B P SINGHAL VS UNION OF INDIA

 R.V Raveendran, J.- This writ petition under Article 32 of the Constitution of
India, raising a question of public importance involving the interpretation of
Article 156 of the Constitution, has been referred to the Constitution Bench, by
a two-Judge Bench of this Court on 24-1-2005.

 Term of office of Governor.-(1) The Governor shall hold office during the
pleasure of the President.

 6. The learned Senior Counsel clarified that the petitioner's submission is not
that a Governor has a fixed irremovable tenure of five years, but that there
should be some certainty of tenure so that he can discharge the duties and
functions of his constitutional office effectively and independently.

 But clause (3) is subject to clause (1) of Article 156 which provides that a
Governor holds office during the pleasure of the President.

 Norm 3-The order of removal is subject to judicial review: In a democracy

based on rule of law, no authority has any unfettered and unreviewable
discretion.

 Any order of premature removal of a Governor will be open to judicial review.

 It is impermissible to read any kind of limitations into the power under Article
156(1).

 The advice tendered by the Council of Ministers cannot be inquired into by

any court, having regard to the bar contained in Article 74(2).

 It was urged that on both these grounds, the removal of Governor is not
justiciable.

 The courts cannot countenance such a situation where the observance of the
law is left to the sweet will of the authority bound by it, without any redress if
the law is contravened.

 The view has been taken by the courts in many decisions that whenever there
is a public wrong or public injury caused by an act or omission of the State or
a public authority which is contrary to the Constitution or the law, any member
 of the public acting bona_fide and having sufficient interest can maintain an
action for redressal of such public wrong or public injury.

 14. A similar public interest litigation came up before a Constitution Bench of

this Court in Ranji Thomas v. Union of India 2000 2 SCC 81, seeking
intervention of this Court to restrain the President of India from "forcibly"
extracting resignations from various Governors and Lt. Governors.

 Insofar as Prayer (c) of the writ petition is concerned, it raises an important

public issue and involves the interpretation of Article 156 of the Constitution of
India, as at present advised, we do not think that we can deny locus to the
petitioner for raising that issue."

 19. In State of Bihar v. Abdul Majid 1954 SCR 786, another Constitution
Bench explained the doctrine of pleasure : (AIR p. 250, para 13)

 The powers of public authorities are essentially different from those of private
persons.

 26. The Constitution refers to offices held during the pleasure of the President
(without restrictions), offices held during the pleasure of the President (with
restrictions) and also appointments to which the said doctrine is not
applicable.

 The articles in the Constitution of India which refer to the holding of office
during the pleasure of the President without any restrictions or limitations are
Article 75(2) relating to Ministers, Article 76(4) relating to the Attorney General
and Article 156(1) relating to Governors.

 Similarly Articles 164(1) and 165(3) provides that the Ministers (in the States)
and Advocate General for the State shall hold office during the pleasure of the
Governor.

 Subject to the exceptions our Constitution, by Article 310(1), has adopted the
English common law rule that public servants hold office during the pleasure
of the President or Governor, as the case may be and has, by Article 311,
imposed two qualifications on the exercise of such pleasure.

 "The rule of English law pithily expressed in the Latin phrase durante bene
placito ('during pleasure') has not been fully adopted either by Section 240 of
the Government of India Act, 1935 or by Article 310(1) of the Constitution.
 30. The Constitution of India also refers to other offices whose holders do not
hold office during the pleasure of the President or any other authority.

 As a result when the Constitution of India provides that some offices will be
held during the pleasure of the President, without any express limitations or
restrictions, it should necessarily be read as being subject to the
"fundamentals of constitutionalism".

 In a constitutional set-up, when an office is held during the pleasure of any

authority, and if no limitations or restrictions are placed on the "at pleasure"
doctrine, it means that the holder of the office can be removed by the authority
at whose pleasure he holds office, at any time, without notice and without
assigning any cause.

 36. In State of Rajasthan v. Union of India 1977 3 SCC 592, a Constitution

Bench of this Court described the position of the Governor : (SCC p. 625,
para 67)

 The position of the Governor as the constitutional head of a State as a unit of

the Indian Union as well as the formal channel of communication between the
Union and the State Government, who is appointed under Article 155 of the
Constitution 'by the President by warrant under his hand and seal', was also
touched in the course of arguments before us.

 It will be seen from this enumeration of the constitutional powers and

functions of the Governor that he is not an employee or servant in any sense
of the term.

 The Governor is the Head of the State and holds a high constitutional office
which carries with it important constitutional functions and duties and he
cannot even by stretching the language to a breaking point, be regarded as
an employee or servant of the Government of India. ...

 There can be no doubt that the office of Governor is not an employment under
the Government of India and it does not come within the prohibition of clause
(d) of Article 319.

 42. In S.R Bommai v. Union of India 1994 3 SCC 1, a nine-Judge Bench of

this Court described the Constitution of India as quasi-federal, being a mixture
of federal and unitary elements leaning more towards the latter.
 The agenda or ideology of a political party in power in the State may not be in
sync with the agenda or ideology of the political parties in the ruling coalition
at the Centre, or may not be in sync with the agenda or ideology of some of
the political parties in the ruling coalition at the Centre, but may be in sync
with some other political parties forming part of the ruling coalition at the
Centre.

 46. We reject the contention of the respondents that Governors should be in

"sync" with the policies of the Union Government or should subscribe to the
ideology of the party in power at the Centre.

 if the Constitution remains in principle the same as we intend that it should be,
that the Governor should be a purely constitutional Governor, with no power
of interference in the administration of the province,..."

 52. Clause (1) of Article 310 provides that a person serving the Union
Government holds office during the pleasure of the President and a person
serving a State Government holds office during the pleasure of the Governor.

 Article 310 itself makes it clear that though a person serves the Union or a
State during the pleasure of the President/Governor, the power of removal at
pleasure is subject to the other express provisions of the Constitution; and
Article 311 contains such express provision which places limitations upon the
power of removal at pleasure.

 Clause (3) prescribing a tenure of five years for the office of a Governor, is
made subject to clause (1) which provides that the Governor shall hold office
during the pleasure of the President.

 It is not possible to accept the contention that clause (1) of Article 156 is
subjected to an express restriction or limitation under Clause (3) of Article
156.

 The amendment suggests that the Governor shall be removable as the

President pleases, that is, a Governor shall hold office during the pleasure of
the President and that whenever he incurs the displeasure of the President,
he will be out.

 When the President has appointed a man, in the fitness of things the
President must have the right to remove him when he is displeased, but to
remove the evil that has now crept in by doing away with election for the office
 of the Governor, it would have been much better if the State Legislature too
had been given the power to impeach him not only for violation of the
Constitution but also for misbehaviour.

 It seems to me that when you have given the general power, you also give the
power to the President to remove a Governor for corruption, for bribery, for
violation of the Constitution or for any other reason which the President no
doubt feels is a legitimate ground for the removal of the Governor.

 It seems quite unnecessary to burden the Constitution with all these

limitations stated in express terms when it is perfectly possible for the
President to act upon the very same ground under the formula that the
Governor shall hold office during his pleasure.

 I think that it is unnecessary to categorise the conditions under which the

President may undertake the removal of the Governor."

 A difficulty arises from the fact that the Governor holds office during the
pleasure of the President and can be removed by him.

 As the President acts on the advice of his ministry, it may be contended that if
the Governor takes action contrary to the policy of the Union Ministry he
would risk being removed from his post as Governor, and he is likely to follow
the advice of the Union Government.

 A Governor cannot be removed on the ground that he is not in sync or refuses

to act as an agent of the party in power at the Centre.

 Though Governors, Ministers and the Attorney General, all hold office during
the pleasure of the President, there is an intrinsic difference between the
office of a Governor and the offices of Ministers and the Attorney General.

 While no cause or reason be disclosed or assigned for removal by exercise of

such prerogative power, some valid cause should exist for the removal.

 While we do not accept the contention that an order under Article 156 is not
justiciable, we accept the contention that no reason need be assigned and no
cause need be shown and no notice need be issued to the Governor before
removing a Governor.

 73. In State of Rajasthan v. Union of India, this Court (Bhagwati, J. as he then

was) held: (SCC pp. 660-62, para 149)
 But merely because a question has a political complexion, that by itself is no
ground why the Court should shrink from performing its duty under the
Constitution if it raises an issue of constitutional determination. ...

 So long as a question arises whether an authority under the Constitution has

acted within the limits of its power or exceeded it, it can be decided by the
Court.

 Where there is manifestly unauthorised exercise of power under the

Constitution, it is the duty of the Court to intervene.

 The principle that is applied by the courts is that in spite of a finality clause it is
open to the court to examine whether the action of the authority under
challenge is ultra vires the powers conferred on the said authority.

 A Constitution Bench of this Court referred to various decisions of the

American Supreme Court including Baker v. Carr 7 L Ed 2d 663 and Powell v.
McCormack 23 L Ed 2d 491 where the question whether the "political
thickets" doctrine was a restraint on judicial power, was considered, and held
that certain controversies previously immune from adjudication, were
justiciable, apart from narrowing the operation of the doctrine in other areas.

 While the President or the Governor may be the sole judge of the sufficiency
of facts and the propriety of granting pardons and reprieves, the power being
an enumerated power in the Constitution, its limitations must be found in the
Constitution itself.

 Though the sufficiency of the material could not be questioned, legitimacy of

the inference drawn from such material was open to judicial review.

 The judicial review of withdrawal of pleasure, is limited in the case of a

Governor whereas virtually nil in the case of a Minister or an Attorney
General.

 Even though under Article 156(1) the removal is at the pleasure of the
President, the exercise of such pleasure is restricted by the requirement that it
should be on the advice of the Council of Ministers.

 Where the aggrieved person is not able to establish a prima facie instance of
arbitrariness or mala fides, in his removal, the Court will refuse to interfere.
  The position is that the decision is open to judicial review but in a very limited
extent.

 The President can remove the Governor from office at any time without
assigning any reason and without giving any opportunity to show cause.

 It follows that change in government at the Centre is not a ground for removal
of Governors holding office to make way for others favoured by the new
Government

RAM JAWAYA VS STATE OF PUNJAB

 The petitioners pray for writs in the nature of mandamus directing the Punjab
Government to withdraw the notifications which have affected their rights.

 The result was that the Government at this time practically took upon
themselves the monopoly of publishing the textbooks on some of the subjects
and with regard to the rest also, they reserved for themselves a certain royalty
upon the sale proceeds.

 It is against these notifications of 1950 and 1952 that the present petition
under Article 32 of the Constitution is directed and the petitioners pray for
withdrawal of these notifications on the ground that they contravene the
fundamental rights of the petitioners guaranteed under the Constitution.

 His second contention is, that assuming that the State could create a
monopoly in its favour in respect of a particular trade or business, that could
be done not by any executive act but by means of a proper legislation which
should conform to the requirements of Article 19(6) of the Constitution.

 It is argued that it was not open to the Government to deprive the petitioners
of their interest in any business or undertaking which amounts to property
without authority of law and without payment of compensation as is required
under Article 31 of the Constitution.

 7. Article 73 of the Constitution relates to the executive powers of the Union,

while the corresponding provision in regard to the executive powers of a State
is contained in Article 162.
 Article 172 clearly indicates that the powers of the State executive do extend
to matters upon which the State Legislature is competent to legislate and are
not confined to matters over which legislation has been passed already.

 These provisions of the Constitution do not lend any support to Mr Pathak's

contention.

 "The executive power of the Commonwealth is vested in the Queen and is

exercised by the Governor-General as the Queen's representative and
extends to the execution and maintenance of the Constitution and of the laws
of the Commonwealth."

 Section 61 of the Constitution Act according to which the executive power of

the Commonwealth extended to the maintenance of the Constitution and of
the laws of the Commonwealth and held that there was nothing in the
Constitution or any law of the Commonwealth which enabled the
Commonwealth to establish and maintain clothing factories for other than
Commonwealth purposes.

 The running of a transport business was not per_se outside the ambit of the
executive authority of the State.

 The executive Government can never go against the provisions of the

Constitution or of any law.

 In the Indian Constitution we have the same system of parliamentary

executive as in England and the Council of

 As we have said already, the executive Government are bound to conform not
only to the law of the land but also to the provisions of the Constitution.

 The Indian Constitution is a written Constitution and even the legislature

cannot override the fundamental rights guaranteed by it to the citizens.

 Even if the acts of the executive are deemed to be sanctioned by the

legislature they can be declared to be void and inoperative if they infringe any
of the fundamental rights of the petitioners guaranteed under Part III of the
Constitution.

 On the one hand there was nothing but a chance or prospect which the
publishers had of having their books approved by the Government, on the
other hand the Government had the undisputed right to adopt any method of
 selection they liked and if they ultimately decided that after approving the text
books they would purchase the copyright in them from the authors and others
provided the latter were willing to transfer the same to the Government on
certain terms, we fail to see what right of the publishers to carry on their trade
or business is affected by it.

 As the petitioners have no fundamental right under Article 19(1)(g) of the

Constitution, the question whether the Government could establish a
monopoly without any legislation under Article 19(6) of the Constitution is
altogether immaterial.

INDIRA GANDHI VS RAJ NARAIN

 The appeals arise out of the judgment of the High Court of Allahabad dated
June 12, 1975.

 The High Court held that the appellant held herself out as a candidate from
December 29, 1970 and was guilty of having committed corrupt practice by
having obtained the assistance of Gazetted Officers in furtherance of her
election prospects.

 The High Court held the appellant to be disqualified for a period of six years
from the date of the order as provided in Section 8(a) of the 1951 Act.

 9. The fifth clause states that any appeal or cross appeal against any such
order of any court as is referred to in clause (4) pending immediately before
the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975,
before the Supreme Court shall be disposed of in conformity with the
provisions of clause (4).

 Clause (4) of Article 329-A is said to be exercise of a purely judicial power

which is not included in the constituent power conferred by Article 368.

 The jurisdiction of judicial determination is taken away, and the democratic

character of the Constitution is destroyed.

 The basic structure of equality is violated by providing that those who hold
office of Prime Minister and Speaker are above law although election laws
were there.
 Exercise of judicial power or of a purely executive power is not power of
amendment of the Constitution.

 The Constitution may be amended to change constitutional provisions but the

constituent power cannot enact that a person is declared to be elected.

 The jurisdiction of this Court and of High Courts under our Constitution is dealt
with by articles under the heads of the Union Judiciary and the State
Judiciary.

 The court did not decide an election dispute but as a custodian of judicial
power judged whether the House was acting within its power.

 The House found that the exercise of its privilege could be submitted to a
tribunal constituted by law to secure impartiality in the administration of justice
according to the laws of the land.

 Special emphasis is laid on Article 102(1)(d) of the Constitution which is

amended by the Constitution (Thirty-ninth Amendment) Act.

 37. In Piare Dusadh case the Special criminal courts (Repeal) Ordinance,
1943 which conferred validity and full effectiveness on sentences passed by
special courts which functioned under the Special criminal courts Ordinance,
1942 was challenged.

 The Federal Court did not accept the contention on the ground that in India
the Legislature has enacted laws providing that suits which had been
dismissed on a particular view of the law must be restored and retried.

 Our Federal Court held that once the decisions of the special courts were held
void for want of jurisdiction the Legislature created those special courts and
authorised them to try cases and pass sentences.

 39. The effect of validation is to change the law so as to alter the basis of any
judgment, which might have been given on the basis of old law and make the
judgment ineffective.

 If the matter is pending in appeal, the appellate court has to give effect to the
altered law and reverse the judgment.

 If a competent court has found that a particular tax or levy has been imposed
by a law, which is void because the Legislature passing the law was not
 competent to pass the law, then the competent Lpgislature has validated the
tax or levy by a validation Act involving a re-enactment of the invalid law.

 Where the competent Legislature has passed a law which is contrary to any of
the fundamental rights in Part III of the Constitution and the law has been
declared void by a competent court, the appropriate Legislature has passed a
retrospective law validating the actions taken under the old invalid law by
curing the defects in the old law so as to make the new law consistent with
Part III of the Constitution.

 One of the objects of the ordinance was to enact a presumption in the

ordinance itself in favour of detention orders to preclude their being
questioned in courts of law and to take away or limit the power of the High
Court to make orders under Section 491 of the Criminal Procedure Code.

 It was said that the legislative authority only passed the law and the disposal
of the particular case could remain the function of the court.

 Section 10(2) of the ordinance was said not to leave it to the court to apply the
rule of law to the decision of cases but to discharge all pending proceedings.

 Our Federal Court noticed the distinction between a legislative act and the
judicial act, and said "a direction such a proceeding is discharged is clearly a
judicial act and not an enactment of law".

 42. Counsel on behalf of the respondent contended that the constituent power
could deal with amendments of the Constitution, but could not exercise
constituent power in relation to validating an election.

 44. In Bond case the House claimed additional power to disqualify a member
on grounds other than those stated in the Constitution.

 Under the statute in question the Federal District Court had jurisdiction over
all civil actions where controversy arises under the Constitution.

 Where a power is exercised by one organ, which is not committed to that

particular organ of the State and such exercise of power is violative of a
constitutional provision the matter becomes cognizable by courts.

 In the Australian Constitution also the judicial power is located in the court.
 There is no question of any separation of powers being involved in matters
concerning elections and election petitions.

 If the Legislature has to fix the amount or lay down the principle for fixation of
amount the question will arise as to whether this is exercise of judicial power.

 The distinction between constituent power and legislative power is always to

be borne in mind because the constituent power is higher in norm.

 It only means that the appropriate body making the law satisfied itself and
determines conclusively that principles of equality have not been violated.

 58. If no law prior to the Constitution (Thirty-ninth Amendment) Act will apply
to election petitions or matters connected .

 If the constituent, power became itself the forum to decide the disputes the
constituent power by repealing the law in relation to election petitions and
matters connected therewith did not have any petition to seize upon to deal
with the same.

 The constituent power did not have any law to apply to the case, because the
previous law did not apply and no other law was applied by clause (4).

 The validation of the election in the present case is not by applying any law
and it offends rule of law.

 Judicial power in the sense of the judicial power of the State is vested in the
Judiciary.

 Judicial power has lain in the hands of the Judiciary prior to the Constitution
and also since the Constitution.

 The constituent power can exercise judicial power but it has to apply law.

 64. Clause (5) in Article 329-A states that an appeal against any order of any
court referred to in clause (4) pending, before the commencement of the
Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court,
shall be disposed of in conformity with the provisions of clause (4).

 67. The constitutional position of the two Houses of Parliament is governed by

the provisions of Articles 79 and 81 of the Constitution.
 Any business transacted in a session of such truncated House cannot be
regarded in law as a session of a House.

 68. The mere fact that a person who is under unconstitutional and illegal
detention may be deprived of his right to move a court to secure his release
from such illegal detention by means of a Presidential Order under Article 359
is said by the respondent not to render the detention of a person either legal
or constitutional, and such a detenu must be provided an opportunity to
participate in the proceedings of the House.

 The Court held that if that plea was well-founded, the last clause of the
Presidential Order was not satisfied, and the bar created by it suspending the
citizen's fundamental rights under Articles 14, 21 and 22 could not be pressed
into service by the respondents.

 The High Court declared the election of the appellant to be void.

 The High Court also held the appellant to be disqualified for a period of six
years from the date of the order.

 93. Relying on the provisions introduced by the Amendment Act, 1975, it is

contended on behalf of the appellant that she will be regarded as a candidate
only from February 1, 1971, namely, the date when she has been duly
nominated as a candidate at her election, and the finding of the High Court
cannot be sustained.

 It is contended that from January 14, 1971 Yashpal Kapur was not a
government servant.

 Section 100(1)(b) of the 1951 Act enacts that if the High Court is of opinion
that any corrupt practice has been committed by a returned candidate or his
election agent or by any other person with the consent of a returned candidate
or his election agent, the High Court shall declare the election of the returned
candidate to be void.

 The service rendered by government servants for construction of rostrums

and arrangements for supply of power for loudspeakers according to the
contention of the appellant could not be considered as assistance for the
furtherance of the prospects of the election of the appellant.

 That question has to be examined before the appellant's contentions can be

answered.
 101. The respondent in cross-appeal challenged the findings of the High
Court on Issue 9 and contended that the High Court should have held that the
election expenses of the appellant exceeded the limit.

 The respondent also challenged the finding of the High Court with regard to
Issue 6 and contended that the High Court should have held that the symbol
of cow and calf was a religious symbol and the appellant committed corrupt
practice as defined in Section 123(3) of the 1951 Act.

 Dal Bahadur Singh, President, District Congress Committee wrote a letter to

the District Election Officer intimating that 23 vehicles had been engaged by
the District Congress Committee for election work in Rae Bareli, Amethi and
Ram Sanehi Ghat constituencies, and the vehicles should be derequisitioned.

 It was contended that because Yashpal Kapur was the election agent of the
appellant and he moved for the derequisition of the vehicles it should be
inferred that the vehicles were engaged for the election of the appellant.

 The High Court also correctly found that there was no evidence to show that
Yashpal Kapur made any propaganda from the vehicles in any manner for the
purpose of the election.

 The High Court held that Rs 16,000 could only be added to the election
expenses of the appellant consisting of Rs 6400 for four rostrums and Rs
9600 for six rostrums.

 The cost of rostrums cannot be added to the election expenses of the

appellant.

 109. The respondent contended that Exhibit 118 which was the bank account
of the District Congress Committee showed on the one hand that there was
deposit of Rs 69,930 on March 4, 1971 and on the other there was a
withdrawal of Rs 40,000 on March 4, 1971 and of Rs 25,000 on March 6,
1971, and the sum of Rs 65,000 should be added to the election expenses of
the appellant.

 113. Counsel for the respondent relied on the recent decision of this Court in
Kanwar Lal Gupta v. Amarnath Chawla 1975 3 SCC 646 in support of the
proposition that there has been no change in law and if expenses incurred by
a political party can be identified with the election of a candidate then that
 expenditure is to be added to the election expenses of a candidate as being
authorised by him.

 There is also no finding in the present appeals that any expenses incurred by
a political party can be identified with the election of the appellant.

 114. Counsel for the respondent contended that the judgment of the High
Court should be reversed with regard to election expenses of the appellant on
three counts.

 116. The respondent's submission is that the appellant was the Prime Minister
at the time of the election, and there was a big campaign and the expenses
were enormous.

 The Court said that the position in law could not be at all different if the father
had given those employees a holiday on full pay and they voluntarily worked
in connection with the election of the appellant.

 124. The contention of the respondent is that when the power of amending
the Constitution cannot be exercised to damage or destroy the basic features
of the Constitution or the essential elements of the basic structure or
framework thereof, the limitations on the exercise of legislative power will
arise not only from the express limitations contained in the Constitution, but
also from necessary implication either under articles or even in the preamble
of the Constitution.

 The power to resolve doubts and disputes about the validity of elections of
Parliament and State Legislatures has been vested by the Constitution in the
judicial organ competent to decide election petitions and it is not open to the
legislature to take away and interfere with these exclusive functions of the
Judiciary by any legislation amending the law governing the election
adjudicated by the Judiciary.

 The insertion of these Acts in the Ninth Schedule will not confer any immunity
on the legislative measure if basic features of the Constitution are damaged or
destroyed on the ground that the provisions contravene Part III of the
Constitution.

 Fourth, any amendment of the law with retrospective operation governing an

election which has already been held necessarily introduces an element of
unfairness and brings about a denial of equality among rival candidates.
 The Amendment Act, 1975 destroys and damages free and fair election by
allowing candidates to commit corrupt practices prior to the date of
nomination.

 The Constitution can negatively determine that the laws must not have a
certain content e.g. that the Parliament may not pass any statute which
restricts religious freedom.

 The crucial point is that unlike the American Constitution where rights are
couched in wide general terms leaving it to the courts to evolve necessary
limitations our Constitution has denied due process as a test of invalidity of
law.

 137. The constitutional validity of a statute depends entirely on the existence

of the legislative power and the express provision in Article 13.

 The well known pattern of all validation Acts by which the basis of judgments
or orders of competent courts and tribunals is changed and the judgments
and orders are made ineffective is to be found in M.P.V Sundararamier & CO.
v. State of A.P.28 The power of the legislature to pass a law includes a power
to pass it retrospectively.

 139. A contention was advanced that the legislative measure could not
remove the disqualification retrospectively, because the Constitution
contemplates disqualification existing at certain time in accordance with law
existing at that time.

 There is no basic structure or basic feature or basic framework with regard to

the time when under the election laws a person is a candidate at the election.

 It is apparent that the power to specify permissible symbols is vested by Rule

5 in the Election Commission.

 There can be no doubt that the power of evolving permissible symbols is

exclusively vested in the Election Commission.

 In the matter of evolving of the permissible symbols, the jurisdiction is vested

in the Election Commission.

 It is impossible to hold that because one party has not been given the symbol
of cow, calf and milkmaid the symbol of cow and calf becomes a religious
symbol.
 157. The finding of the High Court that the appellant held herself out to be a
candidate from December 29, 1970 is set aside because the law is that the
appellant became a candidate only with effect from the date of nomination
which was February 1, 1971.

 The finding of the High Court that the resignation of Yashpal Kapur did not
become effective until it was notified in the Gazette is also set aside because
under the law the resignation became effective from January 14, 1971.

 The finding of the High Court that the appellant committed corrupt practice in
breach of Section 123(7) of the 1951 Act is also repelled by the legislative
changes and is set aside.

 Khanna, J., (concurring) - Civil Appeal No. 887 of 1975 has been filed by Smt
Indira Nehru Gandhi (hereinafter referred to as "the appellant") against the
judgment of the Allahabad High Court whereby election petition filed by Shri
Raj Narain Respondent 1 (hereinafter referred to as "the respondent") to
question the election of the appellant to the Lok Sabha from Rae Bareli
parliamentary constituency was allowed and the election of the appellant was
declared void.

 163. During the pendency of the election petition in the High Court, Section 77
of the RP Act was amended by an Ordinance which was subsequently
replaced by Act 58 of 1974 (hereinafter referred to as the 1974 amending Act
or Act 58 of 1974).

 On Issue 9 the finding of the High Court was that the total amount of
expenditure incurred or authorized by the appellant or her election agent.

 together with the expenditure proved to have been incurred by the party or by
the State Government in connection with the appellant's election amounted to
Rs 31,976.47 which was sufficiently below the prescribed limit of Rs 35,000.

 As the respondent was found to have failed to prove that the expenses of the
appellant or her election agent, together with the expenses found to have
been incurred by the political party and the State Government in connection
with the appellant's election exceeded the prescribed limit, the High Court
held that no ground had been made out for inquiring into the validity of the
1974 amending Act.

 The writ petition filed by the respondent was dismissed.

 166. As a result of its findings on Issue 3, Issue 1 read with additional Issue 1,
additional Issue 2 and additional Issue 3, the High Court allowed the petition
and declared the election of the appellant to the Lok Sabha to be void.

 The appellant, it was observed, stands disqualified for a period of six years
from the date of the order in accordance with Section 8-A of the RP Act.

 Parliament passed the Election Laws (Amendment) Act, 1975 (Act 40 of

1975)(hereinafter referred to as "1975 Amending Act" or "Act 40 of 1975") and
the same was published in the Gazette of India Extraordinary dated August 6,
1975.

 (5) Any appeal or cross appeal against any such order of any court as is
referred to in clause (4) pending immediately before the commencement of
the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme
Court shall be disposed of in conformity with the provisions of clause (4).

 171. Section 5 of the above Constitution Amendment Act inserted in the Ninth
Schedule to the Constitution a number of enactments including the RP Act as
also Acts 58 of 1974 and 40 of 1975.

 Mr Sen also adds that notwithstanding the order made by the High Court
before such commencement declaring the election of the appellant to be void,
her election shall continue to be valid in all respects and any such order and
any finding on which such order is based shall be and shall be deemed
always to have been void and of no effect.

 Submission is made that in view of the mandate contained in clause (5) of the
article, the appeal filed by the appellant and the cross appeal filed by the
respondent should be disposed of in conformity with the provisions of clause
(4).

 "(1) The above constitutional amendment affects the basic structure or

framework of the Constitution and is beyond the amending power under
Article 368.

 The law made under clause (1) of Article 329-A would not be subject to clause
(e) of clause (1) of Article 102, according to which a person shall be
disqualified for being chosen as and for being, a member of either House of
Parliament if he is so disqualified by or under any law made by
 It is further provided that the election of such person can be called in question
under any such law as is referred to in clause (1) of Article 329-A. Clause (4)
is the crucial clause for the present case.

 According to the clause, no law made by Parliament before the

commencement of the Constitution (Thirty-ninth Amendment) Act insofar as it
relates to election petitions and matters connected therewith, shall apply or
shall be deemed ever to have applied to or inrelation to the election of any of
the persons mentioned above to either House of

 It is further provided that notwithstanding any order made by any court before
the commencement of the Constitution (Thirty-ninth Amendment) Act
declaring such election to be void, such election shall continue to be valid in
all respects and any such order and any finding on which such order is based
shall be and shall be deemed always to have been void and of no effect.

 It was held that the words "amendment of the Constitution" in Article 368
could not have the effect of destroying or abrogating the basic structure of the
Constitution.

 176. Before dealing with the question as to whether the impugned

amendment affects the basic structure of the Constitution, I may make it clear
that this Court is not concerned with the wisdom behind or the propriety of the
impugned constitutional amendment.

 Mr Shanti Bhushan asserts that the sittings of the Houses of Parliament in

which the above mentioned two measures were passed were not legal
sittings.

 Gazette copies of the Election Laws Amendment Act, 1975 (Act 40 of 1975)
and the Constitution (Thirty-ninth Amendment) Act, 1975 have been produced
before us.

 184. I am of the view that the constitutional validity of the Constitution

Amendment Act and the 1975 Act amending the Representation of the People
Act cannot be assailed on the ground that some members of Parliament were
prevented because of their detention from attending and participating in the
proceedings of the respective Houses of Parliament.

 According to the part, no law made by Parliament before the commencement

of the Constitution (Thirty-ninth Amendment) Act, 1975 insofar as it relates to
 the election petitions and matters connected therewith shall apply and shall be
deemed ever to have applied to or in relation to the election of any such
person as is referred to in clause (1) to either House of Parliament.

 It is well settled that it is permissible for a legislature to make a law with

retrospective effect.

 The power of a legislature to make a law with retrospective effect is not

curtailed or circumscribed by the fact that the subject-matter of such
retrospective law is a matter relating to an election dispute (see State of
Orissa v. Bhupendra Kumar Bose AIR 1962 SC 945 and Kanta Kathuria v.
Manak Chand Surana 1969 3 SCC 268).

 If the previous law insofar as it relates to the election petitions and matters
connected therewith was not to apply to the election of the Prime Minister and
the Speaker, it would necessarily follow that the election of the appellant who
was the Prime Minister would not be deemed to be void or ever to have
become void on the ground on which such election could be declared to be
void or has before such commencement been declared to be void under any
such law.

 If the previous law insofar as it relates to the election petitions and matters
connected therewith was not to apply to the election of the appellant, the High
Court shall be deemed to have had no jurisdiction to decide the election
petition challenging the election of the appellant.

 The law under which the election of the appellant was declared to be void as
a result of the amendment was also made inapplicable with retrospective
effect to the dispute relating to the election of the appellant.

 190. A declaration that an order made by a court of law is void is normally part
of the judicial function and is not a legislative function.

 It has been held that a legislature while it is entitled to change with

retrospective effect the law which formed the basis of the judicial decision, it is
not permissible to the legislature to declare the judgment of the court to be
void or not binding (see Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality43, Janapada Sabha, Chhindwara v. Central Provinces Syndicate
Ltd.44, Municipal Corporation of the City of Ahmedabad v. New Shorock Spg.
 In the case of Don John Douglas Liyange v. Queen 1967 AC 259 the Judicial
Committee struck down as ultra vires and void the provisions of the Criminal
Law (Special Provisions) Act, 1962 on the ground that they involved the
usurpation and infringement by the legislature of the judicial powers
inconsistent with the written constitution of Ceylon.

 Although legislatures or the constituent authority can make laws, including

those for creation of courts, they cannot, according to the submission,
exercise judicial functions by assuming the powers of a super court in the
same way as the courts cannot act as a super legislature.

 The declaration made in part (iii) of clause (4) that the election of the appellant
was to be valid in all respects was tantamount in the very nature of things to
the repelling of the grounds advanced by the respondent to challenge the
election of the appellant.

 Question arises as to what, if any, was the law which was applied in repelling
the grounds advanced by the respondent to challenge the election of the
appellant.

 So far as the existing law relating to election disputes was concerned, part (i)
of clause (4) expressly stated that such a law would not apply to the petition
filed by the respondent to challenge the election of the appellant.

 The result is that so far as the dispute relating to the election of the appellant
is concerned, a legal vacuum came into existence.

 It was open to the constituent authority to fill that vacuum by prescribing a law
which was to govern the dispute arising out of the petition filed by the
respondent to challenge the election of the appellant.

 There is nothing in clause (4) to indicate that the constituent authority applied
any law in declaring the election of the appellant to be valid and if so, what
was that law.

 197. I am unable to accede to the argument that the constituent authority kept
in view the provisions of the RP Act as amended by Acts 58 of 1974 and 40 of
1975 and their impact on the challenge to the election of the appellant in
declaring the election of the appellant to be valid.

 The difficulty in accepting this argument is that in part (i) of clause (4) the
constituent authority expressly stated that the previous law, namely, the RP
 Act as amended insofar as it related to election petitions and matters
connected therewith was not to apply so far as the challenge to the election of
the appellant was concerned.

 It is also difficult to agree that the constituent authority took into account some
other unspecified law or norm in declaring the election of the appellant to be
valid.

 There is nothing in clause (4) to indicate that the constituent authority took
into account some other law or norm and if so, what that law or norm was.

 198. the Court in the case of Kesavananda Bharati held by majority that the
power of amendment of the Constitution contained in Article 368 does not
permit altering the basic structure of the Constitution.

 Disputes arise with regard to the validity of elections.

 It is further plain that if the validity of the election of a candidate is challenged

on some grounds, the said election can be declared to be valid only if we
provide a forum for going into those grounds and prescribe a law for
adjudicating upon those grounds.

 200. Besides other things, election laws lay down a code of conduct in
election matters and prescribe, what may be called, rules of electoral morality.

 201. The vice of clause (4) of Article 329-A is not merely that it makes the
previous law contained in the RP Act as amended by Acts 58 of 1974 and 40
of 1975 inapplicable to the challenge to the election of the appellant, it also
makes no other election law applicable for resolving that dispute.

 Without even prescribing a law and providing a forum for adjudicating upon
the grounds advanced by the respondent to challenge the election of the
appellant, the constituent authority has declared the election of the appellant
to be valid.

 203. The vice of declaration contained in part (iii) of clause (4) regarding the
validity of the election of the appellant is aggravated by the fact that such a
declaration is made after the High Court which was then seized of jurisdiction
had found substance in some of the grounds advanced by the respondent and
had declared the election of the appellant to be void.
 To put a stamp of validity on the election of a candidate by saying that the
challenge to such an election would not be governed by any election law and
that the said election in any case would be valid and immune from any
challenge runs counter to accepted norms of free and fair elections in all
democratic countries.

 204. It has been argued on behalf of the appellant that the grounds on
account of which the election of the appellant had been held to be void by the
High Court were of a technical nature.

 205. Another argument advanced in support of the validity of the amendment

is that we should take it that the constituent authority constituted itself to be
the forum for deciding the dispute relating to the validity of the election of the
appellant, and after considering the facts of the case, declared the election of
the appellant to be valid.

 There is nothing before us as to indicate that the constituent authority went

into the material which had been adduced before the High Court relating to
the validity of the election of the appellant and after considering that material
held the election of the appellant to be valid.

 The vice of clause (4) would still lie in the fact that the election of the appellant
was declared to be valid on the basis that it was not to be governed by any
law for settlement of election disputes.

 Clause (4) of Article 329-A can be held to strike at the basis of free and fair
elections.

 207. I agree that it is not necessary in a democratic set-up that disputes

relating to the validity of the elections must be settled by courts of law.

 The question with which we are concerned is whether it is permissible in a

democratic set-up that a dispute with regard to the validity of a particular
election shall not be raised before any forum and shall not be governed by law
and whether such an election can be declared, despite the existence of a
dispute relating to its validity, to be valid by making the existing law relating to
election disputes not applicable to it and also by not applying any other
election law to such a dispute.

 As it is, what we find is that so far as the dispute relating to the election of the
appellant is concerned, neither the previous law governing the election of
 persons holding the office of the Prime Minister is to apply to it nor the future
law to be framed under clause (1) of Article 329-A governing the election of
persons holding the office of Prime Minister is to apply to this dispute.

 The Constitution of India is so detailed that some of the matters which in a

brief Constitution like that of the United States of America are dealt with by
statutes form the subject-matter of various articles of our Constitution.

 There is in a constitutional law, as there is in the very idea of law, some

element of generality or general application.

 If there is amendment of some provision of the Constitution and the

amendment deals with matters which constitute constitutional law, in the
normally accepted sense, the court while deciding the question of the validity
of the amendment would have to find out, in view of the majority opinion in
Kesavananda Bharati case, as to whether the amendment affects the basic
structure of the Constitution.

 Its avowed object is to confer validity on the election of the appellant to the
Lok Sabha in 1971 after that election had been declared to be void by the
High Court and an appeal against the judgment of the High Court was
pending in this Court.

 If the constituent authority in its wisdom has chosen the validity of a disputed
election as the subject-matter of a constitutional amendment, this Court
cannot go behind that wisdom.

 I am of the view that clause (4) should be struck down in its entirety.

 So far as the appeal is concerned, it has been argued by Mr Sen on behalf of

the appellant that the grounds on which the election of the appellant has been
declared by the High Court to be void no longer hold good in view of the
amendment in the RP Act by Act 40 of 1975.

 It is obvious that the provisions of Sections 6, 7 and 8 of Act 40 of 1975 would

be attracted to this case.

 The question as to when a person holds himself out as candidate loses its
importance in the context of the new definition.

 The result is that even if the finding of the High Court that the appellant
obtained and procured the assistance of Yashpal Kapur during the period
 from January 7 to 24, 1971 were assumed to be correct, the appellant shall
not be deemed to have committed corrupt practice under Section 123(7) of
the RP Act.

 Any assistance of Yashpal Kapur which the appellant was alleged to have
obtained or procured on or after January 14, 1971 would not make her guilty
of corrupt practice under Section 123(7) of the RP Act.

 I would hold that subject to the question as to whether the provisions of Act 40
of 1975 are valid, the grounds on which the High Court has declared the
election of the appellant to be void no longer hold good for declaring the said
election to be void.

 It is apparent in view of the above proviso that the symbol of cow and calf
which was allotted to the appellant shall not be deemed to be a religious
symbol or a national symbol for the purpose of Section 123(3) of the RP Act.

 It is urged that a change in the election law with retrospective effect strikes at
the principle of free and fair elections.

 The Court of appeal in such an event gives full effect to the amended law
even though such amendment has been made after the decision of the
original court.

 Apart from the field in which there is a constitutional prohibition for giving
retrospective effect to a law, power of making amendment in law with
retrospective effect has now become a part of normal legislative process.

 Election laws are a part of the normal legislative process and what is
permitted in the matter of ordinary legislation would also be permissible in the
matter of legislation relating to elections unless there be some provision in the
Constitution which forbids such a course.

 We have not been referred to any provision in the Constitution which has the
effect of creating a bar in the way of the legislature making a law relating to
elections with retrospective operation.

 The matter is not res integra because there have been two cases wherein this
Court has upheld the validity of the law making amendments in election laws
with retrospective effect.

 The High Court set aside the elections.

 The Governor promulgated an Ordinance validating the elections to the
Cuttack Municipality and validating the electoral rolls prepared in respect of
various municipalities.

 One of the grounds which weighed with the High Court in striking down the
Ordinance was that it contravened Article 14 of the Constitution.

 If Mr Bose was the only litigant affected by the decision and as such formed a
class by himself, it would have been open to the legislature to make a law
only in respect of his case.

 We are satisfied the High Court was in error in coming to the conclusion that
Section 4 contravenes Article 14 of the Constitution."

 The election of the appellant was challenged inter alia on the ground that the
appellant held an office of profit within the meaning of Article 191(1) of the
Constitution.

 The High Court set aside the election of the appellant.

 Any law that can be made prospectively may be made with retrospective
operation except that certain kinds of laws cannot operate retrospectively.

 It has been held in numerous cases by this Court that the State Legislatures
and Parliament can legislate retrospectively subject to the provisions of the
Constitution.

 230. The above two authorities of this Court clearly lend support for the view
that it is permissible to amend a law relating to elections with retrospective
operation.

 Mr Shanti Bhushan has criticised the observations of Sikri, J. reproduced

above on the score that in the United Kingdom amendments in election law
have not been made to affect pending proceedings in courts.

 231. The Privy Council also upheld in the case of Areyesekera v. Jayalilake
1932 AC 260 an Order-in-Council giving retrospective effect to an election law
in Ceylon.

 The said provisions of Act 40 of 1975 are general in terms and would apply to
all election disputes which may be pending either in the High Court or in
appeal before the Supreme Court or which may arise in future.
 Vendees in other cases who did not file appeal against the decrees awarded
against them in view of the then existing law had to lose the purchased
property and be at a disadvantage.

 Nor can the court interfere on the score of the propriety of giving retrospective
effect to an amendment made in an election law.

 The Court in the case of Kanta Kathuria expressly rejected the contention that
amendment in election law was void because it gave advantage to a party.

 I may state that in case the provisions of the amended law are abused, and
some of the instances of abuse were visualised by Mr Shanti Bhushan during
the course of arguments, this Court would not be helpless in the matter.

 I would hold that the provisions of Act 40 of 1975 with which we are
concerned are valid and do not suffer from any constitutional infirmity.

 As regards the expenses for the erection of rostrums for the public meetings
addressed by the appellant on February 1 and 25, 1971, the High Court found
that four meetings were addressed by the appellant in the constituency on
February 1 and six meetings on February 25, 1971.

 You are requested to write the above letter to the District Election Officer
positively so that the election work of all the three parliamentary
constituencies which is going on, on behalf of District Congress Committee,
may not suffer."

 (ii) As the appellant had a mass appeal the District Congress Committee
office bearers thought that the Rae Bareli constituency was very safe and
concentrated attention on the other two parliamentary constituencies and
used the 23 vehicles mostly for those two constituencies.

 I find no sufficient ground to interfere with the finding of the High Court in
respect of the abovementioned 23 vehicles.

 It will be prejudicial to the interest of Respondent 1 if the aforesaid expenses

are taken into consideration.

 The submission made by learned counsel for the petitioner is negatived."

 The High Court included the total amount of Rs 16,000 in the election
expenses of the appellant upon the assumption that the appellant had not
disavowed that expenditure.

 249. I also agree with the High Court that as the election expenses of the
appellant have not been shown to exceed the prescribed limit of Rs 35,000,
the question of invoking and going into the validity of Act 58 of 1974 does not
arise.

 250. So far as the finding of the High Court on Issue 6 regarding the use of
the symbol of cow and calf is concerned, the matter, as already discussed
earlier, is now covered by the amendment made in Section 123(3) of the RP
Act by Section 8 of Act 10 of 1975.

 A mere retention of some provisions of the old Constitution even though the
basic structure or framework of the Constitution has been destroyed would not
amount to the retention of the old Constitution.

 The words 'amendment of the Constitution' with all their wide sweep and
amplitude cannot have the effect of destroying or abrogating the basic
structure or framework of the Constitution.

 Provision regarding the amendment of the Constitution does not furnish a

pretence for subverting the structure of the Constitution nor can Article 368 be
so construed as to embody the death-wish of the Constitution or provides
sanction for what may perhaps be called its lawful harakiri.

 Subject to the retention of the basic structure or framework of the Constitution,

the power of amendment is plenary and includes within itself the power to
amend the various articles of the Constitution, including those relating to
fundamental rights as well as those which may be said to relate to essential
features.

