Nariman Submission 4

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REPLY ON MERITS of Supreme Court on Record
Association to the Submissions MADE BY and ON
BEHALF OF the UNION OF INDIA
and by Supporting States
NOTE-I
KEY QUESTION WHO HAS THE LAST WORD?
In this case on the merits THE CORE QUESTION

IS WHETHER UNDER THE CONSTITUTION OF INDIA
1950, AND DURING ITS WORKING AFTER 26 TH
JANUARY, 1950 THE CENTRAL GOVERNMENT
COULD APPOINT ANY QUALIFIED PERSON OF ITS
CHOICE AS JUDGE OF THE SUPREME COURT/HIGH
COURT CONTRARY TO AND IN DISREGARD OF THE
ADVICE GIVEN BY THE CHIEF JUSTICE OF INDIA
NOTE:-
This is because, on the merits the

principal point is as to whether an
essential feature of the Constitution i.e. the independence of the judiciary has been damaged or altered by the
new scheme 1 set up under the
Constitution
99th
Amendment
Act
(alongwith the NJAC Act); in other words
whether or not the substituted new
scheme for appointment of Judges in
the Higher Judiciary has substantially
changed
by
altering
essential
safeguards,
characteristics
and
standards that had previously prevailed
under the un-amended Article 124(2)
and Article 217.
1 So-called in the affidavit dated May, 2015 filed on

behalf of the Union of India in the SCORA Writ Petition.
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I.The FUNDAMENTAL and SALIENT point raised by the
learned Attorney General is:
whether at the time of framing of the
Constitution, and the working of its provisions
thereafter, there was manifest in its
provisions and its working the primacy of the
judiciary.2
It is submitted that there was:
- Amongst all the Articles in the Constitution which deal

with appointments made by the President (with the
aid and advice of his council of Ministers 3) the only two
Articles which provide for appointments being made in
consultation with other constitutional authorities are
Article 124(2) and Article 217(1): having regard to the
anxiety expressed in speeches consistently delivered by
various Members in the Constituent Assembly over time
(1947 to 1949) (see Note attached as Exhibit-I)
2
AGs Note-II (E)(III) reads as follows:III. In any event the

primacy of judiciary cannot be the basic feature of the
Constitution because Judicial Independence without the
primacy of judiciary in appointments was the express intention
in the drafters of Constitution of the earlier working of Higher
Judiciary (at page 55-56 of Note-II.
3 Article 76(1), Article 80(3) (Nomination by the

President), Article 95, Article 148(1), Article 155,
Article 239, Article 316(1), Article 324(3), Article
331 (nomination by the President), Article
338(3), Article 338A(3), Article 340 and Article
350B.
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this could only have been because of the abiding
concern of the framers of the Constitution to uphold
and maintain the Independence of the Judiciary.
In two paragraphs at page-258 of the Debates in the

Constituent Assembly (Vol.8 CAD).
Dr. Ambedkar had
deliberately used the word dangerous at two places

(in the second last paragraph at page 258) as well in
the last paragraph (also at page 258) viz.
First, that it would dangerous to leave the

appointments to be made by the President
without any kind of reservation or limitation that is
to say merely on the advice the President receives
from the Executive of the day (his Council of
Ministers).
AND
That it would be equally dangerous to allow the
Chief Justice of India almost a veto upon the
appointment of Judges [which is really to transfer
the authority to the Chief Justice which we are not
prepared to vest in the President or the
Government of the day i.e. his Council of
Ministers].
This means that (according to Dr. Ambedkar)
it was dangerous to leave the appointments to

be made by the President as solely with the with
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the President acting with the aid of his Council of
Ministers (that is merely on the advice of the
Executive of the day) and it was equally
dangerous to require that appointments made by
the President should be concurred in by the Chief
Justice of India.
So what precisely did Dr. Ambedkar have in

mind?
At this point of time, it is difficult to say precisely what

Dr.Ambedkar intended to convey in his closing remarks
before draft Article 103 was adopted by the Constituent
Assembly.
However, for many years H.M. Seervai in his book

Constitutional Law of India, 4th Edition, 1996, Vol.-3
had opined: (after carefully considering what Dr.
Ambedkar had in mind) and concluded
(i) that the principle recognized in the
Constitution of India 1950 and in its working
thereafter was that giving primacy to the
opinion of the Chief Justice of India, (the
highest
judicial
authority
under
the
Constitution) was necessary because it was
essentially a fetter on what otherwise would
have been an absolute power of the
Executive a power which the Drafting
Committee and the Constituent Assembly
wanted to avoid conferring on the Executive.
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(ii) that all the elaborate provisions securing
the independence of the judiciary would be
of no avail, if a power were given to the
executive Govts. to appoint a Judge of their
choice, disregarding the advice of both the
Chief Justices (i.e. CJI and CJ of the
concerned High Court) consultation with
whom was made obligatory because they are
qualified to give advice as to legal ability,
knowledge
of
the
law,
the
judicial
potential and the ability of the person to be
appointed to work harmoniously with the
members of the Bench and the Bar, and that
the executive governments were not so
qualified.
The
same
passages
had been
publishe
d even in
the Third
Edition
Vol.-II
(1984)
The relevant passages in Seervai, 4th Edition Vol.-III

(1996) are in paragraphs 25.350, 25.351, 25.352,
25.353, 35.354, 25.355, 25.356, 25.362, 25.363 and
25.364: these passages for ready reference are quoted
below: (Emphasis is given to portions shown in BOLD)
SECTION XI
And Thou, too, Brutus!
Section XI
And Thou, too, Brutus!
25.350. In this section we must deal with the
wound inflicted on judicial independence by
the (First) majority in the Judges Case by
putting judicial independence at the mercy
of the executive. The result is all the more
surprising because some of the Judges who
constituted the majority rightly look upon judicial
independence as a basic and fundamental feature
of our Constitution; and their judgments show
great anxiety to uphold judicial independence. As
I have said earlier, although the Law Ministers
Circular Letter of 18 March 1981 sparked off the
controversy which culminated in the Judges Case,
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the short term extensions of Addl. Judges and the
dropping of two Addl. Judges gave rise to
Introductor
questions which went to the root of judicial
y
independence. The most important question so
raised turned on the interpretation of Article
217(1) as to the initial appointment of High Court
Judges. And it arose in this way. It will be recalled
that Kumar J. (of the Delhi High Court) was
dropped because the Union of India preferred the
advice of Prakash Narain C.J. to the advice of the
Chief Justice of India. For Judges like Gupta and
Tulzapurkar JJ. who held that the test of suitability
for the appointment of Judges provided in Article
217 did not apply to the reappointment of an Addl.
Judge,
(the
question
of
the
correct
interpretation of Article 217 (in the First
Judges case) in relation to an initial
appointment of Judges did not arise.
However, since that question had been
argued and fully discussed, Gupta and
Tulzapurkar JJ. dealt with that question. It
appears to me that the most satisfactory
way is to discuss the problems raised, and
their
solution,
independently
of
the
judgments in the first instance, and discuss
the judgments thereafter.
This course is
followed because the reader can have a
connected and coherent view of the
problems and their solution as a whole,
instead of having to piece it together from
observations made in various judgments.
25.351. A number of questions arose when draft
Article 193 (present Article. 217) was passed in
the Constituent Assembly.
According to Dr.
Ambedkar, there were two alternative modes of
appointing Judges which were before the Drafting
Committee. The first was the appointment of
Judges in the United Kingdom where the executive
had an absolute power to appoint all the Judges of
the High Court of Justice, and Lords of Appeal in
Ordinary in the House of Lords. In the United
States, the President had power to appoint Federal
Judges with the advice and consent of the Senate.
This method curtailed the absolute power of the
President as the Chief Executive to appoint Judges,
by giving the Senate a veto.
Between the
absolute power of the executive in the United
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Kingdom, and the Presidents power in the United
The Constituent
States, hedged in by the veto of a legislative body,
Assembly and
the Drafting Committee steered a middle course.
the
appointment of
The United States example was not followed also
Judges. The
because it would have involved the appointment
assembly steers
a middle course
of Judges being influenced by political pressure
between the
and political considerations. Dr. Ambedkar said:
U.K. and the
U.S. models.
Dr.
Ambedkars
explanation:
neither the
President nor
the Chief
Justice has
absolute
authority in
the
appointment
The draft Article, therefore, steers a

middle course. It does not make the
President the supreme and the absolute
authority in the matter of making
appointments. It does not also import
the influence of the Legislature. The
provision in the article is that there
should be consultation of persons who
are ex hypothesi, well qualified to give
proper advice in matters of this sort,
and my judgment is that this sort of
provisions may be regarded as sufficient
for the moment.
With regard to the question of the

concurrence of the Chief Justice, it seems to
me that those who advocate that proposition
seem to rely implicitly both on the
impartiality of the Chief Justice and the
soundness of his judgment. I personally feel
no doubt that the Chief Justice is a very
eminent person.
But after all, the Chief
Justice is a man with all the failings, all the
sentiments and all the prejudices which we
as common people have; and I think to allow
the Chief Justice practically a veto upon the
appointment of judges is really to transfer
the authority to the Chief Justice which we
are not prepared to vest in the President or
the Government of the day.
I therefore,
think that that is also a dangerous
proposition.4 (Italics supplied)
Amendmen
t of
Mr.Poker
Sahib
rejected
25.352. Since the legislative history of Article 217

mentioned above became relevant, it may be
observed that an Amendment was moved in the
following terms by Mr. Pocker Sahib to draft Article
193(1):
4 C.A.D. Vol. 8 at p. 258.
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That for Clause (1) of Article 193, the
following be substituted:- (1) Every Judge of a
High Court shall be appointed by the
President by a warrant under his hand and
seal on the recommendation of the Chief
Justice of the High Court concerned after
consultation with the Governor of the State
concerned and with the concurrence of the
Chief Justice of India and shall hold office
until he attains the age of sixty-three years. 5
This amendment was rejected without any debate.
Neither the
President nor
the Chief
Justice of
India has
absolute
power to
appoint a
Judge.
25.353. The legislative history, in so far as it dealt

