clause (1)
of Art. 222 inasmuch as all the material considered by the Chief
Justice of India.was not placed before the President, and the pro-
cess of consultation was not marked by fair procedure, and, secondly,
that the transfer cannot be said to have been made in the public
interest, and if different considerations have prevailed with the E
President and the Chief Justice of India, neither can be described as
related to public interest.

62. An examination of the several affidavits and of the
correspondence between the Government and the Chief Justice of

- India discloses the following facts :

63. The Chief Justice of India decided on visiting the High
Court of Patna in February, 1980 in order to meet the Judges of
F

the High Court and members of the Bar. After informing Shri
K.B.N. Singh, Chief Justice of the High Court of his proposed
visit, he proceeded to Patna and during his stay there on February
G
24, 25 and 26, 1980 he met the Judges of the High Court individu-
ally and interviewed individual members of the Bar, and also met
Judges of the District Court and members of the District Court
Bar. Of twenty advocates of the High Court whom be met, there
were fifteen senior advocates suggested by Sbri K.B.N. Singh. He
H
!!Iso met the members of the Advocat~s' Association collectively at
1100 SlJt>REMll COURT REPORTS [1982] 2 s.C.R.

A a function arranged by them. Among other things he had also
come to know that Shri K.B.N. Singh's mother was old and infirm
and not in a good state of health. At that time be did not indicate to
Shri K.B.N. Singh that there was any proposal to transfer him to an-
other HighCourt because at that time there was no proposal to transfer
him. It is clear that he returned from Patna greatly perturbed about
B the conditions prevailing there, and the matter continued to engage
his mind thereafter. It was then that he conceived of the transfer
of Shri K.B.N. Singh. There was at that· time a proposal by the
Government that the Chief Justices of all the High Courts should be
transferred as a matter of policy to other High Courts, so that each
c High Court would be headed by a Chief Justice from outside. No
final formulation of the scheme had been reached and no modelity
or mechanism had been decided on for implementing such a policy.

0
From the correspondence and · other material on the record it is
apparent that the Chief Justice of India and the Law Minister were
engaged in continuous discussion over a long period with regard to
the appointment of the Chief Justice of High Courts. The discus-
-
sion was embodied in their letters and also took place in personal
meetings and over the telephone. On December 7, 1980, the Chief
Justice of India wrote to the Law Minister "in furtherance to the
discussion which we had yesterday", stating that be was "firmly
opposed to a wholesale transfer of the Chief Justices of High Courts''
E and that "such transfers may be made in appropriate cases for
strictly objective reasons" and "personal considerations must, in the
matter of such transfers be wholly kept out". He mentioned that
the transfer of some of the Chief Justices bad been engaging his
attention for the past few months and in this connection he had
made personal enquiries and had met several lawyers and may
F Judges of the High Courts concerned. He recommended that Shri
KD. Shar~a, then acting as Chief Justice of the High Court of
Rajastban, should be transferred as Chief Justice of the High
Court of Kerala, and Shri K.B.N. Singh should be transferred
from the High Court of Patna as the Chief Justice of
the Rajasthan High Court. It appears that it was then realised that
G certain difficulties would arise if Shri K.D. Sharma was transferred
to the High Court of Kerala. In a letter to the Prime Minister
written on December 18, 1980 the Chief Justice of India proposed
that the transfer of Sbri K.B.N. Singh from Patna to Rajasthan
should await further consideration. After a telephonic talk with the
Law Minister, the Chief Justice of India wrote on December 20,
S.P. GUPTA v. UNION (Pathak, J.) 1201

A
1980 proposing the transfer of Shri M.M. Ismail, Chief Justice of
the High Court of Madras, as Chief Justice of the High Court of
Kerala and the transfer of Shri K.B.N. Singh as Chief Justice of the
High Court of Madras. On January 5, 1981, the Chief tJustice of
India telephoned Shri K.B.N. Singh and informed him of the likeli-
hood of his transfer to Madras. He asked him if he had anything B
...,;.._ - to say in the matter. Shri K.B.N. Singh wished to know why he
was being transferred and the Chief Justice of India informed him
that it was "Government policy" and that it was proposed to trans-
fer Shri M.M. Ismail from. Madras and it was necessary to appoint
an experienced and senior Chief Justice in his place. Shri K.B.N.
Singh informed the Chief Justice of India on the telephone that his c
mother was bed-ridden and he was not in a position to go with

-
his mother to Madras. No other personal difficulty was disclosed.
Shri K.B.N. Singh also observed that if his transfer was insisted on
he would prefer to: resign. The Chief Justice of India requested
him not to act in haste but to give the matter close thought, and he
was also making a note of the difficulty mentioned by him and "it D
will have to be taken into consideration before a final decision was
-~
taken." The Chief Justice of India requested him to come to
Delhi to discuss the question of his transfer. On January 8, 1981
at 7.30 p.m. Shri K.B.N. Singh met the Chief Justice of India at
his residence in Delhi and was with him for some time. He discus-
sed the question of his mother's advanced age and illness; that was E
the only personal difficulty which he mentioned in the matter of his
proposed transfer to Madras. The Chief Justice of India
told him that be was unable to agree that the mother's
circumstances presented any serious difficulty because

-
there were other dependable persons in his family
who could look after the mother and that, in any case, his brother F
Shri S.B.N. Singh, who was practising in the High Court, was quite
capable of looking after the mother. Shri K B.N. Singh replied
that bis mother was particularly devoted to him and he could not
leave her to the care of his brother and other ~members- of the
family. He mentioned that some baseless complaints may have
been made to I he Chief Justice of India and that he desired to G
remove any wrong impression created by those complaints. The
Chief Justice of India assured him that he was not proceeding on the
basis of baseless complaints and that he did not believe that his
conduct was blameworthy, but that if he wanted to explain any
matter which according to him had created dis-satisfaction about
H
the working of the High Court he was welcome to do so. Upon
1202 SUPREME COURT REPOkTS [1982] 2 s.c.k.
A that, Shri K.B.N. Singh told the Chief Justice how certain persons
conn.ected. with the High Court were influenced by communal
cons1derat10ns and how he, on his own part, did not permit com-
munal or other extraneous considerations to influence him adminis-
tratively or judicially. The Chief Justice of India assured him that
he did not hold him to blame, but that certain persons were exploi-
B
ting their proximity to him and that had created unnecessary
misunderstanding and dis-satisfaction. The Chief Justice of India
conveyed to Shri K.B.N. Singh that his transfer was proposed in the
public interest and that it was not made by way of punishment, and
that it was thought of also by the transfer of Shri Ismail from
c Madras to Kerala.

-
64. It seems clear that Shri K.B. N. Singh was informed by
the Chief fostice of India in full detail of the proposal to transfer
him from the High Court of Patna to the High Court of Madras,
and keeping in mind the telephonic conversation between them on
D January 5, 1981 and the personal discussion on January 8, 1981 it is /

apparent that Shri K.B. N. Singh was being transferred not because
of any wrong or fault on his part or for any conduct for which
blame could be attached to him, but because people were exploiting
their proximity to him in matters which had created dissatisfaction ·
and unnecessary misunderstanding in the High Court at Patna. It is
E also apparent that Shri K.B. N. Singh was aware that such a situa-
tion prevailed because he attempted to clear himself of any blame in
connection with what was happening. He was invited by the Chief
Justice of India to say whatever he wanted to in the matter which
"according to him had created dissatisfaction about the working of

-
the High Court". It is clear that the matter wa~ discussed fully
F between the Chief Justice of India and Shri K.B.N. Singh and the
latter had aniple opportunity to say what he wanted to. And it is also
clear that the proposal to transfer him from Patna was not by way
of punishment. It is unfortunate that a situation had been allowed to
develop'in legal and judicial circles at Patna which could only be re-
G medied by his transfer. That the transfer was intended to Madras was
occasioned by the circumstance that Shri M.M. Ismail was being
transferred from Madras to Kerala and it was necessary to send a
senior and experienced Chief Justice to the High Court of i\ladras.
The difficulty expressed by Shri K.B.N. Singh in regard to the
H condition ofliis mother's health was also considered by the Chief
Justice of India, who felt that Shri S.B.N, Singh, his brother practi-
sing law in the High Court, and other dependable person in the
S.P. GUPTA v. UNION (Pathak, J.) 1203

family at Patna could be relied on to look after the mother. Every A
relevant circumstance, including the personal difflculty mentioned by
Shri K.B.N. Singh was considered carefully and objectively by the
Chief Justice of India and on an assessment of the relevant facts and
circumstances he came to the conclusion that notwithstanding any
difficulty posed by a different language in Madras, as Shri K.B.N.
Singh was an experienced and senior High Court Chief Justice, he B
should be transferred from Patna to Madras. I am satisfied that a
fair procedure was adopted and all that could reasonably be done in
.,. the circumstances was done in the matter,

65. It is urged there was no full and effective consultation
between the Chief Justice of India and the Government as the
c
second discussion between the Chief Justice oflndia and Shri K.B.N.
Singh took place in the evening of January 8, 1981 and the order
was signed by the Prime Minister the next day. The Chief Justice
of India, in his affidavit on oath has emphatically averred that "there
was full and effective consultation between· me and the President of D
India on the question of Shri K.B.N. Singh's transfer from Patna to
Madras as the Chief Justice of Madras High Court. Every relevant
aspect of that question was discussed by me fully with the President
both before and after I proposed the transfer". There is no material
on the record for doubting the statement. It must be remembered
;.
x
. that the matter of Shri K.B.N. Singh's transfer had been under
discussion all along for a considerable time between the Chief Justice
E
of India on the side and the Law Minister and the Prime Minister
on the one other, and the discussion had taken place through written

-
correspondence as well as oral conversation by way of discussion in
personal meeting and on the telephone. It is perfectly within the
realm of credibility that what had passed between the Chief Justice J!
of India and Shri K.B. N. Singh on January 8, 1981 had also been
communicated to the Law Minister and the Prime Minister before
the order of transfer was signed by the Prime Minister.

66. A point was raised that the Chief Justice of India had G
averred in his affidavit that the consultation was effected between
him and the President of India and not that the consultation took
place between him and the Law Minister and the Prime Minister; To
my mind, it is .clear that the Chief Justice of India is referring to
the President in the sense of the "Executive Government". This is H
amply borne out by the lar~e volun:ie 9f <;loQumentar~ materi~
1204 SUPREME COURT REPORTS [1982) 2 S.C.R.
A which shows that the Chief Justice of India was in communication
with the Law Minister and the Prime Minister only. There i;
nothing to suggest that he met the President personally in this
matter.

B 67. It is also contended that the proposal to transfer Shri
K.B.N. Singh had already been made by 1he Chief Justice of India
to the Government as early as December 1980 and this was before
any discussion on the point between him and Sbri K.B.N. Singh.
Now it is clear from the record that the proposal so made was in
' ....
the nature of a suggestion calling for an examination of the matter.
c The Chief Justice of India had visited Patna and from the material
in his possession he had formed an opinion that there was a case
for considering the transfer of Sbri K.B.N. Singh. The matter was
only at the stage of consideration and clearly could not be finalized
before Shri K.B.N. Singh had been taken into confidence. We
must remember that it was the Chief Justice of India (Chandrachud
D J. as he then was) who had pronounced judgment in Union of India v.
Sanko! Chand Himatlal Seth and Anr. (1) where in considerable detail .,
he has dwelt on the imperative need of a full and effective consulta-
tion which, as he observed there, could require the Chief Justice of
India to elicit the facts directly from the Judge concerned. It was•
apparently pursuant to this that he considered it necessary to dis-
E cuss the matter with Shri K.B.N. Singh otherwise, he would not
have found it desirable to telephone from Delhi to Patna on Janu-
ary 5, 1981 and after discussing the matter with him then, to invite
him for further discussion at Delhi on January 8, 1981. The pro-
posal was pending the consultation with the Government was going
on and no final decision had been taken. As the Chief Justice of
India has stated in his affidavit, the discussion with the Government
continued even after the proposal. The process of consultation
..
could continue right up to the moment the final decision was taken.
The process of consultation continued actively throughout and there
is no reason to doubt the objectivity which marked it. As the
learned Solicitor General bas pointed out, it must not be forgotten
G that the Chief Justice was not a personally interested party but was
only discharging the duties and responsibilities cast on him by the
Constitution. A few facts may be set forth again. On December
18, 1980, the Chief Justice of [ndia requested the Prime Minister
that the proposal to transfer Sbri K.B N. Singh to Rajasthan should
H
<0 [1978] 1 §CR 423.
S.P. GUPTA v. UNION (Pathak, J.) 1205

await further consideration. On January 5, 1981, Shri K.B.N. Singh A
was informed by the Chief Justice of India that the difficulty men-
tioned by him concerning the infirmity and age of his mother was
being noted by him and would be taken into consideration before a
final decision was taken. It seems to me beyond dispute that the
matter did not stand closed merely because of the proposal made in
B
December 1980 to transfer him.

68. Then it is urged that clause (1) of Art. 222 contemplates
that the process of consultation should be initiated by the President
by a reference of the matter to the Chief Justice of India for his
advice and that instead it is the latter who has initiated the process
c
I do not see any substance in this point having regard to the conti-
nuous consultation which was going on between the Chief Justice of
India and the Government.

69. I shall now deal with the task of identifying the consi- D
derations which prevailed with the Chief Justice of India and the
Government in transfering Shri K.B.N. Singh, and whether it can be
said that these considerations fall within the expression "public
interest".
E
70. When a Judge permits his j~dgment in a case to be in-
fluenced by the irrelevant considerations of caste and creed. of
relationship or friendship, of hostility or enmity, he com-
mits a breach of his oath. It is a case where justice is not done

- and is denied. It is a case of misbehaviour, to which the provisions
of Art. 218 read with clauses (4) and (5) of Art. 124 are attracted.
There is another kind of case where a Judge acts in accordance with
his conscience on the basis of the facts and the Jaw as he bona fide
understands them, and yet because of surrounding circumstances it
F

may appear that justice has not been done even though in fact it
may have been done. Where. there is a danger that justice will not
appear to be done, and the prevailing environment is linked with G
the person of the Judge, notwithstanding that he may have done
nothing to promote it, the injury to the administration of justice can
be as serious as a case where the Judge has consciously deviated
from the standards of impartial judgment. Where there is a genuine
apprehension that justice may not appear to be done, the ordinary H
rule is that the case pending before the Judge should be transferred
to another Judge. But wher~ t4e apprehensio~ \s rootc;d jn local
1206 SUPREME COURT REPORTS [I 982] 2 s.c.R.

A association, no links with members of the Bar or influence present
in close proximity to the Judge and the circumstances are such that,
notwithstanding that the conduct of the Judge has done nothing to
promote it, there is grave and bona fide fear in the minds of honest
citizens that the fount of justice may be polluted, its effect is not
confined to a single case but spreads widely, endangering the purity
8 of the entire administration of justice. Inasmuch a.s the adminis- .~-

tration of justice relies for its vitality on the strength of public con-
fidence, it must range supreme and, therefore, if the Judge is trans-
ferred in these circumstances it must be regarded as a transfer in
the public interest. The desirability of inducting Chief Justices and
a proportion of the Judges from outside the State has been empha-
c sised ever since the drafting of the Constitution. During the finali-
sation of the Draft Constitution a suggestion was received by the
Drafting Committee that one third of the Judges appointed to a
High Court should be from outside the State. Successively, the
idea has been promoted by the Law Commission of India in its
Fourteenth Report and thereafter in its Eightieth Report, and also
D
by the States Reorganisation Commission. The need has been
affirmed from time to time and programmes to implement it have
been constantly mooted. The Union Governmf:nt, according to
evidence before us, has been actively engaged during the last two
years in securing an acceptance of the policy from the Judiciary,
E and discussions have taken place from time to time between the
Chief Justice of India and the Law Minister. The Government, has
proposed that the policy should be implemented not only by appoin- ..
ting the Chief Justice and one third of the number of Judges to a
High Court from outside the State at the time of their initial
appointment to the office, but should also be taken in hand presently
F by the transfer of sitting Chief Justices and Judges. It has been
further proposed by Government that the transfers should be effec-
ted simultaneously in all the High Courts.
-
71. It seems from the material on the record that although
G the Chief Justice of India is in agreement with the need for appoint·
ment of Chief Justices and a number of Judges to the High Court
from outside the State, he has not accepted yet the further sugges-
tion of the Government that the transfer should be effected as a
policy implemented enmasse over all the High Courts. It seems that
the Chief Justice of India is prepared to go so far only that the matter
H
should be considered from case to case, on the objective
Jllerjts of e!l\:4 case. This is i:vi\iently what he had in
S.P. GUPTA v. UNION (Pathak, J.) 1207

mind when he considered it desirable to propose the transfer of
A
Shri K.B.N. Singh as Chief Justice from the High Court of Patna
to the High Court of Madras. He did so plainly on the ground
that although Shri K.B.N. Singh himself was not to blame for this,
people in the proximity of Shri K.B.N. Singh had created an
atmosphere injurious to the administration of justice resulting in
B
great disaffection. It is apparent that the reasons which weighed
with the Chief Justice of India form the very basis of the policy
promoted by the Government. The basic component of that policy
is identifiable in the reasons which prevailed with the Chief Justice
of India. When this view is taken, it is immediately clear what the
Chief Justice of India meant when during the telephone conversa-
tion with Shri K.B.N. Singh on January 5, 1981, he explained that
c

-
the ttansfer was prompted by Government policy. This also readily
explains why the Government accepted the proposal to transfer
Shri K.B.N. Singh. As the learned Solicitor General explained
before us, the Government considered this as the first stage in the
implementation of its policy, and although there was no finalisation D
in regard to the time and manner of inducting the Chief Justice
and a proportion of the Judges in a High Court from outside the
State, the proposal to transfer Shri K.B.N. Singh was rooted in the
very considerations which found favour with the Government in
promoting the policy conceived by it.
E
.. 72. I am of opinion that the considerations which prevailed
" with the Chief Justice of India and the Government in the transfer
of Shri K.B.N. Singh were substantially identical, that for the pur-
poses of this transfer the Government had agreed that having regard
to the reasons for the transfer it was prepared to consider the case
on its individual merits and not to insist on the making of transfers F
generally for the time being. I am also of opinion that the consi-
derations on which the transfer was made must, in view of what I
have observed, be regarded as falling within the expression "public
interest". In my judgment, there is no violation of clause (I) of
Art. 222.
G
72A. It is next urged that the provisions of the Memorandum
issued by the Ministry of Home Affairs in the Government of India
had not been complied with inasmuch as no enquiry had been made
of the Chief Ministers of the States concerned before the transfer of H
Shri K.B.N. Singh. The learned Solicitor General has statedJrom
the Government records in. pis possessioq thl\t the 4aw Minister
1208 SUPREME COURT REPORTS ( 1982] 2 S.C.R

A consulted the Chief Minister of Tamil Nadu on January 3, 1981, the
Chief Minister of Kerala on January 4, 1981 and the Chief Minister
of Patna on January 6, 1981 in regard to the proposed transfers of
Shri M.M. Ismail and Shri K.B.N. Singh. Learned counsel for Shri
K.B.N. Singh points out that there was opposition by the Tamil
Nadu Government to the induction of Shri K.B.N. Singh as Chief
B Justice of the High Court of Madras on the ground that he was not
acquainted with the Tamil language and would find difficulty in
coping with his duties in the High Court at Madras. It is said that
if the Chief Justice of India had been informed of this objection,
Shri K.B.N. Singh would not have been transferred. I have observed
earlier that the Chief Justice of India had considered this matter
c long before, and did not consider it as a substantial difficulty.

Validity of the Circular Letter dated March 18, 1981 issued
,. by the Minister for Law, Justice and Company Affairs,
Government of India.
-
D '.
1
73. The Circular letter was addressed by the: Minister to ·the
Chief Ministers of different States and to the Government of Punjab
pointing out that several bodies and forums, including the States
Re-organisation Commission, the Law Commission and various Bar
Association had suggested that one third of the Judges of a High
E Court should, as far as possible, be from outside the State in which
the High Court was situated. It was said that the suggestion was ..
made "to further national integration and to combat narrow
parochial tendencies bred by caste, kinship and other local links
and affiliations." He requested that the additional Judges working
F
in the High Court of the State should be required to give their
consent to be appointed as permanent Judges in another High
Court in the country, and they could name three High Courts,
in order of preference, where they would prefer such appoint-
-
ment. It was also requested that similarly consent may be taken
from persons who have already been, or may in the future be,
proposed for initial appointment. He requested further that it may
G also be made clear to the additional Judges that giving their consent
and indicating their preference would not commit th(: Government in
the ll)atter of their appointment or in the matter of accommodating
them according to their preference. Thereafter it appears, some of the
additional Judges, whose terms were expiring, were granted further
H appointment as additional Judges for short periods of three months,
~ix iponths or a rear
s.i>. GtJttA v. UNION (Pathak, J.) 120~ J

74. The validity of the Circular Letter has been challenged before A
us on several grounds including the ground that the contents of the
lette.r constitute a threat to the judicial independence of the
additional Judges inasmuch as, feeling pressured by the apprehension
that unless the)' conveyed their consent to appointment to another
High Court they would not be given further terms as additional
Judges, some of them have conveyed their consent. It has been
B
urged that the additional Judges have a right to be considered for
appointment as permanent Judges in the High Courts where they are
serving, and the Circular letter should be construed as an attempt
to transfer them to some other High Court without operating
through the consultative process which the President is obliged under
the Constitution to enter into with the Chief Justice of India.
c

75. It seems to me unnecessary to enter into all these points
of controversy, because to my mind if the Circular letter is regarded
as intending to bind the additional Judges it can have no such effect
in law. An appointment of a person as a Judge of a High Court D
must, as observed earlier, be an appointment to a particular High
Court. For the purpose of making such appointment, the constitu-
tional process must be initiated with respect to a particular High
Court. The Constitution does not contemplate a single process in
relation to several High Courts, collecting as many persons as there
are vacancies all over India, and then in the discretion of the Govern-
E
ment appointing each of them where the Government pleases. To
adopt this procedure will be to equate the appointment of Judges
with the appointment of members of an All India Service, a position
which cannot constitutionally be countenanced. There must be a

- separate and distinct process in regard to appointment to each High
Court. The Governor of the particular State and the Chief Justice
of the particular High Court have to be involved in that process,
besides the Chief Justice of India. It is in the course of such a
F

process that a proposal for appointment is made to the person
intended for appointment. In other words, a valid proposal, as part
of the constitutional process, is one which offers an appointment to G
a particular High Court. It is only when consent is given to such a
proposal, that is to say consent to appointment in a particular High
Court, that it can be said in law to be binding and effective. The
Circular letter has invited the consent of the additional Judges in the
most general terms, to appointment to any HighCourt other than H
the High Court in which they are serving as additional Judges. If
it is intended to bind the additional Judges,. it has faifod in- its
1210 SUPREMll cotJR.'r REPORTS [1982] 2 s.c.il.
A purpose. Neither the proposal nor any consent given thereto has
any legal status. It may be that the Circular lettt:r was intended
only for the purpose of obtaining information informally whether
\he additional Judges would be agreeable to being appointed as
permapent Judges of other High Courts. But inasmuch as the
consent given by the additional Judges cannot bind them, it will be
B open to them to consider any concre.e proposal now made offering
appointment to a particular High Court with a perJ'ectly open and
free mind, unhindered by any consent given earlier in pursuance of
the Circular letter. It may be added that a concrete proposal can
contemplate appointment only in accordance with the procedure
prescribed in cl. (1) of Art. 217.
c
76. In this view of the matter, it would be sufficient to declare
that the Circular letter cannot be acted on and any consent given
pursuant to the Circular letter is not binding in law on those who
have given it.
-
0 The claim of privilege against the disclosure of certain
documents.

· 77. The law relating to the plea of privilege raised by the State
against the disclosure of documents has advanced considerably in
recent times and its evolution has been traced by brother Bhagwati
E who has discussed the present content of the law abroad, and has
given substantial reason for taking the law forward in this country
from the position enunciated by this court in State of Punjab v. Sodi
Sukhdev Singh.(1) I am in broad agreement with what he has said in
regard to what the present state of the law in India should be.

F 78. But I think it desirable to add a note of warning. There
is good reason to be circumspect. Traditions and beliefs which
..
governed life until yesterday and held an important place in the
polity cannot be rooted out overnight. Change to be valid must find
general acceptance, and its pace will be determined by the education
of experience. The past is ever with us, and when the present takes
G hold it must do so conscious of its responsibility to the future. The
·rules now developed by this Court relating to the disclosure of
documents need to be carefully applied. The balance between the
conflicting claims of public interest represented by official dom and
the public interest flowing from the administration of Justice often
H
(!) [1961] 2 SCR 371.
S.I>. 01:.Jl>tA v. i.JNIQN (Pathak, J.) 121 i
A
calls for a delicate assessment, into which per force must enter
consideration vital to the operations of Government on the one
hand and the demands of adjudication on the other. The responsi-
bility fixed on the Court is a serious one, and there is need to warn
that this power which now 'Vests in the Court can have grave
consequences if the content of its potential is not truly appreciated B
and realised by those who wield it. Whenever a court breaks new
ground, the development and recognition of new rights is often
accompanied by the birth of problems surfacing also for the first
time. New doctrines must be cautiously applied, and yet no
court can shirk its duty if it finds that its power has been rightly
invoked. c
79. In regard to the plea raised by the State on the basis of
clause (2) of Art. 74 of the Constitution, there is no denying, in
my view, the accuracy of what has been observed by brother Bhag-
wati, that it is the advice and its reasons tendered by the Council
of Ministers to the President which are protected from .enquiry D
by a court, and no such protection extends to the material from
which the advice proceeds.

80. On the facts of the case, it was material, to my mind, to
ascertain whether indeed a full and effective consultation had taken
place with the Chief Justice of India on the question whether Shri
E
S.N. Kumar should be appointed for a further term as additional
Judge, and for that purpose it became necessary to consider the
contents- of the letter dated May 7, 1981 addressed by the Chief
Justice of the High Court to the Law Minister. Great emphasis was
laid by the parties in their submissions on the question of full and F
effective consultation in point of fact, and it seemed in the context
in which the question was debated that the disclosure of the letter of
May 7, 1981 and the connected correspondence was imperative in
order that justice be administerc:d. It was not an easy decision for
the Court to order disclosure, but after carefully balancing the rival
interests we came to the conclusion that the balance inclined in G
favour of a positive order.

Locus Standi

81. What remains now is to consider the objection raised H
by the respondents to the maintainability of the petitions before us.
My brother Bhagwati has .dealt with this objection at some length,
1212 SUPREME COtJRt REPORTS (1982) 2 S.C.ll.
A and has held that it has no substance. I find myself' in general
agreement with him, and need say nothing more.

82. " Before concluding, I think it only of right to record my
appreciation and gratitude for the great and valuabh: assistance
offered to the Court by the very able and erudite submissions made
B during the' hearing of these cases. Eminent _counsel appeared on
both sides, who in the discharge of their responsibilities to the Court
and to the parties represented by them, did not spare themselves and
brought to bear to the hearing their vast learning and enormous
industry, notwithstanding that the hearing had to proceed for several
weeks.
c
8'.I. Jn the result, Transferred Cases No. 19, 20, 21 and 22 of
1981 are:_ allowed in so far that a declaration is grant,ed that the
Circular letter dated March 18, 1981 cannot be acted on aind that the
additional Judges concerned shall not be held bound by their consent
given in pursuance of the Circular letter, to their appointment as
D permanent Judges of High Courts other than those where they
presently' serve. In the Transferred Case No. 20 of 1981, the
respondents are directed to reconsider the case of Shri S.N. Kumar
for appointment as ~n additional Judge of the High Court of Delhi
for a further term. Writ Petition No. 274 of 1981 and Transferred
E Cases Nos. 2, 6 and 24 of 1981 are dismissed.
'
I
84. In all these cases, having regard to the circumstances,
there is no,'order as to costs.

F
VENKATARAMIAH, J. This judgment can be conveniently divided
in to fourteen parts thus :

I. Jntroduction
' '
II. -Locus standi of the petitioners
G
III. The doctrine of political question

IV. The status of High Courts

H V. Art. 217 (1). Appointment of a Judge of a High Court
History. Process of consultation under Art. 217 (I)
Is the opinion of the Chief Justice of India binding on
S.f>, GuPTA v. UNION (J!enkataramiah, J.) 1213
A
the President ? Whether the Council of Ministers can
tender advice· to the President on the question of
appointment of a Judge ? Whether such advice inter-
feres with the basic structure of the Constitution ?
What is the practice prevailing in some other countries?

VI. Art. 224 (I). Appointment of additional Judges. B
History The manner in which Art. 224 (1) is applied
from its commencement and its effect on the principle
of independence of judiciary. Has an additional Judge
whose term prescribed under Art. 224 (I) has expired
any right ? Does the manner in which Art. 224 (I) is
being used give rise ~o any enforceable constitutional
c

-
convention ? Are the principles of natural justice to
be followed at the time of consideration of the question
of reappointment of an additional Judge ?

VIL Art. 222 Transfer of High Court Judges. History
D
--4- Does a transfer of a Judge of a High Court amount to
a fresh appointment in another High Court ? Does the
majority judgment of this Court in Sankal Chand
Sheth's case holding that the consent of a Judge is not
an essential condition of a valid transfer require reconsi-
deration ? Does an order of transfer amount to a E
punishment ? Can a Judge be transferred on the basis
;.
\
, .. of allegations of misbehaviour or of incapacity ? Does
the expression 'Judge' in Art. 222 include a Chief
Justice also? Is the policy of having the Chief Justice
of every High Court from outside the State valid ?
.. Whether ignorance on the part of a Jlidge of the
regional language of the State in which a High Court
is situated is an impediment to transfer the Judge to
that High Court ?

Vlll. Question of executive privilege in respect of documents
relating to appointment of High Court Judges. G
IX. Whether there has been any error in the consultation
preceding the decision not to appoint Shri S.N.
.Kumar?
ff
X. The validity of the circular letter dated March_ 18, 1981
written by the Law Minister to the Chief Ministers.
1214 SUPR.BME COUR.1 kBPORTS (19821 2 s.c.a.

XI. Validity of the transfer of Shri K.B.N. Singh

XII. Cannot the Union Government be called upon to
review the strength of Judges in every High Court and
to appoint sufficient number of Judges?

B XIII. Relief

XIV. Concluding remarks

PART I
c
At the commencement of the judgment it is my duty to thank
the learned counsel who have argued in these cases with exceptional
ability and skill, without whose assistance it would nave been very
difficult to prepare this judgment. I sincerely thank all of them.
-
D These petitions are disposed of by this common judgment
because common questions of law arise for consideration in them.
A brief statement of facts involved in these cases is given b:low.

Transferred Case No. 22 of 1981 had originally be~:n filed in
the High Court of Bombay under Article 226 of the Constitution.
E Later on it was transferred to the file of this Court by an orcler made
under Article 139A of the Constitution to be disposed of afongwith ...
other connected cases. The petitioners in this c~se are Shriyuts "'
Iqbal, M. Chagla, C.R. Dalvi, M.A. Rane and Sorab K..J. Mody.
They are advocates practising in the High Court of Bombay.
Respondents Nos. 1 and 2 in this case are the Union Law Minister
F
and the Union of India. Respondents Nos. 3 to 12 are the
additional Judges of the High Court of Bombay appointed
under Article 224 (1) of the Constitution. The above peti-
tion is filed questioning the validity of a circulair letter
dated March 18, 1981 addressed by the Union Law Minister
to the Governor of Punjab and Chief Minister (by name) (except
G the North-Eastern States) by which they were requested to obtain
the consent of additional Judges working in the High Courts to
their appointment as Judges of the High Courts other than those

H •
in which they were additional Judges on the lines indicated in the
said circular letter. A request was also made in that letter to obtain
consent to appointment as Judges from persons who 'had been Oil'
....
may in future 'be proposed by you' (that is by the Chief Minis·
S.P. GuPTA v. ONION (Venkataramiah, J.) 1215

A
ters); It is alleged that aggrieved by the said letter, which accord-
ing to them, amounted to a direct attack on the independence of the
judiciary, which was a basic feature of Constitution, the members
of the Advocates' Association of Western India met at a Special
General Meeting on April 3, 1981 and passed resolutions inter alia
condemning the said letter as subversive of judicial independence and B
asking the Union Government to withdraw the said letter. The
Bombay Bar Association also passed similar resolutions at its Ex-
traordinary General Meeting on April 7, 1981. On April 14, 1981
it is alleged that the Managing Committee of the Bombay Incorpo-
rated Law Society (representing the Solicitors practising in Bombay
who were also advocates) passed similar resolutions and ·also c
authorised the petitioner No. 4 to join as a petitioner in this peti-

-
tion. The petitioners have inter alia alleged that the impugned
letter which affected about one hundred additional Judg.es currently
working in the various High Courts and which threatened them with
'transfer' to High Courts other than the one in which they were
working was outside the scope of Article 222 of the Constitution D
which provided for such transfers and amounted to an unwarranted
executive interference with the judiciary. They have also alleged
that the manner of appointment of additional Judges under Article
224(1) of the Constitution was a clear abuse of that provision which
empowered the President to appoint additional Judges to clear off
arrears in High Courts but not where the arrears were continuously E
rising. The petitioners have prayed for, among other reliefs, a
•..
, declaration that the impugned letter of the Union Law Minister was
ultra vires and void and that the Union Government should be
directed not to act on the consent given by any of the additional
Judges. By a counter affidavit filed by Shri K.C. Kankan, Deputy
Secretary, Department of Justice, Ministry of Law, Justice and
F
Company Affairs, New Delhi, the Union Government has opposed
the petition. The Union Government inter alia has questioned the
locus standi of the petitioners to file the petition and has further
pleaded that by the impugned letter, the Union Government merely
sought the consent of the additional Judges and others who had
G
been or who were to be proposed for appointment as Judges to the
effect that they were willing to be initially appointed as Judges in
other High Courts. It is stated that the consent of the additional
Judges had not been sought for their transfer under Article 222 of the
Constitution. It is denied that there was any attempt to interfere
H
with the independence of the judiciary. The pc>licy of appointment
of Judges in High Courts from outside is justified on various
1216 SUPREME COtJllT klll>ORtS (198.2) 2 s.c.tl.
A grounds set out in the affidavit. Accordingly the Union Government
has prayed that the petition may be dismissed.

Transferred Case No. 20 of 1981 was originally filed in the
High -Court of Delhi under Article 226 of the Constitution by Shri
B V. M. Tarkunde, Senior Advocate of the Supreme Court Bar after the
Law Minister's letter of March 18, 1981 was written and three addi-
tional Judges of the Delhi High Court Sarva Shri O.N. Vohra, S.N.
Kumar and S.B. Wad who had originally been appointed as addi-
tional Judges for a period of two years with effect from March 7,
1979 were appointed as additional Judges for a period of three
c months only from March 7, 1981. In addition to the declaration
that the impugned letter of the Law Minister was uncom1titutional
and void, Shri V.M. Tar_kunde has requested the Cour1t, among
other prayers, to issue a writ in the nature of mandamus to the
Union Government (i) to convert the posts of additional Judges into
permanent' posts in various High Courts commensurate with the
-
D regular business of the High Courts and arrears in consultation
with the Chief Justice of the concerned High Court and the
Chief Justice of India and (ii) to convert 12 posts of additional
Judges in · the Delhi High Court into permanent posts having
regard to the regular business and the arrears of that Court. In
the course of the petition the propriety and constitutionality of
E appointing the three additional Judges referred to above for a period
of three months only from March 7, I 98 I have been questioned.
·•
The other allegations in the petition more or less are simila1r to the ...
allegations made in the petition of Bombay Lawyers. It is not
necesrary to go into certain events and proceedings that took place

F
till the counter affidavit was filed in this case on July 22, I 98 I except
the fact that Shri O.N. Vohra and Shri S.N. Kumar had ceased to
be Judges with effect effect from June 7, 1981 as they had not been
..
appointed as additional Judges for any further period and that Shri
S.B. Wad had been appointed as an additional Judge from June 7,
1981 for one year more. In the counter affidavit filed by Shri K.C.
Kankan, Deputy Secretary to the Government of India, th-e petition
G is opposed. This counter affidavit contains more or less similar
pleas contained in the counter affidavit filed in the petitio1~ filed by
the Bombay lawyers and in addition to them certain further pleas
are raised· here in justification of the action taken by the Union
H Government in not appointing Shri O.N. Vohra and Shri S.N.
Kumar as additional Judges for a further period and in appointing
S.P. GUPTA v. UNION (Venkataramiah, 1.) 1217

only Shri S. B. Wad as stated above. The specific plea with regard A
to the non appointment of Shri 0.N. Vohra and Shri $.N. Kumar
and the appointment of Shri S.B. Wad runs thus :

"(w) & (x) Shri Justice Vohra, Shri Justice Kumar and
Shri Justice Wad were appointed for a further period 8
of 3 months from 7·3-1981. The short-term appoint-
ment was made to enable the Government to take a
final view having regard to the complaints that had
.J.. been received against some of them after consultation
with the constitutional authorities. The petitioner's
statement that both the Chief Justice of the Delhi c
High Court and the Chief Justice of India had recom-

- mended the appointment of these 3 Judges for a fur-
ther period of 2 years is untrue and incorrect. It is
strange as to how the petitioner could claim knowledge
of the recommendations of the Chief Justice of India
and Chief Justice of Delhi High Court. After careful D
consideration of the material available with it and
after taking into account the views expressed by the
Chief Justice of India and Chief Justice of Delhi High
Court and after giving full considerations to the views
of both, Government decided not to give appointments
for a further term to Shri Justice O.N. Vohra and Shri E
Justice S.N. Kumar on the expiry of their term on
6-6-1981. Shri Justice Wad was, however, appointed
for a further period of l year from 7-6-1981.

- It is neither necessary nor advisable to disclose to
the additional Judges the reasons for their short term
appointments or for their non-appointment since this
F

would bring them within the pale of public controversy
and would involve disclosure of material which neces-
sarily has to be kept confidential. There is no breach
of the principles of natural justice in this".
G

It may be mentioned here that Shri O.N. Vohra has remained
absent in these proceedings but Shri S. N. Kumar has filed a separate
affidavit and has presented his case through a counsel. In the
course of his affidavit in addition to the pleas supporting the pleas H
urged by Shri V.M. Tark;unde, he has questioned the validity of th~
1218 SUPREME COURT REPORTS (1982] 2 s.c.R.
A the proceedings culminating in not appointing him as an additional
Judge after June 7, 1981. The allegations made by Shri S.N. Kumar
are controverted by an additional affidavit filed on behalf of the
Union Government in this case.

Transferred Case No. 21 of 1981 was filed in the High Court
B of Delhi by Shri J. L. Kalra and others, all advocates, under Article
226 of the Constitution. The petitioners have prayerd for the issue
of a writ in the nature of mandamus to the Union Govi:rnment to
make an assessment of the number of permanent and additional >-.
Judges required for the High Court of Delhi having regard to its
current business and the accumulated arrears, to create suich number
0 of posts of permanent and additional Judges as may be necessary

-
and to make appointments to those posts. The other reliefs asked
in this petition are substantially the same as the reliefs prayed in
Transferred Case No. 20 of 1981 filed by Shri V. M. Tarkunde. The
allegations in the petition and in the counter affidavit in these two
D cases are also substantially the same. This petition, however,
emphasises the fact that Article 224 (I) of the Constitution is being
used for a purpose other than the one for which it is intended.
The issues arising out of this petition are the same as those arising
in Transferred Case No. 20 of 1981.

E Transferred Case No. 19 of 1981 was filed under Article 226
of the Constitution before the High Court of Allahabad by Shri S P.
Gupta, Advocate, practising at Allahabad. Aggrieved by the
circular letter dated March 18, 1981 which is impugned in Trans·
ferred Case No. 22 of 1981 filed by the Bombay lawyers the non-
F
determination of the necessary strength of permanent and additional
Judges of the High Court of Allahabad as required by Articles 216
and 224 (I) of the Constitution, the appointment of some additional
Judges of the High Court of Allahabad for short-terms of six
-
months on the expiry of the period specified in their warrants of
appointment under Article 224 (1), the alleged misuse of Article
224 (!) of the Constitution by the Union Government in making
G appointments of additional Judges where permanent Judges had
to be appointed and several other matters urged in the petition, the
petitioner filed the above petition requesting the Court to issue
appropriate directions having regard to the submissions made in the
petition and principally he has prayed for a declaration that the
H three additional Judges-Mr. Justice Murlidhar, Mr. Justice A.N.
Yl'rma and Mr. Justice N.N. Mittal must be deemed to have been
S.P. GUPTA v. UNION (Venkataramiah, J.) 1219

appointed as permanent Judges under the warrants issued to them
A
and that the circular letter of the Law Minister is void. The
reliefs prayed for by the petitioner more or less are identical with
the reliefs in Transferred Case No. 22 of 1981. The allegations
made in the petition and in the counter affidavit will be dealt with
in the course of the judgment as many of them are common to all B
these cases.

Writ Petition No. 274 of 1981 is filed by Miss Lily Thomas,
an advocate practising in the Supreme. Court of India under
Article 32 of the Constitution. She has sought for a declaration
that the transfer of Mr. Justice M.M. Ismail, Chief Justice of the c
High Court of Madras as the Chief Justice of the Kerala High Court

- is unconstitutional. She has also stated that the Union Govern-
ment had acted illegally in not appointing Mr. Justice Subramanian
Poti, the seniormost Judge of the Kerala High Court as the Chief
Justice of that Court in the vacancy created by the appointment of
Mr. Justice Balakrishna Eradi, Chief Justice of the Kerala High D
Court, as a Judge of this Court. She has contended inter alia that
Article 222 of the Constitution which provides for transfer of Judges
does not apply to Chief Justice and that in any event Article 222 of
the Constitution cannot be used to defeat the claim of the senior-
most Judge of a High Court to become the Chief Justice of that
Court whenever a vacancy occurs in the office of the Chief Justice. E
She has pleaded that the transfer of Mr. Justice M. M. Ismail had
not been made in the public interest and when such transfer is made
without consent of the Judge concerned would be unconstitutional.
On behalf of the Union of India it is pleaded that the transfer had
been made in consultation with the Chief Justice of India in the
public interest after taking into consideration all relevant matters. F
It is pleaded that Article 222 applies to Chief Justices also.

Mr. Justice M.M. Ismail who has been impleaded as the res-
pondent No. 2 in this petition has filed an affidavit, the third para-
graph of which reads thus : G
"3. As soon as I was informed of the Notification of
the President of India under Article 222 (1) of the Consti-
tution of India, transferring me as the Chief Justice of the
High Court of Kerala, I decided (I) not to proceed to H
Kerala to take charge as the Chief Justice of the Hi~h Court
1220 SUPREME COURT REPORTS (1982] 2 s.c.R.

A of Kerala, (2) not to challenge the legality or the validity of
the order of the President so transferring me in any Court of
Law and (3) to proceed on leave preparatory to premature
retirement by resigning my office. In view of this I. have
nothing to submit to this Hon'ble Court in this Writ Peti·

B
tion and I do not want anyone to litigate for or against
me. In these circumstances, I have nothing to represent
with_ reference to the questions of law raised in the Petition
and I do not want anything about me to be argued or
--
debated".
I

c Mr: Justice M.M. Ismail has since resigned from his office.
t ·i
Transferred Case No. 2 of 1981 was originally ftled under
Article 22~ of the Constitution in the High Court of Madras by Shri
A. Rajappa, an advocate practising in Madras. He has prayed for
a declaration that the orders of transfer passed by the Pre:sident on
D January 19, 1981 transferring Mr. Justice M.M Ismail, Chief Justice
of the Madras High Court as the Chief Justice of the Kerala High
Court and the transfer of Mr. Justice K.B.N. Singh, Chief Justice of
the Patna High Court as the Chief Justice of Madras High Court
are void. , The principal grounds urged in the petition are that the
transfers in question interfere with the independence of the judiciary,
E a transfer'without consent of a Judge is ultr.a vires under Article 222
of the Constitution and non-consultation with the Governor
concerned ~mounts to violation of Article 217( I) of the Constitution
which should precede the appointment of a Chief Justice. The
transfer of a Judge who does not know Tamil language to the High
Court of Madras would not be in the public interest. There is also
F a plea that the transfers suffer from malafides. Some or the pleas
urged by Miss Lily Thomas in her petition are urged in this petition
also. The Union of India has opposed the petition. It has relied
on Article 222 of the Constitution in support of the impugned
orders of transfer. It is stated that the transfers had been ordered
in the public interest in consultation with the Chief Justice of India
}-- ·-
'
G who is the only authority to be consulted under Article 22 2 and that
the procedure prescribed under Article 217( I) of the Constitution
need not be followed when a transfer is ordered under Article 222.
The plea that the transfers have interfered with the independence
of the judiciary is also denied. The allegation that the impugned
orders had~been made malafide is also denied in the count1~r affidavit
filed on \:>~half of th~ Union of India.
s.P. GUPTA v. UNION (Venkataramiah, J.) 1221

A
Transferred Case No. 6 of 1981 was originally filed under
Article 226 of the Constitution before the High Court of Madras
by Shri P. Subramanian. The allegations and prayers made in this
petition and the counter affidavit filed by the Union of India are
substantially the same as those in transferred Case No. 2 of 1981
filed by Shri A. Rajappa. 8

Transferred Case No. 24 of 1981 was originally filed in the
High Court of Patna under Article 226 of the Constitution by two
advocates Shri D.N. Pandey and Shri Thakur Ramapati Sinha ques·
tioning the validity of the order of the transfer of Mr. Justice M.M. c
Ismail, Chief Justice of the Madras High Court, as the Chief Justice

... of the Kerala High Court and the order of transfer of Mr. Justice
K.B.N. Singh, Chief Justice of the Patna High Court as the Chief
Justice of the Madras High Court. The allegations in this petition
are substantially the same as those in Writ Petition No. 274 of 1981,
in Transferred Case No. 2 of 1981 and in Transferred Case No. D
6 of 1981. But during the pendency of this petition in this Court,
Mr. Justice K.B.N. Singh who had been impleaded as a respondent
was transposed as a petitioner by an order of this Court. There·
after Mr. Justice K.B.N. Singh has filed an affidavit inter alia stating
that his transfer was not in the public interest and that the transfer had
been ordered on irrelevant and insufficient grounds. These allegations E
have been denied by the Union of India. It has stated in the coun-
ter affidavit filed in support of its;case that the transfer of Mr, Justice
K.B.N. Singh had been made after full and effective consultation
with the Chief Justice of India in the public interest keeping in view

- all relevant considerations. The Chief Justice of India has also filed
a counter affidavit to which detailed reference will be made in due
course stating inter a/ia that Mr. Justice K.B.N. Singh had been
transferred keeping in view all relevant matters in the public interest
F

and not on any ground touching his character and conduct as a
Judge.
G
India, that is Bharat, is a Union of States. It is not a federa-
tion of States like the United States of America. The word 'federa·
tion' is not used in the Constitution of India. There is no dual citi·
zenship in India as we find it in the United States of America. The
Constitution of India contemplates only one citizenship, only one H
loyalty and only one sovereignty. The geographical area covered
by the States and the Union. T~nitoric;~ IIl~rHiogel;I in the First
1222 SuPREME COuRT REPORTS [1982] 2 s.c.a.

A Schedule to the Constitution and such other areas that may be
acquired constitute the territory of India which is an indivisible and
indestructible whole though for administrative convenience is divi-
ded into.States and Union Territories. Parliament may by Jaw form
a new State by separation of territory from any State or by uniting
two or more States or parts of States or by uniting any
B territory to a part of any State; increase the area of any
· State; diminish the area of any State; alter the boundaries
of any State and alter the name of States or by uniting any
territory to a part of any State in accordance with Article 3
and Article 4 of the Constitution. The principle of unity contem-
plated 1 under the Constitution of India is much stronger than the

-
principle underlying the Constitution of the United States of
America. It is, therefore, necessary to remember and adopt it as
our own rule of conduct what Washington wrote on June 8, 1783 in
his message to the Governors of States in the United States of
America. He wrote :
D
"There are four things which, I humbly conceive, are
i I essential to the well being, I may even venture to say,
1: to the existence of the United States, as an indepen-
.. dent power. Firstly, an indissoluble union of the States
under one Federal head; secondly, a sacrc!d regard to
E .). public justice; thirdly, the adoption of a proper peace
establishment; and fourthly, the prevalence of the
pacific and friendly disposition among the people of
the United States, which will induce them to forget
their local prejudices and policies; to make those mutu-
al concessions, which are requisite to the general pros-
F f perity; and in some instances, to sacrific:e their indivi-
I' dual advantages to the interest of th1! community.
r 1 These are the pillars on which the glorious fabric of
our independence and national chara<:ter must be
supported."

G (By courtesy : "The Constitution of India" .by N.R.
;.• Raghavachariar (1951) p. 17).

\,, A constitution of a country is a living document and cannot,
H therefore, be interpreted in a narrow pedantic sense. A broad and · ,_,
liberal spirit should inspire those who are called upon to interpret
the Constitution. This does not mean that they are free to stretch
S.P. GUPTA v. UNION (Venkataramiah, J.) 1223

or pervert the language of the Constitution. The broad purposes A
and the general scheme of every provision in the Constitution, its
history, its objects and the result which it seeks to achieve should
always be kept in view. Current usage and a priori reasoning should
also be used as the tools of interpretation of the constitutional pro-
visions. The Constitution of India in order to ensure sound admi-
nistration has entrusted separate powers to different organs of the B
State, charging all of them with the joint responsibility of securing to
all citizens of India, justice, social, economic and political, liberty
... of thought, expression, belief, faith and worship; equality of status
and opportunity; and to promote among them all fraternity assur-
ing the dignity of the individual and the unity and integrity of
the Nation. The said joint endeavour involves cooperation, c
mutual sympathy and understanding amongst all the organs. The
Constitution demands that there should be mutual trust amongst
and there should be no room for suspicion. Distrust and a feeling
of suspicion on the part of any of the organs of the State towards
any other organ is bound to result in a great national calamity. We
have worked the Indian Constitution for more than thirty years. D
The Constitution has undergone many changes. At the end of
three decades of experience one is bound to feel in the same way in
which Thomas Jefferson felt about the Constitution of the United
States of America in 1816. He wrote to Samuel Karcheval on July
12, 1816:
E
t

"Some men look at constitutions with sanctimonious
reverence, and deem them like the ark of the covenant

- too sacred to be touched. They ascribe to the men of
the preceding age a wisdom more than human and
suppose what they did to be beyond amendment. I
knew that age well; I belonged to it, and laboured with
F

it. It deserved well of its country. It was very like
the present, and forty years of experience in govern-
ment is worth a century of book reading and this they
would say themselves. were they to rise from the G
dead".

We must while interpreting the Constitution realise that many of the
difficulties that we may encounter now had not been foreseen by its
makers. Application of constitutional provisions to actual facts of H
life therefore requires judicial states~~nship.
" The following
.. . worc!s
1224 SUPREME COURT REPORTS [1982) 2 s.c.R.

A of Professor Frankfurter at Harvard University (who later became
Justice Frankfurter) with reference to the American Constitution are
~
equally· apposite to our· own : 'f#"
.,

''Every legal system for a living society, even when
B embodied in a written constitution must itself be alive.
...• It is not merely the imprisonment of the past; it is
also the unfolding of the future. Of all the means for
ordering the political life of a nation, a federal system
is the most complicated and subtle; it demands the
most flexible and imaginative adjustments for harmo ·
c nising national and local interests. The constitution
is not a printed finality but a dynamic process; its
•. J
application fo the actualities of Government is not a
mechanical exercise, but a function of statecraft." .
Let us now turn to the actual issues involved in these cases.
D
I '
PART II '.-

I
At the outset the question whether the petiltioners who are
advocates can file these petitions for the reliefs mentioned therein
E under Article 226 or Article 32 of the Constitution has got to be
considered. The contention is that members of the Har who are not
personally affected by. the circular letter of the Law Minister, by the
appointment of certain additional Judges for short-terms of three
mon'ths, or six monrhs by the non-appointment of any of the addi-

-
tional Judges after the expiry of the tenure fixed under Article 224 (I)
F or by the non-appointment of sufficient number of Judges of the High
Courts or by the transfer of some Judges have no locus standi to file
these, petitions. It is contend_ed that neither qualitatively nor
qua~iitatively these petitioners have sufficient interest to prosecute
these petitions the result of which would not affect them either
directly or even indirectly.
G i
·~ . '
The attitudes of the courts on the question of locus standi do not
appear to be uniform. They vary from country to country, court to
court and case to case. Sometimes the tests applied by courts also vary
H dep~nding upon the nature of the relief sought. In some cases courts
1
liave taken a very narrow view on this question holding that unless an
H
applicant has either personal or fiduciary interest in the result of the
' it• - ' '
s.P. GUPTA v. UNION {Venkataramiah, J.) t22S
application, no relief can be granted on his application even though
it may appear that the impugned action or omission of the admini-
strative authority concerned is not in accordance with law. The
other extreme view is that the courts may in their discretion issue
mandamus to an administrative authority at the instance of any
member of the public. A close scrutiny of the authorities and texts
cited before us shows that neither of the two extreme views is
B
accepted as correct in majority of the cases. It is also seen that in
many of them the courts have found some sort of special interest
in the applicant which distinguishes him from the general public
before granting the relief prayed for by him. A person who has a
genuine grievance on account of an action which affects him prejudi-
cially is ordinarily considered to be eligible to move the Court.
c

In England a member of public who has no personal interest
in the performance of a public duty by an administrative authority
may as it may be done in India under sections 91 and 92 of the "
D
Code-of Civil Procedure, 1908 in a limited _and qualified way instead
of himself approaching the Court, move the Attorney-General to
initiate action in courts for the benefit of the public. If the Attorney
General is satisfied that action is called for in any given case, as the
nominal plaintiff in a relator action "can obtain an injunction to
prohibit either some breach of the criminal law or else some ultra E
,. vires act by a public authority, such as illegal .local government
expenditure". H.W.R. Wade, Administrative Law, Fourth Edition,
page 493. The learned author proceeds to observe :

"A similar practice seems to be developing in actions F
brought by private plaintiffs despite the 'fundamental rule
that the Court will only grant an injunction at the suit of
a private individual to support a legal right'. This, if it
continues, may turn the injunction into a more general '.
remedy of public law. Another consequence will be that G
there will be problems of standing, since a plaintiff without
a personal legal right may be required to show that he has a
sufficient interest to maintain the action."
..
If the Attorney-General declines to give his consent to a
H
relator action the Court cannot question his exercise of discretion.
1226 SUPREME COURT REPORTS [l 9S2l 2 s.c.tt.

A This was firmly settled by the House of Lords in Gouriet v. Union of
Post Office Workers( 1) reversing a bold decision rendered by Lord
Denning in the Court of Appeal in Gouriet v. Union of Post Office
Workers and Ors.(2) in which he had observed at page 719 thus:

" ... When the Attorney-General comes, as he does
B here and tells us that he has a prerogative by which
he alone is the one who can say whether the criminal
law should be enforced in these courts or not then I say he
has no such prerogative. He has no prerogative to suspend
....
_
or dispense with the laws of England. If he does not give his
consent, then any citizen of the land any one of the public
c at large who is adversely affected can come to this court
and ask that the law be enforced. . Let no one say that in
this we are prejudiced. We have but one prejudice. That
is to uphold the law. And that we will do, whatever,
befall. Nothing shall deter us from doing our duty".
D
After his decision was reversed by the House of Lords, Lord
· Denning in bis book entitled 'The Discipline of Law' at Page 144
wrote thus:

"In administrative law the question of locus standi
E is the most vexed question of all. I must confess that
~henever an ordinary citizen comes to the Court of Appeal
and complains that this or that government department or "
this or that local authority or this or that trade union is
abusing or misusing its power. I always like to hear what
F
he has to say. For I remember what Mr. T.P. Curran of
the Middle Temple said in the year 1790 :
-
" 'It is ever the fate of the indolent to find their rights
become a prey to the active. The condition upon which
God hath given liberty to man is eternal vigila11ce'. The
G ordinary citizen who comes to the Court in this way is
usually the vigilant one. Sometimes he is a mere busy body
interfering with things which do not concern him. Then
let him be turned down. But when he has a point which
affects the rights and liberties of all the citizens, then I
H . r--~
(I) [1978] AC 435:
(2) ' [1977] 1 All ER 696.
'; \
S.P. GUPTA v. UNION (Ven/cataramiah, J.)

would hope that he would be heard : for there is no other N-
person or body to whom he can "appeal. But I am afraid
that not everyone agrees with me."

The House of Lords having ruled in the Gouriet's case
(supra) the Court's jurisdiction in England appears to have been con-
fined to declaring contested legal rights subsisting or future, of the 8'
parties and of them only when the Attorney-General does not
intervene. Th is is a step which the House of Lords appears to have
taken with a view to stalling a new trend in public interest litigation
which had been set by Blackburn v. Attorney-General(1)and Attorney-
General ex rel. Mc Whirter v. Independent Broadcasting Authority. (2)

After the decision of the House of Lords in Gouriet' s case
(supra) it is noteworthy that order 53 was introduced into the Rules
of the Supreme Court in England in the year 1977. The relevant
part of Order 53 which took effect on January 11, 1978, some six
months after the decision in Gouriet's case reads :

"I. (1) An application for-(a) an order of mandamus,
prohibition or certiorari .. shall be made by way of
an application for judicial review in accordance
with the provisions of this Order.

(2) An application for a declaration or an injunction
(not being an injunction mentioned in paragraph
(I) (b) may be made by way of an application
for judicial review, and on such an application the
Court may grant the declaration or injunction
claimed if it considers that, having regard to-(a)
the nature of the matters in respect of which relief
may be granted by way of an ·order of mandamus,
prohibition or certiorari, (b) the nature of th~
persons and bodies against whom relief may be
granted by· way of such an order, and (c) all the
circumstances of the case, it would be just and
convenient for the de'clarati on or injunction to
be granted on an application for judicial review.

(1) [1971] 1 WLR 1037.
(2) [1973] QB 629.
sui>iiii.iil cobb li!PoRTs (t98iJ 2s.c.a.
A 2. On an applicatio11 for judicial review any relief men-
tioned in rule 1 ( 1) or (2) may be claimed as an alter-
native or in addition to any other relief so mentioned
if it arises out of or relates to or is conD1ected with the
same matter.

B 3. (I) No application for judicial review shall be made
unless the leave of the Court has b<1en obtained in
accordance with this rule.

(2) An application for leave must be made ex parte
to a Divisional Court of the Queen's Bench
c Division.
'I
'• (3) ................................................................. .

(4) ................................................................. .