 It became essential to rid the case of all the embellishments resulting from the
political overtones and to bring it to a level which is strictly judicial, so that the
various constitutional and legal aspects of the matter may be examined in a
dispassionate atmosphere.

 K.K Mathew, J.- (concurring)- In the election petition filed by the respondent in
Civil Appeal No. 887 of 1975 (hereinafter referred to as "respondent"), seven
charges of corrupt practice were made against the appellant therein
 (hereinafter called the "appellant") and it was prayed that the election of the
appellant be set aside.

 257. During the pendency of these appeals, Parliament passed the Election
Laws (Amendment) Act, 1975 on August 6, 1975 by which certain
amendments were made in the provisions of the Representation of the People
Act, 1951, and the Indian Penal Code.

 Clause (3) stated that the validity of any such law referred to in clause (1) and
the decision of any authority or body under such law shall not be called in
question in any court.

 261. The argument was that although the amending body could declare that
the election of the appellant shall not be deemed to be void and the judgment
of the High Court to be void on the basis that no law relating to election
petition and matters connected therewith would apply to the election the
amending body could not have held the election to be valid as it did not
ascertain the facts relating to the election and apply the relevant law to them.

 262. Counsel also submitted that equality and rule of law are essential
features of democracy; that clause (4), by dispensing with the application of
the law relating to election petition and matters connected therewith to the
appellant, made an unreasonable classification among persons similarly
situated with reference to the purpose of the law.

 270. It was contended for the appellant that, in England, it was the House of
Commons which originally decided election disputes concerning its members,
that it was only in 1770 that the function was delegated to committees and
Parliament is the proper forum for deciding election disputes of its members
as it is one of its privileges.

 The Court has held that in adjudicating an election dispute an authority is

performing a judicial function and a petition for leave to appeal under Article
136 of the Constitution would lie to this Court against the decision
notwithstanding the provisions of Article 329(b)(See Durga Shankar Mehta v.
Thakur Raghuraj Singh AIR 1954 SC 520).

 It is clear from the judgment of Their Lordships of the minority that judicial
power is the exercise of a power on the basis of pre-existing law.
 278. According to the historic analysis, the essence of the distinction between
legislative power and judicial power is that the legislature makes new law
which becomes binding on all persons over whom the legislature exercises
legislative power: the Judicature applies already existing law in the resolution
of disputes between particular parties; and Judges may not deviate from this
duty.

 279. If the decision of the amending body that the election of the appellant
was valid was the result of the exercise of judicial power or of despotic
discretion governed solely by considerations of political expediency, the
question is, whether that decision, though couched in the form of an
enactment, can be characterised as an amendment of the Constitution.

 282. The point to be kept in mind is that the amending body which exercises
the constituent power of the legal sovereign, though limited by virtue of the
decision in Bharati case, can express itself only by making laws.

 283. The distinction between constitutional law and ordinary law in a rigid
Constitution like ours is that the validity of the constitutional law cannot be
challenged whereas that of ordinary law can be challenged on the touchstone
of Constitution.

 But constitutional law is as much law as ordinary law.

 A judgment or sentence which is the result of the exercise of judicial power or

of despotic discretion is not a law as it has not got the generality which is an
essential characteristic of law.

 284. According to Blackstone, a law and a particular command are

distinguished in the following manner: a law obliges generally the members of
a given community, or a law obliges generally persons of a given class.

 Most of the laws established by political superiors are general in a twofold

manner: as enjoining or forbidding generally acts of kinds or sorts; and as
binding the whole community, or, at least, whole classes of its members.

 The passage was cited with approval by the Privy Council in Liyanage v.
Queen 1967 1 AC 259, 291 to show that the end product of the exercise of
judicial power is a judgment or sentence and not a law.

 In all such cases, the legislature exercises the highest power of sovereignty,
and what may be properly deemed an irresponsible despotic discretion, being
 governed solely by what it deems political necessity or expediency, and too
often under the influence of unreasonable fears, or unfounded suspicions.84

 304. The Solicitor-General contended that the amending body, in declaring

that the election was valid, was exercising its constituent legislative power;
that legislative power does not adjudicate but only creates validity, even
retrospectively, by enacting a law with that effect; that validation is law-
making; that it alters the legal position by making new law and that validation
may take place before or after a judgment.

 He said that by the repeal of the provisions of the Representation of the

People Act, 1951, the amending body had wiped out not only the election
petition but also the judgment of the High Court and has deprived the
respondent of the right to raise any dispute as regards the validity of the
election of the appellant and there was no dispute to be adjudicated upon by
the amending body.

 305. It is difficult to understand, when the amending body expressly excluded

the operation of all laws relating to election petition and matters connected
therewith by the first part of clause (4), what ideal norms of free and fair
election it had in view in adjudging the validity of the election of the appellant.

 The cases cited by the Solicitor-General to show that a competent legislature

has power to validate an invalid election do not indicate that there can be a
validation without changing the law which invalidated the election.

 Nor do I think that a contested election can be validated without an authority

applying the new law to the facts as ascertained by judicial process.

 308. If clause (4) was an exercise in legislative validation without changing the
law which made the election invalid, when there ought to have been an
exercise of judicial power of ascertaining the adjudicative facts and applying
the law, the clause would damage the democratic structure of the
Constitution, as the Constitution visualises the resolution of an election
dispute by a petition presented to an authority exercising judicial power.

 The contention that there was no election dispute as clause (4) by repealing
the law relating to election petition had rendered the petition filed by the
respondent non est, if allowed, will toll the death knell of the democratic
structure of the Constitution.
 309. All the cases cited by the Solicitor-General pertain either to legislative
validation of a void election by applying a new law to undisputed facts or to
the removal of an admitted disqualification by a law with retrospective effect.

 311. The decision in Piare Dusadh v. King Emperor AIR 1944 FC 1 concerned
the validation of a sentence imposed by a special Criminal Court which was
held to have no jurisdiction to try the case by an order of a court.

 It was held that Act 5 of 1969 had removed the disqualification retrospectively,
that Parliament and the State Legislatures can legislate retrospectively
subject to the provisions of the Constitution, that no limitation on the powers of
the legislature to make a declaration validating an election could be put, and
that, by enacting the impugned Act, the disqualification if any which existed in
the 1951 Act had been removed.

 The High Court held that the electoral rolls had not been prepared in
accordance with the provisions of the Orissa Municipalities Act, 1950, as the
age qualification had been published too late thereby curtailing the period of
claims and objections to the preliminary roll to 2 days from 21 days as
prescribed; the High Court set aside the elections.

 The Governor promulgated an Ordinance validating the elections to the

Cuttack municipality and validating the electoral rolls prepared in respect of
other muncipalities.

 The High Court found that the Ordinance contravened Article 14 of the
Constitution, that it did not successfully cure the invalidity and that it offended
Article 254(1) of the Constitution as it was inconsistent with many Central Acts
falling in the concurrent list and was unconstitutional.

 314. the Court held that Section 3(1) of the Ordinance effectively removed the
defects in the electoral rolls found by the High Court by its judgment and that
it successfully cured the invalidity of the electoral roll and of the elections to
the Cuttack municipality.

 315. The Solicitor-General also cited other decisions to show that a legislature
can validate proceedings rendered invalid by judgment of court.

 317. It was argued for the respondent that if the amending body exercised
judicial power and held the election of the appellant valid, its act was
 unconstitutional also on the ground it damaged another basic structure of the
Constitution, namely, the doctrine of separation of powers.

 Legislative impeachment of executive officers or judges, executive veto over

legislation, judicial review of administrative or legislative actions are treated as
partial exceptions which need explanation.93

 322. Whereas in the United States of America and in Australia, the judicial
power is vested exclusively in courts, there is no such exclusive resting of
judicial power in the Supreme Court of India and the courts subordinate to it.

 And if the amending body exercised judicial power in adjudging the validity of
the election, it cannot be said that by that act, it has damaged a basic
structure of the Constitution embodied in the doctrine of separation of powers.

 But if the constituent power is a power to frame or amend a Constitution, it

can be exercised only by making laws of a particular kind.

 Nobody can deny that by passing a law within its competence, Parliament can
vest judicial power in any authority for deciding a dispute or vest a part of that
power in itself for resolving a controversy, as there is no exclusive vesting of
judicial power in courts by the Constitution.

 Even though a sovereign can act only by making law, the law he so makes
may vest the authority to exercise judicial power in himself; without such law
he cannot exercise judicial power.

 Our Constitution, by Article 329(b) visualises the resolution of an election

dispute on the basis of a petition presented to such authority and in such
manner as the appropriate legislature may, by law, provide.

 The nature of the dispute raised in an election petition is such that it cannot be
resolved except by judicial process, namely, by ascertaining the facts relating
to the election and applying the pre-existing law; when the amending body
held that the election of the appellant was valid, it could not have done so
except by ascertaining the facts by judicial process and by applying the law.

 The amending body must change the law retrospectively so as to make the
election valid, if the election was rendered invalid by virtue of any provision of
the law actually existing at the time of election; Article 368 does not confer on
the amending body the competence to pass any ordinary law whether with or
without retrospective effect.
 The election was held to be valid not by changing the law which rendered it
invalid.

 It is unpredictable, the antithesis of a decision taken in accordance with the

rule of law."

 A Court of law decides a case of first impression; no statute governs, no

precedent is applicable.

 341. Leaving aside these extravagant versions of rule of law, there is a

genuine concept of rule of law and that concept implies equality before the
law or equal subjection of all classes to the ordinary law.

 Even if I assume that rule of law is a basic structure, it seems to me that the
meaning and the constituent elements of the concept must be gathered from
the enacting provisions of the Constitution.

 344. Then the question is, whether the Representation of the People
(Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, are
liable to be challenged for the reason that they damage or destroy a basic
structure of the Constitution.

 Counsel for the respondent submitted that, if, by a constitutional amendment,

the basic structure of the Constitution cannot be destroyed or damaged, it
would be illogical to assume that an ordinary law passed under a power
conferred by that instrument can do so and since these Acts damage the
concept of free and fair election, the Acts were bad.

 But I do not find any such inhibition so far as the power of Parliament or State
Legislatures to pass laws is concerned.

 The norms of election set out by Parliament or State Legislatures tested in the
light of the provisions of the Constitution or necessary implications therefrom
constitute the law of the land.

 The problem of defining democracy is twofold, requiring both a descriptive

and prescriptive function.

 Like other laws made by Parliament or State Legislatures, the laws made
under Articles 327 and 328 are liable to be tested by Part III of the
Constitution or any other provision of the Constitution; but it is difficult to see
how these laws could be challenged on the ground that they do not conform
 to some ideal notions of free and fair election to be evolved by the court from
out of airy nothing.

 The principles of democratic republican Government are not a set of inflexible

rules; and unless they are specifically incorporated in the Constitution, no law
can be declared bad merely because the Court thinks that it is opposed to
some implication drawn from the concept.110

 358. So if it be assumed that these election laws amendment Acts, even after
they were put in the Ninth Schedule by constitutional amendment remained
open to attack for contravention, if any, of the fundamental rights, these Acts
would not be open to attack on the ground that their provisions destroyed or
damaged an essential feature of democracy, namely, free and fair election.

 The argument was that if one set of laws existed when an election was held
and the result announced, you cannot thereafter substitute another set of laws
and say that those laws must be deemed to have been in operation at the
time when the election was held and the result announced, as that would lead
to inequality, injustice and unfairness.

 361. I hold that these Acts are not liable to be challenged on any of the
grounds argued by Counsel.

 362. Counsel for the respondent submitted that the session of Parliament in
which the Election Laws Amendment Act, 1975 and the Thirty-ninth
Amendment to the Constitution were passed was not properly convened and
the amendments were invalid.

 It is an incomplete statement to say that in a State such and such an

assembly of human beings is sovereign.

 Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the

present definition in Section 79(b) which reads: " 'candidate' means a person
who has been or claims to have been duly nominated as a candidate at an
election."

 385. I would hold that even if it be assumed that the finding of the High Court
that the appellant obtained or procured the assistance of Shri Yashpal Kapur
during the period from January 7 to 24, 1971, is correct, the appellant shall
not be deemed to have committed corrupt practice under Section 123(7) of
 the Representation of the People Act, 1951, as she became a candidate only
on February 1, 1971.

 The learned Chief Justice has also dealt with the contention urged by Counsel
for respondent that Section 8(b) of the Election Laws Amendment Act, 1975
suffers from the vice of excessive delegation and is arbitrary.

 I would set aside the findings of the High Court against the appellant and
allow the appeal without any order as to costs.

 In the cross-appeal, the only question raised was about the correctness of the
finding of the High Court that the appellant has not exceeded the prescribed
limit of election expense.

 Given by Khanna, J. in his judgment, I hold that the finding of the High Court
on this issue was correct.

 Other amendments were made by the Election Laws (Amendment) Act 40 of

1975 (hereinafter referred to as "the Act of 1975"), notified on August 6, 1975,
after the decision of the case by the learned Judge of the Allahabad High
Court on June 12, 1975 and after the filing of the appeals before us.

 Came the

 392. Citizens of our country take considerable pride in being able to challenge
before superior courts even an exercise of constituent power, resting on the
combined strength and authority of Parliament and the State Legislatures.

 Legislature, in the purported exercise of any kind of law-making power,

perform an essentially judicial function by virtually withdrawing a particular
case, pending in any court, and taking upon itself the duty to decide it by an
application of law or its own standards to the facts of that case.

 Whether provisions of the Acts of 1974 and 1975 are immune from attack
even on the ground that they resulted in a departure from the "basic structure"
of our Constitution as explained by this Court in His Holiness Kesavananda
Bharati Sripadagalavaru v. State of Kerala 1973 4 SCC 225 by having been
included in the Ninth

 Parties had to and did address us on the broad features of the findings given
by the learned trial Judge and the nature of the evidence given to support
them so that we may be able to decide, inter_alia, whether any "validation" of
 the original respondent's election, which was the evident purpose of clause (4)
of Article 329-A, sought to be added by Section 4 of the Thirty-ninth
Amendment, was at all necessary.

 395. If the existence of the judgment of the Allahabad High Court created the
impression that it must be assumed to be correct even before this Court had
pronounced upon the correctness of the judgment, the stay order given by this
Court should have removed it.

 Out of these, the election petitioner, in his Cross Appeal No. 909 of 1975, has
questioned the findings of the High Court only on Issues 2, 4, 6, 7 and 9 set
out above.

 The learned Judge set aside the election of the original respondent after
holding that she was guilty of a "corrupt practice", as defined by Section
123(7) of the Act, on each of two grounds: firstly, that she must be deemed to
have obtained the help of Shri Yashpal Kapur, in the furtherance of her
election, before he had ceased to be a gazetted officer in government service,
and after the original respondent had first held herself out, on December 29,
1970, as a candidate at the forthcoming election from the Rae Bareli
constituency by answering in the negative a question put to her at a press
conference in New Delhi inquiring whether she had decided to change her
constituency from Rae Bareli in U.P to Gurgaon in Haryana

 The definition of candidate in Section 79, as it originally stood, was sought to

be applied by the trial court to determine whether the original respondent
could have committed a corrupt practice at the time of the alleged commission
of it.

 Before I deal with that question, it is necessary to examine what "obtaining, or

procuring or abetting or attempting" meant in the light of the law laid down
repeatedly by this Court in cases of alleged corrupt practices.

 To sum it is satisfactorily proved that Respondent 1 during the period ending

on January 13, 1971, obtained/procured the assistance of Shri Yashpal
Kapur, a gazetted officer in the Government of India for the furtherance of her
election prospects, inasmuch as Shri Yashpal Kapur was made to go to Rae
Bareli on January 7, 1971 and deliver a speech at Shaheed Mela in
Munshiganj canvassing support for her candidature."
 The fact that the original respondent appointed Shri Kapur her election agent
on February 1, 1971 made no difference to the result in the third period.

 Apparently without being asked by the Prime Minister, but, after informing her
of his intention to go with Shri Gulzarilal Nanda, the witness had, in the course
of the performance of duties especially assigned to him since his
appointment, visited Rae Bareli in the company of Shri Gulzarilal Nanda.

 426. On the facts stated above, there could be no doubt whatsoever that Shri
Kapur was not asked to do anything at all in connection with her election by
the Prime Minister herself, but he had decided to take interest in it voluntarily
as he had some political ambitions; and he had asked the Prime Minister to
be relieved of his office in her Secretariat with effect from Jaunary 14, 1971.

 It is true that, in Raj Narain v. Indira Nehru Gandhi 1972 3 SCC 850 when this
very matter came up to this Court, to decide whether an issue should be
struck on it, this Court had sent back the matter to the High Court after holding
that an issue should be framed to decide when Shri

 There is no difficulty at all in accepting the correctness of a resignation

effective from the date which both parties to the contract, on patent facts, had
agreed to.

 There is no finding on it by the learned Judge.

 The result was that what was really decided was the case of a de_facto
agency which was neither set up nor was the subject-matter of an issue.

 I think that the principle that no amount of evidence could be looked into on a
case not really set up was applicable .

 "So far as the election law in this country is concerned it is a creation of

statute and as such has to be interpreted in accordance which the provisions
of that statute.

 "When a question arises under Section 79(b) whether a person had become a
candidate at a given point of time, what has to be seen is whether at that time
he had clearly and unambiguously declared his intention to stand as a
candidate, so that it could be said of him that he held himself out as a
prospective candidate.
 "The determining factor is the decision of the candidate himself, not the act of
other persons or bodies adopting him as their candidate."

 Proof of actual mens rea as well as actus reus on the part of either the
candidate herself or her election agent had to be given.

 The election petition was liable to be rejected on this ground alone.

 Parliament could set right a defect in law which may have come to its notice
as a result of the learned Judge's interpretation of Section 123(7).

 There could be no challenge to the validity of the amendment if it does not, as

I think it does not, change the law but merely clarifies it.

 I am unable to see any sustainable ground of attack at all on the validity of

this provision.

 I think, it was necessary to go into these for determining whether the

amendments are good.

 He as he indicated in his judgment, seemed anxious not to allow this fact to

affect his judgment.

 As the Court has repeatedly pointed out, to treat unequally situated and
circumstanced persons as though they were equals in the eyes of law for all
purposes is not really to satisfy the requirements of the equality contemplated
by the Constitution.

 The burden is heavy on him who assails an election which has been
concluded."

 I see no force at all in this submission of the election petitioner.

 494. After examining this catena of cases, I think, with great respect, that the
decision of this Court in Kanwarlal Gupta case could be understood to point in
a direction contrary to that in which the previous cases were decided.

 The petitioner had not pleaded expenses incurred by the party of the original
respondent as expenses authorised by the original respondent.

 It need not be shown as an item of election expense.

 You may kindly release them."

 After giving numbers of the vehicles the letter proceeds: "It is requested that
the abovesaid cars may kindly be released without delay.

 He asked Shri

 He had made a frantic appeal to Shri Kapur to come to his help.

 Even if the election petitioner did not, for some reason, desire to summon Shri
Dal Bahadur Singh similarly, his counsel could have requested the court to
exercise its discretionary powers under Order 16 Rule 14 CPC, but this was
never done.

 506. Article 122 of the Constitution prevents this Court from going into any
question relating to irregularity of proceedings "in Parliament".

 507. What is alleged by the election petitioner is that the opposition members
of Parliament, who had been detained under the preventive detention laws,
were entitled to get notice of the proposed enactments and the Thirty-ninth
Amendment, so as to be present "in Parliament", to oppose these changes in
the law.

 The enforcement of fundamental rights is regulated by Articles 32 and 226 of

the Constitution and the suspension of remedies under these articles is also
governed by appropriate constitutional provisions.

 I overrule these objections to the validity of the amendments and the Thirty-
ninth Amendment as we cannot even entertain them in this manner in these
proceedings.

 (2) The validity of any such law as is referred to in clause (1) and the decision
of any authority or body under such law shall not be called in question in any
court.

 I will concern myself only with the constitutional validity of clause (4) of Article
329-A of the Constitution.

 512. Learned counsel for the election petitioner contended that the constituent
or amending power contained in Article 368 of our Constitution had been
misused to achieve some purpose which was either outside the article or
which struck at the roots of the "basic structure" or "the essential features" of
our Constitution.
 It was contended that the newly added Article 329-A(4) of the Constitution, far
from constituting a constitutional law, which alone could be made under
Article 368, did not even satisfy the tests of a law, inasmuch as it did not lay
down any general rule applicable to all cases of a particular class but was
really designed to decide one particular election case, which is now before us
for hearing, in a particular way.

 The assumption underlying the argument was that setting aside the results of
a judicially recorded judgment and order by declaring it void and the validation
of an election held by a Court of law to be invalid necessarily involves the
adoption of a judicial or a quasi-judicial procedure if the results are to appear
just and not violative of the basic principles of natural justice which must be
held to be parts of the rule of law envisaged by our Constitution.

 Taking away of even the supervisory jurisdiction of superior courts in elections

of certain class of dignitaries was characterised as a gross violation of a basic
principle of our Constitution.

 He submitted, there was no need to resort to principles emerging from a

consideration of what may be spoken of as the basic structure or essential
features of the Constitution.

 Separation of powers is when the Constitution is framed laying down the

distribution of the powers in the different organs such as the legislative,
executive and the judicial power.

 In a sense the constituent power is all-embracing and is at once judicial,

executive and legislative, or in a sense super power.

 It is a power of a kind which is above the Constitution itself.

 I have not found any opinion expressed so far by any learned Judge of this
Court to show that the constituent power is not bound by the need to follow
the procedure laid down in Article 368(2) of the Constitution.

 Rather inconsistently with the theory of an absolute and unquestionable

power in some undifferentiated or raw and unfettered form, operating from
above and outside the Constitution, learned counsel, supporting the impugned
fourth clause in Article 329A, concede that the constituent power is bound by
the appropriate procedure laid down in Article 368 for the amendment of the
Constitution.
 I propose to consider it at a length which seems to me to be justified by our
need to clarify our thinking on a basic or "key" concept without a final
commitment to a particular view on it.

 Both types of explanation appear to be necessary to an exposition of what

may or may not be found in our Constitution.

 526. I do not think that Judges of this Court have or should think that they
have the power to consciously alter, under the guise of judicial interpretation,
what the Constitution declares or necessarily implies even though our
pronouncements, interpreting the Constitution, may have the effect of
contributing something to the growth or even change of Constitutional Law by
clearing doubts, removing uncertainties, or filling up of gaps to a limited
extent.

 If this Court is asked to declare as valid what seems to it to fall clearly outside
the ambit of the Constitution, and what is even claimed to be operating from
outside the Constitution and described as a supra-constitutional power, there
may be no alternative left to it except to declare such a claim to be really
outside the Constitution.

 533. The theory that there should be a separation of functions between the
making of laws, the execution of laws, and the application of laws, after
ascertaining facts satisfactorily, is not new.

 Even according to Bodin, although the sovereign was free from the trammels
of positive law, as he was above it he was "bound by divine law and the law of
nature as well as by the common law of nations which embodies principles
distinct from these" (See: Dunning's History of Political Theories Ancient &
Medieval p. 28).

 "The judicial power of the United States shall be vested in one Supreme
Court, and in such inferior courts as the Congress may, from time to time,
ordain and establish."

 It was removed by Chief Justice Marshall whose judgment in Marbury v.

Madison 1803 Cranch 137 firmly established the doctrine of judicial review
and the supremacy of the Supreme Court of America, in the judicial field of
interpretation, as the mouthpiece of the Constitution, and of the "Real Will" of
the people themselves.
 The Constitution, as the basic or fundamental law of the land, was to operate
there as the touchstone of the validity of ordinary laws just as the validity of
laws made by British colonial legislatures was tested by reference to the
parental Act of the British Parliament.

 551. Under our Constitution, by Article 141 of the Constitution, power is

vested only in the Supreme Court and in no other organ or authority of the
Republic to declare the law "which shall be binding on all courts within the
territory of India".

 Article 143 of the Constitution of India also shows that whenever questions of
fact or law have either arisen or are likely to arise, the President of India may,
in view of their public importance, seek the opinion of the Supreme Court, by
a reference made to the Court.

 Article 227 also contains the power of a High Court to superintend the
functioning of "all courts and tribunals" within its jurisdiction.

 552. The claim that an amalgam or some undifferentiated residue of inherent

power, incapable of precise definition and including judicial power, vests in
Parliament in its role as a constituent authority, cannot be substantiated by a
reference to any article of the Constitution whatsoever, whether substantive or
procedural.

 I do not think that, because the constituent power necessarily carries with it
that power to constitute judicial authorities, it must also, by implication, mean
that the Parliament, acting in its constituent capacity, can exercise the judicial
power itself directly without vesting it in itself first by an amendment of the
Constitution.

 554. the Court, exercising the powers vested in it under the Constitution to
declare the law of the land, cannot go behind the clear words of the
Constitution on such a matter.

 555. It has been pointed out, in the Kesavananda Bharati case that the
preamble of our Constitution did not like that of the American Constitution,
"walk before the Constitution", but was adopted after the rest of the
Constitution was passed, so that it is really a part of the Constitution itself.
 The Supreme Court of the USSR is charged with the supervision of the
judicial activities of all the judicial organs of the USSR and of the Union
Republic within the limits established by law."

 Although Article 15 of the Constitution of the USSR speaks of the

"Sovereignty and Sovereign Rights" of the Union Republics it is made clear
that these republics function subject to the supremacy of the Constitution.

 The supremacy of the Constitution is a principle recognised by the

Constitution of the USSR also as operating above and limiting the
sovereignties of the socialist republics.

 He too admits that the Constitution does place some limitation on exercise of
sovereign power.

 566. Still another American writer, Orfield, in the course of his discussion
(See: The Amending of the Federal Constitution by Lester B. Orfield 1971), of
a number of concepts of sovereignty, seems sometimes to almost consider
Article 5 of the American Constitution, containing the constituent power and its
procedure, to be sovereign.

 When it is remembered that throughout all history, American as well as

European, there never has been a consensus as to the meaning of
sovereignty, it seems that the term should be used only with the greatest
circumspection."

 There can be no doubt that the sovereignty which can be claimed by the
Parliament in England, cannot be claimed by any legislature in

 571. The principle of the supremacy of the Constitution was then declared by
the majority of the learned Judges of this Court in Kesavananda Bharati case
to be a part of the basic structure of the Constitution.

 No Judge of this Court has so far held that, without even attempting to change
what may be the basic structure of Constitution itself, by appropriate
amendments, judicial power could be exercised by Parliament under Article
368 on the assumption that it was already there.

 The very purpose of a written Constitution is the demarcation of the powers of

different departments of Government so that the exercise of their powers may
be limited to their particular fields.
 Every power, executive, legislative, or judicial, whether it belong to the nation
or to the individual States, is subordinate to and controlled by the
Constitution."

 The court derives its existence from the Constitution, and stands on an
equality with the President and with Congress; the members thereof (in
common with every Judge of the Federal Judiciary) hold their places during
good behaviour, at salaries which cannot be diminished during a Judge's
tenure of office."

 576. The "constituent power" is still bound by the exclusively prescribed

procedure to "amend by way of addition, variation, or repeal" any provision of
the Constitution.

 I have also referred to some of these theories and practices from ancient
times so as to be able to indicate the precise significance or relevance of
various concepts and decisions placed before us.

 580. I do not think that it is at all helpful to refer to certain authorities of this
Court which were, rather surprisingly, relied upon by learned counsel
supporting the Thirty-ninth Amendment to discover the nature of the
"'constituent power" contained in Article 368.

 It is matter of common knowledge that at the relevant time the Maharana of

Udaipur was an absolute monarch in whom vested all the legislative, judicial
and executive powers of the State.

 581. It is evident, from the quotation, relied upon by the Solicitor-General, that
this Court was not deciding whether the firman was even a "law" in the sense
of a general norm which had to be applied to the decision of cases.

 583. It is true that, in the exercise of the law-making constituent power,

brought in by Section 8 of the Indian Independence Act, the legislatures could
be armed with judicial powers as well if appropriate laws were made to that
effect.

 (b) No election to either House of Parliament or to the House or either House

of the Legislature of a State shall be called in question except by an election
petition presented to such authority and in such manner as may be provided
for by or under any law made by the appropriate Legislature."
 It logically follows that if a statute enumerates the things upon which it is to
operate, everything else must necessarily, and by implication, be excluded
from its operation and effect.

 That the courts, being inferior to the High Court or Parliament, cannot call in
question the decision of either House on a matter or privilege.

 593. The confusions mentioned above misled some people in this country,
due to the provisions of Article 194(3) of our Constitution, on the question
whether a House of a legislature had not only the power to punish a citizen for
contempt but also to exercise what is really a judicial power to interpret and
determine the ambit of its own jurisdiction.

 As all judicial or quasi-judicial power is, under our Constitution, expressly

made exercisable under the supervision of the judicial organs of the State, it
was held that a decision about the existence of the power to punish for
contempt, on the facts of a particular case, is vested in the High Court.

 Wanchoo, J. rightly said in Golak Nath case that the power under Article 368
is a constituent power to change the fundamental law, that is to say, the
Constitution and is distinct from ordinary legislative power.

 So long as the distinction is kept in mind Parliament will have power under
Article 368 to amend the Constitution and what Parliament does under Article
368 is not ordinary law-making which is subject to Article 13(2) or any other
article of the Constitution.

 This view of Wanchoo, J. was adopted by Parliament in the Constitution

Twenty-fourth Amendment Act which made explicit that under Article 368
Parliament has the constituent power to amend this Constitution."

 Neither the question whether "constituent power" itself contained judicial

power within its fold nor the question whether "constituent power" operated on
a plane or in a sphere which excluded altogether what could be done through
ordinary legislation were under consideration in Kesavananda Bharati case.

 599. If the constitutional provisions compel us to hold, as I think they do, that
no form of judicial or quasi-judicial power is included in the "constituent
power" contained in Article 368 of the Constitution, no further question need
really be considered by us if we were to hold that the insertion of clause (4) in
Article 329-A necessarily involved, as a condition precedent to the making of
 the declaration found at the end of it, the performance of a quasi-judicial or
judicial function.

 "No law made by Parliament before the commencement of the Constitution

(Thirty-ninth Amendment) Act, 1975, insofar as it relates to election petitions
and matters connected therewith, shall apply or shall be deemed ever to have
applied to or in relation to the election of any such person as is referred to in
clause (1) to either House of Parliament."

 "Article 71 of the Constitution provides that disputes arising out of the election
of the President or Vice-President shall be decided by the Supreme Court.

 The President is not answerable to a court of law for anything done, while in
office, in the exercise of his powers.

 A fortiori matters relating to his election should not be brought before a court
of law but should be entrusted to a forum other than a court.

 It is proposed to provide that disputes relating to the election of the President

and Vice-President shall be determined by a forum as may be determined by
a parliamentary law.

 Parliament could not be assumed to have withdrawn and then to have

decided a particular case in a particular way by applying its own norms.

 605. A number of cases have been cited before us: some on retrospective
validation of taxing provisions, by removing defects, others on removal of the
basis of or grounds of decisions given by courts making their judgments
ineffective, others affecting the jurisdiction of courts in cases pending, either in
the original courts or in courts of appeal, so as to render proceedings
infructuous, and still others curing legally defective appointments or elections.

 "The Supreme Court of the United States, under the leadership of Chief
Justice Marshall, assumed the power to declare any law unconstitutional on
the ground of its not being in 'due process of law', ....

 Our Constitution, unlike the English Constitution, recognises the court's

supremacy over the legislative authority, but such supremacy is a very limited
one, for it is confined to the field where the legislative power is circumscribed
by limitations put upon it by the Constitution itself.
 Within the restricted field the court may, on a scrutiny of the law made by the
legislature, declare it void if it is found to have transgressed the constitutional
limitations."

 The Acts were ultra vires and void, and the convictions could not stand."

 As it is well established that it is the Constitution and not the constituent

power which is supreme in the sense that the constitutionality of the
Constitution cannot be called in question before us, but the exercise of the
constituent power can be, we have to judge the validity of exercise of
constituent power by testing it on the anvil of constitutional provisions.

 622. A point emphasized by J.C Gray (See: Nature & Sources of Law p. 96) is
that unless and until courts have declared and recognised a law as enforcible
it is not law at all.

 Courts have to test the legality of laws, whether purporting to be ordinary or

constitutional, by the norms laid down in the Constitution.

 What is involved is the right of the election petitioner to be heard on merits

and tha power of this Court to look into the merits of the case in order to
determine whether the election-petitioners grievances could have any real
legal foundations.

 627. Broadly speaking, the election petitioner has two heads of grievance:
firstly, that the election of the original respondent is vitiated by corrupt
practices which, as I have indicated, after considering the case set up by him
and the evidence tendered and the law applicable, could not possibly succeed
even under the law as it stood before the amendment; and, secondly, that our
very jurisdiction to go into these grievances is sought to be debarred by
clauses (4), (5) and (6) of Article 329-A with the political object of stifling
opposition, and according to the election-petitioner, we must declare clause
(4) and the connected clauses (5) and (6) of Article 329-A to be invalid.

 It is for the reason, that the election petitioner had filed a separate writ petition
in the High Court to challenge an amendment of the Act.

 We would be prevented from doing justice to her case as well if we were to

accept the contention that the Thirty-ninth Amendment bars our jurisdiction to
hear the appeals under Section 116-A of the Act on merits.
 Speaking for myself, I fail to see what danger to the country could arise or
how national interests could be jeopardised by a consideration and a decision
by this Court of such a good case as I find that the Prime Minister of this
country had on facts and law.

 Article 329A, clause (5) will not, so understood, bar the jurisdiction of the court
to hear and decide the appeals when it says that the appeal shall be disposed
of in conformity with the provisions of clause (4).

 It is not unlikely that Article 329-A(4) was based on the misapprehension that
the High Court's judgment may be legally correct or that there was a
possibility, even for a case so ill founded and in law as the one put forward on
behalf of the election-petitioner, to succeed in this Court if it had succeeded in
the High Court.

 He dismissed the writ petition.

 645. During the pendency of these cross-appeals, the Parliament passed the
Election Laws (Amendment) Act, 40 of 1975, which came into force on August
6, 1975.

 The Act, if valid, virtually seals the controversy in the appeal filed in this Court
by the successful candidate from the decision of the Allahabad High Court.

 The Thirty-ninth Amendment introduces two new articles in the Constitution:

Articles 71 and 329-A; and it puts in the Ninth Schedule three Acts: (i) The
Representation of the People Act, 43 of 1951; (ii) The Representation of the
People (Amendment) Act, 58 of 1974; and (iii) The Election Laws
(Amendment) Act, 40 of 1975.

 Clause 4 frees the disputed election of the Prime Minister and the Speaker to
the Parliament from the restraints of all election laws.

 The Seventeenth Constitutional Amendment passed in June 1964 was

similarly upheld by a majority decision of this Court in Sajjan Singh v. State of
Rajasthan AIR 1965 SC 845, which took the view that the fundamental rights
were not intended by the framers of the Constitution to be finally and
immutably settled when the Constitution was passed.

 By a majority of 6: 5, this Court held that the Seventeenth Amendment was

ultra vires the Parliaments power to amend the Constitution.
 649. The decision in Golak Nath case raised a debate of national dimensions
as the Parliament's power to amend the Constitution so as to abridge or take
away the fundamental rights virtually became a dead letter.

 The Parliament, in a resolve to reaffirm its powers, passed the Constitution

(Twenty-fourth Amendment) Act on November 5, 1971 and the Constitution
(Twenty-fifth Amendment) Act on April 20, 1972.

 But by Article 141 of the Constitution, the law declared by the Supreme Court
is binding on all courts within the territory of India.

 651. the appeals have to be decided in the light of the principle emerging from
the majority decision in the Fundamental Rights case that Article 368 does not
confer power on the Parliament to alter the basic structure or framework of the
Constitution.

 On the question, the arguments of Mr Shanti Bhushan, who appears for Shri
Raj Narain, may be summed up : (i) The Thirty-ninth Amendment affects the
basic structure or framework or the institutional pattern adopted by the
Constitution and is beyond the amending power conferred by Article 368.

 Clause (4) of Article 329-A introduced by the Thirty-ninth Amendment takes

away that jurisdiction and is void.

 The classification made by the Thirty-ninth Amendment bears no nexus with

the sort of immunity granted to two high personages from the operation of
election laws.

 (vi) Rule of law and judicial review are also basic features of the Constitution.

 And the rule of law is abrogated by providing that the election of the Prime
Minister shall continue to be valid and will be open to no challenge before any
court or any authority whatsoever.

 Even with a two-third majority, the constituent body cannot exercise executive
or judicial power.

 The Constitutions and laws of several countries leave the decision of election
disputes to the judgment of the legislatures themselves.
 How much of elections should be dealt with by the Constitution and how much
should be relegated to ordinary legislation is not a matter for the courts to
decide.

 The constituent power must be held to be a plenary power on which the only
limitation is as regards the inviolability of the basic structure.

 (ii) What a Constitution should contain depends on what permanency is

intended to be accorded to a particular provision included in the Constitution,
(iii) Exclusion of judicial review is at least permissible in those fields where
originally the Constitution did not provide for or contemplate judicial review.

 (iv) If the election law does not apply, as it ceases to apply by virtue of Article
329-A(4), it is the function of the legislature to declare whether or not a
particular election is good or bad; and that (v) Rule of law is not a part of the
basic structure of the Constitution and apart from Article 14, our Constitution
recognises neither the doctrine of equality nor the rule of law.

 Parliament wanted to save high personages from such harassment.

 According to Shri Kaushal, the judgment of the Allahabad High Court became
a nullity by reason of that Court ceasing retrospectively to have jurisdiction
over the dispute and a judgment which is a nullity need not be set aside.

 (v) The election shall continue to be valid in all respects notwithstanding the
judgment of any court, which includes the judgment dated June 12, 1975 of
the High Court of Allahabad, (vi) The judgment of the Allahabad High Court
and any finding on which the judgment and order of that court is based are
void and shall be deemed always to have been void.

 The touchstone of the validity of a constitutional amendment is firstly whether

the procedure prescribed by Article 368 is strictly complied with and secondly
whether the amendment destroys or damages the basic structure of the
Constitution.

 The choice of the subject for constitutional amendment cannot be

characterized as trifling, frivolous or outside the framework of a copious
Constitution.

 663. There was some discussion at the Bar as to which features of the
Constitution form the basic structure of the Constitution according to the
majority decision in the Fundamental Rights case.
 These, in my opinion, are the pillars of our constitutional philosophy, the
pillars of the basic structure of the Constitution.

 In parts they are metaphysical like slogans.

 240 Its own meaning and implication being in doubt, the preamble cannot
affect or throw light on the meaning of the enacting words of the
Constitution.241 though our preamble was voted upon and is a part of the
Constitution, it is really "a preliminary statement of the reasons" which made
the passing of the Constitution necessary and desirable.242 As observed by
Gajendragadkar, J. in In re Berubari Union & Exchange of Enclaves243, what
Willoughby has said about the preamble to the American Constitution,
namely, that it has never been regarded as the source of any substantive
power, is equally true about the prohibitions and limitations.

 666. Judicial review, according to Shri Shanti Bhushan, is a part of the basic
structure of the Constitution and since the Thirty-ninth Amendment by Article
329-A(4) and (5) deprives the courts, including the Supreme Court, of their
power to adjudicate upon the disputed election, the amendment is
unconstitutional.

 Article 136(2) expressly took away the power of the Supreme Court to grant
special leave to appeal from the decisions of any court or tribunal constituted
by a law relating to the armed forces.

 Article 262(2) authorized the Parliament to make a law providing that the
Supreme Court or any other court shall have no jurisdiction over certain river
disputes.

 In a vital matter pertaining to the election for membership of the Parliament,

the framers of the Constitution had left the decision to the judgment of the
Executive.

 It was open to the legislature to leave the adjudication of election disputes to

authorities other than those in the hierarchy of our judicial system.

 Constitution but it is at least plausible that were the legislatures to pass law
leaving the decision of election disputes to themselves, judicial review might
have stood excluded.

 Since the Constitution, as originally enacted, did not consider that judicial
power must intervene in the interests of purity of elections, judicial review
 cannot be considered to be a part of the basic structure insofar as legislative
elections are concerned.

 At the conclusion of the trial, the Court must forthwith certify the determination
to the Speaker.

 In England, the election court is constituted by a special method, it exercises

a jurisdiction out of the ordinary jurisdiction which is normally exercised by
courts of law and its determination acquires finality upon certification to the
Speaker of the House of Commons.

 No appeal lies against the decision of the election court save by leave of the
Court and if leave is granted, the decision of the Court of Appeal is final and
conclusive.245

 670. I am unable to accept the contention that Articles 329-A(4) and (5) are
unconstitutional on the ground that by those provisions, the election of the
Prime Minister is placed beyond the purview of the courts.

 671. Equally, there is no substance in the contention that the relevant clauses
of the Thirty-ninth Amendment are in total derogation of "political justice" and
are unconstitutional.

 It is necessary to see whether the impugned provisions of the Thirty-ninth

Amendment damage or destroy that feature.

 The inapplicability of such laws creates a legal vacuum because the repeal,
so to say, of existing laws is only a step-in-aid to free the election from the
restraints and obligations of all election laws of all laws.

 What follows is a neat logical corollary: The election of the Prime Minister
could not be declared void as there was no law to apply to that election; the
judgment of the Allahabad High Court declaring the election void is itself void;
and the election continues to be valid as it was before the High Court
pronounced its judgment.

 All who are equal are equal in the eye of law and it will not accord a favoured
treatment to persons within the same class. Laws, as Plato said, would
operate "like an obstinate and ignorant tyrant if they imposed inflexible rules
without allowing for changed circumstances or exceptional cases251."
 And the Constitutional law of 1975 has undergone many changes since A.V
Dicey, the great expounder of the rule 'of law, delivered his lectures as
Vinerian Professor of English law at Oxford, which were published in 1885
under the title, Introduction to the Study of the Law of the Constitution.

 Dicey gave three meanings to rule of law: Absence of arbitrary power, equality
before the law or the equal subjection of all classes to the ordinary law of the
land administered by ordinary law courts and that the 'Constitution is not the
source but the consequence of the rights of individuals, as defined and
enforced by the courts.

 The Constituent Assembly pursued the policy of pick and choose to see what
suited the genius of the nation best.

 Even in America, despite the theory that the legislature cannot delegate its
power to the Executive, a host of rules and regulation are passed by non-
legislative bodies, which have been judicially recognized as valid.257

 In a federal system which distributes powers between three coordinate

branches of Government, though not rigidly, disputes regarding the limits of
constitutional power have to be resolved by courts and as observed by Paton,
"the distinction between judicial and other powers may be vital to the
maintenance of the Constitution itself"258.

 In the name of the Constitution, the Parliament may not also turn its attention
from the important task of legislation to deciding court cases for which it lacks
the expertise and the apparatus.

 But in all of these cases, what the legislature did was to change the law
retrospectively so as to remove the reason of disqualification, leaving it to the
courts to apply the amended law to the decision of the particular case.

 The Parliament has withdrawn the application of all laws whatsoever to the
disputed election and has taken upon itself to decide that the election is valid.

 Ordinary laws have to answer two tests for their validity: (1) The law must be
within the legislative competence of the legislature as defined and specified in
Chapter I, Part XI of the Constitution, and (2) it must not offend against the
provisions of Article 13(1) and (2) of the Constitution. "

 The two powers, though species of the same genus, operate in different fields
and are subject to different limitations.
  Were the law as it is under the amendments introduced by that Act, the High
Court could not have held that the election is vitiated by the two particular
corrupt practices.

S P GUPTA CASE
 We have to rid our minds of any preconceived notions or ideas and interpret
the Constitution as it is and not as we think it ought to be.

 The petitioners in the writ petition are advocates practising in the High Court
of Bombay and they have challenged a circular letter dated March 18, 1981,
addressed by Shri Shiv Shankar, the Law Minister of the Government of India,
to the Governor of Punjab and the Chief Ministers of the other States.

 I would request you to- (a) obtain from all the Additional Judges working in the
High Court of your State their consent to be appointed as permanent Judges
in any other High Court in the country.