with alternative modes of appointment of Judges,
shows that the absolute power of the Executive to
appoint Judges in the United Kingdom was
rejected, as also the limited power of the president
of the United States hedged in by the veto of a
political body the Senate. The framers of our
Constitution decided not to give unfettered power
to the President to make an appointment of
Judges, nor did they give the Chief Justice of India
absolute power to veto any appointment by
requiring his concurrence to the appointment. Dr.
Ambedkars statement, and the speeches which
followed it, do not make a clear distinction
between the functions of the Chief Justice of India
and the Chief Justice of a High Court. At one place
in his speech Dr. Ambedkar refers to more Chief
Justices than one. But from a reading of the
passage quoted above as a whole, and Mr. Pocker
Sahibs amendment, it appears that by the word
Chief Justice was meant the Chief Justice of India
when Dr. Ambedkar said that the Drafting
Committee were not prepared to give an absolute
power to the Chief Justice to appoint a Judge,
which absolute power had been denied to the
President.
25.354. It is obvious that the complicated
problems which arose before the Sup. Ct. In
the Judge Case were neither realised nor
discussed in the Constituent Assembly. There
was no discussion as to what would happen if the
5 C.A.D. Vo,. 8 at p. 258.
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recommendation made by the Chief Justice of a
High Court differed from the advice given by the
Chief Justice of India. But the sentence to allow
the Chief Justice practically a veto upon the
appointment of Judges is really to transfer the
Constituent
authority to the Chief Justice which we are not
Assembly Debates:
no discussion as to
prepared to vest in the President or the
possible conflict
Government of the day would suggest that the
between the two
Chief Justices.
advice of the Chief Justice of India would prevail
over the advice of the Chief Justice of the High
Court.
This position taken by Dr. Ambedkar
probably led to the rejection of the amendment
moved by Mr. Pocker Sahib because under that
amendment (which was proposed but never
adopted) the recommendation was to be made by
the Chief Justice of the High Court concerned; but
the appointment was to be made with the
concurrence of the Chief Justice of India which
Dr. Ambedkars
meant that the Chief Justice of India had the final
speech
say in the appointment of a High Court Judge.
suggests that
the Chief Justice
of Indias advice
must be
preferred
25.355. A number of questions arose in

connection with Article 217(1) some of which have
been dealt with earlier6.
However, before
considering those questions it is necessary to
caution the reader against being misled by the
words President and Governor who are
described as the highest dignitaries in the Union of
India and the States respectively. At times it is
said that the power being conferred on the highest
dignitaries in the Union and the States would be
exercised fairly and any provision conferring such
power must be so construed.
However, it is
necessary to distinguish between form and reality.
In reality the powers of the President are exercised
by the Government of India, and the power of the
Governors are exercised by the Government of the
States. Neither the President nor the Governors
can sue or be sued for any act done or purporting
to be done by them in the exercise and
performance of the powers and duties of their
respective offices. Therefore the public does
not look upon the President and the
Governors as the biggest litigants in the
Union and the States respectively. However,
6 As for example, the convention of appointing the

seniormost Judge as the Chief Justice of a High Court.
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there can be no doubt that the Government
The Presidents
of India is the biggest single litigant in India;
powers and the
Governors
and the Government of the States are the
powers are, in
biggest single litigants in the States. This is
reality, the
powers of the
important, for the power is conferred not on
Government of
high dignitaries but on the Union and the
India and the
State
State Executive which, as litigants, are
Governments
directly interested in appointing High Court
respectively
Judges. The caution I have given against
being misled by the showy parts of the
Constitution must be borne in mind, because
any interpretation of Article. 217 which puts
judicial independence at the mercy of an
Executive, which is the largest single litigant
must be rejected if any other reasonable
interpretation can be put on Article 217.
The
Government
of India and
the State
Govts. are
the biggest
single
litigants in
India and the
States
respectively
25.356I have said that the question of the

procedure to be followed for initial appointment of
a High Court Judge arose in Justice Kumars case
(of the Delhi High Court). This was because the
majority in the Judges case (1981) held that
although an Additional Judge had the right to be
considered for further appointment in preference
to other persons eligible for initial appointment as
a Judge, the test of suitability prescribed by Art.
217 must be gone through over again (with certain
limitations, not at present material). However, the
majority of Judges in considering the position of
the Chief Justice of India, of the State Govt., the
Chief Justice of the High Court and the Govt. of
India vis--vis one another, overlooked the fact to
which they had drawn attention in other parts of
their judgments, namely that no one has a right to
initial appointment as a Judge. Kumar J., having a
preferential right to be considered for further
appointment could raise the question whether the
safeguards provided against the abuse of power
had been violated, namely, that there had not
been full consultation between the Chief Justice of
India, the Chief Justice of Delhi and the Govt. of
India and that the order dropping him was passed
mala fide or for a collateral purpose. Again for
example, if Vohra J. (another additional Judge of
Delhi High Court) had challenged the order
dropping him, the fact that he was dropped
because of his judgment in the Kissa Kursi Ka Case
would have resulted in the order being struck
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down on the ground, inter alia, that an irrelevant
consideration had been taken into account.
However, the question of these two safeguards
being violated cannot arise in the case of a person
who has agreed to his name being submitted for
initial appointment, because he has no right to
initial appointment as a High Court Judge. (Pg.
2836-2837)
.....................................................................
25.362 What then was intended to be the
function of the State Govt. and the Govt. of
India in the process for appointing a Judge?
We have seen that it was intended to
eliminate legislative, political and executive
pressure in the selection of Judges. As to the
legal and other equipment of a member of the Bar
or a member of the judicial service, which qualifies
him to be a High Court Judge, the Chief Justice of
the High Court is a competent judge, and the State
and the Union Govts. are not competent judges.
Up to a point, as we have seen, the character of a
member of the Bar is known to the Chief Justice, or
the other Judges of a High Court, from the
appearances which he makes before them.
However, the character of a member of the Bar
outside the High Court may not be known to the
Chief Justice and the other Judges, and may be
known to the State Govt.
For example, an
Advocate may be dissolute in his private life; he
may be a gambler on a large scale associated with
persons of disreputable character in the gambling
world; he may appear drunk in public places.
There can be no doubt that a Judges personal life
must be above reproach, and factors like those we
have mentioned earlier, and other like factors,
may become known to the Govt. of the State
which may not be known to the Chief Justice or
other Judges of the High Court. This is one of the
reasons why the State Govt. has to be consulted,
because its investigating department may have in
its possession, or can obtain, materials relevant to
the appointment of a Judge. Further, the Govt. has
also to consider the expenses of maintaining the
High Court; and this liability is relevant, though not
decisive, as to the number of Judges to be
appointed. The position of the Govt. of India is
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similar to that of the State Govt. because both
The part
which the
Govts. have investigating agencies which are able
State
to collect information relevant to the appointment
Governments
and the
of a Judge which may not be within the knowledge
Government
of the Chief Justice of the High Court or the Chief
of India have
to play in the
Justice of India.
Reports about the political
appointment
affiliations, namely, membership of a recognized
of High Court
Judges
political party to which the person belongs, will in
almost all cases, be irrelevant.
For, it is an
established convention that on appointment as a
Judge, he must sever his connections with the
political party of which he is a member. This is not
to say that in rare cases a person belonging to a
political party pledged to subvert the lawful Govt.
of our country by force may not be disqualified on
that ground. (Pg.2842)
25.363. We have seen that Article. 217(1) laid

down no procedure for appointment a Judge, and it
is submitted that it is unfortunate that the
Supreme Court did not lay down a procedure
which would be consistent with the two objects
which Article 217(1) was designed to secure,
namely, to eliminate political, executive and
legislative
pressure
and
to
secure
the
independence of the judiciary. It is submitted
that the correct procedure to be followed is
this: The proposal for the appointment of a
member of the Bar or of the judicial service
as a Judge should come from the Chief
Justice of the High Court. He is aware of the
needs of the High Court and in respect of a
member of the Bar, about the way in which
he is likely to shape as a Judge and work
with the Bar and the other Judges of the
Court. That recommendation should go, to
the
State
Government.
The
State
Government can place the materials before
the Chief Justice in respect of the
information in its possession which goes to
show that apart from his legal competence
and eminence, there are matters relating to
his personal character or conduct which are
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inconsistent with his being appointed a
Judge.
The State Government cannot
suggest an alternative name for two
reasons. First, because it is not qualified to
be the Judge of a persons qualification as a
lawyer or as a Judge which fit him for
appointment as a High Court Judge.
Secondly, because to allow the State
Governments to suggest the name of a judge
is to defeat the intention of the framers of
our Constitution, that political, executive
and legislative pressure should not enter
into the appointment of a Judge. When the
State
Governments
objections
are
communicated to the Chief Justice, he would,
no doubt, give serious attention to them. If
his recommendation were made in ignorance
of facts which, had he known them, would
have prevented him from making the
recommendation, it is reasonable to suppose
that he will change his recommendation.
But if the objections pointed out do not
appear to the Chief Justice of the High Court
to
be
sufficient,
the
Chief
Justices
recommendation, the objections raised by
the State Government and the Chief Justices
comments on those objections should be
forwarded to the Government of India, who
will then place them before the Chief Justice
of India for his advice.
The procedure
suggested above has two characteristic features.
First, that the State executive does not propose a
name for appointment as a Judge for the two
reasons mentioned above. The second feature is
that in the first instance the suggestion does not
come from the Chief Justice of India, because he is
the highest judicial authority to be consulted on
the recommendation made by the Chief Justice of
the High Court and the comments of the State
Government. In the first instance ordinarily, the
Chief Justice of a High Court is better qualified to
recommend a member of the Bar or a District
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Judge because he has a more direct contact with
Submission:
it is
them. For the Chief Justice of India ordinarily to
unfortunate
that the
recommend a name is to embarrass the Chief
Supreme
Justice in the choice of a suitable judge who will
Court did not
lay down a
work harmoniously in the High Court. It might also
procedure for
appointing a
undermine his position and authority among his
High Court
Judges. A
colleagues, among service Judges and among
suggested
members of the Bar. The role of the Chief Justice
procedure
which fulfils
of India is to scrutinise from his position as the
the two
objectives of
head of the Indian Judiciary the recommendation
the framers
of our
of the Chief Justice of a High Court to see that
Constitution.
local, sectarian and other irrelevant considerations
have not influenced the choice of the person
recommended as may happen sometimes. It is
submitted that it is to the credit of the
Attorney General, (Mr. L.N. Sinha) that he
told the Bench in the Judges Case that
speaking as the Attorney General of India,
and not as Counsel for the Union of India,
the scheme of the Constitution read against
the background of the need to maintain
judicial independence, was that the Chief
Justice of the High Court should start the
process of recommending a person for
appointment as a Judge.
The State
Government was free to offer its comments
but was not free to suggest an alternative
name. Again, the scheme of our Constitution did
not contemplate that in the first instance the Chief
Justice of India should suggest the name of a
person for appointment as a High Court Judge.
(Pg.2842 to 2843)
25.364. It was suggested by D.A. Desai J. (on the