D (5) The Court shall not grant leave unl,ess it considers
that the applicant has a sufficient interest in the
matter to which the application relaltes ........ ..
"
It appears that Order 53 was designed to stop technical
E· procedural arguments of· many types which had marred the true
administration of justice, and to provide a machinery to determine
at the preliminary stage of the granting of leave to prosecute an
application. for judicial review, whether the applicant has a sufficient
interest in the matter to which the application relates. The phrase
'sufficient interest' whiCh, it is stated, owed its origin to an interlocu-
F tory observation made by the Court in R. v. Cotham(1) and to its use
by Avory,' J. in his judgment iri Ex parte Stott( 2) embraced all
kinds· of phrases 'a party', 'a person aggrieved',. 'a person with a
particular grievance' etc. used in various cases where the locus standi
of the applicaut concerned was questioned. After the aforesaid
)
Order 53 came into force the application out of which the case
Inland Revenue Commissioners v. National Federation of Self-
Employed and Smail Businesses Ltd.,(3) decided on April 9, 1981 by
the House of Lords arose was instituted before the Queen's Bench.
The facts of the case were these : There was a long standing

H (1) (1898] 1 QB 802 at 804.
(2) [1916] I KB 7 at 9.
(3) [1981] 2 All. ER 93,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1229

practice in Fleet Street 'for casual employees on national news-
A
papers to receive their wages without deduction of tax and to supply
fictitious names and addresses when draw:ng their pay in order to
avoid tax. Their true identities were known only to their unions
which operated a closed shop and controlled all casual employment
on the newspapers. In order to prevent the evasion of tax by the B
casual employees, the Revenue made a special arrangement with the
employers, the employees and the unions whereby the employees
were required to register with the Revenue and submit tax returns
for the previous two years (1977-78 and 1978-79 in return for an
undertaking by the Revenue that they would not inve~tigate tax
evaded prior to 1977. The applicant, a federation of self-employed c
persons and sm 'b' II businessmen which claimed to represent a body
of taxpayers, applied for judicial review under RSC Order 53
seeking (i) a declaration that the Revenue had acted unlawfully in
making the arrangement and (ii) an order of mandamus directing
the Revenue to assess and collect tax on the newspaper employees
as required by law. The Revenue opposed the application on the D
ground tbat the applicant did not have 'a sufficient interest in the
matter' relating to the application, as required by Order 53,
rule 3 (5) for the Court to grant it the necessary leave to apply for
judicial review. The Divisional Court upheld that contention and
refused the applicant leave. The applicant appealed to the Court
of Appeal which held that, a11 a preliminary issue and on the E
assumption that the Revenue had acted unlawfully, lhe applicant was
not a mere busybody but had a genuine grievance and therefore
had a sufficient interest for the purpose of rule 3 (5). The Revenue
appealed contending that the duties imposed on them by the tax
legislation, including in particular the duty of confidentiality as
between the Revenue and each individual taxpayer, precluded the
F
possibility of any other taxpayer or group of taxpayers from having
any 'sufficient interest' in the performance by the Revenue of their
statutory duties. The House of Lords held inter alia that whether
an applicant for mandamus had a sufficient interest in the matter
to which the application related, for the purposes of Order 53,
G
rule 3 (5) depended on whether the definition (statutory or otherwise)
of the duty alleged to have been breached or not performed
expressly or impliedly gave the applicant the right to complain of
the breach or non-performance. Since the tax legislation, far from
expressly or impliedly conferring on a taxpayer the right to make
H
f. proposals about another's tax or to inquire about such tax, in fact
1230 StJPAE.MB COURT AEl.>Oil.i'S (1~821 2 s.c.il..

A indicated the reverse by reason of the total confidentiality of assess-
ments and negotiations between individuals and the Revenue, and
since on the evidence the Revenue in making the impugned arrange-
ment were ge·nuinely acting in the care and management of taxes
under the powers entrusted to them, the application made by the
applicant should be .Jismissed beacuse the applicant did not have a
B sufficient interest for the purposes of rule 3 (5), or (per Lord
Diplock) because it had not been shown that the Revenue had acted
ultra vires or unlawfully in making the arrangement. Lord
Wilberforce added that as a matter of general principle a taxpayer
had no sufficient interest in asking the Court to investigate the tax
arrears of another taxpayer or to complain that the latter had been
0 underassessed or overassessed; indeed there was a strong public
interest that be should not. Accordingly the appeal was allowed and
the original application was dismissed.

In Canada, however, the rule has been that the principle
D requiring personal standing 'applies to legislation of a rei:ulatory
character which affects particular persons or classes but where no
particular persons or classes are affected more than others,. where
the issue is justiciable and where the nature of the case is suitable
the Court may grant declaratory relief to any citizen at its d iscre·
tion as can be seen from the decision oi the Supreme Court of
E Canada in Thorson v. Attorney·General of Canada (No. 2)(1).
Dealing with the right of a taxpayer to dispute the constitutional
validity of the Official Languages Act in Canada, Laskin, J. observed
in that case thus :

"It is not the alleged waste of public funds alone
F that will support standing but rather the right of the citi-
zenry to constitutional be baviour by Parliament, where the
issue in such behaviour is justiciable legal question."

In Australia the prevailing view appears to be that in matters )
affecting public generally in order to maintain a petition for the
G issue of a direction to an administrative authority to act according
to law 'while something less an enforceable right would be sufficient,
there nevertheless must be some special right in the prosecutor, over
and above those held by the public at large or by all members of a
H (1) [1974] 43 DLR (3d) 1.
S.11. OUl>TA v. UNION (Yenkataramiah, J.) 12~1

A
particular class to which he belongs' (vide W. Friedmann: 'Principles
of Australian Administrative Law, (Second Edition) page 180).

The question of locus standi of a petitioner µnder Article 226
of the Constitution was considered by this Court in Godde
Venkateswara Rao v. Government of Andhra Pradesh & Ors.(1 ) The B
facts necessary for appreciating the point decided in that case and
the decision of this Court on the locus standi of the petitioner there·
in can be seen from the following passage occurring at page 181:
.. _

"Has the appellant a right to file the petition out of
which the present appeal has arisen ? The appellant c
is the President of the Panchayat Samithi of Dharamji-
gudem. The villagers of Dharamajigudem formed a
committee with the appellant as President for the pur-
pose of collecting contributions from the villagers for
setting up the Primary Health Centre. The said com-
mittee collected Rs, 10,000/- and deposited the same D
with the Block Development Officer. The appellant
represented the village in all its dealings with the Block
Development Committee and the Panchayat Samithi
in the matter of the location of the Primary Health
Centre at Dharamajigudem. His conduct, the acquies-
cence on the part of the other members of the Com-
E
mittee and the treatment meted out to him by the
authorities concerned support the inference that he was
authorized to act on behalf of the committee. The
appellant was, therefore, a representative of the com·
mittee which was in law the trustee of the amounts
collected by it from the villagers for a public purpose.
F
We have, therefore, no hesitation to hold that the
appellant had the right to maintain the application
under Art. 226 of the Constitution. This Court held
in the decision cited supra that "ordinarily" the peti·
'· tioner who seeks to file an application under Art. 226
of the Constitution should be one who has a personal
G
or individual right in the subject-matter of the peti·
tion. A personal right need not be in respect of a
proprietary interest : it can also relate to an interest of
a trustee. That apart, in exceptional cases, as the H
(1) [1966) 2 S.C.R.. 172.
1232 ii 982! 2s.c.a.
A expression "ordinarily" indicates, a person who has
been prejudicially affected by an act or omission of an
authority can file a writ even though he has no proprie-
tary or even fiduciary interest in the subject-matter
· ~hereof. The appellant has certainly been prc:judiced
B by the said order. The petition under Art. 226
of the Constitution at his instance, therefore, is
maintainable." (emphasis added)

In Adi Pherozshah Gandhi v. H.M. Seervai Advocate General of
c Maharashtra, Bombay,(1) the expression 'person aggrieved' found in
section 37 of the Advocates Act, 1961 was considered by this Court.
The appellant in that case was an advocate of Maharashtra. He
was convicted by a Summary Court in London on a charge of
pilfering from a Departmental Store and was sentenced to pay a
fine. The State Bar Council called upon him suo motu to show
D cause why lie should not be held guilty of misconduct. He sub-
mitted his explanation and the Disciplinary Committee of the Bar
Council was satisfied that there was no reason for holding
him guilty of professional misconduct. The Advocate-General of
the State who has sent a notice· of the proceedings as
required by section 35(2) of the Advocates Act, 1961, :and had
E appeared before the Disciplinary Committee, filed an appeal to the
Bar Council of India under section 37 of that Act, under which, any
person aggrieved by an order of the Disciplinary Committet: of the
State Bar Council made under section 35 of that Act, could prefer
an appeal to the Bar Council of India. The appellant objec:ted that
the Advocate General had no locus standi to file the appeal. The
F objection was overruled by the Disciplinary Committee of the Bar
Council of India and the appellant was found guilty of professional
misconduct. After examining the decision of the Privy Council in
Attorney-General of the Gambia v. Pierre, Sarr N'Jie (2) and other
decisions cited before it, this Court held that the Advocate-General
of Maharashtra could not be treated as a"person aggrievt:d' who
G
was entitled to file an appeal under section 37 of the Advocates Act.
The entire decision was based on the construction of the provisions
(as they stood then) of the statute concerned, as it appeared to the
Bench which decided the case. It may be noted that section 37 of

(I) [1971] 1 SCR 863.
(2) [1961JA.C. 617.
S.P. GUPTA v. UNION (Venkataramiah, J.) 1233

the Advocates Act has since been amended authorising the Advocate A
General of a State expressly to file an appeal. In Bar Council of
Maharashtra v. M. V. Dabholkar etc. etc.,(1) the interpretation of the
words 'person aggrieved' in the Advocates Act, 1961, again came up
for consideration by this Court. In that case the right of the State
Bar Council to file an appeal against the decision of the Bar Coun-
cil of India before this Court was challenged on the ground that B
it was not an aggrieved party. That contention was negatived by
Ray, C.J. by giving a liberal interpretation to the words 'person
aggrieved' with the following obse~vation at page 315:

"The words "person aggrieve~" are found in several
statutes. The meaning of th~ words "person aggrie-
c
ved" will have to be ascertained with reference to the
purpose and the provisions of the statute. Sometimes,
it is said that the words "person aggrieved" correspond
to the requirement of locus "stanrli which arises in rela-
tion to judicial remedies.· D
Where a right of appeal to Courts against an ad-
ministrative or judicial decision is created by statute,
the right is invariably confined to a person aggrieved
or a person who claims to be aggrieved. The meaning
of the words "a person aggrieved" may vary according E
to the context of the statute. One of the meanings is
that a person will be held to be aggrieved by a decision
if that decision is materially adverse to him. Normally,
one is required to establish that one has been denied
or deprived of something to which one is legally
entitled in order to make one "a person aggrieved". F
Again a person is aggrived if a legal burden
is imposed on him. The meaning of the words
"a person aggrieved" is sometimes given a
restricted meaning in certain statutes which provide
remedies for the protection of private legal rights.
G
The restricted meaning requires denial or depre-
vation of legal rights, A more liberal approach
is required in the background of statutes which do not
deal with property rights but deal with professional
H
(I) [1976] 1 SCR~306.
1234 SUPREME COURT REPORTS [I 982'1 2 s.c.il.
A conduct and morality. The role of the Bar Council
under the Advocates Act is comparable to the role of
a guardian in professional ethics. The words "person
aggrieved" in sections 3 7 and 38 of the Act are of wide
import and should not be subjected to a restricted
interpretation of possession or denial of legal rights or
B burdens or financial interests. The test is whether the
words "person aggrieved" include "a person who has
a genuine grievance because an order has been made
which prejudicially affects his interests" .. It has, there-
fore, to be found out whether the Bar Council has a
grievance in respect of an order or decision affecting
c the professional co;iduct and etiquette.

The pre-eminent question is : what are the inte- •
rests of the Bar Council ? The interests of the Bar
Council are the maintenance of standards of profes-
D sional conduct and etiquette. The Bar Council has no
personal or pecuniary interest. The Bar Council has
the statutory duty and interest to see that the rules
laid down by the Bar Council of India in relation to
professional conduct and etiquette are upheld and not
violated. The Bar Council act as the sentinel of pro-
E fessional code of conduct and is vitally inti:rested in
the rights and privileges of the advocates as well as the
purity and dignity of the profession.

The interest of the Bar Council is to uphold stan-
dards of professional conduct and etiqu1~tte in the
F profession, which is founded upon integrity and mutu- •
al trust. The Bar Council acts as the custodian of the
high traditions of the noble profession. The grie-
vance of the Bar Council is to be looked at purely
from the point of view of standards of pirofessional
conduct and etiquette. If any decision of the disci-
G plinary committee of the Bar Council of India is accor-
'ding to the State Bar Council such as will lower the
standards and imperil the high traditions and values in
profession, the State Bar Council is an aggrieved person
to safeguard the interests of the public, the: interests of
H the profession a11d the i11terests of the :(3ar,''
S.P. GUPTA v. UNION (Venkataramiah, J.) 1235
A
The above two decisions are in cases in which writs in the
nature of certiorari were sought. This Court has however in cases
in which writs in the nature of habeas corpus or of quo warranto are
prayed for relaxed the rule that ordinarily an applicant under Art.
226 should show that some personal right or fiduciary interest is
prejudiced by the action or inaction of the authority concerned. 8
In Jasbhai Motibhai Desai v. Roshan Kumar, Haji Bashir
Ahmed & Ors.(1) this Court observed that "while a Procrustean
approach should be avoided, as a rule the Court should not inter-
fere at the instance of a 'stranger' unless there are exceptional cir-
cumstances involving a grave. miscarriage of justice having an ad- C

-
verse impact on public interests".

In Fertilizer Corporation Kamgar Union (Regd.) Sindri & Ors. v.
Union of India & Ors.,(2) the right of workers in a factory owned by
Government to question the validity of a disposal of plant and
equipment of the factory by the management was disputed. On that D
question Chaudrachud, C.J. observed :

"That disposes of the question as regards the main-
tainability of the writ petition. But, we feel concern-
ed to point out that the maintainability of a writ peti-
tion which is correlated to the existence and violalion E
of a fundamental right is not always to be confused
with the locus to bring a proceeding (;under Article 32.
These two matters often mingle and coalesce with the
result that it becomes difficult to consider them in

-- water tight compartments The question whether a
person has the locus to file a proceeding depends most-
ly and often on whether he possesses a legal right and
F

that right is violated. But, in an appropriate case, it
may become necessary in the changing awareness of
legal rights and social obligations to take a broader
view of the question of locus to initiate a proceeding,
G
be it under Article 226 or under Article 32 of the Cons-
titution. If public property is dissipated, it would
require a strong argument to convince the Court that
representative segments of the pub!i<; or at least a se<;-
H
(1) [1976] 3 SCR 58.
(2) [1981] 2 SCR 52 at pp. 65-66,
1236 SUPREME COURT REPORTS (1982] 2 s.c.li
A tion of the public which is directly interested and
affected would have no right to complain of the infrac-
tion of public duties and obligations. Public enter- .
prises are owned by the people and those who run
them are accountable to the people. The account-
ability of the public sector to the Parliament is im:ffec-
B tive because the parliamentary control of public enter-
prises is "diffuse and haphazard". We are not too
sure if we would have refused relief to the work<!rs if
we had found that the sale was unjust, unfair or mala
fide."

c In the same case Krishana Iyer, J. after an elaborate dis-

D
cussion of the principle of 'locus standi' observed at page 76-77
thus:

"In the present case a worker, who, clearly, has an
interest in the industry, brings this action regarding an
-
alleged wrong-doing by the Board of Management.
Article 43A of the Constitution confers, in prindple,
partnership status to workers in industry and we can-
not, therefore, be deterred by technical considerations
of corporate personality to keep out thoie wlio seek to
remedy wrongs committed in the management of pub-
E
lic sector. Locus standi and justiciability are different
issues, as I have earlier pointed out .... ..
.
>
I
, If a citizen is no more than a wayfarer or officious
iptervener without any inter.est or concern beyond what
F belongs to any one of the 660 million people of this
country, the door of the court will not be ajar for him.
But if he belongs to an organisation which has special
i~terest in the subject matter, if he has some concern
-
deeper than that of a busybody, he cannot be told off
at the gates, although whether the issue raised by him
G i~ justiciable may still remain to be considered. I,
therefore, take the view that the present petition would
clearly have been permissible under Article 226."

In Municipal Council, Rat/am v. Shri Vardhichand & Ors.,(1)
H Krishna Iyer, J. upheld the right of the people who were reside.nts

(1) [1981~ 1 s. <;::.}l. 97 at pp. 99-1()0.
S.P. GUPTA v. UNION (Venkataramiah, J.) 1237

'or Ratlam town ·to institute a case against its Municipal Council A
·ventilating a public grievance thus :

"It is procedural rules', as this appeal proves, which
infuse life into substantive rights, which activate them:
to make them effective'. Here before us, is what looks B
. '--.,...__
like a pedestrian quasi-criminal litigation under s. 133
Cr. P.C., where the Ratlam Municipality the appeJlant
challenges the sense and soundness of the High Court's
affirmation of the trial ·court's order directing the
construction of drainage facilities and the like, which
has spiralled up to this Court. The truth is that a few
profound issues of processual jurisprudence of great

.. strategic significance to our legal system face us and
must zero-in on them as they involve problems of
access to justice for the people beyond the blinkered
rules of 'standing' of British Indian vintage. If the
centre of gravity of justice is to shift, as the Preamble
... to the Constitution aodates, from the traditional
individualism of locus standi to the community orien-
tation of public interest litigation, these issues must
be considered. In that sense, the case before us bet-
ween the Ratlam Municipality and the citizens of a E
ward. is a path-finder in the field of people's involve-
ment in the justicing process, same which as Prof.
Sikes points out the system may 'crumble under the .
burden of its own insensitivity'. The key question we
have to answer is whether by affirinative action a court

- can compel a statutory body to carry out its duty to
the community by constructing sanitation facilities at ,
great cost and on a time- bound basis. At issue is the
coming of age of that branch of public law bearing on
community actions and the court's power to force
public bodies under public duties to implement specific
plans in response to public grievances." G

All these Transferred Petitions were filed initially by advocates
under Article 226 of the Constitution before one or the other High
Court. The Writ Petition however is filed by an advocate under R
Article 32 of the Constitution before this Court. The petitioners
belong to different High Court B~m .\ll~ha~<\d 1 !Jombay, Madras
1238 SUPREME COURT REPORTS !1982) 2 s.c.1\.

Patna and Delhi-and to the Supreme Court Bar. One ltflportant
prayer made by them is that the Government should be directed to
appoint sufficient number of permanent Judges in every High Coutt.
The other points urged by them are that additional Judges should
not be . appointed for short terms like three months Ot six months,
that Judges should not be transferred from one High Court to
another without their consent and that the circular letter of the Law
Ministry should be quashed. Their principal submission is that appo·
intment of additional Judges for short terms and their transfer with-
out their consent would interfere with the independence of the judi-
ciary and would violate the directive principle of State policy contai-
ned in·Article 50 of the Constitution which requires the State to take
steps to separate the judiciary . from th@ executive in the public
services of the State. Whatever may be the position with regard to
the other prayers made in these petitions, it is difficult to hold that
on the first two questions the petitioners can be held to be having
no 'standing' to file the petitions. It is no doubt true that the power
to fix: the number of permanent Judges to be appointed in each
High Court is within the discretion of the President. But that power
is coupled with a duty which the President owes to the public in
general and to the lawyers and litigants in particular. If at any given
point of time it is found that the number of Judges in a High Court
is absolutely inadequate to meet its requirements, the members of
E the Bar who are vitally interested in the administration of justice
can file a petition before the High Court to compel the Government
to review the strength of the permanent Judges of that Court and to
appoint adequate number of Judges. The members of the Bar are
>
not called officers of courts only to impose obligations on them.
They have certain rights too. It is significant that Article 124 (3}
F. (b), Article 217 (2) (b) and Article 233 (2} of the Constitution
specifically state that the legal profession is a sourr.e of recruitment
of Judges of the Supreme Court, High Courts and District Courts.
Entries 77 and 78 of List I of the Seventh Schedule to the Constitu-
-
tion, specifically refer to persons entitled to prac;tice before the
Supreme Court and the High Courts. Section 29 of the Advocates )--
Act, 1961, provides that only one class of persons. can practise the
.profession of law, namely, advocates. Members of the Bar have a
vital stake in the functioning of the judiciary. Members of the .Bar
and .even litigants whose cases have remained undisposed for a long
number of years on account of the Government not appointing
sufficient number of Judges ~can therefore file a p€:tition demanding
ap~~int~ent of ~uffi9i~nnnumber of perm.anent Jud~es !Q High
S.P. GUPTA v. UNION (Venkataramiah, J.) 1239

Courts. The power under Article 216 of the Constitution is an
A
administrative power which can be regulated in an appropriate way
by the courts like any other administrative power. It is not a matter
of policy simpliciter. The question of appointment of sufficient
number of additional Judges under Article 224 (I) of the Constitu-
tion for the required period having regard to the arrears or the B
quantum of business in a High Court can also be agitated by lawyers
and litigants. It is true that the Court should not ordinarily issue
a mandamus in such cases unless it is satisfied that there has been a
gross deriliction of duty on the part of the Government. That how-
ever is a point to be comidered before granting or refusing to grant
the relief. But it cannot in any event be said that a petition filed
by lawyers for the above sald reliefs is liable to be dismissed at the
c
threshold merely on the ground of locus standi. The petitioners
satisfy all the tests which are laid down in the decisions referred to
above to maintain the petitions on the two questions referred to
above. During the pendency of these petitions, two further circum-
stances have come into existence. Mr. S.N. Kumar who was an D
additional Judge of the Delhi High Court when the petition of Shri
V.M. Tarkunde was filed in the High Court has ceased to be an
additional Judge as his term was not extended beyond June 6, 1981.
He has, though as a respondent, by filing necessary pleadings
questioned the action of the Government in not extending his term
and also the validity of the circular letter of the Law Minister. In E
the case relating to the transfer of Shri K.B.N. Singh, Chief Justice
of Patna High Court as Chief Justice of Madras High Court, he has
been permitted to be transposed as the petitioner. He has filed an
additional affidavit challenging the order of transfer. In view of
these new circumstances much of the sting in the objectioP to the
locus standi of the original petitioners to file the petitions is lost. F
It must also be stated that the learned Attorney--General also stated
at the commencement of the hearing of these cases that he would
not press his objection relating to the locus standi of the petitioners
having regard to the magnitude and the importance of ths constitu-
tional questions involved m the cases.
'- G
But Shri P.R. Mridul, learned counsel appearing for the Law
Minister, however, contends that the lawyers either as a class or
individually cannot be permitted to file petitions for the issue of
any direction to the Government concerning the appointment or ff
transfer of Judges. He has depended upon the writings of L.A. Stein,
S.M. Thio, Joel Grossman all<l ~ic!iard S. Wells and Louis L. Jalfo
. 1240 SUPREME COURT REPORTS (1'982) 2 S.C.k .

. and a number of decisions in support of his submission. He has
. quoted copiously
\
from 'Judicial Protection Against The~ Executive'
published by the Max Planck Institute. Shri Mridui argues that
.an applicant must show that he has a legal or some special interest
,which is sufficient in law to move the Court and that th1e duty which
.118 , is sought to be enforced is owed to him. I have carefully considered
. his submission. The conclusion reached by S.M. Thio in his essay
.. entitled' ~Locus Standi in Relation to Mandamus' at page 133 in
Public Law, edited by J.A.G. Griffith on which Shri Mridul has
relied is of significance. It runs thus :

"It may be seen from the abo"ve analysis of the cases
that the uncertainty surrounding the locus standi of an
i applicant for mandamus is largely attributable to the
·.; variety of formulae employed by the courts to describe
· the nature of the interest required to support an appli-
cation for mandamus, some of which are conflicting
,. ·: and others ambiguous. The employment of the tradi-
, tional syntax or a "legal right" to describe the requisite
.· i interest coupled with the assertion that a mandamus
·, , applicant must show that the duty is owed to him
' personally has established two particular poinlts. On the
one hand a strict rule limiting standing to a pe:rson who
r has a litigable right within the categories of private
law. On the other hand, the courts hav,e, in the
absence of such a litigable right, accorded standing to
: · a person who made out a "special intere!1t" in the
'r performance of the duty sought to be enforced. The
courts, in some of these cases, paid lip-service to the
·.F "legal right" test, but obviously using the term to
· • connote any interest judicially recognised as worthy
'" ! of protection rather than a right the invasion of which
gives rise to civil actionability. They have, in the other
cases. directly held it sufficient for a mandamus appli-
cant to establish a "special interest" in order to have ·
locus standi. As has been seen, the various judicial
pronouncements requiring an applicant to show that
the duty the performance of which is sou1ght to be
. , secured is one owed to him personally may be discoun-
ted since they were designed to bring out the point
. ~ that where the repository of the duty was a crown
..
' , ! ~ervant 1 itJ\was Jmperative for the applicant to show
s.P. OUl>TA v. UNION (Venkataramiah, J.) d4i
that the duty was not one owed to the Crown. but A
that it was imposed on the Crown servant as persons
designate and hence amenable to mandamus. On
balance, the weight of authorities favour the more
liberal "special interest" test under which the courts
have accorded standing to persons who have a direct
and substantial interest at stake. This is necessarily a
Bl
matter of judicial discretion. However, the preponde-
rance of cases reveal that :

(I) Where the duty sought to be enforced is imposed on a
public official or a public body for the benefit of a C
specific class of persons, persons within the class are
competent to apply for mandamus without further ado.
Persons outside the class may have locus standi if they
have a special interest in its performance i.e. an interest
over and above that of the general public.
D
(2) Where the duty sought to be secured is a general one
and is not specifically imposed for the benefit of a•
particular class of persons, the mandamus applicant
must satisfy the "special interest" test. Where the
failure to perform the duty has a de facto adverse effect
on a class of persons over and beyond that sustained E
by the general public, any member of that class is
competent to apply for mandamus without showing
that he is more prejudiced than other members of the
class. However, where the non.performance of the
duty theoretically affects a class of persons more than
the general public, but in actuality has only de facto F
effect on some members of the class, the mandamus
applicant will probably have to show that his interest
is more substantial than that of the interest group to
which he belongs".

Shri Mridul however fairly concedes that litigations of class
G'
character or public interest litigations (which may be called public
injury cases) are an essential feature of modern civilised jurispru-
dence and there is no gainsaying the fact that in these cases of public
I wrongs and public injury a liberal approach is adopted by the courts
to reach all forms of injustice particularly where prisoners, lunatics,
t..
1242 SUPREME COUllT REPOllTS (1982] 2 S.C.ll.

A minors and other ~eaker sections of people who cannot have access
to court owing to their helplessness are involved. In support of this
statement, he has brought to our notice the decision of' this Court
in Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai
and Ors(1) in which Krishna Iyer, J. has observed thus:

B ~
"Fairness to respondent's counsel constrains us to
·consider in limine a flawsome plea forcibly urged that
the Union figured as the appellant before us but being
no party to the dispute (which was between the workers
on the one hand and the establishments on the other)
c had no locus standi. No right of the Union qua Union
was involved and the real disputants were the workers.
Surely, there is terminological lapse in the ca.use-title
because, in fact, the aggrieved appellants are the
workers collectively, not the Union. But a bare reading
o.f the petition the description of parties, the grounds
D urged and grievences aired, leave us in no doubt that
· the battle is between the workers and employers and
the Union represents, as a collective noun, as it were,
· the numerous humans whose presence is indubitable in
the contest, though formally invisible on the party
array. The substance of the matter is obvious and
E formal defects, in such circumstances, fade away. We
are not dealing with a civil litigation governed by the
Civil Procedure Code but with an industrial dispute
. where the process of conflict resolution is informal,
rough-and-ready and invites a liberal approach. Proce·
' dural prescriptions are handmaids, not mistresses of
F justice and failure of fair play is the spirit in which
Courts must view .processual deviances. Our adjectival
branch of jurisprudence, by and large, deals not with
.. sophisticated litigants but the rural poor, the urban lay
and the weaker societal segments for whom law will be
an added terror if technical misdiscriptions and defici-
G encies in drafting pleadings and setting out the cause-
title create a secret weapon to non-suit a party. Where
foul play is absent, and fairness is not faulted, latitude
, ' is a grace of processual justice. Test litigations,

ff (ll (1976] 3 SCR 591, 596-97.
'
S.f>. GUPTA v. UNION (Venkataratnlah, J.) 1243
A,
representative actions, pro bono publico and like
broadened forms of legal proceedings are in keeping
with the current accent on justice to the common man
and a necessary disincentive to those who wish to by-
pass the real issues on the merits by suspect reliance on
peripheral procedural short-comings. Even Art. 226,
viewed in wider perspective, may be amenable to
ventilation of collective or common grievances, as
distinguished from assertion of individual rights,
.. although the traditional view, backed by precedents,·
has opted for the narrower alternative. Public interest
is promoted by a specious contruction of locus standi
in our socio-economic circumstances and conceptual
latitudinarianism permits taking liberties with indivi-
dualisation of the right to invoke the higher courts
where the remedy is shared by a considerable number,
particularly when they are weaker. Less litigation,
consistent with fair process, is the aim of adjectival D'
Jaw. Therefore, the decisions cited before us founded
on the jurisdiction under Art. 226 are inept and them-
selves somewhat out of tune with the modern require-
ments o~ jurisprudence calculated to benefit the comm-
unity".
E
Yet the contention of Shri Mridul is that even though the
lawyers constitute a special group who can' be said to be concerned
with the administration of justice in the sence of having a pro-
fessional interest in connection therewith, that by itself is not suffi·.
cient for holding that they can file the petitions in respect of the F
reliefs prayed for by them which concern only the Judges and not
the lawyers. He strongly pressed before us the view expressed by
this Court in the State of Gujarat & Anr. v, Shri Ambica Mills Ltd.,
Ahmedabad etc.( 1 ) I tl.nd that the said decision has not much rele-
vance on the question before us and it is not necessary to deal with
it at length.
G

It is also difficult to hold that the recongnition of the 'standing'
of the lawyers to file these petitions would in any way interfere with
the doctrine of separation of powers since it is not the case of

(I) (1974] 3 SCR 760.
1i44, SUPREME Cot.lilt REPORTS iI982J 2 s.c.t.
Shri )ldridul that a person who has indisputably the right to file these
petitio11s cannot in law raise the questions urged before us in these
cases. If the issues are non-justiciable, the petitions may have to be
dismissed on the ground that the impugned administrative action is
beyond judicial review but this has no bearing on the question of
B 'locus standi' of the petitioners, who are lawyers. Lawyers are
entitled to approach the Court to direct the Governmcmt to appoint
sufficient number of permanent Judges and to appoint sudicient
number of additional Judges for the maximum period of two years
having regard to the arrears and the business of the Court. They
may also legitimately agitate that additional Judges should not be
c appointed when permanent vacancies have remained unfilled for no
good reason.

rt has, however, to be made clear that it cannot be said that
lawyers only because they have a right to practice in a court have
'locus standi' to file petitions in respect of every matter concerning
D judges, courts and administration of justice. There ari~ many such
matters in which they have no 'locus standi' to ask for relief. By
way of illustration, lawyers cannot question the establishment of
a new court on the ground that their professional prospects would
be affected thereby. (See V.R. Mudvedkar & Ors. v. The State of
Mysore.(1) Even in these cases on the question of non-appointment
E of Mr·. S.N. Kumar and on the question of transfer of Mr. K.B.N.
Singh, the lawyer-petitioners may have no voice. But for the active
participation of these two persons, the petitions regarding reliefs
concerning them individually would have probably become liable to
be dismissed on the ground that the lawyers have no 'locus standi'
to make these prayers.

But, since as already stated, Mr. S.N. Kumar and Mr. K.B.N.
Singh have requested the Court to consider and if thought fit to
grant relief in their favour and the learned Attorney-General has
fairly stated that he would not raise the objection that the peti:
G tioners have no locus standi in view of the importance of the ques·
tions debated in these cases, we hold that the petitions cannot be
rejected merely on the ground that the petitioners who are lawyers
have no locus standi to file these petitions. Before leaving this
topic, it has to be observed that the question of locus standi in the
field of administrative law is still in a fluid state and it is not possible
H
(1) AIR 1971Mysore202•.
S.i>. GUPTA v. UNION tflenkataramiah, J.) 1245.

to lay down in any one case the principles which can govern all
situations.

~ART III

B
The Court cannot also decline to go into the questions agitated
in these petitions on the ground that they are political questions or
questions within the exclusive domain of executive discretion. The
doctrine of political question which was holding the field long time
back in the United States of America has now been exploded. It
had been assumed for sometime that the courts would not adjudi·
cate claims to power by the legislative and executive branches
c
- because they presented 'political' and therefore non-justiciable ques-
tions. This claim was based on the principle of separation of
powers recognised by the Constitution of the United States of
America. Alexis de Tocqueville was one of the earliest writers
who challenged in the year 183 5 itself the correctness of the doctrine D
of political question. He said in his book entitled 'Democracy in
America' (published by Oxford University Press in 1961, p. 82)
thus:

"But the American Judge is brought into the political
arena independently of his own will. He only judges E
the law because he is obliged to judge ·a case. The
political question which he is called upon to resolve
is connected with the interest of the suitors, and he

- cannot refuse to decide it without abdicating the duties
of his post".

It should, however, be borne in mind that separation of powers
does not mean a rigid analytical division. It is a general guiding
F.

principle. As Woodrow Wilson put it in 1908:

" ........ government is not a machine but a living
thing ...... No living thing can have _its organs offset
G
against each other as checks, and live. On the con-
trary, its life is dependent upon theit quick co-opera-
tion, their ready response to the commands of instinct
or intelligence, their amicable community of pur-
H
ppse .......Their cooperation is indispensible, their
\
warfare fatal".
1246 SUPREME COURT REPORTS (1982] 2 S.C.R.

A (Wilson: 'Constitutional Government in the United
States' 56 (1908).

Each one of the organs of the State-the legislature, the execu-
tive and the judiciary-has to discharge iis legitimate duties having
sound administration as the common goal.
B The doctrine of political question was examined in the year
1962 by the Supreme Court of the United States of America in
Baker v. Carr.(1) That was a civil action in which the complaint was
that the plaintiffs and others similarly situated had been denied
equal protection of the laws accorded them by the Fourteenth
Amendment to the Constitution of the United States of America
c by virtue of debasement of their votes by reason of unconstitutional .
division of their electoral area situated in the State of Tennessee.
The District Court dismissed their claim on two grounds namely,
lack of jurisdiction over the subject matter and that the action was
a non-justiciable one. The Supreme Court of the United States of.
-
America reversed the judgment of the court below and n:maded the
D
case to the District Court to dispose it of in the light of its decision.
The Supreme Court held that the complaint of the appellants invol-
ved a justiciable cause upon which they were entitled to a trial and
a decision. Brennan, J. who delivered the judgment on behalf of
six of the Judges, in the course of his decision, observed at page 691
E thus:

"We come, finally, to the ultimate inquiry whether
..
>
our precedents as to what constitutes a non-justiciable
"political question" bring the case before us under the

-
umbrella of that doctrine. A natural beginning is to
note whether any of the common characteristics which
F we have been able to identify and label de1icriptively
are present. We find none : The question here is the
consistency of state action with the Federal Constitu-
tion. We have no question decided, or to be decided by ,f---
a political branch of government coequal with this Court.
Nor do we risk embarrassment of our government
G
abroad, or grave disturbance at home if we: take issue
with Tennessee as to the constitutionality of' her action
here challenged. Nor need the appellants, in order to
succeed ;.)n this action, ask)he Court to enter upon
policy determinations for which judicially manageable
H
standards are lacking. ·Judicial standards under the
------
<o 369 U.S. 186; 7 L. Ed. 2nd 663,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1247

Equal Protection Clause·are well developed and fami-
liar, and it has been open to c:ourts since the enactment
of the Fourteenth Amendment to determine, if on the
particular facts they must, that a discrimination reflects
no policy, but simply arbitrary and capricious
action". B
In Powell v. McCormack(1) the label of political question was
consiclered a misnomer and all cases in which such a plea was raised
were cases in which really the question of jurisdiction of the court
to dedde the issue arising in them had been canvassed. The plain-
tiff in that case Adam Clayton Powell Jr. was duly elected from a c
congressional district of New York as a member of the United States
House of Representatives in 1966. However, pursuant to a House
resolution he was not permitted to take his seat on the ground that
he had earlier wrongfully diverted House funds, had made false
reports regarding foreign currency etc. Powell alongwith some
others who were voters in the constituency then filed a suit claiming D
that the House could exclude him only if it found that he failed to
meet the standing requirerrents of age, citizenship and residence
contained in clause 2 of Article I of the Constitution of the United
States of America and thus had excluded him unconstitutionally.
The District Court dismissed the suit for want of jurisdiction over
the subject matter. The Court pf Appeal affirmed the dismissal E
although on somewhat different grounds. One of the points raised
before the Supreme Court of the United States of America was that
the question involved was a political question and hence was not
justiciable. The Suprsme Court held that it was an error to dismiss·
the suit and remaded it for disposal, in accordance with law. Chief
Justice Warren who spoke for the Court disposed of the defence F
based on political question at page 532 thus : .

"(2) Respondents' alternate contention is that the
case presents a political question because judicial reso-
lution of petitoners' claim would produce a "potenti- G
ally embarrassing confrontation between coordinate
branches" of the Federal Government. But, as our
interpretation of Art. 1, $ 5, discloses, a determination
of petitioner Powell's right to sit would require no
more than an interpretation of the Constitution. Such ff
(1) 395 U.S. 486; 23 L. Ed. 2nd 491.
!248 SlJPRfiME COURT Rill>ORTS (1982) ~ s.c.Ji..
A a determination falls withiq the traditional role accor-
ded to cour.ts to interpret the law, and does not involve
a "lack of the respect due to (a) coordinate branch of
government", nor does it involve an "initial policy
determination of a kind clearly for non-judicial discre-
tion". Baker v. Carr, 369,US 186 at 217; 7 L. Ed 2d
B 1
663 at 686. Our system of government requires that
federal courts on occassion interpret the Constitutio;1
in a manner at variance with the construction given
the document by another branch. The alleged ·~onflict
. that such an adjudication may cause cannot justify the
c court's avoiding their constitutional responsibility ....

xx xx xx xx

Thus, we conclude that petitioners claim is not
barred by the political question doctrine, and, having
determined that the claim is otherwise generally justi-
D ciable, we hold that the case is justiciable".

In sum, the political question doctrine, according to R. Berger,
interposes no obstacle to judicial determination of the rival legisla-
tive executive claims to receive or withhold information. The powerc
to decide these claims plainly has not been lodged in eith1~r the legis-
E lative 011 the executive branch; equally plainly, the jurisdiction to
demarcate constitutional boundaries between the rival claimants has
been given to courts. The situation is the same when private parties
are involved. This rule, of course, is subject to considerations such
as national security and diplomatic relations. This appears to be:
the position in the United States of America.
( I

In our country which is governed by a written Constitution
also many questions which appear to have a purely political colour
are bound to assume the character of judicial questions. In the
State of.-Rajasthan & Ors. etc. etc. v. Union of India etc. etc. (1 ) the
Government's claim that the validity of the decision of the President
G under Article 356(1) of the Constitution being political in character
was not justiciable on that sole ground was rejected by this Court.
Bhagwati, J. in the course of his judgment observed in that case at
pages 80,81 thus :
H .(

(1) [1978) 1 SCR lo
S.i>. GUPTA v. UNION (Venkataralniah, J.) 12.49
A
"1t \\iili, thetefote, be seeli that merely because a
(iuestloh has a political colour, the Court cannot fold
Its hahds in despair and declare "judicial hands off".
So long as a question arises whether an authority
under the Constitution has acted within the limits or
Its power ot exceeded it, it can certainly be decided B
by the Court. Indeed it would be its constitu_tional
obligation to do so. It is necessary to assert in the
clearest terms, particularly in the context of recent his-
tory, that the Constitution Is Supreme lex, the para-
mount Jaw or the land, and there is no department or
branch of government above or beyond it. Every c
organ of government, be it the executive or the legis-
lature or the judiciary, derives its authority from the
Constitution and it has to act within the limits of its
authority. No one howsoever highly placed and no
authority howsoever lofty can claim that it shall be
the sole judge of the extent of its power under the D
Constitution or whether its action is within the confines
of such power laid down by the Constitution. This
Court is the ultimate interpreter of the Constitution
and to this Court is assigned the delicate task of deter-
mining what is the power conferred on each branch of
E
government, whether it is limited, and if so, what are
the limits and whether any action of that branch trans-
gresses such limits. It is for this Court to uphold the
constitutional values and to enforce the constitutional
limitations. That is the essence of the rule of law."
F
The objection tliat the questions involved in these petitions are
non-justiciable merely on the ground that they are political in
character has to be negatived. But it is made clear that the courts
are not entitled to enquire into every sort of question without any
limitation. There is still a certain class of questions such as inter-
national relations, national security which cannot be entertained by G
the Court. It is for the Court to determine in each case whether a
particular question should be debated before it or not.

Tile questions raised in these petitions will be considered here·
after, H

l
1250 SUPREME COURT REPORTS [1982] 2 s.c.Il.
A PART IV
We are concerned in these cases with High Courts. and Judges
of High .courts in our country ........ .

Speaking on the nature of the Draft Constitution, Dr. Ambed-
B kar in his speech delivered on November 4, 1948, in the Constituent
Assembly saic;I :

"All federal systems including the American are
placed in a tight mould of federalism. No matter what
the circumstances, it cannot change its form and shape.
C It can never be unitary. On the other hand the Draft
Constitution can be both unitary as weII a:; federal
according to the requirements of time and circum-
stances ...... .

There is another special feature of the proposed
0 Indian Federation which distinguishes it from other
federations. A Federation being a dual polity based
on divided authority with separate legislative, execu-
tive and judicial powers for each of the two polities
is bound to produce diversity in laws, in administra-
tion and in judicial protection. Upto a certain point
E this diversity does not matter. It may be welcomed
as being an attempt to accommodate the pJwers of
Government to local needs and local circumstances.
But this very diversity when it goes beyond a certain
point is capable of producing chaos and has produced
chaos in many federal States. One has only to imagine
F twenty different laws if we have twenty States in the
Union-of marriage, of divorce, of inheritartce of pro·
perty, family relations, contracts, torts crimes, weights
and measures, of bills and cheques, banking and com·
merce of procedures for obtaining justice and in the
standards and methods of administration. Such a
G state of affairs not only weakens the State but becomes
intolerant to the citizen who moves from State to State
only to find that what is lawful in one State is not
lawful in another. The Draft Constitution bas sought
to forge means and methods whereby India will have
federation and at the same time will have: uniformity
S.I'. GUPTA v. UNION (Yenkataramiah, J.) 1251

in all the basic matters ~which are essential to maintain
A
the unity of the country. The means adopted by the
Draft Constitution are three;

(I) a single judiciary,

(2) uniformity in fundamental laws, civil and B
criminal, anci

(3) a common All India Civil Service to man
Important posts.
,L
A dual judiciary, a duality of legal codes and a
duality of civil services, as I said, are the logical con-
c
sequences of a dual polity which is inherent in a fede-
ration. In the U.S.A. the Federal Judiciary and the
State Judiciary are separate and independent of each
other. The Indian Federation though a Dual Polity
has no Dual Judiciary at all. The High Courts and D
the Supreme Court form one single integrated Judiciary
having jurisdiction and providing remedies in all cases
arising under the constitutional law, the civil law or
the criminal law."

(Constitution Assembly Debates, Vol. 7 (1948-49) at E
pp. 34-36-37)

The High Courts in India are established by the Constitu-
tion. Article 3 76 of the Constitution, howevery, provided for
the continuance of the Judges of a High Court in any Province
holding office immediately before the commencement of the Cons-
F
titution as Judges of the new High Court in the corresponding State.
Article 376 of the Constitution reads :

"376. ( l) Notwithstanding anything in clause (2) 0f arti-
cle 217, the Judges of a High Court in any
Province holding office immediately before the
G
commencement of this Constitution shall, unless
they have elected otherwise, become on such
commencement the Judges of the High Court
in the corresponding State, and shall thereupon
be entitled to such salaries and allowances and H
to such rights in respect of leave of absence auq
1252 SUPREME COURT REPORTS (1982) 2 S.C.ll.
A
pension as are provided for under Article 221 in
respect of the Judges of such High Court.

Any such Judge shall, notwithstanding that
he is not a citizen of India, be eligible for
B appointment as Chief Justice of such High
Court, or as Chief Justice or other Judge of
any other High Court.

(2) The Judges of a High Court in any Indian State
corresponding to any State specified in Part B
c of the First Schedule holding office immediately
before the commencement of this Constitution
' I
shall, unless they have elected otherwise:, become
on such commencement the Judges of the High
Court in the State so specified and shall, not-
withstanding anything in clauses (I) and (2) of
article 217 but subject to the proviso to clause
..
(1) of that article, continue to hold office until
the expiration of such period as the President
may by order determine.

(3) In this article, the expression "Judge" does not
E include an acting Judge or an additional Judge."

After the commencement of the Constitution, the new High
Courts were allowed to exercise the jurisdiction of the ,existing High
Courts, until it was duly altered by appropriate Legislature, by vir-
tue of Article 225 of the Constitution which reads :
F
"225. Subject to the provisions of this Constitution and
to the provisions of any law of the appropriate
Legislature made by virtue of powers conferred on
that Legislature by this Constitution, the j11risdiction
G of, and the law administered in, any existing High
Court, and the respective powers of the Judges
'·
thereof in relation to the administration of justice in
the Court, including any power to make rules of
Court and to regulate the sittings of the Court and
of members thereof sitting alone or in Division
Courts shall be the same as immediately before the
9omm~ncement of this Constitution,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1253

A
Provided that any restriction to which the exer-
cise of original jurisdiction by any of the High
Courts with respect to any matter concerning the
revenue or concerning any act ordered or done in
the collection thereof was subject immediately before
the commencement of this Constitution shall no
B
longer apply to the exercise of such jurisdiction".

Some of the High Courts came to be constituted or reconsti-
tuted after the commencement of the Constitution under different
laws made by the ParIi amen t. An analysis of the various provisions
of the Constitution and other Jaws having a bearing on the question
shows that every High Court in India is an integral part of a
c
single Indian judiciary and Judges who hold the posts of Judges
of High Courts belong to a single family even though there
may be a slight variation in two of the authorities who are
required to be consulted at the time of the appointment. The
provisions dealing with the High Courts are found in Chapter V D
in Part VI of the Constitution containing rrovisions governing the
States and the salaries of the Judges of a High Court are paid out
of the funds of the State or States over which it exercises jurisdiction.
Yet it is difficult to say that each High Court is independent of the
other High Courts. A perusal of the other provisions in .that
Chapter shows that the State Legislatures and the State Governments E
have very little to do so far as the organization of the High Courts is
concerned. Article 366 (14) of the Constitution states that a 'High
Court means any Court which is deemed for the purposes of this
Constitution to be a High Court for any State and includes (a)

-"'
any Court in the territory of India or reconstituted under this
Constitution as a High Court and (b) any other Court in the territory F
of India which may be declared by Parliament by law to be a High
Court for all or any of the purposes of this Constitution'.

Article 214 of the Constitution as it was originally enactrd
read:
G
"214. (I) There shall be a High Court for each State.

(2) For the purposes of this Constitution the High
Court exercising jurisdiction in relation to any Province
immediately before the commencement of this Consti- ff
tution shall be deemeg tQ Q\: tl!e High Court for the
corresponding State,
1254 SUPREME COURT REPORTS (1982) 2 S, C.R.

A (3) The provisi~ns of this Chapter shall apply to
every High Court referred to in this article".
v
(
Clauses (2) and (3) of Article 214 .were omitted by the Consti-
tution (Seventh Amendment) Act, 1956 and Article 214 (l) was
renumbered as Article 214. Clause (2) of Article 214 contained the
8 necessary 'deeming' provision under which the High Courts exerci-
sing jurisdiction in any Province immediately prior to the commence-
ment of the Constitution became High Courts under the Constitu-
tion as per definition contained in Article 366(14) of the Constitution
Clause (3) of Article 214 stated that Chapter Vin Part VI of the
Constitution did not apply to any particular High Court but
c generally to all the High Courts thereby suggesting that this Chapter
could have very well been included in a separate part of the Consti-
tution. The legislative power to constitute a High Court is vested
in the Parliament by Entry 78 of List I of the Seventh Schedule to
the Constitution which reads :
0
"78. Constitution and organisation (including vacations)
of the High Courts except provisions as to officers and
servants of High Courts ; persons entitled to practise
before the High Courts".

It is today quite possible for the Parliament to pass a common
E High Courts Act governing all the High Courts in India replacing
the existing laws governing them.
>
The appointment of a Judge of a High Court is made by the
President in consultation with the Chief Justice of India, the
F Governor of the State concerned and in the case of appointment of
a Judge other than the Chief Justice, the Chief Justice of the High
Court. A Judge may by writing under his hand addressed to the
President resign his office. He is removable from office by the order
-
of the President passed after an address by Parliament presented in
the manner provided in Article 124 (4) of the Constitution for the
G removal of a Judge of the Supreme Court. Article 222 of the
Constitution states that the President may after consultation with
the Chief Justice of India transfer a Judge from one High Court to
any other High Court without any kind of consultation with the
Governors of the States concerned or the Chief Justices of those
H High Courts. Article 224A of the Constitution inter alia provides
that notwithstanding anything contained in Chapter V in Part VI of
the Constitution, the Chief Jqsti<;e of a High Court for any State
S.P. GUPTA ¥. UNION (Venkataramiah, J.) 1255

may at any time with the previous consent of the President request
A
any person who has held the office of a Judge of that Court or any
other High Court to sit and act as a Judge of the High Court
for that State. Under paragraph 11 (b) (i) of the Second Schedule
to the Constitution, the time spent by a Judge of any High Court
on duty as a Judge or in the performance of such other functions
(including functions connected with a different State) as he may at B
the request of the President undertake to discharge is tr::atcd as
'actual service'. Under Article 231 of the Constitution, Parliament
may by law establish a common High O;iurt for two or more States
or for one or more States and a Union Territory. Article 139A (2)
of the Constitution empowers the Supreme Court to transfer any
case, appeal or other proceeding pending before a High Court to
c
any other High Court. By virtue of the proviso to clause (I) of
Article 356 of the Constitution the powers vested aod exercisable
by a High Court remain unaffected by any proclamation issued under
Article 356 (I) by the President in relation to a State over which
the High Court is exercising jurisdiction. These provisions indicate
that all the High Courts organically form integral parts of a single
D
system although their territorial jurisdictions are defined. No High
Court can claim any superiority over the other either on the basis
of its situation or on the basis that it is a successor to a High Court
which was functioning in any Province immediately before the com-
mencement of the Constitution or on the basis of the extent of its
E
territorial jurisdiction. All the High Courts have the same status
under the Constitution.

PART V

The scope of the power of the President to appoint Judges of F
the High Courts under Article 217 (!) of the Constitution may be
considered now. It may be appropriate to refer here to the
position prevailing under the Government of India Act, 1935.
Under section 220 (2) of that Act every Judge of a High Court was
to be appointed by His Majesty and he could hold office until he
G
attained the age of sixty years. He was liable .. to be removed from
his office by His Majesty on the ground of misbehaviour or of
infirmity of mind or body if the Judicial Committee of the
Privy Council on a reference being made to them by His
Majesty reported that be ought on any such ground to be removed. H
The appointment of a Judge of a High Court under the Government
of India Act, 1935 was thus l\ Cr9w11 appointTQQJlt. The Governor·
1256 SUPREME COURT REPORTS [19821 2 s.c.a.

A General was, however, given the power under section 222 of thaJ
Act to appoint additional or acting Judges on behalf of the Crow~
for a temporary period. There was no requirement of any consulta·
tion with any specified judicial authority. When section 220 of the
Government of India Act, 1935 came up for discussion before the
House of Commons in order to ascertain whether the appointments
B
of High Court Judges was subjected to political pressure or not, a
question was raised in the following way :

"The Crown must, of course, have nominations made to
it. Will tho.se nominations be made by the Ministers, or
will they be put forward by the Governor acting in his
c discretion ?

The above question was replied by the Solicitor-Gene.ral of
His M!ljesty's Government thus : ·
"I do not think there is any thing to fetter the Secretary
D of State in making inquiries from the Governor-General,
the Governor or any body he thinks proper. I think
it is a perfectly unfettered duty"

t (See Parliamentary Debates Indian Affairs, Commons,
1934-35, Vol. II Col. 2685).
E In the ordinary course it is legitimate to assume that there must
have been always consultation with the Chief Justice of the High
Court concerned or with some others who were familiar with judicial
matters whenever an appointment of a Judge to a High Court was
made.
F Article 193 (I) of the Draft Constitution stated that every
Judge of a High Court was to be appointed by the President by a
warrant tinder his hand and seal after consultation with the Chief
Justice of India, the Governor of the State and in the case of appoint-
ment of a Judge other than the Chief Justice, the Chief Justice of !
the High court of that State. In the Memorandum containing the
G
views of the Judges of the Federal Court and of the Chief Justices
representing all the Provincial High Courts prepared by the Con·
ference ofthe Judges of the Federal Court and the Chief Justices of
the several High Courts held in March, 1948 on the question of
appointment of Judges of the High Court, it WM n:presented to the
H Drafting Corn mitt~ !l,S fallows :
s.f>. GUPTA v. UNION (Venkataramiah, J.)
"The Chief Justice should send his recommendation in A
that behalf directly to the' President. After consultation
with the Governor the President should make the
appointment with the concurrence of the Chief Justice
of India. This procedure would obviate the need for
the Chief Justice of the High Court discussing the
matter with the Premier and his Home Minister and B
"justifying" his recommendations before them. It
would also ensure the recommendation of the Chief
Justice· of the High Court being always.placed before
the appointing authority, namely, the President. The
necessity for obtaining the "concurrence" of the Chief
Justice of India would provide a safeguard against c
political and party pressure at the highest level being
brought to bear in the matter. It n~eds hardly to be
pointed out, in this connection, that under the system
of responsible Government envisaged by the proposed
Constitution, the President who is to make the appoint-
ment will be the constitutional head of the executive
D
guided by the advice of the Council of Ministers who
will of necessity be drawn from the political party
for the time being in power, and there may thus be
some risk of political and party considerations influenc-
ing the appointment of the highest judicial officers
in the country which, under the existing Constitution, E
has so far remained on the whole free from such
influences, the Governor-General and the Governors
not being elected nor owing their appointment to

- political parties in this country. It is therefore sugges-
ted that Article 193 (I) may be worded in the following
or other suitable manner : F

Every Judge of the High Court shall be appointed
by the President by a warrant under his hand and
seal on the recommendation of the Chief Justice
G
of the High Court after consultation with the
Governor of the State and with the concurrence
of the Chief Justice of India ............ (emphasis
added)
H
We do not think it neeessary to make any provi-
sion in tile Constitution for the possibility of the Chief
1258 iUPRBMB toURT RilJ>oR.ts (1982] 2 s.c.R..

A Justice of India refusing to concur in an appoint-
ment proposed by the President. Both are officers of
the highest responsibility and so far no case of such
refusal has arisen although a convention now exists
that such appointment should be made after referring
the matter to the Chief Justice of India and obtaining
B his concurrence. If per chance such a situation were
ever to arise it could of course be met by the President
making a different proposal, and no express provision
need, it seems to us, be made in that behalf".

c Ultimately Article 217 (!) which provided for the appoint-

-
ment of High Court Judges was enacted in the following form :

"217. (I) Every Judge of a High Court shall be appointed
by the Pre'sident by warrant under his hand and
seal after consultation with the Chief Justice of India,
D the Governor of the State and in the case of appoint-
ment of a Judge other than the Chief Justice, the
Chief Justice of the High Court and ........ "

It may be noted that the three different words 'recommenda-
tion', 'consultation' and 'concurrence' used in the proposal of the
E Conference of the Federal Court Judges and Chief Justices of High
Courts were not adopted by the Constituent Assembly but only the
word 'consultation' was used in respect of all the three functionaries
referred to in Article 217 (I).

F
In Biswanath Khemka v. The King Emperor,(1) the effect of
section 256 of the Government of India Act, 1935 which provided
that no recommendation should be made for the grant of magisterial
powers to, or the withdrawal of any magistenal powers from any
-
person save after consultation with the District Magistrate of the
District in which he was working or with the Chief Presidency
Magistrate, as the case might be, was considered by the Federal
G Court. The Federal Court held that the procedure of consultation
prescribed in that section was directory and not mandatory and non-
compliance with that would not render an appointment otherwise
regularly and validly made ineffective or inoperative. The Court
felt that any other view would lead to general inconvenienc~ and
H
(I} [1945] FCR 99 1
s.J>. GUPTA v. UNION {Venkataramiah, J.) 1259

injustice to persons who had no control over those entrusted with the
duty of making recommendations for the grant of magisterial powers
It is noteworthy that the above view 'was taken by the Federal
Court notwithstanding the fact that the words in the section were
very emphatic and of a prohibitory character. In State of Uttar
Pradesh v. Manbodhan Lal Srivastm·a(1) the provisions of Article 320 B
(3) (c) of the Constitution were held by this Court to be directory
and that they did not confer any right on a public servant. It was
further held that the absence of consultation or any irregularity in
consultation with the Public Service Commission by the Government
+-
before imposing a penalty on him at the end of a disciplinary enquiry
and non-compliance with Article 320 (3) (c) did not vitiate any such c
punishment, particularly when due enquiry had been held in accor-
dance with Article 311 of the Constitution and no defect in such
enquiry had been pointed out. In reaching that conclusion, the
Court depended upon the statement in Crawford on 'Statutory
Construction' which was to the following effect :
D
"The question as to whether a statute is mandatory or
directory depends upon the intent of the legislature and
not upon the language in which the intent is clothed.
The meaning and intention of the legislature must
govern, and these are to be ascertained, not only from
the phraseology of the provision, but also by consider- E
ing its nature, its design, and the consequences which
would follow from construing it the one way or the
other ............ "

The words prescribing the consultation machinery in Article
217 (!) of the Constitution have to be construed in the context of
F
the broad purposes and the general scheme of that provision ; its
history, its object and the result which it seeks to achieve. It is equally
necessary that the Court while construing a constitutional provision .
should bear in mind that it is a part of the organic law of the country
and not just an ordinary piece of legislation. A High Court is the G
highest judicial authority in a State and is the Court of the last
resort for the majority of cases. Alongwith the Supreme Court at
the apex, the High Courts have to play the role of protectors of the
rights and liberties of the people and should, therefore, be manned
by independent and efficient Judges. Realising the importance of H
(1) [1958) SCR 533.
Ii60 SUPREME COURT REPORTS [i982J 2 s.c.il.
A the High Court in a democratic country with a federal form of
Government, the Constitution states that the Judges should be
appointed after following the consultative machinery provided in
Article 217 (I). A citizen of India who has for at least ten years
held a judicial office in the territory of India is eligible to be appoin-
ted as a Judge of a High Court. A citizen of India who has for at
least ten years been an advocate of a High Court or of two
or more High Courts in succession is also qualified for
appointment as a Judge of a High Court. Article 217 is
designed to select the best, known for their high character and
unquestionable integrity from among the large number of qualified
persons .• Consequently the appointment of Judges of High Courts
c is not made by calling for applications or holding examinations
because the really deserving persons would not make applications.
The range ol selection is, therefore, practically limited by the
personal or acquired knowledge of the Chief Justice of the High
Court c~ncerned about the advocates or Judicial Officers. In that
process it may be that many deserving advocates escape notice and
D consideration. An advocate who is thus left out of consideration
cannot make ~ grievance of it before a court of law and claim that
his case should be considered for such appointment. The paramount
public importance attached to the post prevents institution of such
action by a member of the Bar. From the nature of the provisions
contained in Article 217 (I) of the Constitution, it is also clear
E that any. appointment made without following the procedure of
consultation with the authorities mentioned therein, which appears
to me to be madatory, would not be a valid one.

F It is, however, contended on behalf of some of the petitioners
and also on behalf of Shri S.N. Kumar that on a true construction
of Article 217(1), the opinion expressed by the Chief Justice of India
should be treated as final and binding on the President, having
regard to the position of primacy assigned to the Chief Justice of
India by the Constitution regarding matters connected with Indian
G judiciary. 'It is also submitted that the Council of Ministers can
have no voice in the matters nf appointment of Judges. Both these
contentions are repudiated by the Central Government.

The question is whether Article 217(!) treats the opinion of any
H of the functionaries who have to be consulted thereunder and in
S.P. GUPTA v. UNION (Venkataramiah, J.) 1261

particular of the Chief Justice of India as final .and binding on the A
President. The Constitution has used different words signifying
varying degrees of compulsive or binding character of the opinion
of one constitutional dignitary or authority on the other wherever
there is need for two or more of them participating in any decision
making process under the Constitution. They are, for example,
'shall act, according to such opinion' (Art. 103 and Art. 192), B
'consent' fArt. 127(1), Art. 128, Art. 224A and Art. 348(2) ), 'advice'
(Art. 74 and Art. 150), 'concurrence' (Art. 370(1) (b) (ii), ·approval'
(Art. 130, Art. 146(2) and Art. 229(2) ), 'recommended by' (Art.
233(2) ) and 'after consultation with'"or 'in consultation with' or
'be consulted' (Art. 124(2), Art. 127(1), Art. 146(1), Art. 217(1),
Art. 217(3), Art. 222, Art. 229, Art. 233{1), Art. 320(3), Art. 341(1), c
342(1) and Art. 370(1) (b) (i) )- It is significant that the words
'after consultation with' in Article 150 were substituted by the words
'on the advice of' by the Constitution (Forty-fourth Amendment)
Act, 1978, since the .Parliament wanted, as can be seen from the
Notes on Clauses in the relevant Bill which later on became the
Constitution (Forty-fourth Amendment) Act, the President to
D
prescribe the form of the accounts of thej Union and of the States
with the concurrence of and not merely in consultation with the
Comptroller and Auditor General of India.

