Case: Supreme Court Advocates-On-Record Association &amp; Others Vs. Union of India

scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. 494. The norms developed in actual practice, which have crystallised into conventions in this behalf, as visualised in the speech of the President of the Constituent Assembly, are mentioned later. 495. TRANSFERS Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Art.222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of Indias opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 : (AIR 1977 SC 2328 ) and S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149 ). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Art.222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same. 496. The initiation of the proposal for the transfer of a Judge/ Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. However, in the case of Jammu and Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal. 497. The power of transfer can be exercised only in public interest i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Art.222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not. 498. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive. 499. There is nothing in Art.222 to require the consent of a Judge / Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Art.222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S. P. Gupta (AIR 1982 SC 149 ) has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision In S. P. Gupta there is no reason to treat any transfer as punitive; and, therefore, the observation in S. P. Gupta that a punitive transfer is impermissible has no application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable. 500. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge / Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases. 501. MEANING OF PRESIDENT The expression President in Art.124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Art.74(1); and the advice given by the Council of Ministers has to be in accordance with the concept of the primacy of the Chief Justice of India and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein. 502. NORMS The absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly. The

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]questions have to be considered in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the rule of law, essential for the preservation of the democratic system. The broad scheme of separation of powers adopted in the Constitution, together with the directive principle of separation of judiciary from executive even at the lowest strata, provide some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of those provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vitality and promote the growth essential for retaining the Constitution as a vibrant organism.449. It is, therefore, realistic that there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper governance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provisioned were enacted452. The need for judicial determination of this controversy has arisen only because the warning of Dr. Rajendra Prasad does not appear to have been duly heeded by the functionaries entrusted with the constitutional obligation of properly composing the higher judiciary, and ensuring its satisfactory consultation with the Chief Justice of India as functioning, for the administration of justice in the country. The adverse consequence of the head of the Indian Judiciary, for this failure is manifested in many ways453. It is well known that the appointment of superior, Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that time the personality is fully developed and the propensities and background of the appointee are well known. The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. This is not difficult to achieve454. The question of primacy of the role of the Chief Justice of India in the context of appointment of Judges in the Supreme Court and the High Courts must be considered in this backdrop for the proper picture of the constitutional scheme to emerge from the mixture of various hues, to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and, thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts with this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept455. It is with this perception that. the nature of primacy, if any, of the Chief Justice of India, in the present context, has to be examined in the constitutional scheme. The hue of the word consultation, when the consultation with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word consultation may take in the context of the executive associated in that process to assist in the selection of the best available material.true significance of this stand of the Government of India is, that in the actual working of this process, even the executive attaches primacy to the role of the Chief Justice of India in the matter of appointments to the superior judiciary, notwithstanding the decision in S. P. Gupta that the primacy is with the Government of India and not in the Chief Justice of India.463. The primacy of one constitutional functionary qua the others, who together participate in the performance of this function assumes significance only when they cannot reach an agreed conclusion. The debate is academic, when a decision is reached by agreement taking into account the opinion of every one participating together in the process, as primarily intended. The situation of a difference at the end, raising the question of primacy is best avoided by each constitutional functionary remembering that all of them are participants in a joint venture, the aim of which is to find out and select the most suitable candidate for appointment, after assessing the comparative merit of all those available. This exercise must be performed as a pious duty to discharge the constitutional obligation imposed collectively on the highest functionaries drawn from the executive and the judiciary, in view of the great significance of these appointments. The common purpose to be achieved points in the direction that emphasis has to be on the importance of the purpose and not on the comparative importance. Of the participants working together to achieve the purpose. Attention has to be focussed on the purpose to