 We do not know what the Chief Justices of the various High Courts did on
receipt of a copy of the circular letter from the Law Minister and from the Chief
Ministers of their respective States, but presumably each Chief Justice sent a
copy of the circular letter to the Additional Judges in his court with a request to
do the needful in view of what was stated in the circular letter.

 The Chief Justice of Bombay High Court in any event addressed such a
communication to each of the Additional Judges in his Court.

 We do not know what was the response of the Additional Judges in Bombay
to the circular letter but the record shows that out of the total number of
Additional Judges in the country, quite a few Additional Judges gave their
consent to be appointed outside their High Court.

 Respondents 1 and 2 in the meanwhile filed Transfer Petition No. 24 of 1981

for transfer of the writ petition from the Bombay High Court to this Court under
Article 139-A of the Constitution and ultimately by an order dated June 9,
1981, the Vacation Judge directed that the writ petition be withdrawn from the
Bombay High Court to this Court and he also gave directions for filing of
affidavits and written briefs.
 The petitioner in the writ petition is a senior advocate practising in the
Supreme Court and he has not only challenged the constitutional validity of
the circular letter issued by the Law Minister but also assailed the practice
followed by the Central Government in appointing Additional Judges in
various High Courts.

 The petitioner claimed in the writ petition, in addition to the declaration that the
circular letter was unconstitutional and void, a writ of mandamus directing the
Central Government to convert the posts of Additional Judges into permanent
Judges in the various High Courts commensurate with the regular business
and the arrears in those High Courts and in particular to convert 12 posts of
Additional Judges in the Delhi High Court into permanent posts having regard
to the regular business and the large arrears in that High Court.

 Since the questions arising in the writ petition were questions of great
constitutional importance and the first writ petition had already been filed in
the Bombay High Court and another writ petition to which we shall presently
refer had also been presented in the High Court of Allahabad raising
substantially the same questions, an application was made to this Court on
April 24, 1981 for transfer of the writ petition to this Court and by an order
dated May 1, 1981 this Court transferred the writ petition to itself from the
Delhi High Court.

 The further term of O.N Vohra, S.N Kumar and S.B Wad was about to expire
on June 6, 1981 and no decision appeared to have been taken till then for
continuing these three Additional Judges for a further term and the petitioner
apprehended that if these three Additional Judges were not continued as
Additional Judges on the expiration of their term on June 6, 1981, the writ
petition might become infructuous.

 The petitioner presented an application to this Court on May 4, 1981 for an

order directing that the writ petition be heard and disposed of before June 6,
1981 and that in any event, the respondents should maintain status quo by
extending the period of appointment of Additional Judges in the various High
Courts till the disposal of the writ petition.

 The petitioner in the writ petition is an advocate practising in the Allahabad

High Court and he has filed this writ petition for substantially the same reliefs
as the writ petitions of Iqbal Chagla and V.M Tarkunde, with only this
 difference that the reliefs claimed by him relate to the appointments of
Additional Judges in the High Court of Allahabad.

 Singh, Chief Justice of the High Court of Patna as Chief Justice of the High
Court of Madras with effect from the date he assumed charge of his office.

 The Bench decided to admit this writ petition and issued rule nisi.

 8. The sixth writ petition is that filed by A. Rajappa, an advocate practising in

the High Court of Madras.

 The writ petition was originally filed in the High Court of Madras under Article
226 of the Constitution and in this writ petition the petitioner challenged the
constitutional validity of the orders of transfer passed by the President on
January 19, 1981 transferring Mr Justice M.M Ismail, Chief Justice of Madras
High Court as the Chief Justice of Kerala High Court and Mr Justice K.B.N
Singh, Chief Justice of Patna High Court as the Chief Justice of Madras High
Court.

 10. The eighth writ petition is that filed by D.N Pandey and Thakur Ramapati
Sinha, two advocates practising in the High Court of Patna.

 The writ petition was originally filed in the High Court of Patna under Article
226 and it challenged the constitutional validity of the Orders transferring
Chief Justice M.M Ismail to the Kerala High Court and Chief Justice K.B.N
Singh to the Madras High Court.

 The averments and prayers made in this writ petition are substantially the
same as those made in the fifth, sixth and seventh writ petitions filed
respectively by Miss Lily Thomas, A. Rajappa and P. Subramanian and it is
not necessary to repeat them.

 This is hardly a ground on which the writ petition should have been rejected
by the High Court in limine and we would have ordinarily granted special
leave to appeal against the decision of the High Court, but in view of the fact
that the issues sought to be raised by the petitioner have already been
agitated in the other writ petitions, it is not necessary to grant special leave
and we do not propose to make any order on the special leave petition.

 He urged that the petitioners in the writ petition had not suffered any legal
injury as a result of the issuance of the circular by the Law Minister or the
making of short-term appointments by the Central Government and they had
 no locus standi to maintain the writ petition assailing the constitutional validity
of the circular or the short-term appointments.

 The legal injury, if at all, was caused to the Additional Judges whose consent
was sought to be obtained under the circular or who were appointed for short
terms and they alone were entitled to impugn the constitutionality of the
circular and the short-term appointments and not the petitioners.

 A ratepayer can question the action of the municipality in granting a cinema

licence to a person, vide: K. Ramadas Shenoy v. Chief Officers, Town
Municipal Council, Udipi AIR 1974 SC 2177.

 The law provides that any other person acting as his next friend may bring an
action in his name for judicial redress, vide: Order 32 of the Code of Civil
Procedure.

 So also where a person is detained and is not in a position to move the court
for securing his release, any other person may file an application for a writ of
habeas corpus challenging the legality of his detention.

 The order of dissolution was voidable at the instance of the Council, but the
Council did not complain.

 It is in the spirit that the court has been entertaining letters for judicial redress
and treating them as writ petitions and we hope and trust that the High Courts
of the country will also adopt this pro-active, goal-oriented approach.

 Requirements of locus standi are unnecessary in this case since they merely
impede the purpose of the function as conceived .

 The view has been taken by the courts in many decisions that whenever there
is a public wrong or public injury caused by an act or omission of the State or
a public authority which is contrary to the Constitution or the law, any member
of the public acting bona_fide and having sufficient interest can maintain an
action for redressal of such public wrong or public injury.

 The principle underlying the traditional rule of standing is that only the holder
of the right can sue and it is held in many jurisdictions that since the State
representing the public is the holder of the public rights, it alone can sue for
redress of public injury or vindication of public interest.
 There is a machinery in the United Kingdom for judicial redress for public
injury and protection of social, collective, what Cappelletti calls "diffuse" rights
and interests.

 Be that as it may, the fact remains that we have no such institution in our
country and we have to liberalise the Rule of standing in order to provide
judicial redress for public injury arising from breach of public duty or from
other violation of the Constitution or the law.

 23. We would hold that any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of
public duty or from violation of some provision of the Constitution or the law
and seek enforcement of such public duty and observance of such
constitutional or legal provision.

 The petitioners are lawyers practising in the High Court of Bombay.

 They have a special interest in preserving the integrity and independence of

the judicial system and if the integrity or independence of the judiciary is
threatened by any act of the State or any public authority, they would naturally
be concerned about it, because they are equal partners with the Judges in the
administration of justice.

 The petitioners being lawyers had sufficient interest to challenge the

constitutionality of the circular letter and they were entitled to file the writ
petition as a public interest litigation.

 We must reject the preliminary objection raised by Mr Mridul challenging the

locus standi of the petitioners in the first group of writ petitions.

 The judiciary has a socio-economic destination and a creative function.

 Cardozo approvingly quoted President Theodore Roosevelt's stress on the

social philosophy of the Judges, which shakes and shapes the course of a
nation and the choice of Judges for the higher Courts which makes and
declares the law of the land, must be in tune with the social philosophy of the
Constitution.

 The figures given by the Union of India also show the large arrears pending in
the different High Courts and it is clear from these figures that the total
number of pending main cases has been steadily rising from 6,13,799 on
December 31, 1978 to 6,78,951 on December 31, 1980.
 It was contended on behalf of the petitioners that the President has failed to
discharge his constitutional duty under Article 216 by not appointing the
requisite number of Judges necessary for the purpose of disposing of the
pending cases.

 Court for the purpose of disposing of the cases pending in the High Court, but
the President had failed to apply his mind to this question and not taken the
necessary steps for the purpose of appointing the requisite number of Judges
in each High Court.

 The petitioners sought a writ of mandamus against the Union of India

requiring the Union of India to refix the strength of Judges in each High Court
having regard to the number of pending cases in that High Court and on the
basis of the average rate of disposals per Judge per year.

 We do not think we can issue such a writ of mandamus against the Union of
India for fixing a particular strength of Judges in each High Court.

 The fixation of the strength of judges in each High Court is a purely executive
function which is entrusted by Article 216 to the President, that is, the
Government of India and it is entirely for the Government of India to decide in
the exercise of its judgment as to what shall be the strength of Judges in each

 It is a singularly complex problem and merely increasing the number of

Judges in a High Court would not necessarily solve the problem of disposal of
pending cases.

 Sometimes when the number of Judges in a High Court is increased, the law
of diminishing returns begins to operate and the disposals of cases do not
increase commensurately with the addition to the number of Judges.

 What should be the number of Judges necessary to be appointed in a

particular High Court must essentially remain a matter within the discretion of
the Government of India and if the Government of India does not appoint
sufficient number of Judges, the appeal must be to the legislature and not to
the Court.

 All that the Court can do is to express the hope that the Government of India
will periodically review the strength of Judges in each High Court and appoint
as many
 The power of appointment of Judges of the Supreme Court is to be found in
clause (2) of Article 124 and this clause provides that every Judge of the
Supreme Court shall be appointed by the President after consultation with
such of the Judges of the Supreme Court and the High Courts in the States as
the President may deem necessary for the purpose, provided that in the case
of appointment of a Judge other than the Chief Justice, the Chief Justice of
India shall always be consulted.

 So also Article 217, clause (1) vests the power of appointment of Judges of
High Courts in the Central Government, but such power is exercisable only
"after consultation with the Chief Justice of India, the Governor of the State,
and, the Chief Justice of the High Court."

 It is clear on a plain reading of these two articles that the Chief Justice of
India, the Chief Justice of the High Court, and such other Judges of the High
Courts and of the Supreme Court as the Central Government may deem it
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 is true that the Chief Justice of India is the head of the Indian judiciary and
may be figuratively described as paterfamilias of the brotherhood of Judges
but the Chief Justice of a High Court is also an equally important constitutional
functionary and it is not possible to say that so far as the consultative process
is concerned, he is in any way less important than the Chief Justice of India.

 Justice of a High Court is not subject to the administrative superintendence of

the Chief Justice of India nor is he under the control or supervision of the
Chief Justice of India.

 There is a valid and intelligible purpose for which the opinion of each of the
three constitutional functionaries is invited before the Central Government can
take a decision whether or not to appoint a particular person as a Judge in a
High Court.

 I think that that is also a dangerous proposition."

 It is clear that where there is difference of opinion amongst the constitutional

functionaries in regard to appointment of a Judge in a High Court, the opinion
of none of the constitutional functionaries is entitled to primacy but after
considering the opinion of each of the constitutional functionaries and giving it
 due weight, the Central Government is entitled to come to its own decision as
to which opinion it should accept in deciding whether or not to appoint the
particular person as a Judge.

 So also where a Judge of the Supreme Court is to be appointed, the Chief

Justice of India is required to be consulted, but again it is not concurrence but
only consultation and the Central Government is not bound to act in
accordance with the opinion of the Chief Justice of India though it is entitled to
great weight as the opinion of the head of the Indian Judiciary.

 Consultation with the Chief Justice of India is a mandatory requirement but

"such of the Judges of the Supreme Court and of the High Courts" as the
Central Government may deem necessary are also required to be consulted.

 The petitioners contended that the Central Government may, if it thinks fit,
consult one or more of the Judges of the Supreme Court and of the High
Courts or it may not consult any and where it does not, the Chief Justice of
India will be the only constitutional functionary required to be consulted and in
such a case the Central Government must accept the opinion of the Chief
Justice of India as binding upon it.

 The words "as the President may deem necessary" qualify only the preceding
words "such of the Judges of the Supreme Court and of the High Courts in the
States.

 " Which of the Judges of the Supreme Court and of the High Courts should be
consulted is left to the discretion of the Central Government but consultation
there must be with one or more of the Judges of the Supreme Court and of
the High Courts.

 The Central Government must consult at least one Judge out of the Judges of
the Supreme Court and of the High Courts before exercising the power of
appointment conferred by clause (2) of Article 124.

 But even with the provision, we do not think that the safeguard is adequate
because it is left to the Central Government to select any one or more of the
Judges of the Supreme Court and of the High Courts for the purpose of
consultation.

 The question is of the greatest importance because as against a total

sanctioned strength of 308 permanent Judges, there is a total sanctioned
 strength of as many as 97 additional Judges, which means that the total
sanctioned strength of Additional Judges is almost one-third the total
sanctioned strength of permanent Judges.

 There are a large number of additional Judges in various High Courts whose
tenure is short and precarious and their fate should naturally be a matter of
serious concern for this Court.

 "If by reason of any temporary increase in the business of a High Court or by

reason of arrears of work therein, it appears to the President that the number
of the Judges of that court should be for the time being increased, the
President may appoint duly qualified persons to be Additional Judges of the
Court for such period not exceeding two years as he may specify."

 Clause (2) of Article 224 provides for appointment of an acting Judge during
the period when any Judge of a High Court other than the Chief justice is, by
reason of absence or for any other reason, unable to perform the duties of his
office or is appointed temporarily as Chief Justice.

 It is obvious that the tenure of an acting Judge is by its very nature limited
because he is appointed to act as a Judge only during the period when the
permanent Judge in whose place he is acting is unable to perform the duties
of his office and he would cease to be a Judge as soon as the permanent
Judge resumes his duties.

 Even if an Additional Judge has been appointed for a period of two years, he
would cease to be a Judge if he attains the age of 62 years prior to the
expiration of his term of two years.

 Sub-section (2) of Section 101 provided that each High Court shall consist of
the Chief Justice and as many other Judges as His Majesty may think fit to
appoint and clause (i) of the proviso to that sub-section authorised the
Governor-General-in-Council to appoint persons to act as Additional Judges
of any High Court for such period not exceeding two years as may be
required.

 The Additional Judges were to have all the powers of a Judge of the High
Court appointed by His Majesty.

 The system of appointment of Additional Judges was in vogue when the

Constituent Assembly met to frame the Constitution.
 The acting Judge contemplated by this clause of Article 198 was clearly a
temporary Judge.

 I would not apply this to temporary Judges taken from the services who hold a
seat on the Bench for a few months, but I would add that the practice of
appointing additional and temporary Judges should be definitely given up.

 The Drafting Committee took the view that "it was possible to discontinue the
system of appointment of temporary and Additional Judges in the High Courts
altogether by increasing, if necessary, the total number of permanent Judges
of such Courts".

 The Constituent Assembly adopted the recommendation of the Drafting

Committee to delete Articles 198(2) and 199 of the Draft Constitution
providing for appointment of acting and Additional Judges in High Courts, with
the result that when the Constitution came to be enacted, there was no
provision in the Constitution for appointment of acting or Additional Judges.

 (2) When any Judge of a High Court other than the Chief Justice is by reason
of absence or for any other reason unable to perform the duties of his office or
is appointed to act temporarily as Chief Justice, the President may appoint a
duly qualified person to act as a Judge of that court until the permanent Judge
has resumed his duties.

 (3) No person appointed as an Additional or acting Judge of a High Court

shall hold office after attaining the age of sixty-two years."

 We have already set out the amended clause (1) of Article 217 in an earlier
part of the judgment and we need not reproduce it once again.

 It must appear to the President that either by reason of temporary increase in

the business of the High Court or by reason of accumulation of arrears of
work in the High Court, it is necessary to increase the number of the Judges
of that court for the time being.

 The words "for the time being" clearly indicate that the increase in the number
of Judges which the President may make by appointing Additional Judges
would be temporary with a view to dealing with the temporary increase in the
business of the High Court or the arrears of work in the High Court.

 The position necessitates a thorough revision of existing ideas regarding the

number of Judges required for each High Court.
 The normal strength of a High Court must be fixed on the basis of the average
annual institutions of all types of proceedings in a particular High Court during
the last three years.

 The requisite number of Additional Judges was also not appointed by the
Government though clause (1) of Article 224 clearly contemplated that
sufficient number of Additional Judges would be appointed in order to clear off
the arrear within a period of about two years.

 The old arrears continued to exist and new arrears were added out of the
current file of cases which remained undisposed of by the existing strength of
Judges.

 Whenever a person was appointed as a Judge in a High Court, he would be

first appointed as an Additional Judge and only when a vacancy occurred in
the post of a permanent Judge, he would be confirmed as a permanent Judge
in that vacancy in accordance with the seniority amongst the Additional
Judges.

 The practice grew up of a person being first appointed as an Additional Judge

and then being confirmed as a permanent Judge in the same High Court.

 The Union of India at the instance of the petitioners filed before us a

statement showing that in almost all cases barring a negligible few, every
person was appointed first as an Additional Judge in the High Court and then
confirmed as a permanent Judge in the same High Court as soon as a
vacancy in the post of a permanent Judge became available to him.

 Far from being aware that on the expiration of their term, they would have to
go back because they were appointed only as temporary Judges for a short
period in order to clear off the arrears - which would have been the position if
clause (1) of Article 224 had been implemented according to its true
intendment and purpose - the Additional Judges entered the High Court
judiciary with a legitimate expectation that they would not have to go back on
the expiration of their term but they would be either reappointed as Additional
Judges for a further term or if in the meanwhile, a vacancy in the post of a
permanent Judge became available, they would be confirmed as permanent
Judges.
 Clause (1) of Article 217 provides that "Every Judge" of a High Court shall be
appointed after consultation with the Chief Justice of India, the Governor of
the State and the Chief Justice of the High Court.

 In either case, clause (1) of Article 217 would operate and no reappointment
as an Additional Judge or appointment as a permanent Judge can be made
without going through the procedure set out in Article 217, clause (1).

 It would be a mockery of consultation with such high constitutional dignitaries.

There can be no doubt that an Additional Judge is not entitled as a matter of
right to be appointed as an Additional Judge for a further term on the
expiration of his original term or as a permanent Judge.

 How can clause (1) of Article 217 or Article 224 be so interpreted as to require
the Central Government to reappoint an Additional Judge for a further term or
to appoint him as permanent Judge, even if at the time of such reappointment
or appointment as the case may be, he is physically, intellectually or morally
unfit or unsuitable to be appointed as a Judge.

 Where an Additional Judge is not appointed as an Additional Judge for a

further term or as a permanent Judge despite the unanimous opinion of the
Chief Justice of the High Court and the Chief Justice of India, the decision of
the Central Government would prima facie be liable to attack and the burden
would lie heavy on the Central Government to show that it had cogent
reasons to disagree with the Chief Justice of the High Court and the Chief
Justice of India.

 India, and if it is found that there was no consultation with any of these three
constitutional functionaries before the decision was taken by the Central
Government not to appoint him or the decision of the Central Government is
based on irrelevant grounds, it would not be consideration by the Central
Government as required by clause (1) of Article 217 and he would be entitled
to challenge the decision of the Central Government which is based on what
may be called "non-consideration in law" and to require the Central
Government to reconsider his case in accordance with clause (1) of Article
217.

 The consequence would follow only because an Additional Judge has a right
to be considered for appointment as an Additional Judge for a further term or
as a permanent Judge.
 No person, who is proposed for initial appointment as a Judge would be
entitled to complain against the decision of the Central Government not to
appoint him, because he would have no right to be considered for
appointment as a Judge.

 43. We must also deal with the argument of the petitioners that so long as
there is a post of a permanent Judge vacant, no appointment of an Additional
Judge can be made under clause (1) of Article 224.

 It is clear from the language of clause (1) of Article 224 that it is only where
permanent Judges of a High Court are unable to cope with the current
institutions and the increased business or the arrears of pending cases and it
is found necessary for the purpose of disposing of the increased business or
the arrears of pending cases to increase the strength of the Judges of the
High Court for the time being that Additional Judges can be appointed.

 Clause (1) of Article 224 contemplates appointment of Additional Judges to

augment the strength of the existing Judges.

 It must follow logically that there must be full strength of existing Judges
before Additional Judges can be appointed and so long as any post of existing
Judges is not filled up, there can be no question of appointing Additional
Judges to augment their strength.

 It is necessary that the Central Government must periodically review the

strength of permanent Judges in each High Court, so that there is a proper
and adequate strength for the purpose of dealing with the normal institutions.

 Since there are large arrears pending almost in every High Court and it is not
humanly possible to dispose of these arrears within a measurable distance of
time even by appointment of Additional Judges, we think it necessary that
instead of appointing Additional Judges for the purpose of disposing of the
arrears, it would be desirable to increase the strength of permanent Judges
because the arrears have come to stay and we do not think it is possible to
wipe them out for a long period of time.

 The Union Government will take up the matter with the various State
Governments so that after consulting the Chief Justices of the High Courts,
they expeditiously send proposals for the conversion of a substantial number
of posts of Additional Judges into those of permanent
 We hope and trust that the Central Government will soon take the necessary
steps to increase realistically the strength of permanent Judges in each High
Court.

 That is the outside limit prescribed by Article 224, clause (1) and it was
contended by the learned Attorney-General that appointment of an Additional
Judge can be made for any term, howsoever short it be, so long as it does not
exceed two years.

 We may also point out that an Additional Judge cannot be appointed for a
period of three months or six months in order to enable the Chief Justice of
India or the Central Government to consider whether the Additional Judge
should be appointed for a further term or as a permanent Judge.

 We are of the view that the Chief Justice of India acted under a misconception
of the true constitutional position when he recommended the appointment of
O.N Vohra, S.N Kumar and S.B Wad for a period of six months and the
Central Government was also in error in appointing them only for a period of
three months.

 It is no more than a letter addressed to the Chief Minister of each State asking
him to obtain the consent of the Additional Judges as also of those
recommended or to be recommended for initial appointment, for being
appointed as Judges in a High Court outside the State.

 But Mr Mridul appearing on behalf of the Law Minister convincingly dealt with
this criticism and referred in detail to various bodies and forums which had
from time to time expressed the view that one-third of the Judges of every
High Court should as far as possible be from outside the State in which that
High Court is situated.

 It would secure on the Bench of each High Court the presence of a number of
Judges who would not be swayed by local considerations or affected by
issues which may rouse local passions and emotions.

 There can be no difficulty in having a certain percentage of Judges who hail

from other States.

 The question was also discussed at the Meetings of the Consultative

Committee of Parliament for the Law Ministry held on June 7, 1980, July 24,
1980 and December 17, 1980 and the unanimous view taken by the members
 of the Consultative Committee belonging to different political parties was that
at least one-third of the Judges in a High Court should be from outside the
State.

 The Chief Justice of India also in a communication addressed to the Law

Minister in March 1978, expressed his view favouring outside appointments to
High Courts and in a letter addressed by him to the Law Minister on March 18,
1981, he opined that "it is high time that at least a few of the new
appointments to every High Court were made from outside the State".

 The unanimity of view has been so complete and overwhelming that it is

impossible to contend that the policy of having one-third of the Judges in
every High Court from outside the State, which the Law Minister is trying to
implement by issuing the circular letter, is ill-conceived or mala fide or
subversive of the independence of the judiciary.

 47. The circular letter after referring to the suggestion made by several bodies
and forums that one-third of the Judges of the High Court should, as far as
possible, be from outside the State, proceeded to add: "Somehow no start
could be made in the past in this direction."

 In the first place, what the circular letter seeks to do is to obtain the consent of
the Additional Judges, not for transfer to some other High Court, but for
appointment as permanent Judges in another High Court, whereas what took
place during the emergency were transfers of High Court Judges from one
High Court to another.

 The Law Minister was right in stating in the first paragraph of the circular letter
that no start has been made in the past in the direction of having one-third
Judges in a High Court from outside the State and that is why he was taking
the initiative in the matter.

 The inquiry has to be made before the process of consultation can start and
the Law Minister by addressing the circular letter requested the Chief Minister
of each State to make this inquiry.

 The Chief Minister would not be expected to contact directly the Additional
Judges or the persons recommended for initial appointment, for the purpose
of ascertaining whether they are willing to be appointed as Judges in any
other High Court.
 Since the Chief Justice of the High Court is the head of the judiciary in the
State, the Chief Minister would invariably route his inquiry through the Chief
Justice of the High Court and request the Chief Justice of the High Court to
ascertain whether any of the Additional Judges or persons recommended for
initial appointment are willing to be appointed to a High Court outside the
State.

 The Law Minister had to make this inquiry because without information as to
whether an Additional Judge or a person recommended for initial appointment
was willing to be appointed as a Judge in another High Court, his name could
not be processed for appointment as a Judge in that High Court.

 A serious objection was raised on behalf of the petitioners and a question was
posed as to how the Chief Justice of a High Court can make any
recommendation in regard to a person proposed to be appointed as a Judge
in his High Court unless he knows such person and has seen his work either
at the Bar or in the High Court or District Court and is in a position to assess
his suitability for being appointed as a Judge.

 The Chief Justice of the High Court can also enquire from the Governor of the
State where the person proposed to be appointed is working as an Additional
Judge or District Judge or practising as a lawyer and find out what are his
antecedents and whether he possesses character and integrity.

 It is not at all difficult for the Chief Justice of the High Court where an
appointment is proposed to be made to gather the requisite information about
the person proposed to be appointed so as to enable him to make up his mind
in regard to the suitability of such person for appointment as a Judge.

 There have been cases, though very few, where the Chief Justice of the High
Court has declined to accept the person proposed by the Chief Justice of
India for appointment as a Judge in his High

 Merely because a recommendation emanates from the Chief Justice of India,

it does not mean that consultation with the Chief Justice of the High Court
where the person concerned is proposed to be appointed, would be reduced
to a mockery.

 We fail to see how the obtaining of the consent of the person proposed for
appointment, in advance for being appointed as a Judge in another High
Court can possibly have the effect of reducing consultation with the Chief
 Justice of India to a mockery or making it ineffective so as to be violative of
clause (1) of Article 217.

 49. The next contention urged on behalf of the petitioners was that the circular
letter held out a veiled threat to the Additional Judges that if they do not
consent to their appointment as Judges in a High Court other than their own,
they may not be appointed as permanent Judges at all and may be dropped
on the expiration of their term of office.

 Now we fail to see how from the mere use of the word "obtain" in the circular
letter, this entire edifice of an argument that there was an implied threat to the
Additional Judges that if they do not give their consent for being appointed as
Judges in another High Court, they would be visited with adverse
consequences, can be built up.

 The word "obtain" is a transitive verb and it is obvious that when the Chief
Minister of each State was asked by the Law Minister by issuing the circular
letter to obtain the consent of the Additional Judges for being appointed as
permanent Judges in another High Court, what was meant was that the Chief
Minister should obtain the consent of each Additional Judge if he was willing
to give such consent.

 But we do not see how this statement can be regarded as a veiled threat that
if an Additional Judge does not give his consent for being appointed as a
Judge in another High Court, he may not be appointed as a permanent Judge
at all and may be discontinued on the expiration of his term of office.

 The statement merely reiterated the legal position, too wellsettled to admit of
any doubt or debate, that merely because a person has given his consent to
be appointed as a Judge in a High Court, it does not mean that he would
necessarily be appointed as a Judge.

 It is significant to note that the circular letter did not state, as it well might
have, if such was the intention of the Law Minister, that if consent is not given
by an Additional Judge for being appointed as a permanent Judge in another
High Court, he would run the risk of being discontinued as an Additional
Judge on the expiration of his term.

 Judge for a further term or as a permanent Judge in his own High Court and
such appointment cannot be refused to him on the ground he has not given
his consent for being appointed as a permanent Judge in another High Court.
 We do not think that our Additional Judges are made of such weak stuff that
they would submit to any supposed threats by the executive and give their
consent to be appointed as permanent Judges in another High Court out of
fear that they might be discontinued as Additional Judges if they do not give
such consent.

 It is not as if a person who does not give his consent for being appointed as a
Judge in another High Court would necessarily be refused appointment in his
own High Court.

 When such person is not a sitting Judge in any High Court and is appointed
for the first time in another High Court, it is difficult to see how he can be said
to be transferred.

 Equally there is no transfer involved where an Additional Judge is, on the

expiration of his term, appointed as an Additional Judge in another High Court
or is appointed as a permanent Judge in any other High Court.

 Court, he has physically to go to that High Court, but it is not while being a
Judge of one High Court that he goes over as a Judge of the other High
Court.

 His appointment as an Additional Judge of one High Court comes to an end

and he is appointed afresh as an Additional or permanent Judge in another
High Court.

 It is by virtue of a fresh appointment that he becomes a Judge, whether

additional or permanent, of another High Court and he is not transferred from
one High Court to another within the meaning of clause (1) of Article 222.

 Take for example a case where a person who is an Additional Judge in a High
Court for a period of two years is, on the expiration of his term of two years,
appointed as a permanent Judge in another High Court.

 The learned counsel contended that the use of the expression "transfer" by
the Law Minister himself supported his argument that what the circular letter
sought to do was to transfer Judges from one High Court to another.

 Then again in column 270, the Law Minister clarified that the "appointment" of
an Additional Judge as a permanent Judge could also be termed as an initial
appointments.
 54. But quite apart from this consideration, even if the view be taken that what
the circular letter sought to achieve was transfer of Additional Judges from
one High Court to another, it is difficult to see how by obtaining consent of the
Additional Judges in advance, the Law Minister would be circumventing the
majority decision in Sankalchand Sheth case.

 Even where the consent of the Additional Judge has been obtained in
advance, the Chief Justice of India would have to consider whether it is in
public interest to appoint the Additional Judge as a permanent Judge in
another High Court and the consent obtained in advance would not pre-empt
the consultative exercise with the Chief Justice of India.

 The advance consent obtained from the Additional Judge would have no
meaning so far as the Chief Justice of India is concerned, because
irrespective of whether the Additional Judge has given his consent or not, the
Chief Justice of India would have to consider whether it would be in public
interest to allow the Additional Judge to be appointed as a permanent Judge
in the other High Court.

 Even on the assumption that the appointment of an Additional Judge as a

permanent Judge in another High Court amounts to transfer, which we
emphatically repudiate, it is difficult to see how the circular letter can be
construed as an attempt to circumvent the majority decision in Sankalchand
Sheth case.

 The circular letter does not violate the provisions of clause (1) of Article 217 or
clause (1) of Article 222 nor does it offend against any other constitutional or
legal provision and the challenge against the validity of the circular letter must
fail.

 The reasons which the Central Government is inclined to take into account for
reaching a particular decision have necessarily to be communicated to the
Chief Justice of the High Court, the State Government and the Chief Justice
of India and in the circumstances, it should ordinarily be possible for the Court
to gather from such communication, the reasons which have persuaded the
Central Government to take its decision.

 It is intended to serve a social purpose and it cannot be interpreted without

taking into account the social, economic and political setting in which it is
intended to operate.
 Let us try to understand what voice this statutory provision speaks today in a
democratic society wedded to the basic values enshrined in the Constitution.

 Disclosure of information in regard to the functioning of Government must be

the rule and secrecy an exception justified only where the strictest
requirement of public interest so demands.

 We are unable to accept the decision in Sodhi Singh case as laying down the
correct law on this point.

 It is in the interest of the State and necessary for the proper functioning of the
public service that some protection be afforded by law to documents
belonging to this class.

 The court has to decide which aspect of the public interest predominates or in
other words, whether the public interest which requires that the document
should not be produced, outweighs the public interest that a court of justice in
performing its function should not be denied access to relevant evidence.

 The House of Lords held that "on balance the public interest clearly requires
that documents of this kind should not be disclosed" and upheld the claim of
immunity in respect of the letter which gave information to the Gaming Board
about the character, reputation and antecedents of the appellant.

 It has been held since long before Conway v. Rimmer was decided in England
and since the decision in Sodhi Sukhdev Singh case in India that a claim for
immunity against disclosure should be made by the minister who is the
political head of the department concerned or failing him, by the secretary of
the department and the claim should always be made in the form of an
affidavit.

 It is clear that if a document is entitled to immunity against disclosure, it

cannot be adduced in evidence by either party and even if neither of the
parties claims such immunity, the Judge himself must take the objection, for
the rule that the public interest must not be put in jeopardy by the disclosure
of a document which would injure it, is one upon which the court should, if
necessary, insist, even though no objection has been taken by any party or by
any government department.

 We took the affidavit of T.N Chaturvedi on file and allowed the Union of India
to rely upon it.
 If there is any doubt whether the document does relate to affairs of State, the
residual power which vests in the Court to inspect the document for the
purpose of determining whether the disclosure of the document would be
injurious to public interest and the document is one relating to affairs of State,
is not excluded by Section 162.

 "The power reserved to the court is a power to order production even though
the public interest is to some extent affected prejudicially.

 The doctrine of class immunity is no longer impregnable; it does not any more
deny judicial scrutiny; it is no more a mantra to which the court pays
obeisance.

 It is undoubtedly true that appointment or non-appointment of a High Court

Judge or a Supreme Court Judge and transfer of a High Court Judge are
extremely important matters affecting the quality and efficiency of the judicial
institution and it is absolutely essential that the various constitutional
functionaries concerned with these matters should be able to freely and
frankly express their views in regard to these matters.

 It may be noted that the discontinuance of an Additional Judge by the Central

Government is a serious matter and if such discontinuance is mala fide or
based on irrelevant grounds, it would tend to affect the independence of the
judiciary and it is necessary in order to maintain public confidence in the
independent functioning of the judiciary that the people should know whether
the constitutional requirements were complied with before the decision was
taken not to continue the Additional Judge and whether any oblique
motivations or irrelevant considerations influenced the Central Government in
reaching that decision.

 83. the selfsame reasons must apply equally in negativing the claim for
immunity in respect of the correspondence between the Law Minister and the
Chief Justice of India and the relevant notings made by them in regard to the
transfer of a High Court Judge including the Chief Justice of a High Court.

 It is obvious that, in a proceeding where the transfer of a High Court Judge or

Chief Justice of a High Court is challenged, no immunity can be claimed in
respect of the correspondence exchanged between the Law Minister and the
Chief Justice of India and the notings made by them, since, on the balance,
the non-disclosure of these documents would cause greater injury to public
interest than what may be caused by their disclosure.
 Equally we are confident that merely because the Chief Justice of the High
Court has come to a different opinion and is not prepared to change that
opinion despite the persuasion of the Chief Justice of India, no offence would
be taken by the Chief Justice of India and he would not harbour any feeling of
resentment against the Chief Justice of the High Court.

 Article 217 provides that every Judge of the High Court shall be appointed by
the President after consultation with the Chief Justice of India, the Governor of
the State and the Chief Justice of the High Court.

 We have already rejected the contention urged on behalf of the respondents

that the requirement of consultation is necessary only where a person is being
appointed a Judge of the High Court and not where a decision is taken not to
appoint him.

 We have made it clear that where the name of a person is proposed for
appointment as a Judge of the High Court for the first time, he, having no right
to be considered for such appointment, is not entitled to insist that the
proposal for his appointment, whether initiated by the Chief Justice of the High

 It becomes necessary to consider whether the Central Government arrived at

its decision not to appoint Shri S.N Kumar as an Additional Judge for a further
term after consultation with the Chief Justice of India.

 He pointed out in the letter that he had received complaints against S.N
Kumar both oral and in writing and on examining these complaints he had
found that some of them were not without basis but he frankly stated that he
had no investigating machinery at his disposal and it was not possible for him
to find conclusively whether these complaints were genuine or not.

 The Court has in unhesitating terms condemned the adoption of such a

course by the High Court in the case of subordinate judiciary and much more
so would it be reprehensible in the case of sitting Judge of a High Court.

 It must necessarily be left to the Chief Justice of the High Court to give his
opinion in regard to the suitability of an Additional Judge for further
appointment on the basis of such information as he may gather by making his
own inquiries.

 The possibility cannot be ruled out that the information received by the Chief
Justice of the High Court may at times be motivated or prejudiced, because
 the Additional Judge has offended some member of the Bar or decided some
case against a litigant.

 It is not realised by many that very often the judgments given by the High
Courts and the Supreme Court are value judgments, because there are
conflicting values competing for recognition by the Judge and the choice
made by the Judge is largely dictated by his social philosophy and it is not
possible to emphatically assert that a particular view taken by one Judge is
wrong and a different view taken by another Judge is right.

 It is possible that the Chief Justice of the High Court may go wrong in a given
case and arrive at an erroneous opinion in regard to the suitability of an
Additional Judge for appointment for a further term and that may result in
injustice to the Additional Judge who may suffer by reason of such erroneous
opinion but that cannot be helped because ultimately some constitutional
functionary has got to be entrusted with the task of assessing the suitability of
the person to be appointed an Additional

 Judge or a permanent Judge and no better person can be found for this
purpose than the Chief Justice of the High Court.

 Where the complaint against an Additional Judge is in regard to his integrity,

the Chief Justice of the High Court is not expected to hold a judicial or quasi-
judicial inquiry for the purpose of adjudicating whether the Additional Judge is
lacking in honesty and integrity.

 What the Chief Justice of the High Court has to do is merely to assess the
suitability of the Additional Judge for further appointment and where lack of
integrity is alleged against him, the assessment can only be on the basis of
his reputation for integrity.

 It is not enough in order to be able to recommend a person for appointment as

a Judge to say that there is no proof of lack of integrity against him, because,
if such were the test to be applied, there would be grave danger of persons
lacking in integrity being appointed as Judges.

 What the Chief Justice of the High Court is required to do is to give his opinion
in regard to the suitability of the Additional Judge for further appointment and
he has to consider various matters relevant to the question of appointment
and give his opinion to the President.
 He merely gives his personal opinion in regard to the suitability of the
Additional Judge in discharge of the constitutional duty laid upon him and
there is no question of any opportunity being afforded to the Additional Judge
before the Chief Justice of the High Court arrives at his opinion.

 92. When a copy of this letter dated February 19, 1981 was received by the
Chief Justice of India, he took the view that what was stated in the letter was
"too vague to accept that Shri Kumar lacks integrity" and he stated in a note
dated March 3, 1981 submitted by him to the Central Government that he
"would like to look carefully into the charges against Shri S.N Kumar" and
recommended extension of the term of S.N Kumar by six months.

 While the Chief Justice of India recommended extension of the term of S.N
Kumar for six months, the Law Minister proposed an extension for only three
months, presumably because he took the view that whatever inquiries are to
be made in regard to the complaints and doubts against S. .N. Kumar should
be carried out as quickly as possible and the decision on such a sensitive
issue as to whether an Additional Judge should be continued or not should
not be unduly delayed.

 It is natural that there may be variance between the views that may be
expressed by different people.

 The criticism of the Chief Justice of India voiced in that letter was that what
was stated by the Chief Justice of Delhi in his letter dated February 19, 1981
was vague and the Chief Justice of Delhi pointed out to the Law Minister that
he had discussed the entire matter in detail with the Chief Justice of India and
met his objection and there was no question of any vagueness and he hoped
that his reply would be sufficient answer to the observations of the Chief
Justice of India.

 It was obvious from the reply given by the Chief Justice of Delhi that despite
the discussion with the Chief Justice of India he stuck to his original
recommendation not to continue S.N Kumar for a further term and the Law
Minister naturally enquired from him by his letter dated April 15, 1981 as to
what was the material which provided the basis on which he concluded that
S.N Kumar's reputation for integrity was not above-board and recommended
that he may not be continued.

 Minister obviously could not accept the opinion of the Chief Justice of Delhi
blindly and unquestioningly because that would have amounted to abdication
 of his constitutional obligation and he asked the Chief Justice of Delhi to
furnish him the material on which the opinion of the Chief Justice of Delhi was
based.

 It is not only embarrassing but painful for me to write this letter.

 The court is concerned merely to enquire whether there was full and effective
consultation with the Chief Justice of Delhi and the Chief Justice of India and
not whether the opinion given by the Chief Justice of Delhi or the Chief Justice
of India was correct or not.

 The Chief Justice of Delhi after examining the relevant files in regard to this
complaint intimated to the Law Minister by his letter dated May 7, 1981 that
the complaint related to a suit which was disposed of by S.N Kumar and it
was a matter which could be commented upon only judicially.

 We may point out that the Chief Justice of Delhi was perfectly right in not
sitting in judgment over the decision given by S.N Kumar in Sabir Hussain's
suit, for it is not open to the Chief Justice of a High Court to examine the
judgments given by an Additional Judge and pass upon the quality of those
judgments for the purpose of deciding whether the Additional Judge should be
reappointed or not.

 The time fixed by this Court for the Union of India to decide whether S.N
Kumar should be reappointed for a further term as an Additional Judge or
should be appointed as a permanent Judge or otherwise, was expiring on
May 27, 1981 and the Law Minister was constrained to address a letter dated
May 21, 1981 reminding the Chief Justice of India that he had stated in his
note dated March 3, 1981 that he desired to look carefully into the charges
against S.N Kumar and requesting him that if he had made any inquiries, the
Law Minister "would be grateful to have the details" and also pressing him to
give his "urgent advice in regard to the continuance or otherwise" of the term
of S.N Kumar.

 The Chief Justice of India pointed out that it was a common practice in the
Delhi High Court that even after the allocation of a Judge was changed from
the original side to the appellate side and vice-versa, he continued to take up
the part-heard cases on which sufficient amount of time had already been
spent and S.N Kumar did nothing out of the way or unusual in taking up part-
heard cases after the allocation of his work was changed.
 It seems that some Intelligence Bureau report regarding S.N Kumar was also
sent by the Law Minister to the Chief Justice of India for his opinion along with
his letter dated May 22, 1981, but the Chief Justice of India could not give his
opinion with reference to the report since he had no time to examine it and he
stated that he would give his opinion after his return to New

 Since one short-term extension had already been granted, the Law Minister
presumably thought that it would not be right to go on giving short-term
extensions but that a decision should now be taken whether S.N Kumar
should be continued or not and he proceeded to make his recommendation
ignoring the Intelligence Bureau Report against S.N Kumar, the rate of his
disposals and even his alleged behaviour in court and confining himself only
to the question of his reputation for integrity.

 It becomes material to enquire whether the facts set out in the letter of the
Chief Justice of Delhi dated May 7, 1981 were placed before the Chief Justice
of India before he gave his opinion in the letter dated May 22, 1981.

 The Law Minister was also intrigued by this request and he asked the Chief
Justice of Delhi as to why he did not want the letter dated May 7, 1981 to be
placed before the Chief Justice of India and the Chief Justice of Delhi gave
three reasons which we have reproduced verbatim a little earlier.

 The second reason given by the Chief Justice of Delhi was that he had found
that the contents of his previous letter dated February 19, 1981 had come to
be known to S.N Kumar and some of his colleagues on the Bench and he felt
that if the letter dated May 7, 1981 was not kept by the Law Minister with
himself alone, but was sent by him to the Chief Justice of India, leakage might
occur in the process and the contents of that letter also might get known to
S.N Kumar and others, causing him further embarrassment.

 104. But before we part with this point, we must refer to one last contention
urged on behalf of the petitioners and S.N Kumar and that contention was that
the non-appointment of S.N Kumar as an Additional Judge was tantamount to
his removal and the Central Government was bound to follow the principles of
natural justice before taking the decision not to continue him as an Additional
Judge.

 There is no question of giving him an opportunity to be heard before the

decision is taken not to appoint him as a permanent Judge or an Additional
Judge.
 107. The second group of writ petitions raises the question of constitutional
validity of the orders transferring Chief Justice M.M Ismail to the Kerala High
Court and Chief Justice K.B.N Singh to the Madras High Court.

 While considering the question, I would like to emphasise at the outset, and
the point I am making is one of great importance, that when a transfer of a
Judge of a High Court is challenged in a court of law, the burden must lie
upon the Government to sustain the validity of the transfer.