From the scheme of the constitutional provisions, it appears
that each of the three functionaries mentioned in Article 217(1) of
the Constitution who have to be consulted before a Judge of a High
Court is appointed has a distinct and separate role to play. The
Chief Justice of the High Court is the most competent person to
evaluate the merit and efficiency of a person recommended for the
judgeship. The Governor is the proper authority who through the F
executive agency available to him may be able to report about tlie
local position of the person proposed, his character and integrity, his
affiliations and the like, which have a considerable bearing on the
working of the person proposed for appointment as a Judge. The
Chief Justice of India is brought into the picture to prevent any
G
vagaries on the part of the Cnief Justice of the High Court who may
be moved on occasions by petty considerations such as commuualism
and favouritism or who may even be capricious in proposing names
of persons for judgeship. The Chief Justice of iudia will naturally
be able to assess the qualities of persons proposed having in vie.v
the standard of efficiency of Judges in all· tlie High Courts in India
and also to prevent unsati11factory appointments being made on the
1262 SUPRBMB couR.t RBl'oRts [19S2J 2 s.c.a.
basis of faulty recommendations made by the Chief Justices of High
Courts. The position of the Chief Justice of India under Article
217(1) however is not that of an appellate authority or that of the
highest administrative authority having the power to overrule the
opinion of any other authority. From the specific roles attributed
to each of them as explained above, which may to some extent be
B overlapping also, it cannot be said that the Chief Justice of India
has been given any position of primacy amongst the three
persons who have to be consulted under Article 217( l) of the Cons-
titution. There are no express words conveying that meaning. The
President has to take into consideration the opinions of all of them
and he should not accept the opinion of any of them only on the I
sole principle of primacy. He has to take a decision on the question ~
of appointment of Judges of the High Courts on the basis of all
relevant materials before him.

Article 217(1) confers the power of appointment on the
D President, who ordinarily has to act on the advice of the Council of
Mihisters under Article 74(1) of the Constitution. Now we have to )

examine whether there is any compelling reason to hold that the
Council of Ministers would have no voice in the matter of appoint-
ment of a High Court Judge and the opinion of the Chief Justice of
India would be binding on the President. It is necess,1ry to refer
E here to certain articles of the Constitution. Article 74(1) provides
that there shall be a Council of Ministers with the Prime Minister
at the head to aid and advise the President, who shall in the exercise
of his functions, act in accordance with such advice. The proviso to
that clause provides that the President may require the Council of
Minister to reconsider such advice either generally or otherwise, and
f the President shall act in accordance with the advice tendered after
such reconsideration. It is thus clear that the only means of coun ·
teracting any advice tendered· to him by his Council of Ministers
available to the President where he feels that the advice should not
be straightaway acted upon is to remit it to the Council of Ministers
for reconsideration. If after such reconsideration the Council of
G
Ministers tenders its advice the President has to act in accordance
with such advice. The advice thus tendered is binding on the
President. A comparison of Article 74( I) with Article 163(1)
which also requires a Governor to act on the advice of his Council
of Ministers shJws that the Governor may in certain matters which
H are within his discretionary power act independently of his Council
S.P. GU1>TA v. UNION {J!enkataramiah, J.) 1263

of Ministers. There is no such exception expressly made in Article
A
74(1) specifically excluding any matter from its scope. Article 103
of the Constitution is another provision which has to be noticed
here. It confers the power on the President to decide the question
whether a Member of Parliament has incurred any disqualification
mentioned in Article 102(1) of the Constitution. It reads :
B
"103. (I) If any question arises as to whether a member
of either House of Parliament has become
subject to any of the disqualifications mentioned
in clause (1) of article 102, the question shall be
referred for the decision of the President and C
his decision shall be final.

(2) Before giving any decision on any such question,
the President shall obtain the opinion of the
Election Commission and shall act according
to such opinion''. D

Clause (2) of Article 103 lays down the only method in accor-
dance with which the President can decide a question arising under
clause (l) thereof. lt requires him to refer the said question to the
Election Cootmission for its opinion and to decide the question
according to its opinion. Article 74(1) therefore is excluded from E
operation by necessary implication. A question of similar nature
arising in respect of a member of the State Legislature has to be
decided under Article 192 by the Governor concerned in accordance
with the opinion of the Election Commission. Article 163(1) there-
fore becomes inapplicable by necesssary intendment to such a case.
It is thus seen that wherever the opinion of another authority alone F
is binding on the President or a Governor, as the case may be, the
Constitution uses appropriate words conveying such meaning.

\ Under Article 217(3) of the Constitution which provides for the
determination of the age of a Judge of a High Court, the President
has to decide the age of a High Court Judge after consultation with G
the Chief Justice of India and this Court has observed in
Union of India v. Jyoti Prakash Mitter(1) that the President cannot
in deciding the case under Article 217(3) act on the advice of his
Ministers. Here again Article 74(1) of the Constitution gets excluded
H
0) (1971] 3 SCR 483,
1264 sut>tlBMB OOU1lt RBPOR'i'S [1982] 2 s.c.il.
A
by necessary implication. But that case stands on an entirely
different footing. The function of the President under Article
217(3) is a judicial function and that makes all the differeace. This
Court observed in the said case at pages 504-505 thus :

8 "It is necessary to observe that the President in whose
name all executive functions of the Union are performed is
by Art. 217(3) invested with judicial power of great signi-
ficance which has bearing on the independence of the Judges
of the higher Courts. The President is by Art. 74 of the
Constitution the constitutional heal wbo acts on the advice
c of the Council of Ministers in the exercise of his functions.
Having regard to the very grave consequence resulting from
even the initiation of an enquiry relating to the age of a
Judge, our Constitution makers have thought it necessary
to invest the power in the President. In the exercise of
this power if democratic institutions are to tai<e root in our
D country, even the slightest suspicion of appearance of
misuse of that power should be avoided. Oth~rwise inde-
pendence of the judiciary is likely to be gravely imperilled.
We recommend that even in the matter of serving notice
and askin.g for representation from Judge of the High Court
where· a question as to his age is raised, the President's
Secretariat should ordinarily be the channel, that the
President should have consultation with the Chief Ju~tice
of India as required by the Constitution and that there must
be no interposition of any other body or authority, in the
consultation between the President and the Chief Justice of
India. Again we are of the view that normally an oppor-
F
tunity for an oral hearing should be given to the Judge
whose' age is in quest10n, and the question should be
decided by the President on consideration of such materials
as may be placed by the Judge concerned and the evidence
against him after the same is disclosed to him. The Presi-
G dent acting under Art. 217(3) performs a judicial function
of grave importance under the scheme of our Constitution.
He cannot act on the advice of his Ministers. Notwith-
standing the declared finality:_ofthe order of the President the
Court' has jurisdiction in appropriate cases to set aside the
H' order, if it appears that it was passed on collateral consi-
derations or the rules of natural justice were not observed,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1265
A
or that the President's judgment was coloured by the advice
or representation made by the executive or it was founded
on no evidence. But this Court will not sit in appeal over
the judgment of the President, nor will the Courts determine
the weight which should be attached to the evidence.
Appreciation of evidence is entirely left to the President and B
it is not for the Courts to hold that on the evidence placed
before the President on which the conclusion is founded, if
they were called upon to decide the case they would have
reached some other conclusion."

The power of appointment of a Judge of a High Court is an C
executive power and the analogy of Article 217(3) is, therefore,
inappropriate.

The power of the Governor with regard to matters connected
with appointment or dismissal of judicial officers was construed by
this Court giving the final voice regarding such appointment or D
dismissal only to the Governor under Article 233 of the Constitution
notwithstanding the vesting of control over the subordinate judiciary
in the High Court under Article 235 in the case of The Stare of West
Bengal v. Nripendra Nath Bagchi.(1) In that case Hidayatullah, J.
(as he then was) reconciled and interpreted Article 233, Article 234,
Article 235 and Article 31 l thus : E

"That the Governor appoints District Judges and the
Governor alone can dismiss or remove them goes without
sayiog. That does not impinge upon the control of the
High Court. It only means that the High Court cannot
appoint or dismiss or remove District Judges. In the same F
• way the High Court cannot use the special jurisdiction
conferred by the two provisos. The High Court cannot
decide that it is not reasonably practicable to give a District
Judge an opportunity of showing cause or that in the
interest of the security of the State it is not expedient to
G
give such an opportunity. This the Governor alone can
decide. That certain powers are to be exercised by the
Governor and not by the High Court does not necessarily
take away other powers from the High Courts. The
... ~
provisos can be given their full effect without giving rise to

(5) [1966] l ~CR 771 at l'I'· 789·7?Q:•
1266 SUPRBMB COURT RBPORTS [1982) 2 s.C.Ji
A other implications. It is obvious that if a case arose for
the exercise of the special powers under the two provisos,
the High Court must leave the matter to the Governor. In
this connection we may incidentally add that we have no
doubt that in exercising these special powers in relation to
inquiries against District Judges, the Governor will always
B have regar<l to the opinion of the High Court in the matter.
This will be so whoever be the inquiring authority in the
State. But this does not lead to the further conclusion
that the High Court must not hold the enquiry any more
than that the Governor should ,Jersonally hold the enquiry.
c
There is, therefore, nothing in Art. 311 which compels
the conclusion that the High Court is ousted of the juris-
diction to hold the enquiry if Art. 235 vested such a power
in it. In our judgment, the control which is vested in the
High Court is a complete conlrol subject only to the power
D of the Governor in the matter of appointment (including
dismissal and removal) and posting and promotion of
District Judges. Within the exercise of the control vested
in the High Court, the High Court can hold enquiries,
impose punishments other than dismissal or removal, subject
however to the conditions of service, to a right of appeal if
E granted by the conditions of service, and to the giving of
an opportunity of showing cause as required by cl. (2) of
Art. 311 unless such opportunity is dispensed with by the
Governor acting under the provisos (b) and (c) to that
clause. The High Court alone could have held the enquiry
in this case. To hold otherwise will be to reverse the policy
F which has moved determinedly in this direction."

Again in Chandramouleshwar Prasad v. Patna High Court and
Ors.,(i) the power of appointment of District Judges exercisable by
the Governor in consultation with the High Court arose !or consi-
G deration. This Court recognised in that case that the power to
appoint District Judges was vested with Governor but that such
power could be exercised only after a full and effective consultation
with the High Court. It held that if the process of consultation
was defective the appointment would become invalid, The Court
JI
(2) (! 970] 2 SCR 666.
S.P. GUPTA v. UNION Venkataramiah, J.) 1267

did not, however, go to the extent of saying that any opinion A
expressed by the High Court was binding on the Governor.

In Shamsher Singh & Anr. v. State of Punjab(1 ) which is a
judgment of a Bench of seven learned Judges of this Court, Chief
Justice Ray observed at page 843 thus :
B
"For the foregoing reasons we hold that the President
• as well as the Governor acts on the aid and advice of the
Council of Ministers in executive action and is not required
by the Constitution to act personally without the aid and
advice of the Council of Ministers or against the aid and
advice of the Council of Ministers. Where the Governor c
has any discrection, the Governor acts on his own judg-

- ment. The Governor exercises his discretion in harmony
with his Council of Ministers. The appointment as well as
removal of the members of the Subordinate Judicial IService
is an executive action of the Governor to be exercised on
the aid and advice of the Council of Ministers in accordance D
with the provisions of the Constitution. Appointments and
removals of persons are made by the President and the
Governor as the constitutional head of the executive on the
aid and advice of the Council of Ministers. That is why
any action by any servant of the Union or the State in
regard to appointment dismissal is brought against the E
Union or the State and not against the President or the
Governor."

In the same case Krishna Iyer, J. with whom Bhagwati, J.

- agreed in his concurring judgment has summed up the true legal
position under Article 74 and Article 163 of the Constitution at
page 875 thus :
F

"We declare the law of this branch of our Constitution
to be that the President and Governor, custodians of all
executive and other powers under various Articles, shall, by G
virtue of these provisions, exercise their formal constitu-
tional powers only upon and in accordance with the advice
of their Mini·sters save in a few well known exceptional
situations. Without being dogmatic or exhaustive, these
situations relate to (a) the choice of Prime Minister (Chief H
(I) (1975] 1 S.C.R. 814.
1268 SUPREME· COURT REPORTS [1982] 2 S.C.R.

A Minister), restricted though this choice is by the para.
mount consideration that he should command a majority
in the House; (b) the dismissal of a Government which has
lost its majority in the House but refuses to quit office;
(c) the dissolution of the House where an appeal to the
country is necessitous, although in this area the Head of
B State should avoid getting involved in politics and must be . ......,-·
advised by his Prime Minister (Chief Minister) who will
eventually take the responsibility for the step."

The above decision was delivered by this Court after a careful
consideration of all aspects of constitutional law bearing on the point
C. in the light of Article 234 of the Constitution which entrusts the
power of appointment of persons other than District Judges to the
Judicial Service of a State to the Governor. In principle an appoint-
ment under Article 217(!) cannot be different from an appointment
under Article 224.
D
The binding nature of an opm10n expressed by an authority
who has to be consulted before making an appointment of a Judge
was disposed of by Chandrachud, C.J. in Re. The Special Courts Bill,
1978(1) at page 550 with the following words-" ........... the process
of consultation has its own limitations and they are quite well-
E known. The obligation to consult may not necessarily act as a
check on an executive ......... ". Later on the learned Chief Justice
again obse.rved at pages 550-551 :

"Yet another infirmity from which the procedure

F
prescribed by the Bill suffers is that the only obi igation
which clause 7 imposes on the Central Government while
nominating a person to preside over the Special Court is to
consult the Chief Justice of India. This is not a proper
-
place and it is to some extent embarrassing to dwell upon
the pitfalls of the consultative process though, by hearsay,
one may say that as a matter of convention, it is in the
G rarest of rare cases that the advice tendered by the Chief
Justice of India is not accepted by the Government. But
the right of an accused to life and liberty cannot be made
to depend upon pious expressions of hope, howsoever past
experience may justify them. The assurance that conven-
H
(1) (1979] 2iS.C.R. 47~. t
S.P. GUPTA v. UNION (Venkataramiah, J.) 1269

tions arc seldom broken is a poor consolation to an accused A
whose life and honour are at stake. Indeed, one must look
at the matter not so much from the point of view of the
Chief Justice of India, nor indeed from the point of view of
the Government, as from the point of view of the accused
and the expectations and sensitivities of the society."
B
The substance of these observations is that the opinion expressed
by the Chief Justice of India who has to be consulted before .hand
would not be binding as such on the executive. That was the reason
for insisting upon in that case that the Government should appoint
a Judge of the Special Court with the concurrence of the Chief c
Justice of India as otherwise there would have been no need for sucli
insistence.

The thesis that the Constitution prohibits the participation of
the Executive in the appointment of Judges of superior courts and
/I that the opinion of the Chief Justice of India alone should be binding D
on the President in such matters totally fails when we consider the
question of appointment of the Chief Justice of India. Article
124(2) of the Constitution provides that every Judge of the Supreme
Court shall be appointed by the President by warrant under his hand
and seal after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may E
deem necessary for the purpose and that in the case of appointment
of a Judge other than the Chief Justice, the Chief Justice of India
shall always be consulted. From the above clause of Article 124, it
is obvious that when the appointment is to the post of the Chief

- Justice of India, it is not obligatory on the part of the President to
consult any specified functionary. But he has to consult such of the
Judges of the Supreme Court each one of whom may himself be an
aspirant to the post and such other Judges of the High Courts he
may consider necessary. In this situation, it is quite evident that
F

the opinion of any one of the Judges who may be consulted cannot
be treated as binding on the President. The power of appointment
G
rests with the President who has no doubt to take the decision on
the advice given by the Council of Ministers after making the
necessary consultation. When the 'primacy of judicial opinion'
doctrine thus fails in the case of the appointment of the Chief Justice

- of India, it would not be appropriate to hold that it prevails in the
case of appointments of other Jud~es 9f tile Supreme Court and tl:to
Judges of the High Courts.
H
1270 SUPREME COURT REPORTS [1982] 2 s.c.R.

Under Article 217( 1) of the Constitution the President should,
therefore, while making an appointment of a High Court Judge act
on the advice of his Council of Ministers having due regard to the
opinions expressed by the functionaries mentioned therein after a full
and effective consultation. There is no scope for holding that either
the Council of Ministers cannot advice the President on this matter
or that the opinion of the Chief Justice of India is binding on the
President although such opinion should be given due respect and
regard.

As a part of this very contention it is urged that the Executive
should have no voice at all in the matter of appointment of Judges
c of the superior courts in India as the independence of the judiciary
which is a basic feature of the Constitution would be in serious

D
jeopardy if the executive can interfere with the process of their
appointment. It is difficult to hold that merely because the power
of appointment is with the executive, the independence of the
judiciary would become impaired. The true principle is that after
-
such appointment the executive should have no scope to interfere
with the work of a Judge.

In this connection out of curiosity I have looked into some of
the books dealing with the modes of appointment of Judges in other
countries. The methods by which Judges are chosen in the different
E countries of the world may be broadly classified according to Prof.
J.W. Garner into three types- (I) election by the legislature, (2)
election by the people and (3) appointment by the executive either
absolutely or from a list of nominees presented by the courts or with
the concurrence of an executive council or the upper chamber of the
F
legislature. Choice by the legislature was a favourite method of
selection in the American States for sometime but this system has
been abandoned in all the States except Rhode Island, Verment,
South Carolina and Virginia. In Switzerland the Judges of the
federal tribunal are chosen by the legislative assembly of the federa-
G tion. Election of Judges by the people was first introduced in France
in 1790. With the advent of Napolean this system was abolished as
it had become discredited by then. In thirty eight of the States in
the U.S.A., the method of popular election of Judges is the rule.
In nearly all countries other that the United States of America, the
Judges are appointrd by the executive and even in the United States
H it is the method followed for the appointment of federal Judges and
in six State~ for appointment of State Judges. In Belgium the Judges
S.P. GUPTA v. UNION (Venkataramiah, J.) 1271

of the Court of Cassation :ire appointed from two lists of nominees A
each containing twice as many names as there are vacancies to be
filled, one presented by the Court itself and another by the Senate.
In France it is the custom when a vacancy occurs on the Bench it is
for the President of the Court and the State's Attorney to propose
the names of several persons to the Minister of Justice for his consi-
deration. Generally he appoints one of the persons so recommended B
but sometimes for political reasons he prefers to follow the recom-
mendations of a deputy, who may be an influential member of the
Minister's party.

In England the nominations to all vacancies among the superior
Judges are made either by the Prime Minister or by the Lord c
Chancellor. 'The Prime Minister nominates the Law Lords, the
Lords Justices of Appeal, the Lord Chief Justice, the Master of the
Rolls and the President of the Probate Divorce and Admiralty
Division. It is commonly assumed that the Prime Minister is
guided by the Lord Chancellor. The ordinary Judges of the High
Court often called puisne Judges are nominated by the Lord Chance-
D
llor. The Lord Chancellor is responsible for the lesser judicial
appointment.' (See R.M. Jackson, 'The Machinery of Justice in
England' 1960 Edition p. 232).
y
In his letter written by the end of 1951 to Morse Erskine, a
member of the California Bar, Lord Jowitt who was the Lord
,. Chancellor in the Labour Government till October 1951, however,
" stated :
"I think that I can fairly say that we have established
a tradition in which "politics" and "influence" (in the
appointment of judges) are now completely disregarded. F
The Lord Chancellor selects the man whom he believes to
be the best able to fill the position. In mY own case I had
an unusually large number of appointments, and I can only
recall appointing two men who were members of my own
party.
G
You must remember these facts which help in establish-
ing the tradition. The Inns of Courts are completely
independent of any governmental control. The Lord
Chancellor has always been a barrister, and must therefore
be a member of one of the Inns. He is in close ·touch with
all that goes on in his Inn of Court. How should I have
felt if I had made a, lot of qJlworthy aprointments, when
1272 SUPREME COURT REPORTS [1982] 2 S.C.R.

i
A I noticed the cold looks that I should have received when
next I went to lunch at the Inn.

Secondly, in practice, the Lord Chancellor would
always consult with the Head of the Division to which he
was called upon to appoint a Judge. If I had to appoint a ,.
B Judge to the Queen's Bench Division, I should, in practice,
always consult with the Chief Justice; if to the Divorce ,
Division, with the President, if to the Chancery Division,
with the senior judge. In all my many appointments, I
never in fact made one without the approbation of such
c a person. When it came to t''.e Court of Appeal, I should
consult the Master of the Rolls as to who was the most
suitable person............ . ."

(See 'The Life of the Law, Ed. by John Honnold (1964)
p. 270)
D Sir Albert Napier, the permanent secretary of the office of Lord
Chancellor in a paper prepared in about the year 1963 said m11ch tht:
same thing as Lord Jowitt as tollows ;
.•
"The Lord Chancellor is the most appropriate Minister
to advise on appointments and promotions for the very
E
reason that he is a Judge and is qualified for that position
by actual practice at the Bar. He knows by experience as an '
advocate, the nature and degree of the knowledge and kind
of character and temperament which go to make the best
judges. When he sits he hears eminent Barristers arguing
F before him. He is in almost daily touch as a Law Lord
and a Bencher of his Inn, with the Lords of Appeal and
other Judges and members of the Bar. The Bench of an inn
is a society where all are equal, and talk is free, and so far
as precedence is necessary, it goes by date of election and
not by rank. In such a society a bad appointment could )-
G not escape criticism, and if it were ever suggested to a Lord
Chancellor that he should appoint or promote the wrong
man for the wrong motive, he would know not only where
his duty Jay but that if he were to accede he would lose the
respect of the whole profession."
H
(See 'The Life of th\l Law, Ed. by John Honnold (1964)
P· 210)
8.i>. ou.PrA ii. UNiON (Venkaiaramiah, i.j . Ii73
The foregoing gives a fairly reliable picture of the English A
system of appointments of Judges. It is thus seen that in England
the Judges are appointed by the Executive. 'Nevertheless, the
judiciary is substantially insulated by virtue of rules of strict law,
constitutional conventions, political practice and professional tradi-
tion, from political influence'. (Vide Halsbury's Laws of Eagland,
Fourth Edition, Vol I para 5).
B

In Australia the Justic~s of the High Court and of the other
courts created by the Parliament are appointed by the Governor-
General in Council. (See Section 72(1) of the Commonwealth of
Australia Constitution Act, 1900). The appointment of federal
c
-
Judges is a cabinet matter which is formally ratified by the Executive
Council. It is stated that the practice is that the Attorney-General
would recommend to Cabinet persons for appointment though it is
the Cabinet which will make the final decision.

In Canada Judges of superior courts are appointed by the
Governor-General. (Vide section 96 of the British North America D
Act, 1867).

In Japan, the Emperor appoints the Chief Judge of the
Supreme Court as designated by the Cabinet and Judges other than
the Chief Judge are appointed by the Cabinett
E
In India we have adopted the procedure contained in Article
217(1) of the Constitution for the appointment of Judges of the High
Courts. We do not find anything intrinsically wrong in this method.
The process of consultation prescribed b; Article 217(1) acts as a
sufficient safeguard against the appointment of undesirable persons
as Judges of the High Courts. Our experience has been that the F
independence of the judiciary has not in any way been impaired by
reason of the President appointing Judges on the advice of his Coucil
of Ministers after following the process of consultation prescribed in
Article 2 I 7(1). This method appears to have been adopted so that
the appointments of Judges may have ultimately the sanction of the
people whom the Council of Ministers represent in a parliamentary
G
form of Government. In that way only the Judges may be "called
people's Judges. If the appointments of Judges are to be made on
the basis of the recommendations of Judges only then they will be
Judges' Judges and such appointments may not fit into the sc'1eme
of popular democracy. H
1274 SUPi:UlMB COURT REPORTS [1982] 2 s.C.ll.

A As a corrolary to the above contention, it is urged that an
advocate or a member of the subordinate judiciary who is recom-
mended by the Chief Justice of a High Court acquires a right to be
appointed if his name is approved by the Chief Justice of India also
and one of the learned counsel appearing in these cases said that
such a person would be entitled to request the Court to issue a writ
B
of mandamus compelling the President to appoint him as a Judge of
the High Court. The soundness of this argument depends upon the ·
process of appointment itself. Article 217 of the Constitution does
not say in terms that the proposal for appointment of a person as
a Judge should be initiated by the Chief Justice of the High Court.
c Let us assume for purposes of argument that he may initiate the
proposat:'recommending the name of a person who according to him
is qualified for the post. The Governor may or may not agree with
the proposal. The Chief Justice of India may or may not agree with
the proposal. Ultimately the appointing authority has to take a
decision on the question. Under the scheme of Article 217 the
-
D power to :. 'appoint a Judge of a High Court is vested in
the President. While he is bound to consult the authorities mention-
ed therein and take into consideration their opinions, he is not
bound by their opinions. Ordinarily one does not expect the Presi-
dent to make an appointment by ignoring all the adverse opinions
expressed by the functionaries mentioned in Article 217. If there
E are conflicting opinions the President has to weigh them after giving·
due consideration to each of them and take a decision on the
question. In any event it is difficult to hold that an advocate or a
.
member of the Subordinate Judiciary whose name is approved by the

-
Chief Justice of a High Court and the Chief Justice of India gets a
vested right to be appointed as a Judge of a High Court. In fact
F he has no' justiciable right at all. If for any reason he is not appoint-
ed he cannot move the Court to appoint him as a ~Judge of the
High Court. The position of an additional Judge who is currently
holding office and who is not reappointed stands on a slightly
different footing and his case will be considered at the appropriate
place.
G
PART VI
The evolution of the system of appointing additional Judges in
the High Courts for such period not exceeding two years as the
H President may specify needs to be examined now. Appointment of
a Judge who is a member of the superior judiciary for such short
S.1•. OtJP'tA v. UNION (llenkataramiah, J.) 1215
A
period appears to be peculiar to our country. Such practice not
prevailing in the United Kingdom. Even in India we do not have
Judges either in the Subordinate Judiciary or in the Supreme Court
whose tenure is so short. We may have additional courts in the
Subordinate Judiciary but they are manned by Judges belonging to
regular judicial cadre, whose tenure is the same as the tenure of B
others in the cadre.

Under section 4 of the High Courts Actjor the Charter Act,
1861 (24 & 25 Viet.; c. 104) it was provided that all the i'.Judges of
the High Courts established under that Act held their offices during
Her Majesty's pleasure provided that it was lawful for any Judge of G
a High Court to resign such office of Judge. Section 7 of that Act,

- however, provided that upon the happening of a vacancy in the office
of Chief Justice and during any vacancy in the office of Chief Justice
and during any absence of a Chief Justice, the Governor-General in
Council or Governor in Council as the case might be could appoint
one of the Judges of the High Court concerned to perform the duties D
of Chief Justice of that Court until some person was appointed to
the office of the Chief Justice (this provision corresponds to Article
223 of the Constitution). It also provided that upon the happening
of a vacancy in the office of any other Judge of a High Court and
during any absence of any such Judge or on the appointment of any
such Judge to act as Chief Justice it was lawful to the Governor- E
General in Council or Governor in Council as the case might be to
appoint a person with such qualifications as were required in persons
to be appointed to the High Court to act as Judge of that Court and
the person so appointed was authorized to sit and to perform the
duties of a Judge of that Court until some person was appointed to
the office of the Judge of that Court and had entered on the discharge F
of the duties of such. office or until the absent Judge had returned
from such absence or until the Governor-General in Council or
Governor in Council as aforesaid saw cause to cancel the appoint-
ment of such acting Judge. (This provision corresponds to Article
224(2) of the Constitution. It may be noted that the President
cannot cancel the appointment of an acting Judge under Article G
224(2) ).

lo the High Courts Act or the Charter Act, 1861, there was
no provision for appointment of an additional Judge of a High H
Court with a restricted tenure as it is in Article 224(1) of the Cons-
titution.
i276 SUPREME COURT REPORTS (19S1j ZS.C.1'.
A Section 105 of the Government of India Act, 1915 contained
almost· the same provisions which were found in section 7 of the
t
High Courts Act or the Charter Act, 1861 providing for the appoint-'
ment of acting Chief Justice and acting Judges. But section 101 of
the 1915 Act however made provision for the appointment of addi-.
tional Judges. Sub-section (2) of section 101 stated that each
B High Court should consist of a Chief Justice and as many other
Judges as His Majesty might think to appoint. Clause (I) of the
proviso to that sub-section authorised the Governor-General-in-
Council _to appoint persons to act as additional Judges for such
period not exceeding two years. Such provision for the appoint-
ment of additional Judges of High Courts appears to have been
c made by this Act for the first time.

Section 220 of the Government of India Act, 1935 as it was
originally enacted provided that every High Court was to consi&t of
a Chief Justice and such other Judges as His Majesty might from
-
D time to time consider it necessary to appoint. It further provided
that the Judges so appointed together with any additional Judges
appointed by the Governor-General in accordance with law could at
no time exceed in number such maximum number as His Majesty
in Council,might fix in relation to the High Court concerned. Under
the Government of India Act, .1935, every Judge of a High Court
E held his office until he attained the age of sixty years provided that
he would cease to be a Judge of the High Court if any of the events
mentioned in the proviso to section 220(2) happened earlier. Section
220 of the.Government of India Act, 1935 underwent subsequently
slight modifications which are of no materiality for the present
purpose. Section 222 of the Government of India Act, 1935 which
F provided for the appointment of temporary and additional Judges
of a High .Court read immediately prior to the commencement of
the Constitution as follows :

"222. ( 1) If the office of Chief Justice of a High Court
becomes vacant, or if any such Chief Justice is
G
by reason of absence, or for any other reason,
unable to perform the duties of his office, those
duties shall, until some person appointed by
His Majesty to the vacant office has entered on
the duties thereof, or until the Chief Justice has
H resumed his duties, as the case may be, be per•
formed by such one of the other Judges of the
S.i>. GUPTA v. UNION (Venkataramiah, J.) 1271
court as the Governor-General may in his A
discretion think fit to appoint for the purpose.
(2) If the office of any other judge of a High Court
becomes vacant, or if any such judge is appoin-
ted to Act temporarily as a Chief. Justice, or is
by reason of absence, or for any other reason, B
unable to perform the duties of his office, the
Governor-General may in his discretion appoint
a person duly qualified for appointment a judge
to act as a judge of that Court, and the person
so appointed shall, unless the Governor-General
in his discretion thinks fit to revoke his appoint- c

-
ment, be deemed to be a judge of that Court
until some person appointed by His Majesty to
the vacant office has entered on the dujes
thereof or until the permanent judge has resumed
his duties.
D
(3) If by reason of any temporary increase in the
business of any High Court or by '.reason of
arrears of work in any such Court it appears to
y the Governor-General that the number of the
judges of the Court should be for the time being
increased, the Governor-General in his discretion E
may, subject to the foregoing provisions of this
chapter with respect to the maximum number of
judges appoint persons duly qualified for
appointment as judges to be additional judges
of the Court for such period not exceeding two
years as he may specify." F
Article 166 of the Draft prepared by the Constitutional adviser
more or less adopted the language of section 222 of the Government
of India Act, 1935 with some modifications. The Drafting Com-
mittee, however, redrafted Article 166 of the Draft Constitution
prepared by the Constitutional Adviser by splitting it into two articles G
i.e. Articles 198 and 199. The redrafted Articles 198 and 199 of the
Draft Constitution read as follows:

"198. ( 1) When the office of Chief Justice of a High
Court is vacant or when any such Chief Justice H
is, by reason of absence or otherwise, unable to
perform the duties of his office, the duties of the
1278 StJl'itEME COtJllT llEl'OlttS [1982) 2 s.c.a.
A office shall be performed by such one of the
other Judges of the court as the President may t
appoint for the purpose.~

(2) (a) When the office of any other judge of a
High Court is vacant or when any such
B judge is appointed to act temporarily as a
Chief Justice or is unable to perform the
duties of his office by reason of absence or
otherwise, the President may appoint a
person duly qualified for appointment as a
judge to act as a judge of that court.
c
(b) The person appointed shall, while so acting,
be deemed to be a judge of the Court.

(c) Nothing contained in this clause shall
-
prevent the President from revoking any
D appointment made under this clause.

"199. If by reason of any temporary increase in the
business of any High Court or by reason of arrears of work y
in any such court, it appears to the President that the
number of the j1;dges of the court should be for the time
E being increased, the President may, subject to the foregoing
provisions of this Chapter with respect to the maximum
number of judges, appoint persons duly qualified for
appointment as judges to be additional judges of the court
for such period not exceeding two years as he may specify."

F
The Drafting Committee also introduced one more Article i. e.
Article 200 providing for the attendance of retired Judges at sittings
of High Courts which conformed to the practice in the United
Kingdom and in the United States of America. That Article read :

"200. Notwithstanding anything contained in this
G Chapter, the Chief Justice of a High Court may at any
time, .subject to the provisions of this article request any
person who has held the office of a judge of that court to
sit and act as a judge of the court, and every such person
so requested shall, while so sitting and acting, have all the
H jurisdiction, powers and privileges of, but shall not other·
wise be deemed to be, a judge of that court :
S.J>. GUJ>'l'A V. UNION (Venkataramiah, J.) 1279
A
Provided that nothing in this article shall be deemed
to require any such person as aforesaid to sit and act as a
judge of that court unless he consents so to do."

At the conference of the Federal Court Judges and Chief
Justices of the Hight Courts which met in March, 1948, it was B
recommended that Article 198(2) (c) of the Draft Constitution which
empowered the President to revoke the appointment of an acting
judge appointed under Article 192(2) (a) should be omitted.

The Drafting Committee received at this juncture a number of
representations to delete the Article providing for the appointment c
of additional Judges and acting Judges. The comments of Tej
Bahadur Sapru on the practice of additional Judges or acting Judges
resuming practice after a short stay on the Bench were telling. He
said:

"Additional judges, under the old Constitution, were D
appointed by the Governor-General for a period not exceed-
ing two years. I do not know whether that condition
has been reproduced in the proposed Constitution. This
prohibition, however, does not apply to acting judges or
temporary judges. I think the rule in future should be that
any barrister or advocate, who accepts a seat on the Bench,
E
shall be prohibited from resuming practice anywhere on
retirement. I would not, however, apply this to temporary
judges taken from the Services, who hold a seat on the
Bench for a few months, but I would add that the practice
of appointing additional and temporary judges should be F
definitely given up. When I said at the Round Table Con-
ference that there were acting, ad 'itional and temporary
judges in India, some of the English lawyers not accustom-
ed to Indian law felt rather surprised. I am also of the
opinion that temporary or acting judges ·do greater harm
than permanent judges, when after their seat on the Bench G
for a short period they revert to the Bar. A seat on the
Bench gives them a pre-eminence over their colleagues and.
embarrasses the subordinate judges who were at one time
under their control and thus instead of their helping justice
they act as a hindrance to free justice. I have a very H
strong feeling in this matter and have during my long
1280 SuPRllMil COURT Rili>Otti's [19821 2 s.c.R..
A experience seen the evil effects of unchecked resumption
of, practice by barristers and advocates". (B. Shiva
Rao ; 'The Framing of India's Constitution' Vol. IV pp.
172-173).

B In October, 1948, the Drafting Committee decided to dr<ip both
Article 198 (2) and Article 199 providing for the appointment of
acting and additional Judges. It was of the view that it was
'possible to discontinue the system of appointment of temporary
and additional Judges in High Courts altogether by increasing, if
necessary, the total number of permanent Judges of such courts'.
c On June' 7, 1949 after hearing the plea of Dr. B.R. Ambedkar
'that all Judges of the High Court shall have to be permanent', the
Constituent Assembly adopted the recommendation of the Drafting
Committee to delete Articles 198 (2) and 199 of the Draft Constitu ·
tion providing for the appointment of acting and additional Judges
in High Courts. Accordingly the Drafting Committee deleted
D reference.to appointment of acting and additional Judges altogether
in the revised Draft Constitution submitted to the Constituent
Assembly on November 3, 1949 but retained only those provisions
relating to appointment of acting Chief Justice and attendance of
retired Judges at sittings of High Courts. In the Constitution as it
was enacted finally by the Constituent Assembly these were pro-
E visions for appointment of Chief Justice, acting Chief Justices and
attendance of retired Judges at the sittings of the High Court.
(Vide Article 217, Article 223 and Article 224). There was no pro-
vision for the appointment of acting or additional Judges. Since
it was felt 'that the working of Article 224 as it was originally enacted
which pro~ided for the attendance of retired Judges at sittings of
F High Courts was not satisfactory and that Lere was need to intro·
duce provisions for appointment of acting and additional Judges as
it obtained in sub-sections (2) and (3) of section 222 of the Govern-
ment of India Act, 1935, by the Constitution (Seventh Amendment)
Act, I 956, .Article 224 was substituted by the new Article 224 which
reads 1hus .:
G
"224. (I) If by reason of any temporary increase in the
business of a High Court or by reason of arrears
of work therein, it appears to the President that the
number of the judges of that Court should be for
H the time being increased, the President may
appoint duly qualified persons to be additional
S.P. GUPTA v. UNION (Venkataramiah, J.) 1281
A
judges of the Court for such period not exceeding
two years as he may specify.

(2) When any Judge of a High Court other than the
Chief Justice is by reason of absence or for any
other reason unable to perform the duties of his B
office or is appointed to act temporarily as Chief
Justice, the President may appoint a duly qualified
person to act as a Judge of that Court until the
permanent Judge has resumed his duties.

(3) No person appointed as an additional or acting C
judge of a High Court shall hold office after
attaining the age of sixty years".

Article 217 (I) was simultaneously amended in order to
make the procedure of the appointment of permanent Judges appli-
cable to additional and acting Judges too. After amendment, D
t\rti<;le 217 (I) reaq~ ;
'f.

"217. (I) Every Judge of High Court shall be appointed by
the President by warrant under his hand and seal
after consultation with the Chief Justice of India, E
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
F
any other case until he attains the age of sixty
years ................... "
..
The original Article 224 which was replaced by the new
Article 224 was again reintroduced as Article 224A by the Constitu-
tion (Fifteenth Amendment) Act, 1963 again providing for the
G
attendance of retired Judges at sittings of High Courts. Simulta-
neously Article 217 (I) was amended substituting "sixty two years"
in the place of "sixty years" in it. Clause (3) of Article 224 was
also amended by substituting "sixty two years" in the place of "sixty H
years". Tb.is completes the history of Article 224 of the Cons-
~.itµtioi;i,
1282 SUPREMll COURT REPORTS (1982] 2 S.C.R.
A What is the true meaning of Article 224 (I) ? It empowers
the President to appoint duly qualified persons to be additional
Judges, if it appears to him by reason of any temporary increase in
the business of a High Court or by reason of arrears of work
therein that the number of Judges of that Court should for the time
being be increased. The two occasions when an additional Judge
B can be appointed are those mentioned in Article 224 (I) of the
Constitution, namely, (i) a temporary increase in its business or
(ii) accumulatation of arrears of work in the High Court con-
cerned. Article 224 (I) is not, therefore, intended for meeting a
situation where the work of the High Court is gradually on the
inerease requiring the appointment of more number of permanent
c Judges. The reasons for the increase in the work of the High
Courts according to the Fourteenth Report of the Law Commission
were:

"The problem of arrears in the High Courts must in
D our opinion be viewed against the very large, increase
in the work of these courts in recent years, particularly
during the period following the Constitution. Two
main causes of this increase need mention. Firstly,
the growing volume of ordinary litigation following y
the economic and industrial development of the
E country, has considerably added to the normal
work of all the Courts. We append a Table (Table I)
showing the extent of the increase under various heads.
Secondly, there has been an expansion of the High
Courts' special jurisdiction under a variety of fiscal
enactments like the Income tax and Sales Tax Act and
F other special laws. The fact of such expansion was
noticed by the High Courts Arrears Committee "as far
back as 19il9. A very recent example of the con-
ferment of the special jurisdiction on the High Courts
will be found in the Representation of the People Act
b\· which the High Court is empowered to hear appeals /-
G from the decisions of Election Tribunal.

The fundamental rights conferred by the Constitu-
tion and resort to the remedies provided for their
enforcement have contributed largely to the increase
in the volume of work in the High Courts. Applications
H for the enforcement of fundamental rights, applications

•
S.P. otJPTA v. UNION (Venkataramiah, 1.) 1283

seeking to restrain the usurpation of jurisdiction by A
administrative bodies and applications or suits chal-
lenging the constitutionality of laws have made large
additions to the pending files of the High Courts.
It has to be observed that many laws have come in
for challenge in the Courts on the ground of their
inconsistency with the Constitution. The complexity
B
of recent legislation has resulted in a large number of
novel and difficult questions having been brought
before the High Couts. Their decisions have not only
... _ taken longer time, but have led not infrequently to
references to Full Benches which necessarily divert
the available judge-power from what may be called
c
normal judicial work. As a result of this large addition

- to their work, the disposal of ordinary civil and criminal
work in the High Courts has suffered very considera-
bly. This increase of work and its specially difficult and
novel character can well be regarded as an important D
cause of the accumulation of old cases".

(Vide paragraphs 2 and 3 in Chapter 6 of Vol. I
of the Fourteenth Report of the Law Commission).

These observations were made in 1958. There are more rea- E
·sons now for the increase in the work of the High Courts.

The Law Commission in paragraphs 54 and 57 of Chapter 6
in Volume I of its Fourteenth Report recommended thus :

F
"54. The large increase in the volume of annual
institutions which has been referred to earlier must
now, we think, be taken as a permanent feature. This
position accordingly necessitates a thorough revision
of existing ideas regarding the number of judges
required for each High Court. The strength of some G
of the High Courts has been increased from time to
time. In doing this, however, the post-Constitutional
developments which have thrown a much heavier burden
on the High Courts have, in our view, not been'
H
adequately taken into account. To expect the existing
pt1mber of judges
' ,.
in the various High Courts
~ . .
to deal,
1284 SUPREME COURT REPORTS [1982) 2 s.c.a..
A efficiently with the vastly increased volume of work
is, in our opinion, to ask them to attempt the impossi-
ble. As pointed out to us by a senior counsel, if there
is a congestion on the roads due to an increase in
traffic, the remedy is not to blame the traffic but to
widen the roads.
B
The first essential therefore, is to see that the strength
of every High Court is maintained at a level so as to
be adequate to dispose of what may be called its
normal institutions. The normal strength of a High
Court must be fixed on the basis of the average
c annual institutions of all types of proceedings in a
particular High Court during the last three years.

D
This is essential in order to prevent what may be
termed the current file of the Court falling into arrears
. and adding to the pile of old cases. The problem of
clearing the arrears can be satisfactorily dealt with
only after the normal strength of each Court has been
-
brought up to the level required to· cope with its
normal institutions. We suggest that the required
strength of the High Court of each State should be
ifixed in consultation with the Chief Justice of that
State and the Chief Justice of India and the strength
E 1
so fixed should be reviewed at an interval of two
or three years. Such a review will be necessary not
only by reason of changing conditions but because
the implementation of our recommendations made else·
where will lea:d to a quicker disposal of work in the
subordinate courts which, in its turn, will result in an
·increase in the work of the High Courts.

57. We are of the view that the provfaions of article
-
224 of the Constitution should be availed of and
additional judges be appointed for the specific purpose
G of dealing with these arrears. The number of such
additional judges required for each High Court for the
purpose of dealing with the arrears will have to be
fixed in consultation with the Chief Justice of India
and the Chief Justice of the State High Court after
H . taking into consideration the arrears in the particular
S.P. GUPTA v. UNION (Venkataramiah, J.) 1285

court, their nature and the av.erage disposal of that A
court. The number of additional judges to be fixed
for this purpose should be such as to enable the arrears
to be cleared within a period of two years. The
additional judges so appointed should, in our view, be
utilised as far as possible exclusively for the purpose
8
of disposing of arrears and not be diverted to the
disposal of current work. Pari passu with the dis-
posal of the arrears, the permanent strength of the
High Court will have to be brought up to and main-
tained at the required level, care being taken to see
that their normal disposal keeps pace with the new
institutions and that they are not allowed to develop
c
into arrears. The appointment of additional Judges
for the exclusive purpose of dealing with the arrears
is, in our view, called for in a larg~ number of High
Courts".

The practice that grew in High Courts was, however, different.
D
Article 224 (1) was treated as the gateway through which almost
every Judge had to pass before being made permanent. It is
indeed disturbing to notice that some Judges before they were made
permanent had functioned as additional Judges for nearly five years.

Article 217 (1) of the Constitution lays down the procedure
E
to be followed in making the appointment of a Judge of a High
Court. The President can appoint a High Court Judge after con·
sultation 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. Article 217 (I) as F
it was originally enacted referred to the appointment of permanent
Judges only as there was no provision in the Constitution then to
the appointment of additional or acting Judges. When the new
Article 224 of the Constitution was subsituted in the place of the
original Article 224 by the Constitution (Seventh Amendment)
Act, 1956 providing for the appointment of additional and acting G
Judges, Article 217 (1) also was amended requiring the appoint-
ment of additional and acting Judges also in the same manner, the
only distinction maintained between the permanent Judges and the
additional and acting Judges being the one relating to their tenure.
A permanent Judge is entitled to be in office till he attains the age B.
of sixty two years wherea,~ t~e tenure of an additional orJ!actin~
1286 SUPREME COURT REPORTS [1982] 2 s.c.R.

A Judge is as specified by the President under Article 224 (I) or
Article 224 (2) of the Costitution as the case may be. It is, however,
to be noted that the Constitution does not prescribe any difference
in the mode of appointment of a permanent Judge or of an
additional or an acting Judge. All of them should satisfy the same
tests as to their fitness to be appointed as Judges irrespective of the
B fact whether they are appointed as permanent Judges or as addi-
tional or acting Judges. We shall hereafter confine our attention
to the appointment of permanent Judges and additional Judges
only.

c Article 216 of the Constitution reads :

"216. 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."

D It is well known that with the increase of the population and
the number of laws and with the changes brought about in the
economic, social and political life of the people, litigation in all
courts has been continuously increasing. Naturally the number of
cases filed in the High Courts which happen to be the highest courts
E in the case of a large number of matters have gone on growing.
From the statements filed on behalf of the Central Government
alongwith the affidavit dated August 29, 1981 of Shri T.N.
...
Chaturvedi, Secretary (Justice), Government of India, the following
facts emerge :

F
As on As on As on
31-12-1978 31-12-1979 31-12-1980

(a) The total number 6,13,799 6,17,239 6,78,951
of main cases
G pending

(b) Average disposal ~60
of main cases
per Judge per
H year during the
'years 1978, 1979
ilDd 19?0~
s. P.GUPTA v. UNION (Venkataramiah, J.) 1287

Sanctioned Actual A
strength strength
(c) The sanctioned 308
strength of per-
manent Judges in
all the High Courts B
as on 18-3-1981.
(d) The actual strength 277
i.. of permanent
Judges in all the
High Courts as c
on 18-3-1981.

- (e) The sanctioned strength of
additional Judges
in all the High
97

Courts as on D
~·
18-3-1981.

(f) The actual steength 43
y of additional Judges
in all the High
Courts as on E
18-3-1981.
405 320

.... Hence on March 18, 1981 in all there were 320 Judges (perma-
nent and additiona1) in all the High Courts. At the average rate F
of 860 main cases per year per Judge, 320 Judges can dispose of
about 2,75,200 cases per year. To dispose of the arrears of cases
as on 31-12-1980 they need approximately four years since many
of them are bound to be heavy Division Bench matters which
consume a lot of time. Of them, it may be noted that 2,59,827 cases
were more than two years old as on 31.12.1980. The fresh institu- G
tions in all the High Courts are also on the increase. Fresh cases
instituted in all the High Courts were 4,85,880, 5,30,614 and
5,55,719 respectively in the years 1978, 1979 and 1980. If the total
average disposal of all the existing Judges per year is only 2,75,200
cases then twice the number of existing Judges would be needed even
H
to dispose of the new cases institute)Q every yea~ l\l\vin~ ~re~~rc! tQ,
1288 SUPREME COUR1 REPORTS [1982] 2 S.C,R.

A the institutions in the year 1980, let alone the backlog of nearly
7,00,009 of cases. It is thus clear that the number of Judges in the
High Courts, both permanent and additional, is wholly inadequate t
to cope up with the situation which has arisen more on account of
delay in filling'up existing vacancies and on account of not increasing
the strength of Judges of the High Courts to the requisite number
B from time to time. There appear to be some discrepancies in the
statistics furnished in these cases. But it is admitted by the Govern-
ment that they need at least I 50 more additional Judges in addition
to the sanctioned strength of 308 permanent Judges and 97 addi·
tional Judges to clear off the arrears in two years.
G
Article 216 of the Constitution requires the President to

D
appoint necessary number of Judges in each High Court. The word
'necessary' in Article 216 is a crucial one. It imposes a duty on the
President to review the strength of Judges in each High Court from
time to time and to increase the number of Judges as and when it is
necessary. No steps appear to have been taken to do so pr;:iperly
-
and that is the reason why we have reached these staggering arrears.
In the present situation, it appears, there should be at least 600
permanent Judges to fight the problem of arrears. If in any given
High Court the arrears come down, then fresh appointments in that
High Court may not be made. But steps have to be taken to appoint
E
immediately at least 200 more Judges after making all the existing
additional Judges permanent. In this state of affairs, it is difficult
to understand as to why Judges are being appointed even now as
additional Judges only for a period of two years or for lesser periods.
When it is not disputed that a Judge appointed under Article 224

-
F •(1) of· the Constitution, is not a Judge on probation, what
is the\ advantage of appointing additional Judges when
there is need to appoint more permanent Judges? Surely there
is no' financial gain to the Government as the expenditure
involved is almost the same whether a Judge is an additional
Judge or a permanent Judge. On the other hand, the appointment
G of additional Judges even where permanent Judges are needed leads
to two important disadvantage:;. First, the periodic processing of the
papers relating to the renewal of the term of an additional Judge
consumes a lot of time of the high functionaries who have to be
consulted under Article 217 (I). Secondly, an additional Judge
H concerned will not be able to deal with matters as independently as
a permanent Judge can. Because the conduct of an additional Judge
}VOuld become subject to scrutiny by the Chief Justice of the High.
s.i>. OIJt>TA v. UNION ( Venkataramiah, J.) 1289

Court, the Governor, the Chief Justice of India and the Presi- A
dent in connection with the his reappointment just when his tenure
specified under Article 224 {l) is about to come to a close, it is
natural that he would not be able to deal with the matters placed
before him without fear of incurring to displeasure of any one of
them. We have to bear in mind that the State and the Central
'y--- Government are the biggest litigants in every High Court and order B
passed by an additional Judge are sure to displease them in one way
or the other. It is no doubt true that an additional Judge takes the
oath of office to deal with the matters without fear or favour, and
affection or illwill, but we should remember that he is after all a
human being. If an advocate who is at the age of about 45 years,
is appointed as an additional Judge for two years, what should he do c
-
if at the end of two years he is dropped on the ground that he is
not fit for being continued as a Judge ? Having burnt his boats at
the Bar, should he make fresh efforts to re-establish himself in the
Bar? Will not his position be made more difficult if he is sent
back with a label that he was not found fit to be continued as a
Judge ? Similarly in the case of a District Judge who is promoted D
as a High Court Judge, should he go back as a District Judge at
the end of the tenure fixed under Article 224 (I) ? Probably having
in view all these difficulties at the time when the Constitution was
enacted, no provision was made for appointing additional Judges.
It was no doubt introduced in 1956 to meet emergencies arising
out of sudden increase in arrears of cases. Article 224 (1) was never E
intended for appointing almost every Judge first as an additional
Judge and then as a permanent Judge. A perusal of the list of Judges
of the High Courts maintained by the Government shows that not

- less than 4/5th of the Judges have been initially appointed as addi-
tional Judges and then as permanent Judges. Only I/5th of them
are appointed as permanent Judges initially. This may be due to the
existence of vacancies in the permanent strength when they were
appointed as Judges. The sanctioned strength of permanent Judges,
F

however, at no time represented the true position as it is found that
always the permanent strength fell short of the requisite number.
G
This is not a happy position at all but this is not all. Judges whose
tenure is not assured as in the case of permanent Judges but whose
continuance in office after the specified period is subject to the will
of any other authority generally do not inspire confidence in the
H
1290 SUPREME COURT REPORTS (1982] 2 S.C.R..

A litigant public also. The decision of this Court in Krishan Gopal
v. Shri Prakash Chandra & Ors.(1) supports this statement. That was
a case where the appellant had questioned the jurisdiction of a
retired Judge of the Madhya Pradesh High Court who had been
requested to function as a Judge under Article 224A of the Constitu-
tion to try an election petition. This Court negatived that conten-
B tion of the appellant holding that a retired Judge functioning under
Article 224A had all the powers and jurisdiction of a sitting Judge.
This Court also negatived another contention of the appellant which
had been urged in support of the appeal. The appeal should have,
therefore, been dismissed. The operative part of the judgment,
however, was entirely different. It reads at page 215 thus :
c
"The two legal contentions which have been advanced
on behalf of the appellant in our opinion, are not well
founded, and we have no hesitation to repel them. All
-
D the same, looking to the special facts and circumstances
of this case, we are of the opinion that it is fit and
proper and in the ~interest of justice that the election
petition filed by the appellant be tried by another
learned judge of the High Court who may be assigned
for the purpose by the Chief Justice of that Court. It
E seems indeed desirable that election petitions should
ordinarily, if possible, be entrusted for trial to a perma-
nent judge of the High Court, even though we find that •
additional or acting judges or those requested under
Article 224A of the Constitution to sit and act as judges
of the High Court, if assigned for the purpose by the
F Chief Justice, are legally competent to hear those
matters. We, therefore, set aside the order dated
·i August lO, 1973. The election petition filed by the
appellant shall now be heard by a permanent judge
who may be assigned for the purpose by the learned
Chief Justice. The case may, therefore, be placed
G before the learned Chief Justice for necessary orders.
The appeal is accepted accordingly. The parties in the
circumstances shall bear their own costs of this Court
and in the High Court". (Emphasis added)

H (1) (1974] 2 SCR,206,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1291

What does this decision mean ? Additional or acting Judges A
appointed under Article 224 (I) and (2) or retired Judges requested
under Article 224A of the Constitution are looked at with suspicion
even by this Court. Why ? The reason is obvious. This Court
felt that cases like election petitions which had political overtones
should not be entrusted to additional Judges or acting Judges whose
tenure was dependent upon the pleasure of the Government which
B
had the power to withhold its consent to the fresh appointments of
the Judges concerned to be made at the end of the period specified
under Article 224. Is this not sufficient to hold that by constantly
resorting to Article 224 (I) where it could not be done, the Govern-
ment has created a second class of Judges in the High Courts even
though as we are aware their integrity, character and erudition are
c
beyond question ? The answer has to be in the affirmative.

- The appointment of a retired Judge whose tenure was at the
pleasure of the Government to try criminal cases was found to be
violative of Article 21 of the Constitution by Chandrachud, C. J. D
In re. The Special Courts Bill, 1978's case (supra). In that connection
the learned Chief Justice observed at page 549-550 thus :

"The second infirmity from which the procedural part
of the Bill suffers is that by clause 7, Special Courts are
to be presided over either by a sitting Judge of a E
High Court or by a person who has held office as Judge
of a High Court to be nominated by the Central
Government in consultation with the Chief Justice of
India. The provision for the appointment of a sitting
High Court Judge as a Judge of the Special Court is

- open to no exception. In so far as the alternate source
is concerned, we entertain the highest respect for retired
Judges of High Courts and we are anxious that nothing
F

said by us in our judgment should be construed as
casting any aspersion on them as a class. Some of
them have distinguished themselves as lawyers once
again, some as members of administrative tribunal and
G
many of them are in demand in important walks of
life. Unquestionably they occupy a position of honour
and respect in society. But one cannot shut one's eyes
to the constitutional position that whereas by article
H
217, a sitting Judge of a High Court enjoys security of
tenure until he attains a particular age, the retired
SUPREME COURT REPORTS [1982) 2 s.c.tl.

A Judge will hold his office as a Judge of the Special
1 .j Court during the pleasure of the Government. The
pleasure doctrine is subversive of judicial indepen-
dence .
.A retired Judge presiding over a Special Court,
B who displays strength and independence may be frow-
ned upon by the Government and there is nothing to
.1 prevent it from terminating his appointment as and
when it likes. It is said on behalf of the Govern·
' rnent that if the appointment has to be made in consul-
,; tation with the Chief Justice of India, the termination
c -I of the appointment will also require similar consulta-
tion. We are not impressed by that submission. But,

'l
,f
granting that the argument is valid, the process of
consultation has its own limitations and they are quite
well-known. The obligation to consult may not neces·
sarily act as a check on an executive which is deter-
-
D mined to remove an inconvenient incumbent. We are
therefore, of the opinion that clause 7 of the Bill
violates article 21 of the Constitution to the extent that
a person who has held office as a Judge of the High
Court, can be appointed to preside over a Special
;E Court merely in consultation with the Chief Justice of
I I India".
l .

This again supports the view that the present practice of
appointing almost all the High Court Judges initially under Article
224 'cO and later on as permanent Judges is not conducive to the
F indep~ndence of judiciary.
···,

, ·It is important to bear in mind that the independence of the
-
judiciary is one of the central values on which our Constitution is
based. No other constitutional agency is shielded as are the superior
courts in our country with so many built-in safeguards. The Judges
G can, if they choose to, be guided by the doctrine of conscience only
while discharging their duties. They are not expected to be under
any, kind of external pressure. They are circumscribed by 'expecta-
tions of neutrality and impartiality' and by the traditions of the legal
profession which is always keeping a watchful eye on every action
H -1-
of a Judge. In all conntries where the rule of law prevails and the
po'wer to adjudicate upon disputes between a man and a man, a man
S.P. GUPTA v. tJNION (Venkataramiah, J.) 1293
A
and the State, a State and a State and a State and the centre is entrus·
ted to a judicial body it is natural that such body should be assigned
a status free from capricious or whimsical interference from outside
and the judges who constitute it should be granted a security of
tenure that lifts them above the fear of acting against their con-
science. B
Lord Chief Justice Sir Edward Coke is remembered with
gratitude by all who cherish the independence of the judiciary as an
inviolable part of a democratic Government. 'That when all the
other judges basely succumbed to the mandate of a sovereign who
wished to introduce despotism under the forms of juridical procedure c
Chief Justice Coke did his duty at the sacrifice of his office'. The

- extract from 11 Coke 63 which is found at pages 271 and 272 of the
'The Lives of The Chief Justices of England' by J.L. Campbell, Vol.
I (1849) shows the courage with which Coke, C.J. resisted the
attempts of Kings James I to interfere with the judicial proceedings.
Archbishop Bancroft suggested that in order to curb the indepen· D
dence of Lord Coke the King himself should commence to decide
whatever cause he pleased in his own person. Accordingly the King
summoned all the Judges before him and his Council to know what
they had to say against the said proposal. Coke, C.J. said :

"By the law of England, King in his own person cannot E
adjudge any case, either criminal, as treason, felony, or
betwixt party and party concerning his inheritance or
goods ; but these matters ought to be determined in
some court of justice . -"

Hearing this, King James asked ; F
"My Lords, I always thought, and by my soul I have
often heard the boast, that your English law was
founded upon reason. If that be so, why have not I
and others reason as well as you the Judges ?"
G
Coke, C.J. replied :

"True it is, plea~e your Majesty, that God has endowed
your Majesty with excellent science as well as great
gifts of nature ; but your Majesty will allow me to say, H
with all reverence, that you are not learned in the laws
of this your realm of England, and I crave leave to
1294 SUPREME COUllT REPORTS (1982] 2 s.C.R

A remind your Majesty that causes which concern the
life or inheritance, or goods or fortunes, of your subjects
are not to be decided by natural reason, but by the
artificial reason and judgment of law, which law is an
· art which requires long study and experience before
that a man can attain to the cognizance of it. The law
B is the golden met-wand and measure to try the causes
of your Majesty's subjects, and it is by the law that
your Majesty is protected in safety and peace."

