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PETITIONER: SUBHASH SHARMA AND OTHERS

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT26/10/1990

BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) VENKATACHALLIAH, M.N. (J) PUNCHHI, M.M.

CITATION:  1991 AIR  631            1990 SCR  Supl. (2) 433  1991 SCC  Supl.  (1) 574 JT 1990 (4)   245  1990 SCALE  (2)836

ACT:     Constitution  of  India: Articles 32, 124  and  217--Ap- pointment   of   Judges   of   High   Courts   and   Supreme Court--"Consultation"  with Chief Justice of  India--Primacy of--Fixation of Judges strength--Justiciability--Referred to Nine Judge Bench.

HEADNOTE:     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 Court and the several High  Courts of the country and ancillary orders  or  direc- tions in regard to the relief of filling up of vacancies. 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 objection as to the justiciability of the issue. The objection, however, was later withdrawn by the  succeed- ing  Attorney General who made a statement that it  was  the constitutional  obligation of the Union of India to  provide the  sanctioned  Judge strength in the superior  courts  and 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. Disposing of the petitions, this Court,     HELD: (1) 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  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]     (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  be- comes the most prominent and outstanding wing of the Consti- tutional System for fulfilling the mandate of the  Constitu- tion. 434

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For  its sound functioning, it is necessary that there  must be  an efficient judicial system and one of the factors  for providing  the  requisite efficiency  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  con- science it is necessary that he should not be over  burdened with pressure of work which he finds it physically  impossi- ble  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] Bradley v. Fisher, 80 US 335 1871, referred to.     (4)  It is a matter for immediate attention of all  con- cerned--and  of Government in particular--that the  Adminis- tration  of Justice is made a plan subject and given  appro- priate attention. [444C]     (5) Backlog in Courts has become a national problem. The adjudicatory  process  is  being blamed  for  not  equalling itself  to  the challenge of the times. There is  a  general complaint  that the judicial system is on the verge of  col- lapse. It is, therefore, the obligation of the constitution- al 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  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  justi- fication  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 rule  and  the policy adopted by the Union of  India  should immediately be given up. [448B-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, recommendations  finalised by  the  Chief Justice of India unless  for  any  particular reason and unconnected with the mere change of the Chief 435 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 review of the case. [448E-F]     (8)  Consistent  with  the  constitutional  purpose  and process it becomes imperative that the role of the  institu- tion  of  the  Chief Justice of India be  recognised  as  of crucial  importance  in the matter of  appointments  to  the Supreme Court and the High Courts of the States. This aspect dealt  with in Gupta’s case requires re-consideration  by  a larger bench. [450E]     (9)  In India the judicial institutions,  by  tradition, have an avowed a political commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of  "consultation"  has  to  be  understood  and   expounded consistent  with and to promote this constitutional  spirit. These  implications are, indeed, vital.  The  constitutional

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values cannot 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  constitutional  functionaries  are collectively repositories. [457D-F]     (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  consultations 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 sentence subversive of the doctrine of judicial independence. [457F-G]     (11)  The word "consultation" is used in  the  constitu- tional  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 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 436 and  one of the basic features of the essential Indian  Con- stitutional  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 Government is not bound to appoint a judge so recommended by the judicial wing. But to contemplate a power for the execu- tive  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  inappropriate  and would constitute an arbitrary exercise of power. [458D-E]     (14)  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  consid- ered that the final say is the exclusive 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 sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation.  [458F- G]     (15) There are preponerant and compelling cousideratious 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 executive has some material in its posses- sion  which may indicate that the appointment  is  otherwise undesirable. [458G-H]     (16)  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  of  the  Chief Justice  of India and the views that the fixation  of  Judge strength  is  not justiciable should be  reconsidered  by  a larger bench. [459B]     (17)  In view of the fact that the bulk of vacancies  in the  High  Courts have been filled up, and in  view  of  the

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assurance  held  out by the learned  Attorney  General  that prompt steps are being taken to fill up the remaining vacan- cies,  further monitoring for the time being is  not  neces- sary. [459F]

JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Civil) Nos.  13003 of 1985, 1303 of 1987 and 302 of 1989. (Under Article 32 of the  Constitution of India) 437 Subhash Sharma Petitioner in person.     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. 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.  Dik- shit  (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),  I. Makwana (For Rajasthan), Ms. Urmila  Kapur (For  Manipur) and M. Veerappa (For Karnataka) the  Respond- ents. The Judgment of the Court was delivered by     RANGANATH MISRA, CJ. These are applications under  Arti- cle  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 applications  are in the nature of public  interest  litiga- tion. The relief asked for is one for mandamus to the  Union of  India to fill up the vacancies of Judges in the  Supreme Court and the several High Courts of the country and  ancil- lary  orders of directions in regard to the same. The  peti- tion 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 been clubbed together and heard from  time to time.     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 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 438 prescribed  procedure,  once  the  sanctioned  strength  was determined  it 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  the objection regarding this Court’s  jurisdiction

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and made 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.                     I     The superior judiciary is divided into the Union Judici- ary  covered by Chapter 4 of Part V and the High  Courts  in the  States are covered by Chapter 5 of Part VI of the  Con- stitution. Article 124(1) of 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." From  time to time the 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 2 14 provides: "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 Punjab and Haryana and the  juris- diction of the High Court of Bombay extends over Goa.  There is  High Court at Delhi though the mandate of Article  2  14 does not apply. Article 2 16 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." 439 From time to time administratively the Judge strength of the different  High Courts has been retired. 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,  Karnata- ka,  Madras and Rajasthan had ten additions in all  and  the sanctioned strength of the Kerala High Court was reduced  by two.  There  was a time during the pendency  of  these  writ petitions affidavit filed before this Court on behalf of the Ministry of Law & Justice the position as on 20th of  Febru- ary, 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 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.     These cases were adjourned from time to time with inter- im  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 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 vacan- cies and that was a matter exclusively within the domain  of the  constitutional  scheme  and concern  of  the  concerned constitutional functionaries. These petitions are  concerned

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with  the filling up of vacancies and discharge of the  con- stitutional  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  considerable extent by making the various constitutional authorities con- scious 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  improve- ment in the process from January this year. We have,  howev- er, not been able to appreciate the stand taken 440 in some of the affidavits of the Union of India that as  the place  and 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 assurance and  undertak- ings no progress was noticed.                   II     For more than six scores of years High Courts have  been functioning  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 from 1937. With  Inde- pendence  of  India in 1947, the jurisdiction of  the  Privy Council  got repealed. Our Constitution provided for  a  Su- preme  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 Part IV of the Constitution 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  demo- cratic pattern of society, provisions have been made in  the Constitution.     The    Preamble   of   our    Constitution    stipulates justice--social, economic 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  be- comes the most prominent and outstanding wing of the Consti- tutional System for fulfilling the mandate of the  Constitu- tion. 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 ensur- ing adequate strength.     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  re- straints,  checks and punishments which are  usually  called into  play against other public officers  .............   He is 441 thus protected against some of the most potent weapons 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 ordinary  offence, but  only  of misbehaviour of a flagrant kind,  and  he  can

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never  be removed simply because his decisions happen to  be disliked by the Cabinet, the Parliament, or the people. Such independence is unquestionably dangerous, and if this  free- dom  and  power were indiscriminately  granted  the  results would certainly prove to be disastrous. The desired  protec- tion  is found by picking with special care the men who  are to be entrusted with these responsibilities, and then  para- doxically  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 reason  to hope that his best efforts will be devoted to the  conscien- tious 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 judicial officer, in exercising the authority vested in  him must be free to act upon his own convictions, without appre- hension of personal consequences to himself."     For the availability of an appropriate atmosphere  where a Judge would be free to act according to his conscience  it is necessary, therefore, that he should not be over burdened with pressure of work which he finds it physically  impossi- ble  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.     Within a few years of functioning under the aegis of the Constitution  our  people started realising that  there  was backlog  in  courts and the same was on rapid  and  constant increase.  The Law Commission in its 14th Report in  Septem- ber,  1958,  dealt with the question  adequacy  of  judicial strength as a matter of special importance. It pointed out: 442 "The  fundamental rights conferred by the  Constitution  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 for the enforcement of  funda- mental rights, applications seeking to restrain the  usurpa- tion  of jurisdiction by administrative bodies and  applica- tions  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  incon- sistency  with  the Constitution. The complexity  of  recent legislation  has  resulted in a large number  of  novel  and difficult  questions  having been brought  before  the  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 civil  and criminal work in the High Courts has suffered very consider- ably. 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  say- ing: "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 questioning the constitutionality of enactments and rules flamed  thereunder must  have come directly to the notice of  the  Governments.