Bench in the Judges case 1981) that the Chief
Justice of a High Court cannot frustrate the
appointment of a Judge by making no proposal
himself; and the conclusion which he drew was
that it should be open to any of the four
designated authorities to suggest the name of a
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person for appointment as a High Court Judge 7.
First, it must be assumed that the Chief Justice of a
High Court, unless he is satisfied that the vacancy
does not require to be filled, will discharge his
duty. Consequently, the exceptional kind of case
contemplated by D.A. Desai J. ought not to prevent
a sound general procedure from being laid down.
After all, except for the vacancies created by
death, resignation or removal of a Judge, the date
when a vacancy occurs is known on the very day
on which a Judge is appointed. And if the Chief
Justice of the State does not recommend a name
for appointment as a Judge reasonably before the
date of the vacancy; there is nothing to prevent
the State Government., the Government of India or
the Chief Justice of India to remind the Chief
Justice of India of the High Court that it is his duty
to recommend the name of the person to be
appointed in the vacancy. In the unlikely event of
the Chief Justice showing a determination to
disrupt the appointment of a Judge, then, in that
case, the Chief Justice having failed to avail
himself
of
the
opportunity
to
make
a
recommendation, the Chief Justice of India can
propose a name, invite the comments of the Chief
Justice of the High Court, and after considering
those comments, give his advice. It is submitted
that to allow any one of the four authorities
to suggest the name of a person for
appointment runs counter to all the
provisions of the Constitution designed to
secure the independence of the judiciary. It
also runs counter to the intention of the
framers of our Constitution in adopting a
scheme which steered clear between the
absolute power of the executive to appoint a
Judge and the power of veto to the
appointment of a Judge conferred on a
legislative body, namely, the Senate of the
United States. The principle of Sankalchands
case is directly applicable even though the
authorities to be consulted are four in number and
not two. Although there is nothing in Art.222(1) to
suggest that the rejection of the Chief Justices
advice against the transfer of a High Court Judge
7 1981 (Supp.) SCC 87 at para 772 page 639 = (1982)
2 S.C.R. 365 at p.1071
The
objections
to any one
of the four
authorities
suggesting
Thethe
principle
name
underlying
the
of a person
giving
for of
primacy
appointmen
which
t ofdoes
a High
notCourt
amount
to
Judge
Submission: the
giving
a veto,
stated.
exceptional
to the Chief
situation
Justice India
contemplated
stated.
by Desai J.
ought not to
prevent laying
down a proper
procedure to be
generally
followed.
16
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would raise a rebuttable presumption that the
order was passed male fide, nevertheless the Sup.
Ct. held that the powers conferred on the Govt. of
India
were
not
unfettered
or
arbitrary.
Consequently those powers must be fettered
by giving a primacy to the advice of the
Chief Justice of India over the views of the
Govt. of India, by raising a rebuttable
presumption that a transfer contrary to that
advice will be treated as mala fide, or made
from ulterior motives.
(Seervais Conclusion):
The principle therefore is that giving primacy
to the opinion of the Chief Justice of India,
who is the highest judicial authority in India,
over the Govt. of India is an essential fetter
on what otherwise would be an absolute
power, which the Drafting Committee and
the Constituent Assembly did not want to
confer on the Govt. of India as Dr.Ambedkar
clearly explained in the statement set out in
para 25.351 above. D.A. Desai J. and the
three other Judges (i.e. Bhagwati J, Fazl Ali J
and Venkataramiah J who took the same
view as he did, (in the first Judges case
1981)
held
mistakenly,
that
to
give
primacy to the advice of the Chief Justice
would, in substance, require his concurrence
to the appointment of a High Court Judge,
and the Drafting Committee expressly did
not require such concurrence nor did the
Constituent
Assembly,
for
it
rejected
Mr.Pocker
Sahibs
amendment
which
required such concurrence. But, as I have
explained fully in para 25.360 above,
primacy conferred by raising a rebuttable
presumption of the kind raised in Samsher
Singhs Case and in Sankalchands case is
one thing, and the conferment of a power to
veto is a very different thing. Put shortly,
if the Chief Justice of India had a veto on the
appointment of a High Court Judge, any
appointment made without his concurrence,
or contrary to his advice, would be ipso facto
void. Conferring primacy on the Chief Justice
of India by providing that if his advice is
disregarded, the Court will presume that on
17
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ocx
order passed against that advice has been
passed mala fide, or with ulterior motives,
does not make the order appointing a Judge
ipso facto void, for the Govt. of India can
rebut the presumption by establishing that
on the facts of the case the advice of the
Chief Justice of India was rightly rejected. It
follows, therefore, that if the unanimous
advice of the Chief Justice of the High Court
and the Chief Justice of India were rejected
by the Govt. of India, and an order passed
appointing a Judge contrary to the advice of
the two Chief Justices, a rebuttable
presumption must arise that the order was
passed mala fide or from ulterior motives.
Such a presumption does not confer a veto
on
the
two
Chief
Justices
for
the
presumption can be rebutted. All the
elaborate
provisions
securing
the
independence of the judiciary would be of no
avail, if a power were given to the executive
Govts. to appoint a Judge of their choice,
disregarding the advice of both the Chief
Justices, consultation with whom was made
obligatory because they are qualified to give
advice as the legal ability, knowledge of the
law, the judicial potential and the ability of
the person to be appointed to work
harmoniously with the members of the
Bench and the Bar, and the executive
governments are not so qualified.
This
general proposition does not involve the
conclusion that Judges are infallible. No doubt
Judges are liable to err in a particular case.
Therefore, if an error were pointed out in the
advice of the Chief Justices, a Court would hold
that the Govt. of India was justified on the facts of
the case in disregarding that advice. But as stated
earlier, it should not be for the Govt. to suggest a
persons name for appointment as a High Court
Judge and then appoint him in the exercise of its
power under Art.217(1). (Pg.2843 to 2845).
Note:-The above views of Mr. H. M. Seervai have
been around ever since 1984 when first
expressed in the Third Edition (Vol. 2) and
later in the Fourth Edition, Vol. 3 (1996) and
18
/
ocx
there has been no other commentator
expressing a contrary view.
Another standard text book viz. M.P. Jains Indian
Constitutional Law Vol. I 6th Edition updated by
Justice Ruma Pal (2013) (pages 530-534) has the
following to say about judicial primacy
(B)(a) is
quoted for
complete
reproductio
n of the
text but it
is irrelevant
what is
relevant is
(B)(b)
B. COMPOSITION OF THE HIGH COURT

(a) STRENGTH OF A HIGH COURT
A High Court consists of the Chief Justice and such
other Judges as the President may appoint from
time to time [Article 216]. In this way, the number
of Judges in a High Court is flexible and it can be
settled by the Central Executive from time to time
keeping in view the amount of work before a High
Court.
Representation of People Act cannot be taken
away by the Rules framed by the High Court in
exercise of the power conferred by Article 225
such power relates to procedural matter and
cannot make nor curtail any substantive law. 8
The question of justiciability of the adequacy of
the Judge strength in a High Court has been
considered by the Supreme Court in Supreme
Court Advocates-on-Record Association v. Union of
India9.
The Court has emphasized that 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 of cases and the expected future
filing. This is essential to ensure speedy justice,
Article 216 casts a duty on the Central Executive
to periodically assess the Judge strength of each
High Court. Article 216 is to be interpreted not in
8 Raj Kumar Yadav v. Samir Kumar Mahaseth 2005 (3)

SCC 601: 2005 (11) JT 177
9 AIR 1994 SC 268: 1993 (4) SCC 441, see, infra, (d)
19
/
ocx
isolation, but as a part of the entire constitutional
scheme conforming to the constitutional purpose
and its ethos.
Accordingly, the Court has ruled that fixation of
Judge strength in a High Court is a justiciable
matter. If it is shown that the existing strength is
inadequate to provide speedy justice to the people
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. In making
the review of the Judge strength in a High Court,
the President must attach great weight to the
opinion of the Chief Justice of 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 despatch.10
To reach this conclusion, the Court invoked Article
21, according to which speedy justice is now a
constitutional requirement.11 On this point, the
Court overruled the view expressed by it earlier in
S.P. Gupta v. Union of India,12 that the question of
the strength of Judges in a High Court was not
justiciable. It is not for the Court to fix the number
of judges itself; it can ask for a review to be
undertaken of the Judge strength. Thereafter, on
the question of fixation of the strength of the
Judges of a High Court, the Supreme Court had
observed in Subhash Sharma v. Union of India 13:
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 overburdened with pressure of work
which he finds it physically impossible to
undertake. This necessarily suggests that the
Judge strength should be adequate to the current
requirement and must remain under constant
10 Ibid, at 441
11 See, infra, Ch. XXVI, for discussion on Article 21.
12 AIR 1982 SC 149: 1981 Supp SCC 87; see, infra, (c)
13 AIR 1991 SC 631, 646: 1981 Supp. (1) SCC 574
20
/
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review in order that commensurate Juge strength
may be provided.
The significance of the Supreme Court ruling in the
Advocates-on-Record case can be appreciated in
the context of the embarrassing situation that
every High Court is faced withe load of pending
cases. In its report in 1988, the Law Commission
estimated that nearly 14 lac cases were pending in
the various High Court.14 As on 30th September
2010 there were 42,17,903 cases pending in the
High Courts.15 one of reasons for this situation is
inadequate judicial strength in the High Courts.
(b) APPOINTMENT OF JUDGES

The High Court Judges are appointed by the
President after consulting the Chief Justice of India,
the Governor of the State concerned.16 And, in
case of appointment of a Judge other than the
Chief Justice, the Chief Justice of the High Court to
which the appointment is to be made [Article
217(1)].
As mentioned above, the constitutional provision
[Article 217(1)] says that the President appoints
these Judges after consulting the Chief Justice of
India, the State Governor and the Chief Justice of
the High Court concerned. The Central Executive
and the State Executive provide the political input
in the process of selection of the Judges.
Since the inauguration of the Constitution, the
question has been considered by some authorities
how to ensure that the Judges are selected on nonpolitical considerations? It is thought that it is
14 LAW COMM. OF INDIA, ONE HUNDRED TWENTY
FOURTH REPORT ON THE HIGH COURT ARREARS A
FRESH LOOK, 2 (1988)
15 Published by the Government of India on 2nd August
2011
16 In case of a common High Court for two or more
States, the Governors of all the States concerned are
consulted; Article 231(2)
21
/
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necessary for securing the independence and
objectivity of the Judiciary that Judges be selected
on merit and not on political considerations. Such
an objective can be achieved only if the role of the
political element is reduced in the process of
selection of the Judges of the High Courts.
The matter was considered by the Law
Commission as early as 1958. In its XIV Report, 17
the Commission opined that the High Court Judges
were not always appointed on merit because of
the influence of the State Executive. Accordingly,
the Commission suggested that the Chief Justice of
the High Court should have a bigger role to play in
the matter of appointment of the Judges; that it
should be only on his recommendation that a
Judge be appointed, and also that concurrence,
and not only consultation, of the Chief Justice of
India be needed for this purpose.18
The Government of India did not accept this
recommendation. On the other hand, it stated
that, as a matter of course, the High Court Judges
had been appointed with the concurrence of the
Chief Justice of India.19
Again, the Study Team of the Administrative
Reforms Commission on Centre-State Relationship
endorsed the Law Commissions view that
influence of the State Executive be reduced in
appointing the High Court Judges.
The Team
suggested that the State Executive should have
the right only of making comments on the names
proposed by the High Courts Chief Justice but not
to propose a nominee of its own. The Team hoped
that this would reduce political influence exerted
at the State level in appointing High Court Judge
and improve professional competence.20
However, the A.R. Commission did not endorse the
suggestion made by its Study Team.
The
17 Supra.
18 XIV Report, 71-75.
19 Rajya Sabha, November 24, 1959
20 Report, I, 181-88 (1967)
22
/
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Commission took the view that the proposal would
drastically reduce the role of the State
Governments in the selection of the High Court
Judges.
In its view the existing procedure
balanced the right of the Centre and of the States.
It harmonized the initiative and autonomy of the
State, on the one hand, and safeguards against
the question of undue influence by the State, on
the other.21
(c) S.P. GUPTA v. UNION OF INDIA
In 1982, the matter regarding appointment of the