The foregoing demonstrates the true role of a Judge in a
c country where rule of law prevails.

Speaking on the Judge's Remuneration Bill in the House of

D
Commons in March, 1954 Sir Winston Churchill, the then Prime
Minister of, England observed in the course of his speech thus :

·"The principle of the complete independence of the
-
Judiciary from the Executive is the foundation of many
things in our island life. It has been widely imitated
in varying degrees throughout the free world. It is
perhaps one of the deepest gulfs between us and all
forms of totalitarian rule. The only subordination which 1
E a judge knows in his judicial capacity is that which he
owes to the existing body of legal doctrine enunciated
in years past by his brethren on the bench, past and
present, and upon the laws passed by Parliament which
have received the Royal Assent. The judge has not
only to do justice between man and man. He also-
F and this is one of his most important functions consi-
dered incomprehensible in some large parts of the
world-has to do justice between the citizens and the
State. He has to ensure that the administration con-
forms with the law, and to adjudicate upon the legality
of the exercise by the Executive of its powers. The J
G relations between the Judiciary and the Legislature are
also exceptional and privileged. Parliament has delibe-
rately maintained the judges in a special position, not
only by charging their salaries to the Consolidated
Fund so that they do not fall within the annual
H scrutiny of Parliament, but also by eschewing any
claim to criticise a judge's conduct in his judicial capa-
S.P. GUPTA v. UNION (Venkataramiah, J.) 1295

city except on a specific Motion for an Address to the
A
Crown for the judge's removal. That has worked, as
-I far as one can see, without any adverse comment as
long as any of us can remember.

B
Parliament has a vital interest in the efficiency and
the integrity of the bench because Parliament and the
Judiciary are interdependent and, from different angles,
they exercise and enforce their control upon the Execu-
tive. Parliament decides what the law shall be and
the judges decide what, in fact, Parliament has made
it. The labours of Parliament in enacting the law
c
depend for their effectiveness very largely on the fact

- that there is behind Parliament an independent judi-
ciary applying and enforcing the law with high integrity
and a great measure of common sense and knowledge
of daily life, and with high professional skill, an apply- D
ing it in conformity with the intention of Parliament.
Perhaps only those who have led the life of a judge can
know the lonely responsibility which rests upon him.
In criminal cases, and in some civil cases, be may have
the assistance of a jury, but it is on bis shoulders that
even in these cases the heaviest burden lies. In other E
cases in which the honour and fortune of citizens are
at stake, be has the sole responsibility of decision, and
a heavy one it must be.

..... The service rendered by judges demands the highest F
qualities of learning, training and character. These quali-
ties are not to be 'assured in terms of pounds, shillings
and pence according to the quantity of work done. A
form of life and conduct far more severe and restricted
than that of ordinary people is required from judges
and, though unwritten, has been most strictly observed. G
They are at once privileged and restricted. They
have to present a continuous aspect of dignity and
conduct."

H
(Parliamentary Debates-Commons (1953-54) Vol. 525
at p. 1062)
1296 SlJPRBMB COlJRT REPORTS (1982) 2 S.C.R.

A Moving the very same Bill in the House of Lords the Marquess
of Salisbury described the high esteem in which Parliament regarded
the judiciary thus :

"But even Parliament has put Judges in a very special
position. It has taken the precaution, as we all know,
B
of charging their salaries on the Consolidated Fund, so
that they are not subject to the annual scurtiny of
Parliament ; it has also eschewed the right to criticise
Judges in their judicial capacity. Parliament, which
represents the British people, the whole electorate of the
c , country, has throughout history been at special pains
to protect the independence of the Judiciary. This, I
should have thought, was both natural and right. After
all, the legislation that rules our lives is, in fact, the
, joint creation of Parliament and the Bench ; Parliament
decides what the law ought to be, and the Bench
-
D decides what in fact it is. As I see it, the work of
, . Parliament largely depends for its effectiveness on the
fact that both Parliament itself and the individual
. citizens of the country know there is behind it the
• 'Judiciary, which not only applies and enforces the law,
!but interprets it, where necessary, with high integrity
E and vast professional skill. I imagine that there can
, . be no profession where professional skill based on I ong
experience is more necessary than in the case of the
Judiciary."

F
(Parliamentary Debates-Lords (1953-54) Vol. 186 at
'P· 1019)
.
The foregoing shows the importance of the independence of
the Judiciary in our body-politic. r
G The next point which requires to be examined is whether an
additional Judge who is appointed for a specified term and who is
not reappointed after the expiry of the said term can complain
before a court of law about his non-appointment. In other words
I
whether such an additional Judge has any judicial remedy at all if
H he is aggrieved by the Government not appointing him as additional
Judge for a further term or as a permanent Judge is the question
which has !o be considered here. Ordinaril~ wherever there is a
s.P. GtJPTA v. UNION (Venkataramiah, J.) 1297

.right there should be a remedy, otherwise the right would be without A
meaning. On a fair construction of Article 224(1) of the Constitu-
tion which enables the President to appoint an additional Judge for
a period not exceeding two years and of Article 217(1) of the Cons-
titution which limits the tenure of an additional Judge appointed to
the period specified under Article 224(1), it is not possible to make
a declaration that an additional Judge should be deemed to have B
been appointed as a permanent Judge on the ground that Y.hen his
appointment was made under Article 224 (l) it was necessary for
the President to appoint a permanent Judge in view of the quantum
of work pending in the High Court concerned and not an additional
Judge. The warrant of appointment has to be construed in accor-
dance with the unequivocal language in which it is couched and
c
nothing more can be read into it. The Constitution does not con-

- fer any right upon an additional Judge to claim, as of right, that he
should be appointed again either as a permanent Judge or as an
additional Judge. There is no such enforceable right. A court of
law has no power to give effect to any right not recognised by law. D
It is also not the function of a court of justice to enforce or give
effect to moral obligations which do not carry with them legal or
equitable rights. It seems to be a very formidable proposition in-
deed to say that any court has a right to enforce what may seem to
it to be just, apart from the Constitution and the laws.
E
As an aid to the construction of the relevant Articles of the
Constitution and in particular Article 217, and Article 224 of the
Constitution, it is urged, that the British constitutional convention
regarding the tenure of Judges should be adopted. Elaborating this
contention, it is urged that in England there are no Judges who may
be equated with additional or acting Judges. "All the superior F
Judges other than the Lord Chancellor hold office during good
behaviour subject to a power of removal by His Majesty on an
address presented to His Majesty by both Houses of Parliament".
This bas been the accepted legal position since the Act of Settle-
ment 1700 and it is so formulated with the object of securing the
independence of the judiciary. By a constitutional convention the
G
procedure for removal of a Judge by the presentation of an address
has been evolved. Since the independence of the judiciary is an
integral part of the scheme 'of the Indian Constitution it is argued
that whatever constitutional conventions are prevalent in England H
whose system we have adopted in creating an independent judiciary
free from executive interference should be followed while interpret-
1298 SUPREME COURT REPORTS [1982] 2 s.c.R.
A ing the words of Article 217 and Article 224 of the Constitu-
tion. It is argued that when once a Judge is appointed to the
High Court under Article 224(1) of the Constitution as an additional
+
Judge by following the procedure of consultation prescribed in
Article 217, he should either be appointed as a permanent Judge if
a vacancy arises before the end of his tenure fixed pursuant to
B Article 224(1) which cannot exceed a period of two years or re-
appointed as an additional Judge before the end of that period if
the arrears of work in the Court to which he is appointed are such
that there is a need to have an additional Judge for a further period.
It is urged that when the occasion to appoint such additional Judge
as a permanent Judge or as an additional Judge, as the case may be,
c arises even though consultation with the functionaries specified in
Article 217 of the Constitution should again be followed, the consul-
tation on that occasion should be limited to the existence of a
vacancy of a permanent Judge or the existence of arrears, as the
case may be, and not to any other question which may be relevant
at the time of the initial appointment. In other words, the argu-
-
D
ment is that the consultation on the second occasion cannot relate
to the capacity, integrity, behaviour etc. of the additional Judge
and any other view, according to the petitio.ners, would be opposed
to the spirit of the constitutional convention which should be follo-
wed in such a case as otherwise the whole process would be vitiated
E on account of the scope it gives for executive interference. Alter-
natively, it is urged that since almost all the additional Judges
appointed after 1956 have been later on absorbed as permanent
Judges, it should be held that a constitutional convention to appoint
every additional Judge as a permanent Judge has come into exis·

F
tence and that such convention should be enforced by courts.

About the applicability of the principle of judicial independence
-
embodied in the provisions relating to the tenure of Judge in the Act
of Settlement, 1700, reference may be made here to Terrell v. Secretary
of State for the Colonies & Anr.( 1) In which a similar contention
G was urged in support of the case of the claimant therein. In 1930,
the claimant, then in his 49th year was offered an appointment as a
puisne Judge of the Supreme Court in Malaya. By a letter written
on behalf of the Secretary of State, the claimant was informed that
the qualifying term for a pension was seven years and that the com-
fl
(1) [1953] 2 Q.B. 482,
~.1>. GUPTA v. \:JNiON (Venkataramiah, J.) 1299

pulsoty retltlng age In the case of a Judge was 62, and the claimant A
accepted the appointment on those terms. In 1942, while the claim-
ant was on leave in Australia, Malaya was occupied by the enemy
and the Letters Patent appointing the claimant, of which there was
no copy and those relating to other Judges, were lost or destroyed.
.,.... On April 7, 1942, the claimant was informed that the Secretary of
-

State could not justify retaining him now that his post was necess- B
arily In abeyance and there was no alternative but to award him
pension on abolition of his office and the claimant's appointment,
accordingly, ended on July 7, 1942, 17 months before h:s 62nd birth-
da)'. On the question whether the claimant was liable in law to be
required to retire before the age of 62, it was contended that the
principle of judicial independence embodied in the Act of Settlement,
c
1700, was to be regarded as part of the law of the Straits Settlements,
and that therefore the claimant held office duri11g good behaviour
and could not be removed; alternatively, that if he had been appoin-
ted during pleasure, the correspondence between the claimant and the
Secretary of State constituted a contract enforceable against the
D
Crown that the Crown would employ him until he attained the age
of 62. It was held by Lord Goddard, C.J. that the provisions of the
Act of Settlement relating to the tenure of office of Judges of the
Supreme Court in England did not apply to the Straits Settlements
or to any other colony; it was for the Crown by exercise of the
prerogative or Parliament by statute to set up courts in an acquired E
territory, and the conditions under which Judges of those courts held
office depended upon the terms on which the Crown or Parliament
established them. Secondly, that it was clear from a consideration
of the Straits Settlements Act, 1866, Royal Letters Patent of 1911
which instructed the Governor that he might appoint Judges to hold
office during His Majesty's pleasure, and the Royal Warrants rela- F
ting to the courts in the Straits Settlements that Judges held office
during the Royal pleasure; accordingly, the claimant having been
appointed by Letters Patent issued pursuant to a Royal Warrant
which following the terms of the Letters Patent of 1911, held office
during the Royal pleasure. Thirdly, that it was a rule of law that
once it was established that the Crown had the right to dismiss at
G
pleasure, that right could not be taken away by any contractual
arrangement made by an executive officer or department of State; a
Judge appointed during pleasure was in no way in a different posi-
tion from the point of view of dismissal from that of any other per-
son in the Service of the Crown; having been appointed to hold H
office during pleasur<; !10 9orrespondence whi9h took place b~for~ or
1300 SUPREME COURT REPORTS f1982] 2 s.c.R.
A
after the claimant's appointment could affect the terms of appoint-
ment; accordingly, the termination of the appointment by the
Crown was justifiable in law. It is thus seen that the English court
did not extend the benefit of the Act of Settlement, 1700, to a Judge
appointed in a British colony. It is more difficult to extend the
B benefit of that Act to Judges functioning in an independent country,
like India governed by its own Constitution, even though the same
pattern of administration of justice is continued even now as it was
in the British India.

c The nature of constitutional conventions, understandings and
practices, according to A.V. Dicey "Make of a body, not of laws,
but of constitutional or political ethics". They are not enforced or
recognised by the courts. Freeman writes in his 'Growth of the
English Constitution (1872)' that when an Englishman speaks of the.
conduct of a public man being constitutional or unconstitutional, he
-
D means something wholly different from what he means by conduct
being legal or illegal'. Constitutional conventions in England are
those which mainly govern the exercise of the royal prerogative.
'The right to dissolve or to convoke Parliament, to make peace or
war, to make new peers, to dismiss a minister or to appoint his suc-
cessor, even though vested in the Crown is always regulated in accor-
E dance with the wishes of the ministry. A ministry which is out voted
on any vital question in the House of Commons is bound to retire
from office is an important constitutional understanding which is
invariably obeyed. The aim of these precepts is to secure that Parlia-
ment or the Cabinet shall in the long run give effect to the will of
that power which in modern England is the true political sovereign
F of the State-the majority of the electors or (to use popular though
not quite accurate language) the nation'. A convention is a rule of
constitutional practice which is neither enacted by Parliament as a
formal legislation nor enforced by courts, yet its violation is conside-
red to be a serious breach of constitutional morality leading
to grave political consequences to those who have indulged
G in such violations. They are, according to 0. Hood Phillips, 'rules
of political practice which are regarded as binding by those to whom
they apply, but which ......... are not enforced by the courts or by the
Houses of Parliament'. Constitutional conventions, understandings,
or practices therefore constitute a source of constitutional law or.
H binding rule of conduct though not enforced by courts. The true
position'.may be summarised thus_:-
S.P. GUPTA v. UNION (Venkataramia,h, J.) 1301

"The people as a whole, and Parliament itself, A
recognise that under the unwritten Constitution there
• are certain established principles which limit the scope
of Parliament. It is true that the courts cannot enforce
these principles as they can under the Federal system
in the United States, but this does not mean that these
Principles are any the less binding and effective." B
-Prof. A:L. Goodhart.

The conventions are evolved over a long period of political
experience and are capable of regulating the operation of political
power and are largely relied on particularly in those countries where c
there are no written Constitutions. They, however, vary from country

- to country in the Commonwealth. In India we have incorporated
some of the conventions in the Constitution itself which has establis-
hed a Parliamentary form of Government. Articles 74, 75, 77, 85
and 117 contain some of the British constitutional conventions in a
modified form. But apart from those conventions which are incor- D
·+
porated in the Constitution, there may be some conventions which
are followed by those in office out of political necessity. The latter
however are not capable of enforcement in courts. The courts are
. not concerned with the 'Constitutional practices' which are outside
the Constitution. It is, therefore, difficult t_o make a declaration on
the basis of any constitutional convention not found in the Constitu- E
tion that an additional Judge who was appointed after following the
same procedure prescribed for appointment of a permanent Judge
should be deemed to have been appointed as a permanent Judge
because the circumstances warranted the appointment of a perma-

- nent Judge at the time of his appointment, contrary to the express
and unequivocal language of the warrant of his appointm.ent.

I must confess before proceeding further that the above argu-
F

ment appeared to· be very attractive at one stage but on closer scru-
tiny it has to be rejected. In doing so I am influenced in no small
measure by the following observations made in.the dissenting opinion G
of Justice Holmes in Northern Securities Co. v. United States.( 1 )
Justice Holmes said :-

{I) 193 U.S. 197 400·401 : 48 L El:\-. ~79,~ 7t6.,
1302 SUPREME COURT REPORTS [1982) 2 s.c.R.

A "Great cases like hard cases make bad law. For
great cases are called great not by reason of their
real importance in shaping the law of future; but
because of some accident of immediate overwhelming •
interest which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind
B of hydraulic pressure which makes what previously
was clear seem doubtful and before .which even well
settled principles of law bend."

But the question is whether an additional Judge can apply to
c the Court to direct the Government to consider his case for such
reappointment having regard to the situation in which he is placed •
and the circumstances surrounding his case. This has presented
some unusual difficulty in answering it. A rule of practice should,
according to some legal philosophers who are principally concerned
with what the law ought to be, be treated as binding if it is fair and
D operates in a fair society and if it involves mutual benefits to the
participants, so ~hat the party who receives or expects to receive
benefits, must in his turn be willing to render benefits according to
the practice, because such practice gives rise to expectations, which
when violated would result in harm to .one or the other. These
philosophical reasons may appeal to the sense of morality but while·
E interpreting the Constitution, it has to be seen whether there is any
room for concluding that an enforceable right has come into exis-
tence as a consequence of such practice.

Prof. P.S. Atiyah, who has tried to analyse the nature of

-
promissory obligations in the light of the theories of 'promising'
F associated with the natural lawyers, the utilitarians and a number
of other legal philosophers in his book entitled 'Promise, Morals
and Law, (1981), Oxford, observes at pages 141-142 thus:

"Some philosophers have recognised that the binding
G force of promises may vary in a similar sort of way,
but the implica.tions of this have not (I think) been
properly grasped. At the lowest, recognition of these
differing degrees of bindingness must involve acceptance
that pure expectations are not generally thought
H deserving of a high degree of protection and in
some cases are not thought worthy of protection
at
'
all".
'
S.P, GUPTA v. UNION (Venkataramiah, J.) 1303

If this is the position in the case of laws relating to promises A
of private individuals, the position in the case of an appointment
under the Constitution would be weaker still unless there is any
provision in the Constitution which expressly or by necessary
intendment binds the authority concerned to act in a particular
way.
B
When the Chief Justice of a High Court feels that a member
of the Bar should be invited to accept the post of a Judge of the
High Court, after obtaining the consent of such advocate, he
recommends that his case may be considered for appointment as a
permanent or as an additional Judge depending on the vacancy
which has to be filled up by such appointment. It is stated that in
c
some High Courts including the Delhi High Court an undertaking
would be taken from the advocate concerned when his name is
recommended for th~ post of an additional Judge that he would
accept the post of a permanent Judge if offered before the expiry of
· the term of appointment as additional Judge. Even though such D
practice of taking an undertaking is not shown to be prevailing in all
the High. Courts, it is seen that a suggestion had been made by
K.N. Waochoo, Chief Justice of India, in 1967 that such an under-
taking should be taken. K.N. Wanchoo, C.J. recorded a note on
June 29, 1967 as follows :-
E
"When a member of the Bar is appointed Additional
Judge, it must be with a view to making him permanent
in the course. If that is not possible, additional
judgeship should not be offered to · a member of the

- Bar. I agree therefore that an undertaking should
be taken from the members of the Bar that they will
accept a permanent judgeship when offered to them in
due course ... "
F

•
As stated elsewhere the prov1S1on for appointment of addi-
tional Judges was included in the Constitution by the Constitution G
(Seventh Amendment) Act, 1956. From that time onwards nearly
500 persons have been appointed as Judges of High Courts.
About one-fifth of them were initially appointed as permanent
Judges and the rest were appointed initialy as additional Judges for
• -'!l. a certain term and thereafter appointed as permanent Judges. H
Some of them were appointed as additional Judges twice or thrice
before they were made permanent. Only a few of ~the!ll]~were inc;t"
•' ·~ . • • • " •• ... . ' ' •' I
1304 SUPREME COURT REPORTS {1982] 2.s.c.R.

A made permanent, either because they had attained the age of
retirement or they had resigned or for some other reason. The
number of persons who were not made permanent on the ground·
that they were found unfit when their cases for reappointment were
considered appears to be almost insignificant as it may not be more
than five. But at no time the action of the Goverqment in not
B reappointing an additional Judge as a permanent Judge was ques-
tioned before any Court as it is now done in these cases.

What is to be noticed is that in almost every High Court a t
few posts have been kept as sanctioned posts of additional Judges
c as if they were part of the total strength. The result has been that
unless all the sanctioned posts of additional Judges and at least one
post of a permanent Judge have fallen vacant at a given point of
time any new Judge appointed on that occasion being the junior
most has to be appointed as an additional Judge and the later no
appointed as a perman~nt Judge when a vacancy arises in the per·
D manent · strength after all other additional Judges senior to him
have been absorbed as permanent Judges. Such a thing could not
have happened before the Constitution (Seventh Amendment) Act,
1956 came into force. At that time every Judge of a High Court
had to appointed only as a permanent Judge without any need for
scrutinising his case again for purposes of reappointment as addi-
E tional Judge or permanent Judge.

From the information made available to the Court, it appears
that subject to just exceptions in almost all the High Courts if a
realistic review of the present strength is made the total number of
F permanent Judges needed '¥ill be much' more than the existing num-
ber of permanent Judges and additional Judges. This must have
been the position for some years past. But still instead of increa-
sing the number of posts of permanent Judges and making appoint- •
ments to them the practice of. inducting a new member as an addi-
tional Judge first and making him permanent later on has been
G continued quite contrary to the letter and spirit of Article 216 and
Article 224(1) of the Constitution. .Since - invariably an additional
Judge has been appobted as a permanent Judge in due course ex-
cept in some rare cases, every member who is appointed as an addi-
tional Judge and who has not completed the age of retirement ex~
H
pects that he will be made permanent as and when a vacancy arises
jn the permanent. strength
~ ' . . and will be continued as an additional.

•
,
~.!.>. GUPTA v. UNION (Venkataramlaii, J.) H0.5

Judge by fresh appointments until such vacancy arises provided the A
arrears in the High Court requiring his 'continuance as an additional
Judge persist. It cannot be said that such e~pectation on the part
. of an additional Judge is not well founded. In addition to such
settled expectation on the part of the additional Judge, as the learn-
ed Attorney-General has submitted, even on. the part of the
Government there has always been reluctance to send back an B
additional Judge to the Bar after the completion of his term speci-
fied under Article 224(1) and to lose the services of a Judge with
experience, These twin factors namely the expectation on the
part of the additional Judge and the reluctance on the part of tbe
Government distinguish the case of an additional Judge from
the case of a new member who may be a competitor for the same c

-
post at the termination of the tenure of the additional Judge. Ordi-
narily the additional Judge is continued in service as a Judge or as
an additional Judge unless there· are any relevant circumstances
which would outweigh the above mentioned factors. · In the absence
of any such cogent reasons for not appointing him again, the
D
appointment of somebody else in his place would be an unreason-
able or perverse act which entitles an additional Judge to move the
Court for appropriate relief in the peculiar circumstances in which
Article 224(1) is being operated tillnow.

At this stage an allied contention · urged in this connection
E
may be disposed of. That contention is that an additional Judge
cannot be dropped without 'giving him a reasonable opportunity of
being heard in accordance with the principles of natural justice.

- We do not find any merit'in ·this contention since the wide 'discre-
tionary power of appointment exercisable by the President in the
public interest under Article 217(1) is indicative of the absence of a11
obligation to act judicially. (Vide Para 65 Vol. I of Halsbury's
F

Laws of England (4th Edn.) ). It is seen from the language of that
Article that the Constitution has evinced an intention to exclude the
operation of the rule of audi alteram partem by conferring on the
President unfettered discretionary power subject only to the pres- G
cribed procedure of consultation mentioned therein. (Vide Para
74, Vol. I of 'Halsbury's Laws of Eugland' (4th Edn.) ). Having
regard to the high office to which appointment has to be made
under Article 217( I) of the Constitution and to the association of
the high dignitaries who have to be consulted before any such H
appointment is made the application of principles of natural justice
as of right is ruled out and non-compliance with such principles
1306 SUPREME COURT REPORfS (1982) 2 s.c.A.

A would not vitiate the decision. But it may still be shown on the
available material that there was no cogent reason for the decision.

It is argued on behalf of the Government that there is no pre-
cedent in administrative law to such a conclusion being reached.
B There cannot be a precedent in England, in the United States of
America and in Australia as there are no additional Judges in those
countries of the type we are having in India and in India too we do
not have a precedent because no such case has come up before the
Court so far. This case is indeed an extra-ordinary one. This
Court however, is under a duty to do complete justice when
c a matter comes before it. What kind of relief should be
granted in such a case is governed by the facts and circumstances of
· the case and the legal provisions governing it. If the problem is a
new one a new solution has to be evolved. A Judge who has culti-
vated assiduously a sense of right and wrong sometimes may even
depend upon his hunch while moulding the relief to be granted in a
-
D given case. It is a part of the judging process. The following
words of Judge Hutcheson are illuminating indeed. He tells us :

"I must premise that I speak now of the judgment
or decision, the solution itself, as opposed to the apo-
E logia for that decision; the decree, as opposed to the
logomachy, the effusion of the judge by which that
decree is explained or excused ..... The judge really
decides by feeling and not by judgment, by hunching
and not by ratiocination, such ratiocination appearing

F
only in the opinion. The vital motivating impulse
for the decision is an intuitive. sense of what is right or
wrong in the particular cases; and the astute judge,
having so decided, enlists his every faculty and bela-
-
bors his laggard mind, not only to justify that intuition
to himself, but to make it pass muster with his critics.
Accordingly, he passes in review all of the rules, prin-
G ciples, legal categories, and concepts "whi9h he may
find useful, directly or by an analogy, so as to select
from them those which in his opinion .will justify his
disired result."
H
(See Jerom·e Frank : 'Law and the Modern Mind
(1963) p. 112).
Ii.fl. otJMA v. bi;iOJ.; {Venkatarainiah, J,j i3o1
A
The following observations of Denning, L.J. (as he then was)
in.Candler v. Crane, Christmas & Co., (1 ) though in the minority are
also relevant here. He observed :

"This argument about the novelty of the action 8
does not appeal to me in the least. It has been put
forward in all the great cases which have been mile-
_,, stones of progress in our.law, and it lias always, or
nearly always, been rejected. If you read the great
cases of Ashby v. White (1703) 2 Ld. Raym, 938,
Pasley v. Freeman (1789) 3 Term Rep. 51 and Donogue c

- v. Stevenson (1932) A.C. 562, you will find that in each
of them the judges were divided in opinion. On the
one side there were the" timorous souls who were fear·
ful of allowing a new cause of action. On the other
side, there were the bold spirits who were ready to
allow it if justice so required. It was fortunate for the D
common law that the progressive view prevailed."

y
If a progressive view was possible in the English Common
Law it should not be difficult to evolve solution in India under th'e
Constitution to do justice within the bounds of law provided the E
case calls for legal redr~ss.

On the facts and in the peculiar circumstances of the case, the
... only thing which the Court can do here is to examine the material
F
before it in order to ascertain whether the refusal to reappoint the
additional Judge concerned is based on any relevant grounds or not
and to mould the relief on the basis if the finding on the above
question by applying the relevant principles of administrative law.
Any relief beyond this would be impermissible in view of the langu-
age of the relevant provisions of the Constitution. It is however G
made clear that even this limited enquiry is made possible only on
account of the wrong application of Article 224(1) of the Constitu-
tional all these years. A similar enquiry may not be possible in the
case of additional Judges to be appointed hereafter.
H
(l) [1951] 2 K.B. 164 @ 178.
· i3o8 SUPREME couk't REPORTS [ 1982) 2 s.C.ll

A PART VII

It is interesting to trace the history of the provision relating to
the transfer of Judges from one High Court to another. The Draft
Constitution of India did not contain any provision providing for
such transfer. Clause (c) of the proviso to Article 193 (1) of the
B Draft Constitution merely stated that ·the office of the judge shall, be .. .,..
vacated by his being appointed by the President to be a Judge of the
Supreme Court or of any other High Court. When two members
of the Draft Constituent Assembly Shri R.R. Diwakar and Shri S.V.
Krishnamurthy Rao moved an amendment to clause (1) of Article •·
193 of the Constitution for adding clause (d) which read as "(d)
c every judge shall be liable to be transferred to other High Courts"
it was recorded that there was no need for the amendment as clause
le) of Article 193 (I) of the Constitution provided that the office of
a judge shall be vacated by his being appointed to be a judge of
another High Court. Perhaps the present Article 222 of the Consti·
tution was not in view at that stage. (See B. Shiva Ra,0 : 'The
o. Framing of India's Constitution', Vol. IV p. 165). The note made
by the Drafting Committee on the proposal of the Home Ministry
that a convention should be established whereby a proportion of
·judges in every High Court could be recruited. from outside the '(
Province stated that there was no bar to the recruitment of Judges
of High Court in any Province from outside the Province or to the
E transfer of a judge of a High Court to another High Court and a
convention might be established where by a proportion of judges of
a High Court could be recruited from outside the Province. (B.
Shiva Rao: 'The Framing of India's Constitution', Volume IV,
p. 166). In view of the suggestions made in the course of the
F discussion on the Draft Constitution, the Drafting Committee incor-
porated in the Revised .Draft, Article 222 which read as follows : -
"222. (I) The President may transfer a Judge from one
High Court to any other High Court within the terri-
tory of India.

(2) When a Judge is so transferred, he shall,
during the period he serves as a Judge of the other
Court, be entitled to receive in addition to his salary
H such compensatory allowances as may be determined
by Parliament by law and until so determined, such
S.P. GUPTA v. UNION (Venkataramialt, J.) 1309

A
compensatory allowance as the President may by order
fix."

In the letter dated November 3, 1949, forwarding the Revised
Draft to the President of the Constitutent Assembly referring to
the newly added Article 222, ·the Dra.fting Committee observed B
thus:

"Article 222 (new) : We have proposed the insertion
....
of this new article to enable the President to transfer
a judge of a High Court from one High Court to
another. The present provision in the Constitution c
would not permit of any compensatory allowance being
given to judges on such transfer. Power has accordingly
been reserved to Parliament to determine by law the
compensatory allowance to be paid in case they are so
transferred, and, until Parliament so determines, to
the ·President to fix by order the quantum of such D
allowance."

y It may be seen that Article 222 (1) which was incorporated in .
the Revised Draft gave the power to the President to transfer a Judge
from one High Court to another without any obligation to consult E
any other functionary before doing so. Bat on. the 16th November,
1949 an amendment to that Article was adopted by the Constituent
Assembly which required. the President to consult the ·chief Justice
of India before exercising the power of transfer. Article 222 (I)
was finally enacted as follows :
F
"222. (l) The President may, after consultation with
the Chief Justice of India, transfer a Judge from one
High Court to any other High Court within the terri-
tory of India".

Clause (2) of Article 222 was adopted in the form in which it
G
had been proposed in the Revised Draft as set out above. Conse-
quently Article 217 was also suitably amended by introducing the
word 'transferred' in proviso (c) to clause (I) thereof. In defence of
Article 222 and in particular of clause (2) of that Article providing H
for payment of compensatory allowance to a Judge who is trans-
ferred from one High Court to another High Court, Dr. D.R.
1310 SUPREME COURT REPORTS (1982) 2 S.C.R.
'
A Ambedkar spoke in the Constituent Assembly before Article 222
was passed thus :

"The only question that we are called upon to consider
is when a· person is appointed as a Judge of a High
B Court of a particular State, should it be permissible for
the Government to transfer him from that Court to a
High Court in any other State ? If so, should this
transfer be accompanied by some kind of pecuinary
allowance which would compensate him for the mone-
•·
tary loss that he might have to sustain by reason of the
c transfer ? The Drafting Committee felt that since 'all
the High Courts so far as the appointment of judges
. is concerned form now a central subject, it was desira-
ble to treat all the judges of the High Courts through-
out India as forming one single cadre like the l.C.S.
and that they should be liable to be transferred .from
D one High Court to another. If such power was not
reserved to the Centre the administration of justice
might become a very difficult matter. It might be
necessary that one judge may be transferred from one
High Court to another in order to strengthen the High
Court elsewhere by importing better talent which may
E not be locally available. Secondaly it might be desirable
to import a new Chief Justice to a High Court because
it might be desirable to have a Il!an who is unaffected
by local politics and local jealousies. We thought there-
fore that the power to transfer should be placed in the
· hands of the Central Government.
F
We also took into account the fact that this power
of transfer of judges from one High Court to another
may be abused. A Provincial Government might
like to transfer a particular judge from its High Court
because that judge had become very inconvenient to
G
the Provincial Government by the particular attitude
that he had taken with regard to certain judicial matters
or that he had made a nuisance of himself by giving
decisions which the Provincial Government did not
H like. We have .taken care that in affecting these
transfers no such considerations ought to prevail.
Transfers ought to take place only on the ground of
S.P. GUPTA v. UNION (Venkataramiah, J.) 1311

convenience of the general administration. Consequen- A
tly, we have introduced a provision that such trans-
fers shall take place in consultation with the Chief
Justice of India who can be trusted to advise the
Government in a matter which is not affected by local
or personal prejudices.
B
The only question, therefore, that remained was
whether such transfer should be made so obligatory
as not to involve any provision for compensation for
loss incurred. We felt that that would be a severe
hardship. A judge is generally appointed to the High c
·court from the local bar. He may have a household
,, there. He may have a house and other things in which
he will be personally interested and which form his
belongings. If he is transferred from one High Court
to another obviously he cannot transfer all his house-
hold. He will have to maintain a household in the D
original Province in which he worked and he will have
to establish a new household in the new Province to
which he is transferred. The Drafting Committee felt
therefore justified in making provision that where such
transfer is made it would be pt rmissible for parliament
to allow a personal allowance to be given to a judge so E
transferred. I contend that there is nothing wrong
in the amendment .proposed by the Drafting Com-
mittee."

FI
--. (The Constituent Assembly Debates, Vol. 11 (1949)
pages 580-581)

But by the Constitution (Seventh Amendment) Act, 1956, the
words "within the territory of India" in clause (I) of Article 222
and the whole of clause (2) which provided for payment of compen-
G
satory allowance to a transferred judge were omitted. By the Cons-
titution (Fifteenth Amendment) Act, 1963, a new clause (2) was
introduced into Article 222. After this amendment, Article 222 of
the Constitution reads thus ;

"222. (l) The President may, after consultation with H
the Chief Justice of India, trans(er a Judge from one
High Court to any other High Court.
•
1312 SUPREME COURT REPORTS (1982) 2 s.C.R.

A (2) When a Judge has been or is so transferred he
shall, during the period he serves, after the commence~
ment of the Constitution (Fifteenth Amendment) Act,
1963, as a Judge .of the other High Court, be entitled
to receive in addition to his salary such compensatory
allowance as may be determined by Parliament by law
B and, until so determined, such compensatory allowance
as the President may by order fix."

This leads to the question whether under Article 222 of the
Constitution, the consent of a Judge of a High Court is necessary to
c transfer him from one High Court to another High Court. The
majority judgment of this Court in Union of India v. Sakal Chand
Himatlal Sheth and Anr.(1 ) holds that the consent of a Judge for
his transfer from one High Court to another High Court is necessary.
It is, however, contended before us that the said interpretation of
Article 222. is erroneous as it would affect adversely the independence
-
D of the judiciary. It is significant that Article 222 does not state
in express terms that the consent of the Judge concerned is a
pre-requisite for his transfer. In places where consent of a
Judge is needed the Constitution has stated that such consent
)
should be obtained from the Judge concerned (vide proviso to
Article 128 and proviso to Article i224A of the Constitution).
E Under Article 127 (I) of the Constitution if at any time
there is no quorum of the Judges of the Supreme Court available
to hold or to continue any session of the Court, the Chief Justice of
India may with the previous consent of the President and after con-
sultation with the Chief Justice of the High Court concerned request
in writing the attendance at the sittings of the Supreme Court as an

' ad hoc Judge for such period as may be necessary of a Judge of a
High Court duly qualified for appointment as a Judge of the Sup-
reme Court to be designated by the Chief Justice of India. Clause
(2) of Article 127 makes it obligatory on the part of the High Court
Judge who is so designated to attend the sittings of the Supreme
Court in priority to other duties of his office at the time and for the
G period for which his attendance is required and while so attending
he shall have all the jurisdiction, powers and privileges and shall
discharge the duties of a Judge of the Supreme Court. It is signi-
ficant that Article 217 does not require the consent of the Judge to
to be. designated under Article 127(1) to be obtained before asking
H
u> [197BJ 1 s.c.R. 423.
..
!i.P. GUPTA v. UNION (Venkataramiah, J.) J 3i3

him to function as an ad hoc Judge of the Supreme Court even A
though it may involve the shifting of his residence during the period
specified in the Jetter of request sent to him under Article 127(1).
A Judge of a High Court Itlay have to be shifted from one place to
another when the reorganisation of the State· in which the High
Court is situated takes place even though such shifting may not
B
strictly amount to transfer under Article 222 (See V.B. Raju v. State
of Gujarat & Anr.) (1) and such shifting may not depend upon the
willingness of the Judge concerned. It cannot be said that any
transfer or shifting of a ~Judge without his consent would amount
to a punishment and would interfere with the independence of the
Judge concerned or of the judiciary. If the requirement of the
consent of the Judge in question is read into Article 222 then the

- power conferred on the President ceases to be a power in the juris-
prudential sense. · A power is defined by Salmond as ability con-
ferred on a person by the law to alter, by his own will directed to
that end the rights, duties, liabilities or other legal relations either
of himself or of other persons. Powers are either public or private D
The former are those which are vested in a person as an agent or
instrument of the functions of the State. We are not here conc.er-
ned with the latter class. If Article 222 is construed as requiring
the consent of a Judge to be transferred then the power of the
President can be neutralised by the Judge withholding consent.
Such a construction would virtually confer on an unwilling Judge E
an immunity against the exercise of the power by the President
under Article 222 even though public interest demands the transfer
of the Judge. Article 222 would in that case become almost
ineffective. 'That being so, such a construction has to be avoided.

- One other reason which prompts me to say so is as follows :
By way of comparison we may refer here to some of the provisions
F

of the Supreme Court of Judicature (Consolidation) Act 1925 (15 &
16 Geo. 51. c-49) of England which appears to have been used as
a model for some of the relevant provisions of the Government of
G
India Act, 1935 and of the Consiitution. Section 3 of that Act
corresponds ·to Article 224A of the Constitution. Section 7 of that
Act corresponds to Article 127 and section 8 of that Act corres-
ponds to Article 128. Section 4 (I) of that Act provides for the
establishment of three Divisions of the Hi~h Court and they are
H
P> [1981] 1 SCR 613.
SUPREME COURT REi>ollts {19821 2 s.t.tt
A now called the Chancery Division, the King's Bench Division (now
called the Queen's Bench Division) and the Family Division
(formerly known as the Probate, Divorce and Admiralty Division).
Section 4 (2) of that Act which provides for the attachment of a
puisne Judge to one · of the above said three Divisions and his
transfer from one Division to another reads :

"4. (2) The· puisne 1udges of the High Court shall be
attached to the several Divisions thereof by direction
of the Lord Chancellor and any such Judge may
with his consent be transferred by a like direction from
- one of the said Divisions to another :
c
Provided that no direction shall be given for the
transfer of a puisne judge from the King's Bench Divi-
sion or from the Probate, Divorce and Admiralty
Division without the concurrence of the President of
-
D that Division." [Emphasis added]
1
The pattern of the above section shows that if the Constitu-
tion makers intended that the transfer of a Judge from one High
Court to another under Article 222 should be with his consent, they
would have included necessary words in .Article 222. The words
E corresponding to the words "with his consent" in the above said
section 4 (2) are significantly absent in Article 222 of the Cons-
titution.

It is argued by Shri H.M. Seervai, learned counsel for the
F petitioners in Transfer Case No. 22 of 1981 that the majority
decision of this Court in Sakal Chand Sheth' s case (supra) holding
that the consent of the Judge concerned is not necessary for trans-
--
ferring him from one High Court to another High Court under
Article 222 of the ·Constitution requires to be reconsidered for the
reason that the assumption of Chandrachud, J. (as he then was) and
G Krishna Iyer, J. that there was no provision for transfer of Judges
of High Courts in the Government of India Act, 1935 is erroneous
and that every such transfer should be considered as a fresh appoint·
ment of the Judge concerned in the court to which he is transferred.
It is contended that if the effect of a transfer under Article 222 is a
H fresh appointment, the consent of the Judge so transferred should
be considered as an essential pre-requisite of every suc!J transfer. I
should sa)' !It t)le o-qtset that the aq~umerit ·is really an ingenious
.
S.P. GUPTA
I
...UNION
-
Venkafaramiah, J.) 1315
i
one, but it does not appear to have been presented in Sakal Chand A
Sheth's case (supra) in the form in which it is argued before us.

We shall examine the above contention . now urged before us
in two parts-(!) whether there was a provision for a transfer of a
Judge under the Government of India Act, 1935? and (2}, If, there
was such a provision, whether the decision of, the majority in ·Saka! B
Chand Shfth's case (supra) requires to pe rl'<;onsi<ll'el'd 7

It is true that Chandrachud, J. (as he then was) ·arid Kri~h~a
Iyer, J. have both stated in the course of their opinions that there
was no provision in the Government of India Act, 1935 providing
for the transfer of a Judge from one. High Court to . another High
c
Court and both the. learned Judges proceeded on the assumption that
under that Act the_ induction . of a . Judge of one .High Court in
another was possible only by a fresh appointment: Even Bhagwati
and Untwalia, JJ. who constituted the - minority in Sakal· Chand
• Sheth's case (supra) proceeded on the same basis. :Bhagwati.-J. D
, observed,fo that case at page473; "Neither in proviso (c) nor in any
other provision of the _Government of India Act, 1935 was the word
'transfer' used and there was also no specific pr~vision in that Act
conferring power to transfer a' High· Court Judge." Untwalia, J.
observed in that case at page 510: "Neither in proviso (c) nor in
any other section of the Government of India Act was· the word E
"transfer" used or such a power conferred in terms on the Governor-
General." It is, however, asserted before us that there was a'. pro·
vision for transfer in the Government of• India Act, 1935 : for the
following reason. Section 220 (2) of the· Government of India Act,
1935 as itwas origin~lly enacted read :___; .
F
"220.. (2). Every judge of a iligh Court shall be
appointed by His Majesty by. warrant under .. the
• Royal Sign Manual and shall hold office until he attains
. the age of sixty. years : · · -

Provided that- G
(a) a judge may by resignation under his hand
\ addressed to the Governor resign his office;

(b) a judge · may . be : removed from his office by Ji
His Majesty by warrant· under the Royal Sign
Manual on th\'. ¥round of. misb\'haviour or \lf

I
•
1316 SUPREME COURT REPORTS [1982) 2 S.C.R.

A infirmity of mind or body, if the Judicial Com-
mittee of the Privy Council, on reference being
made to them by His Majesty, report that the
judge ought on any such ground to be removed."

On October 26, 1944, the British Parliament enacted the India
B (Miscellaneous Provisions) Act, 1944 by which clause (c) was added
at the end of the proviso to sub-section (2) of section 220 of the
Government of India Act, 1935. Section 2 of the said amending
Act of 1946 read ;

c "Judges to vacate office on trransfer.

D
"2. At the end of the proviso to sub-section (2) of
- section two hundred and twenty of the principal Act
(which-relates to the term of offices of judges of High
Courts) there shall be added the following para-
-
graph:-

"(c) the office of a judge shall be vacated by his
being appointed by His Majesty to be a judge of the
Fed~ral Court or of another High Court."

E Section 6 of the said amending Act of 1944 provided that the
above amendment made by Section 2 thereof in the Principal Act
should be deemed to have been made therein immediately before the
passing thereof and thus.the newly added clause (c). of the proviso
to Section 220 (2) was given retrospective effect Then reliance ·is

F
placed on the speech of Earl of Munster made on July 4, 1944 in the
House of Lords in support of the Bill which latter became the said
amending Act, the relevant part of which read thus :-
-
"Clause 2 of the Bill makes it clear that if a Judge
of the High Court is transferred to another High Court
G or to the Federal Court, he shall not retain his office
of a judge of· the High Court from which he was
transferred. This is the only Clause which will be
retrospective. I might mention that there is a· similar
provision in Section 10 of the Supreme Court of
H ·Judicature Act, 1925 applicable to High Court Judges
in this country : (unqerlining supplied).
S.P. GUPTA v. UNION (Venkataramiah, J.) 1317

See Hansard. (Lords) Vol. 132, Col. 632 of A
July 4, 1944.

Reliance is also placed on two other. speeches made in the
Hou'se of Commons ort September 27, 1944 on the same Bill, the
relevant ,parts. of which are given below :
B
The Secretary of State for India (Mr. Amery) stated :

"The second clause clears up a doubt which had been
expressed as to whether under the provisions of the
Act a Judge transferred in India from one High
c
.. Court to another or to the Supreme Court
(sic) might not be considered as still holding his
position in his original Court. In our own Judicature
Act, 1925, that point is made Iclear in
.
Sec. 10. This
Clause simply adopts the Indian c<,indition to the
wording of our own Judicature Act." (underlining
supplied)
D

(See Hansard, (Commons) Vol. 49.3, Col. 345 of
y ' 27-9-1944).

Mr. Pethick Lawrerice also observed :
E
"With respect to the Judges, I understand the pro-
posal is merely intended to put beyond question what
was certainly the intention in regard to them. That is,

- I understand the only part of the Bill which is retros-
pective. It is simply to clear up doubts ...... "
(ibid _Col. 347)
F

The argument constructed on the basis of the above material
is that clause (c) of the proviso to section 220 (2) of the Govern-
ment of India Act, 1.935 provided for the transfer of Judge, of one
High Court to another High Court although it used the word
G
'appoint' and that is made clear by the use of the word 'transfer' in
the marginal note of section 2 of the amending Act of 1944 which
introduced the amendment. I have carefully considered the above
submission but I have to state that it requires Jot of credulity to
accept it in the circumstances of the case. The source of inspira- H
tion for this argument is easily traceable to the marginal note to
section 2 of the India (Miscellane01.~~ Provisions) Act, 1944, whi~h
1318 SUPREME COURT REPORTS (1982) 2 S.C.R.

A reads : 'Judge to vacate office on transfer'. The importance of a
. marginal note in statutory construction so far as English' statutes are
concerned appears to be very little as can be gathered from ·the
following words in Craies_ on 'Statute Law' (sixth Edn.) page 197 :-

"The side notes are not part of the Act and I believe
B
are not considered or amended by the legislature."
Lord MacNaughten in the Privy Council considered
it well settled that the marginal notes cannot be referred
to for purposes of construction, Thakurain Ba/raj
Kunwar v. Rae Jagatpal Singh (1904) L.R. 31 I.A.
c 132, 142 and Lord Hanworth M.R. referring to the
Superannuation Act of 1859, said : "It was contended
that these catchwords· could be used to explain the
meaning of sections upon which they appear. As
explt1ined:by Baggallay L. J. in Att.-Gen. v. G.E. Ry.
(supra) marginal notes are not part of an Act of Parlia-
D ment. The Houses of Parliament have nothing to do
with them, and I agree with the learned Lords Justices
in that case that case the· courts cannot look at them
Nixon v. Att.-Genl. (1930) I Ch. 566, 593".

E In Maxwell on 'The Tnterpretation of -Statutes' (12th
Edition) it is stated at pages 9-10 thus :

"The notes often found printed at the side of sections

-
in an Act, which purport to summarise the effect of
the sections, have sometimes been used as ·an aid to
F construction. But the weight of the authorities is to
the effect that they are noi parts of the 'statute and
so should not be considered, for they are inserted
not by Parliament nor under the authority of Parlia-
ment, but by irresponsible persons".

G
In 'Statutory Interpretation' by Sir Rupert Cross (1976
Edition), we have a very instructive passage explaining the rl!lative
importance of certain parts of a statute, including side notes (or
marginal notes). The learned author is of the view that although
H the long title, preamble (if any) and short title of a statute may be
described as aids to the ascertainment of the intention of Parlia·
Jllept, cross-headings, side notes (or marginal notes) and punctua-
S.P. GUPTA v. UNION (Venkataramiah, J.) 1319

tion merely indicate the intention of the dr.aftsman. He proceeds
A
• to observe at pages 107-108, 113-114 thus:

"There is a bewildering mass of conflicting dicta on
the question whether some of the above items can be
treated as aids to construction at all and, when it is
B
conceded that they may be so treated, upon their
weight. This is due to a failure to distinguish between
... two stages in the pr0cess of interpretation ·at which
the aids may be relevant. The first stage is that at
which· the judge has to decide whether he has any real
doubt about the meaning of the word, phrase or
passage which he is called upon to interpret. At this
c
point it is hard to believe that he can or should have
any inhibitions concerning the parts of the statute
which he will read. No doubt he will begin with the
section containing the wo~d, phrase or passage in dis-
. pute. He can hardly help taking account of the
punctuation and side note. If he is to fulfill his
D
duty of reading the whole Act; when it is necessary to
do so in order to determine whether there is an ambi-
guity, he must look at the long title, preamble (if any),
short title and cross-headings. If, after this perfor-
mance, the judge is satisfied that the word, phrase or E
passage the meaning of which is in . dispute really
only has one meaning in the context, he must apply
that meaning; but if he has doubts on the subject he
will think again. It is at this point that the
distinction between the enacting parts of a statute
and the other parts becomes crucial. If the
F
sole cause of doubt is a disparity between the
. otherwise clear and unambiguous words and a title,
-~- preamble, heading or side note, the judge must disre-
gard his doubts and apply the otherwise clear and
unambiguous words. This is because there is a rule G
of Jaw according to which, although the parts of the
statute which do not enact anything may be consulted
as a guide to Parliamentary intent and hence to the
meaning of the enacted word, effect must not be given
to any doubts which they may raise about the meaning H
of that word. If, howevc::r, the Jud~e has do4bts abqu~

•
1320 SUPREME COURT REPORTS [1982] 2 s.c,R.

the meaning of the statutory provision he is consi-
dering for some such other reason as-its lack of clarity
or apparent pointlessness, he may take the title,
preamble, heading or side note into consideration in
determining how those doubts should be resolved.
As we shall see, reservations have been expressed
B about the propriety of taking any of the above items
into consideration, and it is necessary to be especially
cautious when endeavouring to -state the law with
regard to the extent to which the short title and ·side -
...
notes, not to mention punctuation, may be taken into
c· consideration, but it is submitted that the following
remarks of Lord Upjohn in Director of Public Prose-
cution v. Schildkamp (1971) A.C. 1 at p. 28 amply
justify the above general account of the relevance of the
items mentioned at the beginning of this section to the
judicial process of interpretation. The remarks were
D maae with special reference to cross ·head in gs :

"When the Court construing the Act is reading it
through to understand it, it must read the cross-
headings as well as the body of the Act and that
· will always be a useful pointer to the intention of
E Parliament in enacting the immediately following
sections. Whether the cross-heading is no more
than a pointer or label, or is helpful in assisting
to construe, or even in some cases to control,
the meaning or ambit of those sections must
necessarily depend on the circumstances of each
F case and I do not think it is iJOSsible to l~y down
any rules." - '

The matter must now be considered in slightly greater
detail.

G

Side notes

Chandler v. Director of Public Proseculions(1) may
H be-cited as conclusive authority for the proposition

p) p964J A.C. 763.

•
S.~. GUPTA v. UNION (Venkataramiah, J.) 1321

that side notes (frequently spoken of as "marginal A
notes") cannot be used as aids to construction in any
circumstances. The defendants, members of the Com-
mittee of One Hundred, the aim of which was to
further nuclear disarmament, participated in a demons-
tration at an airfield with the object of grounding
all aircraft. They were charged with and convicted of
B
an offence against s. 1 (I) of the Official Secrets Act
1911 which punishes those 'who approach prohibited
places for a purpose prejudicial to the safety
of the State. The side note reads "penalties
for spying" and it was conceded that the defendants
wete not spying, but their appeal to the . House of
c
Lords was dismissed on the ground that they were
acting for a purpose prejudicial to the safety of .the
State within the meaning of s. 1(1 ). Lord Reid said : ,

D
"In my view side notes cannot be used as an aid to
construction. They are· mere catch words and I have
never heard of it being supposed in recent times that
an amendment to alter a sidenote could be proposed in
either House of Parliament. Side notes in the original
Bill are inserted by the draftsmen. During the passage E
of the Bill through its various stages amendments to it
or other reasons may make it desirable to alter a side
note. In that even I have reason to believe that
alteration is made by the appropriate officer of the
House-no doubt in consultation'with the draftsma~.
So side note cannot be enacted in the same sense as F
the long title 6r any part of the body of the Act."

In spite of its great weight, three remarks may be made
with regard to this passage. In the first place what Lord
Reid said would seem to be equally applicable to cross-
headings, yet we have just seen that this has not pre- G
vented them from being treated in much the same way
as the long title and preamble. Secondly, even iflt
is the: case that side notes cannot be called in aid in
order to resolve•doubts, it can hardly be the law that H
they are to be disregarded by the judge when he is
perusing the Act with a view to ascertaining whether
1322· SUPREME couk'i' REroRTS [1982) 2 s.c.a.
A be has any doubts. No judge can be expected to treat
something which is before his eyes as though it was
not there. In the words of Upjohn, L.J. : "While the
marginal note to a section cannot control the language
used in the section, it is at. least permissible to
approach a consideration of its general purpose and
B the mischief at which it is aimed with the note in mind.
Finally, Lord Reid's remarks in Chandler v. Director
of Public Prosecutions must be read in the light of his
subsequent remarks in Director of Public Prosecutions
v. Schildkamp [1971] A.C. 1 at p. 10 :
c
"But it may be more realistic to accept the Act as
printed as being the product of the whole legisla-
tive process, and to give due weight to everything
found in the printed Act. I say more realistic
because in very many cases the provision before
D the court was never even mentioned in debate in
either House, and it may be that its wording was
never closely scrutinised by any member of either
House. In such a case it is not very meaningful
to say that the words of the Act represent the in-
tention of Parliament but the punctuation, cross-
E headings and side notes do not."

,.
In Bhinka & Ors. v. Charan Singh, (1) Subba Rao, J. (as ke
then was) observed thus :

F
" "Maxwell on Interpretation of Statutes", 10th Edn.,
gives the scope of the user of such a heading in the
interpretation of a section thus, at p. 50 :

"The headings prefixed to sections or sets of
sections in some modern statutes are regarded as
preambles to those sections. They cannot control
the plain words of the statute but they may ex-
plain ambiguous words,"

H •
(1) [1959] Supp. 2 SCR 798@ 809.
S.P. GUPTA v. UNiON (Venkataramiah, J,) t323
If there is any doubt in the interpretation of the words A
in the section, the heading certainly helps us to resolve
that doubt."

In Indian Aluminium Company etc. v. Kerala State Elearicity
Board, (1) Bhagwati, J. Said :
B
"It is true the marginal note cannot afford any legiti- .
mate aid to a construction of a section, but it can cer-
tainly be relied upon as indicating the drift of the sec-
. tion, or, to use the. word of Collins M.R. in Bushell
v. Hammond (1904) 2 K.B. 563 "to show what the
section was dealing with"."
c

- A reading of the passages and decisions referred to above
leads to the view that the Court while construing a statute has to
read both·the marginal.notes and the body of its provisions. Whe-
ther the marginal notes would. be useful to interpret the provisions · D
and if so to what extent depends upon the circumstances of each
case. No settled principles applicable to all cases can be laid down
in this fluctuating state of the law as to the degree of importance
to be attached to a marginal note in a statute. If the relevant pro-
r visions in the body of the statute firmly point towards· a construc-
,tion which would conflict with the marginal note, the marginal note E
has to yield. If there is any ambiguity in the meaning of the pro-
visions in the body of the statute, the marginal note may be looked
-. into as an aid to construction.

The marginal note in question was not incorporated in the
Government of India. Act, 1935. Moreover, the marginal note F
-. differed in material respects from clause (c)"which was added to the
proviso to section 220(2) of the Government of India Act 1935 as
clause (c) referred to appointments to the Federal Court and to
another High Court. There could be no transfer of a High Court
Judge to the Federal Court. He could become a Judge of the Fede-
ral Court only on being appointed as such under section 200(2) G
under a separate warrant of appointment. Even in the case of High
Courts, a Judge of a High Court could become a Judge of another
High Court under the Government of India Act, 1935 only by an
appointment under section 220(2) by a warrant of appointment.
H
c1> [1976] 1 s.c.R. 10@86-81.
1324 SUPREME COURT REPORTS [1982) 2 s.c.ll.

A There was no independent provision corresponding to Article 222
of the Constitution providing for transfer in the Government of
·India Act, 1935. The Bari of Munster and Mr. Amery who spoke
in the British Parliament on the subject were probably influenced by
the marginal note in the amending Act and if I may say so got into
an error of proximity when they relied on section 10 of the Supreme
B Court of Judicature (Consolidation) Act, 1925, which established the
~upreme Court of Judicature in England consisting of His Majesty's
High Court of Justice and His ~fajesty's Court of Appea·l both of
which were in iJhe same building at the Royal Courts of Justice.
Even there section 10(2) of that Act provided that the office of any ·
Judge of the High Court would be vacated by his being appointed
c as a Judge of the Court of Appeal and the same Act used. 'trans-
ferred' in section 4(2) thereof where it was dealing with the transfer

D
of a Judge of the High Court from one Division to another Division
The Marginal note and the speeches relied on are, therefore, of-not
much use. On this slender material we cannot hqld that there was
a ·provision for transfer of a High Court Judge under the Govern-
-
ment of India Act, 1935. I am of the view that there is no error
committed by the learned Judges in stating so in Sakal Chand Seth's·
case (supra) and the decision· in that case is not liable to be reconsi-
dered on the ground now urged before us.

E It is alternatively urged that as the Constitution has used the
words 'transfer' aQd 'appointment' interchapgeably in Article 222
and in paragraph l l(b) (iii) of the Second Schedule to the Constitu-
tion, the word 'transfer' in Article 222 should be read as equivalent
to 'appointment' and a transfer of a Judge therefore results in a
fresh appointment which requires his consent. Paragraph 11 (b)(iii)
F · of the Second Schedule to the Constitution reads thus :
"11 (b) "actual service" i1Viludes

(i) ........... .

(ii) .......... ..

(iii) joining time on transfer from a High
Court to the Supreme Court or from one
High Court to another."
H The contention is that since a High Court Judge can become a
Judge of the Supreme Court only by a fresh appointment and that
S.P. GUPTA v. UNION (Venkatarami'ah, J.) • 1325
A
fo paragraph 11 (b) (iii) of the Second Schedule to the Constitution
the word 'transfer' i~ used to 'denote such appointment,' it should be
held that even when a High Court Judge is transferred to another
High Court he must be deemed to have been appointed afresh in the
Court to which he is transferred and because it is a fresh appoint-
ment his consent is necessary. as it is needed under Article 217(1). B
In support of this submission reliance is placed on another part of
Maxwell on 'The Interpretation of Statutes' (12th Edition) at page
286 where it is stated thus :

"Just as the presumption that the same · meaning is c
intended for the same expression in every part of an

- Act is not of much weight, so the presumption of a
change of intention from a change of language:__which
is of no great weight in the construction of documents-
seems entitled to less weight in the construction of a
statute than in any other case : for the variation is D
sometimes to be ·accounted for by the draftsman's
concern for "the graces of the style" and his wish to
avoid the repeated use of the same words, sometimes
by the circumstance that the Act has been compiled
from different sources, and sometimes by the alterations
and additions from various hands which Acts undergo E
in their progress 'through Parliament".

The decision in State of Bombay v. Heman Santlal Alreja( 1)
is also cited before us for our consideration in support of this con-

-I tention. In that case, the High Court of Bombay has observed at
pages 23-24 thus :
F

"The argument is very attractive and receives consi-
derable support from two different expressions used in
......\, the Constitution. It is perfectly true that the ordinary
and normal canon of construction requires that when G
we find in a statute or in a constitution two different
·expressions used, as far as possible two different mean-
ings must be given to these expressions, because it
must be assumed that the Legislature or the Consti-
tuent Assembly did not use two different expressions H
(1) AIR 1952 Bom. 16.
!326 • SUPRBMll COURT R~PORtS (1982] ~ s.c.R..
A wiihout intending to convey two different meanings.
But instances are not unknown where two different
expressions have been used to convey the same
meaning".