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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 the High Courts which had the natural consequence of clogging the normal and usual work."     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 referred to this aspect. 443     The  Commission took note of the position that due  con- sideration was not being bestowed upon the administration of justice  and the importance of the subject was not  realised by  the  Executive authorities. Lack of  adequate  financial provision and absence of appropriate funding of schemes  for improvement often led to abandonment of contemplated  whole- some  measures  and made long term  planning  difficult.  In fact, the plea from several relevant quarters that ‘Adminis- tration  of Justice’ should be treated as a  ‘plan  subject’ has  not  been entertained all these years. It has  been  so more  on account of lack of appropriate appreciation of  the importance of the matter than anything also.     Lord  Denning  of the Preface to the Law  in  Crisis  by Professor C.G. Weera Mantry has said: "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.  Terror- ists  seize hostages and threaten to-kill them. 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 universities. Only  too  often their  threats succeed. The peaceful majority give in.  They surrender.          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  mis- fits.  But they do not set forth standards of conduct.  They do not tell people how to behave. The only discipline to  do this  is 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  neighbours and they must act fairly. The  law  covers the whole range of human behaviour and says what men must do and  must not do  .......  Law which is the very  foundation of 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 444 he spends his life. Religion, politics, art, literature--all these  are taught as part of general education, but not  the fundamentals  concerning 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  confi- dence  in the law are steadily declining and legal  systems, by  and Large, are losing their base of popular  support  on which they must ultimately rely.     We  are living in an age when all  traditional  institu- tions are under scrutiny, suspicion and challenges of  reas- sessment. If the current mood of disillusionment infects the core  of the law and its institutions, we may have lost  our

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last  opportunity for the preservation of freedom under  the Law.  It is, therefore, a matter for immediate attention  of all  concerned--and  of Government in  particular--that  the need is recognised 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 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  gather  that the Kerala High Court where  the  sanc- tioned  strength  has been reduced by 2,  has  a  sanctioned strength 22 while its pendency as on 1.1. 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  reduction  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  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 correlation 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. 445 III     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  known  on the date he enters office  unless  vacancy  is caused  by  resignation, removal by  impeachment  or  death. Apart  from these eventualities, 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 India before the  Presi- dent of India makes the appointment. The involvement of  the Governor  brings  in  the Chief  Minister  and  Presidential action  involves the Central Government. If, however,  every functionary associated with the process remains cognisant of the constitutional obligation involved in the matter we  see no  justification as 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.     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 1977  was

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352,  only 287 judges on an average were in position.  Like- rise, in the year 1976, even though the sanctioned  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  posi- tion  in  both  the  years  was  less  than  the  sanctioned strength.  This disparity between the  sanctioned  strength, and  the number of judges in position was apparently due  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  con- trolling factors reasonsible for the filling accu- 446 mulation  of  arrears.  In our opinion, when  a  vacancy  is 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 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 not received adequate consideration in the  hands of the appropriate authorities and administration of justice has  not  received its due attention. This has  resulted  in the_   obstinate problem of backlog.     Prolongation  of litigation is perhaps a necessary  evil of  our  type  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: "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 absent 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  .......  "     Bacon’s description to a considerable extent  represents even  today’s  situation. The volume of litigation  has  in- creased  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 that the consultations were taking  time. Very often, while the Chief 447 Justice  of the High Court had made his recommendation,  the response  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 stalemate 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,  the Union of India should be in  a  position  to proceed with the recommendation of the Chief Justice of  the