High Court Judges as well as of the Supreme Court
Judges came before the Supreme Court by way of
public interest litigation22 in the famous case of
S.P. Gupta v. Union of India.23
Several writ petitions were filed in the various High
Courts under Article 226 by several lawyers
practising in the various High Courts. 24 All these
petitions were transferred to the Supreme Court
for disposal. The main question considered by the
Court
was
of
the
several
functionaries
participating in the process of appointment of a
High Court Judge whose opinion amongst the
various participants should have primacy in the
process of selection?
The majority25 took the view, in substance, that
the opinions of the Chief Justice of India and the
Chief Justice of the High Court were merely
consultative and that the power of appointment
21 Report on Centre-State Relationship, 40
22 For public Interest Litigation, see, infra, this Chapter
Sec.D(k) and Ch. XXXIII, Sec. B.
23 AIR 1982 SC 149
24 For discussion on Article 226, see, infra, Sec.D
25 BHAGWATI, FAZAL ALI, DESAI AND VENKATARAMIAH,
JJ. The Bench consisted of seven Judges
23
/
ocx
resides solely and exclusively in the Central
Government and that the Central Government
could override the opinions given by the
constitutional functionaries (viz. the Chief Justice
of India and the Chief Justice of the concerned
High Court). This meant that the view of the Chief
Justice of India did not have primacy in the matter
of appointment of the High Court Judges; that the
primacy lay with the Central Government which
could decide after consulting the various
constitutional functionaries and that the Central
Government was not bound to act in accordance
with the opinions of all the constitutional
functionaries consulted, even if their opinions be
identical.
The majority in Gupta thus gave a literal meaning
to the word consultation in Articles 124(2) 26 and
217(1) in relation to all consultees and final
decision in the matter was left in the hands of the
Central Executive.27 The majority thus took an
extremely literal and positivistic view of Article
217(1). In reality, this view made consultation
with the Chief Justices inconsequential in the
matter of appointment of High Court Judges.
However, even after S.P. Gupta, the Central
Government always maintained that it had, as a
matter of policy, not appointed any Judge without
the name being cleared by the Chief Justice of
India.
26 See, Ch. IV, Sec.B(b), supra, for this Article of the

Constitution.
27 After referring to Article 124(2) and 217(1), Bhagwati, J. observed as
follows (AIR 1982 SC AT 200):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 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. For consultation and consult and cases relating thereto see
also N. Kannadasan v. Ajoy Khose 2009 (7) SCC 1, 42: 2009 (8) SCALE 351,
exhaustively considered.
24
/
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The majority ruling in Gupta to the effect that in
the
consultative
process
leading
to
the
appointment of a High Court Judge, the view
expressed by the Chief Justice of India would have
as much significance as the opinion of the State
Governor, or the Chief Justice of the High Court
concerned, came to be criticised in course of time
by a Bench of the Supreme Court in Subhash
Sharma.28
The Bench emphasized that an
independent non-political judiciary was crucial to
sustain the democratic political system adopted in
India. The Bench now expressed the view that
consistent with the constitutional purpose and
process, it became 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 Courts of the States.29
The Bench in Subhash Sharma also criticised the
developing practice of a State sending up names
for appointment to the High Court direct to the
Central Government instead of sending the same
to the Chief Justice of the High Court concerned.
According to the Bench of the Court: This is a
distortion of the constitutional scheme which is
wholly impermissible.30 The Bench opined that
primacy be given to the views of the Chief Justice
of India in the matter of selection of the High Court
Judges.
This would improve the quality of
selection. In India judicial review is a part of the
basic constitutional structure31 and one of the
basic
features
of
the
essential
Indian
Constitutional policy. Therefore, to contemplate
a power for the Executive to appoint a person
despite of his being disapproved or not
recommended by the Chief Justice of the State and
28 Subhash Sharma v. Union of India, AIR 1991 SC 631:
1991 Supp. (1) SCC 574
29 AIR 1991 SC, at 641
30 Ibid, at 642.
31 See, infra, Ch. XLI, for discussion on the Doctrine of
Basic Features of the Constitution.
25
/
ocx
the Chief Justice of India would be wholly
inappropriate and would constitute an arbitrary
exercise of the power. The Bench observed:
In India however, the judicial institutions, by

tradition,
have
an
avowed
political
commitment and the assurance of a nonpolitical complexion of the judiciary cannot be
divorced from the process of appointments.
Constitutional phraseology of consultation
has to be understood and explained
consistent with and to promote this
constitutional spirit.
The appointment is
rather the result of collective constitutional
process. It is a participatory constitutional
function. It is, perhaps, inappropriate to refer
to any power or right to appoint Judges. It
is essentially a discharge of a constitutional
trust
of
which
certain
constitutional
functionaries are collectively repositories. 32
The Bench, (in Subhash Sharma) therefore,

suggested reconsideration by a larger Bench of
this aspect of the process of appointment of
Judges.
32 AIR 1991 SC, at 645
26
/
ocx
II.The submission made in Note-II of the AttorneyGeneral (quoted above) that primacy of the Higher
Judiciary in the making of the appointments of Judges
was not provided for in Articles 124(2) and 217(1), and
in the working of these constitutional provisions after
1950, appears to stand negatived on good authority.
BUT (it is submitted) that it stands negatived by

a consideration of the following (chronological)
events and circumstances:
(i)
In the first Law Commission Report on Judicial

Reform after the Constitution was enacted the
Copy of the
Report
already on
record has
been handed
over to the
Honble Court
earlier.
14th Law Commission Report (1958) Chaired by

former Attorney-General Mr.M.C. Setalvad - after
an exhaustive investigation and enquiry (where
both the Sitting Chief Justice of India at time (SR
Das CJ) as well as another Supreme Court Justice
gave evidence before the Law Commission) it was
stated as follows:
4. Re: Supreme Court - Realizing the
importance
of
safeguarding
the
independence
of
the
judiciary,
the
Constitution has provided that a Judge of the
Supreme Court shall be appointed by the
President in consultation with the Chief
Justice of India and after consultation with
27
/
ocx
such of the other Judges of the Supreme
Court and the High Courts as he may deem
necessary. He holds office till he attains the
age of 65 years and is irremovable except on
the presentation of an address by each House
of Parliament passed by a specified majority
on the ground of proved misbehaviour or
incapacity.
Thus has the Constitution
endeavoured to put Judges of the Supreme
Court above executive control.33
..............................................................
Working
of
procedure
.
11. Re: High Courts - We understand that

the constitutional procedure prescribed by
article 217 is worked administratively in the
following manner:
The
Chief
Justice
forwards
his
recommendation to the Chief Minister who in
his turn forwards this recommendation in
consultation with the Governor to the Minister
of Home Affairs in the Central Government.
If, however, the Chief Minister does not agree
with the recommendation of the Chief Justice,
he makes his own recommendation.
It
33
There was a solid basis for the weighty observations in paragraph 4 of

the Report of the 14th Law Commission (Setalvad) not only as known and
presumably disclosed by the Government of the day to the Law Commission
(the 14th Law Commission Report was published in 1958), but also disclosed
by the facts mentioned in a STUDY (along with Volumes 1 to 4 Select
Documents) of a collation of the work of the Constituent Assembly by B. Shiva
Rao and other members of the Project Committee: published in 1967-1968.
The STUDY and the Select Documents clearly show that immediately after it
was decided by the Advisory Committee of the Constitution (on 9 th June,
1947) to have a Parliamentary system of governance in preference to any
other system of government: the Ad hoc Committee of the Supreme Court in
its report on 21st May, 1947 stated that with regard to qualifications and mode
of appointments of Judges that We do not think it will be expedient to leave
the power of appointing Judges of the Supreme Court to the unfettered
discretion of the President of the Union. - Thereafter on 11th June, 1947 the
Union Constitution Committee set up by the Constituent Assembly considered
the Ad-hoc Committee Report on the Supreme Court (Vardacharair Committee
Report) and decided:
As regards the methods of appointments it was agreed that the
President should appoint the Judges of the Supreme Court after
consulting the Chief Justice of the Supreme Court and such
other Judges of the Supreme Court and of High Courts as may
be necessary for the purpose. (p-559, Vol.2 Select Documents,
Framing of the Constitution, Shiva Rao)
Note:- This formulation was never changed right upto to the time when it saw
its place in draft Article 103 and finally Article 124.
28
/
ocx
appears that in such a case, the Chief Justice
is given an opportunity for making his
comments on the recommendation made by
the Chief Minister.
This practice is not,
however, invariably followed, so that, in some
cases it happens that the recommendation
made by the Chief Minister does not come to
the knowledge of the Chief Justice. The rival
recommendations are then forwarded to the
Minister of Home Affairs who, in consultation
with the Chief Justice of India, advises the
President as to the selection to be made. The
person recommended by the Chief Minister
may be, and occasionally is, selected in
preference to the person recommended by
the Chief Justice.
12. It is obvious that this procedure places
the Chief Justice in an extremely awkward
position.
Though he is expected to be
responsible for the transaction of the judicial
business of his Court by Judges possessing
appropriate qualifications, the procedure in
force results, at times, in the rejection of the
persons recommended by him and the
appointment instead of another person whom
he considers unsuitable. A Chief Justice may
thus find such a person appointed for a
judgeship of his Court at the instance of the
local executive and against his own
preference. He may be put in the position of
having to carry on the work of the Court with
Judges, who are incapable of rendering
proper
assistance
or
are
otherwise
unsuitable. The position would be further
aggravated by the knowledge of the newly
appointed judge that he has been appointed
to the bench by the executive against the
recommendation of the Chief Justice. The
effect of such a situation or even the
possibility of such a situation arising,
naturally weighs upon the mind of the Chief
29
/
ocx
Justice in making his recommendation. It
Difficult
position
may well deter him from recommending
of the
Chief
someone whom he has reasons to know the
Justice.
executive will not favour or lead him to
recommend someone who, he believes,
would be acceptable to the executive.
30
/
ocx
13. The figures made available by the
Selections
made with
Home Ministry to us, however, show that
the
in the vast majority of cases, the Chief
concurrence
of the Chief
Justices of the various High Courts have
Justice.
concurred in the appointments made to
the High Courts after 1950. How is it
then that the Chief Justice of the High
Courts have happened to agree to the
appointment
of
the
unsatisfactory
personnel of which, as stated above, we
have indubitable evidence?
A possible
explanation
14. The explanation, perhaps, lies in what