In the aforesaid Bombay case the learned Judges were concern-
B ed ·with the apparent difference between two expressions 'law in
force' and 'the existing law' of which the latter expression was more
compendious than the former and could include within its scope
both the former expression 'law in force' which meant Jaw actually
in force and any law potentially in operation such as law which had
'been suspended or which had not been extended to certain territories.
c The two expressions found place in Article 13 and Article 372
respectively of the Constitution. On a consideration of the relevant
circumstances, the Bombay High Court came to the conclusion that
'existing law'_ and 'la"'. in force' had been used in the Constitution .....
without any distinction or difference. We are not faced with any
difficulty in this case of the sort with which the Bombay High
D
Court had to deal in the above decision. The Constitution has
used the word 'appojntment' and 'transfer' to convey two different
senses, the first meaning the initial induction of a person into a post
and the latter meaning the shifting of a person from one post to
another equivalent post. The members of the Constituent Assembly
E were quite familiar with this distinction which was well known to
the bureaucracy at the time when the Constitution was enacted. The
following history of the legislation supports the view that the two
expressions are not used in the same sense as meaning 'appointment'
only but they mean two different concepts as stated earlier. Clause
(c) of proviso to· section 220 (2) of the Government of India Act,
F 1935 which is the earliest of the relevant clauses read as :

"(c) The office of a Judge shall be vacated by his being
appointed by His Majesty to be a Judge of the Federal
-
Court or of another High Court"

Clause (c) of the proviso to Article 193 (1) of the Draft
G
Constitution which did not contain a provision for the transfer of
High Court Judges read asfollows:

"(c) The office of the Judge shall be vacated by his
being appointed by the President to be a Judge of the
H Supreme Court or of any other High Court"
s.P. GUPTA v. UNION (Venkataramiah, J.) . 1327

In the Revised Draft Constitution which was submitted to the A
Constituent Assembly on November 3, 1949, in which a provision
for transfer had been included in Article 222, Clause (c} of the
proviso to Article 217 (!) which almost remained unaffected read
as:
B
"(c) The office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the
Supreme Court or of any other High Court in any State
specified in the First Schedule".

But on November 16, 1949 the above clause was amended at C
the stage of the third reading of the Constitution emphasizing the
difference between 'appointed' and 'transferred' and in order to
bring it in accord with Article 222 which provided for transfer of
High Court Judges. After the amendment it read as under :

D
"(c) The office of a Judge shall be vacated by his being
appointed by the President to be a Judge of the
Supreme Court or by his being transferred by the Presi-
dent to any other High Court within the territory of
of India" (emphasis added)
E
(See Constituent Assembly Debates, Vol. 11 p. 596) .
....
If the Constituent Assembly had thought that . 'appoi~ted' and
'transferred' were interchangeable, there would have been no need
for the amendment as the provision in the Revised Draft Constitu-
tion was sufficient. But it deliberately amended· the provision as ·F
stated above by distinguishing a 'transfer' from an 'appointment'.
Jf in spite of this amendment, the Constituent Assembly has allowed
paragraph 11 (b} (iii) in the Second Schedule to the Constitution to
remain as it is, it only means that it thought that the word 'transfer'
bad been used therein in a broad sense meaning a physical 'transfer'
G
of the Judge concerned which included both appointment to the
Supreme Court and transf~r to another ·High Court and that is clear
by the use of a common expression 'transfer' in respect of both the
events which follow it in that clause. Moreover, this argument now
pressed before us runs• counter to Article 222 of the Constitution H
which appears to be a complete code on the topic of transfer of a
High Court Judge. If transfer is a fresh appointment, Article 217
1328 SUPREME COUkT REPORTS [l 982) 2 s.c.k.

A (!) of the Constitution would immediately be attracted and that
provision contains an entirely different procedure of consultation
from what is contained in Article 222. I, therefore, do not find any
merit in this contention.

The next contention urged against the correctness of the
B majority decision in Sakal Chand Sheth' s case (supra) is the
one that appealed to Untwalia, J. in that case, namely,
that a transferred Judge cannot become a Judge of the High
High Court to which he is transferred without taking a fresh oath in
accordance with Article 219 of the Constitution in the form pres- •
cribed in the Third Schedule to the Cqnstitution. · The gist of the
c argument may be summarised thus : Article 219 provides that every
person appointed to he a Judge of a High Court shall before he
enters upon his office, make and subscribe before the Governor of
the State, or some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the purpose in the
Third Schedule to the Constitution. The form of the oath in the
-
D case of Judges of High Court reads :

"I, A.B . having been appointed Chief Justice (or a
Judge) of the High Court at (or of) ....... do swear
in the name of God that solemnly affirm I will
E
bear true faith and allegience to the Constitution
of India as by law established, that I will uphold the
sovereignty and integrity of India, that I will duly and
faithfully and to the best of my ability, knowledge
and judgment perform the duties of my. office without
F. fear or favour, affection or ill-will and that I will up-
hold the Constitution and the laws." -
It may be noted that the place where the High Court is
situated or the State to which it pertains should be inserted in the
blank space shown in the form of oath set out above. Clause (c)
G of proviso to Article 217 (1) of the Constitution states that the
office of a Judge of a. High Court shall be vacated by his being
appointed by the President to any . otlier High Court within the
territory of India. The argument is that since a Judge of a High
Court has to take a fresh oath when he is appointed as a Judge of
H
the Supreme Court he should also take a fresh oath when he is
transferred to another High Court before he enters upon his duties
S.P. GUPTA v. UNION (Venkataramiah, J.) J329
A
there for the reason· that he ceases to be Judge of a High Court to
which he is originally appointed on beiqg transferred and the oath
taken earlier would come to an end on such transfer as the oath is
with reference to the High Court concerned, (which is inserted in
the blank space in the form of oath). It is argued that it is not
possible for a person to function as a Judge unless the oath is B
operative. If a transferred Judge has therefore to take a fresh
oath then it is urged that the order of transfer would become a
a fresh appointment for which his consent would be required by
necessary implication as it is necessary in the case of a first appoint-
. ment under Article 217 (I). It is difficult to agree with this conten-
tion. What is the object of an oath ? An oath is taken by a Judge c
-
r

•
in order to show his allegience to the Constitution and to affirm that
he will duly and faithfully discharge his duties as a Judge without
fear or favour, affe<!tion or ill-will and that he will uphold the
Constitution. The essential part of it is what he swears or affirms
to do. The words "having been appointed Chief Justice (or a Judge)
of the High Court at (or of)" in the form of oath are only descrip- D
tive of the person who takes the oath. The oath is not confined
to the High Court where he enters bis office. It will operate as
lo~g as he discharges judicial duties either In that High Court or in
·any other High Court to which he may be transferred under Article
222 of the Constitution or even when be discharges any other duty
which he may be requested to do by the President as provided in E
paragraph 11 (b) (i) of the Second Schedule to the Constitution. The
oath binds him even after his retirement. A persual of some of the
provisions of the Constitution would establish this. Under Article 127
of the Constitution a High Court Judge can be asked to discharge the
duties of a Judge of a Supreme Court. Under Art.224A a retired High
Court Judge can be asked to sit in the High Court where he had
F
worked as a Judge before his retirement or in any other High Court
and decide "Cases. In neither of these two cases he has to take a fresh
oath, even though he discharges judicial duties. It is contended that
since in the first of these two cases he is not treated as a regular
Supreme Court Judge but continues to be a High Court Judge and in G
the second case be is entitled to have all the jurisdiction, powers
and privileges of, but shall not otherwise be deemed to be a Judge
of the High Court where he functions under Article 224A no fresh
oath would be necessary. This contention overlooks the necessity
. for taking the oath. The necessity for the oath is that the person H
who discharges judicial duties in a superior court should perform
those duties without fear or fav.our 1 affection or ill-will. If that is
1330 SUPREME COURT REPORTS [1982) 2 s.c.a.

A so, can we say that the effect of the oath come~ to an end when he
I
leaves the High Court which is mentioned in the form of oath taken
by him or is confined to that High Court ? Then it would mean
that a High Court Judge who is requested under Article 127 under
Article 224A would not be bound by the oath when he discharges
judicial duties pursuant to those Articles. Such a construction can-
8 not be permitted. The oath he has taken would be operating as long
as he discharges any duty arising out of or traceable to his status of
being a Judge of a High Court. A Judge functioning under Article
127 and Article 224A cannot be freed from the obligations flowing •
from the oath even 'though a particular High Court is meniioned in
the form of oath taken by him. The position cannot be different
c when a Judge of a High Court is transferred under Article 222.
On such transfer he may cease to be a Judge of the High Court
where he was working before such transfer bui he continues to be a
Judge nontheless and goes to the Court to which he is transferred
as a Judge and not as a newly appointed person who is still to
•
-
blossom into a Judge by taking the oath as prescribed by Article
D 219 of the Constitution.

Incidently we may refer to the decision of the High Court of
Allahabad iii Hira Singh & Ors. v. Jai Singh & Ors. (1) in which the
E question of a Judge not taking o.ath had arisen for considaration in
a slightly different situation. In that case a preliminary objection
was taken to the Constitution of the B.ench before which the case •
came up for hearing as the Bench consisted of Justice Uma Shankar
Bajpai, who had been originally appointed as an additional Judge
of that Court under the Government of India Act, 1915 and who
F after some extensions had been appointed as a permanent Judge on
March 17, 1937 with effect from April l, 1937. Part 3 of the
Government of India Act, 1935 which came into force on April l,
1937 provided that any Judge appointed before the com'mencement
of that Part to any High Court would continue in office and should
be deemed to have been appointed under that Part. One of the
G contentions, which appears to have been urged in this case, was
that without taking a fresh oath as required by section 220(4) of the
Government of India Act, 1935, Bajpai, J. could not function as a
Judge. That contention was negatived by the Full Bench in the
following way at page 590 :
H
\!l AlR 1937 All. 588 (F.B)
S.i>. GUPTA v. UNION (Venkataramiah, J.) 1331

"All that s. 220(4) requires that every person appointed A
to be a Judge of a High Court shall,' before he enters
upon his office, make and subscribe before the Gover-
nor or some other person appointed by him an oath
according to the form prescribed. The oath is neces-
sary before entering upon his office as a Judge. As
already pointed out, Bajpai, J. entered upon his office
B
as a Judge of this Court long ago and took the oath
which has then prescribed under Cl. 3 of our Letters
Patent. The mere fact that he has now been made a
permanent Judge does not mean that he "enters upon
his office" as a Judge of this Court a fresh, necessitat-
ing a fresh oath which is required for a person who
c

-· enters upon his office for the first time. If. this were
not the correct interpretation, then the result would be
that every time that· an additional Judge's term if ex-
tended, he would have to take a fresh oath. This is
contrary to the established practice of this Court. It D
may also be pointed out that under s. 223 of the Act
the powers of the Judges of a High Court in relation
to the administration of Justice in this Court are the
same as immediately before the commencement of Part
3 of this Act."
E

This decision proceeded on the basis that an additional Judge
once appointed does not change his status as a Judge even when his

-
-tenure is extended or is made permanent. We need not go to that
extent in this case since we are concerned with a Judge who is trans-
'ferred from one post to another equivalent post. F

. ...,_ i am of the view that no fresh oath need be taken by a Judge
who is transferred before entering upon duties as a Judge in the
High Court to which he is transferred since the oath already taken
G
continues to bind him and the transfer is only traceable to the status
which he had acquired after taking the oath earlier in the Court to
which he was initially appointed. It is not correct to state that the
effect of that oath'comes to an end because he vacates his seat in
the Court where he was functioning before his transfer. Since there H
is no necessity for a fresh oath after his transfer; even though as a
matter of abundant cautioQ the practice of t11king fresh 011th is pre-
1332 · SUPREME COURT REPORTS [ 1982) 2 s.c.R.

A vailing now a days, it cannot be said that he is appointed afresh as
a Judge in the Court to which he is transferred.

There is one other ground to hold that the transfer does not
result in a fresh appointment. . If it is a fresh appointment in a new
High Court with his consent, payment of an additional compensa-
B
tion under Article 222(2) of the Coustitution to the Judge who be-
comes a Judge of that High Court nuder. an order of transfer under
Article 222(1) would become anamolous as the other Judges of that
Court who are initially appointed to that Court would be getting the
usual salary, allowances and other perquisites allowable in the case
of a High Court Judge. It is only when a Judge is transferred in
c the public interest without his volition it can be said that payment
under Article 222(2) would not be discriminatory as then he would1be
belonging to a different class. The payment under Article 222(2)
can be justified only by holding that the transfer under Article 222(1)
does not result in a fresh appointment in another High Court to
·-
which a Judge is transferred. '
D
If a Judge who is transferred under Article 222 of the Consti-
tution is to be treated as haying been appointed a fresh in the High
Court to which he is transferred then he will have to be assigned a
rank below all the other judges who were working in that Court
before he was transferred. It is only if it is held that he goes there
as a person already appointed as a Judge though in another High_
Court then he can reasonably be assigned seniority over others who ·
were appointed after he was appointed initially as a High Court

-
Judge. Any other view would be irrational.

F The argument that a transfer can be made only with the con-
sent of a Judge· on personal grounds also does not appeal to me.
While explaining this ground, an illustration of a Judge who on
grounds of health is seeking transfer from one· High Court to ano-
other was given. The illogicality of this submission becomes obvi-
ous when we consider whether there can be any justification for
G paying such a Judge the Compensation under Article 222(2) after he
is so transferred. There is no merit in this submission.

Relying upon clause (2) of Article 222 of ·the Constitution
H which provides for payment of compensatory allowance in addition
to his salary to a Judge who is transferred to another High Court
s. P. GUPTA v. UNION (Venkataramiah, J.) 1333

from the Court to which he was originally appointed it is argued that A
transfer Is a punishment or an injury for which compensation is
provided under Article 222(2) of the Constitution. It is difficult to
accede_ to this submission. A transfer under clause (1) of Article
222 of the Constitution could not ever have been considered to be a
punishment in disguise, the transfer being in the public interest.
The transfers may not be on account of any conduct of a Judge B
which is not relished by the transferring authority. It may be on
account of the public interest such as providing another High Court
with a competent Judge who is able to discharge his duties effecti-
vely in that Court. Payment of such compensatory allowance does
not imply that a transfer involves an element of punishment. It is·
c
...
I
difficult to imagine that Article 222 was enacted by the Cons.tituent
Assembly as a measure of punishment to an erring Judge. It may
be that when a Judge is transferred in the public interest, he suffers
some inconvenience but such inconvenience cap.not be termed as a
punishjllent. I am sure that the Chief Just ice of India and the
· President will duly consider all aspects before ordering such a D
transfer.

The following observations of Chandracbud, J. (as he then
was) in Sakal Chand Seth's ,case (supra) fully explain the true legal
position at pages 444-445 thus :
E
"Unquestionably, the fundamental principle on which
these constitutional provisions and decisions rest can-

-
not oe allowed to be violated or diluted, directly or
indirectly. But then the question..is : Is there any
need or justification, in order to uphold and protect F
the independence of the judiciary, for construing arti-
cle 222(1) to mean that a judge cannot be transferred
from one Higu Court to another without his consent ?
I think not. The power to transfer· a High ·Court
Judge is conferred by the Constitution in public inte-
rest and not for the purpose of providing the executive G
with a weapon to punish a .Judge who does toe its line
or who, for some reason or the other, has fallen from
its grace. The executive possesses no ·such power
under our Constitution and if it can be shown though
we see the difficulties in such showing that a transfer H
of. a High Court Judge is made in a given case for Jan
extraneous reason, th!( e,i;e,~y\~e,. of the PC!We.r CllD,
1334 SUPREME .COURT REPORTS [1982) 2 S.C.lt.

A appropriately be struck down as being· vitiated by legal
mala fides. The extraordinary power which\ the
Constitution has conferred on the President by article
222(1) cannot be exercised in a manner which is calcu-
lated to defeat or destroy in one stroke the object and
purpose of the various provisions conceived with such
B care to insulate the 'judiciary from the influence and-
/ pressures of the executive. The power to punish a
High Court Judge, if one may so describe it, is to be
found only in article 218 read with article 124(4) and
(5) of the Constitution, under which a Judge of the
c High Court can be removed from his office by an order

-
of the President passed after an address by each House
of Parliament, supported by a majority of the totai
membership of that House and by a majority of not
less than two thirds of the members of that House
present and voting, has been presented to the President
D in the same session for such removal; on the ground
of proved misbehaviour or incapacity. Thus, if the +
power of the President, who has to act on the advice
of the Council of Ministers to transfer a High Court
Judge under article 222( I) is strictly limited to cases in
which the transfer becomes necessary in order to sub-
E serve public interest, in other words, if it be true that
the President has no power to transfer a High Court
Judge for reasons not bearing ox;i public interest but
arising out of whim, caprice or fancy of the executive

-
or its desire to bend a Judge to its own way of think-
ing, there is no possibility of any interference with the
F independence of the judiciary if a Judge is transferred
without his consent."

The. last sentence of the above passage is of great significance.
It is clear from the ab,ive passage with which I respectfully
G agree, that an order of transfer made under Article 222 is liable to
be struck down by the Court if it is shown that it has been made
for an extraneous reason, that is, on a ground falling outside the
scope of that. Article under that Article a Judge cim be
transferred· when such transfer subserves public ir.terest
ff and the President "has no power to transfer a High Court
Judge for reasons not bearing on public interest but
arising out of whim, •aprice, or fancy· of the executivr or its
. S.P. GUPTA v. UNION ( Venkataramiah, J.) 1335

desin: to bend a Judge to its own way of thinking". It is also clear A
from the above· decision that "the power to punish ·a High Court ·
Judge, if one may so describe it, is to be found only in Article 218
read with Articles 124(4) and (5) of the Constitution under which a
Judge: of a High Court can be removed from his. office by an order
of the President after an address by each House of Parliament" is
presented in accordance with those clauses on the ground of proved B
misbehaviour or incapacity. The question debated before us is
. whether under Article 222, it is open to the President to transfer a
Judge from one High Court to another High Court on the ground of
'misbehaviour or incapacity' and whether the said ground falls within
the scope of 'public interest' which is the only relevant consideration
c
- on the basis of which a transfer can be made under that Article. It
is argued that even though the observations made in the majority
judgment which are extracted above point out that no valid transfer
can tacke place under Article 222 on the ground of misbehaviour or
incapacity of a Judge, the followmg passage at page 446 in the same
judgment suggests to the contrary : D

"Experience shows that there are cases, though fortu-
nately they are few and far between; in which the exi-
gencies of administration necessitate the transfer of
a Judge from one High Court to another. The factious
local atmosphere sometimes demands the drafting of E
a Judge or Chief Justice from another High Court and
on the rarest of rare occasions which can be counted on
the fingers of a hand, it becomes necessary to withdraw

- a Judge from a circle of favourities and non-favouri-
ties. The voice of compassion is heard depending
upon who articulates it. Though transfers in such
cases are pre-eminently in public interest, it will be
F

impossible to achieve that purpose if a Judge caqnot
.. - -....;,..
be transferred without his consent. His personal iute-
rest may lie in continuing in a Court where his private
interest will be served best, whereas, public interest
may require that his moorings ought to be served to
G
act as a reminder that "the place of justice is a hallow-
ed place."

In Sakal Chand Seth's case (supra) the main question for ff ·
determination was whether a Judge could be transferred at all with-
out consent. The majority reaCQ«tq tl~e <:onclusiq.q that Ile could;
1336 SUPREME COURT REPORTS Il98i] 2 S.C.R.

A be transferred in public interest without his consent. The Court·
was not specifically concerned with the question whether such trans-
fer could take place on a ground which could be the basis for
Parliament proceedings for the removal of a Judge under Article
218 read with Atticle 124(4) and (5) of tlie Constitution. Since
this question has been directly raised in this case it requires to be
B examined more closely having regard to the scheme of the constitu-
tional provisions.

Clause (b) of the proviso to Article 217 (I) of the Constitution
states that a Judge of a High Court may be removed from bis office
0 by the President in the manner provided in Clause (4) of Article 124
of the Constitution for the removal of a Judge· of the Supreme
Court. Article 218 of the Constitution provides that the provisions
of Clauses (4) and (5) of Article 124 shall apply_ in relation to a
High Court as they apply in relation to the Supreme Court with the
substitution of references to the. High Court for references to the
-
D Supreme Court. Clauses (4) and (5) of Article 124 read as
follows-: +

"124. (4)' A Judge of the Supreme Court shall not be
removed from his office except by an order of the
President passed after an address by each House of
.E Parliament supported by a majority of the total
membership of that House and by a majority of not
less than two-thirds of the members of that House
present and voting has been presented to the President
in the same session sor such removal on the ground of
proved misbehaviour or incapacity.
F
(5) Parliament may by law regulate the procedure
for the presentation of an address and for the investi-
gation and proof of the misbehaviour or incapacity of
a Judge under clause (4)."

Clause (5) of Article 124 authorities the Parliament by law to
G
regulate the procedure for the presentation of an address and for
investigation and proof 'Of the misbehaviour or incapacity of a
Judge under clause (4) thereof. In exercise of the said power
Parliament has enacted the Judges (Inquiry) Act, 1968 (Act .51 of
H 1968) whic~ is applicable to Judges of both the Supreme Court and
High Courts. The procedqre prescribed by that Act i6 an elaborate
pner
s.i>. GUPTA v. UNION (Venkataramiah, J.) 1337
Section 3 to 6 of the above said Act lay down inter alia that A
the proceedings for removal of a Judge can be commenced with a
notice of motion for. presentation of an address to the President pray-
ing for the removal of a Judge of the Supreme Court or of a High
Court in the case of a notice given in the Lok Sabha, signed by not
less than one hundred members of that House and in the case of a
notice given in the Rajya Sabha, . by not less than fifty members of
that House. The next· step is· the consideration of the said notice
by the Speaker of the ·Lok Sabha or the Chairman of the Rajya
Sabha. as the case may be who may on the basis of the material
before: him either admit the motion or refuse to admit it. If the
Notice is admitted, the Speaker or the Chairman should keep the
motion pending and constitute a committee of three members of c
whom one should be chosen from among the Chief Justice and other ·

- Judgc:s of the Supreme Court, one from among the Chief Justices
of the High Courts and one person who in the opinion of the
Speaker or the Chairman, as the '?ase may be, is a distinguished
jurist. If notices of motion are given on the sam~ day in both the
Houses, no committee can be constituted unless the motion has· D
~t been admitted in both the Houses and if it is so admitted by both
the Houses then the committee should be Constituted jointly by the
Speaker and the Chairman. The committee so constituted has to ·
frame charges and hold an enquiry in accordance with the proce-
dure prescribed therefor. At the conclusion of the enquirr if the
committee reports that the Judge is not guilty of the charges, the E
motion pending in the House. cannot be proceeded with. If the
committee finds that the Judge against whom the enquiry is institu-
ted is guilty of any misbehaviour or suffers from any incapacity
then the motion should be taken up for consideration by the House

- concerned. If thereafter the motion is adopted by each House of
Parliament supported by a majority of the total membership of
that House and by a majority of not less than two-thirds of the ·
me:mbers of that House present and voting and an address is presen-
F

ted to the President in the prescribed manner by each House of
Parliament in the same session, a Judge of the Supreme Codrt or of
a High Court can be removed from office.
G
We are concerned here with the transfer of a Judge whose
stock-in-trade if we may use this' expression, is liis reputation. People
accept the decision of a Judge not because his decision is always
correCt but because it is rendered by a person known for his wisdom H
integrity, character and impartiality. It is only on account of these
1338 SUi>RBMB COURT REPORTS [1982] 2 s.c.R.

A qualities of a Judge, people have faith in the judiciary.. The litigants
naturally exfject the presiding officer of a Court to be a virtuous
person. If there is a slight rumour which would adversely affect
his reputation, he ceases to command the respect of the people.
Even a correct judgment given by a Judge who is transferred would
be viewed with suspicion;· if it is known that a Judge, . whose
B character and conduct are not above reproach is liable to be trans-
ferred from one High Court to another High Court, even when his
transfer is effected in the public interest and not on the ground of
his character or conduct. Then, how can a Judge who is transfersed
command. the respect of the Bar and the people in the State to which
he is transferred when his moral personality stands destroyed by the
c very act of transfer unless the order of transfer carries a postscript
. that he is not being transferred on any ground of misbehaviour or
incapacity ? _

here:
The following words of the Bhagavad Gita are quite relevant
-
D

11-34,
r
(To the honour~d, infamy is surely worse than death)
E
If a Judge with a bad reputation is transferred, then it would
not subserve any public interest at all since the people in the State _
to which be is transferred will not have faith in him. More than
all, in the absence of any procedure for any enquiry in which a
Judge can clear his conduct, is it fair to expose him to public
F
ridicule ? · · Can payment of compensation under Article 222 (2) of
the Constitution be of any avail to an honest Judge ? Looking at
.the problem from another angle, can we say that the Constitution
...
has provided for payment of a reward under Article 222 (2) to a
Judge who is transferred on the allegation of misbehaviour or
>-
G incapacity which is not established at an inquiry? All- tliese questions
may be set at rest by reading down Article 222 as not conferring on
the President the power to transfer a Judge on the basis of untested
allegations or rumours about acts of misbehaviour or incapacity of
Judge and it appears that such a construction would not merely be
H in conformity with Articles 218 and 124 (4) and (5) but also would
be consistent with the independence of' the judiciary. As the law
now staµds it is not open to any single individual, whether it is the
s.t>. GUPTA v. UNION (Venkataramiah, J.) 1339
Presidi:nt or the Chief Justice of India or anybody else to take A
cognizance of any allegatio~s of misbehaviour or of incapacity of ,
•. I a Jud,ge and to take any legal action on their basisunder the Judges
(Inquiry) Act, 1968. Obe hundred Members of the Lok Sabha or
fifty Members of the Rajya Sabha alone can initiate- any action on
such allegations. Naturally, all others . are excluded from
taking cognizance of them and acting on them_. In the absence B
of any categorisation of acts ol misbehaviour or incapacity into
different classes-like those on the basis of which Parliamentary
procet:dings for the removal of a Judge may be initiated and those
on thi: basis of which an order of transfer under Article 222 of the
Constitution can be passed, it would be incorrect to hold that a
transfer of a Judge can be made under Art. 222 on more allegations
c
of misbehaviour or incapacity of a Judge. Article 218 and Article
124 (4) and (5) of the Constitution make it clear that Article 222
cannot be resorted to in any such case, and if it is utilised by the
President in that way, the transfer would have to be set aside on the
ground of excess of jurisdiction. When once it is declared that a·
transfer of a Judge cannot be made at all on the ground of allega-
D
• tions of misbehaviour or of incapacity and can only be made in the
public interest, the reputation of a transferred Judge would remain
unsullied. and no evil consequences such as those indica.ted above
would follow.

It should be stated here that the learnced Attorney-General
E
has fairly conceded that no transfer of a Judge under Article 222
is possible on any of the grounds which may form the basis of a
charge in a parliamentary proceeding under clauses ( 4) and (5) of
Article 124 read with Article 218 of the Constitution. It is, there-
fore, declared that a transfer based on any such ground being out- ·
side the scope of Article 222 is liable to be set aside. But a transfer
made in the public interest ·in accordance wit!} Article 222 but with-
. out the consent of the Judge who is transferred is unassailable.

It was faintly suggested by one of the petitioners that Article
222 of the Constitution does not in terms apply to a Chief Justice G
ofa High Court and hence the transfer of a Chief Justice was bad.
This contention is based on, the assumption that the word
'Judge' in Article 222 does not include within its scope a 'Chief
Jm;tice'.
H
It is submitted that a Chief Justice is different from other Judges
of a High Court for the following reasons .: {a) Article 216 of the .
1340 SIJPRllMll COlJR'i' RllPORTs [19S2J 2 s.c.a.

A · Constitution states that a High Court should always have a Chief
Justice. It may riot have any other Judges ; (b) a Chief Justice's
post has to be filled up by making a separate appointment under
Article 21 7 ( l) even when it is filled up by a person who is already
holding the post of a Judge and the method of consultation is
different in his case, a Chief Justice has to take a fresh oath ; (c)
B when a Judge is appointed, the Chief Justice qas to be consulted ;
(d) when the Chief Justice's post is vacant or when the Chief
Justice is absent, any other Judge may be appointed to perform
the duties of the Chief Justice under Article 223 and the Judge so
appointed functions only as an acting Chief Justice ; (e) under
Article 229; the Chief Justice alone is entrusted with the duty of
c appointing servants of the High Court and has control over them ;
(f) under the Second ·Schedule to the Constitution, the salary of a
Chief Justice is fixed at Rs. 4,000/ - per mensem whereas other
Judges get Rs. 3,500/- only; (g) under Article 159, a Governor has
to make and subscribe the oath before the Chief Justice and only
in his absence before the se_niormost Judge available and (h) even
D in the official ranking assigned for ceremonial purposes, the Chief
Justice is placed higher than the other Judges of a High Court.
These points of distinction between a Chief Justice and a Judge of
a High Court no doubt are there but they do not appear to be
conclusive for decid_ing the question before us.
E
The expression 'Judge' is not defined in the Constitution. We
have, therefore, to go through. all the relevant provisions of the
Constitution to ascertain its true meaning. If we proceed on the
basis that the expression 'Judge' does not include a 'Chief Justice',
~everal anamolous results follow. In Article 217 (I) the procedure
F for appointment of a Judge is provided. It says that every Judge
of a High Court shall be appointed by the Pi:esiden t after consulta·
tion which 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. This clause makes it clear that
the expression 'Judge' includes a 'Chief Justice' also. If a Chief Jus-
tice is not a Judge, there would be. no separate age of retirement for
him. Clauses (a), (b) and (c) of the proviso to Article 217 (I)
would also become inapplicable to Chief Justice as the word 'Chief
Justice' is not used in them. Similarly, Article 217 (2) which pres-
cribes qualifications of a Judge, Article 217 (3) which provides _the
H
procedure for determination of the age of a Judge, Article 219
which requires a Judge to make and subscribe an oath, Article 220
S.P. GUPTA v. UNION (Jlenkataramiah, J.) 1341

A
which imposes restrictions on the right of persons who have held
office as permanent Judges to practice in certain courts, Article 221 ·
·• which prescribes and protects the salaries of Judges and Article
224A which provides for appointment of retired Judges to sit and
act as Judges of a High Court would become inapplicable to a
Chief Justice. Article 225 which has preserved the powers of B
Judges of High Courts which they were exercising before the com-
mencement of the Constitution becomes inapplicable to a Chief
Justice. If the term .'Judge' did not also include a 'Chief Justice'
all Chief Justices of High Courts · who were holding office immedia-
tely before the commencement of the Constitution had to vacate
their offices on January 26, 1950 because Article 376 (1) and (2) c.
referred to 'Judges' only. If the contention urged on behalf of the
petitioners is accepted, the foregoing absurd results would ensue.
Some othertonsequences of accepting this contention will be that
the expression 'one Judge' occurring fli Article i33 (3J of the Consti-
tution will not include a 'Chief Justice' of a High Court and by
analogy, the word 'Judges' in Article 145 (2) and (3) will not include D
the 'Chief Justice of India'.

In these circumstances, the reasonable way to construe the
above Articles of the Constitution is to interpret the word 'Judge'
whenever it appears in the Constitution as including the 'Chief E-
Justice' also except where a particular provision· expressly or by
necessary implication distinguishes a Cheif Justice from a Judge.. In
all other places, the word 'Judge' should be considered as having
been used i11 a generic sense. The conclusion is so self-evident that
it is not necessary to support it by authorities. Article 222 of tl:ie
Constitution, therefore, applies to all Judges of High Courts includ- F
ing a Chief Justice.. Of course, a Chief Justice can only be trans-
ferred as a Chief Justice of another High Court and not as a
Judge.

I may say a few words here on the policy of appointing the G
Chief Justice in. every High Court from outside the State. In our
country we ·are used to the British Chief Justices presiding over the
High Courts for more than a century. Many of them turned out to
be distinguished Judges and the fact that ·they were functioning in
, a country which they had not known before drd not act as any hind- H
rance to their work. Even the ignorance of any of the local languages
did not act as a serious obstacle to their functioning efficiently.
1342 StJPllEMB cotnit 1lEP01lts [1982) 2 s.C.R.
A The Fourteenth Report of the Law Commission having
considered the question of appointment of Chief Justices of High
Courts from outside the State observed in Chapter VI thus : •

"26. A large body of evidence before us has suggested
B that it should be made in invariable practice to fill~a
vacancy in the office of Chief Justice by appointing
a Judge from outside the State. Such course, it is
said, will have the advantage of giving the Chief ·
Justice of India a wide choice in recommending a
person suitable for that office. It has also been pressed
c upon us that bringing a Chief Justice from outside
the State will have a very healthy influence, that, it
will promote a sense of unity in the country and
prevent the Chief Jus!!ce being swayed by local connec-
tions and local influences. It may he mentioned that
that Chief Justices · f.rom outside the State have been
D appointed in some of the States and these appoint-
ments have proved a success. Though the ~nalogy +
may not be very pertinent, we. may refer to the
practi,ce of appointing Governors who do not belong
to the State, which has been in vogue since the advent
of the Constitution.
E
27. On the other hand it has been urged with
considerable force, that it would not be fair, that
competent persons on the Bench of the State High
Court should be shut out from the chance of occupy-
ing the office of the Chief Justice in their own States.
F It has also been pointed out that the proposed practice
may prevent members of the Bar from · accepting
appointments as judges, the opportunity of serving
as Chief justices in their own States being denied to
them.
G
28. On the whole we are of the view that it
would be difficult to lay down such an inflexible
practice. It ·should, we think, be clearly understood,
that the senior-most. puisne judge of a Court, should
H not merely by reason of his seniority have an expecta-
tion of succeeding to the office of the Chief Justice.
In every case of a vacancy in the office of the Chief
S.P. GUPTA v. UNION (Venkataramiah, J.) -1343

Justiee, the senior puisne judge should be appointed A
to the office, only if he bas the necessary qualifications.
Indeed the Chief Justice of India may well bear in
mind the desirability of appointing a Chief Justice
from outside the State by reason of the consideration
we have mentioned. Even in cases where the senior-
most puisne judge is fit to occupy the office, it would
B
be doing no injustice to him to leave him out and
appoint him to a similar office in another State."
•
The 80th Report of the Law Commission observed in Chapter
VI thus: C

- "6.19. It would not be a healthy practice in case
the seniormost judge is considered not suitable
for the office of Chief Justice to appoint a junior judge
from the same court as Chief Justice. In such an
D
event, the proper course, _in our opinion, would be to
+ appoint some judge from outside the State. It should
also be ensured that the judge so appointed as Chief
Justice should have been on the High Court Bench for
a sufficiently iong time and should have that much
seniority as a judge as not to cause resentment in the
senior judges of the High Court that someone junior
E
in service has been appointed in super-session of their
claim. While appointing 6omeone from outside the
State as Chief JustiCe of the High Court, care must
also be taken to see that his tenure as Chief Justice

- is not so long as to black the chances of not only the
seniormost judges but also of other judges in the High
C~mrt. By the words "blocking the chances", we
mean not only preventing· the appointment of a
F

person.as Chief Justice but also substantially reducing
the length of his term as Chief Justice. Of course,
arthmetical exactitude and precision in these matters
cannot be insisted upon".
G

Neither of the above two Reports of the Law Commission,
however, notices any impropriety in appointing Chief Justice from
>
outside. Such practice has its own distinct advantages particularly H
in these days. Since the Chief Justice of India- has got to be consul-
'ted before appointing a Chief Justice of a High Court one may feel '

•
...
1344 SUPREME COURT REPORTS [19821 2 s.C.ll
A assured that there will be very little room for anything prejudicial
to the community of High Court Judges happening by the imple-
mentation of the policy of appointing Chief Justices of the High
Courts from' outside the State. The advantages of having some
Judges in every High Court from outside have been considered by
some high-power bodies earlier.
B
The States Reorganisation Commission presided over by
Justice S,' Fazal Ali, former Judge of the ,Supreme Court of India
in its Report prepared in the•year 1955 observed at paragraph 861
thus:
c "861. Guided by the consideration that the principal
organs of. State should be so constituted as to inspire
confidence and to help in arresting parochial trends,
we would also recommend that at least one-third of
the number of Judges in a High Court should consist
-
D of persons who are recruited from outside that State.
In makin~ appointments to a High Court Bench, pro-
·. fessional standing and ability must obviously be the
overriding consideration. But the suggestion we have
made will extend the field of choice and will have the
advantage of regulilting the staffing of the higher judi·
E ciary as far as possible on the same principles as in the
case of the Civil Service". •

In para 58 of the Summary of Conclusion and Recommenda-
tions given at the end of its Report, the States Reorganisation

F
Commission recommended:

"58. , At least one-third of the number of Judges in
the High Court ·of a State should consist of persons
who are recruited from outside that State, (paragraph
-
861)".

G The Study Team on Centre-State Relationships (Shri M.C,
Setalvad, former Attorney-General was the Chairman of the Team)
appointed by the Administrative Reforms Commission also consi-
dered the question of appointment of High Court Judges in its
Report submitted in the year 1968. Dealing· with the r~commen
H dations of the States Reorganisation Commission on the above
questions, the Study Team observed ; · ·

•
S.P. GUPTA v. UNION (Venkataramiah, J.) 1345

A
"We would neverthless .suggest that, without necessa-
·).
rily preparing panels, the recommendation of the State
Reorganisation Commission should be given effect to
as far as possible. Some "outside" appointments are
made even now but these are few and far between. A
serious effort to increase their number will make its B
own contribution to efficiency, independence and
national integration. Unlike the suggestion for the ·
panel, this proposal does not affront any canons of
delicacy and discretion. And yet a couple of objec-
tions might be raised and need to be dealt with :
c
- (a) obviously, when appointing an, 'outsider", it will
be necessary to consult the Chief Justice and the_
government of the State from which he hails. As
the Chief Justice of the High Court in which the
vacancy occurs will not have any personal
D
knowledge of the suitability of the candidate, he
will be unable to give his opinion although consti-
tutionally required to do so. The objection is of
a technical nature. The spirit behind the present
procedure is that the opinion of the Chief Justice
who knows the candidate's reputation and· ability E
should be given due weight. We notice that
"outside" appointments have been m~de in the
past without any constitutional difficulties arising.
The same could continue to happen in the future.

- Difficulties might arise if Chief Justices of High
Courts to which "outsiders" are allocated object
frequently to candidates -so allocated: But the
whole approach recommended here postulates an
F

enlightened national policy on the problem to
which Chief Justices can be expected to subscribe.
Normally, therefore, a Chief Justice should not G
object to the allocation of a carefully selected
man. There is in any case no virtue in making
any Bench the monopoly of the local Bar irrespec-
tive of available merit there or not ;

(b) it may be thought that the authority .and prestige H
of a High Court would be affected in case members
of an o\ltsi9e lllll' life appointed to it. This is aIJ

•
1346 SUPREME COURT REPORTS [1982) 2 S.C.R..

A · insubstantial objection, because a High Court
must command respect for the quality of justice
that it dispenses and not for its ability to promote
members of its Bar to the Bench. Leaving this
aside, the proposar in any case does not envisage
that more than one-third of the number of judges
B of a High Court will come from outside. This
cannot seriously affect the prestige and authority
of the High Courts and the Chief Justices. Besides
any fancied diminution h the position of the
Chief Justice on account of this one-third compo-
nent from outside will be offset by the fact that
c
-
candidates from his State may be going to other
High Courts through a selection procedure in
which he is associated."

(Vide Report of the Study Team on Centre-State
D Relations, Vol. I pages 188-190).
+

Accordingly the Study Team recommended at page 195 of 'i
V~lume I of its Report that as far as practicable, one-third of the r
number of Judges of a High Court should be from outside,
E
It appears from paragraph 13.21 of Volume I of the Report
of the Study Team that the Chief Justices themselves handpressed

-
for the transferability and the formation of an all-India cadre of
Judges. The relevant part of th~t paragraph reads :
F
"13.21.... . ..... Transferability and the formation of
an all-India cadre of Judges was urged by the Chief
Justices on the following grounds : ~

(i} that such a cadre would have the advantages of
G extending the field of choice of High Court Judges
and of regulating the staffing of· the higher
judiciary on the same lines as that of the civil
service ;
H (ii) that a judiciary so recruited would be more inde-
pendent having less local connections ;

•
S.I>. GUPTA v. UNION (Venkataramiah, J.) 1347

A.
(iii) That the difficulty experienced in constituting
division· benches in hearing cases as one or.more
of the judges recruited from the State had been
engaged in the case ·at an early stage either as
counsel or as party or happened to be related to
one or more of the litigants would be avoided ; B
(iv) that a unified cadre of High Court Judges with
. free transfers all over the country would help to
break down the barriers of regionalism which held
sway in many parts of the country"
c
-
"'-'
The foregoing shows that the Chief Justices did not find any-
thing objectionable in th transfers of Judges provided they were
made in accordance with Article 222 of the Constitution. The
Study Team, however, followed the recommendation made in the
Fourteenth Report of the Law Commission but added :
D
"We consider that it is important to make "outside"
appointments a reality, and that once that is done it
is not necessary to insist on a regular system of
transfers".

The 80th Report of the Law Commission has also approved E
1 the above idea of having some Judges ia every High Court from
outside.

- The principle underlying this policy is not something new to
oriental countries. In the letter half of the eighteenth century in
· China, there was in vogue a rule called the 'Law of Avoidance'.
"The 'Law of Avoidance' required that no one be appointed to high
F

positions in his native province and 'no two members of the same
family be allowed to work in the same locality or service, so as to
prevent nepotism and the forming of cliques". (Immanual CY.
Hsu : 'The Rise of Modern China', Second Edition, p. 62). G
One of the arguments in favour of appointing one-third of the
Judges in every High Court from outside the State is that such a
step would assist in bringing about national integration. It is my
view that there is a good deal of substance in this argument al- H
though some dismiss the idea very lightly. Clauses (a) to (e) of
,Article 51 A of the Constitution need t<;> be quoted here :
1348 . SUPREME COURT REPORTS (1982) 2 s.c.R.

·A .SIA. It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals
and institutions, the National Flag and the
National Anthem;

B (b) to cherish and follow the noble ideals whicli
inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty; unity and
integrity of India;

c (d) to defend the country and render national. ser-
vice when called upon to do so;

(e) . to promote harmony and the spirit of common
brotherhood amongst all the people of India
transcending religious, linguistic and regional or \
D sectional diversities; ...... "

Article 51A of the Constitution which lays down the funda·
mental duties of the citizens of India was introduced into the Con•-
titution with effect from January 3, 1977 probably to remind Indians
of certain values which they were slowly neglecting during the
E
period of thirty years following the independence of the country.
Even in the year 1963 itself by the Constitution (Sixteenth Amend·
ment) Act, 1963, the form of oath to be taken by a Judge which is
set out in the Third Schedule to the Constitution was amended by

F
adding the words "that I will uphold the sovereignty and integrity
of India". The preamble of the Constitution was amended with
effect from January 3, 1977 by substituting the words "unity and
integrity of the Nation" in the place of the words "unity of the.
-
Nation" whic)l. were there earlier. These amendments had .to be
made to fight the divisive forces which were raising their ugly heads
in different corners of India. The nation should be grateful to the
G makers of the· Constitution· for enacting the provisions relating to
the Indian judiciary which have brought into existence an unitary
judicial system in a federal Constitution. Law (dharma) has always
been an unifying force in India. The entire country from Kashmir
to Kanya Kumari possesses this great inner bond of unity. Judges
H and lawyers who are the votaries of Indian law should feel' proud of
their heritage. Just as the Jndian soldier feels proud of defending
S.P. GUPTA v. UNION (Venkataramiah, J.) 1349

the borders of the country treating the whole country as a single A
unit, Judges and lawyers should feel that they are a part. of a single
judicial system operating throughout India and that they
are not just members of one St11:te or another. They should be pre-
pared to work in any part of India irrespective of the State in which
they arc born or brought up: Today no High Court can afford to
remain .isolated from other High Courts as a judicial island. Law- B
yers and Judge of one High Court should be prepared to receive
with open arms lawyers and Judges of other High Courts. They
should also be prepared to spare the services of their Judges to be
utilised in other High Courts. It _is only then the- dream of an inte-
grated Bar and of an integrated judiciary will be fully realised. The
Indian judicial system i;i one way is a great forging instrument of c

- unity which, if properly used, can assist the country in bringing
about national integration which is no longer a mere slogan. Natio-
nal integration is an absolute necessity now. If national integration
is not a matter of public interest, what else can be in the public
interest ? •
D

It is difficult to believe that Judges who_ day in and day out are
applying decisions of English, American and Australian courts while
administering justice will not be able to pick up 'the local laws in
force in the State in which the High Court to which they are trans-
ferred is situated. Are not the Judges of the Supreme -Court who E
come from different State deciding cases from all the States in which
very often they have to construe one local law or the other ? The
argument that the efficiency of Judges will suffer if they are trans-
ferred is merely an argument of despair which has got to'be rejec-

- ted.

The plea that a Judge of a High Court should always know
the language of the rogion is again unsustainable. The Constitution
F

makers knew that in India there were a number of regional langu-
ages: Yet they enacted Article 222 of the Constitution without any
limitation. A Judge of one High Court who does not know the G
regional language of another State may be transferred to the High
Court of that State. It is well known that many Britishers who did
not know any Indian language discharged their functions very effici-
ently as High Court Judges in India before the commencement of
the Constitution. The language of the High Courts has always been H
English. Even after the commencement of the Constitution, many
Judges who did not under~t!!Ild the; local lim~uage have fun(,':tionec.I
1350 SUPREME COURT REPORTS (1982) 2 s.c.it.

A as High Court Judges to the satisfaction of all concerned. When the
reorganisation of States took place in 1956, the States Reorganisa-
tion. Commission consisting of Shri Justice Fazal Ali, Shri H.N.
Kunzru and Shri K.M. Panikkar strongly pleaded as stated earlier
for appointment of at least one-third of Judges of a High Court
from outside the State. English is now the language of the
B Supreme Court and all the High Courts~ Article 348 of the Cons·
titution reads :

"348. (I) Notwithstanding anything in the foregoing pro-
visions of this Part, until Parliament by law
c otherwise provides-

(a) al proceedings in the Supreme Court and
in every High Court,

(b) the authoritative t.ext~-
D (i) of all Bills to be introduced or amend-
ments thereto to be moved in either
House of Parliament or in the House
or either House of the Legislature of a
State;
E (ii) of all Acts passed by Parliament or the
Legislature of State and of all Ordi-
nances promulgated by the President
or the Governor of a State, and

-
(iii) of all orders, rules, regulations and bye
F laws issued under this Constitution or
under any law made by Parliament or
the Legislature of a State,

shall be in English language.

G,
(2) Notwithstanding anything in sub-clause (a) of
clause (I), the Governor of a State may, with
the previous consent of the President, authorise
the use of the Hindi language, or any other
H language used for any official purposes of
the State, in proceedings in the High Court
having its principal seat in that State ;
S.P. GUPTA v. UNION (Venkataramiah, J.) 1351

Provided that nothing in this clause shall A
apply to any judgment, decree or order passed
)
or made by such High Court.

(3) Notwithstanding anything in sub-clause (b) of
clause (1), where the Legislature of a State has B
prescribed any language other than the English
language for use in Bills introduced in, or Acts
passed by the Legislature of the State or in
Ordinances promulga'.ted by the Governor of the
State or in any order, rule, regulation or bye·
law referred to in paragraph (iii) of that sub- c
clause, a translation of the same in English

- language published under the authority of the
Governor of the State in the Official Gazette of
that State shall be deemed to be the authorita·
tive text thereof in the English language under D
this article" .
•
Judges of one High Court trained in English language should
not, therefore, find any difficulty in carrying on their duties in other
High Courts which are situated in other States. All the high-power
bodies which have expressed their opinion in favour of transfers of
I
E
Judges have felt that the advantages flowing from the transfers of
High Court Judges would outweigh the disadvantages, if any,
including those flowing from the various regional languages
of India. It is not possible to hold that the transfers of Judges
would be opposed to the public interest on this ground also.
F
It is pertiment to deal with a statement made in Sakal Chand
Sheth' s case (supra) at page 454 which reads as follows :

"Policy transfers on a wholesale basis which leaves no
scope for considering the facts of each particular case
and which are influenced by one-sided governmental G
considerations are outside the contemplation of our
Constitution".

On the basis of this it is argued that policy transfers as such
are not 'permissible under Article 222 of the Constitution. I do
not understand the above said observations as conveying that
meaning and if they so conveyJ th&t " ,,
meaning;
•••.•..J•
th~n it has to be
••
1352 SUPREME COURT REPORTS (1982] 2 s.c.R.

observed that they are too broadly made. Wb1t the above state·
ment means is that even where a transfer is made pursuant to a
valid policy, each transfer should recieve adequate consideration
at the bands of the authorities concerned. All other relevant
matters in relation to the Judge who is proposed to be transferred
pursuant to the policy should be considered before ordering his
transfer. If on such consideation it is found that he should not be
transferred, the proposal should be given. up and the question
of transferring another Judge in furtherance of the policy
may be taken up for consideration. By doing so the policy
remains unaffected and the public interest to be served by the policy
c also would not suffer. But if it is argued that the above statement
bars every tran~fer made pursuant to a policy which is in the public

D
interest then it bas to be held that to the extent it bars such trans-
fers is opposed to the provisions of Article 222 which empowers the
President to transfer a Judge after due consultation with the
Chief Justice of India, of course, in the public interest and is thus
not binding as such a construction would curtail the width of the
-
power under Article 222.
+

I am of the view that in view of the foregoing reasons and
opinions expressed by several expert bodies any transfer of a Judge r
E of a High Court under Article 222 of the Constitution in order to
implement the policy of appointing the Chief Justice of every High
Court from outside the State concerned and of having at least one·
third of the Judges of every High Court from outside the State, of
course, after consultation with the Chief Justice of India would not
be unconstitutional. ·
F

PART VIII

In order to establish their case, learned counsel appearing
G for Shri V.M. Tarkunde and Shri S.N. Kumar, called upon the
Union Government to produce the records pertaining to the con-
sultations made by the President under Article 217 (1) of the
Constitution in so far as the case of Shri S.N. Kumar was con·
cerned. The demand made by them was opposed by the Union
Govern~ent on the ground of privilege. It was contended by the
H
Union Government that the documents whose discovery was sought
1'ein¥ those containin? communications m~c!~ by high constitutional
s.i>. GUl>TA v. UNION {Venkataramiah, ).) 1353
functionaries regarding a high level appointment it would not be A
proper to compel the Union Government to produce them.

The question which relates to the circumstances in which the
Government can claim that the documents, the production of which
is demanqed before a court of .law, should not be compelled to be B
produced on the ground of privilege is ot great constitutional
importance. In Duncan & Anr. v. Cammell, Laird & Company
Ltd.( 1) decided during the Second World War by the House of
Lords such a question arose for consideration. On June 1, 1939,
the submarine, Thetis, which had been built by the respondents in
that case under contract with the Admiralty was undergoing c
- her submergence test in Liverpool Bay, and while engaged in the
operation of a trial dive sank to the bottom owing'/ to the flooding
of her two foremost compartments and failed to return to the
surface with the result that all who were in her, except four sur·
vivors were overwhelmed. Ninty-riirie men lost their lives. A
large number of actions were instituted by those representing, or D
dependent on, some of the dei:eased against respondents and three
other persons claiming damages for' negligence. All of these
actions, except two, were stayed until after the trial of two test
actions, which were consolidated, the plaintiffs in those two test
. actions being the appellants in the above case. The respondents,
in their affidavit of documents objected to produce certain docu- E
ments called for by the appellants on the ground that they (the res-
pondent) had been asked by the Treasury Solicitor on behalf of the
First Lord of the Admirality not to produce the said documents

- which had come into their possession under a contract with the
Gornment and to claim crown privilege in respect of them. The
First Lord of the Admiralty also filed ari affidavit stating that the
documents in question had been considered by him and he
F

had formed the opinion that it would be injurious to the
public interest that any of the said documents, should be
disclosed to any person. The documents to the production of which
objection was thus taken included (either in original or in ·copy) the G
contract for the hull and machinery of the Thetis, letters written
before the disaster relating to the vessel's trim, reports as to the ·
condition of the Thetis when raised, a large number of plans and
specifications relating to the various parts of the vessel etc.. The
trial Judge declined to allow inspection of the documents and the H
(I) (1942] A.C. 624.
SUPREME cbukt REPoRtS [1~82] 2 s.c.t.
A Court of Appeal affirmed his decision. The House of Lords also
upheld the claim of privilege by an unanimous decision, holding
that a Court of law should uphold an objection taken by a public
department called on to produce documents in a suit between private
citizens if on grounds of public policy they ought not to be produ-
B ced and that documents otherwise relevant and liable for production
must not be produced if the public interest required that they
should be withheld. The House of Lords in that case laid down
two tests on which documents may be withheld one based on
the contents of the documents and the other namely · the
class to which the documents belonged, which on grounds
c of public interest must be withheld from production. It
proceeded to lay down that an objection validly taken on the
ground that it would be injurious to the public interest was
conclusive. But it was held that the mere fact that the minis-
ter of the department did not wish the documents to be produced
was not an adequate justification for objecting to their production.
-
0 Production could also be withheld when the public interest would
otherwise be damnified 'as where disclosure would be injurious to
national defence or to good diplomatic relations or where the prac-
tice of keeping a class of documents secret was necessary for the
proper functioning of the public service. In such a case, it was f
held that the court should not require to see the document for the
E purpose of ascertaining whether disclosure would be injurious to the
public interest. It was further held that it was essential that the
decision to object should. be taken by the minister who was the
political head of the department concerned and that he should have

-
seen and considered the contents. of the documents and himself
formed the view that on grounds of public interest they
F
ought not to be produced and such objection should ordi·
narily be taken in an affidavit of the minister. This
decision, it may be seen, laid down that privilege could be
claimed in respect.of a document on two alternative grounds viz. (a)
that the disclosure of the contents of the document would be injuri-
G ous to the public interest by endangering national security or
diplomatic relations and (b) that the document belonged to a
class which should not be disclosed to ensure the proper function-
ing of public service. Viscount Simon who spoke for the House of
Lords in this case expressed his disagreement with the decision of
11 the Privy Council in Robinson v. State of South Australia (No.2) (1)

(1) [1931] AC 704.
s. i>. GUPTA v. UNION (Venkataramiah, J.) 1~55

in which it had been held that it was proper for a court to inspect A
.., the documents in respect of which . privilege had been claimed to
determine. whether their production would be prejudicial to the
public welfare. In the course of his· speech, the noble Lord observed
at page 641 thus:

B
"As.Lord Parker said in another connection : "Those
who are responsible for" the national security must
be the sole judges of what the "national security re-
quires": The Zamora [1916] 2 A.C. 77,107- In
Robinson v. State of South Australia (No. 2) (1931)
•
A.C. 704, the Judicial Committee reversed the deci-
c
- sion of the Supreme Court of South Australia, which
had refused to order the inspection of documents which
the minister in charge of the department objected to
produce on grounds of public policy, and remitted the
case to the Supreme Court with the direction that it
was one proper for the exercise of the court's power of
D
inspecting documents to determine whether their pro-
duction would be prejudicial to the public welfare. I
y cannot agree with this view. Their Lordships' conclu-
sion was partly based on their interpretation of a rule
of court which was in the same ter'ms as O.XXXI,
r. 19A, sub-r.2, of the Rules of the English Supreme
E
Court. This sub-rule provides : "Where on an appli-
cation for an order for inspection privilege is claimed
for any document, it shall be lawful for the court or a

- judge to inspect the document for the purpose of deci-
ding as to the validity of the claim of privilege." In
my opinion, the Privy Council was mistaken in regar-
ding such a rule as having any application to the
F

subject matter. The doubt expressed on the point by
du Parcq L.J. in the present case is fully justified. The
withholding of d0cuments, on the ground that their
publication would be contrary to the public interest, G
is not properly to be regarded as a branch of the law
of privilege connected with discovery. "Crown
privilege" is for this reason not a happy expression
privilege, in relation to discovery, is for the protection"
of the litigant and could be waived by him, but the H
rule that the interest of the state must not be put in
jeopardy by producing documents which would injure
1356 SUPREME COURT REPORTS [1982J 2 S.C.R.
A it is a principle. to be observed in administering justice,
quite unconnected with the interests or claims of the
particular parties in litigation, and, indeed, is a rule
on which the judge should, if necessary, insist, even
though no objection is taken at all."
B Nearly five years after the judgment in Duncan's case (supra)
the Crown froceedings Act, 1947 was passed by the British Parlia-
ment and the Crown privilege recognised under the common law
was regulated by section 28 of the said Act. But that section was, ;.

however, subject to the proviso that it could not override any rule
of law which authorised or required the withholding of any docu-
c ment or the refusal to. answer any question on the ground that the
•
disclosure of the document or the refusal to answering of the ques-
tion would be injurious to the public interest.

Robinson's case (supra) which was dissented from by the House
-
D of Lords as stated above arose out of an action in South Australia.
The Judicial Committee had held in that case that a South Australia
Rule which provided that where on an application for an order for
inspection, privilege was claimed for any document it was lawful for
the Court or a Judge to inspect it for the purpose of deciding as to
the validity of the s:laim applied where privilege was claimed for an
E official document on the ground that its disclosure would be con-
trary to the interests of the public even though the claim was sup-
ported by a statement to that effect by the Minister responsible.
It was further held that the Court had always in reserve, the power
to inquire into the nature of the document for which protection was

F
so sought and to require some indication of the injury which would
result from its production. The Judicial Committee added
that the claim to protection in the case of documents relating to
trading, commercial or contractual activities of a State could rarely
-
be sustained especially in time of peace and that documents would
prejudice the case of the State in the litigation or assist the other >
party was a compelling reaso.nfor their production only to be over-
G borne by the gravest reasons of State policy or security. ·

In three cases which came before the Court of Appeal after
Duncan's case (supra) was decided by the House of Lords, while it
was held ~hat on matters touching national security and foreign
H
affairs, the application of the principle enunciated in the Duncan's
case (supra) in an unqualified manner was not open to question,
S.P. GUPTA v. UNION (Venkataramiah, J.) 1357

doubts were entertained about its application without modification
A
to a class of documents (See Merricks v. Nott-Bower,(1) Re Grosve-
nor Hotel, London (No. 2)(2) and Wednesbury Corporation v, Ministry
of Housing and Local Government) (3) When it was asserted by the
Attorney General that so long as the objection was taken in proper
form, the Judge must treat the claim of privilege as conclusive, in B
Re Grosvenor Hotel's case (supra) Lord Denning, M.R. after refer-
ring to · the practice prevailing in Scotland and Commonwealth
countries, observed .at pages 361-362 thus :
•
"In view of these developments, I think that it is
open to the House and I believe to us, to reconsider c
- that matter : and I must say that, in my. judgment, the
law of England should be brought into line in this
matter with that of Scotland and of the rest of the
Commonwealth. The objection of a Minister, even
though taken in proper form, should not be conclusive.
D
If the court should be of opinion that the objection is
not taken in good faith, or that there are no reasonable
grounds for thinking that the production of the docu-
ments would be injurious to the public interest, the
. court can override the objection and order production.
It can, if it thinks fit, call for the documents and ins- E
pect them itself so as to see ·whether there are reason-
able grounds for withholding them : ensuring, of
course, that they are not disclosed to anyone else. It
is rare indeed for the court to override the Minister's

- objection, but it has the ultimate power, in the interests
of justice, to do so. After all, it is the judges who are
the guardians of justice in this land; and if they are to
fulfil their trust, they must be able to call on the
F

Min.ister to put forward his reasons so as to see if they
outweigh the interest of justice."
•
The privilege based not on their contents but on the ·class G
to which the documents belonged was held to be not acceptable.
On balance however the Court of Appeal upheld the privilege in the
light of the above observations.

(1) [1964) l All. E.R. 717. H
(2) [1964] 3 All. E.R. 354.
(3) [1965] l All. E.R ..186 .

•
1358 SUPREMB COURt REPORTS (1982) 2 s.C.R.
A
It is interesting to notice here the recommendation made by
the General Council of the Bar in England in a memorandum issued
by it in February, 1956 after a critical examination of the decision in
Duncan's case (supra). In para 15 of that memorandum the Council
recommended thus :
B
"We therefore recommend-

(I) A departmental head seeking the exclusion of any
evidence should be required to state in his affida-
c vit whether tpe adduction of such evidence would
be pre-judicial to the national security, including
diplomatic relations, or some other head of public
interest, which he should specify. -
(2) In either case the departmental head should be
D required to state whether the evidence would be
.,
so prejudicial when adduced in open or in closed
court.