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High Court. That even bore no fruit.     Backlog  in  Courts has become a national  problem.  The adjudicatory  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 the verge of  col- lapse. It is, therefore, the obligation of the constitution- al process to keep the system appropriately manned. We  have found  no  justification for the sluggish move  in  such  an important matter.     We  may,  at  this stage,  advert  to  the  Constitution (Sixty-Seventh  Amendment)  Bill,  1990,  which  is  pending before  the  Parliament.  In the statement  of  objects  and reasons of this Bill, it has been stated: "The  Government of India have in the recent past  announced their intention to set up a high level judicial  commission, to  be called the National Judicial Commission for  the  ap- pointment  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 Commission of India in their 121st Report also emphasised the need  for a change in the system."     This  part of the statement obviously accepts the  posi- tion  that Government are satisfied that there is basis  for criticism of the arbitrariness on the part of the  Executive and  the modality adopted following S.P. Gupta’s  ratio  has led to delay in the making of appointments which the Consti- tutional Amendment seeks to eliminate.     From the affidavits filed by the Union of India and  the statements made by learned Attorney General on the different occasions when the matter was heard. We found that the Union Government had 448 adopted the policy of reopening recommendations even  though the  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 High Court  is an institution of national importance wherein  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 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 ordinari- ly  be  any justification for reopening  the  matter  merely because  there  has been a change in the  personnel  of  the Chief Justice or the 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  indi- cated to us in Court by the learned Attorney General  should immediately  be given up. In the functioning of  public  of- fices  there  is and should be a continuity of  process  and action  and all objective decisions taken cannot  be  trans- formed    into   subjective   issues.   That    being    the position, .recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected  with

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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 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 expression of this opinion  have been  taken. That is why we have found it necessary  to  re- state the opinion. Government shall take appropriate  action in accordance with this principle. IV     An independent non-political judiciary is crucial to the sustenance  of our chosen political system. The vitality  of the  democratic process, the ideals of social  and  economic egalitarianism,  the imperatives of a socio-economic  trans- formation envisioned by the constitution as well as the Rule of  law  and great values of liberty and  equality  are  all dependent on the tone of the judiciary. The quality of the 449 judiciary  cannot remain unaffected, inturn, in the  process of  selection  of Judges.     Some of the important aspects of selection and  appoint- ment of Judges fell for debate before a seven-judge bench in S.P.  Gupta’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 to the Governor of  Punjab and  the  Chief  Ministers of the States  referring  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  Gover- nor and the Chief Ministers to obtain from all the addition- al  judges  working in the High Court  in  their  respective States their consent 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  ap- pointed  to any other High Court in the country.  The  addi- tional  judges as well as the proposed-appointees were  also asked to name 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  circum- stances,  a  judge  of High Court could  be  transferred  to another High Court without his consent; and as to the crite- ria  on  which an additional judge was entitled to  be  made permanent.  Several  inciental issues such  as  whether  the lawyers who brought the petitions had the requisite  ‘stand- ing to sue’; whether the records of the Government  pertain- ing  to  the appointment or  non-appointment  of  additional judges  as  permanent judges and to the transfer  of  judges were  privileged from disclosure and, more importantly,  the question as to the 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  consulted  in  the matter--also  came to be debated. In our opinion,  the  view

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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  range  of ideas. 450 Referring  to that case a critical-review published  in  the International  and Comparative Law Quarterly [vol.  33-1984] said. "In reaching these conclusions, members of the Court  passed over  much fascinating ground, and it gives  intriguing  in- sight  into  the attitude of the  Indian  judiciary  towards 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 Venkataramiah J., to which we will presently advert, in  our opinion, not only seriously detracts from denudes the prima- cy  of the position, implicit in the constitutional  scheme, of  the Chief Justice of India in the  consultative  process but  also whittles down the very significance of  "consulta- tion"  as  required to be understood in  the  constitutional scheme and context. This bears both on the substance and the process  of  the constitutional 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 constitutional purpose and process it becomes imperative that  the  role of the institution of the Chief  Justice  of India  be recognised as of crucial importance in the  matter of  appointments to the Supreme Court and the High 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 "consultation" generally and in  particu- lar  with reference to "consultation" 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 consulta- tion 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.     There is yet another aspect as to the right to  initiate the  appointments  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 appointments goes with the qualification  that the State executive can- 451 not send its proposals directly to the Union Government  but should  first  send it to the Chief Justice  of  the  State. Desai J., clearly and unambiguously qualified this right  of the executive thus:           ".   ........   Similarly,  mere could  not  be  a blanket  embargo on the State executive initiating the  pro- posal. We agree that the State executive 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 practising advocates as well as

