Supreme Court of India
SUBHASH SHARMA AND OTHERSversusUNION OF INDIA
- Citation
- 1990 INSC 326
- Decided
- 26 October 1990
- Disposal
- Disposed off
- Bench
- RANGANATH MISRA
Holding
The Union must fill vacancies to maintain the sanctioned strength of the Supreme Court and High Courts, while the fixation of judge strength remains non‑justiciable, and the primacy of the Chief Justice of India in the consultation process requires reconsideration by a larger bench.
Summary
The Supreme Court entertained three public‑interest writ petitions under Article 32 seeking a mandamus directing the Union of India to fill vacancies in the Supreme Court and the High Courts. The Union initially claimed the issue was non‑justiciable, relying on S.P. Gupta v. Union of India, but later withdrew that objection, acknowledging a constitutional duty to maintain the sanctioned strength of the superior judiciary. The Court held that while the fixation of judge strength is a matter for the President and not justiciable, the Union is obligated to fill vacancies to the extent of the sanctioned strength, and that the process of appointment must respect the constitutional concept of "consultation" with the Chief Justice of India, whose primacy requires reconsideration by a larger bench. Interim directions had helped reduce vacancies, and the Court disposed of the petitions, directing that the remaining two questions—primacy of the CJI and justiciability of fixing judge strength—be referred to a larger bench. No costs were awarded.
Issues considered
- The Union of India’s constitutional obligation to fill judicial vacancies to maintain sanctioned strength
- Whether the fixation of judge strength is justiciable
- The scope and primacy of "consultation" under Articles 124(2) and 217(1), particularly the role of the Chief Justice of India
- Whether recommendations for appointments can be reopened due to changes in the Chief Justice or Chief Minister
- The maintainability of the writ petitions under Article 32
Legislation cited
- Constitution of Indias. Article 124, s. Article 214, s. Article 216, s. Article 217, s. Article 32
- Supreme Court (Number of Judges) Amendment Act, 1986
Subjects
appointment of judgesjudicial vacanciesconstitutional obligationconsultationChief Justice of Indiajudicial independencepublic interest litigationArticle 32Supreme CourtHigh Courtsjudicial administrationjudge strengthjusticiability
Judgment
SUBHASH SHARMA AND OTHERS
A
v.
UNION OF INDIA
OCTOBER 26, 1990
[RANGANATH MISHRA, CJ., M.N. VENKATACHALIAH 8
AND M.M. PUNCHHI, JJ.)
Constitution of India: Articles 32, 124 and 217-Appointment of
Judges of High Courts and Supreme Court-"Consultation" with Chief
Justice of India-Primacy of-Fixation of Judges strength-Justiciabi-
lity-Referred to Nine Judge Bench.
c
In these petitions in the nature of public interest litigation under
Article 32 of the Constitution, the relief asked for is one for mandamus
to the Union of India to fill the vacancies of Judges in the Supreme
Conrt and the several High Conrts of the country and ancillary orders
or directions in regard to the relief of filling up of vacancies. D
In response to the rule, the Union of India, relying upon S. P.
Gupta v. Union of India, [1982) 2 SCR 365, raised a preliminary objec-
tion as to the justiciability of the issue. The objection, however, was later
withdrawn by the succeeding Attorney General who made a statement
that it was the constitutional obligation of the Union of India to provide E
the sanctioned Judge strength in the superior courts and default, if any,
was a matter of public interest, and the writ petitions requiring a direc-
tion to the Union of India to fill up the vacancies were maintainable.
. Disposing of the petitions, this Court,
F
HELD: (1) The ratio in S.P. Gupta's case left the matter offIXing
up of the Judge strength to the President of India under the constitu-
tional scheme, and the choice of Judges to the prescribed procedure,
but once the sanctioned strength was determined it was the obligation of
the Union of India to maintain the sanctioned strength in the superior
Courts. [437H; 438A) G
(2) It is too late in the day to dispute the position that justice has
to be administered through the courts and such administration would
relate to social, economic and political aspects of justice. The Judiciary
therefore becomes the most prominent and outstanding wing of the
Constitutional System for fulfilling the mandate of the Constitution. H
433
434 SUPREME COURT REPORTS [1990) Supp. 2 S.C.R.
For its sound functioning, it is necessary that there must be an efficient
A
judicial system and one of the factors for providing the requisite effi-
ciency is ensuring adequate strength. [440E-F]
(3) For the availability of the appropriate atmosphere where a
Judge would be free to act according to his conscience it is necessary
B that he should not be over burdened with pressure of work which he
finds it physically impossible to undertake. This necessarily suggests
that the judge strength should be adequate to the current requirement
and must remain under constant review in order that commensurate
Judge strength may be provided. [441F-G]
Brqdley v. Fisher, 80 US 335 1871, ref~.rred to.
c
(4) It is a matter for immediate attention of all concerned-and of
Government in particular-that the Administration of Justice is made a
plan subject and given apfJropriate attention. [444C]
D (S) Backlog in Courts has become a national problem. The ad-
judicatory process is being blamed for not equalling itself to the chal-
lenge of the times. There is a general complaint that· the judicial
E
system is on the verge of collapse. It is, therefore, the obligation of
the constitutional process to keep the system appropriately manned.
There is no justification for the sluggish move in such an important
matter. [447C-D]
-
(6) If in a given case the Chief Justice of the High Court has
recommended and the name has been considered by the Chief Minister
•(
and duly processed through the Governor so as to reach the hands of the
Chief Justice of India through the Ministry of Justice and the Chief
F Justice of India as the highest judicial authority in the country, on due
application of his mind, has given finality to the process at his level,
there cannot ordinarily be any justification for reopening the matter
merely because there has been a change in the personal of the Chief
Justice or the Chief Minister of the State concerned. This has to be the
role and the policy adopted by the Union of India should immediately be
G given up. [4488-D] ·
(7) In the functioning of public offices there is and should be
continuity of process and action and all objective decisions taken cannot
be transformed into subjective issues. That being the position, recom-.
mendations imalised by the Chief Justice of India unless for any
H particular reason and unconnected with the mere change of the Chief
SUBHASH v. U.0.1. 435
Justice or the Chief Minister justifying the same should not he reopened
A
and if in a given case the Union of India is of the view that the matter
requires to be looked into again a reference should be made to the Chief
Justice of India and there can be a fresh look at the matter only if the
Chief Justice oflndia permits such a review of the case. [448E·F]
(8) Consistent with the constitutional purpose and process it be· B
comes imperative that the role of the institution of the Chief Justice of
India be recognised as of crucial importance in the matter of appoint·
ments to the Supreme Court and the High Courts of the States. This
aspect dealt wit.h in Gupta's case requires re-consideration by a larger
bench. [450E]
(9) In India the judicial institutions, by tradition, have an avowed c
a political commitment and the assurance of a non-political complextion
of the judiciary cannot be divorced from the process of appointments.
Constitutional phraseology of "consultation" has to be understood and
e~pounded consistent with and to promote this constitutional spirit.