 We have to proceed on the basis of the counter-affidavit of the Chief Justice

of India as it stands without any further clarification or elucidation.

 The Chief Justice of India should have before making his proposal for transfer
by his letter dated December 7, 1980, informed Chief Justice K.B.N Singh
about his proposed transfer to Rajasthan High Court and enquired from him
whether he would have any particular problems or difficulties, if he was
transferred to the Rajasthan High Court.

 The letter dated December 7, 1980 merely states that he was recommending
the transfer of Chief Justice K.B.N Singh on the basis of the data which he
had collected as a result of personal inquiries made from several lawyers and
many other Judges of the High Court and which he had considered with the
greatest objectivity.

 K.B.N Singh was proposed to be transferred not because he was a senior and
experienced Chief Justice who was required to man the High Court of Madras
in place of Chief Justice M.M Ismail but because the Chief Justice of India
was of the view that he should be moved out of the Patna High Court.

 There was clearly no full and effective consultation even in regard to this
aspect.

 118. I would allow the second group of writ petitions insofar as they challenge
the constitutional validity of the order transferring Chief Justice K.B.N Singh
and issue a writ declaring the order of transfer of Chief Justice K.B.N Singh as
unconstitutional and void.

 "(i) whether on the expiry of the term of office of an Additional Judge of a High
Court it is permissible to drop him by not giving him another term though the
Vol. of work pending in the High Court requires the services of another Judge;
 and (ii) in what circumstances a Judge of a High Court can be transferred to
another High Court."

 120. The first of the two questions set out above arises on the decision of the
Union of India not to extend the tenure of Shri S.N Kumar, an Additional
Judge of the Delhi High Court, on the expiry of his initial term of office.

 On February 19, 1981, a few days before Shri Kumar's term of office was to
expire, the Chief Justice of the Delhi High Court wrote to the Union Law
Minister saying that it was his "very painful duty not to recommend an
extension for Justice Kumar" as he had been receiving "persistent" and
"serious complaints" against Shri Kumar.

 In a note recorded on the relevant file on May 27, 1981 the Law Minister said:
"In the matter of assessment of integrity, I prefer that the views of C.J, Delhi
be given credence" and recommended that "Shri Justice S.N Kumar may not
be continued any further as Additional Judge of the Delhi High Court after the
expiry of the present tenure on June 7, 1981".

 In the aforesaid letter dated February 19, 1981 written by the Chief Justice of
the Delhi High Court to the Law Minister, the Chief Justice had also said:
"Normally, extension of the tenure of an Additional Judge is recommended
keeping in view the pendency in Court.

 Under Article 217(1) of the Constitution the President, before he appoints a

person as a Judge of a High Court, whether permanent or additional, has to
consult these functionaries: the Chief Justice of India, the Governor of the
State and, in the case of appointment of a Judge other than the Chief Justice,
the Chief Justice of the High Court.

 As things stand at present this seems to have become a regular feature as

would appear from the chart supplied during the hearing of these petitions
showing the number of permanent and Additional Judges in the different High
Courts.

 Except that the tenure of an Additional Judge is limited depending on the

arrears of work or the temporary increase in the business of a High Court, the
position and powers of an Additional Judge and a permanent Judge are the
same.
 Article 221(1) read with the Second Schedule which provides for the salaries
payable to the Judges of the High Court makes no distinction between an
Additional and a Permanent Judge.

 Also there is no special provision for Additional Judges; it cannot be

suggested that an Additional Judge of a High Court cannot be removed from
office.

 122. I have already referred to the provisions of Article 217(1) which provides
that the President must consult the Chief Justice of India, the Governor of the
State, and the Chief Justice of the High Court concerned before appointing a
person as a Judge of a High Court, whether permanent or additional.

 If the Vol. of work still pending in the High Court justifies the appointment of
an Additional Judge, when the term of an Additional Judge is about to expire,
there seems to be no reason why the Judge should not be appointed for
another term.

 The argument is that Article 224 only fixes an outer limit of time, and the
President is free to appoint

 Additional' Judges for varying periods of time not exceeding two years - for
three months or six months - as he pleases without reference to the Vol. of
work pending in the High Court.

 The fitness of the Judge had been considered at the time of his initial
appointment; what then should be the scope of consultation when the
appointment of an Additional Judge for another term is contemplated.

 In his letter written to the Law Minister on February 19, 1981 the Chief Justice
of the Delhi High Court while stating that it was his "very painful duty not to
recommend an extension for Justice Kumar", added that he had "no
investigating agency to conclusively find out whether the complaints are
genuine or not".

 of arrears pending in the High Court and then proceed with an inquiry into the
allegations and remove the Judge if the allegations were found true, in
accordance with the procedure laid down in clauses (4) and (5) of Article 124
read with Article 218.

 From long practice, mentioned earlier, an Additional Judge has a legitimate

expectancy, if not a right, to be appointed for another term if the pending
 business in the High Court requires the services of an Additional Judge, or as
a permanent Judge, when a vacancy is available, if he is the seniormost of
the Additional Judges.

 It must follow that while consulting the Chief Justice, the President must make
the relevant data available to him on the basis of which he can offer to the
President the benefit of his considered opinion.

 125. From the facts appearing from the correspondence that passed between
the Chief Justice of India and the Chief Justice of the High Court, the Chief
Justice of the High Court and the Law Minister, and between the Chief Justice
of India and the Law Minister, it would appear clearly that there has been no
complete and effective consultation on the question whether Shri Kumar's
term as an Additional Judge of the Delhi High Court should be extended.

 The Chief Justice of the Delhi High Court wrote to the Union Law Minister that
it was his "very painful duty not to recommend an extension for Justice
Kumar" because there had been "serious complaints against Mr Justice S.N
Kumar, both oral and in writing.

 ", the Chief Justice wrote, "it is not only embarrassing but painful for me to
write this letter.

 The Chief Justice added that these "unconfirmed reports" made him
"conclude that the reputation for integrity of Justice Kumar was not what
should be for a Judge of the High Court.

 The letter of May 29 discloses that the Chief Justice of the High Court
mentioned three reasons for not disclosing the letter to the Chief Justice of
India.

 Justice Kumar did nothing out of the way or unusual in taking up part-heard
cases after the allocation of his work was changed.

 I find it difficult to agree that Justice Kumar's term should not be extended for
the reasons mentioned by the Chief Justice of the Delhi High Court.

 On May 27, 1981 the Law Minister recorded a note in the relevant file
recommending that "Shri Justice S.N Kumar may not be continued any further
as Additional Judge of the Delhi High Court after the expiry of the present
tenure on June 7, 1981".
 It is impossible to think that if the details that the Chief Justice of the Delhi
High Court mentioned in his letter of May 7, 1981 addressed to the Law
Minister for his "personal attention only" were disclosed to the Chief Justice of
India he would not have referred to them in his letter on May 22.

 132. As part of the relevant material was withheld from the Chief Justice of
India it must be held that there was no full and effective consultation as
contemplated in Article 217(1) and this vitiates the decision not to extend Shri
Kumar's term of office as an Additional Judge of the Delhi High Court though
the volume of pending work in that High Court required the services of
another Judge.

 134. As stated above, in reaching the decision not to extend Shri Kumar's
tenure of office, the Law Minister preferred the opinion of the Chief Justice of
the Delhi High Court to that of the Chief Justice of India on the view that the
Chief Justice of the High Court had "better occasion and opportunity" to watch
his working and conduct.

 The Chief Justice of the High Court is likely to know more about a lawyer
practising in that Court whose name is proposed for appointment but where
the question is whether or not the tenure of an Additional Judge should be
extended, if all the relevant materials are before both, the Chief Justice of the
High Court and the

 The Law Minister in this letter requested those to whom the letter was
addressed to (a) obtain from all the Additional Judges of the High Court in a
State their consent to be appointed as permanent Judges in any other High
Court in the country and (b) also to obtain similar consent from those persons
who have been or in the future were likely to be proposed for appointment as
Judges.

 The letter also carried a request to obtain from the Additional Judges and the
proposed appointees names of three High Courts in order of preference to
which they would like to be appointed as Judges or permanent Judges as the
case may be.

 137. The question of transfer also arises in Transferred Case No. 2 of 1981
which is Writ Petition No. 390 of 1981 filed in the Madras High Court and in
Transferred Case No. 24 of 1981 which is Writ Petition No. 2224 of 1981 in
the Patna High Court.
 It was argued that the letter seeking to obtain general consent of the
Additional Judges to their transfer to other High Courts was only a device to
circumvent Article 222(1) reducing the requirement of consultation with the
Chief Justice of India to a formality.

 138. This letter of March 18, 1981 suggests in defence of the proposed
transfer of Judges that for furthering national integration and combating
narrow parochial tendencies one-third of the Judges of a High Court should
be from outside the State in which that High Court is situated.

 It has been held by a majority in Sankalchand case Union of India v.

Sankalchand Himatlal Sheth, 1977 4 SCC 193 that transfer of a Judge of a
High Court to another High Court is permissible only in public interest and not
by way of punishment.

 The policy may provide the President with a ground to suggest the transfer of
a Judge, but the Chief Justice of India must consider in each case whether
the proposed transfer is in public interest because, even granting the validity
of the policy, the question would remain who among the Judges should be
transferred and to which High Courts.

 139. In Transferred Case No. 24 of 1981 which was Writ Petition No. 2224 of
1981 in the Patna High Court in which Shri K.B.N Singh, Chief Justice of the
Patna High Court has been transposed as a petitioner, and Transferred Case
No. 2 of 1981 which was Writ Petition No. 390 of 1981 in the Madras High
Court, the validity of the notification transferring Shri K.B.N Singh as Chief
Justice of the Madras High Court is challenged.

 145. The petitioners alleged that the Union Law Minister who was Respondent
1 in the original writ petition had issued a circular letter dated March 18, 1981
(hereafter referred to as the "circular") to the Governor of Punjab and the
Chief Ministers of States requesting them to obtain the consent of Additional
Judges of the High Courts concerned to their transfer as permanent Judges of
High Courts other than those in which they were appointed as Additional
Judges.

 As a mark of serious protest against the circular and the discourteous

language in which the said document (circular) is alleged to have been
expressed, the legal practitioners practising in the High Court, city civil courts,
Small Cause Courts and the police courts resolved not to attend those courts
on April 15, 1981.
 152. Apart from the petitions which have been transferred to this Court other
petitions were also filed against the order of the President transferring Justice
Ismail, Chief Justice of the Madras High Court to be the Chief Justice of
Kerala High Court and Justice K.B.N Singh, Chief Justice of the Patna High
Court to be the Chief Justice of Madras High Court.

 153. the writ petition was filed by Miss Lily Thomas, an advocate of the
Supreme Court challenging the order of transfer of Justice Ismail from Madras
High Court to Kerala High Court.

 154. Another petition was filed by Mr Rajappa, Advocate in the Madras High
Court being Writ Petition 3 of 1981 praying that the orders of the President of
India transferring Chief Justice of the Madras High Court to the Kerala High
Court and the Chief Justice of the Patna High Court to the Madras High Court
be quashed on the ground that they were null and void and unconstitutional.

 The case raises substantially the same questions as are involved in Writ
Petition No. 274 of 1981.

 156. A similar Writ Petition No. 553 of 1981 was filed by Mr P. Subramanian
before the Madras High Court praying that the order of the President
transferring Justice Ismail from the Madras High Court to Kerala High Court
be quashed.

 In order to avoid such an anomalous position it should be held that no Judge

can be transferred under Article 222 from one High Court to another without
his consent.

 By and large, it was contended that non-consensual transfers should be

considered to be prima facie punitive and violative of Article 124(4) because if
they amount to punishment then the punishment can only be for his
misbehaviour or incapacity as contemplated by Article 124(4) and the
procedure established by the Constitution for impeachment.

 As no person can be appointed as a Judge of the High Court in the first

instance against his consent the same principle will apply mutatis mutandis to
a Judge who is transferred from one High Court to another because his
transfer to the transferee court would amount to his first appointment.
 (c) Does the Additional Judge have a right to be considered for appointment
for a further term or as permanent Judge on expiration of his term or he can
be just dropped without any consideration at all.

 To begin with, this matter was fully considered in Sheth case where the
majority judgment considered almost all the aspects of the matter and held
that consent cannot be read into Article 222 and a transfer of a Judge from
one High Court to another High Court can be made even without his consent
subject to effective consultation which has been explained by all the Judges.

 J. dissented from the majority decision and took the view that no transfer of
one High Court Judge to another High Court can be made without his
consent.

 171. For the reasons we are of the opinion that the judgment in Sheth case
may be reconsidered in the light of the fresh facts which have emerged since
then though ultimately we may reach the same conclusions as held by the
majority judgment.

 A general and unanimous policy of transfer of Judges and Chief Justices of

High Courts to promote national integration and suppress fissiparous
tendencies, would doubtless be in public interest.

 A power which is to be exercised by the President can be defeated or stalled

by a simple act of the Judge in refusing to give his consent to the transfer.

 Transfer of a Judge from one High Court to another.-(1) The President may,
after consultation with the Chief Justice of India, transfer a Judge from one
High Court to any other High Court.

 "224-A. Notwithstanding anything in this Chapter, the Chief Justice of a High

Court for any State may at any time, with the previous consent of the
President, request any person who has held the office of a Judge of that Court
or of any other High Court to sit and act as a Judge of the High Court for that
State, and every such person so requested shall, while so sitting and acting,
be entitled to such allowances as the President may by order determine and
have all the jurisdiction, powers and privileges of, but shall not otherwise be
deemed to be, a Judge of that High Court: Provided that nothing in this article
shall be deemed to require any such person as aforesaid to sit and act as a
Judge of that High Court unless he consents so to do."
 On a parity of reasoning if the intention of the Founding Fathers was to make
"consent" an essential ingredient of Article 222, they would have used the
expression "the President may, with the consent of the Judge concerned,
transfer a Judge from one High Court to another".

 This leads to the irresistible conclusion that the word "consent" was never
intended to be included in the powers to be exercised under

 If the Constitution-makers intended that under Article 222 a Judge cannot be

transferred from one High Court to another without his consent then it should
have been expressly so mentioned in the Constitution."

 The argument of Mr Seervai must be overruled.

 In the circumstances this Court which lays down the law of the land under
Article 141 must be extremely careful and circumspect in interpreting statutes,
more so constitutional provisions, so as to obviate the necessity of a
constitutional amendment every time which, as we have already mentioned, is
an extremely onerous task.

 Transfer' according to the learned Counsel, means a voluntary transfer and

cannot include the compulsory acquisition of property.

 Without more there is no reason for limiting the operation of the word 'transfer'
to voluntary acts of transfer so as to exclude compulsory acquisitions of
property."

 On a parity of reasoning we are of the opinion that to read "consent" into

Article 222 would be to limit and whittle down the scope, ambit and purpose of
Article 222.

 "It is not a matter for surprise that the Drafting Committee appointed by the
Constituent Assembly of India recommended the substitution of the
expression 'except according to procedure established by law' taken from the
Japanese Constitution, 1946, for the words 'without due process of law' which
occurred in the original draft, 'as the former is more specific'."

 "Amending Act 22 of 1972 was enacted for the express purpose of saving
decree which had already been passed.

 The decision makes a clear departure.

 "The Governor-General-in-Council may appoint persons to act as Additional
Judges of any High Court for such period, not exceeding two years, as may
be required; and the Judges so appointed shall, whilst so acting, have all the
powers of a Judge of the High Court appointed by His Majesty under this Act;"
In Article 224, the purpose viz. arrears, is mentioned which was conspicuously
absent from the 1915 Act perhaps because at that time there were no heavy
arrears.

 "The office of a judge shall be vacated by his being appointed by His Majesty
to be a Judge of the Federal Court or of another High Court".

 282. It may be pertinent to note that Section 220(2)(c) provides that a Judge
shall vacate his office either on his being appointed as a Judge of the Federal
Court or of another High Court.

 Our Constitution makes a clear distinction so far as this aspect of the matter is
concerned inasmuch as Article 222 expressly uses the word "transfer" rather
than the word "appointment" when a Judge is transferred from one High Court
to another.

 283. So far as our Constitution is concerned while Article 222 confers on the
President the power of transferring one Judge of a High Court to another in
consultation with the Chief Justice of India, Article 217(1) proviso (c) provides
that the office shall be vacated on his being appointed as a Judge of the
Supreme Court or if he is transferred to any other High Court.

 "The office of a Judge shall be vacated by his being appointed by the

President to be a Judge of the Supreme Court or by his being transferred by
the President to any other High Court within the territory of India."

 We have mentioned the fact because Mr Seervai has argued before us that
the transfer of a Judge from one High Court to another results in vacation of
his office and must be construed to be a fresh appointment implying thereby
that he could be transferred only if he gives his consent as when he is first
appointed to the High Court.

 It was suggested by Mr Seervai that under proviso (c) to Article 217(1) just as
a Judge vacates his office on being appointed as a Judge of the Supreme
Court, identical consequences follow when he is transferred to any other High
Court.
 A Judge who is transferred merely vacates the office in a limited sense,
namely, that he cannot act as a High Court Judge in the High Court where he
was appointed but the fact remains that until he takes oath in the transferee
High Court, he continues to be a Judge of the original High Court.

 This is also an important circumstance to negative the argument of Mr Seervai

that a transfer amounts to a fresh or a first appointment in the transferee High
Court and consent becomes a necessary concomitant of such a transfer.

 The Constitution has used the word "appointed" in the case of a Judge of the
Supreme Court and "transfer" in the case of a Judge of a High Court.

 A Judge of the High Court when appointed as a Judge of the Supreme Court
cannot be equated in any respect with a Judge of the High Court who is
transferred to another

 High Court and continues to possess the same status, position and
emoluments which is essentially different from a Judge of the Supreme Court.

 On a parity of reasoning it was submitted that where a Judge is appointed in a

High Court or transferred to another Court, every time it is a new appointment
as a result of which the Judge of the High Court on being transferred to
another court has to take a fresh oath because he ceases to be a Judge in the
Court of its origin.

 289. It is true that in this schedule joining time is mentioned on transfer from a
High Court to Supreme Court or from one High Court to another and the word
"appointment" has not been used as such.

 That makes no difference because this schedule only refers to a small matter
of joining time which both the Judges viz. a Judge appointed to the Supreme
Court and the Judge transferred, are entitled to avail.

 Nothing turns upon the language of para 11(b)(iii) of the Second Schedule.

 290. Lastly, it was contended that the fact that a Judge who is transferred
from the original High Court to another High Court has to take oath suggests
that his transfer amounts to an appointment and that is why the taking of a
fresh oath becomes necessary.
 It is obvious that when a Judge was appointed in the original High Court he
had taken the oath of his office which bound him to act as a Judge of that
particular High Court.

 Since by virtue of the transfer, the court is changed, a fresh oath becomes
necessary as a clerical formality to indicate that although his appointment as a
Judge of a High Court does not cease to exist he discharges his duties as a
Judge in another court in respect of which he had not taken the oath of office.

 We reject this part of the argument of Mr Seervai as being without substance.

 "The only question that we are called upon to consider is when a person is
appointed as a Judge of a High Court of a particular State, should it be
permissible for the Government to transfer him from that Court to a High Court
in any other State.

 The Drafting Committee felt that since all the High Courts so far as the
appointment of Judges is concerned form now a central subject, it was
desirable to treat all the judges of the High Courts throughout India as forming
one single cadre like the I.C.S and that they should be liable to be transferred
from one High Court to another.

 We thought that the power to transfer should be placed in the hands of the
Central Government.

 We have introduced a provision that such transfers shall take place in

consultation with the Chief Justice of India who can be trusted to advise the
Government in a manner which is not affected by local or personal
prejudices."

 296. the observations furnish a complete answer to the two arguments of Mr

Seervai that "consent" should be read into Article 222 or that the transfer
amounted to a fresh appointment.

 Transfer of a Judge from one High Court to another.-(1) The President may
transfer a Judge from one High Court to any other High Court within the
territory of India.

 The Note finds ample support from what Dr Ambedkar had said.
 In our opinion read with the speech of Dr Ambedkar, the Note of Mr
Santhanam in regard to Article 222 clinches the issue and no further
argument on this question can be entertained.

 A convention which was ingrained in the Constitution has now taken a

constitutional shape.

 While considering the doctrine of privilege or the doctrine of candour it would

be safer to rely on English cases rather than the American doctrine.

 One of the cardinal points made out by the learned counsel for the petitioners
against non-consensual transfers was that if a transfer is made without the
consent of the Judge it will arm the Central Government with a strong weapon
to punish a High Court Judge, who either does not share the ideology of the
Government or is not prepared to oblige it, by compelling him to toe the line of
the Government at the risk of being transferred.

 The Court in the case had laid down sufficient safeguards against a wrong or
colourable exercise of power by the President under Article 222.

 There is no reason to presume that any order which is passed by the

President under Article 222 henceforward is bound to be mala fide or
colourable and even if it is in a particular case or cases, it is doubtless subject
to judicial review.

 In the case of a Judge who is transferred, no such penal consequences are at

all visited because on the plain term of Article 222 the Judge has to get
special facilities before being transferred to the transferee High Court.

 The granting of compensatory allowance to a Judge in lieu of transfer

completely destroys the concept that the transfer involves a stigma or a
punishment.

 The circumstances fully justify transfer of Judges from one High Court to
another.

 314. The Attorney-General with his usual ingenuity submitted a very plausible
argument in order to show that transfer of a Judge from one High Court to
another under certain circumstances even though inconvenient cannot by any
process of reasoning amount to a reflection or stigma.
 318. For the reasons we are unable to accept the argument of the counsel for
the petitioners that non-consensual transfer amounts to punishment or a
reflection on the integrity of the Judge concerned or can in any way be
described as penal.

 Again, the executive power is not absolute and has to be exercised in

consultation with the C.J.I in the case of appointment of Supreme Court
Judges, as also in consultation with the C.J.I and the Governor of the States
concerned in case of the appointment of Chief Justice of the High Courts - in
the case of appointment of High Court Judges, the Chief Justice of the
concerned High Court is also to be consulted.

 Under our Constitution for all practical intents and purposes the executive
power vests in the Council of Ministers only and the President is bound to
accept the advice of the Council of Ministers.

 In expounding the concept of separation, the essential distinctive features

which differentiate our Constitution from the American Constitution must be
kept in mind.

 The information given by the Chief Ministers and the Governors of the States
is merely for the limited purpose of ascertaining their views and other matters
referred to above and is not a part of the consultative process enshrined in
Article 222 otherwise if additional authorities are introduced for the purpose of
being consulted, then the memorandum will be clearly violative of Article 222.

 345. This disposes of all the contentions of the counsel for the parties so far
as the various aspects of interpretation of Article 222 are concerned.

 Policy has two important limbs- (1) transfer of C.J or Judges from one High
Court to another, and (2) recruitment of one-third Judges in each High Court
from outside the State in which the High Court is situate.

 We start the question of policy of transfers with the Report of the SRC which
tried to tackle the second limb of the Policy of importing one-third Judges in
the High Court from outside.

 "Guided by the consideration that the principal organs of State should be

constituted as to inspire confidence and to help in arresting parochial trends,
we would also recommend that at least one-third of the number of Judges in a
 High Court should consist of persons who are recruited from outside that
State.

 The ideas coming as they did from such great and important personalities
who had varied experience not only in all branches of the law but also in other
socio-economic activities are undoubtedly entitled to great weight.

 The inescapable conclusion seems to be that right from 1954 up to 1964, the
two limbs of the Policy referred to above were being debated and ultimately
definite views were expressed by independent persons that a policy,
consisting of the two limbs, be evolved and followed.

 It would secure on the Bench of each High Court the presence of a number of
Judges who would not be swayed by local considerations or affected by
issues which may rouse local passions and emotions. . . . We in India are in
the fortunate position of having a vast country.

 In -fact, in certain situations transfer of a Judge may be a very desirable

course to follow for preserving independence of the judiciary, promoting
national integration and avoiding Balkanisation of the country on linguistic or
other similar considerations.

 "Shri Bhogendra Jha (CPI) supported the idea of transferring Judges of High
Courts outside their own State....

 "The Law Minister mentioned that he had sought the views of the Chief
Justice of India on the policy of having Chief Justices from outside, as that by
itself would considerably improve the functioning of the High Courts.

 "While the file may be referred to the C.J.I for his advice, I feel that we should
also examine about evolving the policy to appoint the Chief Justice of a High
Court from the High Court other than the High Court to which the Chief Justice
is to be appointed.

 "Though I am firmly opposed to a wholesale transfer of the Chief Justices of

High Courts, I take the view, which I have expressed from time to time, that
such transfers may be made in appropriate cases for strictly objective
reasons.

 386. This marks the end of the epoch so far as the C.J.I was concerned.
 We would like to suggest that the Chief Justice of each High Court should be
asked to prepare a panel of suitable persons who are considered for
appointment as High Court Judges both from the Bar and from the
subordinate judiciary.

 The Civil List of Judges of the Supreme Court and High Courts gives the
sanctioned strength of permanent and Additional Judges.

 After the retirement of the present C.Js or the transferee C.Js a time may
come when automatically every High Court will have a C.J from outside
because the seniormost Judge who was initially recruited from outside would,
if found suitable in all respects, be appointed Chief Justice of the said High
Court.

 395. Brother Venkataramiah has also expressed his view that the transfers
proposed by the C.J.I, which were quite a number of them, were actually in
aid and implementation of the Policy formulated by the Government and even
if there was no effective consultation, the transfers would be valid.

 399. Secondly, since it is the admitted case of the Government that while they
were thinking of evolving a general policy of transfer of C.Js, the policy had
not taken any final shape nor did the Government take any conclusive
decision on this important matter, with due respect we do not agree with the
view taken by Brother Venkataramiah, J. on this point.

 The choice and selection of suitable persons has become extremely difficult
and experience has shown that in a number of High Courts suitable persons
have not been appointed.

 The circular does not cover the permanent Judges of the High Court at all but
it applies only to two kinds of Judges- (1) persons who are about to be
appointed as Additional Judges, and (2) persons who are working as
Additional Judges and whose term is likely to expire.

 The circular merely says that the C.Js may obtain the consent of the aforesaid
Additional Judges if they would like to be appointed as permanent Judges in
any other High Court in the country and they could name three High Courts of
their choice.

 425. We fail to see what harm is done to the Judges.

 Manifestly before the highest court, a Judge of a High Court cannot be
governed by a law or rule of evidence different from the one which applies to
all citizens.

 We are unable to accede to the contention that the circular tries to interfere
with the supreme authority of the C.J.I in the matter of consultation under
Article 222.

 Even if the Judges concerned give their consent and are appointed in an
outside High Court, they would not be transferee Judges and not entitled to
the facilities which are available to transferee Judges like compensatory
allowance, visiting his home State every year, etc.

 The entire argument stands on a pack of cards.

 433. For the reasons we are unable to agree with the counsel for the
petitioners that the circular in any way tarnishes the image of the Judges or
mars the independence of judiciary.

 This disposes of Point 3 relating to Policy of General Transfers and the

question of validity of the circular.

 I am clearly of the opinion, after inspecting the documents and considering the
pros and cons, various shades and aspects of the matter with all its
ramifications, that it is not in public interest to disclose the contents of the
documents and I uphold the plea of privilege taken by the Union of India.

 It is clear that this Court has not accepted and, in my opinion rightly, the
extreme view of the American courts.

 If the contents of the documents were such that their disclosure would affect
either the national defence or public security or good neighbourly relations
they could claim the character of a document relating to affairs of State.

 There would be no occasion to exercise the inherent power of the Court.

 The documents in question undoubtedly relate to matters of administration of

high-powered constitutional functionaries and would fall within the ambit of the
Rule of Law laid down by the English courts.
 It is clear that the words 'affairs of State' have acquired a secondary meaning,
namely, those matters of State whose disclosure would cause injury to the
public interest."

 "I cannot give a wide meaning to words 'records relating to affairs of State' so
as to take in every unpublished document pertaining to the entire business of
State, but confine them only to such of the documents whose disclosure
would be injurious to public interest."

 The decision is fully in accordance with the principles enunciated by this Court
as referred to above.

 We are unable to regard Conway case as having overruled the ratio in

Duncan case.

 So far as the Court is concerned, it has not gone to the extreme limit to which
Conway case goes and I would like to prefer the decisions of this Court to that
of Conway case where the law appears to have been somewhat overstated
by Lord Reid.

 The court, although naturally giving great weight to the opinion of the
appropriate minister conveyed through the Attorney-General or his
representative, must have the final responsibility of deciding whether or not
the document or information is to be disclosed."

 It was for the President to choose any of the two views.

 Disclosure of details would have undoubtedly caused serious damage to

public interest by exposing not only the petitioner Kumar but also the C.J,
Delhi High Court and the C.J.I to public gaze and criticism which would be
highly derogatory to the high position that these high constitutional
functionaries hold and would in future deter them from expressing any opinion
on the merit of future appointments which might result in an insoluble
stalemate.

 Balancing the two factors, there can be no doubt that the weight is on the side
of the Union of India.

 The observations cannot be called into aid by our courts in dealing with the
question of privilege.
 In the circumstances the doctrine of "candour" or "confidentiality" propounded
by the American Supreme Court cannot be blindly applied to the provisions of
the Indian Constitution which has features of its own substantially different
from those of the American Constitution as indicated while dealing with
interpretation of Article 222.

 The Court has clearly pointed out that on this aspect of the matter, the rule of
protection against self-incrimination as prevalent in the United Kingdom or
U.S.A has never been accepted in India.

 489. The view of the author fully reflects the summary of the decisions given
by the American courts on the question of privilege.

 The power reserved to the Court is a power to order production even though
the public interest is to some extent affected prejudicially."

 So far as this case is concerned it fully supports the position taken by the
Union of India in claiming the plea of privilege in respect of the documents
concerned.

 The case is of no assistance to the petitioners because the facts of the

present case are essentially different from the facts of that case.

 On the face of the ratio of this case, the plea of privilege would have to be
upheld straight Away.

 Even though the documents were doubtless confidential, a possible view

could be taken that the plea of privilege should not be allowed.

 In my judgment the public interest requires that these documents should be

protected as a class, and I concur in the conclusion of Lord Denning, MR I
agree that the appeal should be dismissed.

 The question of disclosure cannot arise in such cases and the observations of
the author become wholly inapplicable to the situations contemplated by our
Constitution and the statutory laws.

 In the circumstances I cannot accept the view of the author, extracted above.

 516. In view of these circumstances before importing the doctrines or the

liberal trend of modern cases across the seven seas, we cannot overlook the
 mandatory provisions of the Evidence Act and the Code of Criminal
Procedure.

 517. For the reasons while I have referred to the foreign decisions I would like
to confine my decision mainly to those English cases which apply to our
present day conditions and to the principals laid down by our own courts in
their leading judgments which have been discussed and analysed in this
judgment.

 "(a) Appointment of High Court Judges are highly confidential matters

containing frank and free legal views expressed by the C.J of the High Court,
C.J.I and the Central Government represented by the Law Minister and the
Council of Ministers.

 In my opinion, any disclosure of the contents of the documents would be

extremely derogatory to the high constitutional position that these
constitutional functionaries enjoy and would prove counter-productive and
destroy the sacrosanct consultative process as envisaged by the Constitution.

 The apprehension and danger which I had predicted from disclosure has
come to be true and henceforward there would be hardly any head of a

 Although it is true that by fixing the strength of permanent and Additional

Judges of each High Court, the Central Government appears to have created
two parallel lines of recruitment so that the appointment of an Additional
Judge was a sort of training ground for being appointed as a Permanent
Judge whenever a permanent vacancy arose.

 (2) When any Judge of a High Court other than the Chief Justice is by reason
of absence or for any other reason unable to perform the duties of his office or
is appointed to act temporarily as Chief Justice, the President may appoint a
duly qualified person to act as a Judge of that Court until the permanent
Judge has resumed his duties.

 (3) No person appointed as an Additional or acting Judge of a High Court

shall hold office after attaining the age of sixty-two years."

 531. The Article contemplates only a tenure appointment to meet a particular

contingency and is not meant to be a permanent feature so as to form a
training base for recruiting judges from the training base to the permanent
cadre.
 534. While dealing with the facts of Justice Kumar's case, Brother
Venkataramiah, J. has observed that although there was full and effective
consultation between the C.J, Delhi, the C.J.I and the Law Minister the non-
appointment of Mr Kumar is not vitiated by any constitutional infirmity.

 I find myself bound to express my short opinion on these matters only.

 544. For the reasons I am unable to agree with the observations made by
Brother Bhagwati, J. on this aspect of the matter only.

 548. It appears that after the notification, Mr M.G Ramachandran, Chief

Minister of Tamil Nadu took great exception to the appointment of the
petitioner as C.J, Madras High Court mainly on the ground that he was not
conversant with Tamil language and he would not be able to function properly
in the Madras High Court.

 We would like to avoid unnecessary details and, as rightly contended by Dr

Singhvi, confine our attention only to the points of convergence without
touching the issues of divergence.

 We shall refer only to those decisions which lay down complete and objective
test for determining what constitutes effective consultation in a particular case.

 "It casts an absolute obligation on the President to consult the Chief Justice of
India before transferring a Judge from one High Court to another.

 It must follow that while consulting the Chief Justice, the President must make
the relevant data available to him on the basis of which he can offer to the
President the benefit of his considered opinion.

 Deliberation is the quintessence of consultation.

 Before giving his opinion the Chief Justice of India would naturally take into
consideration all relevant factors and may informally ascertain from the Judge
concerned if he has any real personal difficulty or any humanitarian ground on
which his transfer may not be directed.

 It is not necessary for the Chief Justice to issue formal notice to the Judge
concerned but it is sufficient - although it is not obligatory - if he ascertains
these facts either from the Chief Justice of the High Court or from his own
colleagues or through any other means which the Chief Justice thinks safe,
fair and reasonable.
 It must be taken to be established that after his visit in February 1980 the first
time C.J.I had a talk with the petitioner was only on January 5, 1981.

 In the circumstances we would prefer the statement of the C.J.I to that of the
petitioner particularly in view of the fact that in his second affidavit the
petitioner has introduced an additional fact to the effect that the C.J.I had told
him that it was the Government policy to effect transfers in batches of two or
three.

 The proposal was not merely an information but a regular proposal by which
the C.J.I had recommended Justice K.B.N Singh to be transferred to
Rajasthan.

 It must taken to be established that there was no discussion at all nor any
consultation between them when for the first time the ball was set in motion
through the proposal of recommendation sent by the C.J.I to the Law Minister
on December 7, 1980.

 This appears to be the first constitutional infirmity in the consultative process

as contemplated by Article 222.

 According to the C.J.I himself even if he had disclosed or placed all the
materials before the Law Minister, he ought to have been given sufficient time
for deliberation over the matters so as to be able to make up his mind,
whether to agree or disagree with the C.J.I, and to advise the President .

 From the facts it should be inferred that there was no discussion between the
C.J.I and the Law Minister about the personal difficulties of the petitioner.

 This does not advance the case of the petitioner any further.

 (2) When a Judge has been or is so transferred, he shall, during the period he
serves, after the commencement of the Constitution (Fifteenth Amendment)
Act, 1963, as a Judge of the other High Court, be entitled to receive in
addition to his salary such compensatory allowance as may be determined by
Parliament by law and, until so determined, such compensatory allowance as
the President may by order fix."

 599. The result is that petitions arising out of Transferred Cases Nos. 19, 20,
21 and 22 of 1981 are dismissed.
 Writ Petition No. 274 of 1981, Transferred Cases Nos. 2 and 6 of 1981 are
disposed of.

 Judges; and (b) obtain from persons who have already been or may in the
future be proposed by you for initial appointment their consent to be appointed
to any other High Court in the country along with a similar preference for three
High Courts.

 In other words a member of the Bar who accepts the appointment of an

Additional Judge has legitimate expectation that he will be confirmed as
Permanent Judge of that High Court when a vacancy occurs and in the past
he has been confirmed except in the rarest of cases.

 It is contended that though Shri S.N Kumar could be regarded as a person

aggrieved by the impugned actions of the Government, he being a sitting
Additional Judge from whom consent under the Circular letter was sought and
was granted a short-term extension, his tenure having come to an end by
efflux of the period for which he was appointed he is no longer concerned with
the impugned Circular letter nor with the short-term that had been granted to
him and after he has ceased to be a Judge of the Delhi High Court he does
not have any vested or enforceable right against the President or the Union
Government in the matter of either continuation as an Additional Judge or
appointment as a Permanent Judge and his challenge as a party-respondent
to the governmental action is not maintainable

 The tenure of an Additional Judge is fixed by the warrant of his appointment

and on the expiry of the period mentioned in the warrant he ceases to be a
Judge of the High Court and in either extending him for a further term as an
Additional

 High Court or in making him permanent in the vacancy in a permanent post, a

fresh appointment is involved, and the consultative process envisaged in
Article 217(1) is attracted; in other words he is in the same position as a
proposed appointee for initial appointment and the same position obtains if it
is intended to make him a permanent Judge in some other High Court.

 Additional Judge of a High Court gives the kind of undertaking mentioned by

the petitioners particularly of the type that is said to be usually obtained from
him in the Bombay High Court, no illegality takes place in asking him if he
would agree to be appointed as a permanent Judge in any other High Court,
as he shall be so appointed only in pursuance of his consent.
 It is disputed that this Court can grant the relief by way of declaring the sitting
Additional Judges to be deemed to have become permanent or by directing
the President to make them permanent by appropriately increasing the
permanent strength in the concerned High Courts.

 I take the view that the present petition would clearly have been permissible
under Article 226."

 615. In the instant case the impugned circular as well as the short-term
extensions, according to the petitioners, are directly subversive of judicial
independence, which is a basic feature of our Constitution, in the upholding of
which not merely the sitting Additional Judges but also the lawyers practising
in various High Courts are keenly interested.

 The contention is that Shri Kumar's term having come to an end by efflux of
period for which he was appointed he is no longer concerned with the
impugned circular letter nor with the short-term extension that had been
granted to him and after he has ceased to be a Judge of the Delhi High Court
he does not have any vested or enforceable right against the President or the
Union Government in the matter of either continuation as an Additional Judge
or appointment as a permanent Judge and his challenge to the governmental
action is not maintainable.

 All the factors go to show that at the stage of initial recruitment under Article
217(1), no one has a right to be appointed a Judge of the High Court nor the
right to be considered for such appointment and it does appear that a writ of
mandamus at the instance of an aggrieved person would not lie.

 621. Secondly, on a comparison of Articles 216 and 224(1), it will appear clear
that the former deals with the appointment of permanent Judges to dispose of
the normal business whereas the latter deals with appointment of Additional
Judges whenever there is either a temporary increase in the normal business
of a High Court or arrears of work therein.

 It may be stated that so far as the Bombay High Court is concerned a further
undertaking is obtained by the Chief Justice of that High Court from such
Judges to the further effect that "if they decline to accept such permanent
Judgeship though offered or in case they resign from the office of Additional
Judge even before the question of their confirmation is taken up they will not
practice in that High Court or in any court or tribunal subordinate to that High
Court".
 Not to have a corrupt Judge or a Judge who has misbehaved is
unquestionably in public interest but at the same time preserving judicial
independence is of the highest public interest.

 Considering the question from the angle of public interest I am clearly of the
view that while considering the question of continuance of the sitting
Additional Judges on the expiry of their initial term either as Additional Judges
or as permanent Judges the test of suitability contemplated within the
consultative process under Article 217(1) should not be invoked - at least until
such time as proper machinery possessing legal sanction is provided for
enabling a proper inquiry against an alleged errant Judge less cumbersome
than the near impeachment process contemplated by Article 124(4) and (5) of
the Constitution.

 "It seems desirable that election petitions should ordinarily, if possible, be

entrusted for trial to a permanent Judge of the High Court even though we find
that Additional or acting Judges or those requested under Article 224-A of the
Constitution to sit and act as Judges of the High Court, if assigned for the
purpose by the Chief Justice, are legally competent to hear those matters."

 (In re The Special Courts Bill, 1978) clause 7 of the Special Courts Bill
provided that Special Courts were to be presided over either by a sitting
Judge of a High Court or by a person who had held the office of a Judge of a
High Court to be nominated by the

 It is true that these infirmities in clause 7 of the Bill were pointed out by this
Court to emphasise the aspect that appointing a retired High Court Judge as a
Judge of the Special Court who is to be nominated by the Central
Government to try a special class of cases may not inspire confidence not
only in the accused but in the entire community.

 It is also true that on these infirmities being pointed out the then Central
Government accepted the suggestion of the Court that only a sitting Judge of
a High Court would be appointed to preside over a Special Court and that
such appointment will be made with the concurrence of the Chief Justice of
India.

 The Draft Article steers a middle course.

 I think that, that is also a dangerous proposition."

 It is difficult to regard the Governor of the State as being of coordinate
authority with the other two consulting functionaries especially on the aspect
of suitability which is the primary thing in the matter of making appointment of
High Court Judges.

 The rejection of the amendment has no bearing whatsoever on the question

of primacy with which the Court is concerned at the moment.

 The consultative process even on this occasion must be full, complete and
effective as is the case with the consultative process that is required to be
gone through under Article 222(1) when the question of transfer of a Judge
from one High Court to another High Court is considered.

 634. I shall next deal with the question of short-term extensions which have
been challenged by the petitioners as being directly subversive of the
independence of judiciary and not contemplated by the Constitution.

 It is true that Article 224(1) confers power on the President to appoint duly
qualified persons to be Additional Judges of a High Court if the pre-conditions
mentioned therein exist "for such period not exceeding two years as he may
specify".

 It cannot be disputed that security of tenure ensures judicial independence

and tenures for short terms like three months, six months or nine months
bring in insecurity directly impinging on judicial independence and also tend to
shake the faith of the community in the administration of justice and would be
unconstitutional.

 The contention has been that the objective facts obtaining in many High
Courts unmistakably demonstrate that the increase of business is not of a
temporary character but is a permanent increase every year and that the
arrears have increased and accumulated to an appreciably disturbing level
with no reasonable prospects of substantially reducing the same over a period
of years and the President cannot resort to Article 224(1) but has to increase
the permanent strength by making permanent appointments under Article 217
read with Article 216.

 The submission of the petitioners has been that in view of such reality
obtaining in various High Courts the action on the part of the appointing
authority in keeping a large number of sitting Additional Judges as Additional
Judges would be arbitrary and unconstitutional and a clear case exists for
 declaring them to be deemed to have become permanent or for directing the
President to make them permanent by appropriately increasing the permanent
strength in the concerned High Courts and it will be within the powers of this
Court to pass appropriate orders or give necessary directions in this behalf.

 In support of the submissions statements containing statistical materials

pertaining to Bombay High Court and Delhi High Court were relied upon and
on the question of Courts' power to grant appropriate reliefs reliance was
placed upon two decisions of this Court, namely, Shewpujanrai Indrasanrai
Ltd. v. Collector of Customs AIR 1958 SC 845 and Y. Mahaboob Sheriff v.
Mysore State Transport Authority AIR 1960 SC 321.

 Article 224(1) as has been stated earlier, confers power on the President to
appoint Additional Judges only to meet the situation arising from (a)
temporary increase in the business of the High Court, or (b) arrears of work
therein.

 In the first place it cannot be disputed that appointing Judges to a High Court
either as permanent Judges or Additional Judges is purely an executive
function entrusted by the Constitution to the appointing authority and it will not
be proper for this Court to usurp that function to itself or issue any directions
in that behalf unless forced by glaringly compelling circumstances.

 No direction or relief as sought is possible unless a full, complete and correct

assessment about the requisite strengths of permanent as well as Additional
Judges of every High Court as on a particular date is made available to the
Court.

 Feeling aggrieved by this judgment of the Gujarat High Court the Union of
India preferred an appeal to this Court under certificate granted by the High
Court, which was heard by a Constitution Bench of five Judges of this Court.

 "Experience shows that there are cases, though fortunately they are few and
far between, in which the exigencies of administration necessitate the transfer
of a Judge from one High Court to another.