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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  .....  " (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 refer- ence to the Chief Justice 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  di- rectly  from a source other than that of the Chief  Justices of  the High Courts in the case of 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 appropri- ate 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  ulti- mate  selection of Judges. If the power to  recommend  would vest in the State Government or even the Central Government, the  picture  is  likely to be blurred and  the  process  of selection ultimately 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 our opinion,  require  re- consideration.  Referring  to ‘Consultation’ in  Article  1- 24(2) and 217(1) Bhagwati, said: "   ....  Iris obvious on a plain reading of clause  (2)  of Article  124 that it is the President, which in  effect  and substance  means the Central Government, which is  empowered by the 452 Constitution to appoint Judges of the Supreme Court  .... 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  neces- sary  to  consult, are merely  constitutional  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 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  ....... It  would  therefore be open to the  Central  Government  to over-ride the opinion given by the constitutional  function- aries  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  con- sulted  by  it is identical, the Central Government  is  not bound to act in accordance with such opinion  ....  " (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: "  ....  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

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is  the head of the Indian Judiciary and pater  families  of the judicial fraternity. We find ourselves unable to  accept this  contention   ..........  Article 217  places  all  the three  constitutional functionaries on the same pedestal  so far as the process of consultation is concerned. (emphasis supplied) "It is therefore, clear that where there is difference of 453 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  entitled  10 primacy  but  after considering the opinion of each  of  the constitutional  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 appoint the particular person as a Judge  .....  " (emphasis supplied) [See: [1982] 2 SCR 543 and 545]     Certain observations of Fazal Ali J., on judicial  inde- pendence,  indeed,  reflect the state of acute  poverty  and ignorance  of  the large masses of Indian  society  and  the consequent  lack of awareness on their part of the  niceties of  the  controversy and the general air  of  cynicism  that degenerating  standards  in public-life  has  engendered  in them.. Learned judge observed: "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  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 Constitutional  function- aries  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 intellectuals consisting  of  the press and the lawyers who  have  made  a prestigious  issue of the independence of the  judiciary.  I can fully understand that lawyers or other persons  directly connected  with  the administration of justice  may  have  a grievance  however  ill-rounded that improper  selection  of Judges  or  interference  with  the  appointment  of  Judges strictly according to constitutional provisions may mar  the institution  of  judiciary and therefore they  may  to  some extent be justified in vindicating their rights. But at  the same  time, however, biting or bitter, distasteful and  dia- bolical it may seem to be, the fact remains that the  masses in  general are not at all concerned with these legal  nice- ties and so far as 454 administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence..." (emphasis supplied) [See: [1982] 2 SCR 852]     But it is only through the great institutions of  democ- racy,  political statesmanship and the activist role of  the judiciary that the much 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 observers ‘see that  despite object poverty and squalor amongst large  sec- tions  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

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cynical  pessimism. Even if the assumption that  large  sec- tions  of the people are not be able to appreciate the  con- stitutions  niceties  is  true, that, by  itself,  does  not 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  ap- pointments raises a question of essential political doctrine that the very power of Judicial 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 process, a-fortiori where  there is no elective element in the appointment of judges. Certain observations  of  Prof. Schwartz were referred  to  in  this behalf. On the same topic Venkataramiah, J. said: "In India we have adopted the procedure contained in Article 2 17(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 have ultimate- ly 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  ap- pointment of judges is to be made on the basis of the recom- mendation  of judges only then they will be  Judges’  judges and such appointments may not fit into the scheme of popular democracy." 555 [See: [1982] 2 SCR 1273] "The position of the Chief Justice of India under Article  2 17(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  spe- cific  roles attributed to each of them as explained  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  Constitution.  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 sole principle of primacy........." [See: [1982] 2 SCR 1262]     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  strik- ing  down of the minimum wage law as unconstitutional  trig- gered an impassioned debate as to the very doctrinal  justi- fiability of Judicial Review and said to have led the Ameri- can  President to contemplate "Court-packing". That,  subse- quently  the court gave a clean bill of health to the  "New- Deal" legislation is part of judicial history of that  coun- try.  Certain observations 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  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  pro- nouncement in the Marbury case, the learned author said:          "That  case is now rightly considered as  the  very