These implications are, indeed, vital. The constitutional values cannot D
be whittled down by calling the appointment of Judges as ·an executive
act. The ·appointment is rather the result of collective, constitutional
process. It is a participatory constitutional function. It is, perhaps,
inappropriate to refer to any 'power' or 'right' to appoint judge. It is
essentially a discharge of a constitutional trust of which certain con·
stitutional functionaries are collectively repositories. [457D·F] E
(10) The executive, on whose advice the President acts, as a
participant in the process has its own important and effective role. To
say that the power to appoint solely vests with the executive and that the
. executive, after bestowing such consideration on the result of consulta-
tions with the judicial organ of the State, would be at liberty to take F
such decision as it may think fit in the matter of appointments, is an
over-simplification of a sensitive and subtle constitutional· sentience
subversive of the doctrine of judicial independence. [457F-G]
(11) The word "consultation" is used in the constitutional provi-
sion in recognition of the status of the high constitutional dignitary who G
formally expresses the result of the institutional process leading to the
appointment of judges. To limit that expression to its literal limitations,
shorn of its constitutional background and purpose, is to borrow Justice
Frankfurter's phrase, "to stick in the bark of words". [458B]
(12) Judicial Review is a part of the basic constitutional structure H
436 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
and one of the basic features of the essential Indian Constitutional
A
policy. This essential constitutional doctrine does not by itself justify or
necessitate any primacy to the executive wing on the ground of its
political accountability to the electorate. [458C]
· (13) It might under certain circumstances be said that Govern-
B ment is not bound to appoint a judge so recommended by the judicial
wing. But to contemplate a power for the executive to appoint a person
despite his being disapproved or not recommended by the Chief Justice
of the State and the Chief Justice of India would be wholly inappro-
priate and would constitute an arbitrary exercise of power. [458D-E]
(14) The purpose of the 'consultation' is to safeguard the inde-
c pendence of the judiciary and to ensure selection of proper persons. The
matter is not, therefore, to be considered that the rmal say is the exclu-
sive prerogative of the executive government. The recommendations of
the appropriate constitutional functionaries from the judicial organ of
the State has an equally important role. "Consultation" should have
D sinews to achieve the constitutional purpose and should not be rendered
sterile by a literal interpretation. [458F-G]
(15) There are pre1>onerant and compelling considerations why
the views of the Chief Justices of the States and that of the Chief Justice
of India should be afforded a decisive import unlss the executive has
E some material in its possession which may indicate that the appointment
is otherwise undesirable. [458G-H]
(16) The correctneS. of the opuuon of the majority in S.P.
Gupta's case relating to the status and importance of consultation, tbe
primacy of the position of the Chief Justice of India and the views that
F the fixation of Judge strength is not justiciable should be reconsidered
by a larger bench. [4598]
· (17) In view of the fact that the bulk of vacancies in the High
Courts have been filled up, and in view of the assurance held out by the
!earned Attorney General that prompt steps are being taken to fill up
G the remaining vacancies, further monitoring for the time being is not
necessary. [459F]
ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 13003
of 1985, 1303 of 1987 and 302 of 1989.
H (Under Article 32 of the Constitution oflndia)
SUBHASH v. U.0.1. [MISRA, CJ.] 437
Subhash Sharma Petitioner in person.
A
M.S. Ganeshan, Ms. M. Karanjawala (N.P.), H.S. Anand,
P.H. Parekh and Ms. Sunita Sharma for the Petitioners.
Ashok Desai, Solicitor General, Ms. A. Subhashini, P.S. Poti,
K.R. Nambiar, (For Kerala), Probir Chowdhury (For Assam), A.K. B
Panda (For Orissa), Ms. G.S. Misra, H.K. Puri, T.V.S.N. Chari (For
Bihar), S.K. Agnihotri (For Madhya Pradesh), Ms. Kamini Jaiswal
(For Chandigarh), Ms. S. Dikshit (For U.P.), V. Krishnamurthy (For
Tamil Nadu), B. Parthasarthi (For Andhra Pradesh), Ms. Urmila
Kapoor & Ms. S. Janani (For Manipur), Aruneshwar Gupta, M.N.
Shroff (For Gujarat), Mahabir Singh (For Haryana), A.S. Bhasme
(For Maharashtra), L Makwana (For Rajasthan), Ms. Urmila Kapur c
(For Manipur) and M. Veerappa (For Karnatakai the Respondents.
The Judgment of the Court was delivered by
RANGANATH MISRA, CJ. These are applications under Article D
32 of the Constitution. The first petition is by an advocate practising in
this Court; the second by the Supreme Court Advocates on Record
Association and the last by the Honorary Secretary of the Bombay Bar
Association. These applicafions are in the nature of public interest
litigation. The relief asked ·fflr is one for mandamus to the Union of
India to fill up the vacancies of Judges in the Supreme Court and the E
several High Courts of the country and ancillary orders of directions in
regard to the same. The petition from Bombay is confined to the relief
of filling up of vacancies in the Bombay High Court. Since common
please were advanced and the relief sought was of similar nature, these
applications have beeen clubbed together and heard from time to time.
F
In response to the rule, the Union of India took the stand
through the Attorney General that the petitions were not maintainable
and the filling up of the vacancies in the superior courts was not a
justiciable matter. Reliance was placed on the decision of this Court in
the case of S.P. Gupta v. Union of India, [1982] 2 SCR 365. The
objection raised by the learned Attorney General was overruled by the G
Court by drawing a distinction between fixing the Judge strength in the
Courts or selection of judges on one side and the filling up of vacancies
on the basis of sanctioned strength on the other. This Court as an
interim measure took the view that while the ratio in S.P. Gupta's case
left the matter of fixing up of the Judge strength to the President of
India under the constitutional scheme, and the choice of Judges to the H
438 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
prescribed procedure, once the sanctioned strength was determined it
A was the obligation of the Union of India to maintain the sanctioned
strength in the superior Courts and these cases were allowed to
proceed.
Mr. Soli Sorabjee, the succeeding Attorney General, withdrew
B the objection regarding this Court's jurisdiction and m·ade a statement
that he was of the view that it was the constitutional obligation of the
Union of India to provide the sanctioned Judge strength in the
superior courts and the default; if any, was a matter of public interest
and the writ petitions requiring a direction to the Union of India to fill
up the vacancies were maintainable.
c I
The superior judiciary is divided into the Union Judiciary
covered by Chapter 4 of Part V and the High Courts in the States are •
covered by Chapter 5 of Part VI of the Constitution. Article 124( 1) of
D the Constitution provides:
"There shall be a Supreme Court of India consisting of a
Chief Justice of India and, until Parliament by law pre-
scribes a larger number, of not more than seven other
Judges."
E
From time to time !ht Judge strength in the Supreme Court has been
expanded and by the Supreme Court (Number of Judges) Amendment
. Act, 1986 (22 of 1986), the existing number has been fixed at 25 apart
from the Chief Justice. Article 214 provides:
F "There shall be a High Court for each State."
But there are 18 High Courts in all on account of the fact that the High
Court at Guwahati exercises jurisdiction over six States including
Assam; the High Court at Chandigarh is common for the States of
Pun jab and Haryana and the jurisdiction of the High Court of Bombay
G extends over Goa. There is High Court at Delhi though the mandate of
Article 214 does not apply. Article 216 provides:
"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."