 The factious local atmosphere sometimes demands the drafting of a Judge or

Chief Justice from another High Court and on the rarest of rare occasions
which can be counted on the fingers of a hand, it becomes necessary to
withdraw a Judge from a circle of favourites and non-favourites.
 It is urged that though in such cases, the transfers may apparently be in public
interest they are really by way of punishment and as such the safeguard of
public interest is of no avail.

 If both the safeguards, the principal as well as the secondary, become illusory
and if punishment is involved in every transfer without consent then one of the
principal reasons suggested by the majority for not reading consent into the
article must disappear and there would be the need to read "consent" into the
article so as to obviate the element of punishment.

 "The Drafting Committee felt that since all the High Courts so far as the
appointments of Judges is concerned form now a central subject it was
desirable to treat all the Judges of the High Courts throughout India as
forming one single cadre like the ICS and that they should be liable to be
transferred from one High Court to another.

 We thought that the power to transfer should be placed in the hands of the
Central Government.

 A Provincial Government might like to transfer a particular Judge from its High
Court because that Judge had become very inconvenient to the Provincial
Government by the particular attitude that he had taken with regard to certain
judicial matters or that he had made a nuisance of himself by giving decisions
which the Provincial Government did not like.

 We have introduced a provision that such transfers shall take place in

consultation with the Chief Justice of India who can be trusted to advise the
Government in a manner which is not affected by local or personal
prejudices."

 It is not possible to accept the contention that the two safeguards of public
interest and effective consultation subject to which the power of transfer is to
be exercised are either illusory or unreal and if they afford real protection to
the Judge concerned against the abuse of power as suggested in the majority
view there would be no need to read consent into Article 222(1).

 645. The other ground which necessitates the reconsideration of the majority
view, according to the counsel for the petitioners, is that while rejecting the
contention of the original petitioner that a transfer of a Judge from one High
Court to another involves "a fresh appointment" and his consent to the
 transfer would be necessary, both Chandrachud, J. and Krishna Iyer, J. have
proceeded on the basis that the Government of India Act

 Act, 1935 really dealt with transfer of a High Court Judge when he was either
appointed to another High Court or to the Federal Court, that is to say, the
expression "appointment" had been used really to connote a transfer,
suggesting an interchangeable use of the two expressions by the British
Parliament and the basis adopted by the learned Judges for drawing a
distinction between "appointment" and "transfer" would disappear and the
conclusion arrived at would not be correct.

 I am in agreement with the majority view that non-consensual transfers are

within the purview of Article 222(1).

 Even the policy of having the Chief Justices of all the High Courts from
outside stands the risk of being abused by the executive in the absence of
proper guide lines being provided in the matter of regulating which Chief
Justice shall be posted in what particular High Court; this assumes
significance in a federal polity like ours.

 In the case of the former they have no right to be considered for the post of a
High Court Judge nor have they, even after being recommended on
completion of the consultative process by the three constitutional functionaries
mentioned in Article 217(1), any right to be appointed and have no remedy
against their non-appointment but in the case of the latter the position is
entirely different.

 The Circular letter which seeks to obtain the consent of the sitting Additional
Judges to their transfers from their own High Court to another High Court
induced by threat, coercion or duress clearly amounts to Executive
interference with the Judiciary and impinges on its independence and as such
is illegal, unconstitutional and void and the consent if any either already
obtained thereunder or that may be obtained, would be equally void.

 655. Once the conclusion is reached that the Circular letter seeks to effect in
substance and reality transfers of sitting Additional Judges from their own
High Courts to other High Courts on the expiry of their initial term or extended
term and the consent sought from them thereunder is for such transfer and
not for their "fresh appointment" as permanent Judges of other High Courts,
the challenge to the same as being violative of Article 222(1) of the
Constitution becomes quite apparent.
 In the behalf reliance has been placed upon the statement made by the Law
Minister on the floor of the Parliament on April 16, 1981 to the effect that it is
not the intention of the Government to appoint all Additional Judges to outside
High Courts.

 The main question that arises for our consideration is whether it could be said
on a perusal of disclosed documents that full and effective consultation as
contemplated by Article 217(1) between the President on the one hand and
the constitutional functionaries on the other, particularly the Chief Justice of
India, had preceded the impugned action of dropping Shri S.N Kumar outright.

 The only record of what was discussed between them is to be found in the
letter of May 22, 1981 written by the Chief Justice of India to the Union Law
Minister and as stated earlier this record of what transpired between them in
the meeting does not show that "further details" and "concrete facts or
materials" in relation to complaints about lack of integrity of Shri S.N Kumar
were disclosed or discussed by the Delhi Chief Justice with the Chief Justice
of India.

 The contention has to be rejected.

 It is amply clear from the record that the facts which were taken into
consideration by the Union Law Minister and the Delhi Chief Justice and
which provided the basis to the appointing authority to arrive at the impugned
decision were not placed before the Chief Justice of India, and there was
neither full nor effective consultation between the President and the Chief
Justice of India as required by Article 217(1) of the Constitution.

 In short in Shri S.N Kumar's case it is quite clear that both these high
constitutional functionaries, namely, the Union Law Minister and the Delhi
Chief

 670. The brief facts concerning Shri K.B.N Singh's transfer are these: While
he was practising as an advocate of the Patna High Court, Shri K.B.N Singh
was appointed as Judge of that High Court on September 15, 1966; he was
made permanent Judge of that High Court on March 21, 1968; he was first
appointed Acting Chief Justice and later on permanent Chief Justice of that
Court by the Presidential Notification dated July 7, 1976 and he assumed
charge of that office on July 19, 1976.
 The real questions that arise for determination in regard to the transfer of Shri
K.B.N Singh are whether the transfer has been ordered in public interest,
whether there has been full and effective consultation between the President
and the Chief Justice of India as required by Article 222(1) and whether the
procedure that was followed ensured fair play in the sense that Shri K.B.N
Singh was heard fully and his say was taken into consideration before
effecting his transfer.

 In substance and effect the Judge concerned cannot have reason to complain
of arbitrariness or unfair play, if the due procedure is followed."

 It has been pointed out earlier that a policy to have one-third of the Puisne
Judges of a High Court from outside, in the absence of any mechanism or
modality of procedure giving guidelines as to how that one-third number will
be chosen for implementing it, would obviously be fraught with the vice of
discrimination; similarly even the policy of having the Chief Justices of all the
High Courts from outside stands the risk of being abused by the executive in
the absence of proper guidelines being provided in the matter of regulating
which Chief Justice will be posted in what particular High Court.

 A policy-transfer without fixing the requisite mechanism or modality of

procedure that ensures complete insulation against executive interference,
could be a punitive transfer in the sense of having been effected with some
oblique motive whereas a selective transfer in an appropriate case for strictly
objective reasons and in public interest could be non-punitive, with the result
that each case of transfer, whether based on a policy or a selective transfer,
will have to be Judged on the facts and circumstances of its own for deciding
whether it is punitive in character in the sense of having been effected with
some oblique motive or not.

 From the material produced on record it is abundantly clear that there was full
and effective consultation between the transferring authority on the one hand
and the Chief Justice of India on the other in regard to the impugned transfer
as contemplated by Article 222(1) before the effective decision thereon was
taken, and if the consultation has been full and effective as contemplated by
Article 222(1), as is shown by the material produced on record, the contention
that the normal procedure ought not to have been reversed and the proposal
should have emanated from the President and not from the Chief Justice of
India as is the case loses its significance.
 The initial term of appointment of three Additional Judges of Delhi High Court,
Mr O.N Vohra, Mr S.N Kumar and Mr S.B Wad expired on March 6, 1981, and
each of them was appointed as an Additional Judge for a period of three
months.

 Another important contention raised in the petition was whether short-term

extension of Additional Judges is permissible under Article 224 and whether it
is open to the executive to appoint Additional Judges leaving vacancies in the
permanent strength of the High Court Judges unfilled, even though the
arrears are mounting.

 A specific contention was raised with specific reference to the position of the
Delhi High Court alleging that it would be contrary to the constitutional
intendment underlying Article 216 to maintain half the strength of the Delhi
High Court as Additional Judges.

 It was in terms stated that the failure of the Judge to give consent would not
be a relevant factor while considering him for appointment as a permanent
Judge or for a second term as an Additional Judge, as the case may be.

 With regard to the second appointment of an Additional Judge after the expiry
of the first term, it was stated that it is a fresh appointment and fresh warrant
has to be issued and Judge has to take a fresh oath as prescribed and the full
round of consultation under Article 217 will have to be gone through.

 It appears that the Chief Justice of Delhi High Court had not recommended
Shri S.N Kumar for appointment as Additional Judge after expiry of his initial
term of two years on March 6, 1981.

 In para 9(VII) it is stated that the data collected pursuant to the circular issued
by the Law Minister would be made available to the Chief Justice of India,
Chief Justice of the High Court concerned and the Governor of the State.

 The question of construction of Articles 217, 224 and other connected articles
prominently figured in the context of circular of the Law Minister dated March
18, 1981, seeking consent of Additional Judges for being appointed as
permanent Judges in other High Courts and the short-term extensions given
to Shri O.N Vohra, Shri S.N Kumar and Shri S.B Wad, Additional Judges of
Delhi High Court and the final non-appointment of Shri O.N Vohra and Shri
S.N Kumar.
 The submission was that the circular of the Law Minister manifests a covert
attempt to transfer Additional Judges from one High Court to other High Court
without consulting the Chief Justice of India as required by Article 222(1) and
thereby circumventing the majority decision in Sheth case.

 The scope, ambit and content of consultation under Article 217 as also one
under Article 222 which, as Mr Seervai stated, was more or less the same
though the different facets on which consultation must be focussed may differ
in the case of transfer and in the case of appointment, figured prominently in
both the groups of cases.

 At the outset it is necessary to be properly informed as to the concept of

independence of judiciary as set out in the Constitution.

 Article 215 and Article 129 make the High Court and Supreme Court
respectively a court of record with power of such court including the power to
punish for contempt of itself.

 One need not too much idolise this independence of judiciary so as to

become counter-productive.

 Constitution provides for appointment of Judges of the High Court and the
Supreme Court by the highest executive in the country, the President.

 The power to appoint Judges vests in the executive.

 It is not possible to accept a sweeping statement that the vesting of the power
of appointment in the executive is subversive of independence of judiciary.

 I think that that is also a dangerous proposition.172" What is specifically

moved and rejected while drafting the Constitution cannot be introduced by
the back-door through the process of interpretation.

 If the amendment had been accepted no appointment of a Judge of High

Court could be made unless the Chief Justice of India concurred in the
appointment.

 In the case of U.N.R Rao, the Constitution Bench held that Article 74(1) was
mandatory and the President could not exercise the executive power without
the aid and advice of the Council of Ministers.
 Even Mr Gupta concedes that the power to appoint Judges of the Supreme
Court and High Court conferred by Articles 217(1) and 124 is executive power
and the function is executive function.

 Supreme Court, it was urged that while exercising the power in the matter of
appointment of Judges of High Courts and Supreme Court the President was
to act not according to the advice of the Council of Ministers.

 At a later stage, a suggestion was made that the subject-matter of

appointment of Judges of High Court and Supreme Court should be included
in the instrument of instructions.

 Of the six categories, two are: The Chief Justice and other Judges of the
Supreme Court and the Chief Justice and the other Judges of the High Court.

 Finally the very idea of instrument of instructions and setting up of the Council
of States or Advisory Board was dropped184.

 If the power to appoint Judges is conferred on the President and that power is
an executive power, and in the absence of a provision in the Constitution
which permits the President to act in his discretion, bereft of the advice of the
Council of Ministers, it is not possible to hold that in the matter of appointment
of Judges of High Court and Supreme Court, the advice offered under Article
74 is not binding on the President.

 Article 217(3) confers power on the President to decide the question of age of
a Judge of the High Court if any such question arises, after consultation with
the Chief Justice of India and the decision of the President shall be final.

 It was held that he cannot act on the advice of his ministers.

 But it cannot be said that while exercising the power of appointment of Judges
of the Supreme Court and High Courts, the President is either performing a
judicial or quasi-judicial function.

 As a first step, one must now dwell upon the proper and precise construction
of Articles 217 and 224.

 It reads as under: "Every High Court shall be a court of record and shall
consist of a Chief Justice and such other Judges as the President may from
time to time deem it necessary to appoint."
 Court other than the Chief Justice is by reason of absence or for any other
reason unable to perform the duties of his office or is appointed to act
temporarily as Chief Justice, the President may appoint a duly qualified
person to act as a Judge of that court until the permanent Judge has resumed
his duties.

 (3) No person appointed as an additional or acting Judge of a High Court shall

hold office after attaining the age of 62 years."

 718. Article 217 confers power on the President to appoint a Judge of the
High Court after consultation with the Chief Justice of India, the Governor of
the State and in case of appointment of a Judge other than the Chief Justice,
the Chief Justice of the High Court.

 It is not possible to accept rather an extreme argument that participation of the

executive in the decision-making process for appointment of a Judge would
be subversive of the independence of the judiciary.

 The power to appoint a Judge of the High Court is in the President.

 By a conscious effort they were insulating the judiciary against executive

interference and made the task of removal of a Judge once appointed very
difficult, if not impossible.

 Someone is appointed as a Judge of the High Court under Article 217, he is to

be suffered even though his continuance may not be conducive to the fair
administration of justice.

 Extreme care was focussed on the question of initial appointment, probably in

order to see that error of judgment of one or the other constitutional
functionary may not go unnoticed.

 There seems to be no doubt that actuated with a burning desire that the best
one is selected for appointment, while vesting the power in the highest
executive of the country three high constitutional functionaries were involved
in the decision-making process.

 The State executive must participate as intended by the Constitution in this

process and its role cannot be minimised by the specious plea that it might
erode independence of judiciary.
 Initiation of proposal for appointment of a High Court Judge is not a judicial
function of the Chief Justice of the High Court.

 As the High Court has both administrative and judicial control over the
subordinate judiciary, the Chief Justice of the High Court is more
knowledgeable about the capacity, ability and eligibility of a District Judge for
being considered for the post of High Court Judge.

 Chief Justice of the High Court is more advantageously placed compared to

the Chief Justice of India in this behalf.

 The view of the Chief Justice of India cannot have any primacy in this behalf.

 Article 217(3) obliges the President to consult the Chief Justice of India before
deciding the question as to the age of a Judge of the High Court.

 Add to this the consideration that if parochial and local considerations are to
be excluded in the appointment of High Court Judges, the Chief Justice of
India is more likely to exclude such considerations than the Chief Justice of a
High Court.

 To say that high constitutional functionaries like the Chief Justice of a High
Court would not be free from such shortcomings set out above and that the
Chief Justice of India would be free from such shortcomings appears to be an
unwarranted assumption.

 Such a situation does not arise under Article 222 and torn out of context the
use of the expression pater familias would not help.

 It is not possible to accept the submission that the view of the Chief Justice of
India when consulted under Article 217 would have primacy over the view of
the Chief Justice of the High Court.

 Also, the contention about primacy of the view of the Chief Justice of India
must be negatived.

 The weighty recommendation of Law Commission that a proposal for

appointment of a High Court Judge can originate only upon the
recommendation of the Chief Justice was in terms negatived by the
Constituent Assembly188.
 If elaborate provision was made for appointment of a High Court Judge with a
view to securing the appointment of the best available man at the relevant
time it would not be conducive to effectuating the purpose underlying the
article if the proposal can be initiated by the Chief Justice of the High Court
alone.

 The State executive initiating the proposal must first forward it to the Chief
Justice of the High Court who would be better informed about the practising
advocates as well as the District Judges subordinate to the High Court, and
seek the views of the Chief Justice.

 Article 216 corresponding to draft Article 192 without proviso has not cast any
obligation on the President to fix maximum number of Judges that can be
appointed in a given High Court.

 When the draft Constitution envisaged appointment of Additional Judges, the

expression "Additional Judge" may be understood in contradistinction to
permanent Judge or an acting Judge or recalling of a retired High Court
Judge.

 The expression "permanent Judge" in relation to High Court Judge is to be

found in Article 220 which prohibits a permanent Judge of a High Court from
pleading or acting in any court or before any authority in India except the
Supreme Court and the other High Courts.

 One can legitimately say that the framers of the Constitution envisaged
appointment of an Additional Judge in the High Court in contradistinction to a
permanent Judge or acting Judge.

 A retired Judge of a High Court who is requested to sit and act as a Judge of
the High Court is not deemed to be a Judge of the High Court, and can be
given no label or nomenclature, and is not an Additional Judge as
contemplated by Article 224.

 730. Article 224(1) enables the President to appoint Additional Judges of a

High Court if the conditions enabling the exercise of power are satisfied.

 There are two situations, contingencies or eventualities in which alone an

Additional Judge can be appointed in a High Court and they must pre-exist
before an Additional Judge can be appointed.
 The eligibility qualifications for being appointed as a Judge of the High Court
are set out in sub-article (2) of Article 217 and it is unnecessary to recall those
qualifications save and except saying that the qualifications for a Judge to be
appointed under Article 217 or an Additional Judge to be appointed under
Article 224(1) are the same.

 To put the matter beyond the pale of controversy while introducing Article 224
in 1956 a consequential amendment was made in Article 217 that the tenure
of an Additional Judge shall be as set out in Article 224 and that it cannot
exceed two years.

 An election petition was filed in the Madhya Pradesh High Court which in
course of time came to be assigned to Suraj Bhan, J. who had retired on
February 2, 1971, but the Chief Justice of Madhya Pradesh High Court, after
obtaining previous consent of the President, requested Suraj Bhan, J. to sit
and act as a Judge of that court under Article 224-A of the Constitution.

 If the tenure of an Additional Judge specified by the President in the warrant

of appointment expires and there is no vacancy in the permanent cadre of
High Court Judges obviously such Additional Judge was usually offered a
further tenure of ordinarily two years.

 If the Additional Judge with the knowledge of the specified period of tenure
enters upon his office, makes and subscribes to the oath and starts
functioning as a Judge of the High Court, undoubtedly when the period
expires, if nothing else takes place he ceases to be a Judge of the High Court.

 One submission of Mr Garg strongly supported by Mr Seervai, and learned

Advocates for the other petitioners is that the Additional Judge is not on
probation and his eligibility or all those relevant considerations in service
jurisprudence which are taken into account while offering a substantive
appointment of a probationer could not be brought into consideration.

 And at any rate, it is not open to the Chief Justice of the High Court to sit in
appeal over the judgments of the Judge concerned and reach his own
conclusions about the judicial capacity as flowing from the judgments of the
Judge.

 Another limb of the submission is that in order to ensure independence of

judiciary, an Additional Judge who has functioned as a Judge and has had
numerous occasions to deal with a litigant, namely, the executive which has
 the power to make fresh appointment, should not be at the mercy of the
executive and it was urged by Mr Seervai that if one or other of the two pre-
conditions in Article 224 which enabled the President to exercise the power of
appointing an Additional Judge continues to exist a fresh appointment must
either follow as a matter of right or if the conditions for exercise of the power
continue to exist he must be deemed to have been appointed as a permanent
Judge.

 But it must be deemed to have been within the purview of Article 217 and
such a Judge would be a permanent Judge.

 738. In an emotionally surcharged voice we were told that there were more
than 65 Additional Judges on April 1, 1980 all over the country whose fate is
in balance and the Court should be very careful and circumspect in putting
such construction on Article 224 which would not leave these 65 Additional
Judges to the vicissitudes of executive smile or frown.

 It was said that such rigid construction should be avoided which would enable
an Additional Judge who has made himself thoroughly undesirable during the
period of his tenure should not be foisted upon the society and the consumers
of justice because the door against his exit is tightly bolted.

 The power to appoint coupled with a duty to appoint has been cast on the
President.

 The Union Government will take up the matter with the various State
Governments so that after consulting the Chief Justices of the High Courts,
they expeditiously send proposals for the conversion of a substantial number
of posts of Additional Judges into those of permanent Judges. 2.

 This is a smuggled system from across the shores imposed upon us by the
empire builders for their own political motives and during the foreign rule a
class came into existence which has enormously benefited by this justice
delivery system to the detriment of teeming millions and they have become
the protagonists of the system.

 Article 224-A enables the Chief Justice of a High Court with the previous
consent of the President to request any person who has held the office of a
Judge of a High Court to sit and act as a Judge of the High Court.
 It was believed that whenever work-load in the High Court temporarily goes
up, retired Judges of the High Court may be requested to sit and act as
Judges of the High Court and the problem of work-load in the High Court can
be solved.

 The present Article 244 was introduced and as pointed out earlier, it was
meant to confer power on the President to increase for the time being the
number of Judges in a High Court and to appoint Additional Judges to fill in
the increased strength.

 An Additional Judge will have a fixed tenure and can safely return to Bar with
a perceptible added advantage because it was felt that there was no other
way except to offer first appointment as an Additional Judge, and a system of
taking the undertaking was devised.

 From the invariable practice, a firm belief developed that an Additional Judge
enters upon office with almost an unwritten albeit incontrovertible assurance
to be appointed a permanent Judge.

 The appointment was as an Additional Judge within the constraints and

limitation of Article 224 and no canon of construction would permit the court to
treat the appointment as one under Article 217.

 If the tenure was of two years, on the expiry of it the appointment will have to
be a fresh appointment and for making such a fresh appointment, consultation
as ordained by Article 217 is inescapable.

 There might be some rare cases in which some fortunate few were directly
appointed as permanent Judges but no case was brought to our notice where
there were Additional Judges in a High Court and a permanent vacancy
occurred and overlooking the claims of all Additional Judges either a member
of the Bar or a District Judge was directly appointed to that permanent
vacancy.

 There is no gainsaying the fact that a practice was followed for over 25 years
that an Additional Judge was always first considered and he was entitled to be
considered for a fresh tenure if there was no permanent vacancy and if there
was a vacancy in the permanent strength, for being appointed as a permanent
Judge.
 If Article 216 postulates fixing of a permanent strength of the High Court and
review of the strength at regular intervals and if Article 224 enables the
President to appoint Additional Judges in the two contingencies mentioned
therein, would it be open to the President to appoint an Additional Judge when
there is a vacancy in the permanent strength of the High Court.

 Article 224 is an enabling provision conferring power on the President to

appoint Additional Judges to meet a specific situation, namely, a temporary
increase in the work of the High Court or the arrears in the High Court.

 The Constitution envisages appointment of permanent Judges.

 When permanent strength of the High Court is fixed and there is a vacancy, it
would mean that for the routine work of the High Court the number of Judges
is inadequate and it is incumbent upon the President to fill in the vacancy
unless it can be made out that the work-load in the High Court does not justify
the appointment.

 In such a situation appointment of Additional Judge cannot be justified and in

the absence of pre-conditions set out in Article 224 the appointment of an
Additional Judge would be plainly outside the purview of Article 224 and
contrary to the intendment of Article 224.

 When a permanent post is vacant an Additional Judge cannot be appointed.

 It was said that the Judge was appointed not because there was temporary
increase in the work of the High Court or the arrears therein but to deal with
the cases in the High Court and in such a situation the appointment has to be
under Article 217.

 The submission is that the intention was to exercise power under Article 217
but by a mistaken understanding it was treated under Article 224 and the
tenure was limited to two years but this is done in disregard of the duty of the
President under the Constitution, and the Court should not disregard the
intention and must enforce the duty.

 Even if the prerequisite for exercise of power was absent and it was an
impermissible exercise of power under Article 224, there was no intention to
appoint a permanent Judge which this Court by a deeming fiction can enforce.

 Article 224 provides for a tenure not exceeding two years.

 It was assumed that a period of reasonable duration such as two years would
give adequate opportunity to an Additional Judge appointed for a specific task
and the approach in appointment would be a result-oriented approach.

 If when making the appointment of an Additional Judge it must be deemed to

have been assumed that there is such temporary increase in the work of the
High Court or there are such arrears that it has become a compelling
necessity to appoint Additional Judges to deal with the situation, the
appointment for such a ridiculously short duration of three months or six
months appears not only to be an exercise in futility but is inconsistent with
the intendment of Article 224.

 Article 217 provides for consultation with the Chief Justice of the High Court,
Chief Justice of India and the Governor of the State while making appointment
of a Judge of the High Court.

 Article 222 provides for consultation with the Chief Justice of India before
transferring a Judge of the High Court to any other High Court.

 The scope and content of consultation may vary from situation to situation.

 But save such a situation what happens is that the Chief Justice of the High
Court thinks of certain names and ultimately reaches his own decision and
initiates his proposal for appointment.

 There is nothing like a process of non-appointment in respect of which

consultation can be eschewed.

 Sub-article (2) provides that every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand and seal after
consultation with such of the Judges of the Supreme Court and of the High
Courts in the States as the President may deem necessary for the purpose
and shall hold office until he attains the age of 65 years.

 771. Now, power is conferred on the President to make appointment of Judge

of Supreme Court after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States as the President may deem
necessary.

 The submission is that the expression "may deem necessary" qualifies the
expression "consultation" and that if he deems otherwise the President can
proceed to make appointment of the Chief Justice of India without
 consultation with any of the Judges of the Supreme Court and of the High
Courts.

 An extreme submission that the President may consult High Court Judges for
appointment of the Chief Justice of India omitting altogether Supreme Court
Judges does not commend to us, because the consultation with "such of the
Judges of the Supreme Court and of the High Courts" would clearly indicate
that the consultation has to be with some Judges of the Supreme Court and
some Judges of the High Courts.

 If there was disjunctive "or" between Supreme Court and High Courts in sub-
article (2) of Article 124 there could have been some force in the submission
that the President may appoint Chief Justice of India ignoring the Supreme
Court and after consulting some High Court Judges.

 Sub-article (2) does not cast an obligation to consult all Judges of the
Supreme Court and all Judges of the High Courts but in practical working the
President in order to discharge his function of selecting the best suitable
person to be the Chief Justice of India must choose such fair sprinkling of
Supreme Court and High Court Judges as would enable him to gather enough
and relevant material which would help him in decision-making process.

 The Chief Justice of the High Court has no veto by sheer inaction to deal with
the fate of an Additional Judge.

 The circular desired the Chief Minister of each State and the Governor of
Punjab to obtain from all the Additional Judges working in the High Court of
the State their consent to be appointed as permanent Judges in any other
High Court in the country.

 A further request was that whenever in future a proposal is made for initial
appointment as a High Court Judge it must be accompanied by the consent of
the person so recommended to be appointed to any other High Court in the
country coupled with the preference limited to three.

 If he is to be appointed again, necessarily it can be done with his consent.

 Additional Judge is now being told that it is possible that he may be appointed
in some other High Court, and that while giving consent for being appointed
for a fresh term or as permanent Judge he is informed that he may be
 appointed in some other High Court and that he may give his consent with the
knowledge of it.

 The caution was absolutely necessary and has been rightly stated that it
implies any promise to do a certain thing.

 Apprehension voiced is utterly unwarranted because in every appointment of

an Additional Judge as permanent Judge in any High Court, the Chief Justice
of India is to be consulted and his views would always receive the weight they
enjoy.

 Once Chief Justice of India gives his considered opinion with respect to every
proposal, the element of picking and choosing is effectively curbed or
controlled.

 In the letter the Chief Justice of Delhi High Court informed the Law Minister
that he had since received a letter from the Chief Justice of India asking him
to furnish him with "details and concrete facts in regard to the allegations
against Justice Kumar".

 The sentence was relied upon by the learned Solicitor-General to submit that
the Court should note that prior to March 28, 1981, the Chief Justice of Delhi
High Court met the Chief Justice of India and discussed the entire matter in
detail with the Chief Justice of India with reference to the recitals in his letter
dated February 19, 1981.

 It was said that the three reasons which prompted the Chief Justice of Delhi
High Court not to recommend Shri Kumar must have been thoroughly
discussed and thrashed out because the expression "entire matter in detail"
would leave no room for doubt that nothing was withheld, nothing was
assumed and every aspect was gone into.

 Then he proceeds to make a point that in such a delicate matter as reputation

of a colleague working in the High Court, "there would be some who would
support the allegations and there will be some who would refute them", and
an affirmative decision of a conclusive nature is by its very nature not
possible.

 778. In the meantime on April 22, 1981, a writ petition was filed by Shri V.M
Tarkunde in the Delhi High Court questioning the validity of the circular of the
Law Minister dated March 18, 1981, and in this writ petition, inter alia, relief
 was sought in the form of a direction to convert 12 posts of Additional Judges
in Delhi High Court into permanent Judges and to appoint Shri N.N Goswami,
Shri Sultan Singh and Shri O.N Vohra as permanent Judges and to appoint
Shri S.N Kumar and Shri S.B Wad, Additional Judges of Delhi High Court for
a full term of two years.

 When the matter was pending before this Court an order was made on May 8,
1981, directing the Union of India to decide not less than 10 days before June
6, 1981, whether any of the three Additional Judges which included Shri S.N
Kumar should be appointed for a further term as Additional Judge or they
should be appointed as permanent Judges or otherwise.

 The learned Solicitor-General urged that this statement clearly conveys that
the Chief Justice of India himself desired after discussion at the meeting on
March 26, 1981, that the Chief Justice of Delhi High Court should not refer to
the details of discussion and wrote his letter dated March 28, 1981, to the Law
Minister in abstruse terms.

 The specific suggestion is that even in the letter dated March 28, 1981, the
Chief Justice of Delhi High Court did not furnish details to the Law Minister as
it was so desired by the Chief Justice of India.

 780. Thereafter the Law Minister wrote to the Chief Justice of India on May
21, 1981, enquiring from him whether he had completed his inquiry in regard
to the complaints regarding Shri Kumar's integrity and general conduct which
the Chief Justice of Delhi High Court had discussed with him as mentioned by
him in his letter dated March 28, 1981.

 In his view Shri Kumar did nothing out of the way or unusual in taking up part-
heard cases after the allocation of his work was changed.

 781. The sole contention raised by Shri R.K Garg in this behalf is that the
consultation envisaged by Article 224 read with Article 217(1) must be full and
meaningful and if that is the criterion, failure of the Law Minister, maybe on
the request of Chief Justice of Delhi High Court, to disclose the letter dated
May 7, 1981, of the Chief Justice of Delhi High Court or its contents to the
Chief Justice of India would unmistakably show that the process of
consultation was not complete and the consequent decision not to appoint
Shri Kumar by not giving him any extension beyond June 6, 1981, is violative
of the constitutional mandate and invalid.
 785. I would like to recall what happened in the course of hearing of these
matters.

 The question posed was whether the power to transfer a Judge of a High
Court conferred on the President under Article 222 can be used to defeat the
right of puisne Judges of the High Court to be considered for the post of Chief
Justice of the High Court wherein a vacancy may have occurred.

 It was averred that on the elevation of Mr V.Balakrishna Eradi, the then Chief
Justice of Kerala High Court to the Bench of the Supreme Court of India, the
office of Chief Justice, Kerala High Court has been rendered vacant and other
considerations being equal, the next seniormost puisne Judge who should
legitimately occupy the same office is Mr Justice Subramania Poti or any
other Judge of the Kerala High Court.

 It was contended that the expression "Judge" in Article 222 does not
comprehend Chief Justice and the transfer of Chief Justice M.M Ismail as
Chief Justice of Kerala High Court is ex facie illegal.

 789. One P. Subramaniam filed Writ Petition No. 553 of 1981 in the Madras
High Court challenging the constitutional validity of notification dated January
19, 1981, by which Shri M.M Ismail, Chief Justice, Madras High Court was
transferred as Chief Justice, Kerala High Court.

 790. One A. Rajappa, an Advocate of Madras, filed Writ Petition No. 390 of
1981 in the Madras High Court questioning the constitutional validity of the
notification transferring Chief Justice Ismail to Kerala High Court, inter alia,
contending that Article 222 does not comprehend power to transfer a Chief
Justice.

 794. Dr L.M Singhvi who led, ably supported by Shri H.M Seervai and Shri
Soli Sorabjee, put in the forefront the contention that the power to transfer a
Judge of the High Court is an extraordinary power vested in the President, the
highest executive in the country, which has to be exercised according to the
advice of the council of ministers, if not properly controlled and adequate
safeguards provided, would render independence of judiciary a myth.

 Keeping aside the facts of the case, it would be advantageous at this stage to
find out the purpose for which such power is conferred on the President under
Article 222, the circumstances in which the power can be exercised
 highlighting the constraint or limitations on the exercise of power which would
be safeguards against arbitrary exercise of power.

 798. Mr S.H Sheth, a Judge of the Gujarat High Court was transferred as per
the Presidential notification dated May 7, 1976 as Judge of the High Court of
Andhra Pradesh.

 An appeal by certificate was preferred by the Union of India to this Court

which was heard by a Constitution Bench of this Court.

 The third Judge took the view that the mass transfers of 16 Judges which
were effected with one stroke though each Judge may have had peculiar
personal difficulties to contend with and considering that the Union of India
had failed to disclose the nature and content of the consultation with the Chief
Justice of India, the consultation was not meaningful and that the pre-
condition for exercise of power in Article 222(1) was not satisfied and the
order was void.

 They were, (i) the independence of judiciary being the basic and fundamental
feature of the Constitution, power of non-consensual transfer to be exercised
by the executive, a litigant before the Judge in large number of cases, would
be subversive of the independence of judiciary and the Court must read in
Article 222(1) that the power to transfer can only be exercised with consent of
the Judge proposed to be transferred; and (ii) that the power to transfer High
Court Judge having been conferred on the President it can only be exercised
in public interest and that before exercise of such power there must be full,
effective and meaningful consultation between the President and the Chief
Justice of India.

 He was of the view that an additional safeguard is necessary to insulate the

judiciary and he found that safeguard by holding that a Judge cannot be
transferred under Article 222 without his consent.

 In the context of transfer of a Judge from one High Court to another High
Court, the questions which must engage the attention of the concerned
authorities may be enumerated.

 It is absolutely necessary that all these aspects and many more that can be
enumerated, must be specifically and individually examined, discussed,
deliberated upon and finally a decision must be reached that the public
interest for which transfer is proposed would be served by the transfer.
 The assumption that the Government of India Act, 1935, did not contain a
provision for transfer, which on further examination turns out to be erroneous,
did not materially affect the outcome because while accepting this position
that there was no such provision, the majority reached the conclusion that
Article 222(1) does not cater to only consensual, and that non-consensual
transfer is within the purview of Article 222(1).

 It would appear that the assumption is not so material as to necessitate

reconsideration of the majority view.

 Sub-section (2) of Section 220 provided that "every Judge of a High Court
shall be appointed by His Majesty by warrant under the Royal Sign Manual
and shall hold office until he attains the age of 60 years".

 There is a proviso to this sub-section, para (c) of which states that the office of
a Judge shall be vacated by his being appointed by His Majesty to be a Judge
of the Federal Court or of another High Court.

 Referring to the provision it was urged that the word 'appointed' in para (c)
also comprehends transfer and it was spelt out that the office of a Judge of
the High Court would be vacated not only on his appointment as a Judge of
the Federal Court but also on his being transferred to another High Court.

 Earl of Munster during the debate on the provision pointed out that a Judge of
a High Court on being appointed to the Federal Court or on being transferred
to another High Court would not retain his office of the Judge of the High
Court from which he was transferred.

 In the context he made reference to Section 10 of the Supreme Court of

Judicature Act, 1925, which provided that the office of any Judge of a High
Court shall be vacated on his being appointed as a Judge of the Court of

 Mr Pethick Lawrence explaining the provision pointed out that the transfer of a
Judge of a High Court to another High Court was implicit in the provision itself
and that the proposal is merely intended to be beyond question what was the
intention in regard to it.

 Draft Article 193(1) proviso para (c) had almost bodily incorporated para (c) of
proviso to sub-section (2) of Section 220, Government of India Act, 1935, in
that it was provided that the office of a Judge shall be vacated on his being
 appointed by the President to be a Judge of the Supreme Court or of another
High Court.

 Power has been reserved to Parliament to determine by law the

compensatory allowance to be paid in case they are so transferred, and, until
Parliament so determines, to the President to fix by order the quantum of such
allowance".

 If there was power to transfer a High Court Judge in 1935 Act, logically the
argument that our Constitution has adopted the basic scheme of that Act must
inevitably lead to the conclusion that the Constitution-makers wanted such
power to be conferred and made an explicit provision in Article 222.

 The statement in the judgments of Chandrachud, J., Bhagwati, J. and Krishna

Iyer, J. in Sheth case that the Government of India Act, 1935, did not contain
any provision for transfer of a Judge would not in any manner detract from the
binding character of the ratio of the majority judgment, nor on this account a
re-examination becomes necessary.

 809. It was urged that transfer of a Judge of one High Court to another High
Court constitutes fresh appointment and if initially a man cannot be appointed
without his consent because if such a power was to be conferred on any one
it would be a conscription or we may be thrown back to the days of slavery
and if transfer of a Judge of the High Court amounts to a fresh appointment,
ipso_facto it cannot be done without his consent.

 The reasons for accepting the majority view may be stated.

 810. Submission is that on transfer a High Court Judge ceases to be a Judge

of the High Court where he was functioning and is appointed a Judge of the
High Court to which he is transferred and it is a fresh appointment and that it
can only be with his consent.

 But the expression "transfer" is used in Article 222 to mean transfer from one
High Court to another High Court, the person so transferred continuing to be a
High Court Judge with continuity of service and there is no break.

 Undoubtedly the oath to which a Judge of the High Court must subscribe
provided that he takes oath as Judge on being appointed to a designated
High Court and on transfer when he goes to another High Court he has to
subscribe to a fresh oath as being appointed to that High Court.
 What comes to an end is his appointment as a Judge of a particular High
Court and not the holder of the constitutional office of High Court Judge and
Article 217(1) provides for appointment of a High Court Judge and not Judge
of a particular High Court.

 The jurisdiction to function as a High Court Judge is not ambivalent but the
Judge functions as a Judge of a particular High Court and enjoys the
jurisdiction of a High Court Judge in relation to the High Court to which he is
thereby attached.

 Article 217(1) prescribes consultation with three constitutional functionaries

before appointing a person as a High Court Judge while Article 222(1)
obligates consultation only with Chief Justice of India while transferring a
Judge from one High Court to another High Court.

 It was never disputed that Article 222(1) confers power on the President to
transfer a Judge from one High Court to another High Court.

 I consider it impermissible and also the contention that the Court should read
the words "with his consent" in Article 222(1) must be rejected.

 The first safeguard against arbitrary exercise of power was found in the
obligation cast on the President to consult the Chief Justice of India and the
parameters of consultation were drawn very wide so that the power may not
be exercised to the detriment of the Judge for a collateral purpose.

 The second safeguard was found in reading into Article 222 that the power to
transfer a High Court Judge can only be exercised in public interest.

 The majority declined to read the words "with his consent" in Article 222(1).

 The majority concluded that non-consensual transfer is within the purview of

Article 222(1).

 815. The public interest like public policy is an unruly horse and is incapable
of any precise definition and it was urged that this safeguard is very vague
and of doubtful utility.

 If a Judge is transferred because he is involved in local factious atmosphere

or has a circle of favourites and disfavourites it would be obviously by way of
punishment and would cast a slur and stigmatise the Judge.
 But it was urged that if a Judge is not guilty of high misdemeanour sufficient to
impeach him but behaves in a manner which brings administration of justice
into disrepute a transfer which with a view to uprooting him from an
atmosphere in which he has become inconvenient, would be to the good of
that Judge and in the interest of purity of administration of justice and such a
transfer cannot be said to cast a slur or stigma on the Judge concerned.

 One thing is certain that the power conferred by Article 222(1) cannot be
exercised with a view to punishing the Judge for anything improper in his
behaviour or conduct.

 Whenever the transfer answers to some objective norms even if it causes

personal inconvenience and hardship, it can be said to be in public interest.

 A transfer on account of any complaint or grievance against a Judge referable

to his conduct or behaviour is impermissible in exercise of power under Article
222(1).

 The passage must be read in this light.

 Chief Justice of India filed his affidavit but did not appear through counsel to
assist the Court.

 We are left to fend for ourselves.

 This is admitted by the Chief Justice of India saying that at that time no
proposal for transfer of Shri Singh was even mooted and there was no
question of giving him any inkling in this behalf.

 The recommendation bearing on the question of confirmation of Justice

Farooqi as Chief Justice is not relevant but as we are dealing with the transfer
and as the proposal has emanated from the Chief Justice of India, what were
the relevant considerations present to the mind of the Chief Justice of India on
the question of transfer have a vital bearing on the final outcome and that part
of the letter which recites a recommendation for transfer of Justice Farooqi
can be taken into account.

 As would be pointed out later, indisputably the transfer was a direct

consequence of complaints found well founded on verification and the transfer
was directly and irrevocably related to the conduct of
 "Though I am firmly opposed to a wholesale transfer of the Chief Justices of
High Courts, 1 take the view, which I have expressed from time to time, that
such transfers may be made in appropriate cases for strictly objective
reasons.

 In the vacancy caused by the transfer of Shri K.D Sharma in the Rajasthan
High Court, the recommendation was that Shri K.B.N Singh, Chief Justice of
Patna High Court be transferred and posted as Chief Justice of Rajasthan
High Court and Shri Syed Sarwar Ali, seniormost puisne Judge of the Patna
High Court should be appointed as Acting Chief Justice of Patna High Court.

 It transpires from the correspondence that the Law Minister drew the attention
of the Chief Justice of India that if Shri K.D Sharma, Acting Chief Justice of
Rajasthan was transferred as Chief Justice of Kerala High Court, he would
become Chief Justice over six Judges of Kerala High Court who were senior
to him by length.

 It was pointed out that Shri Sharma was inducted as a Judge of the Rajasthan
High Court in 1973 while the seniormost puisne Judge in Kerala High Court
Shri P. Subramania Poti was inducted in the High Court in 1969 and that there
were five other Judges along with Mr Poti who were inducted into the High
Court prior to 1973.

 If the proposal of the Chief Justice of India was implemented, a fairly junior
Judge would become Chief Justice over his seniors, a thing which would be
seriously resented as the imposition would be utterly unjustified, destroying
ruthlessly the natural expectations of Judges who had accepted High Court
judgeship between 1969 and 1973.

 The faux pas on being brought to the notice of the Chief Justice of India was
rightly accepted saying that the Chief Justice of India "did not realise that as
many as six Judges of the Kerala High Court are senior to Justice K.D
Sharma and that makes it necessary to think about the matter afresh", and by
letter dated December 8, 1980, the proposal to transfer Shri K.D Sharma as
Chief Justice of Kerala was cancelled and in supersession of that proposal a
fresh proposal was submitted that Shri K.D Sharma be transferred to Sikkim
and Shri M.M.S Gujral, the then Chief Justice of Sikkim be transferred as
Chief Justice, Kerala.

 833. Possibly with a view to apprising the Prime Minister as to the

circumstances necessitating withdrawal of the proposal, on the same day a
 letter was addressed by the Chief Justice of India to the Prime Minister in
which it was stated that while recommending transfer of Shri K.D Sharma as
Chief Justice of Kerala High Court he had overlooked that Justice K.D
Sharma is junior to as many as six Judges of the Kerala High Court and his
transfer to that High Court was bound to invite a great amount of public
criticism and it would also create administrative problems in the way of Justice
Sharma himself.

 One other aspect in this letter worth noticing is that the Chief Justice of India
informed the Prime Minister that he was trying to explore the possibility of
recommending the appointment of the seniormost puisne Judge of the
Karnataka High Court, Shri K. Bhimiah, as Chief Justice of Kerala High Court.

 The underlined (italicised herein) portion of the letter extracted herein would
show that the proposal to transfer Shri K.B.N Singh to Rajasthan was likely to
be reviewed and reconsidered and the proposal itself may become tentative.

 A_fortiori it follows that except the correspondence disclosed there is no

contemporaneous written record, nor notings or minutes of telephonic
communication relevant to transfer of Shri Singh.

 The transfer is the outcome of enquiries from lawyers and Judges, about local
atmosphere qua a Judge necessitating his transfer.

 He is not proposing transfers as and by way of policy.

 He is not proposing these transfers by way of policy transfers.