enable better appreciation of the significance of the role of each participant, with the consciousness that each of them has some inherent limitation, and it is only collectively that they constitute the selector464. The discharge of the assigned role by each functionary, viewed in the context of the obligation of each to achieve the common constitutional purpose in the joint venture will help to transcend the concept of primacy between them. However, if there be any disagreement even then between them which cannot be ironed out by joint effort, the question of primacy would arise to avoid stalemate.466. The aforementioned perception in all the constitutional functionaries associated in the integrated participatory consultative process to achieve the avowed common purpose should ordinarily prevent the situation when the question of primacy arises; and in the exceptional cases when it does arise, the functionary having primacy would do well to respect the viewpoint of others and recall that it implies the carrying by him of a greater burden. This will ensure better performance of the role with primacy, in the proper spirit, and will make it easier for the others to accept the primacy.appointment of Judges to the Supreme Court and the High Courts is made by the President and is, therefore, ultimately an executive act. Art.74(1) clearly provides, and the proviso inserted therein by the Constitution (Forty fourth Amendment) Act, 1978 reinforces, that the President, in exercise of his functions, shall act in accordance with the advice tendered by the Council of Ministers. If Arts.124(2) and 217(1) provided for appointments of judges by the President without obligatory consultation with the functionaries specified therein, then, by virtue of the full effect of Art.74, there would be no room for any controversy that the appointments were not to be made by the executive in its absolute discretion.470. Thus, even under the Government of India Act, 1935, appointments of Judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words, of the executive, with no specific provision for consultation with the Chief Justice in the appointment process. The consultation, if any, with the Chief Justice under the Government of India Acts was merely to enable the executive to take into account that view, if it so desired, but prior consultation with the Chief Justice was not an essential prerequisite471. When the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. This was done to achieve independence of the Judges of the superior judiciary even at the time of their appointment, instead of confining it only to the provision of security of tenure and other conditions of service after the appointment was made. It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure and other conditions of service after the appointment, but also by preventing the influence of political considerations in making the appointments, if left to the absolute discretion of the executive as the appointing authority. It is this reason which implied the incorporation of the obligation of consultation with the Chief Justice of India and the Chief Justice of the High Court in Art.124(2) and 217(1). The Constituent Assembly Debates disclose this purpose in prescribing for or such consultation, even though the appointment is ultimately executive act.472. This clear departure in the constitutional scheme from the earlier pattern in the Government of India Acts, wherein the appointments were in the absolute discretion of the Crown is a sure indication that irrespective of the question of primacy of the Chief Justice of India in the matter of appointments, the constitutional provisions cannot be construed to read therein the absolute discretion or primacy of the Government of India to make appointments of its choice, after completing formally the requirement of consultation, even if the opinion given by the consultees of the judiciary is to the contrary. In our opinion this departure made in the Constitution of India from the earlier scheme under the Government of India Acts is itself a strong circumstance to negative the view that in the constitutional scheme primacy is given to the opinion of the Government of India, notwithstanding the mandate of obligatory consultation with the Chief Justice of India in all cases, and also with the Chief Justice of the High Court in the case of appointment to a High Court473. The consideration must, therefore, be confined to the comparative weight to be attached to the opinion of the Chief Justice of India vis a vis the opinion of the other consultees and the Central Government.474. It follows that the view of Bhagwati, J. (as he then was) in S. P. Gupta (1982 (2) SCR 365 : AIR 1982 SC 149 ) which reflects the majority opinion therein, at least to the extent indicated hereafter, conflicts with this constitutional scheme, and, with respect, does not appear to be a correct construction of the provisions in Art.124(2) and 217(1). Certain portions from the opinion of Bhagwati, J. to this effect are as under :-............... It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Courts and of the Supreme Court as the Central Government may deem it necessary to consult are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government........ It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court,.......... Even if the opinion given by all the constitutional functionaries consulted by it is identical the Central Government is not bound to act in accordance with such opinion. ........475. It is obvious, that the provision - for consultation with the Chief Justice of India and, in the case of the High Courts, with the Chief Justice of the High Court was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior Judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a Judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated. It was for this reason that the word consultation instead of concurrence was used, but that was done merely to indicate that absolute discretion was not given to any one not even to the Chief Justice of India an individual much less to the executive which earlier had absolute. discretion under the Government of India Acts.476. The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India Who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reasons indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.479. The majority view in S. P. Gupta (AIR 1982 SC 149 ) to the effect that the executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which vanishes on a mere touch. Accountability of the executive to the people in the matter of appointments of Superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Art.121 and 211 of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual Judge can be raised, or has been raised at anytime. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court being responsible for the functioning of the Courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the Courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the Courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us, that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.480. If that is the position in actual practice of the constitutional provisions relating to the appointments of the superior Judges, wherein the executive itself holds out that it gives primacy to the opinion of the Chief Justice of India, and in the matter of accountability also it indicates the primary responsibility of the Chief Justice of India, it stands to reason that the actual practice being in conformity with the constitutional scheme, should also be accorded legal sanction by permissible constitutional interpretation. This reason given by the majority in S. P. Gupta (AIR 1982 SC 149 ) for its view, that the executive has primacy, does not withstand scrutiny, and is also not in accord with the existing practice and the perception even of the executive.481. However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion.482. In view of the provision in Art.74(1), the expression President in Art.124(2) and 217(1) means the President acting in accordance with the advice of the Council of Ministers with the Prime Minister at the head; and the advice given by the Council of Ministers has to accord with the mandate in the Constitution, or, in other words, with the construction made of Art.124(2) and 217(1) by this Court, in discharge of its constitutional duty to interpret the Constitution. A fortiori, advice given by the Council of Ministers which binds the President and requires him to act in accordance therewith, has to be the advice given in accordance with the constitutional provisions, as interpreted by this Court483. If it were to be held that, notwithstanding the requirement of Art.124(2) and 217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the High Court, the Council of Ministers has the unfettered discretion to give contrary advice, ignoring the views of the Chief Justice of India, and the President is bound by Art.74(1) to act in accordance with that advice, then constitutional purpose of introducing the mandatory requirement of consultation in Art.124(2) and 217(1) would be frustrated. It is for this reason, that in the matter of appointments of Judges of the superior judiciary, the interaction and harmonisation of Art.74(1) with Art.124(2) and 217(1) has to be borne in mind, to serve the constitutional purpose. In short, in the matter of appointments of Judges of the superior judiciary, the constitutional requirement is, that the President is to act in accordance with the advice of the Council of Ministers as provided in Art.74(1); and the advice of the Council of Ministers is to be given in accordance with Art.124(2) and 217(1), as construed by this Court. In this sphere, Art.74(1) is circumscribed by the requirement of Art.124(2) and 217(1), and all of them have to be read together484. The above view also accords with the provisions in the Constitution pertaining to the removal from office of Judges of the Supreme Court and the High Courts. The removal of a Supreme Court Judge in accordance with clauses (4) and (5) of Art.124, and of a High Court Judge similarly, as provided in Art.218, requires a different scheme to be followed, to which Art.74(1), in terms does not apply. It cannot be suggested that the President, while making an order removing a Judge of the Supreme Court or of a High Court, is to be governed entirely by the advice of the Council of Ministers in accordance with Art.74(1), ignoring the special provisions relating to the removal of a Judge, incorporated in the Constitution. Similarly, in the case of appointments, the special provision prescribing the process for appointment is of significance, and Art.74(1) has to be read along therewith, and not in isolation, to make the correct construction485. The question of primacy of the role of the Chief Justice of India has to be examined not merely with reference to the fact that an appointment is an executive act, or with reference only to the comparative constitutional status of the different consultees involved in the process, but with reference also to the constitutional purpose sought to be achieved by these provisions, and the manner in which that purpose can be best achieved486. Providing for the role of the judiciary as well as the executive in the integrated process of appointment merely indicates, that it is a participatory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consultees the decision is reached by consensus, and no question arises of giving primacy to any consultee. Primarily, it is this indication which is given by the constitutional provisions, and the constitutional purpose would be best served if the decision is made by consensus without the need of giving primacy to any one of the consultees on account of any difference remaining between them. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would arise only if the resultant of the consultative process is not one opinion reached by consensus487. The constitutional purpose to be served by these provisions is to select the best from amongst those available for appointment as Judges of the superior judiciary, after consultation with those functionaries who are best suited to make the selection. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless Judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the Courts. It is, therefore, obvious that the maximum opportunity for adjudging their ability and traits is in the Courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as Judges. This is obviously the reason for introducing the requirement of consultation with the Chief Justice of India in the matter of appointment of all Judges, and with the Chief Justice of the High Court in the case of appointment of a Judge in a High Court. Even the personal traits of the members of the Bar and the Judges are quite often fully known to the Chief Justice of India and the Chief Justice of the High Court who get such information from various sources. There may, however, be some personal trait of an individual lawyer or Judge, which may be better known to the executive and may be unknown to the Chief Justice of India and the Chief Justice of the High Court, and which may be relevant for assessing his potentiality to become a good Judge. It is for this reason, that the executive is also one of the consultees in the process of appointment. The object of selecting the best men to constitute the superior judiciary is achieved by requiring consultation with not only the judiciary but also the executive to ensure that every relevant particular about the candidate is known and duly weighed as a result of effective consultation between all the consultees before the appointment is made. It is the role assigned to the judiciary and the executive in the process of appointment of Judges which is the true index for deciding the question of primacy between them, in case of any difference in their opinion. The answer which best subserves this constitutional purpose would be the correct answer488. It has been indicated that the judiciary being best suited and having the best opportunity to assess the true worth of the candidates, the constitutional purpose of selecting the best available men for appointment as superior Judges is best served by ascribing to the judiciary, as a consultee, a more significant role in the process of appointment. The only question is of the extent of such significance and the true meaning of the primacy of the role of the Chief Justice of India in this context.489. It is of considerable significance that Bhagwati, J. (as he then was), after subscribing to the majority view in S. P. Gupta (AIR 1982 SC 149 ), speaking for the unanimous view of the Constitution Bench, in Ashok Kumar Yadav v. State of Haryana, (1985 (4) SCC 417 (AIR 1987 SC 454) , stated thus:-We would also like to point out that in some of the States, and the State of Haryana is one of them, the practice followed is to invite a retired Judge of the High Court as an expert when selections for recruitment to the Judicial Service of the State are being made and the advice given by such retired High Court Judge who participates in the viva voce test as an expert is sometimes ignored by the Chairman and members of the Public Service Commission. This practice is in our opinion undesirable and does not commend itself to us. When selections for the Judicial Service of the State are being made, it is necessary to exercise the utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected, because if we do not have good, competent and honest Judges, the democratic polity of the State itself will be in serious peril. It is therefore essential that when selections to the Judicial Service are being made, a sitting Judge of the High Court to be nominated by, the Chief Justice of the State should be invited to participate in the interview as an expert and since such sitting Judge comes as an expert who, by reason of the fact that he is a sitting High Court Judge, knows the quality and character of the candidates appearing for the interview, the advice given by him should ordinarily be accepted, unless there are strong and cogent reasons for not accepting such advice and such strong and cogent reasons must be recorded in writing by the Chairman and members of the Public Service Commission. We are giving this direction to the Public Service Commission in every State because we are anxious that the final talent should be recruited in the Judicial Service and that can be secured only by having a real expert whose advice constitutes a determinative factor in the selection process.(Emphasis supplied)s 456 - 57) (of SCC)490. We respectfully agree with the above observation made in the context of the subordinate judiciary, and would add that it is even more true in the context of appointments made to the superior judiciary. The majority opinion of Bhagwati, J. in S. P. Gupta (AIR 1982 SC 149 ) must be read along with the above unanimous opinion of the Constitution Bench in Ashok Kumar Yadav (AIR 1987 SC 454 ).491. It has to be borne in mind that the principle of non arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary symbolised by the view of the Chief Justice of India which is given greater significance or primary the matter of appointments. In other words the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the views of some other Judges who are traditionally associated with this function.492. In view of the primacy of judiciary in this process, the question next is of the modality for achieving this purpose.The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary symbolised by the view of the Chief Justice of India, is to be obtained by consultation with the Chief Justice of India; and it is this opinion which has primacy.492. In view of the primacy of judiciary in this process493. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior Judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutions scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote public interest. This guideline is inherent in every such provision, and so also in Art.222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement or consultation with any other functionary is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of Indias opinion in this matter. The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth, (1978) 1 SCR 423 : (AIR 1977 SC 2328 ) and S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149 ). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Art.222. This power has been so exercised since then, and transfer of Chief Justices has been the ordinary rule. It is unnecessary to repeat the same.496. The initiation of the proposal for the transfer of a Judge/ Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed. However, in the case of Jammu and Kashmir, the special provision relating to that State must be kept in view, while initiating the proposal497. The power of transfer can be exercised only in public interest i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Art.222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court. There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of his tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not498. The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute an All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive499. There is nothing in Art.222 to require the consent of a Judge / Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Art.222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S. P. Gupta (AIR 1982 SC 149 ) has no basis in the Constitution. It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision In S. P. Gupta there is no reason to treat any transfer as punitive; and, therefore, the observation in S. P. Gupta that a punitive transfer is impermissible has no application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable.500. Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge / Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the Indian Judiciary. Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases.expression President in Art.124(2), 217(1) and 222 means the President acting on the aid and advice of the Council of Ministers in accordance with Art.74(1); and the advice given by the Council of Ministers has to be in accordance with the concept of the primacy of the Chief Justice of India and the other norms indicated herein, to accord with the mandate in the Constitution. A fortiori the advice given by the Council of Ministers according to the Constitution binds the President and, therefore, the advice must accord with the principles indicated herein.absence of specific guidelines in the enacted provisions appears to be deliberate, since the power is vested in high constitutional functionaries and it was expected of them to develop requisite norms by convention in actual working as envisaged in the concluding speech of the President of the Constituent Assembly.primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconciously, of any individual. T he judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness504. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer of their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary505. This is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision. The growing tendency of needless intrusion by strangers and busy bodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S. P. Gupta (AIR 1982 SC 149 ) while expanding the concept of locus standi, was adverted to recently by a Constitution Bench in Raj Kanwar, Advocates v. Union of India, (1992) 4 SCC 605. It is, therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.Art.216 deals with constitution of High Courts. It provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. To enable proper exercise of this function of appointment of other Judges, it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filling. This is essential to ensure speedy disposal of cases, to secure that the operation of the legal system promotes justice a directive principle fundamental in the governance of the country which, it is the duty of the State to observe in all its actions; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the laws delay must be justiciable, to compel performance of that duty507. Accordingly, it must be held that, fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing strength is inadequate to provide speedy justice to the people - speedy trial being a requirement of Art.21 in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation of providing speedy justice and to thereby secure that the operation of the legal system promotes justicea solemn resolve declared also in the preamble of the Constitution. In making the review of the Judge strength in High Court, the President must attach great weight to the opinion of the Chief Justice o the High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with! due despatch508. The decision in S. P. Gupta (AIR 1982 SC 149 ), taking the view that this matter is not justiciable to any extent does not commend itself to us as a correct exposition of the constitutional obligation in Art.216 of the Constitution, and the constitutional purpose of its enactment. This provision, like all constitutional provisions, is not to be construed in isolation, but as a part of the entire constitutional scheme, conforming to the constitutional purpose and its ethos. So construed, this matter is justiciable to the extent and in the manner indicated. Of course, the area of justiciability does not extend further, to enable the Court to make the review and fix the actual Judge strength itself, instead of requiring the performance of that exercise in accordance with the recommendation of the Chief Justice of India.Chief Justice of India or the Chief Justice of a High Court, as the case may be, is known to be primus inter partes i.e. first among equals while functioning judicially, but in matters other than judicial enjoys a unique position of status, rank and precedence by virtue of his office. This distinction is first borne in mind and then constitutionally kept alive, whenever he is referred to singularly in the Constitution in contrast to the word court, wherever occurring. It is on that basis that his role has an indivisibility of its own having a primal element.clearly no principle of consideration which would justify reading into the plain and simple words of Art.124(2) any additional words to suggest that the Chief justice of India as described therein is only in a symbolic sense, representing the judiciary. It cannot be said that the Chief Justice heads a monastic order, entry of which is regulated by the Order as a class, and its head merely a spokesman. No one can denude him of the role to which he is constitutionally entitled. Equally it is difficult for me to agree to a construction of the provision that the proposal initiated by him, or related to a High Court appointment, which passes through him, when approved by the executive goes as affirmance of his primacy. I would rather go by the scriptural thought that when one says and the other agrees, both be known as wise.