H
SUBHASH v. U.O.l. [MISRA, CJ.]
From time to time administratively the Judge strength of the different
A
High Courts has been refixed. At the time these matters were first
placed before us the total strength was 462 but later it has been
enhanced to 470. The enhancement has been on account of the fact that
in the Judge strength of the High Courts of Calcutta,. Himachal
Pradesh, Karnataka, Madras and Ra jasthan had ten additions in all
and the sanctioned strength of the Kerala High Court was reduced by B
two. There was a time during the pendency of these writ petitions
when the vacancies were more than 100 in the High Courts. From an
affidavit filed before this Court on behalf of the Ministry of Law &
- Justice the position as on 20th of February, 1990, showed that as
against the sanctiOned strength of 462, 368 had been filled up and the
vacancies were 94 in all. By 16.8.1980, the sanctioned strength had
c
gone up to 470 .and as against these, 440 appointments had been
made. The total posts to be filled up were 30 in number-19 being
permanent and 11 additional vacancies. We gather that by now some
more appointments have been made and the number of unfilled posts
has been reduced to around 22.
D
These cases were adjourned from time to time with interim
directions calling upon Union of India to fill up the vacancies within
specified dates. As a result of monitoring by the Court by interim
directions in these petitions, the position has somewhat eased but 22
vacancies still remain to be filled up. With retirements and other
cognate processes the number of vacancies keeps increasing from time E
to time.
We had made it clear to the learned Attorney General at the
several interlocutory hearings that these petitions and the Court's
directions have nothing to do with the actual selection of particular
Judges to be appointed in the vacancies and that was a matter exclu- p
sively within the domain of the constitutional scheme and concern of
the concerned constitutional functionaries. These petitions are con-
cerned with the filling up of vacancies and discharge of the constitu-
tional obligation of the Union of India to the nation in that behalf We
may point out that filing of these writ petitions and the proceedings of
the Court have helped the Union of India to fill up the vacancies to a G
considerable extent by making the various constitutional authorities
Lconscious of the urgency of problem and of their responses. We have
noticed the fact that while the process of filling up of vacancies was
considerably slow prior to the general election held in November,
1989, there has been an improvement in the process from January this
year. We have, however, not been able to appreciate the stand taken H
440 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R.
in some of the affidvaits of the Union of India that as the place and
A
process of appointments has been expedited, the writ-petitions be
taken to have served their purpose and do not survive. We recall
several occasions when our interim directions were received not with
any conspicuous enthusiasm and other occasions when inspite of assu-
rance and undertakings no progress was noticed.
B
II
For more than six scores of years High Courts have been func-
tioning in this country. Earlier appeals lay from·the High Courts to the
Privy Council in certain situations. Under the Government of India ·
Act, 1935, a Federal Court was stipulated which started functioning
c from 1937. With Independence of India in 1947, the jurisdiction of the
Privy Council got repealed. Our Constitution provided for a Supreme
Court for the entire country and a High Court for every State. The
superior judiciary in India now, therefore, consists of the Supreme
Court and the High Courts. Article 50 in Pait IV of the Constitution
D required the State to take steps to separate the Judiciary from the
Executive in the public services of the States. By now that has been
done. The constitutional scheme postulates Rule of Law and inde-
pendence of the judiciary. With a view to providing the same as an
indispensable factor for the sustenance of the democratic pattern of
society, provisions have been made in the Constitution.
E
The Preamble of our Constitution stipulates justice-social,
economii: and political for all citizens of India. It is too late in the day
to dispute the position that justice has to be administered through the
courts and such administration would relate to social, economic and
political aspects of justice. The Judiciary therefore becomes the most
F prominent and outstanding wing of the Constitutional System for
fulfilling the mandate of the Constitution. For its sound functioning, it
is, therefore, necessary that there must be an efficient judicial system
and one of the factors for providing the requisite efficiency is ensuring
adequate strength.
G For Rule of Law to prevail, judicial independence is of prime
necessity. Dr. Robert MacGregor Dawson, speaking about individual
independence of Judges once said:
"The Judge must be made independent of most of the
restraints, checks and punishments which are usually called
H into play against other public officers ............. He is
SUBHASH v. U.0.1. !MISRA, CJ.] .J.J I
thus protected against some of the most potent weapons
A
which a democracy has at its command: he receives almost
complete protection against criticism; he is given civil and
criminal immunity for acts committed in the discharge of
his duties; he cannot be removed from office for any ordi-
nary offence, but only of misbehaviour of a flagrant kind,
and he can never be removed simply because his decisions B
happen to be disliked by the Cabinet, the Parliament, or
the people. Such independence is unquestionably danger- .
- ous, and if this freedom and power were indiscriminately
granted the results would certainly prove to be disastrous.
The desired protection is found by picking with special care
the men who are to be entrusted with these responsibilities,
c
and then paradoxically heaping more privileges upon them
to stimulate their sense of moral responsibility, which is
called in as a substitute for the political responsibility which
has been removed. The Judge is placed in the position
where he has nothing to loss by doing what is right and little
to gain by doing what is wrong; and there is therefore every D
reason to hope that his best efforts will be devoted to the
conscientious performance of his duties."
In Bradley v. Fisher, 80 US 335 ( 1871) it was pointed out:
"Our judicial system is guided by the principle that a judi- E
cial officer, in exercising the authority vested in him must
be free to act upon his own convictions, without apprehen-
sion of personal consequences to himself."
For the availability of an apprpopriate atmosphere where a
Judge would be free to act according to his conscience it is necessary, F
therefore, that he should not be over burdened with pressure of work
which he finds it physically impossible to undertake. This necessarily
suggests that the Judge strength should be adequate to the current
requirement and must remain under constant review in order that
commensurate Judge strength may be provided.
G
Within a few years of functioning under the aegis of the Con-
stitution our pe0ple started realising that there was backlog in courts
and the same wa; on rapid and constant increase. The Law. Commis-
sion in its 14th Report in September, 1958, dealt with the question
adequacy of judicial strength as a matter of special importance. It
pointed out: · H
442 SUPREME COURT REPORTS I1990] Supp. 2 S.C.R.
"The fundamental rights conferred by the Constitution and
A
resort to the remedies provided for their enforcement have
contributed largely to the increase in the volume of work in
the High Courts. Applications for the enforcement of
fundamental rights, applications seeking to restrain the
usurpation of jurisdiction by administrative bodies and
B applications or suits challenging 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 of
recent legislation has resulted in a large number of novel
and difficult questions having been brought before the
c High Courts. Their decision have not only taken longer
time but have led not infrequently to reference to Full
Benches which necessarily divert the available judge power
from what may be called normal judicial work. As a result
of this large addition to their work, the disposal of ordinary
D civil and criminal work in the High Courts has suffered very
considerably. This increase of work and its specially
difficult and novel character can well be regarded as an
important cause of the accumulation of old cases."