 One has to fall back on the discussion, if any, the Chief Justice of India may
have either with the Law Minister who as Minister of Justice according to the
rules of business would be the proper person to deal with the problem of
transfer.

 The evolving proposal was not acceptable to the Chief Justice of India when
he said in the first letter that he is firmly opposed to a wholesale transfer of
Chief Justices of High Courts.

 The later suggestion that Shri Singh's transfer was proposed to subserve the
public interest, namely, that he is a senior, experienced Chief Justice needed
to preside over a premier High Court will not help because there was no
question of sending a senior, experienced Chief Justice to Rajasthan High
 Court and at the relevant time there was no proposal for transfer of Shri M.M
Ismail, Chief Justice of Madras High Court.

 Some other public interest must have informed the Chief Justice of India to
propose transfer of

 Whatever material the Chief Justice of India will have, has to be placed before
the President.

 The test of consultation is not satisfied because not only two minds have not
been able to confer and produce a mutual effect but each did not have full and
identical facts and the final decision cannot be said to be the product of
consultation and deliberation.

 "The Government has received representations from various quarters urging

that as a matter of policy the Chief Justice of a High Court should be
appointed from outside the jurisdiction of that High Court.

 The transfer of Shri Singh cannot be upheld as a policy transfer.

 I refrain from saying anything on the wisdom or validity of what is being

proposed as a policy that every Chief Justice must be from outside the State
because there is no such policy and as and when it is laid down, if
questioned, its validity will have to be examined.

 And the Chief Justice of India accepts unreservedly just and rightful
expectations of the seniormost puisne Judge to be promoted as Chief Justice
when he suggests that Mr Poti, seniormost puisne Judge in Kerala High Court
will be deprived of his just and rightful expectation to become Chief Justice on
the transfer of Shri K.D Sharma, and further suggested that Mr Poti be
appointed in a suitable vacancy as

 If a Judge of a High Court after 12 years of High Court judgeship is not

suitable for being promoted as Chief

 In most of the High Courts seniormost puisne Judge is always entrusted with
a large chunk of administrative work and he is probably well acquainted and
trained to take over the responsibilities of a Chief Justice.

 Mr P.S Poti the seniormost puisne Judge of Kerala High Court and who is
functioning as Acting Chief Justice since the elevation of the then Chief
 Justice of Kerala High Court to Supreme Court has been a Judge of the High
Court since 1969.

 Drawing sustenance from the statement it was contended that inferentially

speaking the situation had reached at Patna to such an impasse that Shri
Singh was required to be uprooted from that atmosphere and the transfer and
this being a selective transfer it would attach stigma or slur.

 One cannot escape the conclusion that such transfer in the background stated
would cast a slur and is punitive in character and that would also vitiate the
order of transfer.

 Add to this that the public interest pleaded fails to carry conviction in the facts
and circumstances of this case and the transfer does not appear to be in
public interest.

 855. In the course of hearing petitioners requested the Court that the
correspondence that passed between the Chief Justice of India, the Chief
Justice of Delhi High Court and the Law Minister in regard to the non-
appointment of Shri S.N Kumar as Additional Judge be disclosed.

 It was said that appointment to high offices is such a sensitive subject that the
expression "affairs of the State" would be wide enough to comprehend the
same and correspondence, notes, notings connected therewith forming part of
unpublished official record cannot be disclosed to the Court except at the cost
of injury to public interest.

 If the two public interests conflict, the Court will have to decide whether the
public interest which formed the foundation for claiming privilege would be
jeopardised if disclosure is ordered and on the other hand whether fair
administration of justice would suffer by non-disclosure and decide which way
the balance tilts.

 856. The only point that now remains is whether the petitioners Iqbal M.
Chagla and three others in the petition filed in the Bombay High Court, Mr V.M
Tarkunde, petitioner in the petition filed in the Delhi High Court and other
advocates who have filed petitions in Patna and Madras High Courts have a
locus standi to maintain the petitions.

 The contention about locus standi is now of academic interest and I do not
propose to deal with it.
 "(1) An Additional Judge can only be appointed in the High Court if the
President is satisfied that there is a temporary increase in the work of the High
Court or there are arrears and for this purpose it is necessary to increase the
number of Judges in the High Court for the time being.

 (4) Power to transfer a High Court Judge conferred by Article 222 on the
President can be exercised after full, effective and meaningful consultation
with the Chief Justice of India and this necessitates all the facts in possession
of one or the other constitutional functionary being fully exchanged and
deliberated upon.

 (5) Power to transfer a High Court Judge cannot be exercised with a view to
punishing a Judge or for anything in his conduct or behaviour which may cast
a slur or stigma on him.

 858. Transferred Case No. 19 of 1981 arising from the writ petition filed by
Shri S.P Gupta in Allahabad High Court, Transferred Case No. 21 of 1981
arising from the petition filed by Shri J.L Kalra and others in the Delhi High
Court, Transferred Case No. 22 of 1981 arising from the petition filed by Shri
Iqbal M. Chagla and three others in the Bombay High Court and Transferred
Case No. 20 of 1981 arising from the writ petition filed by Shri V.M Tarkunde
in the Delhi High Court are dismissed.

 860. In view of this decision no specific order is required to be made in Writ

Petition No. 274 of 1981 filed by Miss Lily Thomas, Transferred Case No. 6 of
1981 arising from a writ petition filed by Shri P. Subramanian in Madras High
Court and Transferred Case No. 2 of 1981 arising from a writ petition filed by
Shri A. Rajappa in the Madras High Court and they stand disposed of.

 863. Transferred Case No. 20 of 1981 filed by Shri V.M Tarkunde, a Senior
Advocate of the Supreme Court as a writ petition in the High Court of Delhi,
also assails the circular letter and the appointments of three Additional
Judges, Shri O.N Vohra, Shri S.N Kumar and Shri S.B Wad for a further
period of three months only.

 867. There is a second group, also consisting of four cases, led by Writ
Petition No. 274 of 1981 filed by Miss Lily Thomas, an Advocate practising in
the Supreme Court of India, under Article 32 of the Constitution.

 Article 217 lays down the procedure for appointment of a Judge of the High
Court, the circumstances in which the office of Judge is vacated, the
 qualifications for appointment, and how the age of a Judge shall be
determined.

 Article 222 empowers the President to transfer a Judge from one High Court
to another in consultation with the Chief Justice of India.

 Articles 223, 224 and 224-A enable the appointment of an acting Chief
Justice, Additional Judges, acting Judges and provide for former Judges to sit
and act as Judges.

 Article 228 empowers the High Court to transfer to itself cases pending in a
subordinate court involving a substantial question of law as to the
interpretation of the Constitution.

 Article 229 provides for the appointment of officers and servants of the High
Court, and Article 230 for the extension of jurisdiction of the High Court to
Union Territories.

 There is provision by Article 231 for establishing a common High Court for two
or more States or for two or more States and a Union Territory.

 An Additional Judge is appointed under clause (1) of Article 224 where it

appears to the President that by reason of any temporary increase in the
business of a High Court or by reason of arrears of work therein the number
of the Judges of that court should be for the time being increased.

 Judges is increased only for the time being, and the appointment of an
Additional Judge is envisaged for a limited period which, by clause (1) of
Article 224 must not exceed two years.

 It will be seen that Article 216 contemplates Judges who are permanent
Judges, Additional Judges or acting Judges, permanent Judges as a rule and
Additional Judges or acting

 A separate and distinct category is that of former Judges of a High Court who
under Article 224-A may be requested by the Chief Justice of a High Court,
with the previous consent of the President, to sit and act as a Judge of the
High Court.

 It is for the reason that express provision has been made in Article 224-A itself
that while sitting and acting as a Judge of the High Court the former Judge will
be entitled to such allowances as the President may, by order, determine and
 he shall have all the jurisdiction, powers and privileges, but will not otherwise
be deemed to be a Judge of that

 884. The Draft Constitution provided by Article 200 that the Chief Justice of a
High Court could request a former Judge of that court to sit and act as a
Judge of the court.

 The provision was retained in the enacted Constitution as Article 224, with this
difference that before making such request the Chief Justice had to obtain the
previous consent of the President and further his choice extended not only to
a former Judge of that High Court but also to that of any other High Court.

 885. The procedure for appointing a Judge of a High Court is set forth in
clause (1) of Article 217.

 886. While there can be no doubt that the appointment of a Judge of a High
Court lies in the executive power of the President, it is not an absolute and
unfettered power.

 It is conditioned by the obligation imposed on the President to consult the

Chief Justice of India, the Governor of the State, and in the case of an
appointment of a Judge other than the Chief Justice, the Chief Justice of the
High Court.

 Three constitutional functionaries are required to be consulted, the Chief

Justice of India and the Chief Justice of the High Court, who are judicial
functionaries, and the Governor of the State who is the executive head of the
State in respect of which the High Court has jurisdiction.

 But when the Constitution was being drafted there was general agreement
that the appointment of a Judge of a High Court should not be left to the
unfettered discretion of the Executive Government.

 887. As has been observed, clause (1) of Article 217 prescribes that besides
the Governor of the State, the Chief Justice of India and the Chief Justice of
the High Court must be consulted in the appointment of a Judge of a High
Court.

 He is particularly qualified to know the needs of the court in the context of its
present constitution and the work which is pending.
 The President is also obliged to consult him before he can transfer a Judge
under clause (1) of Article 222 from one High Court to another High Court, a
matter in which the Constitution does not expressly stipulate consultation
even with the Chief Justices of the two High Courts concerned, the High Court
from which the Judge is to be transferred and the High Court to which his
transfer is contemplated.

 The Law Commission of India238 surveyed the machinery for appointing a

Judge of a High Court and considered it desirable that the provision in clause
(1) of Article 217 should be altered to provide for "not merely consultation with
the Chief Justice of India but his concurrence in the proposed appointment".

 891. A point has been raised whether on a difference of opinion between

them the advice of the Chief Justice of India can be said to enjoy primacy over
that tendered by the Chief Justice of the High Court.

 But it must be remembered that the advice by the Chief Justice of India takes
into account not only the primary material before him but also the assessment
made by the Chief Justice of the High Court, and when he renders advice the
assessment by the Chief Justice of the High Court has also been considered
by him.

 It can be said that the recommendation of the Chief Justice of the High Court
is screened through the assessment made by the Chief Justice of India.

 In passing, it may be observed that if any material comes into the possession
of the Chief Justice of India which was not before the Chief Justice of the High
Court it should be communicated to the Chief Justice of the High Court for his
comments.

 In the ultimate analysis, it would be unrealistic to suppose that the advice

rendered by the Chief Justice of India enjoys mere parity with that of the Chief
Justice of the High Court.

 If the Chief Justice of India was intended to enjoy equal status merely with the
Chief Justice of the High Court it is difficult to appreciate why the Chief Justice
of India was brought in at all, especially when the advice expected of a judicial
functionary for appointing a Judge of a High Court could be obtained from the
Chief Justice of the High Court alone.
 In matters so serious as transfer of Judges and the determination of the age
of Judges, the Constitution has appointed the Chief Justice of India as the
sole functionary to be consulted by the

 The President has power to appoint Additional Judges and acting Judges
depending on the nature of the exigency.

 An Additional Judge may be appointed where by reason of the temporary

increase in the business of a High Court or by reason of arrears of work
therein it appears to the President that the number of Judges should for the
time being be increased.

 The increase in the business of the High Court must be temporary and should
be capable of being disposed of within a short period.

 Inasmuch as the period of appointment of Additional Judges is prescribed as

a maximum of two years, it is only where the disposal of the temporary
increase in the business of the High Court or the pending arrears of work is
expected to take about two years at the most that a case for appointing
Additional Judges arises.

 All that the clause provides is that either or both conditions can constitute a
reason for temporarily increasing the number of Judges of the High Court.

 Which work should be assigned to permanent Judges and which to Additional

Judges is a matter normally falling within the discretion of the Chief Justice of
the High Court.

 It may be that despite the appointment of a reasonable number of Additional

Judges, the temporary increase in the business of the High Court or the
pending arrears of work may not be disposed of within a period of two years
and may continue for a few more months.

 894. It appears that for several years now a practice has grown, to which both
the Executive and the Judiciary have unwittingly subscribed, of maintaining a
regular strength of Additional Judges and generally appointing a person as an
Additional Judge of the High Court instead of appointing him directly as a
permanent Judge of the High Court.

 Having decided to maintain a regular strength of Additional Judges on a

permanent basis, the practice also grew of invariably appointing these
Additional Judges as permanent Judges as and when vacancies arose.
 The Constitution as originally enacted did not contain any provision for the
appointment of Additional Judges.

 It was thought that the evil of Additional Judges reverting to the Bar could be
prevented by absorbing them as permanent Judges, and in some High Courts
this was sought to be secured by obtaining from persons appointed as
Additional Judges an undertaking at the time of such appointment that they
would not refuse appointment as permanent Judge if it was offered to them. In
a few

 High Courts a further undertaking was secured to the effect that in the event
of the Additional Judge refusing appointment as permanent Judge or
resigning before the offer was made he would not practice in that High Court
or in any court or tribunal subordinate to it.

 It was intended that this practice should be extended to all High Courts, for a
suggestion was made on June 29, 1967 by the then Chief Justice of India,
Shri K.N Wanchoo, "when a member of the Bar is appointed Additional Judge,
it must be with a view to making him permanent in due course.

 I agree that an undertaking should be taken from the members of the Bar that
they will accept a permanent judgeship when offered to them in due
course...."

 Where no present vacancy of permanent Judge was available, the Additional

Judge was, on the expiry of his term, always appointed for a further term as
Additional Judge.

 895. It is contended that as the volume of arrears of cases pending in the

High Courts is so great that they cannot be disposed of within a period of two
years, the position is that when the Additional Judges were appointed the
appointment should have been instead to the office of permanent Judges.

 The requirement of an undertaking that he would not refuse an offer of

appointment as permanent Judge may, it is true, be a feature presently in
some High Courts only, but it clearly demonstrates how the appointment of
Additional Judges has been regarded by the President.

 All the Additional Judges accepted judicial office on the assumption that the
practice clothed with all the status of constitutional reality would operate in
 their cases and that they would in their turn be considered for appointment as
permanent Judges.

 It is the admitted position that the volume of work in arrears in the High Court
of Delhi continues to be sufficiently large and would have otherwise justified
his appointment.

 In the case of the High Court of Delhi, consultation is called for with the Chief
Justice of India and the Chief Justice of the High Court only.

 A continuous process of consultation between all three authorities is

mandated, resulting ultimately in advice tendered to the President by the
Chief Justice of the High Court and the Chief Justice of India.

 It was said, some responsible members of the Bar as well as some

colleagues expressed some doubts in regard to Shri S.N Kumar's integrity.

 On March 3, 1981, the Chief Justice of India expressed a desire to look

carefully into the charges against Shri S.N Kumar and pointed out that the
letter of the Chief Justice of the High Court appeared to be too vague to
persuade one that Shri Kumar lacked integrity.

 Chief Justice of the High Court drawing his attention to the observations of the
Chief Justice of India that the letter dated February 19, 1981 sent by the Chief
Justice of the High Court appeared to suffer from vagueness and it was
difficult to accept that Shri Kumar lacked integrity.

 On the same day the Chief Justice of the High Court wrote to the Law Minister
enclosing a copy of his letter to the Chief Justice of India and he informed the
Law Minister that he had had "an opportunity to discuss the entire matter in
detail with the Chief Justice of India".

 It is not only embarrassing but painful for me to write this letter.

 When as Acting Chief Justice I constituted the Benches for the second half of
1980 I put Justice Kumar in a

 It is an open question whether the Law Minister would have continued to

prefer the views held by the Chief Justice of the High Court if the Chief Justice
of India had been informed of the allegations contained in the letter and on
subsequent enquiries had found that there was no substance whatever in
them.
 Almost from the inception of the High Courts in India, Judges appointed to
one High Court were thereafter appointed to another High Court.

 "(c) The office of a Judge shall be vacated by his being appointed by His
Majesty to be Judge of the Federal Court or of another High Court."

 The Drafting Committee considered the amendment unnecessary and pointed

out that there was no bar under Article 193 to a Judge of one High Court
being appointed a Judge of another High Court, and drew attention to the
existing clause (c) providing that the office of the Judge would be vacated on
the Judge being appointed to any other Court.

 908. In regard to another suggestion that a convention should be established

whereby a proportion of Judges in every High Court could be recruited from
outside the Province, the Drafting Committee observed that there was no bar
to such recruitment or to the transfer of a Judge of a High Court to another
High Court.

 The provision empowered the President to transfer a Judge from one High
Court to any other High Court.

 Clause (c) of the proviso to clause (1) of Article 217 was altered so that in
place of the word "appointed" the word "transferred" would be read in
conjunction with the words "to any other High Court".

 The only question that remained was whether such transfer should be made
so obligatory as not to involve any provision for compensation for loss
incurred.

 The Drafting Committee felt justified in making provisions that where such
transfer is made it would be permissible for Parliament to allow a personal
allowance to be given to a Judge so transferred."

 The statement also shows that the Drafting Committee was under the
impression that the Judges of the High Courts throughout India should be
treated as constituting a single cadre like the Indian Civil Service.

 The clause providing for the payment of compensatory allowance to a

transferred Judge during the period he served as a Judge of the other High
Court was omitted by the Constitution (Seventh Amendment) Act, 1956 but
thereafter was reinstated in appropriate language by the Constitution
(Fifteenth Amendment) Act, 1963.
 The Chief Justice of the High Court is consulted because, as has been
observed earlier, he is intimately concerned with the appointment of a
competent Judge to meet the particular requirements of his Court.

 A person may be found unsuitable, by reason of association or other links, for

being a Judge of the particular High Court, while he may be free from that
embarrassment in respect of the other High Courts.

 We have been referred to Hira Singh v. Jai Singh AIR 1937 All 588 where a
full Bench of the Allahabad High Court held that an Additional Judge of that
court who had already taken oath on such appointment was not obliged to
take oath again on his appointment as a permanent Judge.

 A Judge appointed to a High Court is entitled to continue as a Judge of that

High Court until he attains the age of 62 years, unless he resigns his office or
is removed from it.

 It was necessary that the authority who has been otherwise vested with the
power to appoint a Judge and to terminate his appointment should also be the
authority to transfer him.

 It may be added that inasmuch as the transfer constitutes an appointment of

the Judge to the other High Court, Article 219 comes into play and the
transferred Judge must, before he enters upon his office in that High Court,
make or subscribe an oath or affirmation according to the prescribed Form.

 What was done was to clarify that when a Judge appointed to one High Court
was thereafter appointed to another High Court, he must be deemed to have
vacated his office in the original High Court.

 913. It seems to me that clause (1) of Article 222 was specifically enacted in
our Constitution for the purpose of empowering the President to transfer a
Judge without necessarily securing his consent.

 It seems to me clear that unless clause (1) of Article 222 had been enacted, it
was not possible for the President to transfer a Judge from one High Court to
another without his consent.

 The proviso to Article 224-A imposes that condition when a former Judge of a
High Court is requested by the Chief Justice of a High Court to sit and act as
a Judge of the High Court.
 So also is the provision in Article 128 in respect of former Judges of the
Supreme Court, the Federal Court or of a High Court requested to sit and act
as a Judge of the Supreme Court.

 When under clause (1) of Article 127 a Judge of a High Court is requested to
sit as an ad_hoc Judge of the Supreme Court when a quorum of the Judges
of the Supreme Court is not available, the Judge of the High Court is bound to
accept the request and his consent is not necessary.

 Reference may also be made to the position in England where under Section
4 of the Supreme Court of Judicature (Consolidation) Act, 1925 the High
Court is divided into three divisions, the

 The Constitution, by clauses (4) and (5) of Article 124 and by the Judges
(Inquiry) Act, 1968 has made the removal subject to a constitutional and
statutory process consisting of several stages at each of which the action for
removal is screened.

 At the conclusion of the investigation, the Committee is required to submit its

report to the Speaker or the Chairman, as the case may be.

 It is necessary to construe the scope of the safeguard of consultation in its

fullest comprehension.

 The entire content of power vested in the President respecting the transfer of
Judges of the High Courts must be traced to the confines of the clause.

 Any policy framed and adopted in this behalf must be tested on the criterion of
public interest, and it must be clearly understood that "public interest" means
the interest of the administration of justice.

 All considerations controlling the transfer of a Judge of a High Court must fall
within the scope of the consultative process.

 924. Shri K.B.N Singh was a Judge of the High Court of Patna from
September 15, 1966.

 926. The Chief Justice of India decided on visiting the High Court of Patna in
February 1980 in order to meet the Judges of the High Court and members of
the Bar.
 After informing Shri K.B.N Singh, Chief Justice of the High Court of his
proposed visit, he proceeded to Patna and during his stay there on February
24, 25 and 26, 1980 he met the Judges of the High Court individually and
interviewed individual members of the Bar, and also met Judges of the District
Court and members of the District Court Bar.

 He recommended the Shri K.D Sharma, then acting as Chief Justice of the
High Court of Rajasthan, should be transferred as Chief Justice of the High
Court of Kerala, and Shri K.B.N Singh should be transferred from the High
Court of Patna as the Chief Justice of the Rajasthan High Court.

 It appears that it was then realised that certain difficulties would arise if Shri
K.D Sharma was transferred to the High Court of Kerala.

 After a telephone talk with the Law Minister, the Chief Justice of India wrote
on December 20, 1980 proposing the transfer of Shri M.M Ismail, Chief
Justice of the High Court of Madras, as Chief Justice of the High Court of
Kerala and the transfer of Shri K.B.N Singh as Chief Justice of the High Court
of Madras.

 Upon that, Shri K.B.N Singh told the Chief Justice of India how certain
persons connected with the High Court were influenced by communal
considerations and how he, on his own part, did not permit communal or other
extraneous considerations to influence him administratively or judicially.

 Inasmuch as the administration of justice relies for its vitality on the strength of
public confidence, it must range supreme and if the Judge is transferred in
these circumstances it must be regarded as a transfer in the public interest.

 During the finalisation of the Draft Constitution a suggestion was received by

the Drafting Committee that one-third of the Judges appointed to a High Court
should be from outside the State.

 It has been urged that the Additional Judges have a right to be considered for
appointment as permanent Judges in the High Courts where they are serving,
and the circular letter should be construed as an attempt to transfer them to
some other High Court without operating through the consultative process
which the President is obliged under the Constitution to enter into with the
Chief Justice of India.
 An appointment of a person as a Judge of a High Court must, as observed
earlier, be an appointment to a particular High Court.

 The Governor of the particular State and the Chief Justice of the particular
High Court have to be involved in that process, besides the Chief Justice of
India.

 The circular letter has invited the consent of the Additional Judges in the most
general terms, to appointment to any High Court other than the High Court in
which they are serving as Additional Judges.

 It may be that the circular letter was intended only for the purpose of obtaining
information informally whether the Additional Judges would be agreeable to
being appointed as permanent Judges of other High Courts.

 No. 20 of 1981, the respondents are directed to reconsider the case of Shri
S.N Kumar for appointment as an Additional Judge of the High Court of Delhi
for a further term.

 Question of executive privilege in respect of documents relating to

appointment of High Court Judges.

 Respondents 3 to 12 are the Additional Judges of the High Court of Bombay

appointed under Article 224(1) of the Constitution.

 The above petition is filed questioning the validity of a circular letter dated
March 18, 1981 addressed by the Union Law Minister to the Governor of
Punjab and Chief Ministers (by name) (except the North-Eastern States) by
which they were requested to obtain the consent of Additional Judges working
in the High Courts to their appointment as Judges of the High Courts other
than those in which they were Additional Judges on the lines indicated in the
said circular letter.

 The Union Government inter alia has questioned the locus standi of the
petitioners to file the petition and has further pleaded that by the impugned
letter, the Union Government merely sought the consent of the Additional
Judges and others who had been or who were to be proposed for
appointment as Judges to the effect that they were willing to be initially
appointed as Judges in other High Courts.

 The policy of appointment of Judges in High Courts from outside is justified on

various grounds set out in the affidavit.
 The Union Government has prayed that the petition may be dismissed.

 High Court and the Chief Justice of India and (ii) to convert 12 posts of
Additional Judges in the Delhi High Court into permanent posts having regard
to the regular business and the arrears of that Court.

 It is not necessary to go into certain events and proceedings that took place
till the counter-affidavit was filed in this case on July 22, 1981 except the fact
that Shri O.N Vohra and Shri S.N Kumar had ceased to be Judges with effect
from June 7, 1981 as they had not been appointed as Additional Judges for
any further period and that Shri S.B Wad had been appointed as an Additional
Judge from June 7, 1981 for one year more.

 She has also stated that the Union Government had acted illegally in not
appointing Mr Justice Subramanian Poti, the seniormost Judge of the Kerala
High Court as the Chief Justice of that Court in the vacancy created by the
appointment of Mr Justice Balakrishna Eradi, Chief Justice of the Kerala High
Court, as a Judge of this Court.

 But during the pendency of this petition in this Court, Mr Justice K.B.N Singh
who had been impleaded as a respondent was transposed as a petitioner by
an order of this Court.

 It is necessary to remember and adopt it as our own rule of conduct what

Washington wrote on June 8, 1783 in his message to the Governors of States
in the United States of America.

 964. A constitution of a country is a living document and cannot be interpreted

in a narrow pedantic sense.

 Application of constitutional provisions to actual facts of life requires judicial

statesmanship.

 970. If the Attorney-General declines to give his consent to a relator action the
Court cannot question his exercise of discretion.

 I must confess that whenever an ordinary citizen comes to the Court of

Appeal and complains that this or that government department - or this or that
local authority - or this or that trade union - is abusing or misusing its power - I
always like to hear what he has to say.

 The appeal was allowed and the original application was dismissed.
 The appellant was a representative of the committee which was in law the
trustees of the amounts collected by it from the villagers for a public purpose.

 We have no hesitation to hold that the appellant had the right to maintain the
application under Article 226 of the Constitution.

 The petition under Article 226 of the Constitution at his instance is

maintainable."

 It has to be found out whether the Bar Council has a grievance in respect of
an order or decision affecting the professional conduct and etiquette.

 Article 43-A of the Constitution confers, in principle, partnership status to

workers in industry and we cannot be deterred by technical considerations of
corporate personality to keep out those who seek to remedy wrongs
committed in the management of public sector.

 I take the view that the present petition would clearly have been permissible
under Article 226."

 One important prayer made by them is that the Government should be

directed to appoint sufficient number of permanent Judges in every High
Court.

 If at any given point of time it is found that the number of Judges in a High
Court is absolutely inadequate to meet its requirements, the members of the
Bar who are vitally interested in the administration of justice can file a petition
before the High Court to compel the Government to review the strength of the
permanent Judges of that Court and to appoint adequate number of Judges.

 It is significant the Article 124(3)(b), Article 217(2)(b) and Article 233(2) of the
Constitution specifically state that the legal profession is a source of
recruitment of Judges of the Supreme Court, High Courts and District Courts.

 Entries 77 and 78 of List I of the Seventh Schedule to the Constitution

specifically refer to persons entitled to practise before the Supreme Court and
the High Courts.

 Mr S.N Kumar who was an Additional Judge of the Delhi High Court when the
petition of Shri V.M Tarkunde was filed in the High Court has ceased to be an
Additional Judge as his term was not extended beyond June 6, 1981.
 Relating to the transfer of Shri K.B.N Singh, Chief Justice of Patna High Court
as Chief Justice of Madras High Court, he has been permitted to be
transposed as the petitioner.

 The decisions cited before us founded on the jurisdiction under Article 226 are
inept and themselves somewhat out of tune with the modern requirements of
jurisprudence calculated to benefit the community."

 The Supreme Court of the United States of America reversed the judgment of
the court below and remanded the case to the District Court to dispose it of in
the light of its decision.

 We conclude that petitioners' claim is not barred by the political question

doctrine, and, having determined that the claim is otherwise generally
justiciable, we hold that the case is justiciable."

 "It will be seen that merely because a question has a political colour, the Court
cannot fold its hands in despair and declare 'Judicial hands off'.

 So long as a question arises whether an authority under the Constitution has

acted within the limits of its power or exceeded it, it can be decided by the
Court.

 We are concerned in these cases with High Courts and Judges of High Courts
in our country.

 The High Courts in India are established by the Constitution.

 Article 376 of the Constitution provided for the continuance of the Judges of a
High Court in any Province holding office immediately before the
commencement of the Constitution as Judges of the new High Court in the
corresponding State.

 Any such Judge shall, notwithstanding that he is not a citizen of India, be

eligible for appointment as Chief Justice of such High Court, or as Chief
Justice or other Judge of any other High Court.

 (3) In the article, the expression 'Judge' does not include an acting Judge or
an Additional Judge."

 The provisions dealing with the High Courts are found in Chapter V. in Part VI
of the Constitution containing provisions governing the States and the salaries
 of the Judges of a High Court are paid out of the funds of the State or States
over which it exercises jurisdiction.

 It is difficult to say that each High Court is independent of the other High
Courts.

 Clause (2) of Article 214 contained the necessary "deeming" provision under
which the High Courts exercising jurisdiction in any Province immediately prior
to the commencement of the Constitution became High Courts under the
Constitution as per definition contained in Article 366(14) of the Constitution.

 Clause (3) of Article 214 stated that Chapter V. in Part VI of the Constitution
did not apply to any particular High Court but generally to all the High Courts
thereby suggesting that this chapter could have very well been included in a
separate part of the Constitution.

 Constitution and organisation (including vacations) of the High Courts except

provisions as to officers and servants of High Courts; persons entitled to
practise before the High Courts."

 It is today quite possible for the Parliament to pass a common High Courts Act
governing all the High Courts in India replacing the existing laws governing
them.

 The appointment of a Judge of a High Court is made by the President in

consultation with the Chief Justice of India, the Governor of the State
concerned and in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of the High Court.

 Article 222 of the Constitution states that the President may after consultation
with the Chief Justice of India transfer a Judge from one High Court to any
other High Court without any kind of consultation with the Governors of the
States concerned or the Chief Justices of those High Courts.

 Constitution, the Chief Justice of a High Court for any State may at any time
with the previous consent of the President request any person who has held
the office of a Judge of that Court or any other High Court to sit and act as a
Judge of the High Court for that State.

 Under Article 231 of the Constitution, Parliament may by law establish a

common High Court for two or more States or for one or more States and a
Union territory.
 Article 139-A(2) of the Constitution empowers the Supreme Court to transfer
any case, appeal or other proceeding pending before a High Court to any
other High Court.

 The scope of the power of the President to appoint Judges of the High Courts
under Article 217(1) of the Constitution may be considered now.

 Under Section 220(2) of that Act every Judge of a High Court was to be
appointed by His Majesty and he could hold office until he attained the age of
60 years.

 The appointment of a Judge of a High Court under the Government of India

Act, 1935 was a Crown appointment.

 In the ordinary course, it is legitimate to assume that there must have been
always consultation with the Chief Justice of the High Court concerned or with
some others who were familiar with judicial matters whenever an appointment
of a Judge to a High Court was made.

 It is suggested that Article 193(1) may be worded in the following or other

suitable manner: 'Every Judge of the 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 after consultation with the Governor of the
State and with the concurrence of the Chief Justice of India ...'

 A High Court is the highest judicial authority in a State and is the Court of the
last resort for the majority of cases.

 Along with the Supreme Court at the apex, the High Courts have to play the
role of protectors of the rights and liberties of the people and should be
manned by independent and efficient Judges.

 Realising the importance of the High Court in a democratic country with a

federal form of Government, the Constitution states that the Judges should be
appointed after following the consultative machinery provided in Article
217(1).

 The appointment of Judges of High Courts is not made by calling for

applications or holding examinations because the really deserving persons
would not make applications.
 The range of selection is practically limited by the personal or acquired
knowledge of the Chief Justice of the High Court concerned about the
advocates or judicial officers.

 From the scheme of the constitutional provisions, it appears that each of the
three functionaries mentioned in Article 217(1) of the Constitution who have to
be consulted before a Judge of a High Court is appointed has a distinct and
separate role to play.

 The Chief Justice of the High Court is the most competent person to evaluate
the merit and efficiency of a person recommended for the judgeship.

 Under Article 217(3) of the Constitution which provides for the determination
of the age of a Judge of a High Court, the President has to decide the age of
a High Court Judge after consultation with the Chief Justice of India and this
Court has observed in Union of India v. Jyoti Prakash Mitter 1971 1 SCC 396
that the President cannot in deciding the case under Article 217(3) act on the
advice of his Ministers.

 But the Court will not sit in appeal over the judgment of the President, nor will
the Courts determine the weight which should be attached to the evidence.

 The power of appointment of a Judge of a High Court is an executive power

and the analogy of Article 217(3) is inappropriate.

 It only means that the High Court cannot appoint or dismiss or remove District
Judges.

 There is nothing in Article 311 which compels the conclusion that the High
Court is ousted of the jurisdiction to hold the enquiry if Article 235 vested such
a power in it.

 The Court recognised in that case that the power to appoint District Judges
was vested with Governor but that such power could be exercised only after a
full and effective consultation with the High Court.

 The Court did not go to the extent of saying that any opinion expressed by the
High Court was binding on the Governor.

 In Samsher Singh v. State of Punjab 1974 2 SCC 831 which is a judgment of

a Bench of seven learned Judges of this Court, Chief Justice Ray observed at
SCR p. 843 : (SCC p. 857, para 88)
 The thesis that the Constitution prohibits the participation of the Executive in
the appointment of Judges of superior courts and that the opinion of the Chief
Justice of India alone should be binding on the President in such matters
totally fails when we consider the question of appointment of the Chief Justice
of India.

 Article 124(2) of the Constitution provides that every Judge of the Supreme
Court shall be appointed by the President by warrant under his hand and seal
after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the
purpose and that in the case of appointment of a Judge other than the Chief
Justice, the Chief Justice of India shall always be consulted.

 When the "primacy of judicial opinion" doctrine fails in the case of the
appointment of the Chief Justice of India, it would not be appropriate to hold
that it prevails in the case of appointments of other Judges of the Supreme
Court and the Judges of the High Courts.

 Under Article 217(1) of the Constitution the President should while making an
appointment of a High Court Judge act on the advice of his Council of
Ministers having due regard to the opinions expressed by the functionaries
mentioned therein after a full and effective consultation.

 In Australia the Justices of the High Court and of the other courts created by
the Parliament are appointed by the Governor-General-in-Council [see
Section 72(1) of the Commonwealth of Australia Constitution Act, 1900].

 In Japan, the Emperor appoints the Chief Judge of the Supreme Court as
designated by the Cabinet and Judges other than the Chief Judge are
appointed by the Cabinet.

 In India we have adopted the procedure contained in Article 217(1) of the

Constitution for the appointment of Judges of the High Courts.

 The process of consultation prescribed by Article 217(1) acts as a sufficient

safeguard against the appointment of undesirable persons as Judges of the
High Courts.

 Article 217 of the Constitution does not say in terms that the proposal for
appointment of a person as a Judge should be initiated by the Chief Justice of
the High Court.
 Under the scheme of Article 217 the power to appoint a Judge of a High Court
is vested in the President.

 In any event it is difficult to hold that an advocate or a member of the

Subordinate Judiciary whose name is approved by the Chief Justice of a High
Court and the Chief Justice of India gets a vested right to be appointed as a
Judge of a High Court.

 Under Section 4 of the High Courts Act or the Charter Act, 1861 (24 & 24
Vict., c.104) it was provided that all the Judges of the High Courts established
under that Act held their offices during Her Majesty's pleasure provided that it
was lawful for any Judge of a High Court to resign such office of Judge.

 It also provided that upon the happening of a vacancy in the office of any
other Judge of a High Court and during any absence of any such Judge or on
the appointment of any such Judge to act as Chief

 In the High Courts Act or the Charter Act, 1861, there was no provision for
appointment of an Additional Judge of a High Court with a restricted tenure as
it is in Article 224(1) of the Constitution.

 Sub-section (2) of Section 101 stated that each High Court should consist of a
Chief Justice and as many other Judges as His Majesty might think fit to
appoint.

 Section 220 of the Government of India Act, 1935 as it was originally enacted
provided that every High Court was to consist of a Chief Justice and such
other Judges as His Majesty might from time to time consider it necessary to
appoint.

 Under the Government of India Act, 1935, every Judge of a High Court held
his office until he attained the age of 60 years provided that he would cease to
be a Judge of the High Court if any of the events mentioned in the proviso to
Section 220(2) happened earlier.

 (2) (a) When the office of any other Judge of a High Court is vacant or when
any such Judge is appointed to act temporarily as a Chief Justice or is unable
to perform the duties of his office by reason of absence or otherwise, the
President may appoint a person duly qualified for appointment as a Judge to
act as a Judge of that Court.
 Notwithstanding anything contained in this Chapter, the Chief Justice of a
High Court may at any time, subject to the provisions of this article request
any person who has held the office of a Judge of that Court to sit and act as a
Judge of the Court, and every such person so requested shall, while so sitting
and acting, have all the jurisdiction, powers and privileges of, but shall not
otherwise be deemed to be, a Judge of that Court: Provided that nothing in
this article shall be deemed to require any such person as aforesaid to sit and
act as a Judge of that Court unless he consents so to do."

 At the conference of the Federal Court Judges and Chief Justices of the High
Courts which met in March 1948, it was recommended that Article 198(2)(c) of
the Draft Constitution which empowered the President to revoke the
appointment of an acting Judge appointed under Article 198(2) (a) should be
omitted.

 I would not apply this to temporary Judges taken from the Services, who hold
a seat on the Bench for a few months, but I would add that the practice of
appointing additional and temporary Judges should be definitely given up.

 It was of the view that it was "possible to discontinue the system of

appointment of temporary and Additional Judges in High Courts altogether by
increasing, if necessary, the total number of permanent Judges of such
courts".

 On June 7, 1949 after hearing the plea of Dr B.R Ambedkar "that all Judges of
the High Court shall have to be permanent", the Constituent Assembly
adopted the recommendation of the Drafting Committee to delete Articles
198(2) and 199 of the Draft Constitution providing for the appointment of
acting and Additional Judges in High Courts.

 The Drafting Committee deleted reference to appointment of acting and

Additional Judges altogether in the revised Draft Constitution submitted to the
Constituent Assembly on November 3, 1949 but retained only those
provisions relating to appointment of acting Chief Justice and attendance of
retired Judges at sittings of High Courts.

 (1) If by reason of any temporary increase in the business of a High Court or

by reason of arrears of work therein, it appears to the President that the
number of the Judges of that Court should be for the time being increased,
the President may appoint duly qualified persons to be Additional Judges of
the Court for such period not exceeding two years as he may specify.
 (2) When any Judge of a High Court other than the Chief Justice is by reason
of absence or for any other reason unable to perform the duties of his office or
is appointed to act temporarily as Chief Justice, the President may appoint a
duly qualified person to act as a Judge of that Court until the permanent
Judge has resumed his duties.

 (3) No person appointed as an Additional or acting Judge of a High Court

shall hold office after attaining the age of sixty years."

 The original Article 224 which was replaced by the new Article 224 was again
reintroduced as Article 224-A by the Constitution (Fifteenth Amendment) Act,
1963 again providing for the attendance of retired Judges at sittings of High
Courts.

 It empowers the President to appoint duly qualified persons to be Additional

Judges, if it appears to him by reason of any temporary increase in the
business of a High Court or by reason of arrears of work therein that the
number of Judges of that Court should for the time being be increased.

 Article 224(1) is not intended for meeting a situation where the work of the
High Court is gradually on the increase requiring the appointment of more
number of permanent Judges.

 The position necessitates a thorough revision of existing ideas regarding the

number of Judges required for each High Court.

 The normal strength of a High Court must be fixed on the basis of the average
annual institutions of all types of proceedings in a particular High Court during
the last three years.

 We suggest that the required strength of the High Court of each State should
be fixed in consultation with the Chief Justice of that State and the Chief
Justice of India and the strength so fixed should be reviewed at an interval of
two or three years.

 The appointment of Additional Judges for the exclusive purpose of dealing

with the arrears is, in our view, called for in a large number of High Courts."

 Article 217(1) of the Constitution lays down the procedure to be followed in

making the appointment of a Judge of a High Court.
 Article 217(1) as it was originally enacted referred to the appointment of
permanent Judges only as there was no provision in the Constitution then to
the appointment of Additional or acting Judges.

 It is to be noted that the Constitution does not prescribe any difference in the
mode of appointment of a permanent Judge or of an Additional or an acting
Judge.

 Naturally the number of cases filed in the High Courts which happen to be the
highest courts in the case of a large number of matters have gone on growing.

 Article 216 of the Constitution requires the President to appoint necessary

number of Judges in each High Court.

 It imposes a duty on the President to review the strength of Judges in each

High Court from time to time and to increase the number of Judges as and
when it is necessary.

 In this state of affairs, it is difficult to understand as to why Judges are being

appointed even now as Additional Judges only for a period of two years or for
lesser periods.

 Surely there is no financial gain to the Government as the expenditure

involved is almost the same whether a Judge is an Additional Judge or a
permanent Judge.

 Article 224(1) was never intended for appointing almost every Judge first as
an Additional Judge and then as a permanent Judge.

 A perusal of the list of Judges of the High Courts maintained by the

Government shows that not less than 4/5th of the Judges have been initially
appointed as Additional Judges and then as permanent Judges.

 Judges whose tenure is not assured as in the case of permanent Judges but
whose continuance in office after the specified period is subject to the will of
any other authority generally do not inspire confidence in the litigant public
also.

 The appeal should have been dismissed.

 All the same, looking to the special facts and circumstances of this case, we
are of the opinion that it is fit and proper and in the interest of justice that the
 election petition filed by the appellant be tried by another learned Judge of the
High Court who may be assigned for the purpose by the Chief Justice of that
court.

 It seems desirable that election petitions should ordinarily, if possible, be

entrusted for trial to a permanent Judge of the High Court even though we find
that Additional or acting Judges or those requested under Article 224-A of the
Constitution to sit and act as Judges of the High Court, if assigned for the
purpose by the Chief Justice, are legally competent to hear those matters.

 We set aside the order dated August 20, 1973.

 The election petition filed by the appellant shall now be heard by a permanent
Judge who may be assigned for the purpose by the learned Chief Justice.

 The case may be placed before the learned Chief Justice for necessary
orders.

 The appeal is accepted .

 The parties in the circumstances shall bear their own costs of this Court and
in the High Court."

 Additional or acting Judges appointed under Article 224(1) and (2) or retired
Judges requested under Article 224-A of the Constitution are looked at with
suspicion even by this Court.

 "The second infirmity from which the procedural part of the Bill suffers is that
by clause 7, Special Courts are to be presided over either by a sitting Judge
of a High Court or by a person who has held office as Judge of a High Court
to be nominated by the Central Government in consultation with the Chief
Justice of India.

 The provision for the appointment of a sitting High Court Judge as a Judge of
the Special Court is open to no exception.

 We are of the opinion that clause 7 of the Bill violates Article 21 of the
Constitution to the extent that a person who has held office as a Judge of the
High Court can be appointed to preside over a Special Court, merely in
consultation with the Chief Justice of India."
 This again supports the view that the present practice of appointing almost all
the High Court Judges initially under Article 224(1) and later on as permanent
Judges is not conducive to the independence of judiciary.

 The King summoned all the Judges before him and his Council to know what
they had to say against the said proposal.

 The next point which requires to be examined is whether an Additional Judge

who is appointed for a specified term and who is not reappointed after the
expiry of the said term can complain before a court of law about his non-
appointment.

 In other words whether such an Additional Judge has any judicial remedy at
all if he is aggrieved by the Government not appointing him as Additional
Judge for a further term or as a permanent Judge is the question which has to
be considered .

 The Constitution does not confer any right upon an Additional Judge to claim,
as of right, that he should be appointed again either as a permanent Judge or
as an Additional Judge.

 A court of law has no power to give effect to any right not recognised by law.

 It is also not the function of a court of justice to enforce or give effect to moral
obligations which do not carry with them legal or equitable rights.

 Additional Judge as a permanent Judge has come into existence and that
such convention should be enforced by courts.