has been stated to us by the Chief Justice of
India (S.R. Das CJI).
In olden days in the matter of the
appointment of High Court Judges, the
Chief Justice of the High Court had a
preponderating voice and generally
speaking, the recommendations made
by him, as the person responsible for
the working of the High Court, used to
find support of the Governor, who in
such matters could act in his individual
discretion. Now, the Governor has to be
guided by his Ministers thinks that it is
his privilege to distribute patronage and
that his recommendations should be the
determining factor. The voice of the
Chief Justice is not half as effective as it
was in the past. Indeed, instances are
known where the recommendation of
the Chief Justice has been ignored and
overruled and that of the Chief Minister
has prevailed. This unedifying prospect
has brought about some demoralization
in the minds of the Chief Justices and
therefore
before
making
their
recommendations they ascertain the
views of the Chief Minister so as to be
sure that the recommendation to be
made by him, the Chief Justice, will
31
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ocx
eventually go through, and he will be
spared the discomfiture and loss of
prestige in having his nomination
unceremoniously turned down.
The
Chief Minister now has a hand, direct or
indirect,
in
the
matter
of
the
appointment to the High Court Bench.
The inevitable result has been that
the High Court appointments are
not always made on merit but on
extraneous
considerations
of
community,
caste,
political
affiliations, and likes and dislikes
have a free play. This necessarily
encourages canvassing which, I am
sorry to say, has become the order
of the day. The Chief Minister holding
a political office dependent on the
goodwill of his party followers may well
be induced to listen and give way to
canvassing. The Chief Justice, on the
other hand, does not hold his office on
sufferance of any party and he knows
the advocates and their merits and
demerits and a recommendation by the
Chief Justice is, therefore, more likely to
be on merit alone than the one made by
the Chief Minister who may know
nothing about the comparative legal
acumen of the advocates.
A judge of the Supreme Court has stated as

follows:The methods of selection also make for
a lowering of morale and standards.
The habit of touting for high judicial
office
and
producing
chits
and
recommendations from this person of
influence and that and of carrying backstair intrigue for appointments is
growing and is, to my mind, revolting
32
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ocx
and
dangerous.
Also
political
considerations, and worse, are creeping
in and Chief Justices are finding it
increasingly difficult to resist this sort of
pressure. That ought to be stopped
forthwith.
A Judge of a High Court has stated:
If the State Ministry (Minister in the
State Government) continues to have a
powerful voice in the matter, in my
opinion, in ten years time or so when
the last of the Judges appointed under
the old system will have disappeared,
the independence of the judiciary will
have disappeared and the High Courts
will be filled with Judges who owe their
appointments to politicians.
This indeed is a dismal picture and
would
seem
to
show
that
the
atmosphere
of
communalism,
regionalism and political patronage,
have
in
a
considerable
measure
influenced appointments to the High
Court Judiciary.
Prevalenc
e of
canvassin
g
15. Apart from this very disquieting feature

the prevalence of canvassing for judgeships
is also a distressing development. Formerly,
a member of the Bar was invited to accept a
judgeship and he considered it a great
privilege and honour. Within a few years of
Independence, however, the judgeship of a
High Court seems to have become a post to
be worked and canvassed for.
16. The Chief Justice of a High Court
outlined to us the procedure followed in his
State in regard to the selection of High Court
Judges. According to him, the question is first
discussed at a meeting between the Chief
Justice and the Chief Minister during which
33
/
ocx
the Chief Justice suggests names and the
Procedure
in certain
Chief Minister gives his opinion on the
States
proposal. Thereafter, some discussion takes
place and an informal understanding is
reached between the two before formal
proposals are sent up. He stated that from
his experience of such conferences it
was clear that political and communal
considerations did affect the mind of the
executive at the time of the discussion
of the names. We have no doubt that in
other States, a somewhat similar
procedure is followed before the making
of a formal recommendation by the
Chief Justice.
It is not surprising
therefore that the concurrence of the
Chief Justice has been obtained to many
unsatisfactory
appointments.
In
substance, having regard to the position
in which he is placed, the Chief Justice
surrenders his better judgment and
yields to the wishes of the Chief
Minister.
17. This is a grave state of affairs and it is
for consideration whether it is advisable and
practicable to prevent altogether the State
executive from having a voice in the selection
of the High Court Judges.
It has been
stressed upon us by a large body of opinion
that consultation with the Governor provided
by article 217 should be omitted. We have
given very anxious consideration to this
matter and feel that it will not be right to
recommend that the State executive should
not be consulted in the matter of
appointments. It must be remembered that
the appointment to a judgeship is made by
the President who is himself the head of the
executive. The High Court is the highest
judicial organ of the State and it is the State
exchequer which pays for its maintenance. It
34
/
ocx
would, therefore, be unreasonable not to
allow the State executive to express its views
with reference to a person recommended for
judgeship by the Chief Justice of the State
High Court. While the Chief Justice would be
the most competent person to evaluate the
merit
and
efficiency
of
a
person
recommended, there may be, and frequently
are, other matters relating to the person
recommended which the State executive
alone would be in a position to know and of
which they may inform the Chief Justice. It
may be that the local position of the person
proposed, his character and integrity his
affiliations and the like, which may have a
considerable bearing upon his efficient
functioning as a Judge may not all be within
the knowledge of the Chief Justice. For these
reasons, it seems to us reasonable and
necessary that where the Chief Justice
recommends a person for a judgeship, the
State executive should have an opportunity
to
offer
its
comments
upon
that
recommendation. It appears to us, however,
that it should be left to the Chief Justice on
whom lies the responsibility of the efficient
working of the Court to determine whether or
not a person is competent to be a Judge or
from which of the sources recognized by the
Constitution a judge should be drawn to fill a
particular vacancy. The consultation with the
local executive and the information which it
may supply should be limited to other factors
such as we have mentioned above. We are
also clearly of the view that it should not be
open to the State executive to propose a
nominee of their own and forward the name
of such nominee to the Centre. If the State
executive
disagrees
with
the
recommendation of the Chief Justice by
reason of the nature mentioned above, it
should be open to it to disagree with the
State
Role of the
Governments
State
not to
executive
make
rivalconsultatio
nominations
n
necessary
35
/
Steps to
avoid
delay.
ocx
recommendation and request the Chief
Role of the
State
Justice to make a fresh recommendation.
executive
consultation
necessary.
Recommendatio
n of the Chief
Justice to be
necessary for
appointments.
18. In order to avoid delays it would be

advisable that the Chief Justice of the State
should forward direct to the Chief Justice of
India a copy of the recommendation made by
him to the executive of the State.
19. Having regard to what has been stated
above, it is in our view very essential, that
the hands of the Chief Justice in making his
recommendation should be strengthened.
Instead of the constitutional provision
requiring a consultation with the Chief Justice
in the matter of the appointment of judges, it
should require an appointment of a judge
being made on the recommendation of the
Chief Justice of the State. If the Chief Justice
is assured that no appointment can be made
unless he recommends the person, the fear
which the Chief Justice at present has of
executive interference and the tendency to
enter into compromise with the executive
which have been noticed above will
disappear.
20. It may be asked whether the acceptance
of this suggestion will not place the Chief
Justice in a dominating position, able as it
were, to dictate in regard to the person to be
appointed and lead to arbitrary and even
capricious appointments by the Chief Justice.
It may be urged that Chief Justices may also
be moved on occasions by considerations of
communalism and favouritism. In order to
avoid contingencies of that character, we
further propose that the constitutional
provision should be amended so as to require
not merely consultation with the Chief Justice
of India but his concurrence in the proposed
appointment. The Chief Justice of India would
naturally keep himself informed about
persons suitable of the Bar as well as in the
Services for appointment to the Bench at the
Bar as well as in the Services and will be in a
position
to
prevent
unsatisfactory
36
/
ocx
appointments
being
made
on
the
An
recommendation of the Chief Justices of the
additional
States if ever such occasions arise.
safeguard.
Note: Although Article 217 (1) was not amended, as
was suggested yet the Executive assured
Parliament that in all but very few cases the
advice of the Chief Justice of India was being
Concurrence
of the Chief
followed.
Justice of
India
essential.
(ii)
The 14th Report of the Law Commission on Judicial
This report
is also
already on
record
having
been
handed
over on an
Reforms (1958) the first after 125 years was