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keystone  of the American constitutional arch, for,  in  it, the  U.S.  Supreme Court first ruled that it  possessed  the authority to review the constitutionality of statutes.  Yet, when  the case came before the Supreme Court, it  seemed  to present any- 456 thing but the question of judicial review."          "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 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 the power has never since been legal- ly  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 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 that opposition then would have been futile." [See:   "Some   makers   of  American   Law";   Tagore   Law Lectures--pages 32 & 34]     Referring to the dilemma of political theorists  whether assumption by the Marshall Court of review power was  justi- fied  by the constitution or was an act of judicial  usurpa- tion 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 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 ultimately  based. The doctrine of  unconstitutionality  had been  asserted  by Americans even before the  first  written Constitutions,  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 and Bills  of Rights it produced. 457           "Addressing  the court in the Five  Knights’  case (one  of  the  great state trials of  Stuart  England),  the AttorneyGeneral,  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  Ameri- can  system one would be able to say, "The State  cannot  do this,"  that the people enacted a written Constitution  con- 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 Constitution  is naught  but  empty  words if it cannot be  enforced  by  the courts.  It  is judicial review  that  makes  constitutional provisions more than mere maxims of political morality." (emphasis supplied) [See:   "Some   makers   of  American   Law";   Tagore   Law Lectures--pages 35 & 37] In India, however, the judicial institutions, by  tradition, have an avowed a-political commitment and the assurance of a

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non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of  "consultation" has to be understood and  expounded  con- sistent  with  and to promote  this  constitutional  spirit. These  implications are, indeed, vital.  The  constitutional values can not be whittled down by calling the  appointments of judges as an executive act. The appointment is rather the result  of collective, constitutional process. It is a  par- ticipatory constitutional function. It is, perhaps, inappro- priate to refer to any ‘power’ or ‘right’ to appoint judges. It  is essentially a discharge of a constitutional trust  of which certain constitutional functionaries are  collectively repositories.  The executive, on whose advice the  President acts, as a 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  consultations 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 sentence and, if allowed  foul  play, would  be subversive of the doctrine .of judicial  independ- ence. 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 458 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 constitu- tional  dignitary who 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  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  necessitate  any primacy to the executive wing on the ground of its political accountability  to the electorate. On the contrary  what  is necessary  is an interpretation sustaining the strength  and vitality of Judicial Review. It might under certain  circum- stances  be said that Government is not bound to  appoint  a judge  so recommended by the judicial wing. But  to  contem- plate a power for the executive to appoint a person  despite his  being disapproved or not recommended by the Chief  Jus- tice  of the State and the Chief Justice of India  would  be wholly  inappropriate  and  would  constitute  an  arbitrary exercise  of  power.  Then-again, whatever  there  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  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  pur- pose 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  say  is the exclusive prorogative  of  the  executive Government. The recommendations of the appropriate constitu- tional  functionaries from the judicial organ of  the  State has  an equally important rule. "Consultation"  should  have

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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 more than the Judges of the  Superior  Courts before  whom they practice? There are preponderant and  com- pelling  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 executive has  some material  in  its  possession which may  indicate  that  the appointment is otherwise undesirable. 459     The  view which the four learned Judges shared, in  Gup- ta’s  case, in our opinion, does not recognise  the  special and  pivotal position of the .institution of the Chief  Jus- tice of India.     The  correctness of the opinion of the majority in  S.P. Gupta’s  case relating to the status and importance of  con- sultation, the primacy of the position the Chief Justice  of India  and the view that the fixation 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 judici- ary  without the name being cleared by the Chief Justice  of India. This, indeed, would be 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  stand- ard  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 executive to  adopt  and apply the standard.     As  we have already pointed out, the bulk of the  vacan- cies 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 remaining vacan- cies and thereafter it will take steps to fill up the  addi- tional posts which have recently been created in the differ- ent High Courts. In view of what we have already stated  and the  assurance held out by the learned Attorney  General  we are  of the view that further monitoring for the time  being is not necessary.     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 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  papers of  W.P.  No. 1303 of 1987 to be placed before  the  learned Chief  Justice  for constituting a Bench of nine  Judges  to examine the two 460 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 through a Constitutional Amend- ment  is  in contemplation. In the event  of  the  Amendment

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being  carried and a National Judicial Commission 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  Amendment the Chief Justice of India would become the Chairman of  the Commission.  In case the Commission is not constituted,  the two questions indicated above which are of vital  importance to  the efficient functioning of the judicial system in  the country  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 maybe  taken up  for hearing at an early date and preferably  before  the end  of this year. We hope and trust that the Supreme  Court Advocate-on-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  litigation, 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 aspects dealt with  by  us  are intended to be final by our present order. There shall be no order for costs. R,  S. S                                     Petitions  dis- posed of. 461