(3) Where his claim to privilege is based on ground
of national security it should be conclusive.
E
(4) Where his claim is based on grounds of public
interest other than national security it should be
examinable by the court.

F
(5) The court should be given power to order a hear-
ing or partial hearing in closed court on the
ground that publication of . any evidence to be
-
given in the course of the proceedings would be
prejudicial to the national safety or the national >·
interest. •
G
(Vide Appendix 4 to 'Law and Orders, by C.K. Allen,
2nd Edn.)

Lord Chancellor Viscount Kilmuir also made 'a statement on
H June 6, 195_6 in the House of Lords on the question of Crown privi-
lege arising out of the decision in Duncan's case (supra). In the
course of that statement after referring to the two grounds on which
S.P. CiUP!A v. UNION (J!enkataramiah, J.) 1359
• A
privilege could be claimed according to Duncan viz. (a) that the dis-
closure of the particular·document would injure public interest e.g.
by endangering public security or prejudicing diplomatic relations
and (b) that the document fell within a class which the public inte-
rest required to be withheld from production, Lord Kilmuir stated
thus: B
"The claiming of Crown privilege on the first ground
that I have mentioned has always been acceptable to
the courts and public opinion. Where, however, the
claim has been made on the ground that the document
· belongs to a class, especially, in proceedings where the c
-
Crown's position seems very like that of an ordinarily
litigant, it has been criticised on the ground that the
administration of justice is itself a matter of public
interest and should be weighed against the other head
of public interest, that is, 'the proper functioning of
the public service.' D

The reason why the law sanctions the claiming
of Crown privilege on the 'class' ground is the need to
secure freedom and candour of communication with
and within the" public service, so that Government
decisions can be taken on the best advice and with the E
fullest information. In order to secure this it is neces-
• sary that the class of documents to which privilege
applies should be clearly settled, so that the person

- giving advice or information should know that he is
doing· so in confidence. Any system whereby a docu-
ment falling within the class might, as a result of a
later decision, be required to be produced in evidence,
would destroy that confidence and undermine the
F

whole basis of class privilege, because there would be
no certainty at the time of writing that the document
G
would not be disclosed.

It is sometimes suggested that a claim for privilege
on the class basis should be referred to and decided
by a judge. This suggestion goes much further than
·the position in Scotland, where the power of the judge H
is only exercisable 'in very special circumssances' and
does not permit any examination of the ground of the
1360 SUPREME COURT RllPORTS [1982] ~ s.c.k.
•
A claim. This ground namely, 'the proper functioning
of the public service', must in our view be a matter for
a Minister to decide, with his knowledge of govern·
ment and responsibility to Parliament, rather than for
a Judge.

B
A Judge assesses the importance of a particular
document in the case that he is hearing, and his incli·
nation would be to allow or to disallow a claim for
privilege according to the contents and the relevance
of the document, rather than to consider the effect on
c the public service of the disclosure of the class of docu-
ments to which it belongs. The result would be that
the same kind of document would sometimes be pro-
tected and sometimes ·disclosed, which would, as I
have said, be destructive of the whole basis of the
-
class privilege.
D .. I

I would emphasise that claims of Crown privilege
are made in respect <Jf all documents falling within the
class, irrespective of whether 0heir production would
be favourable or unfavourable to the Crown's interests.
E All Crown lawyers are familiar with cases in which the
Crown's interests have in fact been prejudiced by the
application of the rule. •

·F
The proper way to strike a balance between the needs
of litigants and those of Government administration is,
in our opinion, to narrow the class as much as possible
by excluding from it those categories of documents
-
which appear to be particularly relevant to litigation
and for which the highest degree of confidentiality is
not required in the public interest."
G
(Vide Appendix 4 to 'Law and Orders' by C.K. Allen,
2nd Edition pp. 467-468)

The three decisions of the Court of Appeal n~ferred to above
H which had been decided by Lord Denoning M.R., Harman and Salmon,
L.JJ. came up for consideration again before the Court of Appeal in
U•. GtJl>t'A v. tJ1'llON (Venkataramlah, J.) 1361

Convay v. Rimmer (1) consisting of Lord Dennin·g, M.R. Davies and
Russell, L. JJ.. The relevant facts of this case were these. The
plaintiff, a probationer police constable was prosecuted by a Superin·
tendent in the constabu.la.ry on a. charge of stealing an· electric
torch belonging to another probationer constable. The prosecution
failed and the plaintiff was acquitted but soon afterwards he was
dismissed from the police force as unlikely to become an efficient B
police officer. The piaintiff sued the Superintendent for malicious
prosecution. On discovery in the action the Home Secretarv claim-
ed Crown privilege for a class· of documents which included the
probationary reports relating to the plaintiff and the report leading
to his prosecution; the privilege was claimed on the ground that dis-
covery, of documents of that class would be contrary or injurious to c

- the public interest. The claim of privilege was in proper form. It
was not suggested that the claim was not taken in good faith or
. that the Home Secretary was mistaken in thinking the documents
to be of the class stated. The Registrar of the Court directed the
defendant to produce the documents. But Browne, J. allowed the
appeal by the defendant and the Attorney General and disallowed 0
0

·• the claim for discovery. It is this order which was questic;med before
the Court of Appeal. In this case, Lord Denning who was in the
minority directed the production of the documents. The other two
learned Judges, however, felt that Duncan's case (supra) could not
be departed from by the Court of Appeal and that the observations
E
in the three cases referred to above questioning the validity of the
privilege based on the class to which the particular document
belonged were not binding Davies L.J. with whom Russell L.J.
agreed observed at pp. 1271;.72 thus :

- "I turn now to the 1964 trilogy of cases, namely,
Merricks v. Nott-Bower [1964] I All B.R. 717; Gros-
venor Hotel, London (No. 2) [1964] 3 All B.R. 354;
and Wednesbury Corporation v. Ministry of Housing
F

and Local Goyernrnent [1965] I All E. R. 186, men·
tioned earlier in this judgment and decided in this
Court by the same trinity of judges, viz. LORD DEN-
G
NING, M.R., HARMON and SALMON, L.JJ.. The
judgments in those cases are, of course, most weighty
and most interesting; but, within the greatest respect, .
I cannot accept them as decisions that English Law is
,_ other than I have suggested that it is. Some general

(I) [1967] 2 All, E.R. l~O.
1362 SUPREME COURT REPORTS [1982J 2 S.C.R
A
observations may be made about those cases. In the
first place, in not one of them did the court order pro-
duction of the documents in question or itself inspect
them; so that, wheth~r or not the observations made
in those cases were obiter, as in that state of affairs I
B am inclined to think that they were, the Crown had no
opportunity of challenging in the House of Lords the
validity of the views expressed in this Court. Secondly,
in each case the court was much exercised about the
form and sufficiern:y of the Minister's certificate or
affidavit. In the present case no such question arises.
c Third, all those decidons proceeded on the basis that
then: was a difference or dichotomy, as HARMAN,
L.J: called it in Re Grosvenor Hotel, London (No. 2)
[1964] 3 All E.R at pp. 364, 365 between contents
cases and class cases; though it would appear that
SALMON, L.J. would make a sub-division between
D high "class" cases ar.d low "class" cases (See [1964) 3
All E.R. at pp. 370 2,nd 371). I am bound to say that
I can see no logical distinction, though there obviously
may be a practical one, between high. class cases and low
class cases, any more than there is between class cases
and contents cases. Fourth, all of the judgments procee-
E ded on the basis that the observations of VISCOUNT
SIMON in Duncan's case [1942] 1 All E.R. 587 as to
class cases were obiter and wrong. Fifth, very little
weight was attached in any of those cases to the deci-
sion in Auten v. Rayner [1958] 3 All E.R. 566. Finally
all the judges were ei•ercised in their minds as to desir-
F ability of the law of England in this respect being the
same as that of Scotland and of Commonwealth coun-
tries, such as Australia, Canada and New Zealand.
Whether the Jaw in those Commonwealth countries,
whose courts are, of course, in'fluenced by Robinson
v. State of South Australia (No. 2) [1931] All E.R.
G Rep. 333; is precisely the same a·s the Jaw of Scotland,
as laid down in Glasgow Corpn. v. Central Land Board
1956 S.C. (H.L.) l is, perhaps, open to doubt. That
it is desirable that the law on this important constitu-
tional matter should be the same every where is beyond
question: but, in my judgment, the only tribunal in
this country which can achieve that object is the House
S.P. GUPTA v. UNION (Venkataramiah, J.) 1363

of Lords, who now have the power to alter or vary A
• •
the decision at which, as I have said,, in my opinion
they arrived in Duncan's case [1942] 1 All E. R .
587'' .
•
The appeal was dismissed in accordance with the opinion of
the majority.

The clock was thus again put back · by the Court of Appeal.
Conwa}"s case (supra) was taken up in appeal before the House of
Lords in Conway v. Rimmer & Anr. (1 ) After a review of a number
of decisions which had been rendered before Duncan's case including
Robinson's case decided by the. Privy Council and the decisions of c

- the Court of Appeal subsequent to the decision in Duncan's case,
the House of Lords reversed the decision of the Court of Appeal.
It directed that-the documents in question should be produced before
the Court which had called them for its inspection and if it was
found that disclosure would not be prejudicial to the public interest
0
or that such possible prejudice would be insufficient to justify non-
disclosure, an order for disclosure of the reports should .be made.

It is important to note that in this case one Lord after another
rejected the contention that the possibility of future disclosure
would affect'candour. Lord Reid observed at page 881: "So far as
E
I know, however, no one has ever suggested that public safety has
been endangered by the candour or completeness of such reports
having been inhibited by the fact that they may have to be produced
if the interest of the due administration of justice should ever require
production at any time." Lord 'Morris observ~d at page 891 : "In

- many decided c!J.ses, however, there have been references to a sugges-
tion that if there were knowledge that certain documents (e g.
reports) might in some circumstances be seen by eyes for which
they were never intended the result would be that in the making of
f

.... similar documents in the future, candour would be lacking. Here
is a suggestion of doutful validity. Would the knowledge that there
was a remote chance of possible enforced production really affect G
candour ? If there was knowledge that it was conceivably possible
that some person might himself see a report which was written
about him, it might well be that candour on the part of the writer
of the report would be encouraged rather than frustrated. The
law is ample in its protection of tho~y wlw ~r~ hoq~st in re~ordin~

(1) [1968] l All. ER ~74 ftL 0
1364 SUPREME COURT REPORTS [I 982] 2 s.c.tt.

A
opinions which they are under a duty to express. Whatever may
•
1
be the strength or the weakness of the suggestion to which I have
referred it seems to me that a court is as well and probably better
qualified than any other body to give such significance to it as the
circumstances of a particular case may warrant." Lord Hodson •
B observed at page 904 : "It is strange if civil servoots alone are
supposed to be unable to be candid in their statements made in the
course of duty without the protection of an absolute privilege denied
other fellow subjects". Lord Pearce said at page 912: "There
are countless teachers at schools and universities, countle>s emplo·
. yers of labour who write . candid reports unworried by the outside
0 chance of disclosure ... " Lord Upjohn obsered at pages 914-915 :
"The reason for this privilege .js that it would be quite wrong and

D
entirely inimical to the proper functioning of the publlc service if
the public were to learn of these high level communications, however,
innocent of the prejudice to the State the actual Contents of any
particular document might be, that is obvious. It has nothing
whatever to do, however, with candour or uninhibited/ freedom of
-
expression, I cannot believe that any Minister or any high level
military or civil servant would feel in the least degree inhibited in
expressing his honest views in the course of his· duty on some subject
such as even the personal qualifications and delinquencies of some
colleague, by the thought that his obser~ations might ~ne day see
the light of the day." Commenting on this decision, H.W.R. Wade
wrote : "Their Lordships heaped withering criticism upon this
class "principle" which is that complete cll!sses of official reports
and documents ought tci be kept secret, at whatever cost to the
interests of litigants, merely because otherwise there would not be
"freedom and candour of communication with and within the
F public service" (Vide 'Crown Privilege Controlled at Last' by
H.W.R. Wade [1968] 84 The Law Quarterly Review·p. 171 at 172).
Duncan's case (supra) stood accordingly modified.
-
- In Rogers v. Home Sercetary( 1 ), the appellant required the
G production of a certain Jetter written about him to the Gaming
Board for Great Britain which had the duty to make unusually
extensive inquiries not only into the capacity and diligence of all
applicants for licences to maintain· gaming establishments but. also
into their character, reputation and financial standing and any other
H circumstances appearing to the Board to be relevant before issuing "\

(1)1t1973~ A.(:. 386.
s.P, GUPTA v. U_NION (Venkataramiah, J.) 1365

licences under the Gaming Act, I 968. Applications made by · a A
Company of which the appellant was a director.had been refused by
the Board. It was the custom of the Board to obtain confidential
information about applicants from the police. The· appellant said
that there came into bis possession from an anonoymous source a
copy of a letter written about him to the Board by Mr. Ross,
Assistant Chief Constable of Sussex. Obviously this letter had been B
.abstracted by improper means from the files of the Board or of the
Police~ The appellant said that this letter contained highly
damaging libellous statements about. him and that he wished to take
proceedings to clear his reputation. The means he chose for doing
that was to seek to prosecute Mr. Ross for criminal libel. To
succeed he had to prove the letter. So he applied for its produc·
c
tion. ·The Attorney-General opposed the summons and he
succeeded. The House of Lqrds in appeal in the above case upheld
the privilege. Lord Reid observed in the course of his speech at
pages 400-401 thus :-
D
"The ground but forward has been said to be Crown
privilege. I think that that expression is wrong and
· may be misleading. There is no question of any pri·
y vilege in the ordinary sense of the word. The real
question is whether the public interest requires that
letter shall not be produced and whether that public E
interest is so strong as to override the ordinary right
• and interest of a litigant that he shall be able 'to lay
before a court of. justice all relevant evidence. A
Minister of the Crown is always an appropriate and

- often the most appropriate person to ass'ert this
public interest, and the evidence or advice which
to he gives the court is always valuable and may some·
times be indispensable. But, in my view, it must
F

always be open to any person interested to rai<e
the question and there may be cases where the trial
judge should himself raise the question if no one else G
has done so. In the present case the question of
public . interest, was raised by both the Attorney-
General and the Gaming Board. In my judgment both .
were entitled to raise the. matter. Indeed I think
.j that in the circumstances it Wl;\S the duty of the board H
to do as they hav~ gon~., .· ·" · · · · · ·" · ,
1366 SUPREME COURT REPORTS (1982) 2 S.C.R,

A
The claim in the present case is not based on .the
nature of the contents of this particular letter. It is
based on the fact that the board cannot adequately
perform their statutory duty unless they can preserve
the confidentiality of all communications to them
B regarding the character, reputation or antecedents of
applicants for their consent.

Claims for "class privilege" were fully considered
by this House in ·Conway v, Rimmer (1968) A.C. 910. ·
It was made clear that there is a heavy burden of
c proof on any authority which makes such a •claim.
But the possibility of establishing such a claim was
not ruled out. I venture to quote what.I said in that·
case at p. 952 :

"There may be special reasons for withholding
D some kinds of routine documents, but I think
that· the proper test to be applied is to ask, in
the language of Lord Simon in Duncan v. Cam·
mell Laird & Co. Ltd. (1942) A.C. 624, 642, whe·
ther the withholding ·of a document because it 1
•,

belongs to a particular class is really 'necessary'
E for the proper functioning of the public .service."

I do not think that "the public service" should be
construed ·narrowly. Here the question is whether the
'Yithholding of this class of documents is really neces·
F. sary to enable the board adequately to perform its
statutory duties. If it is, then we 11re enabling the
will of Parliament to be-carried out."
-
In a latter case before the House of Lords i.e. Burmah Oil
Co. Ltd. v. Bank of England,( 1 ) it was again laid down that there
G was no rule of law that a claim by the Crown the grounds of
public interest for immunity from production of a class of docu·
ments of a high level of public importance was conclusive and that
the. Court had the power to inspect the documents before deciding.
whether they should be disclosed after balancing the competing
interests of preventin,g harm to the State or ;the public ~ervice by
H
(I) (1979] 3 All. E.R. 790.
S.P. GUPTA v. UNION (Venkatarami(lh, J.) 't'f67

disclosure and preventing frustration of the administration of justice
by withholding disclosure.

In the last decision of the House of Lords to which
our attention is drawn i e. Science Research Council v. Nasse,(2) the
question as to how for confidentiality could be a ground for claiming
privilege in respect of any document arose for consideration. That
case arose out of disputes between two employees and their emplo-
yers which wer~ raised before the Industrial Tribunal. The emplo·
yees' complaint was that they had been discriminated against by
their'. employers in the course of their employment. B~fore
· the Tribunal they were called upon for production of some docu-
c

- ments. The Court of Appeal had allowed appeal of the employers
holding that if the documents were disclosed it would be in
gross breach of faith and could lead to .industrial trouble. Dis-
missing the appeal, the House of Lords held that while
no principle of public interest immunity protected such confidential D
documents and that they were. not immune from discovering by
reason of confidentiality alone, the Tribunal in the free exercise
of its discretion to order discovery should have regard to the fact
that they were confidential and that discovery would be a breach of
confidence, so that accordingly, relevance alone though a necessary
ingredient did not provide an automatic test for discovery, the
uJimate test being whether discovery was necessary for disposing
fairly of the proceedings and in order to decide whether it was
n.ecessary, the tribunal should inspect the documents considering
whether special measures such as "covering.up" or bearing in

- camera should be adopted. Dealing· with the rule of 'public interest
immunity' claimed by a1person who is called upon to produce any
document,. Lord Scarman observed in the above case thus:
F

"Whatever may be true generaliy of the categories
of 'public interest, the "public interest immunity,"
which prevents documents from being produced or G
evidence from being given is restricted, and is not, in
my judgment, to be extended either by demanding
ministers or by the courts. And, though I agree
with my noble and learned friend, Lord Edmund-
Davies, in believing t411t l\ court may ref11~e t<? wdc;:r . H
(1) [1980J A.C. 1028.
1368 SUPREME COURT REPORTS I1982) 2 S.C.R
A production of a confidential document if it takes
the view that justice does not require its production,
I do not see ·the process of decision as a balancing 1
act. If the document is necessary for fairly disposing
of the case, it must be produced notwithstanding its
confidentiality. Only if the document should be pro-
B tected by public interest immunity, will there be a
a balancing act. And then the balance will not be
"between "ethical or social" values of a confidential
relationship involving the public interest and the
document's relevance in the litigation, but between
c the public interest represented by the State and its
public service, i.e., the executive government, and the
public interest in the administration of justice : see
Lord Reid. Thus my emphasis would be different from
that of my noble and learned friends.. "Public interest ...
immunity" is, in my judgment restricted .to what must
D be kept secret for the protection of government at the
highest levels and in the truly sensitive areas of execu-
tive responsibility."

In England, acco~ding to Prof. S.A. De Smith, as matters now
E stand "a government department can seldom expect to succeed in
a claim based solely on prospective deteriment. to that facet of the
public interest which requires candid expressions of opinion within
the public service. In any event the court will prefer to rest a
decision to exclude evidence on a more general ground than "Crown

...
privilege" -e.g. that it is contrary to the public interest to require
F the disclosure in legal proceedings of information obtained in con·
fidence for a limited purpose. Courts are likely to accept without
question a Minister's certificate that disclosure would be injurious
to national security or diplomatic relations, or that the document
relates to Cabinet proceedings; but in any marginal case they can be
expected to insist on privately inspecting the documents or classes of
documents and then rejecting claims to exclude evidence of "'routine" /
G
matters but ac<;:epting claims to exclude documents referring to
matters of high policy. It is doubtful whether any material dis-
tinction is now to be drawn between "contents" claims and "class"
claims."
H
The scope of the powers of courts in England where a claim to ·'
privilege is made is also explained at para 90 in Volume 13 of
s.P. GUPTA v. UNION (Venkataramiah, J.) 1369
Halsbury's. Laws of England, (Fourth Edition) thus : A

"90. Powers of court-The decision wheth~r to allow
·or reject the claim to Crown privilege, and if so to
what extent, is and remains the decision of the court,
an.d the view of the political minister that the pro-
duction or disclosure of documents or information, B
whether because of their actual contents or because of
the class of documents to which they belong is not
conclusive. The court will give full weight to the .view .
of the minister in every case, but it has and is. entitled
to exercise a residual power, and indeed a duty, to
c
-
examine the objection and the grounds raised by the
minister to support his view that production would be
injurious to the public interest. If, in spite of the cer-
tificate or affidavit ofthe minister, the court is satis·
fied that the objection is not taken bona fide or that
the grounds relied on by the minister are insufficient
or misconceived or not clearly expressed or that there D
.are no reasonable grounds for ·apprehending danger
to the public interest, the court has a residual power to
·y override the objection. For this purpose, the court is
entitled to see the documents before ordering pro-
duction, and the court can see the documents without
their being shown to the parties, but the minister
E
should have a right to appeal before the documents
are in fact produced. '

- The court will more readily uphold an objection
on the ground of the contents of a .document, and for
this purpose the minister need not go into any detail.
F

But where the minister raises the objection to produc-
tion on the ground that the documents belong to a
class the production of which would be injurious to
to the public interest, he must describe with .some par- G
ticularity the nature of the class and the reasons why
they should not· be disclosed.. For this purpose
the proper test to be applied . is whether the
withholding of a document because it belongs to a
particular class is really necessary for the proper H
functioning of the public service, and the term "public
service" in this context should not be construed
SUPREME coufl'i' REPORfS It 98~} 2 s.c.ii..
A narrowly. In considering a claim to Crown privilege
in relation to a class of documents, the fact that the
documents were communicated in confidence to the
Crown is a very material consideration, but neverthe·
less the court may conclude that the public interest
in such confidentiality is outweighed by the public
B interest than they should be disclosed in the adm!nistra-
tion of justice."

In Australia too the very same pos1t1on prevails. It is
c sufficient to refer to the observaions of Gibbs, A.C.J. of the High
Court of Australia in Sankey v. Whit/an & Ors.(1} decided in
November, 1978 at page 542 which are as follows :

"What are now equally well es'tablished are the respec-
tive roles of the court and of those usually the Crown
-
0 who assert Crown privilege. A claim to Crown
privilege has no automatic operation; it always remains
the function of the Court to determine upon. thai
claim. The claim, supported by whatever material
may be thought approprfate to the occasion does no
more than draw 'to the court's attention what is said
1
to be the entitlement to the privilege and provide the
court with material which may assist it in determining
whether .or not Crown privilege should be accorded.
A claim to the privilege is not essential to the invoking
of Crown privilege. In cases of defence secrets,
F
matters of diplomacy or affairs of government at the
highest level, it will often appear readily enough that
the balance of public interest is against disclosure. It
is in these areas that even in the absence of any claim
-
to Crown privilege (perhaps because the Crown is not
a party and may be unaware of what is afoot) a court,
readily recognizing the proffered evidence for what it
G is, can as many authorities establish of its own motion
enjoin its disclosure in court. Just as a claim is not
essential neither is it ever con'clusive although, in the
areas which I have instanced the ~court's acceptance
of the claim may often be no more than a matter of
H
(I) 21 A.L.R. SOS.
S;P. GUPTA v. tJNioN (Venkataramiah, ).) 1371

form. It is not conclusive because the function of the A
court once it beeomes aware of the ·existence of
material to which Crown privilege may apply is always
to determine what shall be done in the light of how
best the public interest may be served, how least it
will be injured."

In Canada the prevailing view of law appears to be the
same as stated above . as can be seen from the decision of the
Supreme Court of Canada in Regina v. Snider(1) in which Rand, J.
has stated thus :

"Once the nature,.general or specific as the case may c
be, of documents or the reasons against its disclosure,
are shown, the question for the Court is whether they
might, on any ratio.oat view, either as to their contents
or the fact of their existence be such that the public
interest . requires that they should not be revealed ; if
they are capable of austaining ·such an interest, and a
D
Minister of the Crown avers its existence, than the
Courts must accept his decision. On the other hand, .
if the facts, as· in the example before us, show that,
in the ordinary case, no such interest can exist, then
such a declaration of the Minister must be taken to E
have been made under a misapprehension and be !·
disregarded. To eliminate the Courts in a function
with which the tradition of the common law has inves-
ted them and to hold them subj~ct to any opinion
formed, rational or irrational by a member of the
Executive to the prejudice, it might be, of the lives of
private individuals, is not in harmony with the basic
conceptions of our polity. But I should add that the
consequences of the exclusion of a document for
reasons of pub.Jic interest as it may affect the interest
of an accused person are not in question here and no
implication is intended as to what they may be..

What is secured by attributing to the Courts this
preliminary detetermination of possible prejudice is
protection against Executive encroachments upon the
administration of justice ; and in the present trend of ~

. (1) [1954] 40.L.R. 489,
1372 SUPREME COURT llEPORtS (1982} 2 S.C.R.
A government little can be ;-more essential to the main-
tenance of individual security. In this important
matter, to relegate the Courts to such a subserviency
as is suggested would be to withdraw from them the
confidence of fodependence and judicial appraisal that
so far appear to have served well the organization of
B which we are the heirs. These are considerations which
appear to me to follow from the reasoning of the·
Judicial Committee in Robinson v. South Australia,
(1931) A.C, 703."
•

c In the United States of America, the question relating to the
limits of executive · privilege came up for consideration before the
Supreme Court in· Marbury v. Madison( 1) probably for the first
time. In that case William Marbury and three others severally
moved the U.S. Supreme Court for a rule to James Madison,
Secretary of State for the United States, to show cause as to why a
D manda_mus should not issue commanding him to cause to be deliver-
ed to them respectively their several commissions as Justices of the
Peace in the District of Columbia. In the affidavit fi,led in support
of the petition they pleaded that Ar1ams the former President had
nominated the applicants to tbe Senate for their advice and consent
to be appointed J_ustices of the Peace ; that the Senate advised and
·1
E consented to the appointments, that commissions in due form were ·
signed by the said President appointing them Justices, that the seal
of the urated States was in turn affixed to the said commissions r
and that Madison had declined to cause them to be delivered even
though they had acquired the right to the offices. In the course of
the proceedings certain questions were put to the Attorney-General
F Levi Lincoln relating to the Commissions and where they had been
kept and on objection being raised to the questions ·the court said
that 'if Mr. Lincoln wished time to consider what answers he should
make, they would give him time, but they had no doubt he ought to
answer. There was nothing confidential to be disclosed. If there
had been he was not obliged to answer it ; and if he thought that
G anything was communicated to him in confidence he was not bound
to disclose it; nor was he obliged to state anything. which would
criminate himself; but that the fact whether such commissions had
been in the office or not, could not be" a confidential fact; it is a fact

H (1) 5 U.S. 137.
•.'l.
!i.P. OtJPTA v. tJNto!'I (Venkataramtah, i.) 1373
which all the world have a right to know. If h~ thought any of the A
questions improper, he might state his.objections'.

In United States v. Burr(4 ) Chief Justice Marshall ruled:

"thBt the President of the United States may be
B
subpoenaed and examined as a witness and required
to produce any paper in his possession, is not contro-
verted. The President, although subject to the general
rules. which apply to others, i;nay have sufficient
motives for declining to produce a particular paper,
and those motives may be such as to restrain the court
from enforcing its production. I can readily conceive
c
that the President might receive a letter which would be
improper to exhibit in public, because of the manifest
inconvenience of its exposure. The occasion for deman-
ding it ought,· in such a case, be very strong, and to
be fully shown to the court before its production could D
be insisted on."

According to Wigmore the scope of the privilege in America,
beyond secrets in the military or international sense is by no means
clearly defin~d. Paragraph 2379 in Volume. VIII of Wigmore on
'Evidence' reads : · E

"Same : Who determines the Necessity for Secrecy.
So far as the privilege has legitimate scope, it raises the
question how the existence of the facts which make it
applicable is to be determined. If it extends only (as
L
its just limits prescribe) to matters involving inter-
F
national negotiati6ns or military precautions against a
foreign enemy, the presence of such matters in the
documents .or com,nmnications sought to be disclosed
··~
must by some authority be predetermined, before the
privilege can be deemed applicable. If it extends to
the larger scope indicated by the English rulings,
G
still the existense of a necessity for secrecy must be
in each instance declared. Who shall make this deter-
. minations ?
H
- - (1)
- -25-Feb.
- Cas,
- -187-(No.
- -14694)
- (Cir. ct. Va )807)
1314 st.Jt>llEME COURT REPORTS (19821 2 s.c.il.
A Obviously, and by aQalogy with other privileges,
the Court (ante, 2193 2271, 2322; post, 2550). But the
judg1.: (urges the learned in cum bent of that office, in
Beatson v. Skene (1)."woulQi be unable to determine it
without ascertaining what the document was,"-
surely an unavoidable process; which inquiry," however'
B it is added, "cannot take place in private," -a singular
assumption. It would rather seem that the siinple
and natural· process of determination was precisely
such a private perusal by the judge. Is it to l?e said that .•
even this much of disclosure 9annot be trusted ? Shall
every subordinate in the department have access to the
secret, and not the presiding officer of Justice ? Can-
. not the constitutionally coordinate body of government
share the confidence ? It is ludicrous to observe a
Chief Magistrate, as in Beatson v. Skene, solmenly
protesting his incompetence to share the knowledge of
a fact which had never been secret at all and had for
D
months been spread abroad by the hundred tongues
of scandal.

The truth cannot be escaped that a Court· which
abdicates its inherent function of determining the facts·
E
upon which the admissibilty of evidence depends'
will furnish to bureaucratic officials too ample . oppor- r
tunities for abusing the privilege. The lawful limits
of the privilege are extensible beyond any control, if its
applicability. is left to the determination of the very
F official whose interest it may be to shield a wrong- •
doing under the privilege. Both principle and policy
demand that the determination of the privilege shall
be for the Court; and this has been . insisted upon ·by
the highest judicial personages both in England and
the United States :
G

Conclusion : The privilege, when recognised, should
H therefore be subjected to the following limitations :

(1) 5 H & N. 838.
S.P. dtiP.TA v. UNION (Venkataramiah, J.) 1315
;

(1) Any executive or administration regulation pur-
, porting in general terms to authorise refusal to
disclose official records in a particular department
when duly requested as evidence in a court ' of
justice should be deemed void (on the logic of
1355; 2195; ante). 8
(2) Any statute declaring in general terms that
official records are confidential (ante 2378, n. 7)
should be liberally construed to have an implied
exception for disclosure when needed in court of
justice. C
(3) The procedure in such cases should be : A letter
of request (like a letter rogatory, ante,. 2195a)
from the head of th_e Court to the head of the
Department (accompa'lying the S!Jbpoena to the
actual custodian), stating the circumstances of the D
litigation creating the need for the document ;
followed (in case of refusal) by a reply from the
Departmental head stating · the circumstances
deemed to justify the refusal ; and then a ruling by
the Court, this ruling to be appealable ·and
determinative of the privilege." E

Writing about the immunity claimed by President Nixon
against the demand for disclosure of certain types of documents,

- Raoul Berger writes in his book· entitled 'Executive Privilege : A
Constitutional Myth' (1974) at page 264 thus:

"Candid interchange" is yet another pretext ·for·doubt-
F

ful secrecy. It will not explain Mr. Nixon's claim of blan-·
ket immunity for members of his White House staff on
the basis of mere membership without more; it-will not G
justify Kleindienst's ass'ertion.of immunity from congre-
ssional inquiry for two and one-half million federal emp-
loyees. It is merely another testimonial to the greedy
expensivenes.s o.f power, the costs of which patently out-
weigh its benefits. As t!Je latest branch in a line of ille· H
gitimate succession, it illustrates the .excesses bred by
the claim of executive privilege. And in practice it has
1376 SUPREME COURT REPORTS (198.2] .2 s.C:.k.
A realised Lord Pearce's pregnant observation ; ''What
a complete lack of common sense a general blanket
protection of wide class may yield". Conway v.
Rimmer (1968] 1 All E.R. 874, 910. The problem will
not be met by pruning a branch here and there; . the
axe must be put to the root of a claim that is altogetbe r
B without constitutional warrant, leaving . it to the
good sense of Congress and the people-and, if
need be, the courts:-to work out an accom-
modation for such matters as confidential com-
munications between .the President and his immediate
advisers, excluding any communications with respect
c to illegal acts. To leave it with the executive branch
to decide is to court more of the "horrors" revealed
by recent history".

Professor Arthur Schles'inger Jr. States : "The secrecy system
-
has become much less a means by which Government protects
D national security than a means by which the Government safeguards
its reputation, dissembles its purposes, buried its mistakes, mani·
pulates its citizens, maximizes its power and corrupts itself" (Quoted
by Curt Mathews, St. Lewis Post-Despatch Feb. 26, 1973,
sec. l-12B p. I).
E
• Now a few words about the legitimacy of the rule of 'official
secrecy' may be mentioned. The tendency in all the dornocratic
countries in recent times is to liberalise the restrictions placed on the

F
right of the citizens to know what is happening in the various public
offices. The emphasis now is more on the right of a citizen to know
than on his 'need to know' the contents of official docum::nts. It
is pertinent to refer to the practice prevailing in Sweden. In his
article entitled 'Laws on Acces to Official Documents', Donald
-
C. Rowat writes :-

G "When I visited Sweden in 1973 to study its unique
system of openness, I was lucky enough to accompany
a reporter who worked for the Swedish national press
agency, as he made his daily rounds of three govern-
ment departments. To my amazement, all incoming
H and outgoing documents and mail were laid out in a
special press room in each department for an hour
every morning for reporters to examine. If any
-!

S.P. GUPTA v. UNION (Venkataramiah, J.) 1377

reporter wanted further information on a case, he A
simply walked down th.e hall to. look at the depart-
ment's flies. No special permission was needed.
Such a system of open access is so alien to the tradi-
tion of secrecy else where as to be almost unbeliev-
ble. Sweden's long experience· with· the principle of
·~--
openness indicates that it changes the whole spirit in B
which public business is conducted. It causes a decline
in public suspicion and distrust of officials, and this in
turn gives them a greater feeling of confidence. More
• important, it provides a much more solid foundation
for public debate, and gives citizens in a democracy a
much firmer control over their government.".
c
(Vide Indian Journal of Public Administration, Vol.
XXV, No . .4; October·DecQmber, 1979 lit pages
. C)90·991)

The position In Sweden l!Ppe11rs tQ represent an extreme D
i:3se of openqess of !ldministr;ltive proges~,

Max Weber (1864-1920) who was very critical of the rule of
official secrecy observed :
E
"Every bureaucracy seeks to increase the ·superiority •
of the professionally informed by keeping their know-
ledge and intentions secret. Bureaucratic administra-

- tion always tends to be an administration of "secret
sessions": in so far as it can, it hides its knowledge
and actions from criticism. The treasury officials of
the Persian Shah have made a secret doctrine of their
budgetary art and even use secret script. The official
statistics of Prussia, in general, make public only
F

· what cannot do any harm to the intentions of the
powerwielding bureaucracy. The tendency towards G
secrecy in certain administrative fields follows
their material nature : everywhere that the · power
interests of the domination structure towards the out-
side are at stake, whether it is an economic competitor
of a private enterprise or a foreign potentially hostile II
polity, we find secrecy. The pure interes~ of the
1378. SUPREME COURT REPORTS (19S2] 2 S.C.R.

bureaucracy in power, however, is efficacious far
beyond those areas· where purely functional interests
make for secrecy. The concept of the "Official Secret"
is the specific iti vention of the bureaucracy, and
nothing is so fanatically defended by the bureaucracy
B as this attitude, which cannot be substantially justified
' beyond these specifically qualified areas. In facing a
parliament the bureaucracy, out of a sure power
instinct, fights every attempt of the parliament to gain
knowledge by means of its own experts or from interest
groups. The socalled rights of parliamentary investi ·
c gation is one of the means by which parliament seeks
such knowledge. Bureaucracy naturally welcomes a

D
poorly informed and hence a powerless parliament at
least in so far as ignorance somehow agrees with !he
bureaucracy's interests."

(H.H. Gerth and C. Wright Mills (trans.), from Max
-
--
Weber, Essays in Sociology, London, Routledge and
Kegan Paul, 1948, pp. 233-4) (By courtesy of Dr. S.R.
Maheshwari).
1
In India many intellectuals have always thought that as far as
E possible there should be openness in administration. Opposing the
Official Secrets (Amendment) Bill which came up for discqssion in
the Imperial Legislative Assembly in March, 1903, Gopal Krishna
Gokhale pleaded : .

F "The proper and only remedy worthy of the British
Government is not to gag newspapers as proposed in
this Bill but to discourage the issue of confidential
circulars which seek to take away in the dark what has
been promised again and again in Acts of Parliament,
-
the Proclamations of Sovereigns and the responsible
G utterances of successive viceroys. From the standpoint
of the rulers; no less than of the ruled, it will be most
unfortunate if Indian papers were thus debarred from
writing about matters which agitate the Indian com-
munity most. What happened, for instance, last year
H when those circulars .were published ? For sometime
before their publication, the air was thick with the
rµmour that Government had issued orc;lers to shut out
•,
S.P. OUP'rA v. UNION (Venkataramiah, _J.) 1379
. ,,

''Indians. from 'all •posts in the Railways Department, A
·carrying a salary of 'Rs. 30 and upwar!ls a month. It
was impossible to ;believe a statement of this kind, but
it was not possible to contradict it effectively when
It was practically on every tongue. The damage done
to the prestige -of the Government was considerable
and it was only when the circulars were published that B
the exact position came to be understood. The circulars
·as they stood, were bad enough in all conscience but
they were not so bad as the public had believed them
to '.be. What was laid down in them was not that
Indians ·were to be shut out from all appointments
higher than ·Rs. 30 a month but that Eurasians and c

- Europeans were to have, so far as practicable, a pre-
ference in making appointments to such posts. The
fear.that such lamentable departures from the avowed
. policy of Government might be dragged into the light
of day, acts at present as an effective check on the
D
adoption of unjust measures, and I think it will have a
disastrous effect on the course of administration ; if
this check were to be done away with and nothing
better_ substituted in its place."

(Abstract of the. Proceedings of the Council of the E
Governor General of India Assembled for the purpose
of Making Laws and Regulations, Vol. XLII, 1903,
pages 280-281) .

- . Saiyad Muhammad and Asutosh Mukherjee also opposed the
Bill. '.Those speeches gave ample .su·pport to the movement which
stood for the' freedom of the press in India. Few persons have the
vision of these great leaders. The need for making access to infor-
mation about the activities of Government more liberal has been
F

~-. explained .by Dr. S.R Maheshwari in the book entitled ''.Open
Government in India" (1981) at pp. 95~96 thus:
G
"Administrative India puts the greatest weight on
keeping·happenings within its corridors secret, thereby
denying ·the citizens access to information about
them.
H
Such orientations produce deep contradictions in
larger sociospolitical system of t4e land which itself js
1380 SUPREMB COURT REPORTS (1982j 2 S.C.R.

A in a state requiring nourishment and care. As the
latter is still relatively new and in its infancy, its
growth processes inevitably get retarded for want of
information about the Government,· which means from
the Government. Over-concealment of governmental
information creates a communi".ation gap between the
B governors and the governed, and its persistence beyond
a point is apt to create an alienated citizenry. This
makes democracy itself weak and insecure. Besides,
secrecy renders administrative accountability unenfor-
ceable in an effective way and thus induces administra-
tive behaviour which is apt to degenerate into arbitrari-
c ness and absolutism. This is not all.

The· Government, today,· is called upon to make
policies on an ever increasing range of subjects, and
many of these policies must necessarily impinge on
-
D the lives of the citizens. - It may sometimes happen
that the data made available to the policy. makers is
of a selective nature, and even the policy-makers and
their advisers may deliberately suppress certain view-
points and favour others. Such bureaucratic habits
get encouragement in an environment of secrecy and
E openness in governmental work is possibly the only
effective corrective to it, also raising, in the process,
the quality of decision-making. Besides, openness has
an educational role in as much citizens are enabled to
acquire a fuller view. of the pros and cons of matters
F· of major importance, which naturally helps in building
informed public opinion, no less than goodwill for
the Government."
-
It may be necessary to deal_ with the question ~f official secrecy
in greater detail in a case where the constitutionality of the claim
G for official secrecy, independently of the power of the Court to
order discovery of official documents in judicial proceedings, arises
for consideration. We are concerned in this case "'.ith the power of
the Court to direct thQ disclosure of official documents in judicial
proceedin~s.
tt
S.P. GUPTA:V. lJ.NlON (Venkataramiah, n 1381
,A
We shall now turn to the Indian law. In the State of Punjab
)
v. .Sodhi Sukhdev Singh,(1) a Constitution Bench of this C'mrt had
occasion to examine the limits of the privilege of the Government in
the light of sections 123 and 162 of the Indian Evidence 'A~t, 1872.
Section ·123 reads :
B
"l 23. No one shalL be permitted .to give any evidence
derived from unpublished official records relating to
any· affairs of State, except with the permission of the
officer at the head of the department concerned, who
shall give or withhold such permission as he thinks
fit." c
Section l 6i-reads : ..
"162. A witness summoned to produce a document
shall, if it is in his possession or power, bring it to
Court, notwithstanding any objection which there may D.
be to its production or to its .admissibility. The
validity of any such objection shall be decided\ on by
the Court.

The Court, if it sees fit, may inspect the docu-
ment, unless it refers to matters of State, or take E
other evidence to enable it to determine on its admissi-
bility ..

- If for such a purpose it is necessary to cause any
document to be translated, the Court may, if it thinks
fit, direct the translator to keep the contents secret,
unless the document is to be given in evidence ; and, if
the interpreter disobeys such direction, be ~hall be held
F

to have committed an offence under section l 6) of·
the Indian Penal Code, 1860 ·( 45 of I 860)."

The decision in Sodhi Sukhdev Singh's case (supra) was render- G
ed in the light of the development of the law on the above question
in England upto the year 1960. Gajendragadkar, J. (as he then was)
speaking for the majority <:>bserved iQ that case at pages 393.395
thus t
H
(1) (1961) 2 SCR 371,
.1382 SUPREME COURT REPORTS [1982) 2 S.C.R.
A
"Thus our conclusion is that reading ss. 123 and 162
'
together the Court cannot hold an enquiry into the
possible injury to public interest which may result from
the disclosure of the document in question. That is a
matter for the authority concerned to decide ; but the
B Court is competent, and indeed is bound, to hold a
preliminary enquiry arid determine the validity of the
objections to its production, and that necessarily invol-
ves an enquiry into the que~tion as to whether the evi- •
dence relates to an affair of State under s. 123 or not.

c
-
In this enquiry the Court has to determine the
character or class of the document. If it comes to
the conclusion that the document does not relate to
affairs of State then ·it should reject the claim for
privilege and direct its production. If it comes to the
conclusion that the document relates to the affairs of
State it should leave it to the head of the department •
to decide whether he· should permit its production or
not. We are not impressed by Mr. Seervani's argu-
ment that the Act could not have intended that the 1
head of the department would permit the production
of a document which belongs to the noxious class. In
our opinion, it is quite conceivable that even in regard
to a document falling within the class of documents
relating to affairs of State the head of the department
may legitimately take the view that its disclosure would
not cause injury to public interest. Take for instance
the case of a document which came into existence quite
F sometime before its production ia called for in litiga-
tion; it is .not unlikely that the head of the department
may feel that though the character of the document
may theoretically justify his refusing to permit its
production, at the time when its production is cl~imed
no public injury is likely to be caused. It is also possi-
. hie that the head of the department may feel that the
injury to public interest which the disclosure of the
document may cause is minor or insignificant, indirect
or remote ; and having regard to the wider extent of
H the direct injury to the cause of justice which may
result from its non-production he may decide to permit
its production. Jn exercising his discretion under s.
'

S.P. GUPTA ... UNION (Venkataramiah, J.) 1383

123 in many case the head of the department may have
to weigh the pros.and cons of the problem and objec-
tively determine the nature and extent of the injury to
public interest as against the i~jury to the adlI)inistra-
tion of justice. That is why we think it is not un-
reasonable to hold that section 123 gives discretion to
B
the head of the department to permit the production
, of a document even though its production may theore-
·.• tically lead to some kind of injury to public interest.
While construing ss. I 23 and I 62, it would be irrele-.
·vant t<t"consider why the enquiry as to injury to public
interest should no.t be within the jurisdiction of the
Court, for that clearly is a matter of policy on which
c
the Court does not and should not generally express
any opinion.

In this connection it is necessary to add that the ·
• natur~ and scope of the enquiry which, in our opinion, D
it is competent to the Court to hold under s. 162
would remain substantially the same whether we accept
the wider or the narrower interpretatio 1 of the expres-
·,
sion "affairs of State". In the former case the Court )
will decide whether the document falls in the class of
.
~
~ .

innocuous or noxious documents ; if it finds that the
· document belongs to the innocuous class it will direct
its production ; if it finds that the document belongs ~
to the noxious class it will leave it to the discretion of
the head of the department whether ·to permit its pro-
duction or not. Even on the narrow construction of
the expression "affairs of State" the Court will deter- F
mine its character in the first instance ; if it holds that
it does not fall within the noxious class which alone
is included in the relevant expression on this view an
order for its production will follow ; if the finding is·
that it belongs to th.e noxious class the question about
G
its· production witr b\: left to the 'discretion of the
head of the department. We have already stated how
three views ate possible on th.is point. ·In our opinion
Mr. Seervai's contention which adopts .one extreme
position ignores the · effect of s. 162, whereas the
contrary p9~itio~ w4i9~ js also ~xtr~m\: in char~~\er
•.
1384 SUPREMll COURT REPORTS (1982) 2 s.c.R.

A ignores the provisions of s. 123. The view, which we
are disposed to take about the 'authority and jurisdic-
tion of the Court in such matters is based on a harmo~ ·
nious construction of s. 123 and s. 162 read together ;
it recognises the power conferred on the Court by cl .
.(I) of s. 162, and also ·gives due effect to the discretion
B vested in the head of the department by s. 123."

A similar question arose again before this Court in State of ·
U.P. v. Raj Narain and Ors.(1) Ray, C.J. speaking for himself and
Alagiris.wamy, Sarkaria and Untwalia, JLobserve.i&at pages 348-349
thus: ·
c
"The several decisions to which reference has already
been made establish that the foundation of the law
behind sections 123 and 163 of the Evidence Act is the
same as in English law. It is that injury to public
interest is the reason for the exclusion from disclosure
D
of documents w.hose contents if disclosed would injure
public and national interest. Public interest which
_ demands that evidence be withheld is to be weighed
against the public interest in the administration of
f
justice that courts should have the fullest possible
E access to all relevant materials. When public interest
outweigh's the latter, the evidence cannot be admitted.
The court will proprio motu exclude evidenc:e the pro-
duction of which is contrary to public interest. It is
in public interest that confidentiality shall be safeguar-
ded. The reason is that such documents become sub-
F ject to privilege by reason of their contents. Confi-
dentiality is not a head of privilege. It is a considera-
tion to bear in mind. It is not that the contents con-
tain material which it would be damaging to the natio-
nal interest to divulge but rather that the documents
would be of class which demand protection. (See
G Rogers v. Home Secretary [1973] A.C, 388 at p. 405). ·
To illustrate the class of documents would embrace
Cabinet papers, Foreign Office despatches, papers re-
garding the security to the State and high level inter-
departmental minutes. In the ultimate analysis the
H
(I) [19?SJ 3 S.C.R. 333,
9.P. GUPTA v. UNION. (Yenkatafamiah, J.) 1385
contents of the document are so 'described that it could A
· be seen at once that in the public interest the docu-
ments 'are to be withheld. (See Merricks and Anr. v.
Nott Bower & Anr. [1964] All B.R. 717.

It is' now the well settled practice in our country
· that an o.bjection is raised by an affidavit affirmed by B
the head of the department. The Court .may also · re-
. quire a Minister to affirm an affidavit. That will arise
in the course of the enquiry by the Court as to whether
the document should be withheld from disclosure. If
·the Court is satisfied with the affidavit evidence that
the document should be protected in public interest
c
from production the matter ends there. If the- Court
would yet like to satisfy itself the Court may see the
document. This will be the inspec'tion of the docu-
ment by the Court. Objection as · to production as
well.as admissibility contemplated in ·section 162 of
the Evidence Act is decided by the Court in the en-
D
quiry as expfained by this Court in Sukhdev Singh' s
·case [1961] 2 S.C.R. 371." ·

In his concurring judgment, Mathew, J: said at pages 359 and
361 thus: ·
E
"When a question of national sec~rity is involved, the
cou~t may not be the proper forum to weigh the matter
and that is., the ·reason why a Minister's
' ,_
certificate is
taken as conclusive. "Those who .are responsible for
• .I I , )

the nat10nal security must be the sole judges of what F
national security requires".

' As the executive is solely responsibly for national
security including foreign relations, no other organ
could judge so well of such matters. Therefore, docu-
ments in relation to these matters might fall into a
class which per se might require protection. But the
executive is not the organ solely responsible for public
interest. It represents only an important element in it;
but there are other elements. One such element is the
H
administration of justice. The claim of . the executive
1386 SUPlllMI! COURT R~PORTS [19821 2s.c.k.

A to have exclusive and conclusive power to determine
what is in public interest is a claim based on the~assump
tion that the executive alone· knows what is best for the
citizen. The Claim of the executive to exclude evidence
is more likely to operate to subserve a partial interest,
'
viewed exclusively from a narrow departmental angle.
B Ii is impossible for it to see or gi'Ve equal weight to
another matter, namely that justice should be done
and seen to be done. When there are more aspects of
public interest to be considered, the court will, with
reference to the pending litigation, be in a better posi-
tion to decide where the weight of public interest pre-
c dominates.
I

The power reserved to the court is a power to
order production even though public interest is to some
extent prejudicially affected. This amounts to a re-
0 cognisation that· more than· one aspects of public inte-
rest will have to be surveyed. The interests of govern-
ment for which the Minister speaks to not exhaust the
whole public interest. Another aspect of that interest
is seen in the need for impartial administration of
justice. It seems reasonable to assume that a court is i
E better qualified than the Minister to measure the
importance of the public interest fn the case before it.
· The court has tp make an assessment of the relative
claims of these different aspects of public interest.
While there are overwhelming arguments for giving to +
the executive the power to determine what matters may
F prejudice public security, those arguments give no
sanction to giving the executive an exclusive an
power to determine what matters may affect
public interest. Once considerations of national
security are left out, there are few matters public
interest which cannot safely be discussed in public.
G, The administration itself knows of many classes of
security documents ranging from those merely reserved
for official use to those which can be seen only by a
handful of Ministers of officials bound by oath of
secrecy.
ff
,.
~ '· • "' "'.· ' 1 .. ~ . •
S.P. GuPTA v. UNION .(Yenkatara,171iall, J.) 1387

A
There was some controversy as to whether -the
Court can inspect the· document for the purpose of
coming to conclusion whether the docume.nt relates to
)
affairs of state. In. Sodhi Sukhdev Singh' s case [1961]
2 S.C.R. 37·1 this court has said tllat the court has no
power to inspect the documents. In the subsequ~t B
case (Amar Chand Butai/ v. Union of. India & Others
(A.I.R. 1964. S.~. 1638)) this court held that the nor-
mal method of claiming privilege was by an affidavit
sworn by thi:: head of the department and· that, if no
proper affidavit was filed the claim for privilege was '
liable to. be rejected. But, this Court i1_1spected the.docu- c
ment to see whether it related to affairs of state. It
mjght be that the court wanted to make sure that ·
p.ublic interest is protected, but whatever be the reason,
.the court dic,i exercise the power to inspect the docu-
. ment.
D
In England, it is now settled by the decision in
Conway v. Rimmer [196~] 1 All B.R. 874 that there is
resid_ual power in court to decide "'.het4er the disclo·
sure of a document is in the interi)st of public and for
r that purpose, if necessary, to inspect the document,
and that the statement of ,the head of the department E
that the disclosure would injure public interest is not
.final."

' It seems that by this decision the law in India was brought.in
line with the deci~ion of the House of Lords in Conway's case F
(supra).

After hearing the arguments on the question of privilege, this
Court directed the Government to submit .the documents i~ respect
which privilege was claimed for its insp~ction. Those documents
ii;icluded the .correspondence between the Chief Justice of the High G
Court of Delhi, the Chief Justice of India and the Minister of Law
and Justice and some official notings relating to th~ question of
reappointment of Shri S.N. Kumar as a Judge of the High Court of
Delhi.

The above order was made as the documents in question had
H
no concern with either the security of the State or with the diploma-
l.?S8
. -
StJPllEME COURt REPORTS (1982) 2 s.C.ll.

A tic relations between om country and any foreign country. They
no doubt related to a 'high level' appointment, but it was felt by us
that that fact by itself was not sufficient in the circumstances of the
case to prevent the Court from directing the Government to produce
the documents for its inspection before deciding the question of
discovery.
B
The question whether these documents should be allowed. to
be disclosed as prayed for by the parties concerned, depend upon
our view.on the question whether such disclosure would subserve
the publice interest. Iris accepted on all hands that the docu-
c ments in question were 'high level' documents relating to the
appointment of a Judge of a High Court and any order to be made
on the question of disclosure had to be made after considering
the pros and cons of all relevant matters. Having inspected the
documents the Court had to consider· whether their disclosure
would create or fan ill-informed or captious, public or political
D criticism or whether the business of the Government would be
exposed to the gaze of those ready to criticise without adequate
knowledge of background or perhaps some axe to grind, as observed >
by Lord Reid in Conway v. Rimmer (supra). The wise words of
Lord Keith in Burmah Oil Co.' s case (supra) that the public interest
might 'demand' though no doubt only in a very limited number of
E cases, that the inner working of government -should be exposed to
public gaze, and there may be some, who·would regard this as likely
to lead, not to captious or ill-informed criticism, but to criticism
calculated to improve the nature of that working as affecting the
individual citizen also had to be kept in view by the Court while
dealing with this case. The Court had to strike a balance between the
F public interest in the proper functioning of the public service and
the public interest in the administration of justice. The Court
also considered whether the disclosure would lead to any other futher
consequence of any body taking any further action on the basis of
these documents. The rµling in Riddick v. Thames Board Mills
Ltd.(1 ) was also examined. In that case, Lord Denning has observed . >-
G /
at page 75 thus :

"In order to encourage o.penness and fairness, the
public interest requires that documents disclosed
on discovery are not to be made use of except for the
H
(I) [1977] ~ W.L.R,63.
S.P: GUptA v. UNION (Venkataramiah, J.) l3M

purposes·ofthe •action in which they are disclosed .
A
. They are not to be made a ground -for comments in'
the newspapers, nor for bringing a libel action, or for
any other alien purpose. The principle was stated in
a work of the highest authority 93 years ago by
Bray J., Bray on Discovery, 1st ed. (1885), p. 238:
B
"A party who has obtained access to his adver-
sary's documents under an order for production
has no right to make their contents public or
communicate them to any stranger. to the suit ..
. . nor to use them or copies of them for any c
collateral object ...... If necessary an undertaking
to that effect will be made a condition of granting

- .-.·,
an order ... "

Sinqe that. time such an undertaking has always been
implied, as Jenkins J. said in Alterskye v. Scott (1948) 1
D
All E.R. 469, 471. A party who seeks discovery of
documents gets it on condition that he will make use
of them only for the purposes of that action, and no
other purpose. The modern authorities are well
discussed by Talbot J. in Distillers Co. (Bichoimicals) E
Ltd. v. Times Newspapers Ltd. (1975) Q.B. 613, 621
and I would accept all he says, particularly as to the
weighing of the public interest involved : see p. 625."

Ours is an open society which has a government of the

- people, which has to be run according to the Constitution and the
laws. The expression 'affairs of State' ·should, therefore, receive a
very narro.w meanning. Any claim for interpreting .it with a wider
connotation may expose section 123 of the Evidence Act to be
challenged as being unconstitutional.
F

G
In this case the questions involved are (I) : Whether there was
divergence or opinion between the opinion of the Chief' Justice of
the Delhi High Court and the opinion of the Chief Justice of India ?
(2) Whether the opinions expressed by them were relevant (or
deciding the question of fitness of Shri S.N. Kumar for appoint- H
ment as additional Judge or permanent Judge of the High Court of
Delhi ? (3) Whether the consultations made under Article 217, (1)
' ; .~ ' ,- 1. ,.._
1390 SUPREME COURT RBPOilTS (19821 2 s.c.R.
A were proper ? (4) Whether the decision of the President not to
appoint Shri S.N. Kumar as an additional Judge or permanent
Judge could be characterised as perverse ? The · pleadings in the ,
case naturally could not give us a complete picture in view of the
secrecy involved in the process of recommendation and the claim of
privilege made on behalf of the Government. The standing of the
B' parties concerned to question the decision of the President was also
raised apart from the question of non-justiciability of the issue
itself. Since Shri S N. Kumar himself took active interesf in the
litigation and asked for relief, the absence of locus stand! of
Shri V.M. Tarkunde (the petitioner) did not matter much. On
c the question of justiciability, we felt that an additional Judge who
was not reappointed could move the Court for a direction to the
Government to consider the question of his reappointment in a

D
fair way for the reasons recorded else where in this judgment. We·
felt that the issue involved the performance of a duty which was
judicially identified and its breach was capable of judicial deter-
mination and that it was possible to grant relief; though in a limited
way, if circumstances warranted_ it. When we considered the con-
-
tentions of the parties against the background of the facts and . the
important questions of constitutional law and their application
involved in this case, we felt that a decision not to direct disclosure ·
of the documents would result in graver public prejudice than the
E decision to direct such disclosure and that the public interest involved
in the administration of justice should prevail over the public interest
of the public service in the peculiar circumstances of the case. We
also felt that in the circumstances of this case if disclosure was not
ordered, there would be room for many undesirable conjectures and •
surmises about the entire process of consultation under

-
F Article 217 (I). Accordingly by our order made earlier in the
course of these proceedings we directed the disclosure of the
documents after careftilly consid_ering all11spects of the case including
the weighty reasons of our learned brother Fazal Ali, J. to the
contrary.

G
PART IX

The next important and delicate question for consideration is
whether the non-appointment of Shri S.N. Kumar .as an additional ·
H Judge even though the arrears of work in the High Court of Delhi
justified the _appointment of more number of Judges is legal and
proper. Article 217(1) of the Constitution which empowers the
s. P. GUPTA V.· UNION (Venkataramiah, J.) 1391

President to appoint Judges of High Courts does not make any A
distinction between the tests that should be applied in the · case of
appointment of a permanent Judge and the tests to be applied in the
case of the appointment of an additional Judge, as to the fitness of
the person to be appointed. The same tests ·have to be applied
even when a person who has already been appointed as an additio-
nal Judge is to be considered for appointment as a permanent Judge
e.
or for appointment as a'n additional Judge for another period
although as already mentio11ed an additional Judge has two factors
in his ·favour which have to be taken into consideratio_n by the
appointing authority in the context of the manner in which Article
224 of the Constitution has been operated all these days. . Since
the appointment in question is to the post of a Judge, questions of
c
integrity and of character of the person proposed for the post do
assume large importance in taking a decision. The appointing
.. authority cannot merely act on mere absence of evidence of lack of
integrity or character of the person concerned. The appointing
authority should on the other hand feel positively assured about D
the integrity and good character . of such pers.on. Having regard to
the importance of the office of a Judge ~fa High Court, the consti-
tutional and legal immunities that a Judge enjoys and the need for
infusing confidence in the mind of the people who approach courts
seeking impartia-1 justice, the. appointing authority has to take some-
times hard decisions and it is likely that in that process some person
who is realy honest may not be.· appointed on account of some
doubt expressed by one or the other amongst .the functionaries who
have to be consulted under Article 217(1) of the Constitution or on ·.
account of some other relevant material that may be available to the
appointing authority. Hence if a person is not appointed as· a
Judge after the usual process of ·consultation is over it does not F
necessarily mean that in fact he lacks integrity or character. If the
matter bad- been placed in the above light in this case perhaps the
task of the Court would have been less onerous .. But in the course of
the arguments, serious allegations of political v~ndetta, consplracy,
malice, fraud etc, were made against the Prime Minister, Law Minis-
ter an_d the -Chief Justice of the Delhi, High Court. A deeper probe G
into the case has, therefore become necessary.