 On April 7, 1942, the claimant was informed that the Secretary of State could
not justify retaining him now that his post was necessarily in abeyance and
there was no alternative but to award him pension on abolition of his office
and the claimant's appointment ended on July 7, 1942, 17 months before his
62nd birthday.

 It is seen that the English court did not extend the benefit of the Act of
Settlement, 1700, to a Judge appointed in a British colony.

 Constitutional conventions, understandings or practices constitute a source of

constitutional law or binding rule of conduct though not enforced by courts.
 It is difficult to make a declaration on the basis of any constitutional
convention not found in the Constitution that an Additional Judge who was
appointed after following the same procedure prescribed for appointment of a
permanent Judge should be deemed to have been appointed as a permanent
Judge because the circumstances warranted the appointment of a permanent
Judge at the time of his appointment, contrary to the express and unequivocal
language of the warrant of his appointment.

 When the Chief Justice of a High Court feels that a member of the Bar should
be invited to accept the post of a Judge of the High Court, after obtaining the
consent of such advocate, he recommends that his case may be considered
for appointment as a permanent or as an Additional Judge depending on the
vacancy which has to be filled up by such appointment.

 It is stated that in some High Courts including the Delhi High Court an
undertaking would be taken from the advocate concerned when his name is
recommended for the post of an Additional Judge that he would accept the
post of a permanent Judge if offered before the expiry of the term of
appointment as Additional Judge.

 I agree that an undertaking should be taken from the members of the Bar that
they will accept a permanent Judgeship when offered to them in due
course...."

 From the time onwards nearly 500 persons have been appointed as Judges of
High Courts.

 What is to be noticed is that in almost every High Court a few posts have
been kept as sanctioned posts of Additional Judges as if they were part of the
total strength.

 The result has been that unless all the sanctioned posts of Additional Judges
and at least one post of a permanent Judge have fallen vacant at a given
point of time any new Judge appointed on that occasion being the juniormost
has to be appointed as an Additional Judge and later on appointed as a
permanent Judge when a vacancy arises in the permanent strength after all
other Additional Judges senior to him have been absorbed as permanent
Judges.
 At that time every Judge of a High Court had to be appointed only as a
permanent Judge without any need for scrutinising his case again for
purposes of reappointment as Additional Judge or permanent Judge.

 From the information made available to the Court, it appears that subject to
just exceptions in almost all the High Courts if a realistic review of the present
strength is made the total number of permanent Judges needed will be much
more than the existing number of permanent Judges and Additional Judges.

 Since invariably an Additional Judge has been appointed as a permanent

Judge in due course except in some rare cases, every member who is
appointed as an Additional Judge and who has not completed the age of
retirement expects that he will be made permanent as and when a vacancy
arises in the permanent strength and will be continued as an Additional Judge
by fresh appointments until such vacancy arises provided the arrears in the
High Court requiring his continuance as an Additional Judge persist.

 The twin factors, namely, the expectation on the part of the Additional Judge
and the reluctance on the part of the Government distinguish the case of an
Additional Judge from the case of a new member who may be a competitor
for the same post at the termination of the tenure of the Additional Judge.

 Ordinarily the Additional Judge is continued in service as a Judge or as an

Additional Judge unless there are any relevant circumstances which would
outweigh the above mentioned factors.

 In the absence of any such cogent reasons for not appointing him again, the
appointment of somebody else in his place would be an unreasonable or
perverse act which entitles an Additional Judge to move the Court for
appropriate relief in the peculiar circumstances in which Article 224(1) is being
operated till now.

 He passes in review all of the Rules, principles, legal categories, and

concepts which he may find useful, directly or by an analogy, so as to select
from them those which in his opinion will justify his desired result.291"

 It is interesting to trace the history of the provision relating to the transfer of

Judges from one High Court to another.
 Clause (c) of the proviso to Article 193(1) of the Draft Constitution merely
stated that the office of the Judge shall be vacated by his being appointed by
the President to be a Judge of the Supreme Court or of any other High Court.

 When two members of the Constituent Assembly Shri R.R Diwakar and Shri
S.V Krishnamurthy Rao moved an amendment to clause (1) of Article 193 of
the Draft Constitution for adding clause (d) which read as "(d) every Judge
shall be liable to be transferred to other High Courts" it was recorded that
there was no need for the amendment as clause (c) of the proviso to Article
193(1) of the Constitution provided that the office of a Judge shall be vacated
by his being appointed to be a Judge of another High Court.

 (1) The President may transfer a Judge from one High Court to any other High
Court within the territory of India.

 (2) When a Judge is so transferred, he shall, during the period he serves as a

Judge of the other Court, be entitled to receive in addition to his salary such
compensatory allowances as may be determined by Parliament by law and
until so determined, such compensatory allowance as the President may by
order fix."

 "Article 222 (new): We have proposed the insertion of this new article to
enable the President to transfer a Judge of a High Court from one High Court
to another.

 The present provision in the Constitution would not permit of any

compensatory allowance being given to Judges on such transfer.

 Power has been reserved to Parliament to determine by law the

compensatory allowance to be paid in case they are so transferred, and, until
Parliament so determines, to the President to fix by order the quantum of such
allowance."

 It may be seen that Article 222(1) which was incorporated in the Revised Draft
gave the power to the President to transfer a Judge from one High Court to
another without any obligation to consult any other functionary before doing
so.

 (1) The President may, after consultation with the Chief Justice of India,
transfer a Judge from one High Court to any other High Court within the
territory of India."
 Article 217 was also suitably amended by introducing the word "transferred" in
proviso (c) to clause (1) thereof.

 The Drafting Committee felt that since all the High Courts so far as the
appointment of Judges is concerned form now a central subject, it was
desirable to treat all the Judges of the High Courts throughout India as
forming one single cadre like the I.C.S and that they should be liable to be
transferred from one High Court to another.

 We thought that the power to transfer should be placed in the hands of the
Central Government.

 We have introduced a provision that such transfers shall take place in

consultation with the Chief Justice of India who can be trusted to advise the
Government in a matter which is not affected by local or personal prejudices.

 The only question that remained was whether such transfer should be made
so obligatory as not to involve any provision for compensation for loss
incurred.

 Committee felt justified in making provision that where such transfer is made it
would be permissible for Parliament to allow a personal allowance to be given
to a Judge so transferred.

 (1) The President may, after consultation with the Chief Justice of India,
transfer a Judge from one High Court to any other High Court.

 (2) When a Judge has been or is so transferred, he shall, during the period he
serves, after the commencement of the Constitution (Fifteenth Amendment)
Act, 1963, as a Judge of the other High Court, be entitled to receive in
addition to his salary such compensatory allowance as may be determined by
Parliament by law and, until so determined, such compensatory allowance as
the President may by order fix."

 The majority judgment of this Court in Union of India v. Sankalchand Himatlal

Sheth 1977 4 SCC 193 holds that the consent of a Judge for his transfer from
one High Court to another High Court is not necessary.

 It is significant that Article 127 does not require the consent of the Judge to be
designated under Article 127(1) to be obtained before asking him to function
as an ad hoc Judge of the Supreme Court even though it may involve the
 shifting of his residence during the period specified in the letter of request sent
to him under Article 127(1).

 Judges to vacate office on transfer.-At the end of the proviso to sub-section

(2) of section two hundred and twenty of the principal Act (which relates to the
term of office of Judges of High Courts) there shall be added the following
para: (c) the office of a Judge shall be vacated by his being appointed by His
Majesty to be a Judge of the Federal Court or of another High Court."

 "Clause 2 of the Bill makes it clear that if a Judge of the High Court is
transferred to another High Court or to the Federal Court, he shall not retain
his office of a Judge of the High Court from which he was transferred.

 I might mention that there is a similar provision in Section 10 of the Supreme

Court of Judicature Act, 1925 applicable to High Court Judges in this country."

 "The Secretary of State for India (Mr Amery) stated: The second clause clears
up a doubt which had been expressed as to whether under the provisions of
the Act a Judge transferred in India from one High Court to another or to the
Supreme Court (sic) might not be considered as still holding his position in his
original court.

 Lord Reid's remarks in Chandler v. Director of Public Prosecutions must be

read in the light of his subsequent remarks in Director of Public Prosecutions
v. Schildkamp: (All ER p. 1641) 'But it may be more realistic to accept the Act
as printed as being the product of the whole legislative process, and to give
due weight to everything found in the printed Act.

 There could be no transfer of a High Court Judge to the Federal Court.

 Even in the case of High Courts, a Judge of a High Court could become a
Judge of another High Court under the Government of India Act, 1935 only by
an appointment under Section 220(2) by a warrant of appointment.

 Even there Section 10(2) of the Act provided that the office of any Judge of
the High Court would be vacated by his being appointed as a Judge of the
Court of appeal and the same Act used "transferred" in Section 4(2) thereof
where it was dealing with the transfer of a Judge of the High Court from one
Division to another Division.

 The marginal note and the speeches relied on are of not much use.
 It is alternatively urged that as the Constitution has used the words "transfer"
and "appointment" interchangeably in Article 222 and in para 11(a)(iii) of the
Second Schedule to the Constitution, the word "transfer" in Article 222 should
be read as equivalent to "appointment" and a transfer of a Judge results in a
fresh appointment which requires his consent.

 11. (b) 'actual service' includes- (iii) joining time on transfer from a High Court
to the Supreme Court or from one High Court to another.

 The contention is that since a High Court Judge can become a Judge of the
Supreme Court only by a fresh appointment and that in para 11(b)(iii) of the
Second Schedule to the Constitution the word "transfer" is used to denote
such appointment, it should be held that even when a High Court Judge is
transferred to another High Court he must be deemed to have been appointed
afresh in the Court to which he is transferred and because it is a fresh
appointment his consent is necessary as it is needed under Article 217(1).

 "(c) The office of a Judge shall be vacated by his being appointed by His
Majesty to be a Judge of the Federal Court or of another High Court."

 "(c) The office of the Judge shall be vacated by his being appointed by the
President to be a Judge of the Supreme Court or of any other High Court."

 "(c) The office of a Judge shall be vacated by his being appointed by the
President to be a Judge of the Supreme Court or of any other High Court in
any State specified in the First Schedule."

 "(c) The office of a Judge shall be vacated by his being appointed by the
President to be a Judge of the Supreme Court or by his being transferred by
the President to any other High Court within the territory of India.314"

 I do not find any merit in this contention.

 The next contention urged against the correctness of the majority decision in
Sankalchand Himatlal Sheth case is the one that appealed to Untwalia, J. in
that case, namely, that a transferred Judge cannot become a Judge of the
High Court to which he is transferred without taking a fresh oath in
accordance with Article 219 of the Constitution in the form prescribed in the
Third Schedule to the Constitution.
 Clause (c) of proviso to Article 217(1) of the Constitution states that the office
of a Judge of a High Court shall be vacated by his being appointed by the
President to any other High Court within the territory of India.

 If a transferred Judge has to take a fresh oath then it is urged that the order of
transfer would become a fresh appointment for which his consent would be
required by necessary implication as it is necessary in the case of a first
appointment under Article 217(1).

 It will operate as long as he discharges judicial duties either in that High Court
or in any other High Court to which he may be transferred under Article 222 of
the Constitution or even when he discharges any other duty which he may be
requested to do by the President as provided in para 11(b)(i) of the Second
Schedule to the Constitution.

 Under Article 127 of the Constitution a High Court Judge can be asked to
discharge the duties of a Judge of a Supreme Court.

 Under Article 224-A a retired High Court Judge can be asked to sit in the High
Court where he had worked as a Judge before his retirement or in any other
High Court and decide cases.

 It is contended that since in the first of these two cases he is not treated as a
regular Supreme Court Judge but continues to be a High Court Judge and in
the second case he is entitled to have all the jurisdiction, powers and
privileges of, but shall not otherwise be deemed to be a Judge of the High
Court where he functions under Article 224-A no fresh oath would be
necessary.

 The position cannot be different when a Judge of a High Court is transferred

under Article 222.

 On such transfer he may cease to be a Judge of the High Court where he was
working before such transfer but he continues to be a Judge and goes to the
Court to which he is transferred as a Judge and not as a newly appointed
person who is still to blossom into a Judge by taking the oath as prescribed by
Article 219 of the Constitution.

 Incidentally we may refer to the decision of the High Court of Allahabad in

Hira Singh v. Jai Singh AIR 1937 All 588 FB in which the question of a Judge
not taking oath had arisen for consideration in a slightly different situation.
 Part 3 of the Government of India Act, 1935 which came into force on April 1,
1937 provided that any Judge appointed before the commencement of that
Part to any High Court would continue in office and should be deemed to have
been appointed under that Part.

 "All that Section 220(4) requires is that every person appointed to be a Judge
of a High Court shall, before he enters upon his office, make and subscribe
before the Governor or some other person appointed by him an oath
according to the form prescribed.

 The decision proceeded on the basis that an Additional Judge once appointed
does not change his status as a Judge even when his tenure is extended or is
made permanent.

 I am of the view that no fresh oath need be taken by a Judge who is

transferred before entering upon duties as a Judge in the High Court in which
he is transferred since the oath already taken continues to bind him and the
transfer is only traceable to the status which he had acquired after taking the
oath earlier in the Court to which he was initially appointed.

 Since there is no necessity for a fresh oath after his transfer, even though as
a matter of abundant caution the practice of taking fresh oath is prevailing
nowadays, it cannot be said that he is appointed afresh as a Judge in the
Court to which he is transferred.

 The payment under Article 222(2) can be justified only by holding that the
transfer under Article 222(1) does not result in a fresh appointment in another
High Court to which a Judge is transferred.

 If a Judge who is transferred under Article 222 of the Constitution is to be

treated as having been appointed afresh in the High Court to which he is
transferred then he will have to be assigned a rank below all the other Judges
who were working in that court before he was transferred.

 It is only if it is held that he goes there as a person already appointed as a

Judge though in another High Court then he can reasonably be assigned
seniority over others who were appointed after he was appointed initially as a
High Court Judge.
 It may be on account of the public interest such as providing another High
Court with a competent Judge who is able to discharge his duties effectively in
that court.

 Under that article a Judge can be transferred when such transfer subserves
public interest and the President "has no power to transfer a High Court Judge
for reasons not bearing on public interest but arising out of whim, caprice, or
fancy of the executive or its desire to bend a Judge to its own way of thinking".

 "Experience shows that there are cases, though fortunately they are few and
far between, in which the exigencies of administration necessitate the transfer
of a Judge from one High Court to another.

 Clause (b) of the proviso to Article 217(1) of the Constitution states that a
Judge of a High Court may be removed from his office by the President in the
manner provided in clause (4) of Article 124 of the Constitution for the
removal of a Judge of the Supreme Court.

 Article 218 of the Constitution provides that the provisions of clauses (4) and
(5) of Article 124 shall apply in relation to a High Court as they apply in
relation to the Supreme Court with the substitution of references to the High
Court for references to the Supreme Court.

 In exercise of the said power Parliament has enacted the Judges (Inquiry)
Act, 1968 (51 of 1968) which is applicable to Judges of both the Supreme
Court and High Courts.

 Judge can be made under Article 222 on mere allegations of misbehaviour or

incapacity of a Judge.

 It is declared that a transfer based on any such ground being outside the
scope of Article 222 is liable to be set aside.

 It was faintly suggested by one of the petitioners that Article 222 of the
Constitution does not in terms apply to a Chief Justice of a High Court and the
transfer of a Chief Justice was bad.

 It is submitted that a Chief Justice is different from other Judges of a High

Court for the following reasons: (a) Article 216 of the Constitution states that a
High Court should always have a Chief Justice.
 These points of distinction between a Chief Justice and a Judge of a High
Court no doubt are there but they do not appear to be conclusive for deciding
the question before us.

 We have to go through all the relevant provisions of the Constitution to

ascertain its true meaning.

 It says that every Judge of a High Court shall be appointed by the President
after consultation with the Chief Justice of India, the Governor of the State
and in the case of appointment of a Judge other than the Chief Justice, the
Chief Justice of the High Court.

 Article 225 which has preserved the powers of Judges of High Courts which
they were exercising before the commencement of the Constitution becomes
inapplicable to a Chief Justice.

 If the term "Judge" did not also include a "Chief Justice" all Chief Justices of
High Courts who were holding office immediately before the commencement
of the Constitution had to vacate their offices on January 26, 1950 because
Articles 376(1) and (2) referred to "Judges" only.

 Some other consequences of accepting this contention will be that the

expression "one Judge" occurring in Article 133(3) of the Constitution will not
include a "Chief Justice" of a High Court and by analogy, the word "Judges" in
Articles 145(2) and (3) will not include the "Chief Justice of India".

 Article 222 of the Constitution applies to all Judges of High Courts including a
Chief Justice.

 A Chief Justice can only be transferred as a Chief Justice of another High

Court and not as a Judge.

 It should, we think, be clearly understood, that the seniormost puisne Judge of

a court, should not merely by reason of his seniority have an expectation of
succeeding to the office of the Chief Justice.

 It should also be ensured that the Judge so appointed as Chief Justice should
have been on the High Court Bench for a sufficiently long time and should
have that much seniority as a Judge as not to cause resentment in the senior
Judges of the High Court that someone junior in service has been appointed
in supersession of their claim.
 While appointing someone from outside the State as Chief Justice of the High
Court, care must also be taken to see that his tenure as Chief Justice is not so
long as to block the chances of not only the seniormost Judges but also of
other Judges in the High Court.

 The advantages of having some Judges in every High Court from outside
have been considered by some high-power bodies earlier.

 At least one-third of the number of Judges in the High Court of a State should
consist of persons who are recruited from outside that State."

 A Chief Justice should not object to the allocation of a carefully selected man.

 The Study Team recommended at p. 195 of Vol. I of its Report that as far as
practicable, one-third of the number of Judges of a High Court should be from
outside.

 The 80th Report of the Law Commission has also approved the above idea of
having some Judges in every High Court from outside.

 Today no High Court can afford to remain isolated from other High Courts as
a judicial island.

 Lawyers and Judges of one High Court should be prepared to receive with
open arms lawyers and

 It is difficult to believe that Judges who day in and day out are applying
decisions of English, American and Australian courts while administering
justice will not be able to pick up the local laws in force in the State in which
the High Court to which they are transferred is situated.

 The plea that a Judge of a High Court should always know the language of
the region is again unsustainable.

 A Judge of one High Court who does not know the regional language of
another State may be transferred to the High Court of that State.

 Even after the "commencement of the Constitution, many Judges who did not
understand the local language have functioned as High Court Judges to the
satisfaction of all concerned.

 Panikkar strongly pleaded as stated earlier for appointment of at least one-

third of Judges of a High Court from outside the State.
 English is now the language of the Supreme Court and all the High Courts.

 Judges of one High Court trained in English language should not find any
difficulty in carrying on their duties in other High Courts which are situated in
other States.

 I am of the view that in view of the foregoing reasons and opinions expressed
by several expert bodies any transfer of a Judge of a High Court under Article
222 of the Constitution in order to implement the policy of appointing the Chief
Justice of every High Court from outside the State concerned and of having at
least one-third of the Judges of every High Court from outside the State after
consultation with the Chief Justice of India would not be unconstitutional.

 Their Lordships' conclusion was partly based on their interpretation of a rule of

court which was in the same terms as Order 31 Rule 19-A, sub-rule (2), of the
Rules of the English Supreme Court.

 On balance the Court of Appeal upheld the privilege in the light of the above
observations.

 "We recommend- (1) A departmental head seeking the exclusion of any

evidence should be required to state in his affidavit whether the adduction of
such evidence would be prejudicial to the national security, including
diplomatic relations, or some other head of public interest, which he should
specify.

 All the Judges were exercised in their minds as to the desirability of the law of
England in this respect being the same as that of Scotland and of
Commonwealth countries, such as Australia, Canada and New Zealand.

 After a review of a number of decisions which had been rendered before

Duncan case including Robinson case decided by the Privy Council and the
decisions of the Court of Appeal subsequent to the decision in Duncan case,
the House of Lords reversed the decision of the Court of Appeal.

 339 Duncan case stood modified.

 The Court of Appeal had allowed appeal of the employers holding that if the
documents were disclosed it would be in gross breach of faith and could lead
to industrial trouble.
 While construing Sections 123 and 162, it would be irrelevant to consider why
the enquiry as to injury to public interest should not be within the jurisdiction of
the Court, for that clearly is a matter of policy on which the Court does not and
should not generally express any opinion.

 Documents in relation to these matters might fall into a class which per_se
might require protection.

 This Court has said that the Court has no power to inspect the document.

 The expression "affairs of State" should receive a very narrow meaning.

 By our order made earlier in the course of these proceedings we directed the
disclosure of the documents after carefully considering all aspects of the case
including the weighty reasons of our learned Brother Fazal Ali, J. to the
contrary.

 Article 217(1) of the Constitution which empowers the President to appoint

Judges of High Courts does not make any distinction between the tests that
should be applied in the case of appointment of a permanent Judge and the
tests to be applied in the case of the appointment of an Additional Judge, as
to the fitness of the person to be appointed.

 The same tests have to be applied even when a person who has already
been appointed as an Additional Judge is to be considered for appointment as
a permanent Judge or for appointment as an Additional Judge for another
period although as already mentioned an Additional Judge has two factors in
his favour which have to be taken into consideration by the appointing
authority in the context of the manner in which Article 224 of the Constitution
has been operated all these days.

 A deeper probe into the case has become necessary.

 It is difficult to accept this submission because there were about sixty such
Additional Judges appointed by the previous Government and out of them it is
seen that only four - one of the Allahabad High Court, one of the Rajasthan
High Court and two of the Delhi High Court including the petitioner have not
been reappointed as Additional Judges.

 Judges of the High Courts as on January 1, 1980, there were 12 Additional

Judges in the Delhi High Court.
 The argument is that even though the Chief Justice of the Delhi High Court
had not made any serious complaint, the Minister for Law had stated so in
order to mislead the Prime Minister.

 Normally extension of the tenure of an Additional Judge is recommended

keeping in view the pendency in Court.

 The pendency in the Court still justifies the appointment of Additional Judges.

 There is no reason to disbelieve the statement of the Chief Justice of the

Delhi High Court that he had heard some statements which suggested that
the integrity of Shri S.N Kumar was in doubt.

 In the situation if the Chief Justice of the Delhi High Court had conveyed
whatever he had heard and had not recommended continuance of Shri S.N
Kumar, he cannot be considered as having committed any act of impropriety
even though Shri Kumar had not done anything which was improper as a
Judge.

 The only two authorities who have to be consulted by the President are the
Chief Justice of the Delhi High Court and the Chief Justice of India.

 It is true that the Law Minister has stated in this note that the Chief Justice of
the Delhi High Court had made "serious complaint" against the integrity of
Shri S.N Kumar.

 It is difficult to hold that the Law Minister had made any misrepresentation to
the Prime Minister in recording the aforesaid note.

 It is natural that there may be variance between the views that may be
expressed by different people.

 On April 15, 1981, the Law Minister wrote to the Chief Justice of the Delhi
High Court asking for any material which provided the basis for his
recommendation.

 I am to hand your DO letter No. 293-HCJ/PPS dated March 28, 1981 and a
copy of your letter to the Chief Justice of India bearing the same date,
regarding Shri Justice S.N Kumar, Additional Judge, Delhi High Court.

 I would be grateful, if it be furnished to me at the earliest.

 In reply to the letter the Chief Justice of the Delhi High Court wrote on May 7,
1981 a letter by way of reply which has given rise to some serious controversy
in this case.

 It is not only embarrassing but painful for me to write this letter.

 When as Acting Chief Justice I constituted the Benches for the second half of
1980 I put Justice Kumar in a Division Bench to sit on the appellate side and
writ jurisdiction.

 In view of what I have written above and my talks with you, it is now for the
Government to see whether it would like Justice Kumar to continue as a
Judge of the Delhi High Court.

 In his letter dated February 19, 1981 the Chief Justice of the Delhi High Court
(copy enclosed) had recommended that Justice Kumar may not be given any
extension.

 Justice Kumar did nothing out of the way or unusual in taking up part-heard
cases after the allocation of his work was changed.

 I find it difficult to agree that Justice Kumar's term should not be extended for
the reasons mentioned by the Chief Justice of the Delhi High Court.

 I recommend that the term of Justice S.N Kumar as an Additional Judge

should be extended by a further period of two years.

 The term of Justice S.B Wad should also be extended by a further period of
two years.

 I desired the details consciously as I did so with the Chief Justice of Delhi
High Court since the C.J.I termed the letter of C.J, Delhi dated February 19,
1981 addressed to me as too vague to accept that Shri Kumar lacks integrity.

 I agree with the observations contained in the note of the Secretary (

 Justice) and opine that Shri Justice S.N Kumar may not be continued any
further as Additional Judge of the Delhi High Court after the expiry of the
present tenure on June 7, 1981 and recommend .

 I know that two Judges of this Court threatened issuing of contempt notice to
the officer concerned who removed a part-heard matter from their lists.
 The practice is so well understood that the Registry of the Court itself fixes
cases in routine.

 20. As stated above, I informed the Chief Justice of India that the old
established practice in Delhi High Court is that a part-heard matter goes with
the Judge and is heard by him whether he goes over from the appellate side
to the original side or vice versa.

 It cannot be said that the process of consultation had become defective or

that Shri S.N Kumar had been prejudiced by reason of the Government
keeping back the letter dated May 7, 1981 from the knowledge of the Chief
Justice of India out of respect to the wishes of the Chief Justice of the Delhi
High Court.

 There is no merit in this contention.

 President not to appoint Shri S.N Kumar as an Additional Judge of the High
Court of Delhi cannot be interfered with.

 The Government contends that the letter does not contain any such threat
and that it had been sent in order to implement the policy of the Government
to have some Judges in every High Court who belong to other States.

 I would request you to- (a) obtain from all the Additional Judges working in the
High Court of your State their consent to be appointed as permanent Judges
in any other High Court in the country.

 Judges; and (b) obtain from persons who have already been or may in the
future be proposed by you for initial appointment their consent to be appointed
to any other High Court in the country along with a similar preference for three
High Courts.

 In its Fourteenth Report, the Law Commission suggested that the whole
country should be treated as a single unit for the purpose of selection of
Judges of the High Court.

 "6.21 We may next deal with the question of having in each High Court about
one-third of Judges from outside the State.

 It would secure on the Bench of each High Court the presence of a number of
Judges who would not be swayed by local considerations or affected by
issues which may rouse local passions and emotions.
 Quite often, cases which arouse strong emotional sentiments and regional
feelings come up before courts of law.

 There can be no difficulty in having a certain percentage of Judges who hail

from other States.

 The second limb of this argument overlooks the fact that the Constitution does
not state that the Chief Justice of the High Court and the

 The next contention urged in this connection is that this is an indirect attempt
to transfer some Additional Judges from one High Court to another.

 It cannot be so for the reason that the transfer of an Additional Judge

[appointed under Article 224(1)] unless the arrears have been cleared off and
the transfer of an acting Judge [appointed under Article 224(2)] in any event
would not be possible at all.

 An Additional Judge is appointed for a term not exceeding two years only with
a view to clearing off the arrears in a High Court.

 When his stay as an Additional Judge is very short it would not subserve the
interest of efficiency of public service if he is made to work in more than one
High Court during that short period unless there is not sufficient work to be
assigned to him in the High Court in which he is initially appointed as an
Additional Judge.

 An acting Judge is appointed to act as a Judge until the permanent Judge in

whose place he is appointed has resumed his office.

 He cannot be transferred under Article 222 contrary to the express terms of

Article 224(2).

 This does not come in the way of an Additional Judge or an acting Judge
being appointed as a permanent Judge either in his own High Court or in any
other High Court before the tenure specified under Article 224(1) or Article
224(2), as the case may be, comes to an end.

 The letter as can be seen from its tenor is intended to find out whether any
Additional Judge is willing to be appointed as a Judge in any other High Court.

 All the contentions of the petitioners regarding the circular letter of the Law
Minister dated March 18, 1981 fail.
 We are concerned in the case of Shri K.B.N Singh with the question whether
the order of his transfer as the Chief Justice of the High Court of Madras is
valid or not.

 Chief Justice of India had on his own accord advised the Union Government
to transfer him first to the High Court of Rajasthan and later on to the High
Court of Madras.

 Even granting that the proceedings for transfer of a Judge are initiated by the
Chief Justice of India the order of transfer would not be bad as under Article
217(1) of the Constitution which is couched in almost the same language, an
appointment of a Judge would not be bad only because the Chief Justice of a
High Court who is one of the authorities to be consulted initiates the proposal.

 The difficulties in taking any ad_hoc decision on the question are of such
grave magnitude that it would be impossible at this stage to appoint an
outsider as a Chief Justice either of the Delhi High Court or of the Andhra
Pradesh High Court ...."

 In view of the discussion with the C.J.I, it appears desirable to appoint Shri
Justice Prakash Narain as the permanent Chief Justice of the Delhi High
Court and Shri Justice Kuppuswami as permanent Chief Justice of Andhra
Pradesh High Court, subject to the general policy decision on having the Chief
Justice from outside that High Court.

 The heart of the matter is whether as a general all-India policy, a Judge of a

High Court ought never to be appointed as the Chief Justice of that High
Court.

 Court to another High Court, or to appoint an outside Judge as the Chief

Justice whenever a vacancy of a Chief Justice arises.

 I reiterate my earlier recommendation that Mr Justice Prakash Narain should

be appointed as the permanent Chief Justice of the Delhi High Court and Shri
Justice Kuppuswami as the permanent Chief Justice of the Andhra Pradesh
High Court.

 It is true, the Chief Justice of India stated that he was opposed to "wholesale
transfers" but he does not appear to have opposed the policy of having the
Chief Justice of every High Court from outside the State.
 It is already held that the policy of having the Chief Justice in every High Court
from outside the State is not unconstitutional and that it could be achieved by
resorting to Article 222 of the Constitution.

 In the first place, the power to transfer a High Court Judge can be exercised in
public interest only.

 In substance and effect the Judge concerned cannot have reason to complain
of arbitrariness or unfair play, if the due procedure is followed..."

 There are many more matters which he mentioned on the evening of January
8, 1981 but they do not directly bear upon the matters in issue herein and I
will not refer to them.

 There is no ground to hold that the case of Shri K.B.N Singh's transfer was
not considered by the Chief Justice of India in a fair and reasonable way.

 It cannot be said that either there was no time to discuss or no such

discussion had taken place at all.

 Even if the Chief Justice of India considered that the recommendation made
by him was one of 6 or 7 transfers suggested by him, which would mean for
the time being a partial implementation of the policy, it cannot be said that the
transfer of Shri K.B.N Singh is bad, for all aspects relating to Shri K.B.N Singh
were considered by the appropriate authority before ordering the transfer.

 Even according to the Government there is need to appoint at least 150

Judges to clear off the arrears within two years.

 Ordinarily the court would have been reluctant to issue any mandamus to the
Government to comply with the duty of determination of the strength of
Judges of High Courts.

 The Union Government will take up the matter with the various State
Governments so that after consulting the Chief Justices of the High Courts,
they expeditiously send proposals for the conversion of a substantial number
of posts of Additional Judges into those of permanent Judges. The

 Given above, I am of the view that the Union Government, which has the
responsibility of appointing sufficient number of Judges in every High Court
should be directed to review the strength of permanent Judges in every High
Court, to fix the number of permanent Judges that should be appointed in that
 High Court on the basis of the workload and to fill up the vacancies by
appointing permanent Judges.

 While making the appointments, the Union Government should first consider
the cases of the Additional Judges who are now in office for appointment as
permanent Judges in those vacancies

A K GOPALAN VS STATE OF MADRAS

 Because of the penal provisions of Section 14 of the impugned Act the
applicant has not disclosed the grounds, supplied to him, for his detention and
the question of mala fides of the order cannot be gone into under this petition.

 By Article 13 it is expressly provided that all laws in force in the territory of

India, immediately before the commencement of the Constitution, insofar as
they are inconsistent with the provisions of this Part, to the extent of such
inconsistency, are void.

 All laws in operation in India on the day the Constitution came into force,
unless otherwise saved, to the extent they are inconsistent with this Chapter
on Fundamental Rights, become automatically void.

 It is there provided that the State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention
of this clause shall to the extent of the contravention, be void.

 As regards future legislation also the Fundamental Rights in Part III have to
be respected and, unless otherwise saved by the provisions of the
Constitution, they will be void to the extent they contravene the provisions of
Part III.

 It is necessary to consider in detail each of these articles and the arguments

advanced in respect thereof.

 The existence of Article 13(1) and (2) in the Constitution is not material for the
decision of the question what fundamental right is given and to what extent it
is permitted to be abridged by the Constitution itself.

 Reading Article 19 as a whole it seems to me that it has no application to a

legislation dealing with preventive or punitive detention as its direct object.
 The contention urged in respect of Article 19 fails.

 Article 19 gave substantive rights to citizens while Article 21 prescribed that

no person can be deprived of his life and personal liberty except by procedure
established by law.

 All laws of libel, slander, contempt of court or laws in respect of matters which
offend against decency or morality are reaffirmed to be operative in spite of
this individual right of the citizen to freedom of speech and expression.

 Article 19(5) cannot apply to a substantive law depriving a citizen of personal

liberty.

 Article 22 envisages the law of preventive detention.

 When the subject of preventive detention is specifically dealt with in the

Chapter on Fundamental Rights I do not think it is proper to consider a
legislation permitting preventive detention as in conflict with the rights
mentioned in Article 19(1).

 In my opinion article should be read as a separate complete article.

 It was contended for the petitioner that the Indian Constitution gives the same
protection to every person in India, except that in the United States "due
process of law" has been construed by its Supreme Court to cover both
substantive and procedural law, while in India only the protection of
procedural law is guaranteed.

 Against the contention that such construction will leave the meaning vague, it
was argued that four principles of natural justice recognised in all civilized
countries were covered, in any event, by the word "law".

 It seems unnecessary to embark on a discussion of the powers and

jurisdiction of the Supreme Court of the U.S.A and how they came to enlarge
or abridge the meaning of law in the expression "due process of law".

 Without going into details, I think there is no justification to adopt the meaning
of the word "law" as interpreted by the Supreme Court of U.S.A in the
expression "due process of law" merely because the word "law" is used in
Article 21.
 The debates were referred to show that the expression "due process of law"
was known to exist in the American Constitution and after a discussion was
not adopted by the Constituent Assembly in our Constitution.

 Normally read, and without thinking of other Constitutions, the expression

"procedure established by law" must mean procedure prescribed by the law of
the State.

 If the Indian Constitution wanted to preserve to every person the protection

given by the due process clause of the American Constitution there was
nothing to prevent the Assembly from adopting the phrase, or if they wanted
to limit the same to procedure only, to adopt that expression with only the
word "procedural" prefixed to "law".

 There is no justification to give the meaning of "jus" to "law" in Article 21.

 23. The phrase "procedure established by law" seems to be borrowed from

Article 31 of the Japanese Constitution.

 But other articles of the Constitution which expressly preserve other personal
liberties in different clauses have to be read together to determine the
meaning of "law" in the expression "procedure established by law".

 In the Japanese Constitution these rights claimed under the rules of natural
justice are not given by the interpretation of the words "procedure established
by law" in their Article 31.

 The word "due" in the expression "due process of law" in the American
Constitution is interpreted to mean "just", according to the opinion of the
Supreme Court of U.S.A That word imparts jurisdiction to the Courts to
pronounce what is "due" from otherwise, according to law.

 The deliberate omission of the word "due" from Article 21 lends strength to the
contention that the justiciable aspect of "law" i.e to consider whether it is
reasonable or not by the Court, does not form part of the Indian Constitution.

 By adopting the phrase "procedure established by law" the Constitution gave

the legislature the final word to determine the law.

 The expression "in accordance with law" was interpreted to mean not rules of
natural justice but as the law in force at the time.
 The Irish Court gave the expression "due course of law" the meaning given to
it according to the English law and not the American law.

 It is clear that Article 21 has to be read as supplemented by Article 22.

 If the legislature prescribes a procedure by a validly enacted law and such

procedure in the case of preventive detention does not come in conflict with
the express provisions of Part III or Article 22(4) to (7), the Preventive
Detention Act must be held valid notwithstanding that the

 Put in a positive form it will mean that a law which provides for preventive
detention for a period longer than three months shall contain a provision
establishing an Advisory Board, (consisting of persons with the qualifications
mentioned in sub-clause (a)), and which has to report before the expiration of
three months if in its opinion there was sufficient cause for such detention.

 Mr Justice Higgins in Attorney-General of New South Wales v. Brewery

Employees Union 1908 6 Com LR 469 at 611-12 observed: "Although we are
to interpret words of the Constitution on the same principles of interpretation
as we apply to any ordinary law, these very principles of interpretation compel
us to take into account the nature and scope of the Act that we are
interpreting - to remember that it is a Constitution, a mechanism under which
laws are to be made and not a mere Act which declares what the law is to be."

 Section 3 of the impugned Act is no delegation of legislative power to make

laws.

 It has been considered that a punitive detention Act which sufficiently

prescribes the objects which the legislature considers have not to be worked
up to is a sufficient standard to prevent the legislation being vague.

 In my opinion the argument of the petitioner against Section 3 of the

impugned Act fails.

 It appears that in respect of the rest of the clauses mentioned in Section

3(1)(a) the detention is not contemplated to be for a period longer than three
months, and in such cases a reference to the Advisory Board under Section 9
is contemplated.

 Article 22(7), in terms, the Constitution permits the making of a law by

Parliament in which a reference to an Advisory Board may be omitted.
 In spite of the fact that in England Parliament is supreme I am unable to
accept the view that Parliament in making laws, legislates against the well-
recognised principles of natural justice accepted as such in all civilized
countries.

 The contention fails.

 The argument must be rejected.

 It seems to me that the petitioner's contentions even on these points fail.

 42. Section 14 was strongly attacked on the ground that it violated all
principles of natural justice and even infringed the right given by Article 22(5)
of the Constitution.

 It cannot successfully be contended that the disclosure of grounds may be

withheld from the Court in public interest, as a rule of evidence.

 It is essential that the grounds must be connected with the order of preventive
detention.

 It is open to a detained person to contend before a court that the grounds on

which the order has been made have no connection at all with the order, or
have no connection with the circumstances or class or classes of cases under
which a preventive detention order could be supported under Section 12.

 It seems to me that the provisions of Section 14 abridge the right given under
Article 22(5) and are ultra vires.

 The decision that Section 14 is ultra vires does not affect the validity of the
rest of the Act.

 In my opinion Act 4 of 1950, except Section 14, is not ultra vires.

 The petition fails and is dismissed.

 "The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void."

 52. Clauses (2), (3), (4), (5) and (6) of this article provide that nothing in
clause (1) shall affect the operation of any existing law in regard to the rights
under that clause, under certain conditions which are mentioned therein.
 The ordinance shows at least this much that sometimes the law of preventive
detention can also be made in the interests of scheduled tribes or scheduled
areas and the mere mention of scheduled tribes in clause (5) does not
necessarily exclude laws relating to preventive detention from the scope of
Article 19(5).

 The restraint is imposed not under a law imposing restrictions on movement

but under a law defining crime and making it punishable.

 In my opinion the Indian Penal Code does not come within the ambit of the
words "law imposing restriction on the right to move freely".

 If there is any law imposing unreasonable restrictions on any of these rights,

that law will not be good law so far as citizens are concerned, but it may be
good law so far as non-citizens are concerned.

 Externment, internment and certain other forms of restriction on movement

have always been treated as kindred matters belonging to the same group or
family and the rule which applies to one must necessarily apply to the other.

 In either view the law of preventive detention is subject to such limited judicial
review as is permitted under Article 19(5).

 70. The learned Attorney-General contended before us that the word "law"
which is used in Article 21 means State-made law or law enacted by the
State.

 71. In the course of the arguments, the learned Attorney-General referred us

to the proceedings in the Constituent Assembly for the purpose of showing
that the article as originally drafted contained the words "without due process
of law" but these words were subsequently replaced by the words "except
according to procedure established by law".

 The expression was afterwards adopted in the American Constitution and also
in the Constitutions of some of the constituent States, though some of the
States preferred to use the words "in due course of law" or "according to the
law of the land".

 The American Supreme Court construed "due process of law" to cover

matters of procedure only, but gradually the meaning of the expression was
widened so as to cover substantive law also, by laying emphasis on the word
"due".
 75. In the circumstances mentioned, it seems permissible to surmise that the
expression "procedure established by law" as used in the Japanese
Constitution represented the current trend of American judicial opinion with
regard to "due process of law", and, if that is so, the expression as used in our
Constitution means all that the American writers have read into the words
"procedural due process".

 I will in the first instance set out certain quotations from a few of the decisions
of the American Supreme Court construing the word "law" as used in the
expression "due process of law", insofar as it bears on the question of legal
procedure.

 (2) By the law of the land is most clearly intended the general law: a law which
hears before it condemns, which proceeds upon inquiry and renders
judgments only after trial.

 78. in America, the word "law" does not mean merely State-made law or law
enacted by the State and does not exclude certain fundamental principles of
justice which inhere in every civilized system of law and which are at the root
of it.

 85. The question is whether the principle that no person can be condemned
without a hearing by an impartial tribunal which is well-recognized in all
modern civilized systems of law and which Halsbury puts on a par with well-
recognized fundamental rights cannot be regarded as part of the law of this
country.

 The whole of the Criminal Procedure Code, whether it deals with trial of
offences or with preventive or quasi administrative measures such as are
contemplated in Sections 107, 108, 109, 110 and 145, is based upon the
foundation of this principle, and it is difficult to see that it has not become part
of the "law of the land" and does not inhere in our system of law.

 That the word "law" used in Article 21 does not mean only State-made law is
clear from the fact that though there is no statute laying down the complete
procedure to be adopted in contempt of court cases, when the contempt is not
within the view of the court such procedure as now prevails in these cases is
part of our law.
 I have only to add that it has not been seriously controverted that "law" in this
article means valid law and "procedure" means certain definite rules of
proceeding and not something which is a mere pretence for procedure.

 Even on the latter view, it must be recognized that the law which the
Constitution enables Parliament to make under Article 22(7)(a) would be an
exceptionally drastic law, and, on the principle that an exceptionally drastic
law must be intended for an exceptional situation, every word of what I have
said so far must stand.

 The provision clearly means that both the circumstances and the class or
classes of cases (which are two different expressions with different meanings
and connotations and cannot be regarded as synonymous) should be
prescribed, and prescription of one without prescribing the other will not be
enough.

 Under the lists, one of the subjects on which Parliament may make a law of
preventive detention is "matter connected with the maintenance of public
order".

 It is elementary that the rigour of a law should correspond to or fit the gravity
of the evil or danger it aims at combating, and it is also evident that the law
which Parliament has been permitted to enact under Article 22(7)(a) can, so
far as rigour is concerned, go to the farthest limit.

 To confuse "classes" with "circumstances" and to omit to mention

"circumstances" at all are in my opinion grave errors.

 I do not find anything wrong or unconstitutional in Section 3 of the Act.

 I have already dealt with the principal objection to Section 12, while
discussing the provisions of Article 22(7)(a) and I am of the opinion that
Section 12 does not conform to the provisions of the Constitution and is ultra
vires.

 "The liberty which we so justly extol is itself the gift of the law and as Magna
Charta recognizes may by the law be forfeited or abridged.

 The petitioner contends that the impugned Act and in particular Sections 3, 7,
10, 11, 12, 13 and 14 thereof take away or abridge the fundamental right to
freedom of movement in contravention of Article 13(2) of the Constitution and
is void as declared therein.
 The petitioner had a fundamental right under Article 21 not to be deprived of
his personal liberty except according to procedure established by law, and the
impugned Act by authorising detention otherwise than in accordance with
proper procedure took away that right and was void.

 Liberty has to be limited in order to be effectively possessed.

 Article 19, while guaranteeing some of the most valued phases or elements of
liberty to every citizen as civil rights, provides for their regulation for the
common good by the State imposing certain "restrictions" on their exercise.