tabled in Parliament on 25.2.1959 and there
followed a detailed discussion on it in the Rajya
Sabha on 23rd to 25th November, 1959 in the
course of which the Home Minister Mr.Govind
Bhallabh Pant and the Law Minister A.K. Sen (at
the end) said:
(i)
Replying to the debate on 24.11.1959
the Honble Home Minister Mr. Govind Ballabh
Pant stated as follows: (page 288 of Rajya
Sabha Debates of 24-11-1959)
Sir, so far as appointments to the
Supreme Court go, since 1950 when the
Constitution was brought into force,
nineteen Judges have been appointed
and everyone of them was so appointed
on the recommendation of the Chief
Justice of the Supreme Court. I do not
know if any other alternative can be
devised for this purpose.
The Chief
Justice of the Supreme Court is, I think,
rightly deemed and believed to be
familiar with the merits of his own
colleagues and also of the Judges and
advocates who hold leading positions in
different States. So we have followed
the advice of the most competent,
37
/
ocx
dependable and eminent person who
could guide us in this matter.
Similarly, Sir, so far as High Courts are
concerned,
since
1950,
211
appointments have been made and out
of these except one, i.e., 210 out of 211
were made on the advice, with the
consent and concurrence of the Chief
Justice of India. And out of the 211, 196
proposals which were accepted by
Government had the support of all
persons who were connected with this
matter. As Hon. Members are aware,
under, I think, Article 217, the Chief
Justice of the High Court, the Chief
Justice of the High Court, the Chief
Minister of the State concerned and the
Governor first deal with these matters.
Then they come to the Home Ministry
and are referred by the Ministry to the
Chief Justice of India and whatever
suggestions or comments he makes are
taken
into
consideration
and
if
necessary, a reference is again made to
the Chief Minister and the High Court.
But as I said, these 196 appointments
were made in accordance with the
unanimous advice of the Chief Justice of
the High Court, the Chief Minister of the
State, the Governor and the Chief Justice
of India.
(ii) Speaking in the Rajya Sabha on
25.11.1959 the Law Minister Mr.Asoke Sen
stated (page 394 to 395):
.........it is my duty to point out to the
honourable House again as I did in the
Lok Sabha when the Law Commission
first sent an interim report-call it an
interim report or some report before the
final one pointing out that Judges have
been
appointed
on
extraneous
considerations, we gave them the facts
and
figures
concerning
all
the
appointments made since 1950.
We
drew their pointed attention to the fact
that, as the Home Minister pointed out
38
/
ocx
yesterday, except in the case of one
Judge out of the 176 odd Judges
appointed
since
1950,
all
were
appointed on the advice of the Chief
Justice. With regard to the one there
was difference of opinion between the
local Chief Justice and the Chief Justice
of India and the Government accepted
the advice of the local Chief Justice
rather than the Chief Justice of India.
But it was not their nominee. We should
have expected the Law Commission, in
all fairness, to have dealt with the
communication from the Government
giving facts of all the appointments not
only of the High Courts but of the
Supreme Court. I am not saying that
they were obliged to do so, but it is only
a fair thing to do, namely, when you
bring certain accusation in a solemn
document like the Law Commissions
Report, you should deal with all the
arguments for and against. We should
have expected in all fairness that these
facts ought to have been dealt with.
Unfortunately no facts are set out so
that it is impossible to deal with. If it
was said that this had been the case
with A, this had been the case with B or
C, it would have been easy for us to deal
with them.
Especially when we had
given all the facts concerning the
appointment of each and every Judge
since 1950.
DR. H.N. KUNZRU: But the Commission
has stated how the agreement was
arrived at. That is not creditable to the
Government or to the Judges.
SHRI A.K. SEN: It is impossible for us to
imagine that the Chief Justice of India,
whose advice was accepted in the case
of all the appointments except one, as I
said was made to agree. You know we
had Chief Justices like Mr.Mehr Chand
Mahajan.
I would be absolutely
reluctant to acknowledge that a man
like him could be weighed upon by any
39
/
ocx
Government a man like Chief Justice
Mr.Kania, who was responsible for most
of
the
appointments
since
the
Constitution, a man like the Chief Justice
Mr.S.R. Das, who was very firm in these
matters, as everyone knows, and who
frequently
disagreed
with
the
Government and whose disagreed
advice had been accepted by the
Government finally in many matters. As
I said, rightly or wrongly, such an
important accusation ought not to be
devoid of facts. That is all that I can
submit. I am not criticizing the Law
Commission. I am not trying to blame
them. They are entitled to write in the
way they have done. But on behalf of
the Government it is impossible to deal
with bare allegations if the facts are not
there because we cannot deal with bare
allegations except to make bare denials.
Shri AMOLAKH CHAND (Uttar Pradesh):
You have given expression to these
views.
Shri A.K. SEN: As I said, we can only
express our views to the contrary. We
cannot do anything more than that. But
the facts are there.
Of course, the
denial could have been more concrete.
That is the position.
Comment: We must assume therefore
that the understanding of those in
charge of working of the Constitution
was that the advice of the CJI was to be
and was invariably accepted by the
Executive whosoever could be said to
have the power to appoint. This was
avowedly the settled practice followed
in the appointment of Judges in the
Higher Judiciary.
NOTE: Copy of the entire debate as printed in
Rajya Sabha Debate is on record it was
handed over to their Lordships during the
hearing in May, 2015 (i.e. before the Order
dated 12th May 2015).
40
/
ocx
(iii) The Practice later became embodied in judicial
dicta.
In the first authoritative decision of the
Supreme Court of India on this point (where the

question before a Bench of 7 Judges was whether
or not the Governor (as also the President) were
obliged to act in accordance with the advice of
their respective Council of Ministers) it was stated:
in Samsher Singh vs. UOI (7J) 1974 (2) SCC 83134
as follows:
149. In the light of the scheme of the
Constitution we have already referred to, it is
doubtful whether such an interpretation as to
the personal satisfaction of the President is
correct. We are of the view that the President
means, for all practical purposes, the Minister
or the Council of Ministers as the case may
be, and his opinion, satisfaction or decision is
constitutionally secured when his Ministers
arrive at such opinion satisfaction or decision.
The independence of the Judiciary, which is a
cardinal principle of the Constitution and has
been relied on to justify the deviation, is
guarded by the relevant article making
consultation with the Chief Justice of India
34
In Special Reference No. 1 of 1964 (1965 (1) SCR 413 at

page 446) a Bench of 7 Judges had stated the exclusivity
of the Judicial Bench in interpreting the Constitution:
That the nature, scope, effect and interpretation of any
provision of the Constitution has been entrusted by the
Constitution of India solely and exclusively to the
judicature of this country. And so we feel no difficulty for
holding that the decision about the construction of Article
194(3) must ultimately rest exclusively with the
judicature of this country. That is why we must overrule
Mr. Seervais argument that a question of nature, scope
and effect of the powers of the House (i.e. Legislative
Assembly) cannot be said to lie exclusively with the
judicature of this country.
41
/
ocx
obligatory.
In
all
conceivable
cases
consultation with that highest dignitary of
Indian Justice will and should be accepted by
the Government of India and the Court will
have an opportunity to examine if any other
extraneous circumstances have entered into
the verdict of the Minister, if he departs from
the counsel given by the Chief Justice of
India. In practice the last word in such a
sensitive subject must belong to the Chief
Justice of India, the rejection of his advice
being ordinarily regarded as prompted by
oblique considerations vitiating the order. In
this view it is immaterial whether the
President or the Prime Minister or the Minister
for Justice formally decides the issue.
(iv) After
the
decision
in
Samsher
Singh,
no
Government ever asked for a reconsideration of

the observations made in para 149 of Samsher
Singh Case 1974 (2) SCC 831 (7J), on the ground
that this was not their understanding of the
provisions contained in Article 124(2) and Article
217(1),
or
in
its
working
nor
that
these
observations were obiter and not binding.

Note: On the contrary, in a later Bench decision of
5 Judges Union of India vs. Sankal Chand Seth
1977 (4) SCC 193 (stated by the Learned
Attorney-General
to
contain
obiter
observations
since
the
judgment
in
Sankalchand came after the transferred Judge
(Sankalchand
Sheth)
had
voluntarily
withdrawn his petition) the passage in para
149 in Samsher Singh was reiterated by the
Court
(speaking
through
Justice
Y.V.
35
Chandrachud) in para 41:
35 1977 (4) SCC 193 (5J).
42
/
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41. This then, in my judgment, is the true
meaning and content of consultation as
envisaged
by
Article
222(1)
of
the
Constitution. After an effective consultation
with the Chief Justice of India, it is open to
the President to arrive at a proper decision of
the question whether a Judge should be
transferred to another High Court because,
what the Constitution requires is consultation
with the Chief Justice, not his concurrence
with the proposed transfer.
But it is
necessary to reiterate what Bhagwati and
Krishna Iyer, JJ., said in Shamsher Singh
(supra) that in all conceivable cases,
consultation with the Chief Justice of India
should be accepted by the Government of
India and that the Court will have an
opportunity to examine if any other
extraneous circumstances have entered into
the verdict of the executive if it departs from
the counsel given by the Chief Justice of
India: In practice the last word in such a
sensitive subject must belong to the Chief
Justice of India, the rejection of his advice
being ordinarily regarded as prompted by
oblique considerations vitiating the order.
(page-873). It is hoped that these words will
not fall on deaf ears and since normalcy has
now been restored36, the differences, if any,
between the executive and the judiciary will
be resolved by mutual deliberation, each
party treating the views of the other with
respect and consideration.
What is significant is that four years after Samsher
Singh the observations in para 149 (that the last
word must belong to the Chief Justice of India was
again referred to with approval by the Court in
Sankalchands case (Bench of the 5 Justices).
36 The Internal Emergency of June 1975 was lifted in
January/March 1977.
43
/
ocx
(v)In the judgment in the First Judges Case (S.P. Gupta

1981) (since overruled) Justice Bhagwati (with
three other Judges in a Bench of sevenJudges) did
say that the ultimate power to appoint rest with
the Central Government and that is in accordance
with the constitutional practice prevailing in all
democratic countries: 1981 Suppl. SCC 87 at page
230.
But as was pointed out in the opening address of

counsel for the Petitioner (on the merits) there was
a corrigendum to Justice Bhagwatis judgment
which (the same judgment in which His Lordship
had said that the ultimate power to appoint rests
with the Central Government) which judgment
(after the corrigendum) read as follows:
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,
though being a unanimous opinion of all
three constitutional functionaries, it would
have great weight and if an appointment is
made by the Central Government in defiance
of such unanimous opinion, it may prima
facie be vulnerable to attack on the ground
that it is mala fide or based on irrelevant
grounds. The same position would obtain
if an appointment is made by the
Central Government contrary to the
44
/
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unanimous opinion of the Chief Justice
of the High Court and the Chief Justice
of India.
(ix) The 121st Law Commission Report (1987) the Law

See corrigendum
of page 57 of AIR
1982 S.C. 149 at
p-201 lines to 10
Commission chaired by Justice D. A. Desai [see

Background note of the Petitioners on brief
synopsis of events handed in to the Honble
Bench on 27th April, 2015 (pages 13 to 16)] the
Law Commission for the first time suggested a
constitutional amendment in what was described
as a NEW MODEL, a broad-based National Judicial
Service Commission for appointing Judges of the
Supreme
Court
and
for
appointing
Judges
(including transfers of Judges) for High Courts and

stated:
Unquestionably the Chief Justice of India
must be at the head of this body
(commission) and must be designated as
Chairman. This pre-eminent position should
not be diluted at all.
The Commission was to have a preponderating

number of Sitting Judges.
The
composition
of
the
Commission,
as
recommended for the appointment of Judges of
45
/
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the Supreme Court and of the High Courts was
11 Members out of which seven would be sitting
Judges with one retired Chief Justice (i.e. 8 Judges
in all) the three non-Judges were, to be the Law
Minister, the Attorney General of India, and an
outstanding law academician (8:3).
It was
further stated: (in acknowledgement of the federal

nature of Indias Constitution) as follows:
to make the new scheme operationally
effective the National Judicial Service
Commission while deliberating over selection
and appointment of Judges of the High Court
must co-opt the Chief Justice of the High
Court in which the vacancy has occurred and
which is under the process of being filled in
as well as the Chief Minister of the State in
which the High Court situate.
In accordance with the recommendations of the
Report of Justice D. A. Desai Law Commission, Bill
No.
93
of
1990
was
introduced
(by
the
Government of the day) in the Lok Sabha on 18 th

May, 199037 (but with a Commission of 5 Members
37 In the Statement of Objects and Reasons (mentioned
in Subhash Sharma v. Union of India (3J) 1991 Supp. 1
SCC 594) at page 588 is stated that this Bill was
introduced 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 undue delay. The idea of a
National Judicial Commission pre-dates and precedes
the Collegium System and cannot be justified on the
ground that the NJAC was introduced because the
46
/
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with Members of the Judiciary being predominant).
The Bill could not be passed since the Lok Sabha
was prematurely dissolved.
(x)
In the Affidavit filed by the Union of India in
the Second Judges Case (1993) it was categorically

asserted by the Union of India as follows:
As regards the appointment of Judges made,
not in consonance with the views expressed
by the Chief Justice of India, it is respectfully
submitted that since January 1, 1983 to April
10, 1993, there have been only seven such
cases, five of these were in 1983 (2 in
January 1983, 2 in July 1983, 1 in august
1983); one in September 1985 and one in
March 1991, out of a total of 547
appointments made during this period.
This was so factually noted and recorded in the

judgments reported 1993 (4) SCC 441 p-618 (para
292) p-717 (para 498) p-461 (para 369).
From this same set of facts different conclusions

were drawn
Collegium System did not work well.
47
/
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[A] It was stated by the majority (7 Judges) that:
370. It is thus obvious from the facts and
figures given by the executive itself that in
actual practice the recommendations of the
Chief Justice of India have invariably been
accepted.
[B]
The minority (2 Judges) (whilst dissenting on
the main point), stated