The lirst submission was that as there was an unc~ntradicted news
item appearing in a newspaper according to which the Prime Minister H
"' had expressed dissatisfaction with the Judges appointed by the Gove-
rnment which was in office' prior to her becoming the Prime Minister .
1392 SUPitl!ME COURt REPOllT~ . [1982} 2 s.c.ll.

A in January, 1980, the action taken in respect of Shri S.N. Kumar
who had been appointed by the previous Government was traceable
to the said reaction of the Prime Minister. It iS difficult to accept
this submission because there were about sixty such additional Judges
appointed by the previous Government and out of them it is seen
that only four-one of the Allahabad High Court, one of the Rajas.
B than High Court and two of the Delhi High Court including the
petitioner have not been reappointed as additional Judges. If the
policy was not to appoint such Judges, as a matter of policy, in the
case of others also a similar decision would have been taken. But
that has not been the case. As can be seen from the List of Judges
of the High Courts as on January I, 1980, there were 12 additional
c Judges in the Delhi High Court. Of them one died in 1980 and
nine (including Mr. Ju~tice Wad) had been either made permanent

D
. or continued as additional Judges by the present Government.. Only
two i.e. Shti S.N. Kumar and Shri O.N. Vohra hav.e not been conti-
nued. Hence it is difficult to draw an inference that it is on account
of any political ground that Shri S.N. Kumar has not been continu-
·-
ed. This argument that the Prime Minister took a hostile attitude
towards Shri S.N. Kumar on account of political ground is incon- >
sistent with another argument 11rged before us, namely that the Law
Minister had tried to mislead the Prime Minister when he wrote on
March 3, 1981 that "the Jetter of the Chief Jlistice of Delhi High
E Court makes a serious complaint against the integrity of Shri S.N.
Kumar and I deliberately avoid going into the merits or the details
at this stage as I am proposing a short extension in his tenure pre-
sently'\ The argument is that even though the Chief Justice of the
Delhi High Court had not made any serious complaint, the Minister
for Law had stated so in order to mislead the Prime Minister.
F Whether factually he had tried to mislead her or not will be dealt
with later. But the statement that he was misleading the Prime
Minister who, according to the learned counsel for Shri S.N. Kumar
had made up her mind to take some action prejudicial to Shri S.N.
Kumar appears to be incongruous. Perhaps• it would have been
acceptable if the case was that the Prime Minister was favourably
G disposed towards Shri S.N. Kumar but the Law Minister had tried
. to mislead her.
..,
The next allegation is that the Chief Justice Qf the Delhi High·
H Court and the Minister for Law had entered into a conspiracy to
..
do harm to Shri S.N. Kumar. This aspect of the mat~er also will
!I.I'. GUPTA v. UNION (Penkataramiah, J.) 1393

A
.. be discussed later on, But this contention is, however, inconsistent
with another argument that the Law Minister had tried fo put ~ndue
pressure on the Chief Justice of the Delhi High Court to furnish
some particulars which .were against Sbri S.N. Kumar and secured
the letter of May 7, 1981. Conspiracy presupposes the existence of
a voluntary combination of two or more persons to ac_hieve some
B
unlawful object or to bring about some res ult injurious to some
other person or persons. If there were only two in a given case and
one of them had exerted. pressure on the other to secure some infor-
mation it would not be a case of conspiracy but a case of extortion
of some information by one from the other. The preceding discus-
sion shows that there is inhereut ·inconsistency in some of the
contentions. which are urged° before us,
c
'-
In the instant case, we are concerned with the Chief Justice of
India, the Chief Justice of .the Delhi High Court and the Law
Minister each of whom is holding a very high office and each of
whoin is entrusted with high responsibilities. Each one of them has D
to express his candid ·opinion on the matter in issue. It is not
unknown that on the same matter any two honest persons may have
y two different opinions. There is no allegation in· the-case that either
the Chief Justice of the Delhi High Court or the Law Minister had
any personal ill will against Shri S. N. Kumar. There is no allega-
tion also to the effect that the Chief Justice of the Delhi High Court E
had anything to gain by colluding with the Law Minister. He had
been appointed as the Chief Justice of the Delhi High Court before
Febrnary 19, 1961 on which date he wrote the first letter expressing
his opinion against the reappointment of Shri S.N. Kumar. Further
the Chief Justice of the Delhi High .Court is not impleaded as a
respondent in the case. It is wholly improper and opposed to all F
canons of judicial process to make any comment against him with-
out giving him an opportunity to defend himself. Under the Cons-
titution, he is under a duty to express his opinion on the question
of appointment of a Judge in the High Court of Delhi. Such·opinion
·should be about all relevant aspects including the reputation and
integrity of the person concerned. In discharge of his constitutional G
obligation, the Chief Justice of the Delhi High Court wrote to the
Law Minister on Fi:brnary 19, 1981 as follows:
\. ••• , • i l
1394 SUPREME COURT REPORTS [1982) 2 S.C,R.
A SECRET & CONFIDENTIAL

CHIEF JUSTICE
HIGH COURT OF DELHI
D.O. No~ 275-HCJ/PPS
B New Delhi, the 19th February, 1981

My dear Shiv Shankerji,

Mr. Justice S.N. Kumar was appointed an Addi-
tionai Judge of this Court for a period of two years
c vide Notificatfon No. 50/8/78-Jus., dated 6.3.1979 issued
by the Government of India, Ministry of Law, Justice
and Company Affairs (Department of Justice). He
assumed the charge of his office in the afternoon of
March 7, 1979.

D Normally extension of the tenure of an Additional
Judge is recommended keeping in view the pendency
in Court. The pendency in this Court still justifies the
appointment of Additional. Judges. There have, how-
ever, been serious complaints against Mr. Justice S.N.
Kumar, botJi oral and in writing. These complaints
E have been received by me direct as well as through you.
I have examined these complaints and find that some ..
of the complaints are not without basis. Responsible
members of the Bar and some of my colleagues, whom
I. would ratlier not name, have also complained about
Mr. Justice Kumar. I have no investigating agency
F to conclusively find out whether the complaints are
genuine or not. All the the same the complaints have
been persistent.

There is one other factor ,which has been brought
to my notice. It is rather unfortunate that Mr. Justice
G Kumar has also not been very helpful in disposing of
cases. Some responsible members of the Bar and
some of ·my colleagues have also expressed doubts
about Justice. Kumar's integrity.

H In the above circumstances, it is my very painful
duty not to recommend· an extension ~for Justice
S.P. GUPTA v. UNION (Yenkataramiah, J.) 1395

Kumar. You may, however, examine the matter at A
your end and take such steps as you think proper.

With regards,

Yours sincerely,
Sd/- B
(PRAKASH NARAIN)

Shri P. Shiv Shanker,
Minister of Law, Justice
And Company Affairs,
Government of India, c
Shastri Bhawa·n, New Delhi"."

A reading of the aforesaid ietter shows that it was being
written in anguish and with a feeling of sincerity. It is not shown
that the Chief Justice of the Deihl High Court had made any state-
ment which was false to his knowledge, or which he did not believe D
to be true or which he believed to be untrue. A Chief Justice of a
High Court has no machinery to investigate into complaints but be
has got to state about the fitness of the person to be appointed as a
Judge. It is seen that be has relied on the statements of some of
.his colleagues and some Of the members of the Bar. He has no
E
doubt not given their names. It is not also possible to expect .him
to give out their names having regard to the constraints of law
which applies to persons who make ~uch statements. It is significant

-
that even the Chief Justice of India has not given the names of
Judges and of lawyers who were consulted by him as stated in his
Jetter dated May 22, I 981. There is no reason to disbelieve the
statement of the Chief Justice of the Delhi High Court that he bad
F
heard some statements which suggested that the integrity of Shri
S.N. Kumar was in doubt. The said statement may be in fact not
true. We cannot go into the correctness or otherwise of those
statements in proceedings of this character. It is enough to state
that it is not shown that the Chief Justice of the Delhi High Court
G
had not heard such statements at all. In this situation if the Chief
Justice of the Delhi High Court had conveyed whatever he had heard
and had not recommended .continuance of Shrl S.N. Kumar, he
cannot be considered as having committed any act of impropriety
even though Shri Kumar had not in fact done anything which. was H
improper as a Judge. If Shri Kumar is a victim of false rumour he
deserves sympathy but jt js not open to '?on<Jem!l the 11ction of the
1396 SUPREME COURT REPORTS ( 1982] 2 s.c.a.

A Chief Justice of ~he Delhi High Court which he had to discharge in
the public interest and true to his oath of office.

The next aspect of this part of the case relates to the question
whether there was full and proper consultation With the function-,
aries mentioned in Article 217( I) of tli'e Constitution. In the case of
B the High Court of Dell1i which is situated in the Union Territory of
Delhi, consultation with the Governor does not arise (vide section 4 ·
of the Delhi High Court Act, 1966). The only two authorities who ;;=
I
·have to be consulted by the President are the Chief Justice of the
Delhi High Court and the Chief Justice of India. The process of
consultation referred to in Article 217(1) requires that the authori-
c ties concerned should be given sufficient information and also suffi"
cient opportunity to furnish their opinion .. The ....question whether
such information was furnished and whether such opportunity· was
given depends upon the facts of each case; In the instant case the
letter dated February 19, 1981 written by_ the Chief Justice of the
Delhi High Court was made available to the Chief Justice of India.
D On that the Chief Justice of India observed on March 3, 1981 : "I
would like to look carefully into the charges against Shri S.N.
Kumar. The Jetter of the Delhi Chief Justice dated February 19,
1981 seems to me too vague.to accept that Shri Kumar lacks integ- 1
rity". The Chief Justice of India, however, recommended that Shri
S.N. Kumar may be appointed for a period ·of six months so that
E
he could enquire into the matter in the meanwhile. On the same
date i.e. March 3, 1981, the Law Minister put up a note for the
consideration of the Prime Minister suggesting that Shri S.N. Kumar
may be appointed as· an additional Judge for three months so that a

F
final decision could be taken within that period. It is true that the
Law Minister has stated in this note that the Ch'ief Justice of the
Delhi High Court had made 'serious complaint' against the integrity
of Shri S.N. Kumar. The word 'serious' according to the Shorter
-
Oxford Dictionary means 'requiring earnest thought, consideration
or application'. Any remark against the reputation.or integrity of a
person to be appointed as a Judge of a High Court is a matter which
requires earnest consideration. It is, therefore, difficult to hold that
G
the Law Minister had made any misrepresentation to the Prime
Minister in recording the aforesaid note.

After Shri S.N. Kumar was reappointed as an additional Judge
with effect from March 7, 1981, the Law Ministc:r wrote on March '
s P. GUPTA v. UNION ( Venkataramiah, J.) 1397

I 9, 1981 to the Chief Justice of the Delhi High Court bringing to A
bis notice the note of the Chief Justice of India made on March 3,
1981 that the letter of the Delhi Chief Justice dated February 19,
1981 seemed to him too vague to accept that Sbri Kumar lacked
integrity and added :

"2. In the light of these observations of the Chief B
Justice of India, I· shall be grateful for your further
comments on the question of continuance or otherwise
of Shri Justice S.N. Kumar. His term expires on
6.6.198 I and I would be grateful. if your comments
reach me by '15.4.1981.'.' .C

...
d
It is seen from the letter dated March 28, 1981 written by the
Delhi Chief Justice to the Chief Justice of India that the Chief Jus-
tice of India had also written a letter dated March 14, 198 I (which
is not placed before us) to the Delhi Chief Justice about . the same
subject and that the Chief Justice ,of the Delhi High Court had met D
the Chief Justice of India on March 26, 1981 (this date is mentioned
in the letter of the Chief Justice of India dated May 22, 1981 which
will be referred to later on). After that meeting the Chief Justice
of the Delhi High Court wrote to the Chief Justice of i~dia the
Jetter dated March 28, I 981 referred to above. It reads :
E
"Secret

Chief Justice
High Court of Delhi

- New Delhi
D.O. No. 292-HCJ/PPS
March 28, 1981
F

My dear Chief Justice, .

I am in receipt of your letter dated ~4th March, 1981 G
with regard to Mr. Justice S.N. Kumar. Since then I have
also had an opportunity to discuss this delicate matter with
you.

There were three points mentioned in my D.O. No. ff
275-HCJ/PPS dated 19th February~ 1981 addressed to the
Law Minister, a copy 'QfWhi~~ \V!lS f<_>fW!lrcled to you. ~
1398 SUPllEME COURT REPORTS (1982] 2 s.c.R.

A had also mentioned in that letter that I have no investiga-
ting agency to conclusively find out whether the complaints
are genuine or not. Unl!erstandably there will be some
who would support the allegations and there will be some
who would refute them. Therefore, it is natural that there
may be variance between the views that may be expressed
B by different people. Indeed, my experience is that people
are hesitant in speaking out frankly.

With regard to the complain ts about Justice Kumar's
integrity and gen era) conduct, the matter has already been
discussed between us. About Justice Kumar not being
C· very helpful in disposing of cases. I enclose a statement
of disposal by. Justice Kumar in 1980. Just by way of
comparison I have also included the figure of disposal in
the same period of my other two colleagues· whose case> for
re-appointment are under consideration.
\
D With warm regards,

Yours sincerely,
Sd/-
(Prakash Narain)

E Encl:
Hon'ble
Mt. Justice Y. V. Chandrachud,
Chief Justice of India,
•'
5, Krishna Menon Marg,

-
New Delhi."
F
Alongwith this letter, a statement of cases was sent as stated
in its last paragraph. On the same date i.e. March 28, 19s1 the
Delhi Chief Justice wrote to the Law Minister enclosing a copy of
the letter written by him to the Chief Justice of India. That letter
runs as under :
G
"Secret·

Chief Justice
High Court of Delhi
New Delhi
D.O. NO. 293-HCJ/PPS
March 28, 198l
I

S.P. GUPTA v. UNION (Venkataramiah, J.) 1399

My dear Shiv Shankerji, A

I am in receipt of your D.O. No. 50/2/81-Jus. dated
19th March, 1981.

I have received a letter from the Chief Justice of
India with regard to my observations and recom{aendations B
made in my D.O. No. 275-HCJ/PPS dated 19th February,
1981, addressed ·to you, a copy of which was sent to the
Chief Justice of India, asking me to furnish him with
"details and concrete facts in regard to the allegations
against Justice Kumar." I have since had an opportunity
to discuss the entire matter in detail with the Chief Justice

-
of India. After the discussion I have addressed a letter to
the Chief Justice, a copy of which is enclosed. Perhaps
you will consider this to be sufficient 'comments' on my
part as desired by you in your letter under reply about the
observations of the Chief Justice of India which you have D
quoted in your letter.

With regards,

E
Yours sincerly, /

Sd/-
(Prakash Narain)

- Encl : 1
Shri P. Shiv Shanker,
F

Minister of Law, Justice
And Company Affairs,
Government of India. G
Shastri Bhavan,
New Delhi."

On April 15, 1981, the Law Minister wrote to the Chief Justice H
of the Delhi High Court asking for any material which provided the:
basis for his recommendati<?i;i, ~t reads i · .

T llllt!I
1400 SUPREME COURT REPORTS (1982] 2 s.c.a.

A "Confidential
D.O. No. 50/2/81-Jus
April 15, 1981 ·
My dear Chief Justice,
I am to band your d.o. letter No. 293·HCJ/PPS dated
0

8 28th Marcb, 1981 and a copy of your letter to the Chief
Justice of India bearing the same date, regarding Shri
Justice S.N. Kumar, Additional Judge, Delhi High Court.
The Chief Justice of India bad felt that the reasons giv1m
in your earlier letter were vague and wanted more concrete
particulars. It is true that you have no investigating agency
c to conclusively establish the truth of complaints. Neverthe·

D
less, you must have had some material which provided the
basis on which you concluded that Justice Kumar's reputa·
tion for integrity was not above board and recommended
that he may not be continued. In view of the observations
of the Chief Justice of India asking for concrete material,
-
it would be necessary for us to have it with your comments
I would, therefore, be grateful; if it be furnished to me at
the earliest.
2. I would also request you to send me your comments
promised in your letter No. 268-HCJ/PPS dated 12th
1
E November, 1980 on the complaints of Shri Sabir Hussain.

3. From the statement of disposal of cases sent by
you, it is observed that· it is really in the second half of
1980 that there has been a sharp drop in the disposals of
Justice Kumar. Could there be any specia.1 reason for this?
F I may please be informed whether the nature of cases assig·
ned to Justice Kumar, in the terms of time normally
required for their disposal, was roughly similar to the
nature of cases disposed of by Justice Vobra and Justice
Wad.
4. I shall be grateful for an early reply. With
G regards,
Yours sincerely,
Sd/·
(P. Shiv S:h;u~kar)
Shd Justice Prakash Narain,
B Chief Justice,
Delhi High Court,
filew Pelbi,"
'
s.f>. GtJi>tA v. UNION {Ven/cataramiah, i.) 1401
In reply to this letter the Chief Justice of .the Delhi H~gh Court A
wrote on May 7, 1981 a Jetter by way of reply which bas given rise
to some serious controversy in this case. That letter reads :

"Secret

(For Personal Attention Only) B

Chief Justice
High Court of Delhi
• New Delhi

D.O. No. 296-HCJ/PPS
c

-
New Delhi, the 7th May, 1981

Dear Mr. Minister,

I am in receipt of your D.O. 50/2/81-Jus., dated i5th
April, 198 !. D

. Hon'ble the Chief Justice of India bad made certain
observations with regard to my recommendation about
Mr. Justice S.N. Kumar and the same were communicated
to me by you for my comments in your D.O. No. 50/2/81·
Jus. dated 19th March, 1981. The Chief Justice had E
also written to me a letter dated 14th March, 1981, asking
for "details and concrete facts in regard to the allegations
against Justice Kumar." As. I wrote to you in. my D.O.
No. 293·HCJ/PPS, dated 28th March; 1981, I discussed the
matter with Hon'ble the Chief Justice and as desired by F
him, in reply to his letter, wrote my D.O. No. 292-HCJ/PPS
dated March 28, 1981, a copy of which was forwarded to
you. Accordingly, it is not only embarrasing but painful
for me to write this letter.· As you; bow ever,. desire to
know what material provided the basis for me to con-
clude that Justice Kumar's integrity was not above board, G
·I give beii:>"Y. some facts.-

In the.first half of 1980, Justice Kumar. was sitting
singly and was doing mostly Original Side matters but
f I
also some Appellate Side matters: Chance remarks H
came to my knowledge about bis conduct in Court as
well as about his' integrity. Somewhere early in

-' _,,,...,.
1402 SuPREMil Cotiitt REPORTS (1982) 2 s.c.A..

A May, 1980, one of my colleagues met me and said
that he was rather perturbed about information
with him to the effect that'if a substantial amount was
paid to Justice Kumar, suits brought by a particular
party against an insurance company would be decided
in favour of that party. I had not paid much atten-
B tion to the earlier reports but when this was brought to
my notice, and I was at that time not the Chief Justice,
I thought to myself that after the summer vacations,
to save Justice Kumar from any embarrassment,
he should be put on a jurisdiction other than original
jurisdiction. Therefore, when as Acting Chief Justice
c I constituted the Benches for the second half of 1980.

-
I put Justice Kumar in a Division Bench to sit on the
Appellate Side and Writ Jurisdiction. In my view this
was a safe way to finish the rumours if the same were
incorrect and thus safeguard the reputation of a Judge.
Surprisingly enough, Justice Kumar did not release
D the original suits, regarding which allegations had been
made, from his board and continued to deal with
these suits even in the second half of 1980. 'fhese
suits were Suit No. 1489 of 1979, Suit No. 1417 of
1978 and Suit No. 1401 of 1979 filed by Jain Sudh
Vanaspati Ltd., and Jain Export Pvt. Ltd. against the
E
New India Assurance Co. Ltd. In August, 1980, th~
same colleague of mine who talked to me earlier and
another coileague mentioned that doubts were being
expressed about the integrity of Justice Kumar vis-a-vis
the aforesaid cases and some others. Since I was only
F acting as Chief Justice at that time, I did not want
to take any precipitate action. I, however, made dis-·
creet inquiries from some of the lea ding counsel and
they in strict confidence supported the allegations.
This made me look into the matter more carefully
when to my astonishment I found that it was not only
G the three suits mentioned above but that there were
other Single Bench matters also which had been
retained by Justice Kumar on his board despite being
put)ll the Division Bench. There is fairly a long list
of these cases. In some of these the parties involved
H were rich and influential including some former princes.
··After I was appointed Chie~ Justice early in January,
S.P. otrl>'i'A v. UNION (Venkataramiah, i.) 1403
1981, I looked into this matter a little more deeply
A
and made further inquiries. Some of the lawyers
were non·commit ta! and understandably so. Others,
however, asserted with some force that Justice Kumar's
. reputation was not above board. I talked to some of my
other colleagues besides the two who bad earlier spoken
8
to me. They also said that unconfirmed reports have
been circulating in the Bar which were not very com-
plimentary to Justice Kumar. This made me conclude
that the reputation for integrity of Justice Kumar was
-. not what should be -for a Judge of the High Court.
To my mind, reputation of integrity is just as impor-
tant as a person actually being above-board.
c

With regard to the . complaint of Mr. Sabir
Hussain, Advocate, I had looked into ~he relevant files
besides showing the complaint to Justice Kumar. My D
colleague liad, of course, no comments to make nor
could I ask him for the same. The litigation referred
to in Mr. Sabir Hussain's complaint ended by the
suit being decided in his favour as is apparent from the
judgment and decree in Suit No. 550 of 1975. The
learned Judge did not, however, give his decision on E
all the prayers or with regard to all the parties to the
suit. From the record I could not find any evidence
of alleged partiality. It is correct that the learned
Judge took over six months in pronouncing judgment
, after the case was closed. I would not like to comment
further on the merits of the decision because that is a F
judicial matter. But it is correct that the judgment
does not deal with all the matters raised in the suit or
regarding which evidence was adduced. It is also
· correct that all the evidence adduced has not been
··". discussed in the judgment. - The inferences made by
Mr. Sabir Hussain from such a judgment are possible
but it is a matter which should only be commented G
upon judicially.

With regard to the disposal st~tement for the second
half of 1980, I may mention that no special type of work H
was allocated to the Bench of which Mr Justice Kumar was
1404 SUPRBMB d ouR.t REPORTS (198~1 ~ s.".ft

A a member. The Bench disposed of eleven main cases and
7 Misc. petitions. Normally when matters are heard by
a Division Bench alternate judgments are written by the
two members of· the Bench. Credit, however, is given to
both the Judges for the total disposal by the Bench. To
clarify, if 18 matters were disposed of by the Bench, 9 judg-
B ments would normally be written by each Judge in regular
matters but each Judge will get credit of 18. So far as
motion matters are concerned, short orders admitting or
dismissing a case are dictated in open Court by the senior
of the two Judges. No credit is given for disposal of
motion matters.
c

D
Except for the Division Bench doing Tax matters or
Criminal Appeals, other Division Benches have writ matters
L.P. As. and other types of civil matters listed before them.
There is no special type of work assigned to any particular ·
Judge or Bench in our High Court. Normally the distribu-
-
tion of work is in the broad categories of criminal work,
tax work and civil matters. Sometimes, depending upon
the special aptitude of a Judge, one particular type of
cases are listed before that ~Judge in greater number.

There was no special distinction between the work
that was being done by the Bench of which Justice Kumar
was a member and the Benches of which Just ice Vohra and
Justice Wad were the members. This would be evident

-
. from a reading of the. classification of cases disposed of
by the various Benches which are all broadly mentioned as
F Main Cases in the statement of disposal sent by me to \
, Hon'ble the Chief Justice. I enclose for your ready
reference the break up of the Main Cases. You will notice
that the Division Bench of which Justice Wad was a
member heard and disposed of 11 Writ Petitions, 79 Letters ?
. Patent Appeals, 11 Sales Tax References, I Civil Misc:
G
(Main), 2 Criminal Contempt Petitions and 5 Income Tax
References besides 7 Misc. Petitions. The Bench of which
Justice Vohra was a member disposed of 8 Regular First
. Appeals, 55 First Appeals from O.rders, 3 Company
Appeals, 10 Civil Writ Petitions, 7 Criminal Appeals, 18.
H
Letters Patent Appeals, 3 Civil Revisions etc. etc. The
Bench of which Justice Kumar was a member disposed of
~.f>. dttPtA '· UNION (Penkataramiah, J.) 1405

I Letters Patent Appeal, 9 Civil Writ Petitions and 1 First A
Appeal from Order besides 7 Misc. Petitions.

In my original letter to you I had•mentioned about
other complaints regarding Justice Kumar besides the
complaints about integrity. These pertain to his conduct
with counsel in Court. . Generally speaking an incident in B
Court is nothing more than exchange of, at the worst, hot
words. Unfortunately incidents in Justice Kumar's Court
.. have been occurring more frequently than ir others. In
some cases I am told, and in one I have venlied, a senior
counsel had to go to the extent of recording the incident
and making his comments about unfair conduct of the c
Judge on affidavit which was placed on the record of the
case. It created an unhappy situation.

fo view of what I have written a!>ove and my talks
with you, it is now for the Government to see whether it
would like Justice Kumar to continue as a Judge of the D
Delhi High Court. As far as I am concerned, my view
have already been expressed in my letter dated 19th
February, 1981. ·

With regards,
E
Yours sincerely,
Sd/-
(Prakash Narain)

Briel: 3
Shri P. Shiv Shanker,
Minister of Law, Justice & Co. Affairs,
Government of India, New Delhi."

Three statements are enclosed with this letter showing the
number of cases disposed of by Sbri S.B. Wad, Shri 0. N. Vohra G
and Shri S.N. Kumar. After the above letter of May 7, 1981 was
received, the Law Minister recorded a note on May 19, 1981 asking
for the opinion of the Secretary (Justice) which read as follows:
).
"Last ·evening I spoke to. the Chief Justice of Delhi . .H
High Court for an early reply to my letter dt ........ ..
· in view of the fact that the time left for. the decision
140() SUi>IU!MB COURT REPORTS (19821 2 s.c.k.
A of cases of S/Shri Justice Vohra, S.N. Kumar and
S.B. Wad was very short. He assured me that he
would send his reply within a day or two and said that
t)le matter necessarily involved a little time as he had
to wade through the proceedings of the "Kissa Kursi
Ka" case and make a few enquiries. He requested me
B that his reply may be kept secret for personal attention
only, as he desired in his earlier letter dated 7th May,
1981. In fact, I recall that before issuance of the letter
dated 7th May, I 981, he informed me to treat it secret
though at that moment .I did not try to probe the •
implications and details of his request. When he made
c the request now, for keeping the letter secret, I asked

-
him as to what exactly ·he meant by 'secret for perso-
nal attention only' as indicated in the 7th May, 1981
· letter. In the context during the 'discussions he re-
quested that his letter may be avoided from being
brought to the notice of CJI for the following
D
reasons :

I. For reasons stated in the opening portion of his
letter dated 7th May, 1981.

E
2. He felt highly embarassed and perplexed after he
addressed the original letter dtd. 19.2.1981 about
Shri S.N. Kumar as the contents of that Jetter
came clearly to be known to Shri S.N. Kumar and
certain of his colleagues on the bench as a result
F of which it embarassed him in discharge of his
duties and functions. He felt that the contents
of his Jetter dated 7th May, 1981 would also get
into the hands of Shri S.N. Kumar and certain
of his other colleagues and he would thereby be
G put to greater embarassment which might create
problems for him in future in the discharge of
his .duties as Chief Justice ..

. 3. He felt that the Chief Justice of India had already
H started wrongfully denigrating him for his letter
of February '81 as some of his friends conveyed to
him the feelings of the CJ.I.
S.i>. OUP'tA v. UNION (i'enkataramiah, J.) 1407

He categorically informed me that he. could not
A
afford to spoil his relations with the CJI on the one '
hand and on the other could not desist from express-
ing without fear or favour what he felt cif c~rtain
matters and if be is going to be suspect for discharging
his functions fairly and conscientiously, than his func-
B
tioning as the Chief Justice would never be smooth vis-
a-vis CJI. ·

In view of the above, Secretary (J) may examine
immediately as to whether it is inevitable to fttrnisb the
letters of the Chief Justice of Delhi to the 'CJI for his
c
comments or would it be sufficient if on the basis of his
previous endorsements, we address a letter to the CJI
for .his ad\lice, making him available, if need be the
material available with us including the purport of the
IR report. In the latter case drafts may be put up.
D

Sd/·
(P. Shiv Shankar)
19-5-81.
E

Secretary (Justice)"

Thereaften on May 21, 1981, the Law Minister wrote to the
Chief Justice of India requesting him to give his opinion on the con-·
tinuance. of Shri S.N. Kumar. It. has to be mentioned here that by F
then an interim order had been passed by, this Court asking the
Union Government to take a decision on the continuance of Sbri
S.N. Kumar ten days before the expiry of bis tenure as additional
Judge which was to come to an end on June 6, 1981 i.e. on or before
May 27, 1981. It is admitted that the letter of' May 7, 1981 written
by the Dell;ti Chief Justice to the Law Minister was not sent to the G
Chief Justice of India alongwith the letter of May 21, 1981. The
letter of February 19, 1981 referred to above was, however, sent..
But the letter of May 21, 1981 contained a reference to the meeting
; which had taken place between the Delhi Chief Justice and the H
Chief Justice of India ill para;, thereof. The letter of May 21, 1981
reads:

•
•
1408 SUPREME c6tJRt REi>Okts iJ98~J 2 S.C.R.
"D.O. No. 50/2/81-Jus
A May 21;1981
My
t .
In his letter dated 19th Februa~y, 1981 the Chief
· Justice of the Delhi High Court (copy enclosed}
had recommended that Justice Kumar may not be
B given any extension. By another letter of t!ie same
date he had recommended an extension of two years
for Justice Wad.
2. You had advised on 3i:d March, 1981 as
below:
c "I have recommended, for reasons mentioned in the
concerned file, that Shri O.N. Vohra's term should
be extended by ~ix months. Shri Vohra is senior
to Shri S.N. Kumar and Shri S.B. Wad. In the
interests of propriety, the term of these two Judg-
es should also be extended by six months.

I would like to look carefully into the charges
against Shri S.N. Kumar. The letters of the Delhi
Chief Justice dated February 19, 1981 seem to be
too vague to accept that Shri Kumar lacks integ-
rity.
E. True, that there are no complaints against
Shri Wad. But, since he is junior to the other two
Judges, his term ought not to be extended, ·longer
than that of the other two.: That is to say, Sliri

F
O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad
should all be extended by six months."

3. In regard to complaints regarding Justice
Kumar's integrity and general conduct, the Chief
Justice of the High Court discussed the matter with
I
-
you as mentioned in his D.O. letter No. 292-Hd dated
28th March, 1981, to you, a copy of which he had sent
I
to me. In that letter he had also mentioned the: dis- ·
posals of Justice Kumar.

4. When you had tendered your advice dated 3rd
March,· 1981 the following I.B. report regarding Shri
H S.N; Kumar had been brought
. , to your notice :-
'

(Extract from J.B. report omitted) 'l

•
9.P. GUPTA v. UNION (Venkataramiah, J.) 1409

An extract of a further report received is enclosed.

5. You will please see that in ryour advice dated
3rd March, 1981 you desired to look carefully into the
charges against Shri S.N. Kumar. In terms t!iereof if
you were pleased to make any inquiries, I shall be
grateful to have the details. B
6. I would be grateful for your urgent advice in
regard to the continuance or otherwise of the terms
of Justice S.N. Kumar and Justice S.B. Wad.

With regards, c
Yours
Sd/-
(P. Shiv-Shanker)

D
Shri Y.V~ Chandrachud,
Chief Justice of India,
Supreme Court,
New Delhi.
Bncls : As above."

The Chief Justice of India was camping at Simla then. The
rE
Government of India had to take a decision as per the · interim order
of this Court on or before May 27, 198i. In view of the urgency
involved; the Chief Justice· of India sent his reply as per letter of

- May 22, 1981 through a special messenger from Simla to the Law
Minister which reads as follows :-
"Chief Justice of India

Supreme Court of India
New Delhi

Confidential G
By Special Messenger Camp: Simla
May 22, 1981

My dear Shiv Shanker,
H
I am in receipt of your letter (D.O. No. 50/2/81-
Jus) dated May 21! 1981 seeki~~ m~ aqvi<;e in re~arct
1410 SUPREME COURT REPORTS (1982] i S.C.R.

A
to the con ti nuance or otherwise of the terms of Justice
S.N. Kumar and Justice S.B. Wad who are at present
f
functioning as additiona_I Judges of the Delhi High
Court aud· whose terms were extended by a period of
three months with effect from March 6, 1981.
B
Shri Prakash Narain, Chief Justice of Delhi High
Court, had written a letter dated February 19, 1981 to
you, a copy of which was sent to me. The Chief
Justice had recommen~ed in that letter that Justice
Kumar's appointment should not be extended furt~er
c for three reasons : (I) that serious complaints were

D
received against Justice Kumar orally as well as in
writing; (2) that Justice Kumar was not very helpful
in disposing· of cases; and (3) that some responsible
members of the Bar and Bench had expressed doubts
about Justice Kumar's integrity. By my letter dated
-
March 14, 1981 to the Delhi ChiefJustice I requested
him to furnish further details and concrete facts in re-·
. regard to the allegations against Justice Kumar since
the result of the enquiries made by me was quite at
I
variance with what the Chief Justice had stated in his '
letter of March 19.
E

The Chief Justice met me on March 26, 1981 when
he told me that Justice Kumar was very slow in. his

-
disposals and that he doubted his integrity bec:ause
even after-Justice Kumar's allocation was changed from
F the original side to the appellate side, he still continued
to heat the part-heard cases on the original side. The
Chief Justice did not mention anything adverse in re-
gard to Justice Kumar's political leanings or affiiiations
By my request the Chief Justice prµmised to send a
statement showing the disposals .of Justice Kumar.
G
I have made the most careful .and extensive enqui-
ries in regard .to both of these matters and I am satis-
fied that there is no substance in any one of them. I
H have with me a detailed statement of the disposals of
Justice Kumar from which it would appear that no
charge can be made against him that he is slow in his
ll.P. GUPTA v. UNION (Venkataramiah, J.) 1411

disposals. Justice Kumar was sitting with Justice A
T.P.S. Chawla for quite some time during the period
under consideration and it is a matter of wide know-
lege that Justice Chawla takes an enormously long time
over the cases which come before him. Sitting with
Justice Chawla as a junior Judge. Justice Kumar could
have done precious little to hasten the disposal of cases B
which came before the Bench.

As regards the complaint of the Chief Justice that
Justice Kumar's integrity was doubtful since he conti·
nued to fake old ·part-heard matters· even after the c

-
allocation of his work was changed, I have made en·
quiries not only from members of the Bar but from the
sitting Judges of the Delhi High Court which show that
it is a common practice in the Delhi High Court that
even after the allocation of a Judge is changed from
the original side to the appellate side and vice-versa,
D
he continues to take up part-heard cases on which a
substantial amount of time has been already spent.
Justice Kumar therefore did nothing out of the way or
unusual in taking up part-heard cases after the alloca·
tion of his work was changed,
E
I find it therefore diffiult to agree that Justice
Kumar's term should not be extended for the reasons
mentioned by the Chief Justice of the Delhi High

- Court. I : disagree with the learned Chief Justice, on
enquiries made by me, that Justice Kumar is either
~low in his disposals or that his integrjty is doubtful.
F

I must mention that I also made independent en- ·
quiries in .regard to Justice Kumar's integrity generally
and apart from the reason for which the learned Chief G
Justice thought that Justice Kumar lacked integrity.
Not one member of the Bar or of the Bench doubted
the integrity of Justice Kumar. On the other hand
several of them ~tated that he is a ma,n of unquestioned
· inte~rity.
1412 SUPREMB COURT REPORTS [ 1982) :! s.c.a.
A You have annexed to your letter an extract of a
further report from the r. B. which says that :

(Portion relating to l.B. report omitted)

On my return on May 26, 1981 I will get into
B
touch with Justice Kumar and make enquiries from
him as also from other persons who are likely :o be in
the know of the matter. Until then it is impossible
for me to tender any opinion one way or the other.

c I would therefore propose that Justice Kumar's
term, a11d consequently Justice Wad's term, should be

D
extended by a further period of three months.

With regards,

Yours sincerely,
-
Sd/-
(Y. V. Chandrachud)

Shri P. Shiv Shanker,
Minister for Law, Justice
E and Company Affairs,
New Delhi."

This letter recommends a further extension by three months to
Shri S.N. Kumar pending further enquiry by the Chief Justice of
F India on the contents of some l.B. report. But the Chi-tf Justice cf
.India is categorical . that the three reasons viz. "(I) that serious
complaints were received against Justice S.N. Kumar orally as well
as in writing; (2) that Justice Ku.mar was not very helpful in
disposing of cases; and (3) that some responsible members of the
Bar and the Bench had expressed doubts about Justice Kumar's }'
G integrity" given by the Chief Justice of the Delhi High Court were
unsustainable. The letter refers to tb.e meeti!1g of March 26, 1981
between tb.e (;b.ief Justice of India and tb.e Chief Justice of the Delhi
High Court. The rest of the contents are self-explanatory.. This
let~er is followed by the letter of May 29, 1981 by the Chief Justice
H of lndia to tile Law Mipister whi1;h rµns as under ; ~ '
s.P. GUPTA v. UNION (Venkataramiah; J.) 1413

"CHIEF JUSTICE OF INDIA A
SUPREME COURT OF INDIA
NEW DELHI
Confidential May 29, 1981

My Dear Shiv Shanker,

While in Simla, I received your letter dated May
21, 1981 in connection with the extension of the term
of Justice S.N. Kumar and Justice S.B. Wad whose
term as Additional Judges of the Delhi High Court is
due to expire on June 6, 1981. Immediately on receipt .c
of your letter I sent a reply to you dated May 22,
1981, recommending, for the time being, that the term
of the two Judges be extended by a furiher period of
three months. In so far as Jtistice Wad is concerned,
there was no difficulty in recommending the extension
of bis term for the normal period of two years pr until
the occurrence of a permanent vacancy. but that could ·
.not be done since he is junior in appointment to Justice
S.N. Kumar and a further report from the I.B. was
enclosed along with your aforesaid letter in regard to
Justice Kumar. I had stated in my reply that after
my return to Delhi I will make enquiries into the .E
· allegations contained in the l.B. repoct against Justice
Kumar and shall thereafter tender my advice on the
question regarding the f,urther extension of his term.

The report of the l.B. contains the following ·F
information in regard to Justice Kumar :

(Portion relating to I.B. report omitted)

I have already stated in my reply of the 22nd that G
I do not agree that Justice Kumar's term should not be
extended as an additional Judge for.· the reason either
that he is slow in bis disposals or that he Jacks
integrity .
•
I, t berefore, recommend that the term of Justice H
S. N. Kumar as an Additional Judge should be extend-
ed by a further p~rjog of two rear~. '
1414 SUYRliME COURT REPORTS (1982) 2 S.C.R.

As a consequence, the term of Justice S.B. Wad
should also be extended by a further period of-two
years.

With regards,

Yours sincerely,
B
Sd/-
(Y.V. Chandrachud)

Shri P. Shiv Shanker, •
Minister of Law, Justice
c And Company Affatrs,
New Delhi."

This letter recommends an extension of two years of Shri S.N.
Kumar instead of three months' extension recommended in the letter
of May 22, 1981. But by .the time the letter of May 29, 1981 was
D received, the Law Minister had recorded his note on May 27, 1981,
the relevant part of which reads : ·

(
"In my letter to the C. J. I. dated 21.5 .1981, I
categorically N'quested to have the details of inquiries
f.
that he might have made in terms of his advice dated
E
3.3.1981. I desired the details consciously as I did so
with the Chief Justice of Delhi High Court since the
C.J.I. termed the letter of C.J. Delhi dated 19.2.81.
addressed to me as too vague to accept that Shri
Kumar lacks integrity. I regret that notwithstanding
F my specific request as to details, the CJ.I. did not
furnish me the same and on the contrary reading his
letter dated 22. 5. 81 would reveal that he became a
victim of hi-s own charge of vagueness made by him
against the Chief Justice of Delhi. C.J.I. cloes mention
that C.J. Delhi met him on 26.3.1981. He also refers
about the · common practice in the · Delhi High
G
Court that even after the allocation of a Judge is
changed from the original side to the appellat(: side
and vice-versa, he continues to take up part-
heard cases on which a substantial an11ount of
H time has been already spent. I presume that when
'
C.J. Delhi and the C.J. of the Supreme Court met, the
former myst have informed the latter about the d<:tails
S.P. GUPTA v. UNJON,(Venkataramiah, J.) 1415

that he had mentionP.d to me in his lett~r dated ,7.5.81. A
This presumption. is raised on the basis of.the letters
from the Chief Justice, Delhi. Even cassuming that
there is a prevaient practice as referred to by the C.J .I.,
the C.J.I; Iiimself says that such cases .should be those ·
on _which substantial amount of. time has been already
.,. -
spent. The CJ.I. surprisingly has left the matter there, B
· without further probing as to whether the pa·rt-heard
matters which Justice Kumar· chose to handle as a
single.Judge notwithstanding his having been allocated
to the Division Bench were such on which substantial
· amount"°of time had already been spent by him. The
C.J.I. in his advice proceeds from the premises that
c
·taking up part-heard cases after the allocation of work
is' changed does not amount to lacking in integrity. ·
If it were that simple I would not have joined issue,
but the details furnished by the C.J. Dellii in his letter

, dated 7-5-81 go further.

The C.J.I. also observes that he made inquiries in
regard to Justice Kumar's integrity generally. The
D

C.J.I. states that in bis general inquiries no member of
the Bar or the Bench doubted the integrity of Justice
Kumar. I regret that the letter of C.J.I. is not only
Jacking in details as desired by me but too vague. The E
premises on which he does not doubt the integrity of
Shri Justice Kumar is wholly different. ' ·

In the matter of assessment of integrity', I prefer
. that the veiws of C.J. Drlhi_ be given credence as it is
in his association that the Judge concerned discharges F
his duties and that .he has a better occasion and
opportunity to watch his working and conduct. The
correspondence from the C.J.' of Delhi addressed to me
furnishes clear details which cannot easily by brushed
aside.
G
I therfore agree with the observations contained
in the note of the Secretary (Justice) and opine that
Shri Justice S.N. Kumar may not be continued any
further as· additional· Judge of the Delhi High Court
after the expiry of the present tenure Oil 7.6.1981 anq
thus recommenq !IC'?ordingly" '.
1416 SUPR~MB COURT REPORTS (1982) 2 s.c.R.

In the earlier part of the aforesaid note, the Law Minister has
stated that he "would avoid going to the I.B. Reports of Shri
Kumar's disposals or even the behaviour in the Court and prefer to
confine to the question of reputation and 'integrity" of Shri S.N.
Kumar. The consultation process thus came to an end.

B The two questions to be considered here are whether the Union
Government committed an error am·ounting to an unfair act in not
sending the letter of May 7, 1981 of the Chief Justice of the Delhi
High Court to the Chief Justice of India and w)lether on account of
not sending that letter, the consultation process is vitiated. The
note of May 19, 1981 of the Law Minister containing the reasons
c given by the Delhi Chief Justice for requesting th~ Law Minister not
to send the letter of May 7, 1981 to anybody else is confirmed by
the following letter da:ted May 29, 1981 written by the Law Minister
to the Delhi Chief Justice :

D "D.O. No~ 50/2W/81-Jus. Part
May 29, 1981

My dear Chief Justice,

When you spoke to me on 18th· May, 1981, you
E had requested me that the letter that you were propos-
ing to send to me regarding Justice O.N. Vohra should
be kept secret for personal attention only. You had
made a similar request about letter dated 7th May,
1981 regarding Justice S.N. Kumar. On my request
you elucidated that when you marked your letter dated
7th May, 198 I, "secret for Personal Attention only"
what you were particular about was that the letter may
not be brought to the notice of Chief Justice of India
for the following reasons :-

I. · For the reasons stated in the opening portion ?
G of your letter dated 7th May, 1981.
2. You felt highly embarassed as the c:ontents of
your letter dated .19th February, 1981 about
Shri Kumar came clearly to be known to Shri
H S.N. Kumar and some of his colleagues on
the Bench. You felt that the contents of
your letter dated 7th May, 1981 might .also
s. i>. oui>TA v. tn.lioN lvenkataramiah, J.) 1417
get known to them and cause you further A
embarassment.

3. You felt that the Chief Justice of India bad
already started wrongfully denigrating you
for your letter of February 19, 1981.
B
2. You mentioned that you could not desist from
expressing without fear or favour what you felt
about certain matter but at the same time you
· were particular that your relations with the Chief
Justice of India should not .be spoiled.
c
3. For similar reasons you were particular that your

- letter regarding Shri O.N. Vohra should not be
sent to him as also for the additional reason that
a senior counsel whose name figured .therein had
enjoined secrecy. Your letter regarding Shri O.N.
Vohra dated 22nd May, 1981 has since been received
D
by us.

4. In view of. the emphasis laid by you on keeping
these letters confidential from the Chief Justice of ·
India we have not shown these to him. This is
for favour of your information.
E

With regards,

-
Yours sincerely,
Sd1-. F
(P. Shiv Shanker)
Shri Prakash Narain,
Chief Justice,
Delhi High Court,
New Delhi."
G
The note of the Law Minister dated May 19, 1981 and the letter
of May 29; 1981 written by the Law Minister to the Delhi Chief
Justice which refer to the request of the Delhi Chief Justice clearly
establish that the letter of May 7, 1981 was not sent to the Chief
Justice of India not as part of any conspiracy o.r pact between the H
Law Minister and the Delhi Chief Justice but at the reque;t of the
Delhi Chief Justice. It is not also shown as to what advantage the
•

i418 SUPREME COURT REPORTS (1982) 2 s.C.lt

A Law Minister was deriving by withholding the said letter from the
knowledge of the Chief Justice of India unless we.start with the
assumption that for some undisclosed reason the Law Minister was +·
bent upon treating Shri S.N. Kumar with an 'evil eye and an uneven
hand' and for that reason:he kept back the letter froni the knowledge
of the Chief Justice of India. The Chief Justice has given three rea-
B sons for requesting the Law Minister not to send the letter outside his
office. The first reason is, according to the Chief Justice, contained
in' the first paragraph of the letter of May 7, 198l. That paragraph
refer to the meeting which had taken place between the Chief Justice
of India and himself on March 26, 1981 on all relevant point relating
to the proposal of reappointment of Shri S.N. Kumar and the fact
c that he had written the letter of March 28, ·1981 to the Law Minister

-
'as desired' by the Chief Justice of India. That there was full and
frank discussion between the Chief Justice of India and the Delhi
Chief Justice with reference to the very particulars referred to in the
letter of May 7, 1981 is Clear by the following facts : (i) The state-
ment "with regard to the complaints about Justice Kumar's integrity
D and general conduct, the matter has already been discussed between
us" which is found in the letter of March 28. 1981 written by the
Delhi Chief Justice to the Chief Justice of India, (ii) the reference
to the meeting in the letter of the same date addressed by the Delhi
Chief Justice to the Law Minister enclosing a copy of the above
said letter dated March 28. 1981, (iii) the reference to the meeting
1
E in the letter of the Law Minister t~ the Chief Justice of India dated
May 21, 1981 and (iv) the reference to the meeting in ·the letter of
the Chief Jlistice of India dated May 22, 1981 written from Simla. .;
This is further supported by the affidavit dated July 17, 1981 of Shri
S.N. Kumar himself which had been filed long before the date on
F which .documents in question were directed to be disclosed by the
Court i.e. in October, 1981. The relevant part of the aforesaid
affidavit of Shri S.N. Kumar reads:

"Hon'ble the Chief Justice of India, on the other hand
-
discussed the matter with me at length about my work
and other general matters. I gave him full and true 7
G
information and supplied him relevant papers for his
consideration. Since thr Government has n9t disclos-
ed the reasons for its action I have no other course
open but to apprise this Court briefly of what is in my
H knowledge. It was alleged that I was slow and that it
was improper for me to continue to deal with original
S.1'. GtJPTA v. UNiON (Venkataramiah, J.) 1419

· work while sitting on the a·ppeltate side, A compara- A
tive assessment of work disposed of by eight Judges
who sat on the original side with me showed that the
work disposed of by me was· nearly maximum. I
disposed of 8i'7 matters' during 256 sittings out of
which 385 were civil suits and 442 miscellaneous
matters.
B

RegardiPg the second allegation, I say that on the
contrary it would be improper for a judge not to finish
-·· a part heard matter. I acted in accordanc~ with well
established practice of Court I know that two judges c
of this Court threatened issuing of contempt notice to
the officer concerned who removed a part heard matter
'from . their lists. The ·practice is so well understood
that the Registry of the Court its'elf fixes cases accor-
dingly in routine. Furthermore a perusal of the procee-
dings in the part heard' matters would reveal the D
ridiculous nature of the allegations'' .

. Then Shri S.N. Kumar refers to the proceedings .in Suit No.
5/1980, Suit No. 87/1975, Suit Nos. 1408, 1409 and 1417/1979, Suit
No. 304/1974, Suit No. 327/1979, Ex. No. 11/1978, C.C.P. No. E
13/1979 and Suit No. 73/1979. Thereafter he says:

"20. As stated above, !informed the Chief Justice of
India that the old established practice in Delhi High
, Court is that.a part heard matter goes with the Judges
and is heard by him whether he goes over from the F
appellate side to the original side or vice versa. A
bunch of over 30 part heard Regular Division Bench
matters were heard during January and February, 1981
on Friday by me sitting .with Chawla, J. while I was
holding court singly on the Original Side w.e.f.
5.1.1981. L.P.A. 32 of 1980 was heard during
G
February, 81 by me while sitting with Mr. Chawla, J.
Even on 24th April, 1981 (Friday) when the aforesaied
material was sent to the Chief Justice of India by me
the foliowing part-heard matters were posted in the H
Division Bench of which I was a member :
i42Ci ~tiPRBME CoURT RBPO~ts [19821 2 s.c.a,
A (1) Civil Writ No. 557/79 and Civil Wrft No.
1231 of 1979.
(2) Civil Writ No. 61/80 with C.Ms.
+

Practically every· week once from January, 81
B till the end of May, 81, I was sitting in Division Bench
with Chawla, J. to finish part-heard matters."

When a question was put by the Court as to who gave the
particulars of the cases referred to above, the learned counsel
mentioned that they were given by the Chief Justice of India. That
c · means that the Chief Justice of India had been furnished all the
particulars by the Delhi Chief ·Justice earlier at the meeting which
took place on March 26, 1981.and the Chief Justice of}ndia had
also the explanation of Shri S.N. Kumar. It i& not necessary for
us here to assess correctness or otherwise of the conflicting versions
of the Chief Justice of the Delhi High Court and of Shri S.N.
0
Kumar bearing on the matters referred to above but tlie aforesaid
particulars are sufficient to hold that sufficient information was
available with the Chief Justice of India to record his opinion on
the question of appointment of Shri S. N. Kumar and no material of
any substantial importance had been kept back from the knowledge
of the Chief Justice of India. The letter of May 7, 1981 written by
1
E
the Chief Justice of the Delhi High. Court to the Law Minister
which is quoted above more or less contained the same particulars.
There would have been some reason to complain if the material
contained in the letter of May 7, 1981 was favourable to Shri S.N.
Kumar and the Chief Justice of India had recommended that Shri
F S.N. Kumar should not be appointed in ignorance of the contents of
the letter of May 7, 1981. On the other hand, on the basis of the
material which had been made' available to him, the Chief Justice
of India had made a report favourable to Shri S.N. Kumar. There
appears to be not much substance in the submission that Shri S.N.
Kumar was denied the benefit of a further refutation by the Chief
G Justice of India of the allegations in the letter of May 7, 1981 and
that he had suffered thereby. Such reiteration whould not have
added any further strength to hi~ case. It cannot, therefore, he said·
that the process of consultation ,had become de[ecti ve or that Shri
S.N. Kumar had been prejudiced by reason of the Government
·H keeping back the Jetter dated May 7, 1981 from the knowledge of
the Chief Justice of India out of respect to the wishes of the Chief
Justice of the Delhi High Court.

•
S.Jl. OUM'A v. UNION (Yenkataramialt, J.) 1421
A
One of the arguments urged on the basis of the Law Minister's
not dated May 19, 198.J may be disposed of here. That argument
is that since the Chief Justice.of the Delhi High.Court had stated
that he was looking int<,> the file of the 'Kissa Kursi Ka' case in
which Shri 0.N. Vohra had convicted late Shri Sanjay Gandhi (son
of the Pi:ime Minister) who was later on acquitted by· the Supreme B
Court, the Chief Justice of the Delhi High Court was looking into
irrelevant papers at the instance of the Law Minister or the Prime
Minister to find out some material against Shri O.N. Vohra who
was also not continued as additional Judge and hence his opinion
given against Shri S.N. Kumar also was a motivated one. Apart
from the above reference to his looking into the file of 'Kissa Kursi
c
Ka' case, ·we do not have any other material to draw the above
conclusjon except the fact that Shri Vohra also had not been con-
tinued. It is not known what opinion was expressed by the Delhi
Chief Justice on that material. Sbri Vohra himself has not ques-
tioned the decision taken in his behelf. The Court cannot go
outside the record. Prejudice· and passion cannot be allowed to
n.
overtake reason. It is not open to the Court to draw an adverse
inference against the Chief Justice of the Delhi High Court who is.
not before the Court. Any attempt. to do. so would be an unjudicial
act. There is, therefore, no merit in this contention.
E
It is, however, contended that the Law Minister had tried to
'preempt' the decisio:u on the issue by making up his mind on May
· 27, 1981 not to reappoint Shti S.N. Kumar even. before the Chief
Justice of India w.rote his final letter dated May 29, 1981 recom-
mending reappointment of Shri Kumar for a period of two years
instead of three months as stated in the letter dated May 22, 1981. F
There does not appear to be any undue haste or impropriety on the
part of the Law Minister in making his recommendation not to
appoint Shri Kumar on May 27, 1981 for two reasons : (I) that the
Government had to take a decision on that question on. or before
May 27, 1981 as directed by the interim order referred to above and
\ (2) that tqe Law Minister had expressly kept out of consideration the G
I.B. reports while taking his decision, as can be seen from the note of -
May 27, 1981 on which alone the Chief Justice of India had reserved
his opinion in his letter dated May 22, 1981 which showed that on
the other questions he had finally expressed his opinion. Another
point which may be noticed here is that the granting of ·extension H
to a Judge pending enquiry into a material aspect of the case may
not strictly be . in consonance with the Constitution. It may be
irregular to issue a warrant of appointment pending inquiry into the
1422 stJJ>RllME cot.JRT RllPbil.ts [1982J i s.c.a.

A fitness of the person to be nppointed as a Judge. Hence it . cannot
be sad that the.re was any transgression of ordinary rule of official
conduct on the part of the Government in finaily processing the file
by May 27, 1981..

The Pre~dent has taken his decision on a consideration of the
B material before him and in doing so he is·not shown to have relied
on any irrelevant ground. The President, as observed earlier, is
entitled to arrive at his own decision on the question of appointment
of a Judge after consultation with the dignitaries mentioned in
Article 217(1) of the Constitution. He is not, however, bound by
the opinion of any of them although he is expected to give due regard
c to the opinions expressed by them The President in the instant
case has, as stated by the learned Attorney General, out of prudence
deeided not to reappoint Shri S.N. Kumar as the opinions of the
two constitutional dignitaries were conflicting on the question of in-
tegrity, a question vital to the appointment ofa Judge. There appears
to be no constitutional impropriety in the decision of the President.
D The reason for not reappointing Shri Kumar is not an irrelevant one.
Moreover there is a distinction between the appointment of a Judge
without proper and effective consultation as required by Article
217(1) and a non·appointment of a person as a Judge preceded by
defective consultation. In the former case the validity of the
appointment may be open 'to question but in the latter case
E ordinarily no petition will lie except under an extra ordinary case
like the one here where the scope of Article 224 of the
Constitution was not correctly understood by the authorities.
Every one of the authorities viz. the Law Minister, the Chi<if Justice
of India and the Chief Justice of the Delhi High Court has dis-
F charged his duties in this case with a sense of responsibility. But it
is unfortunate that they could not arrive at an unanimous opinion.
If the reasons had been irrelevant, probably the Court could have
asked the Government to reconsider the matter. ,But that is not
the case here.

G Shri· R.K. Garg, learned counsel for Shri Kumar strenuously
urged before us that Shri S.N. Kumar was ready to establish his
innocence and an opportunity should be given to him to do so. His
anxiety in making that submission is quite understandable. But
unfortunately the Court cannot undertake this function in view of
H the restricted scope of the jurisdictiOn of this Court in this
case. In spite of the limitations which appeared to exist at the
earlier stages of this case, this case has turned out to be r1:markable
s.t>. ·OUl>tA v. UNION (Yenkataramiah, J.) .1423

for two reasons. Fiist, the Court directed for the purpose of
deciding this case the disclosure of the documents relating .to ,the '
_,. appointment to a high constitutional office which may not have
been possible in ·any other Commonwealth country even now and
secondly the Court has come to the conclusion that it is open to
the Court to determine whether the decision not to reappoint Shri
S.N. K'umar was due to cogent reasons or ·not in the peculiar B
circumstances of this case even when the relevant constitutional
provisions are silent about it. In these two respects, this case should
be considered as an important milestone in the development . of
administrative law in our country. The Court, however, cannot
proceed further in this case and try to find out the truth or .other-
wise of the complaints said to . have been made against Shri S.N. c
Kumar. It is true that lf the complaints are really untrue, then
Shri Kumar has paid the penalty for no fault committed by him.
a
But it should be matter of some consolation that the Chief Justice
of lndi~ has 'exonerated him fully. It is also made clear· that the
Court has dedined to grant the prayer of Shri S.N. Kumar without
D
expressing any opinion one way or the other on · his integrity or
efficiency. The result of this case should demonstrate to all those
who are today holding the" posts of fodges and to those who aspire
after judgeships how difficult it is to maintain the fair · image of a
Judge. The decision of the President not to appoint Shri S.N. Kumar
as an additional Judge of the High Court df Delhi cannot, therefore, E
be interfered with. .

PART X

- The validity of the circular letter dated March 18, 1981 sent
by the Law Minister to all the Chief Ministers is seriously assailed
before us by the petitioners; It is contended by them that the letter
amounts to a threat to all the' additional Judges whose. consent for
F

being appointed as permanent Judges in High Courts other than
the one in whjch they were working is sought. The Government
contends that the letter does not contain any such threat and that G
it had been sent in o_rder to implement the policy of the Government
to have some Judges. in every High Court who belong to other
States. By the letter in question, the Law Minister has requested
the Chief Ministers of States (except North-Eastern States) and the
Governor of Punjab to ascertain the wishes of all additional Judges H
working in their High.Courts and persons whose names have been
recommended fo~ ap.pointment as Judges of High Courts whether
1424 $lJPRllME COtJltt llllPOllTS (19821 2 s.c.R., ·

A they are willing to work in High Courts outside t~eir States.. The
circular letter reads :

"D.0. No. 66/10/81-Jus.
Minister of Law Justice
and Company Affairs, India
B New Delhi-11000 I.
March 18, 1981

My dear,

c It has repeatedly been suggested to Government
over the years by several bodies and forums including
the States Re-organisation Commission, the Law
Commission and various· Bar·· Associations that to
further national integration and to combat narrow
....
parochial tendencies bred by caste, kinship and ~other
D local links and affiliations, one third of the Judges of
a High Court should as far as possible be from outside
the State in which that High Court is situated. Some· •
how, no start could ·be made in the past in this
direction. The feeling is strong, growing and justified
that some effec,tive steps should be taken very early
E in this direction.