 It cannot be said that deprivation of personal liberty is an infringement of the

right conferred by sub-clause (d) alone but not of the others.

 The two articles do not operate in a conterminous field, and this is one reason
for rejecting the correlation suggested.

 The right to live, though the most fundamental of all, is also one of the most
difficult to define and its protection generally takes the form of a declaration
that no person shall be deprived of it save by due process of law or by
authority of law. "

 121. Mr Nambiar urged that the word "law" in Article 21 should be understood,
not in the sense of an enactment but as signifying the immutable and
universal principles of natural justice - the jus naturale of the civil law - and
that the expression "procedure established by law" meant the same thing as
that famous phrase "due process of law" in the American Constitution in its
procedural aspect.

 Madison (who played a prominent part in framing the First Amendment of the
American Constitution) pointing out the distinction, due to historical reasons,
between the American and the British ways of securing "the great and
essential rights of the people", observed " they are secured not by laws
paramount to prerogative but by Constitutions paramount to laws:" Report on
the

 123. Giving full effect to these principles I am unable to agree that the term
"law" in Article 21 means the immutable and universal principles of natural
justice.

 125. It is not a matter for surprise that the Drafting Committee appointed by
the Constituent Assembly of India recommended the substitution of the
 expression "except according to procedure established by law" taken from the
Japanese Constitution, 1946, for the words "without due process of law"
which occurred in the original draft, "as the former is more specific".

 The Indian Constitution having preferred the English doctrine of parliamentary

supremacy, the phrase "procedure established by law" must be construed in
accordance with the English view of due process of law, that is to say, any
procedure which Parliament may choose to prescribe.

 I attach no importance to the speeches made by some of the members of the

Constituent Assembly in the course of the debate on Article 15 (now Article
21).

 It is said that Article 21 affords no protection against competent legislative

action in the field of substantive criminal law, for there is no provision for
judicial review, on the ground of reasonableness or otherwise, of such laws,
as in the case of the rights enumerated in Article 19.

 It was argued that "law" in Article 31 which provides that no person shall be
deprived of his property "save by authority of law" must mean enacted law
and that if a person's property could be taken away by legislative action, his
right to life and personal liberty need not enjoy any greater immunity.

 The constitutional safeguard of the right to property in the said article is not so
illusory or ineffective as clause (1) by itself might make it appear, even
assuming that "law" there means ordinary legislation.

 It is difficult to accept the suggestion that Article 21 was designed to afford

protection only against infringements by the executive or individuals.

 "Procedure established by law" may well be taken to mean what the Privy
Council referred to in King Emperor v. Benoari Lal Sharma 1945 FCR 161,
175 as "the ordinary and well-established criminal procedure", that is to say,
those settled usages and normal modes of proceeding sanctioned by the
Criminal Procedure Code which is the general law of criminal procedure in the
country.

 132. The only alternative to the construction I have indicated above, if a

constitutional transgression is to be avoided, would be to interpret the
reference to "law" as implying a constitutional amendment pro tanto, for it is
only a law enacted by the procedure provided for such amendment (Article
 368) that could modify or override a fundamental right without contravening
Article 13(2).

 I am of opinion that Article 21 is applicable to preventive detention as well.

 The impugned Act, not having provided for such a tribunal contravened Article
21 and was void.

 These two clauses were concerned solely with the duration of the preventive
detention, and so was the

 It was necessary for Parliament to indicate to the detaining authority for its
guidance the more aggravated forms of prejudicial activity, and mere mention
of the subjects in respect of which Parliament is authorised under the
legislative lists to make laws in respect of preventive detention could hardly
afford any guidance to such authority and should not be regarded as sufficient
compliance with the requirements of clause (7).

 A writ was issued.

 It says that the State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this clause
shall to the extent of the contravention be void.

 149. Preventive detention laws are repugnant to democratic constitutions and

they cannot be found to exist in any of the democratic countries of the world.

 The Government of India Act, 1935, conferred authority on the Central and
Provincial Legislatures to enact laws on this subject for the first time and since
then laws on this subject have taken firm root and have become a permanent
part of the statute book of this country.

 151. Though the Constitution has recognized the necessity of laws as to

preventive detention it has also provided certain safeguards to mitigate their
harshness by placing fetters on legislative power conferred on this subject.

 A law of preventive detention would be void if it permits detention for a longer

period than three months without the intervention of an Advisory Board.

 (3) the Parliament also cannot make a law authorizing detention for a period
beyond three months without the intervention of an Advisory Board unless the
law conforms to the conditions laid down in clause (7) of Article 22.
 A person detained under a law of preventive detention has a right to obtain
information as to the grounds of his detention and has also the right to make a
representation protesting against an order of preventive detention.

 It has also to be remembered in this context that a person subjected to the

law of preventive detention has been deprived of the rights conferred on
persons who become subject to the law of punitive detention [vide clauses (1)
and (2) of Article 22].

 It was urged that on matters on which this article had made no special
provision on this topic the other provisions of Part III of the Constitution had
application, namely, Articles 19 and 21 and to that extent laws made on this
subject were justiciable.

 I am satisfied on a review of the whole scheme of the Constitution that the

intention was to make Article 22 self-contained in respect of the laws on the
subject of preventive detention.

 In the connection it was argued that a law made under Article 22 would not be
valid unless it was in accord with the provisions of Article 21 of the
Constitution.

 It was contended that in substance the article laid down that no person will be
deprived of life or liberty without having been given a fair trial or a fair hearing
and that unless a law of preventive detention provided such a hearing that law
would be in contravention of this article and void.

 There would have been no point in laying down such detailed rules of
procedure in respect of a law of preventive detention if the intention was that
such a law would be subject to the provisions of Article 21 of the Constitution.

 154. It was next contended that a law of preventive detention encroaches on

the right of freedom of movement within the territory of India guaranteed to a
citizen under Article 19(1)(d) and that being so, by reason of the provisions of
sub-clause (5) of Article 19 it was justiciable on the ground of reasonableness.

 It is true, as already pointed out, that a law of preventive detention is wholly

incompatible with the right of freedom of movement of a citizen.

 Parliament to make a law on the subject of preventive detention in certain

circumstances.
 If a law conforms to the conditions laid down in Article 22(7), it would be a
good law and it could not have been intended that that law validly made
should also conform itself to the provisions of Article 19(5).

 If the intention of the constitution was that a law made on the subject of
preventive detention had to be tested on the touchstone of reasonableness,
then it would not have troubled itself by expressly making provision in Article
22 about the precise scope of the limitation subject to which such a law could
be made and by mentioning the procedure that the law dealing with that
subject had to provide.

 Duration of detention is the principal matter in preventive detention laws which

possibly could be examined on the touchstone of reasonableness under
Article 19(5), but this has been expressly excluded by express provisions in
Article 22.

 In my judgment an examination of the provisions of Article 22 clearly suggests

that the intention was to make it self-contained as regards the law of
preventive detention and that the validity of a law on the subject of preventive
detention cannot be examined or controlled either by the provisions of Article
21 or by the provisions of Article 19(5) because Article 13(2) has no
application to such a situation and Article 22 is not subject to the provisions of
these two articles.

 155. In expressing the view that Article 22 is in a sense self-contained on the

law of preventive detention I should not be understood as laying down that the
framers of the article in any way overlooked the safeguards laid down in
Article 21.

 The principles underlying Article 21 have been kept in view in drafting Article
22.

 In the 7th Schedule jurisdiction to make the law on this subject has been
given for reasons connected with defence etc. and the maintenance of public
order.

 The question for consideration is what object was sought to be accomplished

when the Constitution included clause (7) in Article 22.
 It seems clear that the real purpose of clause (7) was to provide for a
contingency where compulsory requirement of an Advisory Board may defeat
the object of the law of preventive detention.

 The question is whether it can be said that a mere selection of all or any of the
categories of the subjects for reasons connected with which a law of
preventive detention could be made under the 7th Schedule amounts to a
classification of cases as contemplated in clause (7) of Article 22.

 164. Clause (4) of Article 22 enjoins in respect of all the six subjects that no
law can provide for preventive detention for a longer period than three months
without reference to an Advisory Board.

 Clause (7) gives permission to make a law for dispensing with an Advisory
Board by a prescription of the circumstances and by a prescription of the
classes of cases in which such a dispensation can be made.

 "Unless otherwise provided by Parliament no law providing for preventive

detention shall authorize detention for a longer period than three months
unless an Advisory Board has investigated the sufficiency of the cause of
such detention."

 The requirement of an Advisory Board is in accordance with the preamble of

the Constitution and is the barest minimum that can make a law of preventive
detention to some little degree tolerable to a democratic Constitution.

 It virtually amounts to a suspension of a guaranteed right provided by the

Constitution inasmuch as it indirectly by a stringent provision makes
administration of the law by this Court impossible and at the same time it
deprives a detained person from obtaining justice from this Court.

 In my opinion this section when it prohibits the disclosure of the grounds

contravenes or abridges the rights given by Part III to a citizen and is ultra
vires the powers of Parliament to that extent.

 175. In view of the decision above arrived at I do not consider it necessary to

express any opinion on the other points that were argued at great length
before us, namely, (1) what is the scope and true meaning of the expression
"procedure established by law" in Article 21 of the Constitution, and (2) what
is the precise scope of Articles 19(1)(d) and 19(5) of the Constitution.
 It is argued that the detention of the petitioner is invalid and that he should be
set at liberty.

 Article 13(2) is imperative on this point and provides expressly that the State
shall not make any law which takes away or abridges the right conferred by
this Part and any law made in contravention of this clause shall, to the extent
of the contravention, be void.

 Clause (1) of the article similarly invalidates all existing laws which are
inconsistent with the provisions of this Part of the Constitution.

 Clause (3) of Article 22 expressly enjoins that the protective provisions of

clauses (1) and (2) of the article would not be available to persons detained
under any law providing for preventive detention.

 190. The question that we have to consider is whether a law relating to

preventive detention is justiciable in a court of law on the ground of
reasonableness under Article 19(5) of the Constitution inasmuch as it takes
away or abridges the right to free movement in the territory of India
guaranteed by clause (1)(d) of the article.

 The question arises in each case of adjusting the conflicting interests of the
individual and of the society.

 The society has got to exercise certain powers for the protection of these
liberties and to arrest, search, imprison and punish those who break the law.

 What the Constitution attempts to do in declaring the rights of the people is to

strike a balance between individual liberty and social control.

 What the Constitution does is to put restrictions upon the powers of the State,
for protecting the rights of the individuals.

 In my opinion, the group of Articles 20 to 22 embody the entire protection

guaranteed by the Constitution in relation to deprivation of life and personal
liberty both with regard to substantive as well as to procedural law.

 There must be a substantive law, under which the State is empowered to

deprive a man of his life and personal liberty and such law must be a valid law
which the legislature is competent to enact within the limits of the powers
assigned to it and which does not transgress any of the fundamental rights
that the Constitution lays down.
 A person cannot be convicted or punished under an ex post facto law, or a
law which compels the accused to incriminate himself in a criminal trial or
punishes him for the same offence more than once.

 The position is that with regard to life and personal liberty, the Constitution
guarantees protection to this extent that no man could be deprived of these
rights except under a valid law passed by a competent legislature within the
limits mentioned above and in accordance with the procedure which such law
lays down.

 In the Constitution of the Free City of Danzig, "the liberty of the person has
been declared to be inviolable and no limitation or deprivation of personal
liberty may be imposed by public authority except by virtue of a law" (vide
Article 74).

 This is the scheme adopted by the Constitution in dealing with the rights to
freedom described in the chapter on fundamental rights and in my opinion the
proper test for determining the validity of an enactment under which a person
is sought to be deprived of his life and personal liberty has to be found not in
Article 19, but in the three following articles of the Constitution.

 195. Mr Nambiar's endeavour throughout has been to establish that Article

19(1)(d) of the Constitution read with Article 19(5) enunciates the fundamental
rights of the citizens regarding the substantive law of personal liberty, while
Article 21 embodies the protection as regards procedural law.

 It will be seen that sub-clauses (d), (e) and (f) of Article 19(1) are embodied in
almost identical language in one single article viz. Article 75 of the
Constitution of the Free City of Danzig.

 In my opinion preventive detention does not come either within the express
language or within the spirit and intendment of clause (1)(d) of Article 19 of
the Constitution which deals with a totally different aspect or form of civil
liberty.

 In my opinion, it cannot be disputed that in order that there may be a legally

established procedure, the law which establishes it must be a valid and lawful
law which the legislature is competent to enact in accordance with Article 245
of the Constitution and the particular items in the legislative lists which it
relates to.
 So far as the main argument is concerned, the position taken up by Mr
Nambiar is that Article 21 refers to procedure only and not to substantive law;
the procedure must be one which is established by law.

 It is argued that if the word "law" is interpreted in the sense of any State-made
law, Article 21 could not rank as a fundamental right imposing a check or
limitation on the legislative authority of the Government.

 It will be always competent to the legislature to pass a law laying down a

thoroughly arbitrary and irrational procedure opposed to all elementary
principles of justice and fairness and the people would have no protection
whatsoever, provided such procedure was scrupulously adhered to.

 In support of the argument the learned counsel has relied upon a large
number of American cases, where the Supreme Court of America applied the
doctrine of "due process of law" as it appears in the American Constitution for
the purpose of invalidating various legislative enactments which appeared to
that Court to be capricious and arbitrary and opposed to the fundamental
principles of law.

 205. It may be noted that in the original draft of the Indian Constitution the
words used in Article 15 (which now stands as Article 21) were "in accordance
with due process of law".

 The present Article 21 seems to have been modelled on Article 31 of the

Japanese Constitution, where the language employed is "no person shall be
deprived of life or liberty, nor shall any other criminal penalty be imposed,
except according to procedure established by law".

 Mr Nambiar argues that the expression "procedure established by law" in

Article 21 of the Constitution bears the same meaning as the "due process"
clause does in America, restricted only to this extent viz. that it is limited to
matters of procedure and does not extend to questions of substantive law.

 To appreciate the arguments that have been advanced for and against this
view and to fix the precise meaning that is to be given to this clause in Article
21, it would be necessary to discuss the conception of the doctrine of "due
process of law" as it appears in the American Constitution and the way in
which it has been developed and applied by the Supreme Court of America.
 As laid down in the case cited above, "it is not any act legislative in form that
is law; law is something more than mere will exerted as an act of power".

 It means and signifies the general law of the land, the settled and abiding
principles which inhere in the Constitution and lie at the root of the entire legal
system.

 "By the law of the land is most clearly intended the general law - a law which
hears before it condemns, which proceeds upon enquiry and renders
judgment only after trial.

 Some Judges seem to have alluded to the principles of natural justice in

explaining what is meant by general law or "law of the land", though the
doctrine of a law of nature did not obtain a firm footing at any time.

 No writer of American constitutional law has been able uptil now to evolve
anything like a definite and consistent set of principles out of the large mass of
cases, where the doctrine of "due process of law" has been invoked or
applied.

 The first suggestion was that the word "personal" shall be inserted before the
word "liberty" and the second was that the expression "in accordance with
procedure established by law" shall be substituted for "due process of law",
the reason given being that the former expression was more specific.

 The word "established" ordinarily means "fixed or laid down" and if "law"
means, as Mr Nambiar contends, not any particular piece of law but the
indefinite and indefinable principles of natural justice which underlie positive
systems of law, it would not at all be appropriate to use the expression
"established", for natural law or natural justice cannot establish anything like a
definite procedure.

 223. It does not appear that in any part of the Constitution the word "law" has
been used in the sense of "general law" connoting what has been described
as the principles of natural justice outside the realm of positive law.

 The provision of' Article 31 of the Constitution, which appears in the chapter
on fundamental rights, makes it clear that the word "law" is equivalent to
State-made law and to deprive a person of his property, the authority or
sanction of such law is necessary.
 As has been said already, the provision of Article 21 of the Indian Constitution
reproduces, save in one particular, the language of Article 31 of the Japanese
Constitution and it is quite clear from the scheme and provisions of the
Japanese Constitution that in speaking of law it refers to law passed or
recognised as such by the State.

 Article 40(4)(1) provides that "no citizen shall be deprived of his personal
liberty save in accordance with law", and by law is meant the law of the State.

 224. Possibly the strongest argument in support of Mr Nambiar's contention is

that if law is taken to mean State-made law, then Article 21 would not be a
restriction on legislation at all.

 No question of passing any law abridging the right conferred by this article
could possibly arise and Article 13(2) of the Constitution would have no
operation so far as this provision is concerned.

 226. It was probably on the analogy of Article 34 of the Japanese Constitution

that the first two clauses of Article 22 of the Indian Constitution were framed.

 My conclusion is that in Article 21 the word "law" has been used in the sense
of State-made law and not as an equivalent of law in the abstract or general
sense embodying the principles of natural justice.

 The article presupposes that the law is a valid and binding law under the
provisions of the Constitution having regard to the competency of the
legislature and the subject it relates to and does not infringe any of the
fundamental rights which the Constitution provides for.

 It is enough, in my opinion, if the law is a valid law which the legislature is

competent to pass and which does not transgress any of the fundamental
rights declared in Part III of the Constitution.

 On the third point raised by Mr Nambiar, the only question which requires
consideration is whether Section 12 of the Preventive

 If there are no rights under the Constitution, guaranteed to a person who is

detained under any law of preventive detention, no question of enforcing such
rights by an approach to this Court at all arises.

 The whole Act cannot be held to be ultra vires.

 235. The result is that, in my opinion, the Preventive Detention Act must be
declared to be intra_vires the Constitution with the exception of Section 14
which is held to be illegal and ultra vires.

 A law duly made by Parliament cannot be challenged in any court.

 The English Courts have to interpret and apply the law; they have no authority
to declare such a law illegal or unconstitutional.

 But the written Constitution of the United States is supreme above all the
three limbs of Government and the law made by the Congress, in order to be
valid, must be in conformity with the provisions of the Constitution.

 Supreme Court of the United States, under the leadership of Chief Justice
Marshall, assumed the power to declare any law unconstitutional on the
ground of its not being in "due process of law", an expression to be found in
the Fifth Amendment (1791) of the United States Constitution and the
Fourteenth Amendment (1868) which related to the State Constitutions.

 Article 246 gives exclusive power to Parliament to make laws with respect to
any of the matters enumerated in List I in the Seventh Schedule and it gives
exclusive power to the State Legislatures to make laws with respect to any of
the matters specified in List II of that Schedule.

 It also gives concurrent power to Parliament as well as to the State

Legislatures to make laws with respect to any of the matters enumerated in
List III in the Seventh Schedule.

 Our Constitution has accepted preventive detention as the subject-matter of

peacetime legislation as distinct from emergency legislation.

 To many of us a preventive detention law is odious at all times but what I

desire to emphasise is that it is not for the Court to question the wisdom and
policy of the Constitution which the people have given unto themselves.

 The law might not have made any provision for supplying to the detenu the
grounds of his detention or affording any opportunity to him to make any
representation to anybody or for setting up any Advisory Board at all.

 It would not have been entitled to utter a word as to the propriety of the
particular law, although it might have shuddered at the monstrous atrocities of
such law.
 (i) that the law must be within the legislative competence of Parliament as
prescribed by Article 246; and (ii) that such law must be subject to the
provisions of the Constitution and must not take away or abridge the rights
conferred by Part III.

 It is necessary to ascertain first the exact nature, extent and scope of the
particular fundamental right insisted upon and then to see whether the
impugned Act has taken away or, in any way, abridged the fundamental right
so ascertained.

 These are attributes of the freedom of the person and are rights attached to
the person.

 Restraints on liberty should be judged not only subjectively as applied to a few

individuals who come within their operations but also objectively as securing
the liberty of a far greater number of individuals.

 If a law ensures and protects the greater social interests then such law will be
a wholesome and beneficent law although it may infringe the liberty of some
individuals, for it will enure for the greater liberty of the rest of the members of
the society.

 If there were nothing else in Article 19 these rights would have been absolute
rights and the protection given to them would have completely debarred
Parliament or any of the State Legislatures from making any law taking away
or abridging any of those rights.

 The clauses save the power of the State to make laws imposing certain
specified restrictions on the several rights.

 Whether any law has transgressed these limitations is to be ascertained by

the Court and if in its view the restrictions imposed by the law are greater than
what is permitted by clauses (2) to (6) whichever is applicable the Court will
declare the same to be unconstitutional and void under Article 13.

 The very first question that arises is as to whether the freedom of the person
which is primarily and directly suspended or destroyed by preventive
detention is at all governed by Article 19(1).

 Whatever the intentions of the Drafting Committee might have been, the
Constitution as finally passed has in Article 21 used the words "personal
liberty" which have a definite connotation in law as I have explained.
 I recognise that it is not imperative that a foreigner should have the same
privileges as are given to a citizen, but if Article 21 is construed in the way I
have suggested even a foreigner will have equal protection for his life and
personal liberty before the laws of our country under our Constitution.

 I am unable for all the reasons given above, to agree that personal liberties
are the result of Article 19 or that that article purports to protect all of them.

 257. It is next urged that the expression "personal liberty" is synonymous with
the right to move freely and comes directly under Article 19(1)(d).

 According to him, a man's right of movement cannot be taken away without

giving him notice and a fair trial before an impartial tribunal but he may be
deprived of his freedom of speech or his property or any of his other rights
without the formality of any procedure at all.

 It was not necessary to use those words in sub-clause (d) to indicate that free
movement in foreign countries was not being guaranteed.

 The words must have been used in sub-clause (d) for some other purpose.

 It is a protection against provincialism.

 261. Clause (5) of Article 19 qualifies sub-clause (d) of clause (1) which
should be read in the light of clause (5).

 To say that every crime undermines the security of the State and every
section of the Indian Penal Code, irrespective of whether it has any reference
to speech or expression, is a law within the meaning of this clause is wholly
unconvincing and betrays only a vain and forlorn attempt to find an
explanation for meeting the argument that any conviction by a court of law
must necessarily infringe Article 19(1)(a).

 The conclusion is irresistible that the rights protected by Article 19(1), insofar
as they relate to rights attached to the person i.e the rights referred to in sub-
clauses (a) to (e) and (g), are rights which only a free citizen, who has the
freedom of his person unimpaired, can exercise.

 Loss of freedom of the person does not suspend the right to property.

 The rights end where the lawful detention begins.

 So construed, Article 19 and Article 21 may easily go together and there is, in
reality, no conflict between them.

 It follows that the validity or otherwise of preventive detention does not

depend on, and is not dealt with by, Article 19.

 A citizen who loses the freedom of his person by being lawfully detained,
whether as a result of a conviction for an offence or as a result of preventive
detention loses his capacity to exercise those rights and has none of the
rights which sub-clauses (a) to (e) and (g) may protect.

 "Established by law" will mean "enacted by law".

 If this sense of the word "established" is accepted, then the word "law" must
mean State-made law and cannot possibly mean the principles of natural
justice, for no procedure can be said to have ever been "enacted" by those
principles.

 Procedure established by law must, I apprehend, be procedure enacted by

the State which, by its definition in Article 12, includes Parliament.

 Procedure established by law is quite compatible with procedure enacted by

law.

 When natural justice speaks of and enjoins equality before the law, that law
must refer to something outside natural justice, and must mean the State-
made laws.

 The word "law" in Article 20(1) can mean nothing but law made by the State.

 Natural justice does not impose any tax and the word "law" in Articles 265 and
286 must mean State-made law.

 267. We have been referred to a number of textbooks and decisions showing

the development of the American doctrine of "due process of law" and we
have been urged to adopt those principles in our Constitution.

 Some of the State Constitutions used the words "due course of law", some
repeated the words of Magna Charta, namely, "the law of the land" but most
of them used the expression "due process of law".

 "due process of law" came to be applied to personal liberty, to social control,

to procedure to jurisdiction and to substantive law: (Willis, p. 642).
 Whenever a substantive law or some procedure laid down in any law did not
find favour with the majority of the learned Judges of the Supreme Court it
was not reasonable and it was not "due".

 The procedural due process requires that a person who is to be deprived of

his life, liberty or property shall have had "his day in Court".

 The English principle of due process of law is more in accord with our
Constitution than the American doctrine which has been evolved for serving
quite a different system.

 In the next place, it is common knowledge that our Constitution-makers

deliberately declined to adopt the uncertain and shifting American doctrine of
due process of law and substituted the words "except in due process of law"
that were in the original draft by the more specific expression "except in
accordance with procedure established by law".

 It speaks of procedure and not "due" procedure and "the intellectual yardstick"
of the Court is definitely ruled out.

 It will be incongruous to import the doctrine of due process of law without its
palliative, the doctrine of police powers.

 282. It has also been suggested as a compromise that this Court should adopt
a middle course between the flexible principles of natural justice as adopted
by the American doctrine of due process of law and the unbending rigidity of
mere State-made laws.

 In America it was suggested that due process of law should be taken to mean
the general body of common law as it stood at the date of the Constitution.

 In Bardwell v. Collins 44 Minn 97 it was negatived in the following words: "

'Due process of law' does not mean the general body of the law, common and
statute, as it was at the time the Constitution took effect; for that would deny
the legislature power to change or amend the law in any particular."

 At the date of this Constitution there were preventive detention laws in almost
every province and a person could be deprived of his personal liberty under
those laws.

 Before the Constitution came into force, personal liberty could be taken away
only by following the procedure enacted by the Criminal Procedure Code in
 the case of punitive detention or by the procedure enacted by the different
Security Acts in case of preventive detention.

 Power has been given to Parliament and the State Legislatures under Article
246 read with Entry 2 of the Concurrent List to make laws with respect to
Criminal Procedure.

 In the situation the only power of the Court is to determine whether the
impugned law has provided some procedure and observed and obeyed the
minimum requirements of Article 22 and if it has, then it is not for the Court to
insist on more elaborate procedure according to its notion or to question the
wisdom of the legislative authority in enacting the particular law harsh,
unreasonable, archaic or odious the provisions of that law may be.

 Article 107(2) of the Czechoslovakian Constitution uses the words "in

accordance with law" which, read with clause (1) of that article, obviously
means the law to be made which will form part of the Constitution.

 288. Surely the words "except according to procedure established by law" in

their application to the imposition of criminal penalty must mean State-made
law and the same words in the same sentence in the same article cannot,
according to ordinary rules of construction of statutes, mean a different thing
in their application to deprivation of life or liberty.

 It is the circumscribed right which is substantively protected by Article 21 as

against the executive as well as the legislature, for the Constitution has
conditioned its deprivation by the necessity for a procedure established by law
made by itself.

 Under our Constitution our life and personal liberty are balanced by
restrictions on the rights of the citizens as laid down in Article 19 and by the
checks put upon the State by Articles 21 and 22. preventive detention
deprives a person of his personal liberty as effectively as does punitive
detention and personal liberty, circumscribed as it is by the risk of its being
taken away, requires protection against punitive as well as preventive
detention.

 But clause (3) of Article 22 expressly provides that none of the procedure laid
down in clauses (1) and (2) shall apply to an alien enemy or to a person who
is arrested or detained under any law providing for preventive detention.
 Article 246 authorises the appropriate legislature to make a law for preventive
detention in terms of Entry 9 in List I and/or Entry 3 in List III of the Seventh
Schedule.

 According to this the legislature, whether it be Parliament or a State

Legislature, is reminded that no law made by it for preventive detention shall
authorise the detention of a person for a longer period than three months
except in two cases mentioned in sub-clauses (a) and (b).

 Even a law made by Parliament cannot authorise detention for more than
three months unless it is a law made under the provisions of clause (7).

 Clause (4) of Article 22 provides a limitation on the legislative power as to the

period of preventive detention.

 It lays down the procedure that has to be followed when a person is detained
under any law providing for preventive detention, namely, (a) the grounds of
the order of detention must be communicated to the detenu as soon as may
be, and (b) the detenu must be afforded the earliest opportunity of making a
representation against the order.

 If some procedure is provided as envisaged by Article 21 and the compulsory

requirements of Article 22 are obeyed and carried out nobody can, under our
Constitution, as I read it, complain of the law providing for preventive
detention.

 A preventive detention law which provides some procedure and complies with
the requirements of Article 22 (4) to (7) must be held to be a good law odious
it may appear to the Court to be.

 In the next place this contention overlooks the basic distinction between the
delegation of power to make the law and the conferring of an authority and
discretion as to its execution to be exercised under and in pursuance of the
law.

 The detention can well be under the very law which Parliament makes under
sub-clauses (a) and (b) of clause (7).

 As to the second point the argument is that Parliament has a discretion under
clause (7) to make a law and it is not obliged to make any law but when our
Parliament chooses to make a law it must prescribe both the circumstances
 under which, and the class or classes of cases in which, a person may be
detained for a period longer than three months.

 It is clear that the classification itself may indicate the circumstances.

 But it must be remembered that our Constitution itself contemplates that in

certain circumstances or for certain class or classes of detenus even the
Advisory Board may not be safe and it has trusted Parliament to make a law
for that purpose.

 In order to attract the application of Article 32, the person applying must first
satisfy that he has got a right under Part III which has to be enforced under
Article 32.

 It appears to me that Section 14 of the Act insofar as it prevents the detenu

from disclosing to the Court the grounds communicated to him is not in
conformity with Part III of the Constitution and is void under Article 13(2).

SUNIL BATRA CASE

 5. "Prisons are built with stones of law" and so it behoves the court to insist
that, in the eye of law, prisoners are persons, not animals, and punish the
deviant 'guardians' of the prison system where they go berserk and defile the
dignity of the human inmate.

 Batra braved the consequences of jail indignation and brought the incident to
the ken of the court, resulting in these proceedings which, though not strictly
traditional, are clearly in the nature of habeas corpus writs and within the
wider sweep of Article 32.

 The court issued notice to the State and the concerned officials, appointed Dr
Y.S Chitale and Shri Mukul Mudgal as amicus, authorised them to visit the
prison, meet the prisoner and see relevant documents and interview
necessary witnesses so as to enable them to inform themselves about the
surrounding circumstances and the cruel scenario of events.

 The prisoner remained admitted into the jail hospital up to August 27, 1979, 2
p.m when Dr V.K Kapoor, Medical Officer, recommended for the shifting of
this prisoner to the Irwin Hospital with the report mentioned in the petition.
 The prisoner Prem Chand was shifted by Shri Bachan Singh, Assistant
Superintendent on duty on August 27, 1979.

 The prisoner was received back in the jail on August 29, 1979 on being
discharged from the Irwin Hospital."

 Coming to the competing version put forward by the prison official through the
counter-affidavit of the Under-Secretary, the story, even if true, is strongly
suggestive of a mafia-culture pervasive in the Tihar prison.

 A number of the said prisoners are rarely visited by their relatives due to the
fact that they do not want to associate with such persons.

 It may also be submitted that to check smuggling of narcotic drugs against

prisoners who indulge in such activities 30 cases of narcotic offences were
got registered against the prisoners with the Janakpuri Police Station during
this year ...

 (b) It may also be mentioned that due to paucity of accommodation, the said
jail is occupied by double the number of prisoners than it is otherwise
authorised.

 15. To aggravate the malady, we have the fact that a substantial number of
the prisoners are under trials who have to face their case in court and are
presumably innocent until convicted.

 16. It would appear that around 300 persons are taken in and out daily
between the prison and the courts.

 Since many officers busy themselves with production of prisoners in court, the
case of the Superintendent is that the other prisoners "try to do mischief,
make thefts of other prisoners who go on work, smuggle things and even
resort to assaults".

 The fact that a person is legally in prison does not prevent the use of habeas
corpus to protect his other inherent rights. . . . The Judge is not limited to a
simple remand or discharge of the prisoner's civil rights be respected ...."

 It is significant that the United States Supreme Court has even considered as
suitable for habeas relief, censorship of prisoners' mail and the ban on the use
of law students to conduct interviews with prison inmates in matters of legal
relief.
 Prisons, prison staff and prisoners - all three are in need of reformation.

 23. It is refreshing and heartening that the learned Solicitor General widened
our vista and argued that this Court, having been seised of the problem of
prisoners' fundamental freedoms and their traumatic abridgement, should give
guidelines in this uncharted area, design procedures and device mechanisms
which will go into effective action when the restricted real rights of prisoners
are overtly or covertly invaded.

 25. The canvas was spread wide by counsel and court and we deal with the
arguments within the larger spread-out of the case.

 The objection, if any, is obsolete because in a prison situation, a Constitution

Bench of this Court (Batra and Sobraj) did imprison the powers of prison
officials, to put an under trial under iron fetters or confine in solitary cells
convicts with death sentences under appeal.

 27. Once jurisdiction is granted - and we affirm in unmistakable terms that the
court has, under Article 32 and so too under Article 226, a clear power and a
public duty to give relief to sentences in prison settings - the next question is
the jurisprudential backing for the play of that jurisdiction.

 This Court has rejected the hands-off doctrine and it has been ruled that
fundamental rights do not flee the person as he enters the prison although
they may suffer shrinkage necessitated by incarceration.

 30. We affirm that where the rights of a prisoner, either under the Constitution
or under other law, are violated the writ power of the court can and should run
to his rescue.

 The court has a continuing responsibility to ensure that the constitutional

purpose of the deprivation is not defeated by the prison administration.

 This validation of judicial invigilation of prisoners' condition has been voiced

by this Court and finally reinforced by the Constitution Bench in Batra : (SCC
p. 569, para 213-A)

 It is all the more so because a convict is in prison under the order and
direction of the court."

 The sentencing court should be required to retain jurisdiction to ensure that

the prison system responds to the purposes of the sentence.
 It is the court's concern, implicit in the power to deprive the sentences of his
personal liberty, to ensure that no more and no less than is warranted by the
sentence happens.

 If the prisoner breaks down because of mental torture, psychic pressure or

physical infliction beyond the licit limits of lawful imprisonment the Prison
Administration shall be liable for the excess.

 The court has power and responsibility to intervene and protect the prisoner
against mayhem, crude or subtle, and may use habeas corpus for inforcing in-
prison humanism and forbiddance of harsher restraints and heavier severities
than the sentence carries.

 We issue the writ to the Lt. Governor and the Superintendent of the Central
Jail that the prisoner, Prem Chand, shall not be subjected to physical
manhandling by any jail official, that the shameful and painful torture to which
he has been subjected - a blot on government's claim to protect human rights
- shall be ended and the wound on his person given proper medical care and
treatment.

 Merely to plead that many prisoners are "habituals" is no ground for habitual
violation of law by officials.

 39. At the outset, we notice the widespread prevalence of legal illiteracy even
among lawyers about the rights of prisoners.

 Law in the books and in the courts is of no help unless it reaches the prisoner
in understandable language and available form.

 We draw the attention of the State to the need to get ready a prisoners'
handbook in the regional language and make them freely available to the
inmates.

 Inside prisons are persons and their personhood, if crippled by law-keepers

turning law-breakers, shall be forbidden by the writ of this Court from such
wrongdoing.

 Fair procedure, in dealing with prisoners calls for another dimension of access
to law-provision, within easy reach, of the law which limits liberty to persons
who are prevented from moving out of prison gates.
 Large notice boards displaying the rights and responsibilities of prisoners may
be hung up in prominent places within the prison in the language of the
people.

 The Court in Batra case has referred to the international wave of torture of
prisoners found in an article entitled "Minds Behind Bars".

 Counsel on both sides carefully endeavoured to help the court to evolve

remedial processes and personnel within the framework of the Prisons Act
and the parameters of the Constitution.

 50. The court is always ready to correct injustice but it is no practical

proposition to drive every victim to move the court for a writ, knowing the
actual hurdles and the prison realities.

 51. Primarily, the prison authority has the duty to give effect to the court
sentence (see for e.g Sections 15 and 16 of the Prisoners Act, 1900).

 (2) in a prison where male prisoners under the age of twenty-one are
confined, means shall be provided for separating them altogether from the
other prisoners and for separating those of them who have arrived at the age
of puberty from those who have not.

 (3) unconvicted criminal prisoners shall be kept apart from convicted criminal
prisoners; and"

 Although there may be current limitations on the possible use of the

Constitution on visitations by family and friends, public policy should dictate
substantial improvements in this area, in any event."

 Prisoners' rights and prison wrongs are a challenge to remedial creativity.

 Apart from judicial review for prisoners' rights and conditions of confinement,
we have to fabricate instant administrative grievance procedures.

 57. a new chapter of offences carrying severe punishments when prison

officials become delinquents is an urgent item on the agenda of prison reform;
and lodging of complaints of such offences together with investigation and trial
by independent agencies must also find a place in such a scheme.
 60. After all, the daily happenings, when they hurt harshly, have to be arrested
forthwith, especially when it is the prison guards and the head warders who
brush with the prison inmates.

 It is a double irony that the lower the level of authority in prison (from warden
on down to guard) the greater the discretion that is vested in the prison official
and the less willing the courts are to review their decisions.

 Whether it be a request for medical treatment, the right to go to the yard or

prison library, or the potentially more serious matter of prison discipline and
punishment, the guard on the block holds ultimate power over the prisoner.

 The Judges are guardians of prisoners' rights because they have a duty to
secure the execution of the sentences without excesses and to sustain the
personal liberties of prisoners without violence on or violation of the inmates'
personality.

 In the event of non-compliance he should immediately inform government

about such disobedience and advise the prisoner to forward his complaint to
the High Court under Article 226 together with a copy of his own report to help
the High Court exercise its habeas corpus power.

 "All visitors shall be afforded every facility for observing the state of the jail,
and the management thereof, and shall be allowed access under proper
regulations, to all parts of the jail and to every prisoner confined therein.

 Every visitor should have the right to see any prisoner and to put any
questions to him out of the hearing of any jail officer.

 Habeas corpus powers and administrative measures are the pillars of

prisoners' rights.

 70. The stress that we lay is on the need of the court to be dynamic and
diversified in meting out remedies to prisoners.

 "The only way that we will ever have prisons that operate with a substantial
degree of justice and fairness is when all concerned with that prison - staff
and prisoners alike - share in a meaningful way the decision-making process,
share the making of rules and their enforcement.

 Ways must be developed to involve prisoners in the process of making

decision that affect every aspect of their life in prison."
 The prison system shall not except as incidental to justifiable segregation or
the maintenance of discipline, aggravate the suffering inherent in such a
situation.

 75. The final panacea for prison injustice is more dynamic, far more positive,
strategies by going back to man, the inner man.

 Prison authorities informed us that they noticed personality changes in some

of these prisoners, and that they now had calm and pleasant exchanges with
these inmates.

 Community agencies should be enlisted wherever possible to assist the staff

of the institution in the task of social rehabilitation of the prisoners.

 The rules regulating the appointment and duties of non-official visitors and
official visitors to the prisons have been in force for a long time and their
primary function is 'to visit all parts of the jail and to see all prisoners and to
hear and enquire into any complaint that any prisoner may make'.

 1. The State shall take early steps to prepare in Hindi, a prisoner's handbook
and circulate copies to bring legal awareness home to the inmates.

 Even the rights which are now guaranteed by the courts are often illusory for
many prisoners.

 The prisoner should be made to realise that his destiny is in his own hands;
Prison discipline should be such as to gain the will of the prisoner and
conserve his self-respect; The aim of the prison should be to make industrious
free men rather than orderly and obedient prisoners.

 1. The prisoner, Prem Chand, has been tortured while in custody in the Tihar
Jail.

 It is imperative that District Magistrates and Sessions Judges should visit the
prisons in their jurisdiction and afford effective opportunity to the prisoners for
ventilating their grievances and, where the matter lies within their powers, to
make expeditious enquiry therein and take suitable remedial action.

 It is also necessary that the Sessions Judge should be informed by the jail
authorities of any punitive action taken against a prisoner within two days of
such action.
RAJU RAM SINGH CASE
 Various authorities and the purported custom of the Halba-Koshti had also
been taken into consideration by the Court to hold: (Mah LJ p. 592, para 37)

 They should get all the facilities and concessions extended to the Scheduled
Tribes.

 It has come to the conclusion that the Koshtis are a caste, the Halba-Koshtis
a sub-caste of the Koshti caste and the Halbas a Scheduled Tribe.

 From an important documentary evidence it has been established that the

caste of the candidate's father is Koshti.

 Against the decision you have filed Writ Petition No. 1347 of 1988 and the
same is allowed by the High Court on 11-8-1988.

 There is no question to grant validity only on the basis of limited orders."

 The said order appears to have been passed on a wrong premise that this
Court in Milind had passed an interim order.

 But the office heads have not looked into the matter specifically and acted .

 18. The learned counsel would urge that it would be incorrect to contend that
this Court in Milind had overturned the decision of the High Court that the test
of scrutiny as regards the traits of a member of the Scheduled Tribe should
not be on the premise that his other near relatives had been granted the
certificates.

 In support of the said contention, our attention has been drawn to the
following questions framed by this Court in Milind: (SCC p. 11, para 1)

 Among the decisions listed above except the first two decisions, all other
decisions were rendered subsequent to two Constitution Bench judgments
(supra) of this Court.

 The High Court was not right in stating that the decisions were rendered
during a long span of over 34 years by different Benches of different High
 The first two decisions were rendered without having the benefit of the
decisions of this Court, that too concerning the interpretation of the provisions
of the Constitution."

 It was categorically held that the High Court was not correct in invoking and
applying the doctrine of stare decisis.

 The Court noticed that the State of Maharashtra had issued a large number of
circulars pointing out that a large number of persons who did not belong to
Scheduled Tribes are taking benefit thereof.

 The Court in its judgment dated 19-10-1984 in State of Maharashtra v. Abhay

1984 Supp SCC 701 directed that the State of Maharashtra should devise and
frame a more rational method for obtaining much in advance a certificate on
the strength of which a reserved seat is claimed.

 But the High Court committed an error in interpreting the scope of the Circular
dated 31-7-1981 that the school leaving certificate was conclusive of the
caste.

 The jurisdiction of the High Court would be much more restricted while dealing
with the question whether a particular caste or tribe would come within the
purview of the notified Presidential Order, considering the language of Articles
341 and 342 of the Constitution.

 It is answered ."

 It was furthermore noticed that even the Central Government had issued
several circulars which had been ignored by the High Court in arriving at the
said decision.

 The judgment of the High Court in favour of Respondent 1 was rendered on a

wrong premise.

 The claim of the respondents may be that he belonged to the Halba tribe but,
therefor, no factual foundation was placed before the High Court.

 In his absence the issue as to whether Respondent 2 had entered into an oral
agreement of sale or not could not have been adjudicated upon.
 38. The order dated 11-8-1988 would not operate as a res judicata so as to
disable it from considering the merit of the case of Respondent 1 by the State
of Maharashtra or the Maharashtra Pollution Control Board afresh.

 When a certificate is granted to a person who is not otherwise entitled thereto,

it is entirely incorrect to contend that the State shall be helpless spectator in
the matter.

 The observations and directions of the High Court, in our considered opinion,
were not only contrary to the judgments of the Court but also fall short of the
ground realities.

 In view of the principle laid down by this Court we are clearly of the opinion
that his services were rightly terminated by the appellant and the High Court
was in error in directing his reinstatement.

 When the order dated 11-8-1988 was passed, the judgment of the Bombay
High Court was prevailing.

 If Respondent 1 was aggrieved thereby, he could have filed an appropriate

writ petition before the High Court immediately thereafter.

 We reject the said contention.

 If such an enquiry subserves the greater public interest and has a far-reaching
effect on the society, in our opinion, this Court will not shirk its responsibilities
from doing so.

 Apart from the general power of the superior courts vested in it under Article
226 or Article 32 of the Constitution of India, this Court is bestowed with a
greater responsibility by the makers of the Constitution in terms of Articles 141
and 142 of the Constitution.

 Decisions are galore wherein this Court unhesitatingly exercised such

jurisdiction to resort to the creative interpretation to arrive at a just result in
regard to the societal and/or public interest.

 We albeit with much reluctance accept the fervent and impassionate plan
made by the learned counsel appearing for the appellant that he be allowed to
obtain the degree.
 We do not intend to do so in this case as Respondent 1 is in service for a long
time and the Bombay High Court allowed the writ petition filed by him way
back in 1988.