(i)
(Ahmadi J) page 292 of 1993 (4) SCC 441

it only showed that the executive acts
with restraint and with due deference to
the views of the Chief Justice of India. It
would be unfair to the read the attitude
of accommodation as one of total
submission!
NOTE: This is not much different from what
was said in para 370 quoted above.
(ii)
(Punchhi J) pages 717-718 of 1993 (4) SCC

441.
...The affidavit of Mr. S.K. Bose dated
April 2, 1993 states that out of a total of
547 appointments made in the last
decade, 540 were in accordance with
the opinion of the Chief Justice of India
and the remaining seven were not in
such accord.
We have not been
provided with the details as to which
court they related to except that out of
those seven questionable appointments
five were made in 1983, one in 1985
and one in 1991. This is the fallout of
S.P. Gupta case38. It is left to guess if
those were related to the High Courts,
and were they made, at least, in
accordance with the opinion of the Chief
38 S.P. Gupta v. Union of India, 1981 Supp. SCC 87:

(1982) 2 SCR 365
48
/
ocx
Justice of the respective High Courts. In
any case the affidavit does not state
that those appointments were made
even against the opinion of the Chief
Justice of the High Court besides that of
the Chief Justice of India. Otherwise, but
for these aberrations, for which the
executive has given out to make
amends in various forums the executive
has conceded primacy to the opinion of
the Chief Justice of India which is
reflective from the factum of 540
appointments going through with his
concurrence.....
Again not much different from para 370 quoted
above.
(Punchhi J) in 1993 (4) SCC 441 at page 719 39: had
also said that S.P.Gupta was wrong when it
permitted the Executive to disregard the views of
the CJI.
Conclusion:
The conclusion from all this is that whatever be

the
interpretation
consultation
of
either
the
true
meaning
of
as
not
binding
or
39 500. Thus S.P. Gupta case as I view it, insofar as it goes to permit the
executive trudging the express views of disapproval or non-recommendation
made by the Chief Justice of India, and for that matter when appointing a High
Court Judge the views of the Chief Justice of the High Court, is an act of
impermissible deprival, violating the spirit of the Constitution, which cannot
be approved, as it gives an unjust and unwarranted additional power to the
executive, not originally conceived of. Resting of such power with the
executive would be wholly inappropriate and in the nature of arbitrary power.
the two needs to be maintained with more consideration.
49
/
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Concurrence either generally or contextually
or whatever Dr.Ambedkar intended to provide in
draft Article 103 (=Article 124), as a matter or
practice the provisions of Article 124(2) as well as
Article
217(1)
were
understood
by
those
administering them and the Constitution was in

practice worked, ever since 1950 on the premise
that in the matter of appointment of Judges of the
Higher Judiciary the last word belonged to the
Chief Justice of India.
Practice
is
an
very
important
element
in
constitutional interpretation. In State of Rajasthan

v. Union of India 1977 (3) SCC 592 p-621 at para
56 (7 Judges) it was stated by CJ Beg: as follows:
(para 56)
56. A conspectus of the provisions of our
Constitution will indicate that, whatever
appearance of a federal structure our
Constitution may have, its operations are
certainly, judged both by the contents of
power which a number of its provisions carry
with them and the use that has been made of
them, more unitary than federal. I mention
the use that has been made of the
constitutional
provisions
because
constitutional
practice
and
convention
become so interlinked with or attached to
constitutional provisions and are often so
important and vital for grasping the real
purpose and function of constitutional
50
/
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provisions that the two cannot often be
viewed apart.
As contrasted with this: the present Constitutional
Amendment is far removed from the last word
being with the Chief Justice of India (a vital facet of
the independence of the Judiciary); on the contrary
under the new system even with unanimity
amongst three of the senior-most judges in the
Supreme Court of India (including the Chief Justice
of India) all members, ex office, in the NJAC a
persons name as judge cannot be recommended
by the Commission even if found suitable by all 3
seniormost Judges of the Supreme Court unless at
least one (more) amongst non-Judge members
agreed i.e. Law Minister or one of eminent
persons co-operates and agrees: bringing into
play the prospect of what Senior Advocate Arvind
Datar had rightly characterised (in the opening of
the case) as promoting as structured bargaining;
not conducive either to an independent or a
competent Higher Judiciary.
***
51
/
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52
/
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Exhibit-I
Importance and guarantee of Independence of
Judiciary:
(relevant extracts from Constituent Assembly
Debates (1947 to 1949)
1.
21-07-1947
Appointments of High Court Judges

in Provincial Judiciary.
Sardar Vallabhai Patel
This clause proposes to incorporate
the provisions of the 1935 Act
regarding High Courts, but
regarding the appointment of
the Judges it provides that the
appointment shall be made by
the President of the Federal
Legislature in consultation with
the Chief Justice of the
Supreme
Court
and
the,
Governor of the Province. With
so many checks and counter
checks these appointments
place the High Court Judges
beyond any influence of the
parties or any other influences
and beyond any suspicion or
doubt of such a nature. There
is thus enough guarantee
provided for the independence
of the Judiciary.
- Smt. G. Durgabhai
They are the repositories of
the Constitution; they have got
to interpret the constitution.
They are the guardians of the
fundamental rights in the
Constitution. Every common
53
/
ocx
man must look to these courts
for fair treatment and justice.
They have got to see that their
rights are safeguarded and
they are in safe custody.
Therefore if we have got to
achieve this I we have got to
see to the successful working
of these High Courts and this
depends mostly upon the
quality of the judiciary and the
manner
in
which
it
is
composed. The independence
of the judiciary is a thing which
has to be decided and this
independence to a large extent
depends on the way in which
these judges are to be
appointed. They should not be
made to feel that they owe
their appointment either to this
person or that person or to this
party or to that party. They
have to feel that they are
independent. It is only in that
case that get efficiency of
administration of justice. It is
with a view to secure this kind
of independence that some
sort of check is necessary and
the authors of the clause have
provided for this check by
bringing in some external
authority to have something to
do with the appointments
relating
to
the
Provincial
courts. We may fell why the
Chief Justice of the Supreme
Court also is brought into this
picture but in the interests of
the purity of administration of
justice the Supreme Court has
a great part to play hereafter.
It is the highest of the High
Courts of India and it will have
a general advisory jurisdiction
and
a
general
appellate
jurisdiction which is similar to
54
/
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that now exercised by the Privy
Council relating to Indian units.
Therefore, it is to review the
work of all High Courts and
also exercise the powers of
general
superintendence,
direction and control in all
matters
relating
to
the
provincial judiciary Several
matters of the High Courts
have got to one before this
Court by way of revision,
reference
and
appeal.
Therefore, the Chief justice of
the Supreme Court has got a
great deal to do with these
High Courts and not only that,
the Supreme Court in itself has
got to be composed from
among the judges of the High
Courts as we see. Therefore
considering all these matters I
feel that it is highly necessary
that the Chief Justice of the
Supreme Court is consulted by
the President of the Federation
in making these appointments
to the provincial courts.
2.
10-12-1948
Draft
Article
powers
40A
between
separation
of
Legislature,
Executive and the Judiciary.

K.T. Shah
For one thing, Sir, if you
maintain
the
complete
independence of all the three,
you will secure a measure of
independence between the
Judiciary, for example, and the
Executive, or between the
Judiciary and the Legislature.
This, in my view, is of the
highest
importance
in
maintaining the liberty of the
55
/
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subject, the Civil Liberties and
the rule of law. If there was
contact between the Judiciary
and
the
Legislature,
for
instance, if it was possible
tointerchange between the
highest judicial officers and the
membership of the legislature,
then,
I
am
afraid,
the
interpretation of the law will be
guided much more by Party
influence than by the intrinsic
merits of each case. The
Legislature in a democratic
assembly is bound to be
influenced by Party reasons
rather than by reasons of
principle.
Mr. Shibban Lal Saksena

Everywhere, its independence
must be guaranteed and I have
given amendments that the
Supreme
Court
must
be
completely independent of the
judicature and the legislature.
It must be the one body which
should
decide
what
is
guaranteed with respect to our
liberty, etc. I hope this
amendment will at least help
us to see that the Supreme
Court's independence is not in
any way minimized. In regard
to this I heard one of the most
eminent authorities in the
Assembly say "Today the High
Courts are not independent;
they are influenced by the
political consequences of their
actions.
I hope in future our Supreme
Court will be free from these
influences and that they will do
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what is necessary and observe
the principles inherent in this
Constitution.
Mr. K. Santhanam
Though the Supreme Court of
the United States is said to be
completely separate from the
executive, we have seen how
President after President has
tried
to
manipulate
the
Supreme Court by appointing
judges to suit his own views.
Whenever there has been a
conflict between the President
and the Supreme Court, the
President has had only to wait
till some judge retired and
then put in his own nominee in
his place and get judgments in
his own favour. Therefore, so
long as the President is the
ultimate appointing authority,
the authority of the judiciary
has to some extent to be
dependent on the executive.
But, so far as our Constitution
is concerned, it lays down that
our Supreme Court will be as
independent of the executive
and the legislature as the
Supreme Court of the United
States. To that extent Prof.
Shah's desires have been
fulfilled in the Constitution.
Dr. B.R. Ambedkar
With regard to the question of
separating the Executive from
the Judiciary, as I said, there is
no difference of opinion and
that
proposition,
in
my
judgment, does not depend at
all on the question whether we
57
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have a presidential form of
government or a Parliamentary
form of government, because
even under the Parliamentary
form
of
Government
the
separation of the judiciary from
the Executive is an accepted
proposition,
to
which
we
ourselves are committed by
the article that we have
passed, and which is now
forming part of the Directive
Principles.
3.
6-1-1949
Article 147A (Separation of Judiciary