2. In this context, I would request you to- ·

(a) obtain· from all the Additional Judges
working in the High Court of 'your State
F their consent to be. appointed as Perman~nt
Judges in any other High Court in the
country. They could, in addition, be request-
ed to name three High Courts, in order of
perference, to which they would prefer to be
· appointed as Permanent Judges; and l
.G
(b) Obtain from persons who have already been
or may in the future be proposed by you for
initial appointment their consent to be
H appointed to any other High Court in th.e
country alongwith a similar preference for
three High Courts.
S.P. GUPTA v. UNION (Venkataramiah, J.) 1425

3. While obtaining the consent and the preference·of A
the persons mentioned in paragraph 2 above, it may be
made clear to them that the furnishing of the consent
or the indication of a preference does not imply any
commitment on the part of Government either in
regard to their appointment or· in regard to accom-
modation in accordance with the preferences given. B

4. I would be grateful if action is initiated very early
by you and the written consent. and preferences of all
Additional Judges as well as of persons recom.mended
by you for initial appointment are sent to me within a
fortnight of the receipt of this letter. C
S. I am also sending a copy of this letter to the
Chief Justice of your Hi~h,Court.

With regards, .
D
Yours sincerely,
. Sd/-
(P. Shiv Shanker)

To
E
1. Governor of Punjab
•
2. Chief Ministers (by name) (except North-Eastern
States)

In its Fourteenth Report, the Law Commission suggested that F.
the whole country should be treated as a single unit for the purpose
of selection of Judges of the High Court. The relevant part of the
report reads :

"59. Further, the whole country must be treated as a
single unit for the purpose of selection as it is vitally G
important that the best available talent which the
country is capable of providing be mobilized for the
task of meeting a situation which has undoubtedly
assumed the proportions of an emergency. If suitable
persons of the necessary merit and character are in the H
opiriion of the appointing authority not available in
thi: St;j.te, the authority $h911ld not hesitate to draw
1426 SUPRBMll COURT RBPORTS [1982] 2 s.c.a.

A upon persons available in other States. Selections
from the Bar must necessarily be of persons of out-
standing merit commanding a large practice who ·may
Well be willing to make a pecuniary sacrifice and render
public service by accepting these judgeships. An effort
should be made to persuade suitable senior practi-
B tioners to accept these judgeships at least for a short
period as a public duty. Their position at the Bar
must be of such eminence that it could not be suggest-
ed that acceptance by them of judgeships . was likely to
increase their earnings on their reverting to the Bar."
(Vide Para 59 in Chapter 6 of the 14th Report of the
c Law Commission of India, V:ol. I)

The advantages gained by having persons from other States as
Judges of High Court were'stated by the·Law Commission presided
over by Justice H.R. Khanna, in its 80th Report thus :
D "6.21. We may next deal with the question of having
in each High Court about one-third of judges from
outside the State. Recommendation for this purpose
was made by the States Reorganisation Commission.
1
• The Law Commission presided over by Mr. Setalvad
E in its fourteenth Report observed in this connection :

"The recent creation of various zones in the
country and the efforts to treat the States forming
part of these zones as one unit for various pur-
poses would we hope, lead to the States forming
F part of each· zone tv be recruiting ground for
appointments to the High Courts from the mem-
bers of the Bar in these States. It is hoped that
in this manner the expectation of the States.
Reorganisation ·commission that at least one·
third of the High Court judges ·would be persons
G drawn from outside the State will be realised".

Likewise, the Study Team on Centre-State
Relations appointed by _the Adminisirative Reforms
Commission also suggested that so far as practicable ...
ff one-third of the number of judges of a High Court
~hould be from. outsid~.
S.P. GUPTA v. UNION (Venkatilramiah, J.). 1427\

A
We have given the matter our earnest considera-
tion and are in substantial agreement with the recom-
._.,.
mendations mentioned above., In our opinion, there
should be a convention,. according to which one-third
of judges in each High Court should be from another
State. This would normally have to be done through
B
the process of initial appointments and not by transfer.
It would also in the very nature of things be a slow and·
. gradual process and take some .. years before we realc!h
th!\ proportion,

6.~2. Evolving such a. convention would, in our c

-
. opinion, not only help in the process of national
integration but would also improve the functioning of
various High Courts. It would secure on the Bench
.of.each High Court the presence of a number of judges
who would not . be swayed by local considerations or
affected by issues which may rouse local passions and
D
emotions. As observed by us in one of our earlier
Reports, one of the essential fhings for the d~e
administration of justice is· not only the capacity
of th~ judges to· bring a dispassionate approach to
cases handled by them, but also to inspire a feeling in
all concerned that a dispassionate approach would
E
-
underlie their decision. Quite . often, cases which
arouse strong emotional sentiments and regional feel-
ings come up before courts of law. To handle such
cases, we need judges who not only remain unaffected
by .local sentiments and regional feelings, but also F
appear to be so. None would be better suited for this
purpose than judges hailing from other States. It is a
common feeling amongst old lawyers that apart from
cases with political overtones, the English judges show-
ed a sense of great fairness and brought a dispassionate
approach in the disposal of judicial cases handled by G
them. We in India are in the fortunate position of
having a vast country. There can, therefore, be no
difficulty in having a certain percentage of judges who
- hail from othe'r States. The advantages gained by
having persons from other States as judg~s would be H
much greater compared with any disadvantage whicq
might result therefrom", · · ·
1428 SUPREME COURT REPORTS {1982] 2 s.c.i.

A While rejecting the contention that the transfers of High Court
Judges during the emergency in the year 1976 had been made in the
interests of national integration, ~Chandrachud, J. (as he then was)
observed in Sakal Chand Seth's case (supra) at page 450 thus :

B "As regard the first, no one can deny that whatever
measures are required to be taken in order to achieve
national integration would be in public interest.
Whether it is necessary to transfer Judges from one
High Court to another in the interest of national
integration is a moot point. But that is a p;licy
c matter with which courts are not concerned directly.

-
One may, however, venture, the observation that there
are numerous other ways of achieving natio11al
integration more effectively than by transferring High
Court judges from one High Court to another.
Considering the great inconvenience, hardship and
D possibly a slur, which a transfer from one High Court
to another involves, the better view would be to 'leave
the Judges untouched and take other measures to
achieve that purpose. If at all, on mature and
objective appraisal of the situation it is still felt that
there should be a fair sprinkling in the High Court
E judiciary of persons belonging to other States, that
object can be more easily ·and. effectively attained by
making appointments of outsiders initially. I would
only like to add that the record of this case does not
bear out the claim that any one of the 16 High Court'
Judges was transferred in order to further the cause of
F national integration". (emphasis added)

Untwalia, J. observed in that very case at page 507 thus :

"The purpose of national integration, if othenvise it is
G a good thing to be achieved, or the need of particular
High Court for a Judge possessing a particular type
of proficiency or some such grounds of public interest
can well be achieved at the time of the initial appoint-
ments; as for example, a member of th.e Bar practising
H in a particular High Court may be appointed at the
very threshold, if he so· agrees to be appointed, a
Judge of another High Court so that after retirement
\'. t ,. ' ~. • ! ~ .... .T ..... ' : , .' • .... ~;.
S.P. GUPTA v. UNION (Venkataramiah, J.) 1429
~
f '" ! . f. '

.he may come back and resume his practice in the
• • " '' • • . : • • I ;, ·
A
High Court where he wa"s so doillg. . '1 sh~ll. perhaps,
be crossing my permissibfo 'limits if I embark to write
an essay or a the'sis o'n the various 'aspects of the 'needs 0

of such public interest high-ligh"ti0g the minus points
also in them, nor. will it serve any useful purpose.
These are ma'tters of policy decision entirely within the
realm of the governmental power". (emphasis added)

These "two 'exfracts from the decision in Sakal Chand Sheth's
case (supra) cfoarly state that if as a matter o!f policy the Govern~
ment proposes to 'appoint some Judges in every High Court from·
outside the State, it is a matter within the realm of the Government.
c
They have- not siated that it is constitutionally impermissi~Ie to
do so.

The objections raised by the petitioners to the opinions of the
Law Commiesion referred to above are that they could not be relied o·
on as the said opinions had not been tested by the 'purifying process'
of an argument at the Bar and secondly the recruitment of members
of the Bar or of the subordinate judiciary functioning outside the
State would be unconstitutional as there would be no possibility of
an effective consultation with the Chief Justice of the High Court·
and the Governor of the concerned State as they would have no E
opportunity of personally assessing the quaiities of members of the
Bar and. the subordinate judiciary working outside their jurisdiction.

The Report of the Committees of the Law Commission are
entitled to great respect as they are prepared by experienced persons
F
after taking into consideration all relevant aspects and sometimes
the evidence collected by them from several sources. If they are to
be excluded many opinions expressed in many of the books relied on
by the pethioners themselves have to be excluded. Reports of the
Law Commission can be looked into to understand the history of
the legislation; the object with wh~ch certain legal provisions are G
enacted and 'what advantages may be d~rived by adopting a parti-
cular policy. Reports of the Law Commission have been made use
of by this Court earlier to understand the history of the legislation
which was under consideration and the object with which if was
passed. (Vide Balchand. /airi v, State of Madh)'a Pradesh.(1) ·The H
(1) - [1977] 2 SCR 52,
1430 SUPREME COURT REPORTS · [1982] 2 s.c.R:

A second limb of this argument over\O)kS the fact that the Constitu-
tion dues not state that the Chief Justice of the High Court and the _
Governor of the State should personally know the persJns recom-
mended under Article 217 of the Constitution and that they cannot
collect information about them by any other source such as the
Chief Justice of .the -High Court having jurisdiction over the area
B where they are working or the Governor of the other State. In the
true nature of things such personal knowledge cannot be insisted
upon. If that is insisted upon, the cons.ultation with the Chief
Justice of Irtdia itself may turn out to be ineffective for the very
same reason for he cannot be expected to have personal knowlege
about many persons whose names are recommended by the Chief
c Justices of the various High Courts and Governors. In the context
of Article 217, it has to be held that the functionaries who have to
express opinion under that Article can ascertain aff relevant infor-
mation about a person proposed for the appointment by any other
reasonable means and they need not know them personally. Any
other view would result in the exclusion of a large body of lawyers
D who are not practising before the High Courts from consideration
for appointment as High Court Judges, which certainly could not
· have been the intention of the Constitution makers.

. The next contention urged in this connection is that this is an
indirect attempt to transfer some additional Judges from one High
E
Court to another. It cannot be so for the reason that the transfer
of an additional Judge (appointed under Article 224(1) ) unless the
arrears"have been cleared off and the transfer of an acting Judge
(appointed under Article 224(2)) in any-event would not be possible
at all. An additional Judge is appointed for a term not exceeding
two yeJ!.rS only with a view to clearing· off the arrears in a High
F
Court. If that is the sole object of appointing him, how can he be
transferred as an additional Judge in the public interest from that
Court to another Court unless the purpose for which -he is
appointed is achieved namely, clearing off the arrears? Moreover
when his stay as an additional Judge is very short it would not
G subserve the interest of efficiency of public service if he is mact'e to
work in more than one High Court during that short period unless
there is not sufficient work to be assigned to him in the High Court
in which he is initially appointed as an additional Judge. The case
of an acting Judge appointed under Article 224(2) of thu Constitu-
H tion is a self-evident one. An acting Judge is appointed to act as. a
Jud~e until the permanent Judge in whose place he is appointed ha~
s.P. GUPTA v. UNION (Venkataramiah, J.) 1431

resumed his office. He cannot, therefore, be transferred under A
Article 222 contrary to the express terms of Article 224(2). In view
of this declaration the petitioners cannot entertain any suspicion
that the circular letter has been issued to achieve the object
of transferring additional Judges, during their tenure fixed under
Article 224(1). This, however, does not come in the way of an
additional Judge or an acting JuJge being appointed as a permanent B
Judge either in his own High Court or in any other High Court
before the tenure specified under Article 224( l) or Article 224(2),
as the case may be, comes to an end. .

I also do not find .any substance in the submission made on
behalf of some of the petitioners that the circular letter of the Law
c
- Minister suggests that the additional Judges who have not given
their consent would be under a disadvantage in the -1ilatter of their
continuance as additional Judges or of their appointment as perma·
nent Judges· in their own Court. The learned Attorney-General has
stated before the Court that 'beyond any inherent or incidental
D
advantage that the implemeptation of the policy of appointing out·
side Judges may confer, no other advantage or disadvantage is to be
visited on any person by reason of his having given consent or his
refusal in response to the inquiry stated in the impugned letter of
18th March, 1981'. In view of the above statement, I take it that
the portion in paragraph 3 of the letter, namely, 'it may
be made clear to them that the furnishing of the consent
· or the indication of a preference does not imply any commit-
ment on the part of Government either " in regard. to their
appointment or in regard to accommodation in accordance with the
preference given' does not carry with it ·any sinister design. It is
submitted on behalf of the Government that such a ·statement had F
to be made because the necessary censultations under Article
217(1) of the Constitution had yet 'to be made. This explanation
is ·accepted reserving liberty to any additional Judge, who is
prejudiced by his not givfng consent, to approach the Court for
appropriate relief if an occasion arises to do so.
G
There is also no merit in the contention. that since the·circular
letter. has been addressed without the previous consultation of the
Chief Justice of India, Article 217(1) and Article 222 of the Cons-
titution had been violated. The letter as can be seen from its tenure
. is intended to find out whether any additional Judge is willing to be
appointed as a Judge in any othe( Hit?h Cou_rt. ~uch a~point~en~

- ·-·---·-.
1432 SUPREME COURT REPORTS I1982) 2 S;C.R
A has to be made only in accordance with Article 217(1) of the <;ons-
titution. Before making such appointment, the President had to
consult all the functionaries mentioned in Article 217(1) inciuding
the Chief Justice of India. Article 222 .of the Constitution does
not ·come into picture at all as no transfer is contemplated under'
the letter. The letter relates to initial appointments only. In the
B circumstances there is no error committed by the Law Minister in
writing the inpugned letter to the Chief Ministers.

• All the co~tentions of the petitioners regarding the circular
letter of the Law Minister dated March 18, 1981, therefore fail.

PART XI

We are concerned in the case of Shri KB.N. Singh with the
question Wh~ther the order of his transfer as the Chief Justice
-
D of the High Court of Madras is valid or not. Earlier it has been
held that the consent of the Judge to be transferred is not necessary
under Article 222 of the Constitution and that such transfer can be
made in the public interest as laid down by the majority in Sakal
Chand Sheth's case (supra). The order in question is an adminis- 1
tr.ative order which is passed by the President in .accordance with the
E opinion expressed by the Chief Justice of India, who is the sole
authority to be consulted under Article 222. In this case also as
per. directions of this Court, the relevant papers· have been pro-
duced by the Union Goverment. It is urged that the manner in

-
which consultation is made in this case is not in accordance with law
as the President had not initially asked the Chief Justice of India
F to gi-ve his opinion on the question of transfer of Shri K.B.N.
Singh but the Chief Justice of India had on bis own accord
'
advised the Union Government to. transfer him first to the High
Court of Rajasthan and later on to the High Court of Madras.
Article 222 does not lay down the procedure to be followed for
effecting a transfer. Even granting that the proceedings for transfer
G
a
of Judge are initiated by the Chief Justice of India the order of
transfer would not be bad as under Article 217 (I) of the Constitu-
tion which is couched in almost the same language, an appointment
of a Judge would not be bad only because the Chief Justice · of a
H High Court who is one of the autlJ.orities to be consulted initiates
the proposal. In fact the practice has been that the Chief
Ju~tice of the l-lii:h Court invariably initiates it. This conten-
•

S.P. OuptA. v. UNION (Jlenkataramiah, J.) 14l3
. , I

tion is'not therefbre' one'of sut1stiince!. The' crux of me· question
is wlietlier'the authority exercising' the power of.transfer has brought
to the knowledge of the authority to be consulted all' the relevant
material with .it and has given sufficient opportunity .to· tender his
opinion. Thete is n·o allegation that'tlle',Gov~rnment had kept back .
any relevant information from the· Chief Justice of lhdia: The'·
Chief Justice of India himself says in his counter affidavit that there
was full and effective consultation witli hiin. A fair reading of the
letter of the Chief Justice of fodia dated December 7, 1980 shows
that there was prior discussion about· the question of transfers of
Chief Justices of High Courts and that there was a suggestion by the
Government that.there should be a- transfer of all Chief Justices of
High Courts so that in every High.. C.ourt there was a Chief Justice
c
who hailed from outside the State. This suggestion stems from the
proposed policy of the Government which is clear from the state~
ment of the Law Minister in the Lok Sabha on July 24, 1980, the
relevant part of which reads : " Policy is whether we . should
have the«.:~hief JustiCe from outside. This is the policy. How we D
should have.is·a matter of mechanism." .There are similar refe-
rences ;to it•in some other. speeches' of·the'Law Minister both in the
Lok Sabha and in the Rajya1Sabha:. Even though it' appears from
1

some·of the speeches of the Law· Ministert.that such· a policy had
not taken a fi'nal shape, the· ChierJustice:ofllndia had been told that
the Government had'an'idea~to bring1int0force·such a policy before E
the middle1ofl980.. From certain notings" on the file• relating to
the appointment of ChieHustice of the· Delhi High C~urt which
were·disclosed by'the Union Governm~nt as per orders~of the Court
dated November.18, 1981 it. is evident· that there was discussion
between the Central Government and,- thei Chief Justice· of India
about the policy of appointing the Chief Justice of every High Court F .
from outside, the,State. The first.note.of the Law Minister dated
May 15, 1980, where he specifically refers to the said policy refers to
the discussion he had with the Chief Justice of India on it. The
next' note inthat•fi!e· is' of·the Chief.Justice of India. It is dated
June 5; 1980 an'd the relevant part of it· reads :
G·

"lt would become.necessary:in the ·very near future to
evolve an All India policy for. appointments of Chief
Justices in the various High Courts. ·The difficulties in
taking any,ad hoc decision on that question are of such
grave magnM:ude that it would be impossible at this
1434 SUPREME COURT REPORTS [1982) 2 S.C.l

·A stage to appoint an outsider as a Chief Justice either
of the Delhi High Court or of the Andhra Pradesh
High Court "

• This note is followed by the note of th! Law Minister dated
July 21, 1980. In that it is stated :
B
"The Chief Justice of India and I had a detailed
discussion yesterday morning on the question of
appointment and transfer of Chief Justices of the High
Courts so that .the position of the Chief Justice of a
High Court is held by an outsider as a matter of policy.
This would avoid discriminatory treatment which
0
would have otherwise invited· undue criticism ..

In view of the discussion with the C.J.I., it appears
0 desirable to appoint Shri Justice Prakash Na.rain as
the Permanent Chief Justice of the Delhi High Court •.
and Shri Justice Kuppuswami as Permanent Chief
Justice of Andhra Pradesh High Court, subject to the
general policy decition oil having the Chief Justice:
from outsid.e that High Court. It is clearly under-
E sto_od that subject to the genera.I policy decision and
the mechanism that would be evolved to give effect
to that policy, Shri Justice Prakash Narain and
Shri Justice Kuppuswami would be transferred to
different High Courts~ . . . . . ..... "
F
Then there is a long note dated July 31, 1.980 of the Chief
Justice of India in which he bas observed thus :

" ... The heart of the matter however is whether as, a
general All India policy, a Judge of a High Couirt
ought never to be appointed as the Chief Justice of
G that High Court. I am prepared to keep an open mind
on this question because the pros and cons of the
issue has still to be thrashed out. But the better view
may be that transfers of sitting Chief Justices may be
made. only in appropriate cases, that is to say, when
H a strong case for the transfer has been made out.
Similarly, appointments of Chief 'Justices may be
s.P. GU1>°i'A v. UNION (Venkatarainiah, J.) i43.5
made from outside, whenever the circumstances
A
warrant. This involves the assessment of each indivi-
dual situation as and when its asises ...

B
At this stage it is unnecessary to say anything
more on the subject except to clarify that though I
recognise the need to evolve an All India policy· for
appointments ·of Chief Justices in the various High
Courts, I do not think that it will be either feasible or
proper to transfer each and every sitting Chief Justice c
· of the High Court to another High Court, or io appoint
an· outside Judge as the Chief Justice whenever a
vacancy of a Chief Justice arises. Such a course will
introduce numerous complications the general nature
of which I have discussed with the Law Minister.
The question is so replete with practical difficulties and D
involves a question of such high principle that a very
careful thought shall have to be given to it before a
final decision is taken.

E
· I, therefore, reiterate my earlier recommendation
that Mr. Justice Prakash Narain should be appointed
as the permanent Chief Justice of. the Delhi High
Court and Shri Justice Kuppuswami as the permanent
Chief Justice:. of the Andhra Pradesh High Court.
I consider it unnecessary to add that these appoint- F
ments should be "subject to the general policy" .of.
appointing Cbief Justices from outside, because if,
eventually, a decision is taken that every Chief Justice
must come from outside, it will naturally become
necessary to consider the transfer of Mr. Justice
Prakash Narain and Mr. Justice Kuppuswami." G
I

The above notings show that the Chief Justice of India who
had been apprised of the proposed policy of .the Government had
not opposed the fransfe~ of Chief Justices of High Courts as a H
matter of policy but only had expressed certain points which needed
to be considered before taking a final decision on the question.
1436 stJl>ltllMll cotillT li.El>ottts (t 982) 2 s.c.tl.

A In this letter dated December 7, 1980 however the Chief Justice
. of India says "though I am firmly opposed to a wholesale transfers
of the Chief Justice of tbe High Courts, I take the view, which I
have expressed from time to time that such transfers may be
made in appropriate cases for stricitly objective reasons." It.is
true the Chief Justice of India stated that he was oppost:d to 'whole-
B sale transfers' but he does not appear to have opposed the policy of
having the Chief Justice of every High Court from outside the
State. This statement 'niay me~n that at the same. time the transfers
or appointments of all the Chief Justices of all the eighteen High
Courts in accordance with the p'alicy may not be advisable The~e
may be a Chief Justice,who has only three or four months of service
c before his superannuation~ There ·may he a Chief.Jµstice who is
ailing and who cannot th~refore..be m'aved to another High Court
immediately. Moreover the Chief Justice ~f India has to get into
touch with each one of the Chief Justices before an order of transfer
is made in his case to ascertain from him his pro~lems. There may
be some. difficulty in finding out a suitable High Court for a Chief
D Justice because the question of adjustment of seniority between him
and the other J~dg es of that Court may pose a problem.
It is probably on account of these difficulties the Chief "·
Justice of India stated that he was .opposed to ·a 'wholesale
transfer' of the Chief Justices. This statement cannot be read as
conveying the meaning that the ~hief Justice of India wanted that
E only some particular Chief Justice should be transferred or that the
policy should be implemented in the case of particular High Courts.
There is no doubt that a policy decision ·should ultimately be
applicable to all High Courts. But it can be applied by stages. A
policy or for that matter a law may have to be applied by stages in
differe_nt areas and in the case of different institutions or bodies by
reason of administrative compulsion and such application cannot be
considered as either arbitrary or capricious or unconstitutional.
a
Sometimes the application of policy or a law in all areas or in
respect of all institutions to which it is ultimately intended to apply
simuitaneously may defeat ,the very policy or law, even though it
may be otherwise beneficial. The difficulties involved in such 'whole-
G sale' application might have given rise to the difficulty expressed by
the Chief Justice. This appears to be a reasonable construction to
be placed on the sitid statement of the .Chief Justice of India.
One should remember. that the said statement is in a letter
and not in a statute and is one made in the· context of previous
H correspondence and discussions which have gone on for some +
S.P. GtJPt~, v. VNION.{Penkataramialr, J.) 1437

ti~e in an inforryial W~Y: Moreoye,r: a,p.J?ljcy is, not somethiJ)gv wbi~h A
should take the form of a formal statute or a written code. It can
be gathered from a course''or' action~;. COl}duct and can take' its
birth whe~-the fl~st step is taken'id its direction. . ..... .

The question of policy is a matter, entirely for the President to B
decide. Even though the Chief Justice of- India .is consulted in that
behalf by. the President since th~. policy relates to the. High Cour.ts,
his opinion is not binding.on the President. lt is open to the Presi-
dent to adopt any policy, which is sµbject only. to the judicial review
by the Court. Under Article 222 of- the Constitution the. Chief
.Justice of India has to be consulted on the· question whether a c
particular Judge should be transferred and ·where he should
be transferred1 w)lile implementing the, said policy. If the
Government requests, the Chief~ °Justice of; lndia to give his
opinion on. a transfer. to implement.the.said policy.w.hich is really
in the public interest he cannot decline to do. so. Even though the
Chief Justice.was opposed, to the.'wholesaleJransfers'.· ofrJµdges there
is no bar for.the.Government treating the., recommendation for trans-
fers made by the. ChieUustice,ofrlndia.as a., part of,.the.implementa-
tion of its. policy. That, the., transfer, of:Sbri. ~.B.N. Singh was on
account of·the .policy.of1the.,Governmeqt,caJI. be ·gathered: from the
following statemenfs,in th.et affidavits 1 ~led, before this Court : In
paragraph 8.of,tlw.,a!fid!lvlt date4.~Rt~m.ger,l6, l9811 o(~hri K.B.N. E
Singh. It.is stated,: "When the dep_qnent;wapte,d,tp kp,ow why he
might be transferred t(l M;l~ras, the_,Hon,'ble,sChjef. Jµstice of India
merely said, t~t; it was the,,Qovern1m;nt p9ljcy, but.gave. no clue as
to what necessit_ated1hi$,tran&fer frpm, PatQa '·to.· Madras.'." In para
2(g) of the .a~d~yit.o(ihe C~i~fJustj(ie, ,~f.'Ip4~~ h~ 1 h~s; ~~ated : "I
deny that w.hen,Shrj.K.ltN. Si.nghswa~ted:: to, kn,ow, qv% the tele-
·. phone on,Janu!!rY;S.: 19~!, I~ s!atl?fi m11r~IYith1L~' it 1was.tpe 'Govern-
ment policy' .. .'; In paragraph ·8 of the Rejoinai;r,ajfidavit dated
October 16, 1981 of Shri K.B.N. Singh, it is stated "at one point he
also said 1that, it. v.:a~ Gove,rn~enj 1 pqli~y.,. to.,effe<?tftr!Lµ,sfer .in, batches
of two or, thr~'l·"
G
It is seen that the two· Chief. Justices-Shri M,M, Ismail and
Shri K.-B.N. Singh were transferred·at thC'first instance. Some other
transfers probably would-have followed•but for the filing of- these
petitions. It is already held that the ·policy of·having the Chief H -
Justice in every High Court from outside tlie State is not unconsti-
tutional and that it.could·be achieved" by resorting to Article:222<;>f
1438 SUPREME COURT lllll>OltTS !1982] 2 s.c.ll.

A . the Constitution. The transfer ordered pursuant to that policy can-
not therefore be considered as either discriminaiory or not being in ·
the public interest. Io fact such transfers are in the public interest
for reasons already stated.

In is seen from the Counter Affidavit of the Chief Justice of
8 India that the transfer of Shri K.B.N. Singh had not been recom-
mended by him on the basis of any allegation of· misbehaviour or of
incapacity can form a basis for action under Article 218 read with
Article 124(4) and (5) of the Constitution. The relevant part of
that Counter Affidavit reads : ·

c
"It is true that he (Shri K.B.N. Singh) said that it was
possible that some baseless complaints may have been
made to me and that he would like to remove any
wrong impression which those complaints may have
.created. I told him that I do not go by baseless com-
D plaints, that I did not believe that his conduct was
blameworthy but that if he wanted to explain any mat- ..
ter, which according to him had created dissatisfaction
about the working of the High Court, he was free to
to do so. Thereupon Shri K.B.N. Singh told me how
certain persons connected with the High. Court were
E
influenced by communal considerations and how he,
on his own part, did not permit communai or any
other extraneous considerations to influence him ad-
ministratively or judicially. I assured him that I did
not hold that he himself was to blame but that certain
persons were exploiting their proximity to him which
F
had created needless misunderstanding andl dissatis-
faction.'"

The foregoing clearly shows that the Chief Justice of India had
never formed .an opinion that there -was any error committed by
G Shri K.B.N. Singh. Hence there can be no ·basis for the apprehen-
sion in the mind of Shri K.B.N. Singh that the transfer was being
used as a measure of punishment in his case. If it had been a selec-.
tive transfer ordered without regard to the public interest it would
have been unconstitutional.· But this is noi such a transfer.• The
H order does not attach any stigma to. Shri K.B.N. Singh. It is a
· bonafide one made in implementation of a perfectly valid policy
· which may be implemented in instalments. ·
S.P. (lUP1A v. UNION (Venkataramiah, J.) 143\)

,,. · It is true that earlier the ChiefJusiice .if India had recom· A
mended that Shri K.B N. Singli should be transferred to the
R.ajasthan High Court. That was .a part of the chairi. of transfers
then proposed;' It had not taken a final shape since s'hri J(B.N. ·
Singh had not yet been informed about it and his views liad not
yet been ascertained. But when 'it was decided to transfer Shri
M.M. !Smail to the Kerala High Court, tlie Chief Justice of India B
felt that the services of Shri K. B. N. Singh being a senior Chief
JUstice were reqU'ired by the High Court of Madras. There is
nothing unusual about this alteration but on the other hand shows
that the ChiefJustice of India had an op'l:n mind on the question
of transfer until he dlade his final recommendation.
c
The next submission made in this case is that the procedure
followed in connection . with the. impugned orC:er of transfer is not
fair. Chandrachud, J. (as he then was) has dealt with the question
of procedure to be followed before ordering the transfer ofa Judge
under Article 222 of the Constitution in Sakal Chand Sheth's case
D
(supra) at page 456 th us :

"Article 222 (l) postulates fair play and contains built-
in safeguards in. the interests of reasonableness. In the
first place, the power to transfer a High Court Judge
can be exercised lh public interest only. Secondly, the E
President is under an obligation to consult the Chief
Justice of India which means and requires that all the
relevant facts must be placea before the Chief Justice.
Thirdly, the Chief Justice owes a corresponding duty,
both.to the President and to the Judge who is propos-
·. ed to be transferred, that he shall consider every rele- F
·vant fact before he tenders his opinion to the Presi-
dent: ·In' the discharge of' this constitutional obliga-
tion, the Chief Justice woultl be within his rights, and
indeed it is his duty whenever necessary, to elicit and
·. ascertain further facts either· directly from the Judge
concerned or from other reliable sources. The execuc ·G
tive cannot and ought not to establish rapport with
. ; tlie Judges which is the function and privilege of the
Chief Justice. In substance and effect, therefore, the
Judge concerned cannot have reason to complain of H
arbitrariness or unfair play, if the due procedure is
· followed."
1440 SUJ>ltEMil COUR.t R.lll'Oltts, [1982) 2 s.c.lt.

It is evident from the above passage that the duty of consider·
ing every relevant fact pertaining to a Judge is of the Chief Justice
of India .on the question of his transfer under Article 222 of tho
Constitution. In his counter affidavit the Chief Justice of India bas
given the P,articuiars· of the enquiry he. had made. before recommen··
ding that Shri K.B.N. Singh should be transferred to Madras. He.
B, first talked to Shri K.B.N. Singh over the telephope onJanuary;S.·.
1981 and informed him about the proppsal to transfer. him. to•
Madras. Again on January 8,. 1981 Sbrj K.B.N. Singh.met thei
Chief Justice of.India at New Delhi and,tbe question of transfer, was.
again discussed. The relevant part of the counter affidavit, of. the•
Chief Justice of India.reads : •
c
"2·(f) It is true, as stated by Slfri'K'.B~N. SingH in
paragraph 8 of bis affidavit, that I conveyed 'to· him·
on·the evening of· January· 5, 19811 over the·telepb'one
that it was proposed to transfer Shri Justice M:M.
Q, Ismail to Kerala and that he, Shri K.B;N: Singh may-
have to go to Madras. I telephoned'Shri K.B!N;Singli
on January 5, 1981 in order to zpprise him of the likeli·
hQQd ,of. his transfer·· to Madras. and.; to· ask him if he
had. auYthing, to say1 on the~uestion,of;his .•proposed
transfer,
E
(g) I deny.that when Shri K.B.N. Singh wanted
to know over t.he telephone on J<1nuary,5 why_ he may
be transferred to Madras, I stated mcrely,that it was
the "government policy" an,d gave·no .clue1a.s-to what
necessitated his transfer. from ' Patna. to.. Madras. I
conveyed to him sp~ifically -that. it· was .piopPSed to
transfer Shri Justice MiM. Ismail .from Madras and it
was necessary to apppint an.. experienced ·and:.senior
Chief Justice in his place.

(h) It is true that Shri K.B.N. Singh .told me
over the telephone that his mother.was bed,ridden and
was not in a position to go with him to Madras.. I
deny that he told ml( of any other p~rso.nal circum·
stance by. reason of which it would be difficult for him
to go on transfer to M a<lras. . The only difficulty
which he mentioned then or at any other time was
that his mother was old and bed-ridden and .would
S.P. ClUPTA 11. UNION (Venkataramiah, J.) 1441

not <t,herefore be able to go to Madras. He told me A
that if his transfer was insisted upon, he would prefer
to 1'esign. I requested him not to act in haste and to
give the matter ·a close thought. I added that I was
making a no.te of the diffiquity mentioned by him and
that it will have to be taken foto consideration before
a final decision was taken. I requested him to come B
to Delhi to discuss the question of his transfer.

(3) · Sbri K.B.N. Singh has stated in patagraph 9
of his affidavit that be tnet me in Delhi three or four
day!i later, told IIle or his acute and insurmountable
c
personal difficulties in the event of his transfer to
Madras, that he was with me for about 10-15 ·minutes
and that t was nott-committal in the matter of his
transfer. Shri K.B N. Singh saw me at my residence
on January 8, 1981 at 7.30 p.m. He was with me for D
quite some time much longer than 10 or IS millutes. I
discussed with him the question of bis ·mother's
advanced age and illness, which was the only personal
difficulty which lie mentioµed in the matter of his ·
proposed transfer to Madras. l told him that I was
unable to agree with him since there were other depend- E
able persons in his family who could look after his
mother and that, in any case, .his brother Shri S.B.N,
Singh who was practising the in High Court was quite
capable of looking after the mother. He replied that
h·is mother had a special attachment to him and he
could not leave her to the care of his brother or F
other members of the family. It is true that
he said that it was possible that some baseless
complaints may hl!ve been· made to me and that
he would like ·to remove any wrong imprrssion which
those complaints ,may have created. I told him that
I do not go by baseless complaints, that I did not G
believe that his conduct was blameworthy; but that if
he wanted to explain any matter, which according to
him had created dissatisfaction about the working of
the High Court, he was free to do so. Thereupon
Shri K.B.N. Singh told me how certain persons connec-
ted with the High Court were influenced by commu-
,nal considerations and how he on his own part did not
1442 SUPREME COURT REPORTS (1982) 2 S.C.R

permit communal or any other extraneous considera-
tions to influence him administratively or judicially. I
assured him that I did not hold that he himself was
to blame but that certain persons were exploiting
their proximity to' him which had created, needless
misunderstanding and dissatisfaction. There are many
B more matters which he mentioned on the evening
of January 8, 1981 but they do not directly bear upon
the matters i!l issue her :in and I will, therefore, not
refer to them.

c (4) The statement contained in paragraph 10 of
the affidavit of Shri K. B. N ~ Singh that he had not
conveyed to me his consent to the proposed transfer
is true. I however deny that be was not consulted
regarding his transfer_ to Madras. I had discussed the.
matter with him threadbare on more than two or
D three occasions. I deny that no reason, ground etc.
necessitating. or justifying his transfer was· disclosed
to him or discussed with him by me. On my part, I
conveyed to him that his transfer was made in public
interest, that it was not made by way of punishment
and that it was also necessitated by the trans fer of
E Shri Justice Ismail from Madras to Keral_a.''

Although Shri K.B.N. Singh has not fully accepted the facts
narrated in the passage extracted above, there is no reason for not
accepting in its entirety the statement made by· the Chief Justice of
F India The above passage clearly shows thiit the Chief Justice of
India had acted strictly in accordance with the procedure Indicated
by him in Sakal Chand Sheth's case (supra). There is, therefore, no
ground to hold that the case of Shri K.B.N. Singh's transfer was
not considered by the Chief Justice of India in a fair and reasonable
way.
G
The next submission made on behalf of Shri K.B.N. Singh is
that all aspects of the case were not placed before the President by
the Chief Justice of India. This again is met by the statement of
the Chief Justice of India in his. counter affidavit that "there was
H
full and effective consultation between me and the President
9f India on the question of $bri K.:a.N, Singh's transfer from
..
I
S.P. GUPTA Y·. UNION (Venkatciramiah, J.) 1443

Patna to Madras as the ·Chief Justice of the Madras High ; A
Court. Every relevant aspect of that question was discus-
sed by me fully with the President both before· and after I pro-
posed the transfer." At the hearing· the Court. was informed ·
that the President had not discu~sed the matter personally with the
Chief Justice of India. The expression "President" should be under·
·-.,,,,,,. stood here in· the constitutional sense. The discussion must have
B
J
taken. place with the Minister concerned. It is not possible fo
accept the submission that _no such discu)lsion could have taken
place at all after Shri K B.N. Singh met the Chief Justice of India on
the evening of January 8, 198 I because the Prime Minister had taken
the decision on January 9, I 981 and there was no written record in
support of it. From the records produced before us it is seen that
c
discussion has gone a between the authorities concerned sometimes
over telephone and sometimes at a meeting. No minutes are kept
of many 'such· discussions It cannot, therefore, be said that either
there was no time to discuss or nJ such discussion had taken place
at all. It has to be borne in mind that the Chief Justice of India 0
asked Shri K.B.N. Singh to me~t him at New Delhi to discuss the
matter further and accordingly S!lri K.B.N. Singh met him on January
8, 1981. If the Chief Justice of India had felt that any representation
to be made by Shri K.B.N. Singh was ·irrelevant he would not have
called him for discussion at New Delhi. After discussing the matter
with him he must have discussed the matter before the decision was
taken on January 9, 1981 with the other authority concerned.

'
In the course of the discussion referred to above all matters
which had come to the knowledge of the Chief Justice of India
must have been placed before the person with whom the discussion
F
had taken place. All,. official acts must be deemed to have been
done in accordance with law. There ·is, therefore, no merit in this
contention also,

The last submission on the above question was that whereas G
the Chief Justice of India had recommended that Shri K.B.N.' Singh
should be transferred as a part of selective transfers, the President
had treated them as part of the policy of haviiJg a Chief Justice in
every High Court from outside the State which had not taken a final
shape and therefore there was no consensus on the object to be H
achieved by the transfer. As already observed, the question of policy
;~ within tl1e r~!l)W of the Governm.ent T4erefore, even if tqe Chief.
1444 SUPRBMB. COURT RB1>6RTS (1982] 2 s.c.tt.

A Justice of India considered that the recom'inendation made by him
was one of six or i!even transfers suggested by him, which would
mean for the time'being a partial implementation of the policy, it
cannot be said that the transfer of Shri K.B.N. Singh is bad, for, all
aspects relating to Shri K.B.N. Singh were considered by the appro-
priate authority before ordering the transfer. The tradsfer in question
B . .is not a stray case of transfer. A few ,other transfers were in ·
contemplation at the relevant time and they necessitated considera-
tion of individual cases separately. The transfers of Shri M.M
Ismail and Shri K.B.N. Slngh were ord.ered. In all probability but
for these petitions some more transfers would have materialised by
now. We have to note that Artie)~ 222 of the Constitution is not
c confined only to policy transfers involving all Judges. Even indivi-
dual Judges may be transferred for administratfve 'reasons in the
public interest. In the circumstances of the case, it is difficult to
hold that the transfer was an act of victimisation. One other con-
tention raised in this case is that the Chief Ministers of Tamil
Nadu and Bihar had not been consulted in accordance with a
-
memorandum issued by the Government. The question whether
there can be any memorandum supplementing the provisions of
Article 222 is a matter of doubt. But since the· c'aurt is informed
that both the Chief Ministers had been consulted about the transfer
of Shri K.B.N. Sin'gh, there is no need to probe into this point any
further,,
E
The decision to transfer a Judge under Article 222 of the
Constitution, as already stated, is an administrative one. It is not•
alleged that any of the functionaries participating in that decision
F had any_ ill will against Shri · K.B.N. Singh. The existence of mala-
fides niay have been a ground to set aside the impugned order of
transfer provided it had been alleged and established. In E.P.
Royappa v. Stat.: of Tamil Nadu and Anr.( 1 ) while rejecting a
contention against an order of transfer which had been ·impugned
-
in that case, Bhagwati, J. has observed thus :
G
"Secondly, we must not al.so overlook that the burden
of establishing malafides is very heavy on the person
who alleges it. The allegations of. malafides are often
more easily made than proved, and the very serious-
ness of such allegations demands proof a high ·order or
H credibility."
(1) [1974] 2 SCR 34$ at ts. 390.
S.P. GUPTA v. UNION (Venkataramiah, J.) I 445

In this case, no such allegation of malafides is made against
A
any authority. On the other hand the material available in the
case clearly establishes that due procedure had been followed and all
facts that justify the transfer have been affirmatively proved. It is
shown that the authorities concerned felt satisfied ·about the need
for the transfer. In view of the above finding, Shri K.B.N. Singh
cannot derive much assistance from the observations made in the
B
Barium Chemicals Ltd. & Anr. v. The Company Law Board & Ors.(1)
and in Rohtas Tndustries Ltd. v. S.D. Agarwal & Anr.(2) On the
facts and in the circumstances of the case it is not possible to hold
> that the order of transfer of Shri K.B.N. Singh as the Chief Justice
of the High Court of Madras is illegal and void. c
PART XII
• Now the question is what relief can be granted in these cases.
In the earlier part of this judgment there is a detailed discussion
about the continued neglect on the part of the Government in not D
making a proper review from time to time of the number of perma-
nent Judges necessary for each High Court and the irregular exercise
of power under Article 224 (I) of the Constitution in appointing
additional Judges even though it was necessary to appoint permanent
Judges. Even according to the Government there is need to appoint
at least 150 Judges to clear off the arrears within two years. Article E
216 of the Constit~tion, as observed earlier, confers power on the
President to appoint adequate number of Judges in every High
Court. In the United States of America the conditions in which a
writ of mandamus may be issued to a Governor or the President are
set out in paragraphs 140, 141 ·and 153 in Vol. 52 of the American
Jurisprudence 2d. under the title 'Mandamus' thus : F
"140. Governor.

The question of how far the governor of a state
is subject to the supervisory control of court through
the writ of mandamus is one of gravity and importance G
which the courts regard as extremely delicate, and the
solution of which they undertake with great reluctance.
In some jurisdictions the courts refuse to issue the writ
against a governor under any circumstances, whether
... H
(1) [1966] Suppl. SCR 311.
(]) (1969] 3 SCR 108.
1446 SUPREME COURT REPORTS [1982] 2 S.C.R.

the act sought to be enforced is regarded as ministerial
or otherwi~e, on the theory that interference with his
action constitutes a violation of the doctrine of separa-
tion of powers, or upon the ground that issuance of
a writ is inexpedient because of possible difficulty in
enforcing it. Under this view, a writ is not issuable
B against an executive for_ the purpose of compelling him
to perform a duty, even though it is imposed upon
him by statute. This reasoning has been rejected in
many jurisdictions, which allow the maintenance of
~andamus proceedings against a governor under
certain circumstances. All courts agree that the remedy
is nof available to control the performance by a
governor of political functions or functions requiring
the exercise of discretion, but some will issue the writ
to require the performance of ministerial duties, or to
resfrain 'an act in violation of law. Needless to say,
mandamus will not issue to· compel the'' performance
D
,. by a governor of an act which does not fail within
his prescribed duties, ' or which h~s already been
performed.

1'
E 141. Political and discretionary functions.

1 State governors are invested by law with important
governmental or political powers and duties belonging
to the executive branch of the government, and the
due performance thereof is intrusted to their official
F honesty judgment and discretion. As to these purely
executive or political functions devolving upon the
chief executive officer of the. state, and as to any other
duties necessarily involving the exercise of official judg-
ment arid discretion, the doctrine is uncontroverted
that mandamus will not lie to control or compel his
G action. Applying the foregoing rule, the courts have
denied the writ when sought to compel the governor
to call an election; count or reject votes cast at an
election; issue a commission or certificate of election
to office ; make an appointment to office:
rescind an order removing or suspending an officer;
recommend the passage of a particular Jaw ; sign or
veto bills ; institute a proceeding for the transfer of a
I S.P. GUPTA v. UNION ( Venkataramiah, J.)

federal prisoner to the state court; grant a pardon ;
1447
I
A
approve a parole ; borrow funds; sign or approve a
warrant ; issue bonds ; subscribe to stock as required
by statute ; appoint a commission to appraise property
which 1is sought to be condemned; allot 'or pay over
money received from the Federal Government; approve
a contract ; or perform other like duties. B
I

If it is the constitutional or statutory duty of a
governor to exercise his discretion with respect to a .
certain matter, he may be required by mandamus to do
so, but, of course,· the writ does not lie to direct the c
manner in which his discretion shall be exercised .
. ' •.

D
..
153. .President of United States

As is also true in the case of a state governor,
a
which' in most respects is' similar office' mandamus
does not lie to control the administrative or executive E
discretion of the President of the United States, and .,
if the President delegates one of his functions to
another officer, an order by the latter is an administra-
tive order of the President, which .cannot be vacated
by mandamus. The celebrated case of Marbury v.
Madison is generally considered as authority for the F
view that.the co~rts have no jurisdiction to issue a writ
of mandamus against .the President to compel him to
perform any act incidental to his office, whether purely
ministerial in its character or not although the writ may
is1me against the heads of departments of the Federal
Government when the act to be performed is purely G
ministerial, not involving judgment or discretion. On
the other hand, in a later case in the Federal Supreme
Court, although the case did not involve the President,
the Attorney-General of the United States in his argu-
ment, although appearing in behalf of the officer to H
whom the writ of mandamus was prayed, conceded
that such a writ might be issued against the President
1448 SUPREME COURT REPORTS [ 1982] 2 s.c.R.

A of the United States to compel him to perform a
merely ministerial duty ............... "

Para 28 of Halsbury's Laws of England, (4th Edn.), Vol. I,
page 32 reads : ·

B
"28. Duty and discretion. The repository of a
statutory power may be endowed with a discretion
whether to act, and, if so, how to act. A discre-
tionary power is typically conferred by words
and phra$es such as "may", "it shall be lawful",
c "if it thinks fit" or "as it thinks fit". A statutory
discretion is not, however, necessarily or indeed,
usually absolute : it may be qualified by express and
implied legal duties to comply with substantive and
.
procedural requirements before a decision is taken
whether to act and bow to act. Moreover, there may
D be a discretion whether to exercise a power, but no
discretion as to the mode of its exercise ; or a duty to
act when certain conditions are present, but a discretion
how to act. Discretion may thus be coupled with
duties. On the other band, duty unaccompanied by
any discretion requires action in a prescribed manner
E
and form to be taken when the conditions precedent
exists ; performance of such a duty is a mere minis-
terial act." "

It is true that the words in Article 216 of the Constitution are
F undoubtedly empowering 'but it has been so often decided as to
have become an axiom that in public statutes words only direc-
tory, permissory or enabling . may have a compulsory force
where the thing to be done is for the public benefit or in advance-
ment of public justice.' (Vide R. Tithe Commissioners).(~) Earl
Cairns said in Julius v. Bishop of Oxford,(') construing the words
G
(it) shall be lawful' thus :
"But there may be something in the nature of the thing
empowered to be done, something in the object for
which it is to be done, something in the conditions under
.H
(1) [1849] 14 Q.B. 459 at 474
(2) [1880] 5 A.C. 214@ 222-23.
8.P. GUPTA v, UNION ( Venkataramiah, J.) 1449

which it is to be done, something in the title of person A
or persons for whose benefit the power is to be exer-
cised, which may couple the power with a duty, and
make it the d~ty of the person in w~om the power is
reposed to exercise that power when called upon to
do _so",

InPadfield & Ors. v.
Minister of Agriculture Fisheries and
Food & Ors.,(1) the House of Lords .had to construe the provisions -
)
of the Agriculture Marketing Act, 1958 which provided for a com~
mittee of investigation to be cons.tituted, which was to consider and
report on certain kinds of complaint "if the Minister in any case c
.. so directs". The complaint of the appellants who were members
of the sou'th east regional committee of the Miik Marketing Board
was that the board's terms and prices for the sale of milk to the
board did not take fully into account the variations between the
producers and the cost of bringing milk to a liquid market.
D
In effect the complaint was that _the pri~e .differential worked un-
fairly against the producers in the popular south east region where
· milk was more valuable, the cost of transport was less and the
price_of land was higher. 'There had been many previous requests
to the board but these had failed to get the board in which the
. south east producers were _in a minority to do anything about the E
matter. tlie Minister declined to refer..the matter to the committee.
< Thereafter the appellants applied to the Court for an order of man-
" damus commanding the Minister to refer the complaint to the
Committee for investigation. The Divisional Court made an
order against the Minister. But the Court of Appeal by a majority
(Diplock and Russel L. JJ. Lord Denning M.R. disseritirig) set aside F
the order of-the Divisional Court. On further appeal to. the-House
of Lords, the appeal was allowed and the case was remitted. The
House of Lords held that the coin plaint was a substantial· and a
genuine complaint, neither frivolous, repetitive nor vexatious, the
reasons of the Minister for not referring the matter to the Com-
mittee of iiives!lgation namely that the complaint raised wide issues, G
that his reasdns were 1iiifettered so that in effect it was sufficient
that he should bonafide have considered the matter, 'were not good
reasons in law, and indeed left out of · account the merits of the
complaint ;nd showed that he was not exercising bis discretion
in accordance with ·the intentiou of sectio!l 19 of the Act of l 95 8. H
(1) [1968] ~ All B.R. 694.
1450 SUPREME COURT REPORTS (1982] 2 s.c.R.

A The matter was remitted to the Queen's Bench' Division to require
the Minister to consider the application of the appellants in accor-
dance with law. Lord Upjon in his concurring judgment observed
that even if the words in a statute conferred an unfetterep discre-
tion on the Minister, it ought not to make any difference in this
case. He said at pages 718-719 thus:
B
"My Lords, I believe that the introduction of the adjec-
tive · "unfettered" and its reliance thereon as an
answer to the appellants' claim is one of the funda-
mental matters confounding the · Minister's attitude,
bonafide though it be. First, the adjective nowhere
c appears in s. 19, it is an unauthorised gloss by the '-
Minister. Secondly, even if the section did contain
that adjective, I doubt if it would make any difference
in faw to his powers, save to emphasise what he has.
already, namely that acting lawfully he has a power of "
D decision which cannot be controlled by the courts ;
it is unfettered. But the use of that adjective; even in
an Act of Parliament. can do nothing to unfetter the
control which the judiciary have over the executive;
namely that in exercising their pewers the latter must
act lawfully; and that is a matter to be determined by
E looking at the Act and its scope and object in con-
ferring a discretion on the Minister rather than by the
use of adjeclive."
'
The importance of he decision in Padfield's case (supra) was
underscored by Lord Denning M.R. in Breen v. Ama/¥amat~q
F Engineering Union( 1) thus :

"The discretion of a statutory body is never unfettered.
--
It is a dicretion which is to be exercised according to
law. That means at least this : the statutory body
G must be guided by relevant considerations and not by
irrelevant. If its decision is influenced by extraneous
considerations, which it ought not to have taken into
account, then the decision cannot stand. No matter
that the statutory body may have actetl in good faith
H neverthelss the decision will be set aside, That is

(1) ~1971] 2 Q.B. 175 <$ 1901
SJ>. GUPTA v. UNION (Venkataramiah, :f.) i4S1

established by Padfield v. Minister of Agriculture A-
Fisheries and Food [1968] A.C. 997 which is a land-
mark in modern administrative law".

Notwithstanding the principle of separation of powers found
entrenched in the Constitµtion of the United States of Ameri<;a, as B
can be seen from_ the last part of para 141 of VoJ. 52 of the
American Jurisprudence 2d. under the title 'Mandamus', if it is the
constitutional or statutory duty of a governor or the President
to exercise his discretion ,.with respect to a certain matter he
may be required by mandamus to do so but the manner in
which he has to discha~ge that duty cannot be directed by c
the courts. As observed jn the English decisions referred to
above it is manifest that a statutory discretion is not necessarily or .
indeed usually absolute, it may be qualified by express and implied·
legal duties to comply with substantive and procedural requirements
before a decision is taken, whether to act and how to act. I am of
the view that the power conferred on the President by Article 216 of D
the Constitution to appoint sufficient number of Judges is· a power
coupled with a duty and is not merely a political function. In the
instant case ordinarily the court would have been reluctant to
issue any mandamus to the Government to comply with the duty of
determination of the strength of Judges of High Courts. But
having regard to the undisputed total inadequacy of the strength of E
Judges in many High Courts, it appears to be inevitable that the
Union Government should be directed to determine within a rea-
sonable time the strength of permanent Judges r\)quired for the
disposal of cases instituted in them and to take steps to fill up the
vacancies after making such determination.
F
I At this stage it should be mentioned that Shri P.R. Mridul ,
made a statement on behalf of the Minister of Law, Union of India
I

in the course of his arguments as follows :
~ •
"The Union Government has decided to inc1 ease the . G·
number of posts of permanent Judges,.. in the various
High Courts keeping in v!ew the load of work, the
guidelines prescribed and other relevant considerations.
In fact in 1980 itself, on the basis of institution; dis- ·
posal and arrears of cases and the guidelines presc~ibed, H
the Governments of seven States where the problem
was· more acute, had been addressed to consider
1452 SUPREME COURT REPORTS (1982) 2 s.c.1l.

A augmentattion of the Judge strengths of their High
Courts. It has been decided that where necessary the
guidelines prescribed will be suitably relaxed by taking
into account local circumstances, the trend of litigation
and any ·other special or relevant factors that may
need consideration. The Union Government will take
B up the matter with the various ·State Government so
that after consulting the Chief Justices. of the High <'
Courts, they expeditiously send proposals for the con-
version of a substantial number of posts of <j\dditional
Judges into those of permanent Judges.

c The Union Government ·has also decided that
ordinarily further appointments of Additional Judges
will not be made for periods of Jess than one year,"

D PART XIII

For the reasons given above, I am of the view that the Union
Government, which has the responsibility of appointing sufficient
number of Judges in every High Coutt should be directed to review
the strength of permanent Judges in every High Court, to fix the
E mu:nber of permanent Judges that should be appo!nted in that
High Court on the basis of the workload and to fill up the vacancies
by appointing permanent Judges, While making. these appointments
the Union Goverqment should first consider the cases of ~he addi-
tional Judges who are now in office fQr appointment as permanent
J.udges in those vacancies. A writ in the a.Bove terms sJ;iall be iss.ued
F to the Union Government. All the other reliefs prayed for in
these petitions are refused. There shall be no order as to costs.

PART XIV

In the course of the hearing of these. cases several other
questions of great importance touching the administration of justice
'
such as the conditions of service of judicial ·officers, particularly of
the members of the •subordinate judiciary, their salaries am! allow-
ances, housing conditions etc. which needed to be looked into very
H urgently .came up. for discussion, Similarly many ·facets of the
conduct of Judges and of lawyers were also discussed. During the
hearing many useful remarks came to be made both on the side of
!l.P. GtJPtA
--·· '.,,_
v. t.INION
._ ,,_ . .{Yenkataramiah,
· .. J.) i453

the Bar and on t.he side of the Bench. All this exercise was done A
w.ith a vle·~··t~.e~j,11~.~ising the. i~p~rtance ofthe indc;p~.n~ence of
th~ judi,c\a,t:.Y. a.\lA t~e; ii?,dep~nqence.' qf the B.a.r which are, fun.9.11~
mental ~o Republican Constitution whose main ch1;1racteristic
ought to. b,e yirt~e: An Qbservation' of David Hume is.~ort~y 9.f
note here. He said :
• .- t
B

"To bala,n,ce a large St~te of society whethe,r Mo~ar
chical or Republican, on general laws, is a work of so
~r~~t difi:iculty 'tha\ n9 ·human geni~_s ho'wev~~ ~ompre
hensive, is abl.e by the mere dint of reason and reflec~
,.-, .• , I '• • '•·< ' • ,

ti on, to effect it.• The judgments of many should
, ', •• • .. , • • •
c
~nite in this work ; experience. m~st guide their l~bou~
till).~- must.· b~lgg it. to perf~ction:; and .tl).e' f;,elh:ig. o(
... inconvenience must correct the mistakes which they
{neyita~iy (;n i,9tQ in ·th~ir fi'rst. tri~l.s 11:1:1.«il e~pi;~i,-
ments."
,,,., ..., .. ,.
·

..
We have come across in these cases many such mistakes,
though committed honestly without realising the import or impor-
tance of• some of the provisions of the Constitution. Perhaps ther.e
was no occasion to think about theni so far. It is hoped that at
least hereafter in any step that is taken in the matter of appoint-.
) ment of Judges, the clear implications of the Constitution are kept in
view by all concerned.

These cases . have made us think about ourselves and our
F
learned brothers in t1'e ~p.er.~ur .j11dici~:Y· Qf' the QQ.untry. _ We are
made to realise that we a_re all mortal; with. all t,he human frailties
and that only a few know in this world tlie truth behind the follow•
ing statement of ~~c~~ J?; Mo~,~~~~,: "\\'~e. I. n_<?t to follow the
straight road for its straightness, I should follow it for having found
by experience that in the end it is commonly the happiest and the
most use,fu,I t~a~~·· .. It i,s, t~u,c; tha~ the; Jl/dge~ oft_~.c; ~i¥,h. Co:1ms and
the_ Supreme Court hold their tenure not at the pleasure of the Presi·
dent but ti.Ii they attai'n the presc~ibed ag~ of retiferpent ; that thelr
removal is possible only after following· an elaborate procedure ; H
that their salaries and :;il;lowances an4: pensio11 a.lie 9harged on ~h~
consolid~ted funds of the States or of the Union ; that no discus-

_, ___ ··~---
i454 SUPREME cotJkt REPORts !1982) 2 S.C.k.
A sion can take place in the legislatures with respect to their conduct
in the discharge of their duties except on a motion for their removal
that they have the power to punish a' person for contempt of court .
and· they are protected by a host of other provisions of law which
are intended to make them feel and to remain independent of any
external agency such as the executive. These, as far as they go, are
B necessary for ensuring the independence of the judiciary. But if the
judiciary should be really independent something more is necessary
and that we have to seek in the Judge himself and not outside. A
'Judge should be independent of himself. A Judge is a human being
who .is a bundle of passions and prejudices, likes and dislikes, affec-
c tion and ill-will, hatred and contempt and fear and recklessness. In
order to be successful Judge these elements should be curbed and
kept under restraint and that is possible only by education, training,
continued practice and cultivation of a seme of humanity and dedi-
cation to duty. These curbs can neither be boug.ht in the market
nor injected into1 human system .by the written or unwritten laws.
-
D If these things are there even if any of the protective measures
provided by the Constitution and the .Jaws go the independence of
'the judiciary will not suffer. But with all these measures being there
still a Judge may not be independent. Jt is the inner strength of
Judges alone that can save the judiciary. The 'life of a Judge does
not really call for great acts of self sacrifice ; but it does insist upon
E small acts of self-denial almost every day. The following sloka
. explains the true traits · of men with discretion which all Jud gcs
should possess :

F f.p~ ;ftffif~ im '" ~~
~l : ~tmr(J ~ 'fl q.{~ I

ftlil' lil'l ~~ '!'l'mt~
'"
G
~q-q:
'
Slf~~ ~ l'f "1ro: II t
• •
(Let men trained in ethics or morality, insult or praise ; let
Iakshmi (wealth) accumulate or vanish a.s she likes ; let death come
t?day itself or at the end of a yuga (millennium), men with discre-
H tion will not deflect from the path of rectitude).

J
S.P. OUPTA v. UNION (Venkataramiqh, J.) 1455

This is only an ideal. It is difficult to attain it but every Judge
A
should at least ende_avour to set bis eyes on that goal.

ORDER '

In view of the majority decision, all the Transferred Cases and B
Writ Petitions are dismissed With no order as to costs.

S.R.
Transferred Cases and
Petitions dismis.~ed
c

-
. '

I .
r