tion 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
MS Ganeshan Ms M Karanjawala NP HS Anand PH Parekh and Ms Sunita Sharma for the Petitioners
Ashok Desai Solicitor General Ms A Subhashini PS Poti KR Nambiar For Kerala Probir Chowdhury For Assam AK Panda For Orissa Ms GS Misra HK Puri TVSN Chari For Bihar SK Agnihotri For Madhya Pradesh Ms Kamini Jaiswal For Chandigarh Ms section Dik shit For UP V Krishnamurthy For Tamil Nadu B Parthasarthi For Andhra Pradesh Ms Urmila Kapoor  Ms section Janani For Manipur Aruneshwar Gupta MN Shroff For Gujarat
Mahabir Singh For Haryana AS 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 SP Gupta vs 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 SP 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 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 1241 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 462368 had been filled up and the vacancies were 94 in all
By 1681980 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 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 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 vs Fisher  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
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 CG 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 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 11 1990 being 34330 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 SP 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 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 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 SP 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 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 SP 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 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 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 1 242 and 2171 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  541542 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 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 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 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 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 2 171 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 The position of the Chief Justice of India under Article 2 171 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 2171 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 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 keystone of the American constitutional arch for in it the US 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 vs 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 vs 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 US 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 vs 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 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 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 SP 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 SP 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 SP Gupta s case should be considered by a larger Bench we direct the papers of WP 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 being carried and a National Judicial Commission being set up the correctness of the ratio in SP 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 section S Petitions dis posed of


Summary:
Pursuant to a newspaper advertisement by the State Government calling for applications for Grade I and Grade II teacher posts Post Graduate Teacher and Trained Graduate Teachers the respondent in the appeal applied for the same
The qualification prescribed in the advertisement was a second class degree in MA
However the respondent who held a third class degree in MA was selected and an order was issued appointing her as a Post Graduate Teacher in Hindi subject to the production of original certificates and compliance with the other necessary formalities
When the respondent approached the authorities with her certificates it was noticed that she was not qualified for the post and was therefore not allowed to join service
The respondent approached the State Administrative Tribunal for relief which held that the appellants had issued the order of appointment knowing fully well that she was not qualified and that she was selected for appointment because there was no other candidate available with better marks and passed an Order directing the appellants to allow the respondent to join duty and pay her salary from the date she reported for duty
The appellants appealed to this Court
Allowing the appeal HELD 1
When an advertisement mentions a particular quali fi 560 cation and an appointment is made in disregard of the same it is not a matter only between the appointing authority and the appointee concerned
The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the adver tisement
562F 2
It amount to a fraud on the public to appoint persons with inferior qualifications unless it is clearly stated in the advertisement that the qualifications are relaxable
562G 3
No Court should be a party to the perpetuation of the fraudulent practice
The State Administrative Tribunal lost sight of this fact in the instant case
562G 4
It is common knowledge that sometimes either by mistake or otherwise the notes put up before the Selection Committee contain erroneous data prepared by the office and sometimes the Selection Committee proceeds on the basis that all those who appear before it are otherwise qualified
However the second stage at which the documents are scruti nised is when the higher authorities go through them at the time the candidate concerned approaches them for resuming duties alongwith the original certificates
It is at that stage that the mistake in the instant case was discovered and the respondent was not permitted to resume her duties
There is nothing wrong in such action
562B C The Court felt it would be unjust to deprive the re spondent of the post at this stage as she had subsequently acquired another degree in MA with second class and there by qualified herself to be appointed that she may be over aged for the post and many who were underqualified were appointed to the post earlier and directed that she be appointed in the post from the beginning of the academic year 1990 1991 563B C