in State)
K.T. Shah
I would rather emphasise on
this occasion and in this
connection the separation of
the
judiciary,
the
independence of the judiciary,
than of the legislature, as
such. When we consider the
judiciary, I would place similar
amendments
with
definite
reference to the judiciary. In
this case, I would like to point
out that whereas the lawmaking body makes laws after
due consultation and contacts
with the juristic advisers that
they may have, or the
technical draftsmen who may
assist them, nevertheless, they
should not have any contact
with the judiciary as such, lest
the knowledge of what took
place in the legislature, the
knowledge of the debates,
discussions,
promises
or
assurances
given,
or
even obter-dicta that may be
58
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thrown out on the floor of the
Legislature by either side, may
influence judgment. It is an
accepted principle--and I think
quite a right one--that the
judiciary in their interpretation
of a written Constitution should
not be influenced by anything
that took place in the debates
on a given piece of legislation.
In a federal constitution, it is
inevitable that questions may
crop up time and again, not
only of the interpretation of
ordinary legislation, but also of
the very constitutional aspect
of a given legislation, or acts of
the
Executive
under
the
Constitution. It is but right and
proper that the legislature
should be completely free from
the influence or any chance of
being influenced by the two
other organs of the State.
Further, the Judges themselves
having pre-conceptions--so to
say, of the nature or intention
of the law--are likely to give an
interpretation not necessarily
in consonance with the true
doctrine of interpretation, but
rather, because of their preknowledge, so to say, of the
intention, even if the meaning
is not properly given in the
wording as finally decided
upon.
For these reasons, Sir and for
securing the purity, both of the
Legislature
and
of
the
Judiciary, I commend this
motion to the House, that the
two should be completely
separate.
4.
23-05-1949
Article
102A
Separation
of
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Judiciary
from
Executive
and
Legislature.
K.T. Shah
Sir,
this
amendment
enunciates a very important
proposition
in
constitution
making, which I have urged
from a variety of angles
already, but which I should
now like to urge from this
angle, in the hope that, at
least
for
securing
the
independence of the Judiciary,
it may commend itself to the
House.
Sir, the principle of the
separation of powers has been
regarded in many countries as
the
foundation
stone
of
democratic Government.
K.M. Munshi
As regards the question of the
independence
of
the
Judiciary, which
my
Friend
Professor Shah emphasised,
ample care has been taken in
this Chapter that the judicial
system in India under this
Constitution should be an
integrated system, and that it
should be independent of the
Executive in so far as it could
be in a modern State.
H.V. Kamath
These two functions which I
just referred to, namely, the
functions of the judiciary to
adjudicate or settle disputes
between the Centre and the
Units in the first place, and to
60
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give justice to the citizen as
against the State cannot be
fulfilled unless and until the
judiciary is separate from the
executive and is completely
independent of the executive.
Therefore, in the context of the
free State that we are going to
build, the free democratic
State that we are going to
build up in our country, an
independent judiciary should
assume a high priority, before
we
proceed
to
confer
fundamental rights upon the
citizen, or before we allocate
various functions and powers
between the Centre and the
Units. If the judiciary is not
there to protect and safeguard
these rights that you confer on
the citizen, how are we going
to preserve the sanctity of our
Constitution?
5.
24-05-1949
Mr. Mahboob Ali Baig Sahib

Under
our
proposed
constitution
the
President
would be the constitutional
Head of the executive. And
the
constitution
envisages
what is called a parliamentary
democracy. So the President
would be guided by the Prime
Minister or the Council of
Ministers who are necessarily
drawn from a political party.
Therefore the decision of the
President would be necessarily
influenced
by
party
considerations. It is therefore
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necessary
that
the
concurrence of the Chief
Justice is made a pre-requisite
for the appointment of a Judge
of the Supreme Court in order
to guard ourselves against
party influences that may be
brought to bear upon the
appointment of Judges.
This is a salutary principle and
it is necessary that the
Justice
should
be
made
necessary for the appointment
of the Judges of the Union
Judicature. It may be said that
there might be disagreement
between the opinion of the
President and the Chief Justice
and there might be a sort of
deadlock. I submit, Sir, at that
higher level between the
Supreme
Judge
and
the
President, there is not likely to
be any such difference of
opinion. Even if there was any
such difference of opinion it is
open to the President to just
propose another name which
will be acceptable to the Chief
Judge. So there cannot be any
serious objection to make the
Justice
a
necessary
prerequisite for the appointment
of the Judges of the Union
Judicature
and
that
will
certainly guard us against any
party influences being brought
to
bear
upon
the
appointments.
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6.
24-05-1949 Article 103
Now
coming
to
the
amendment of Professor Shah,
he wants the Council of States
to decide the question of the
appointment of Judges. This I
must strongly oppose. We want
impartial
and
independent
Judges; and if you leave it to
the Council of States there is
bound
to
be
individual
canvassing, in which case the
question of ability, etc, will be
set aside. Of course from the
point of democracy it may be
good to consult them because
we want wider consultation
and discussion but there must
be a limit to it. And if you leave
it to the Council of States to
appoint Judges, that will be
going too far. After all our
Prime Minister has to make
appointments of Ambassadors,
Governors, Judges etc. This is
true; he is likely to make
appointments of his choice or
show favoritism, but surely he
is subject to our votes. You
cannot have it decided by a
Council of 150 people or more;
canvassing that of all persons
Prof. Shah should have moved
this amendment.
Shri M. Ananthasayanam Ayyangar
The Supreme Court is the
watchdog of democracy. It is
the eye and the guardian of
the citizen' rights. Therefore at
every stage, from the stage of
appointment of the judges,
their salaries and tenure of
office, all these have to be
regulated now so that the
63
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executive may have little or
nothing to do with their
functioning. The provisions,
that have been made, have
been made with an eye
towards that. If amendments
are
moved
now,
each
amendment must be judged by
the test whether it secures the
independence of the judiciary
which this Chapter attempts to
provide for.
7.
7-6-1949
Draft Article 193A (Judges after

retirement no appointment)
K.T. Shah
Sir, this is part of the principle
which I have been trying to
advocate,
namely
the
complete
separation
and
from the executive. One way
by which the executive has
tried in the past to tempt the
highest judicial officers is by
holding out the prospect of
more dazzling place on the
executive side which would be
offered to those who were
more convenient or amenable
to their suggestions.
H.V. Kamath
Shri H. V. Kamath: Yes, for
five years. A judge can serve
up to 65 years. Here the
amendment seeks to lay down
that a judge who has served
for 5 years continuously should
not be employed in any
specified in this amendment.
This is in my judgment a very
healthy
maxim.
It
has
happened in many countries
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that a judge who has served
for a term of 5 years or more
has been shunted off to some
executive job when his vies or
independence of mind and
judgment became a little too
hot for the Executive. I think it
was President Roosevelt in the
U.S.A.-I do not recollect the
occasion when be tried this
method but it was in the
thirties of this century when he
found that the views of some
Judges of the Supreme Court
were unpalatable, he tried to
get over that by appointing
more Judges, so that he might
get the required majority for
that particular measure that he
wanted to push through. This
is one of the methods-to
increase the number of Judges
who might favour a particular
view.
Because
you
will
remember that the Supreme
Court in our country will have
to arbitrate and adjudicate
upon
disputes-constitutional
disputes between the Centre
and the Units as well as
between unit and unit. The
Executive is interested in many
of these questions and it is
very likely-more often than
not-that a particular matter
which is coming up before the
Supreme Court may be such
vital importance and interest
to the President or the
Executive that they might like
the Supreme Court to give a
particular decision upon that
matter.
65
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8.
12-10-1949 Salary of Judges
Shri Alladi Krishnaswami Ayyar
Shri Alladi Krishnaswami
Ayyar (Madras:
General):
Mr.President, Sir, in supporting
the article relating to the
salaries as regards the Judges
of the High court and of the
Supreme court under the new
Constitution, I should like to
state a few words in support of
the proposition as moved by
the Honourable Dr. Ambedkar.
The scale of salaries now
proposed is practically the
same as that proposed by the
Drafting Committee in the
Draft Constitution published in
February last year, with slight
alterations in regard to the
Judges of the Supreme Court a
free house being provided for,
and a slight reduction in the
salary of the Associate Judges.
In fixing the salary of the
Judges the committee was
quite alive, to the importance
of maintaining the dignity, the
efficiency
and
the
independence of the judiciary,
especially
in
a
Federal
Constitution where the highest
judiciary is called upon not
merely to decide ordinary
disputes between citizen and
citizen, and the State and the
citizen, but also to decide
questions
of
great
constitutional importance on
which would depend the future
development
of
the
Constitution.
.
We were anxious that the
66
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should be maintained, and we
felt that such independence is
best
secured
by
the
recruitment from the bar, and
we have had regard to the fact
that
you
cannot
expect
professional
gentlemen
to
accept a place on the bench
unless a decent remuneration
is provided for.

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1

In this case on the merits THE CORE QUESTION

This is because, on the merits the

1 So-called in the affidavit dated May, 2015 filed on

- Amongst all the Articles in the Constitution which deal

AGs Note-II (E)(III) reads as follows:III. In any event the

3 Article 76(1), Article 80(3) (Nomination by the

In two paragraphs at page-258 of the Debates in the

Dr. Ambedkar had

deliberately used the word dangerous at two places

First, that it would dangerous to leave the

it was dangerous to leave the appointments to

So what precisely did Dr. Ambedkar have in

At this point of time, it is difficult to say precisely what

However, for many years H.M. Seervai in his book

The relevant passages in Seervai, 4th Edition Vol.-III

The draft Article, therefore, steers a

With regard to the question of the

25.352. Since the legislative history of Article 217

4 C.A.D. Vol. 8 at p. 258.

25.353. The legislative history, in so far as it dealt

5 C.A.D. Vo,. 8 at p. 258.

25.355. A number of questions arose in

6 As for example, the convention of appointing the

25.356I have said that the question of the

25.363. We have seen that Article. 217(1) laid

25.364. It was suggested by D.A. Desai J. (on the

B. COMPOSITION OF THE HIGH COURT

8 Raj Kumar Yadav v. Samir Kumar Mahaseth 2005 (3)

(b) APPOINTMENT OF JUDGES

(c) S.P. GUPTA v. UNION OF INDIA

In 1982, the matter regarding appointment of the

26 See, Ch. IV, Sec.B(b), supra, for this Article of the

In India however, the judicial institutions, by

The Bench, (in Subhash Sharma) therefore,

32 AIR 1991 SC, at 645

BUT (it is submitted) that it stands negatived by

In the first Law Commission Report on Judicial

14th Law Commission Report (1958) Chaired by

11. Re: High Courts - We understand that

There was a solid basis for the weighty observations in paragraph 4 of

14. The explanation, perhaps, lies in what

A judge of the Supreme Court has stated as

15. Apart from this very disquieting feature

18. In order to avoid delays it would be

The 14th Report of the Law Commission on Judicial

Reforms (1958) the first after 125 years was

In the first authoritative decision of the

Supreme Court of India on this point (where the

In Special Reference No. 1 of 1964 (1965 (1) SCR 413 at

Government ever asked for a reconsideration of

observations were obiter and not binding.

(v)In the judgment in the First Judges Case (S.P. Gupta

But as was pointed out in the opening address of

(ix) The 121st Law Commission Report (1987) the Law

Commission chaired by Justice D. A. Desai [see

(including transfers of Judges) for High Courts and

The Commission was to have a preponderating

recommended for the appointment of Judges of

further stated: (in acknowledgement of the federal

Government of the day) in the Lok Sabha on 18 th

In the Affidavit filed by the Union of India in

the Second Judges Case (1993) it was categorically

This was so factually noted and recorded in the