The Law Commission emphasised the position by further saying:
E
"Governments could not have been unaware, at any rate
from 1950 onwards, that the files of the High Courts were
being loaded with a large amount of additional work. The
large number of writ applications and applications ques-
tioning the constitutionality of enactments and rules
F framed thereunder must have come directly to the notice of
the Governments. Responsible persons cannot also have
failed to notice that the disposal of these complicated and
in a sense novel matters consumed a great deal of the time
of tl1e High Courts which had the natural consequence of
clogging the normal and usual work."
G
Inspite of highlighting of the position by the Law Commission
and the warning administered by it, the process of providing adequate
judge strength commensurate with the volume of litigation has been
usually slow. Subsequent reports of the Law Commission have refer-
red to this aspect.
H
SUBHASH v. U.O.l. [MISRA, CJ.I
The Commissi~n took note of the position that due consideration
A
was not being bestowed upon the administration of justice and the
importance of the subject was not realised by the Executive authori-
ties. Lack of adequate financial provision and absence of appropriate
funding of schemes for improvement often led to abandonment of
contemplated wholesome measures and made long term planning dif-
ficult. In fact, the plea from several relevant quarters that 'Administra- B
tion of Justice' should be treated as a 'plan subject' has not beet\
entertained all these years. It has been so more on account of lack of
appropriate appreciation of the importance of the matter than any-
thing also.
Lord Denning of the Preface to the Law in Crisis by Professor C
C.G. WeeraMantryhassaid:
"We are passing through a critical moment in the history of
mankind. Civilised society appears to be disintegrating.
Minorities openly defy the law for their own ends.
Terrorists seize hostages and threaten to -kill them. D
Workmen set up picket hives outside power stations and
threaten to bring the country to a standstill. Students
occupy buildings and prevent the running of their universi-
ties. Only too often their threats succeed. The peaceful
majority give in. They surrender.
E
Moral and spiritual values, too, appear to be at a low
ebb. The sanctions of religion have lost their force. Schools
and teachers take much interest in social sciences. They
explain how people behave. They seek to help the misfits.
But they do not set forth standards of conduct. They do not
tell people how to behave. The only discipline to do this is F
the discipline of law. It is the law which teaches that men
must not resort to violence to obtain their ends; that they
must keep their promises; they must not injure their neigh-
bours and they must act fairly. The law covers the whole
range of human behaviour and says what men must do and
mnst not do ....... Law which is the very foundation of G
the civilized society is in peril."
Sir Frederick Pollock in one of his lectures pointed out that long
- indifference to the legal system and to all that goes with it is the result
of many generations of neglect in communicating to the layman some
understanding of the very ground work of the legal system under which H
444 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
he spends his life. Religion, politics, art, literature-all these are
A
taught as part of general education, but not the fundamentals concern-
ing the administration of law, nor the history of liberty nor the need
for public vigilance over. its legal system. It is not surprise that faith and
confidence in the law are steadily declining and legal systems, by and
large, are losing their base of popular support on which they must
B ultimately rely.
We are living in an age when all traditional institutions are under
scrutiny, suspicion and challenges of reassessment. If the current
mood of disillusionment infects the core of the law and its institutions,
we may .have lost our last opportunity for the preservation of freedom
under the Law. It is, therefore, a matter for immediate attention of all
c concerned-and of Government in particular-that the need is recog-
nised and the Administration of Justice is made a plain subject and
given appropriate attention.
It is true that the number of High Courts compared to 1950 has
D increased in later years. It is also true that the Judge strength has been
increased. It is, however, equally true that the enhancement has not
been commensurate. After a lot of exercise, per year disposal per
Judge of main cases has been fixed at 650. If this be the basis, perhaps
no High Court in India excepting that for Sikkim has adequate judge
strength.
E
We gather that the Kerala High Court where the sanctioned
strength has been reduced by 2, has a sanctioned strength 22 while its
pendency as on I. 1. 1990 being 34,330 cases justifies a Judge strength
of almost 50 on the basis of the measure of 650 cases per Judge per
year. We intend to indicate that there was no justification for reduc-
F
tion of the sanctioned strength.
We are alive to the position that in S.P. Gupta's case this aspect
has been held to be not justiciable. We do not agree with the opinion
expressed by the majority on this aspect and are of the opinion that
that aspect requires reconsideration. For the present we suggest to
G Government that the matter should be reviewed from time to time and
steps should be taken for determining the sanctioned strength in a
pragmatic way on the basis of the existing need. If there be no correla-
H
tion between the need and the sanctioned strength and the provision of
judge-manpower is totally inadequate, the necessary consequence has
to be backlog and sluggish enforcement of the Rule of Law. -
SUBHASH v. U.0.1. [MISRA, CJ.] 445
III
A
Another reason directly contributing to backlog and its increase
is the non-filling up of the sanctioned vacancies. Under the traditional
process followed the matter, steps for filling up of vacancies have been
initiated by the Chief Justice of the High Court six months in advance
of the occurrence of the vacancy. The date of retirement of a Judge is B
known on the date he enters office unless vacancy is caused by resigna-
tion, removal by impeachment or death. Apart from these eventua-
lities, the date of vacancy in the post being known for years before
there can really be no justifiable excuse for inaction in the initiation of
steps for filling up the vacancy well in advance of its actual occurrance.
The existing scheme of appointment involves a process of consultation
with the Chief Justice, the Governor of the State, the Chief Justice of C
India before the President of India makes the appointment. The
involvement of the Governor brirtgs in the Chief Minister and Presi-
dential action involves the Central Government. If, however, every
. functionary associated with the process remains cognisant of the con-
stitutional obligation involved in the matter we see no justification as D
to why for selection of the incumbent more than 3 to 4 months should
be necessary. The system should be so perfect and smooth that with
the retirement of one Judge his successor should be ready to step in
- and by this process not a day's judge strength should be lost to a High
Court.
E
The question of appointment of Judge was the subject-matter of
the 80th Report of the Law Commission. It referred to its earlier
Report ( 1979) where it was said:
"As mentioned earlier, though the sanctioned judge
strength of the High Courts in the country during the year F
1977 was 352, only 287 judges on an average were in posi-
tion. Likewise, in the year 1976, even though the sanc-
tioned strength was 351, only 292 judges were in position.
Leaving aside the judges who were entrusted with work
outside their normal duties, the fact remains that the
number of judges in position in both the.years was less than 'G
the sanctioned strength. This disparity between the sanc-
·t tioned strength, and the number of judges in position was
apparently :lue to the fact that vacancies in the post were
not filled in as soon as they occurred. It is our considered
opinion that delay in filling in the vacancies is one of the
major controlling factors reasonsible for the pilling accu- H
446 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
mutation of arrears. In our opinion, when a vacancy is
A expected to arise out of the retirement of a judge, steps for
filling in the vacancy should be initiated six months in
advance. The date on which such a vacancy will normally
arise is always known to the Chief Justice of the High Court
and also to others concerned. It should be ensured that
B necessary formalities for the appointment of a Judge to fill
the vacancy are completed by the date on which the
vacancy occurs."
Several other reasons contributing to the non-filling up of vacancies
were brought to the fore in the Report. Obviously, the. reports
furnished by the Law Commissions from time to time have no~
C · received adequate consideration in the hands of the appropriate
authorities and administration of justice has not received its due atten-
tion. This has resulted in the obstinate problem of backlog.
Prolongation of litigation is perhaps a necessary evil of our type
D of adjudicatory system. Dacon (Law Tracts) listed the grievances of
his times against the laws of England and the Justice system in the
following way:
E
"Certain it is that our laws, as they now stand, are subject
to great uncertainties, and variety of opinion, delays and
evasions whereof ensueth: (i) that the multiplicity and
length of suits in great; (ii) that the contentious person is
-
armed and the honest subject wearied and oppressed; (iii)
that the judge is more absolute, who, in doubtful cases,
hath a greater scope and liberty; (iv) that the chancery
courts are more filled, the remedy of law being often ab-
F sent and doubtful; (v) that the ignorant lawyer shroudeth
his ignorance of law, in that doubts are frequent and many;
and (vi) that men's assurances of their lands and estates by
patents, deeds, wills are often subject to question and
hollow ....... "
G Bacon's description to a considerable extent represents even
today's situation. The volume of litigation has increased while there
has been no commensurate expansion of the adjudicatory machinery.
When interim directions made in these cases were not yielding
results, the Attorney General mentioned to us on repeated occasions
H that the consultations were taking time. Very often, while the Chief
I SUBHASH v. U.0.1. [MISRA, CJ.] 447
Justice of the High Court had made his recommendation, the response
A
from the Chief Minister through the Governor of the -State was not
forthcoming, he used to say. Repeated reminders were being sent from
the Union Government and they went unheaded: On one occasion to
meet the staleinate we had indicated in an interlocutory order that a
time: frame must be set for the response of the constitutional authority
in the State and if there was no response forthcoming within the time, B
the Union of India should be in a position to proceed with the recom-
mendation of the Chief Justice of the High Court. That even bore no
fruit.
Backlog in Courts has become a national problem. The adjudi-
catory process is being blamed for the equalling itself to the challenge
of the times. There is a general complaint that the judicial system is on
c
the verge of collapse. It is, therefore, the obligation of the constitu-
tional process to keep the system appropriately manned. We have
found no justification for the sluggish move in such an important
matter.
D
We may, at this stage, advert to the Constitution (Sixty-Seventh
Amendment) Bill, 1990, which is pending before the Parliament. In
J the statement of objects and reasons of this Bill, it has been stated:
- "The Government of India have in the recent past announ-
ced their intention to set up a high level judicial commis-
sion, to be called the National Judicial Commission for the
E
appointment of Judges of the Supreme Court and of the
High Courts and the transfer of Judges of the High Courts
, so as to obviate the criticisms of arbitrariness on the part of
the Executive in such appointments and transfers and also
.. to make such appointments without any delay. The Law F
Commission of India in their 12 lst Report also emphasised
..•
<
the need for a change in the system."
This part of the statement obviously accepts the position that
Government are satisfied that there is basis for criticism of the
arbitrariness on the part of the Executive and the modality adopted G
following S.P. Gupta's ratio has Jed to delay in the making of appoint-
men ts which the Constitutional Amendment seeks to eliminate.
i
From the affidavits filed by the Union of India and the state-
ments made by learned Attorney General on the different occasions
when the matter was heard. We found that the Union Government had H
448 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
adopted the policy of reopening recommendations even though the
A same had been cleared by the Chief Justice of India on the basis that
there had in the meantime been a change in the personnel of the Chief
Justice of the High Court or the Chief Minister of the State. The
selection of a person as a Judge has nothing personal either to the
Chief Justice of the High Court or the Chief Minister of the State. The
B High Court is an institution of national importance ~herein the person
appointed as a Judge functions in an impersonal manner. The process
of selection is intended to be totally honest and upright with a view to
finding out the most suitable person for the vacancy. If in a given case
the Chief Justice of the High Court has recommended and the name
has been considered by the Chief Minister and duly processed through
the Governor so as to reach the hands of the Chief Justice of India
c through the Ministry of Justice and the Chief Justice of India as the
highest judicial authority in the country, on due application of his
mind, has given finality to the process at his level, there cannot ordi-
narily be any justification for reopening the matter merely because
there has been a change in the personnel of the Chief Ju.<tice or the
D Chief Minister of the State concerned. We intend to make it clear that
this has to be the rule and the policy adopted by the Union of India as
has been indicated to us in Court by the learned Attorney General
should immediately be given up. In the functioning of public offices
there is and should be a continuity of process and action and all objec- .
tive decisions taken cannot be transformed into subjective issues. That
E being the position, .recommendations finalised by the Chief Justice of
India unless for any particular reason and unconnected with the mere
change of the Chief Justice or the Chief Minister justifying the same
should not be reopened and if in a given case the Union of India is of
the view that the matter requires to be looked into again a reference ••
should be made to the Chief Justice of India and there can be a fresh
look at the matter only if the Chief Justice of India permits such a
.
F
review of the case. In fact, as an interim measure we had indicated that
this should be the position but we find that steps contrary to the expre-
•
ssion of this opinion have been taken. That is why we have found it-
necessary to restate the opinion. Government shall take appropriate
action in accordance with this principle.
G IV
An independent non-political judiciary is crucial to the suste-
nance of our chosen political system. The vitality of the democratic
process, the ideals of social and economic egalitarianism, the impera.,__
tives of a socio-economic transformation envisioned by the constitu-
tion as well as the Rule of law and great values of liberty and equality
H
are all dependent on the tone of the judiciary. The quality of the
SUBHASH v. U.0.1. [MISRA, CJ.] 449
judiciary cannotremain.unaffected, in turn, in the process of selection
A
of Judges.
Some of the. important aspects of selection and appointment of
Judges fell for debate before a seven-judge bench in S.P. yupta's case
[ 1982] 2 SCR 365. The controversy was triggered-off by a circular
dated 13th March, 1981 issued by the Union Law Minister addressed B
to the Governor of Punjab and the Chief Ministers of the States refer-
ring to the desirability of one-third of the judges of the High Courts, as
for as possible, being from outside the State in the interest of 'National•
Integration' and "to combat narrow parochial tendency bred by caste,
kinship and other local links and affiliations." The circular requested
the Governor and the Chief Ministers to obtain from all the additional
judges working in the High Court in their respective States their con- c
sent to be appointed as permanent judges in the other High Courts of
the country and also to obtain from persons who had already been, or
may in the future be, proposed for initial appointment their consent to
be appointed to any other High Court in the country. The additional
judges as well as the proposed-appointees were also asked to name D
three High Court, in the order of preference, to which they would
prefer to be so appointed as permanent judges. The main issues that
fell for consideration in the case were whether the said circular
interfered with judicial independence; whether at all, and if so under
what circumstances, a judge of High Court could be transferred to
another High Court without his consent; and as to the criteria on which E
an additional judge was entitled to be made permanent. Several inci-
ental issues such as whether the lawyers who brought the petitions
had the requisite 'standing to sue'; whether the records of the Govern-
ment pertaining to the appointment or non-appointment of additional
judges as permanent judges and to the transfer of judges were pri-
vileged from disclosure and, more importantly, the question as to the F
significance and status of the process of 'consultation' envisaged in the
constitutional process of appointment of judges and the primacy of the
position of the institution of the Chief Justice of India in the consulta-
tive process-whether the opinion and advice of the Chief Justice of
India was on the same significance as those of the other constitutional
functionaries viz., the Governor, the Chief Justice of the State who G
· consulted in the matter-also came to be debated. In our opinion, the
view expressed by four learned Judges whose views constituted the
majority on the point-the other three learned judges took a different
view-vitally affects the concept and values of judicial independence.
That case, indeed, traversed a wide ground and ran,ge of ideas. H
,
450 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
Referring to that.case a ctjtical review published in the International
A
and Comparative Law Quarterly [vol. 33-1984] said.
"In reaching these conclusions, members of the Court
passed over much fascinating ground, and it gives Intrigu-
ing insight into the attitude of the Indian judiciary towards
B their own role and that of the Constitution in the context of
India today. Some of the most interesting observations are
obiter, but that does not necessarily detract from their
importance in the: decision of a final court of appeal."
The view taken by Bhagwati J., Fazal Ali J. Dasai J., and Venkatara-
ntiah J., to whieh we will presently advert, in our ·opinion, not only
c seriously detracts from denudes the primacy of the position, implicit in
the constitution.al scheme, of the Chief Justice of India in the consulta-
tive process but al~o whittles down the very singificance of "consulta-
tion" as required to be understood in the constitutional scheme and
context. This bears both on the susbtance and the process of the con-
D stitutional scheme. The constitutional phraseology would require to be
read and expounded in the context of the-constitutional philosophy of
separation of powers to the extent recognised and adumbrated and the
cherished-.values of judicial independence. Consistent with the con-
stitutional purpose and process it becomes im~rative that the role of
the institution of the Chief Justice of India be rec0gnised as of crucial
E importance in the matter of appointments to the Supreme Court and
the High Court of the States. We are of the view that this aspect dealt
with in Gupta's case requires re-consideration by a larger bench.
The points which require to be re-considered relate to and arise
from the views of the majority opinion touching the very status of
F "consultation" generally and in particular with reference to "consulta-
tion" with Chief Justice of India and, secondly, as to the primacy of
the role of the Chief Justice of India. The content and quality of
consultation may perhaps vary in different situations in the inter-
action between the executive and the judicial organs of the State and
same aspects may require clarification.
G
There is yet another aspect as to the right to initiate the appoint-
ments of Judges. In regard to this aspect, in practice, there appears to
have been a distortion of the scope of the observations of the majority,
even to the extent these observations go. The statement that there
should be no embargo on the State executive initiating the proposal for
H appointments goes with the qualification that the State executive can-
.
SUBHASH v. U.0.1. [MISRA, CJ.) 451
not. send its proposals directly to the Union Government but should A
firsi send it to the Chief Justice of the State. Desai J., clearly and
unambiguously qualified this right of the executive thus:
·· . . . . . . . . . Similarly, there could not be a blanket
embargo on the State executive initiating the proposal. We
agree that the State executive should not make its own B
recommendation and forward it directly to the Centre. The
State executive initialing the proposal must first forward it to
the Chief Justice of the High Court who would be bette1
informed about the practising advocates as well as the Dis-
trict Judges subordinate to the High Court, and seek the
views of the Chief .Justice. The view of both· may be C
forwarded to the Chief Justice of India ..... "
(Emphasis Supplied)
But it has been mentioned that a practice is sought to be
developed where the executive Government of the State sends up the
proposals directly to the Centre without reference to the Chief Justice D
of the State. This is a distortion of the constitutional scheme and is
wholly impermissible. So far as the executive is concerned, the 'right'
to initiate an appointment should be limited to suggesting appropriate
names to the Chief Justice of the High Courts or the Chief Justice of
India. If the recommendation is to emanate directly from a source
other than that of the Chief Justices of the High Courts in the case of E
the High Courts and the Chief Justice of India in the case of both the
High Courts and the Supreme Court it would be difficult for an
appropriate selection to be made. It has been increasingly felt over the
decades that there has been an anxiety on the part of the Government
of the day to assest its choice in the ultimate selection of Judges. If the
power to recommend would vest in the State Government or even the F
Central Government, the picture is likely to be blurred and the process
of selection ultim·ately may turn out to be difficult.
Returning to the views of the majority, we may set out the views
of these learned Judges in the Judgment as to "consultation" and
primacy of the position of the Chief Justice of India which would, in G
our opinion, require re-consideration. Referring to 'Consultation' in
Article 124(2) and 217( 1) Bhagwati, said:
" .... If is obvious on a plain reading of clause (2) of Arti-
cle 124 that it is the President, which in effect and substance
means the Central Government, which is ·empowered by the H
\
452 SUPREME .COURT REPORTS [1990] Supp. 2 S.C.R.
Constitution to appoint Judges of the Supreme Court ....
A ................... 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 Govern-
ment may deem it necessary to consult, are merely constitu-
B tional functionaries having a consultative role and the power
of appointment resides solely and exclusively in the Central
Government .... "
" .... But, while giving the fullest meaning and effect
to 'consultation', it must be borne in mind that it is only
consultati011 which is provided by way of fetter upon the
c power of appointment vested in the Central Government and
consultation cannot be equated with concurrence ...... .
. . . . . . . . ... . . . . It would therefore be open to the Central
Government to over-ride the opinion given by the constitu-
tional functionaries required to be consulted and to arrive at
its own decision in regard to the appointment of a Judge in
the High Court or the Supreme Court ............... .
. . . . .. . . . . .. . . .. . . .. Even if the opinion given by all the
constitutional functionaries consulted by it is identical, the
Central Government is not bound to act in accordance with
such opinion .... "
E (emphasis supplied)
[See: [1982] 2 SCR 540, 541, 542]
As to the primacy of the position of Chief Justice of India, the learned
Judge observed:
F
" It was contended on behalf of the petitioners that
where there is difference of opinion amongst the constitu-
tional functionaries required to be consulted, .the opinion of
the Chief Justice of India should have primacy, since he is
ihe head of the Indian Judiciary and pater fam;'.1es of the
G judicial fraternity. We find ourselves unable to accept this
contention. . ... , ... Article 217 places all the three con-
. stitutional functionaries on the same pedestal so far as the
process of consultation is concerned.
(emphasis supplied)
H "It is therefore, clear that where there is difference of
SUBHASH v. U.0.L [MISRA, CJ.) 453
opinion amongst the constitutional functionaries in regard A
to appointment of a Judge in a High Court, the opinion of
none of the constitutional functionaries is entitled to primacy
but after considering the opinion of each of the constitu-
tional functionaries and giving it due weight, the Central
Government is entitled to come to its own decision as to
which opinion it should accept in deciding whether or not to B
appoint the particular person as a Judge ..... "
(emphasis supplied)
[See: [ 1982] 2 SCR 543 and 545]
Certain observations of Fazal Ali J., on judicial independence,
indeed, reflect the state of acute poverty and ignorance of the large c
masses of Indian society and the consequent tack of awareness on their
part of the niceties of the controversy and the general air of cynicism
thai degenerating standards in public-life has engen.dered in them.
Learned judge observed: D'
"There is another 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 appoin-
ted or not appointed or which one is continued or not con-
tinued. The high sounding concept of independence of E
judiciary or primacy of one or the other of the Constitutional
functionaries or the mode of effective consultation are
matters of 'academic interest in which our masses are least
interest .....
"It is only a sizeable section of the in.tellectuals consist- p'
ing of the press and the lawyers who have made a prestigious
issue of the independence of the judiciary. I can fully under-
stand 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 inter-
ference with the appointment of Judges strictly according G
to constitutional provisions may mar the institution of
judiciary and therefore they may to some extent be justi-
fied in vindicating their rights. But at the same time,
however, biting or bitter, distastefe.l and diabolical it may
seem to be, the fact remains that the masses in general are
not at all conc~~ned with these legal niceties and so far as H
454 SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
administration of justice is concerned they merely want that
A
their cases should be decided quickly by Judges who gen-
erate confidence ... "
(emphasis supplied)
[See: [ 1982] 2 SCR 852]
B
But it is only through the great institutions of democracy, politi-
cal statesmanship and the activist role of the judiciary that the milch
needed socio-economic transformation from a fuedal and exploitative
society to an egalitarian social and economic order of a true welfare
state that the Constitution dreams of, can emerge. Political obser-
vers ·see that despite object poverty and squalor amongst large
c sections of Indian masses, they manifest such rare intuitive political
acumen, insight and sagacity which has sustained the democratic spirit
that there is no justification for any cynical pessimism. Even if the
assumption that large sections of the people are not be able to
appreciate the constitutions niceties is true, that, by itself, does not
D detract from the necessity to maintain the highest standards of judicial
independence. On the contrary the need becomes all the greater.
Desai J., contemplated "Value-packing" on the premise that a
preponderant role for the judicial wing in the appoirltments raises a
question of essential political doctrine that the very power of Judicial
E Review, with the concomitant jurisdiction to defeat the will of the
people by striking down laws enacted by the people's representatives,
would be essentially an undemocratic ptocess, a-foniori where there is
no elective element in the appointment of judges. Certain observa-
tions of Prof. Schwartz were referred to in this behalf.
F On the s~e topic Venkataramiah, J. said:
"In India we have adopted the procedure contained in
Article 217(1) of the Constitution for the appointment of
judges of the High Courts ........ This method appears to
have been adopted so that the_ appointment of judges may
G have ultimately the sanction of the people whom the
Council of Ministers represent in a parliamentary form of
Government. In that way only the judges may be called
people's judges. If the appointment of judges is to be made
on the basis of the recommendation of judges only then
they will be Judges' judges and such appointments may not
H fit into the scheme of popular democracy."
SUBHASH v. U.0.1. (MISRA, CJ.) 455
I
[See: [1982] 2 SCR 1273]
A
"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 B
above, which may to some extent be 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(1) of the Con-
stitution. There are no express words conveying that mean-
ing. The President has to take into consideration the C
opinions of all of them and he should not accept the
opinion of any ofthem only on the sole principle of primacy
"
[See: [1982] 2 SCR 1262]
D
This, indeed, has the familiar ring of the controversy arising out
of the judicial response of the Supreme Court of the United States to
the ''New-Deal" legislation. The striking down of the mfo1mum wage
law as unconstitutional triggered an impassioned deb.ate as to the very
doctrinal justifiability of Judicial Review and said to have led the
American President to fXlntemplate "Court-packing". That, ·sub- E
sequently the court gave a clean bill of health to the "New-Deal"
legislation is part of judicial history of that country. Certain observa-
tions of Prof. Schwartz referred to by Desai J .-as the learned author's
own views to the contrary indicate-are not apposite in the context in
which the learned judge sought to invoke them. The learned author,
even in the American context, reiterated the imperative of Judicial F
Review to make "the provisions of a constitution more than mere
maxims of political morality" and that "the universal sense of America
has come to realise that there can be no constitution without law
administered through the Supreme Court". Referring to Chief Justice
Marshall's pronouncement in the Marbury case, the learned author
s~: G
"That case is now rightly considered as the very key-
stone of the American constitutional arch, for, in it, t[le U.S.
Supreme Court first ruled that it possessed the authority to
review the constitutionality of statutes. y ~t, when the case
came before the Supreme Court, it seemed to present any- H
456 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R.
thing but the question of judicial review."
A
"Marbury v. Madison is crucial in the history of
American public law because it laid down the doctrine of
judicial review which has since been the foundation of the
constitutional structure. Marbury v. Madison was the first
B case to establish the Supreme Court's power to review the
constitutionality of legislative acts and it did so in terms so
firm and clear that t~e power has never since been legally
doubted. Had Marshall not confirmed review power at the
outset in his magisterial manner, it is entirely possible it
would never have been insisted upon, for it was not until
1857 that the authority to invalidate a federal statute was
c next exercised by the U.S. Supreme Court. Had the
Marshall Court not taken its stand, more than sixty years
would have passed without any question arising as to the
omnipotence of Congress. After so long a period of judicial
acquiescence in Congressional supermacy, it is probable
D that opposition then would have been fultile."
[See: "Some makers of American Law"; Tagore Law
Lectures-pages 32 ~ 34]
Referring to the dilemma of political theorists whether assump-
E tion by the Marshall Court of review power was justified by the con-
stitution or was an act of judicial usurpation the learned author says:
" .... Those who urge the latter position lose sight of the fact
that Marbury v. Madison Merely confirmed a doctrine that
was part of the American legal tradition of the time, derived
F from both the colonial and revolutionary experience. One
may go further. Judicial review was the inarticulate major
premise upon which the movement (discussed in my last
lecture) to draft Constitutions and Bills of Rights was ulti-
mately based. The doctrine of unconstitutionality had been
asserted by Americans even before the first written Con-
G stitutions, notably by James Otis in his 1761 attack on
general writs of assistance and by Patrick Henry in 1763
when he challenged the right of the Privy Council to disal-
low the Virginia Two-penny Act. The Otis-Henry doctrine
was a necessary foundation, both for the legal theory
underlying the American Revolution and the Constitutions
H and Bills of Rights it produced.
SUBHASH v. U.0.I. [MISRA, CJ.] 457
"Aadressing the court in the Five Knights' case (one
of the great state trials of Stuart England), the Attorney- A
General, arguing for the Crown, asked, "Shall any say,
The King cannot do this? No, we may only say, He will not
do this." It was precisely to insure that in the American
system one would be abie to say, "The State cannot do
this," that the people enacted a written Constitution con- B
taining basic limitations upon the powers of government.
Of what avail would such limitations be, however, if there
were no legal machinery to enforce them? Even a Constitu-
tion is naught but empty words if it cannot be enforced by
the courts. It is judicial review that makes constitutional
provisiorµ more than mere maxims of political morality."
(emphasis supplied) C
[See: "Some makers of American Law"; Tagore Law
Lectures-pages 35 & 37)
In India, however, the .judicial institutions, by tradition, have an D
avowed a-political commitment and the assurance of a !!On-political
complexion of the judiciary cannot be divorced from the process of
appointments. Constitutional phraseology of "consultation" has to be
understood and expounded consistent with and to promote this con'
stitutional spirit. These implications are, indeed, vital. The constitu-
tional values can not be whittled down by calling the appointments of E
judges as an executive act. The appointment is rather the result of
collective, constitutional process. It is a partieipatory constitutional
function. It is, perhaps, inappropriate to refer to any 'pow~r' or 'right'
to appoint judges. It is essentially a discharge of a constitutional trust
of which certain constitutional functionaries are collectively reposi-
tories. The executive, on whose advice the President acts, as a F
participant in the process has its own important .and effective rule. To
say that the power to appoint solely vests with the executive and that
the executive. after bestowing such consideration on the result of con-
sultations with the judicial organ of the State, would be at liberty to
take such decision as it may think fit in the matter of appointments, is
an over-simplification of a sensitive and subtle constitutional sentience G
and, if allowed foul play' would be subversive of the doctrine ·of judi-
cial independence. What Endmond Burke said is to be-recalled:
"All persons possessing a position of power ought to be
strongly and awfully impressed with an idea that they act
in trust and are to account for their conduct in that trust to H
458 SUPREME COURT REPORTS [ 1990] Supp. 2 S.C.R
A the one great Master, Author and Founder of Society."
The word "consultation" is used in the constitutional provision
in recognition of the status of the .high constitutional dignitary who
formally expresses the result of the institutional process leading to the
appointment of judges. To limit that expression to its literal limita-
B
tions, shorn of its constitutional background and purpose, is to borrow
Justice Frankfurther's phrase, "'to stick in the bark of words".
Judicial Review is a part of the basic constitutional structure and
one of the basic features of the essential Indian Constitutional policy.
This essential constitutional doctrine does not by itself justify or neces-
c sitate any primacy to the executive wing on the ground of its political
accountability to the electorate. On the contrary what is n)'cessary is
an interpretation sustaining the strength and vitality of Judicial
Review. It might under certain circumstances be said that Government
is not bound to appoint a judge so recommended by the judicial wing.
But to contemplate a power for the executive to appoint a person
D
despite his being disapproved or not recommended by the Chief
Justice of the State and the Chief Justice of India would be wholly
inappropriate and would constitute an arbitrary exercise of power.
Then-again, whatever then: might be difference of opinion between
the Chief Justice of a State and the Chief Justice of India - some of
the weighty reasons in this behalf are set out by the other three judges
E
in their opinion - the opinion of the Chief Justice of India should
have the preponderant role. We are of the view that the primacy of the
Chief Justice of India in the process of selection would improve the
quality of selection. The purpose of the 'consultation' is to safeguard
the independence of the judiciary and to ensure selection of proper
persons. The matter is not, therefore, to be considered that the final
F
say is the exclusive prorogative of the executive Government. The
recommendations of the appropriate constitutional functionaries from
the judicial organ of the State has an equally important rule. "Consul-
tation" should have sinews to achieve the constitutional purpose and
should not be rendered sterile by a literal interpretation. Who is able
to decide the qualities of lawyers proposed to be elevated to the Bench
G more than the Judges of the Superior Courts before whom they
practice? There are preponderant and compelling considerations why
the views of the Chief Justices of the States and that of the Chief
Justice of India should be afforded a decisive import unless the execu-
tive has some material in its possession which may mdicate that the
appointment is otherwise undesirable.
H
SUBHASH v. U.0.1. [MISRA. CJ.] 459
The view which the four learned Judges shared, in Gupta's case,
A
in our opinion, does not recognise the special and pivotal position of
the.Institution of the Chief Justice of India.
The correctness of the opinion of the majority in S. P. Gupta's
case relating to the status and importance of consultation, the primacy
of the position t~e Chief Justice of India and the view that the fixation B
of Judge strength is not justiciable should be re-considered by a larger
bench.
Indeed, the Union Government has quite often both before the
Parliament and outside has stated that it has, as matter of policy, not
made any appointments to the superior judiciary without the name
being cleared by the Chief Justice of India. This, indeed, would be c
the application of a standard of selection higher than envisaged by the
majority opinion in S.P. Gupta's case. But if the executive sets up a
standard by which it professes its actions to be judged it must be held
to those standards. This is to be done by a judicial recognition of the
standard with a concomitant legal and constitutional obligation for the D
executive to adopt and apply the standard.
As we have already pointed out, the bulk of the vacancies in the
High Courts have been filled up. Apart from two vacancies all other
Judges in the Supreme Court are in position. Learned Attorney
General has assured us that prompt steps are being taken to fill up the E
remaining vacancies and thereafter it will take steps to fill up the
additional posts which have recently been created in the different High
Courts. In view of what we have already stated and the assuranc~ held
out by the learned Attorney General we are of the view that further
monitoring for the time being is not necessary.
F
As already pointed out the petition from Bombay was confined
to filling up of vacancies in the Bombay High Court. Excepting two,
the remaining vacancies have been filled up and we have been told that
steps are afoot for getting two Judges to the Bombay High Court. We,
therefore, dispose of the writ petition from Bombay with no further
direction. Similarly, the writ application filed by Subhash Sharma for G
the reasons indicated above may also be disposed of without further
directions. As and when necessary the matter can be brought before
the Court. As in our opinion the correctness of the majority view in
S.P. Gupta's case should be considered by a larger Bench we direct the
papern of W .P. No. 1303 of 1987 to be placed before the learned Chief
Justice for constituting a Bench of riine Judges to examine the two H
46Q SUPREME COURT REPORTS [1990] Supp. 2 S.C.R.
A questions we have referred to above, namely, the position of the Chief
Justice of India with reference to primacy and, secondly, justiciability
of fixation of Judge strength.
We are aware of the position that the setting up of the National
Judicial Commission thl'•)ugh a Constitutional Amendment is in
B
contemplation. In the event of the Amendment being carried .and a
National Judicial Comn:iis!>ion being set up, the correctness of the ratio
in S.P. Gupta's case of the status of the Chief Justice of India may not
be necessary to be examined in the view of the fact that by the Amend-
ment the Chief Justice of India would become the Chairman of the
Commission. Jn case the Commission is not constituted, the two ques-
tions indicated above which are of vital importance to the efficient
functioning of the judicial system in the countl}' require consideration
and there Is an element of immediacy in the matter. We, therefore,
suggest that the writ petition on the two issues indicated above may be
taken up for hearing at an early date and preferably before the end of
thts year. We hope and trust that the Supreme Court Advocate-on-
D Record Association would continue to evince interest in the matter but
if our expectations are belied, this being in the nature of a public
interest litigati<!n, some on interested in the restitution of the issues
would be brought on record to effectively continue the proceeding and
assist the Court.
We Clarify that apart from the two questions which we have
indicated, all other aspect!; dealt with by us are intended to be final by·
our present order.
There shall be no order for costs.
R.S.S Petitions disposed of.
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