S.P. GUPTA & ORS. ETC. ETC. v. UNION OF INDIA & ORS. ETC. ETC

Citation: [1982] 2 S.C.R. 365

Court: Supreme Court of India

Bench: P.N. BHAGWATI, A.C. GUPTA, S. MURTAZA FAZAL ALI, V.D. TULZAPURKAR, D.A. DESAI, R.S. PATHAK, E.S. VENKATARAMIAH

Case summary

Kumar as a party-respondent to the Writ Petition filed in Delhi High Court actively supported the challenge to these actions and also the further action of dropping him outright during the pendency of the petition....

Judgment text

SP. GUPTA & ORS. ETC. ETC. v. UNION OF INDIA & ORS. ETC. ETC. December 28, 1981 [ P. N. BHAGWATI, A. C. GUPTA, S. MURTAZA FAZAL Au V. D. TULZAPURKAR, D. A. DESAI, R. S. PATHAK AND E. S. VENKATARAMIAH, JJ. ] 1, Independence of Judiciary, scope and limitations of the concept-Basic. structure ofthe Constitution-Constitution of India, 1950, Preamble, Articles 124, 216, 217 222 and 224. 2. Public interest litigation-Right to challenge executive order/action os A. affecting the independence ofjudiciary by persons other than the aggrieved party- Locus standi oflawyers to raise issues like fixation of strength of Judges in each High Court, appointment and re-appointments, of addtiona/ Judges, short term appointments, transfer, etc. by means ofpetitions either under Article 226 or 32 of the Constitution of India, explained. 3.

Public law-Protection against disclosure of documents claiming privilege-Evidence Act, sections 123 and 162, difference in-Whether the Union ofIndia could claim privilege in respect of the correspondence between the high dignitaries which formed the opinion regarding transfer ofJudges/gram ofextension to the additional Judges-Constitution of India, Articles 19(1) (a), 14, 217 and 224. 4. Freedom of the press-Disc11ssions based on the disclosed materials on the grounds on which recommendations were made to the President for not granting extension to the additional Judges, when the matter is sub-judice tan/amounts '\ to trial by press, not authorised by law-Constitution of India, Articles 19( /)(a) and 32. 5.

Consent to be appointed to any of the three preferred High Courts, as a J11dge, by the proposed appointee and the sitting additional Judges-Validity of such a circular letter requiring consent, dated March 18, 1981, ofthe Law Minister-Constitution of India, 1950, Articles 217 and 222. 6. Constitution ofIndia, Articles 216, 224, and 226-Appointm~nt ofHigh Court Ju1ge oilis (1982) 2s. c. tl. (xv) Article 222 (I) does not refer to a Chief Justice hence the order dated 19-l-198Jis outside its purview. (xvi) Since Article 222 (1) properly construed, covers only consensual trans· fers, the transfer order dated 19-1-1981 which is admittedly non-consensual, is bad in law. 8 (xvii) The transfer dated 19-1-1981 was not effected in public interest. 1" (xviii) The transfer has been effected without full and effective consulta· tion contemplated by Article 222 (1) and therefore the procedure followed in effecting the same did not ensure fairplay in relation to K. B. N.

Singh and the transfer is punitive in character. The contesting respondents raised a preliminary objection as to maintainability of the petitions inasmuch as the advocates had no locus standi and as to the request for disclosing certain correspondence in the case of S. N. Kumar, Additional Judge, of the Delhi High Court, the respondents claimed privilege under sections 123 and 162 of the Evidence Act. Dismissing the petitions, the Court, while agreeing that (a) the petitioners being advocates had a 'standing' to challenge the va!

idity of circulars; (b) independence of Judiciary is the founding faith of the Constitution and the power to appoint Judges is executive in the nature and the President is bound by the advice of the Cabinet by virtue of Article 74; (c) As to appointment and extension of Additional Judges, consultation with constitutional functionaries must be meaningful and result-oriented, none of them can exercise veto in the matter and the proposal can emanate from any of them and (d) transfer must be in public interest, not by way of punishment and personeal inconvenience, language problem and other factors should be taken into consideration, HELD : (Per majority). (i) The circular letter of the Law Minister dated 18. 3.

81 is not invalid because it is a document without any legal force and does not by itself of its own force, produce any legal consequence or effect but if any adverse action is taken against an additional judge because he has not given his consent for being appointed a permanent judge in another High Court, such adverse action would be invalid. Since an additional Judge has a right to be considered for appointment as an additiona1Judge for a further term on the expiration of his original term, and in case of a vacancy in a permanent post, for appointment as a permanent Judge in his own High Court, he cannot be discontinued as an additional Judge on the ground that be has not given hi; consent for being appointed as a permanent Judge in any other High Court.

Such a ground for discontinuing as an additional Judge would be a wholly irrelev2nt ground and if an additional Judge is discontinued on any such ground, the decision of the President discontinuing him would be unconstitutional and void. [Vide opinions of P. N. Bhagwati, S. M. Fazal Ali, D. A. Desai and E. S. Venkataramiah, JJ. ] S. P. GUPTA V, UNION 375 (ii) Among the opinions of the three constitutional consultancies, the opinion of the Chief Justice of India does not enjoy primacy over the other two opinions in the matter of appointment of Judges. (Vide P. N. Bhagwati, S. M. Fazal Ali, D. A. Desai and E. S. Venkataramiah, JJ. ) (iii) Non-extension of Mr. Justice S. N. Kumar after the expiry of his term was not invalid. (Vide P. N. Bhagwati, S. M. Fazal Ali, D. A. Desai and E. S. Venkataramiah, JJ. ) (iv) "Consent" is not necessary for the transfer of a Judge under Article 222, (Vide A. C. Gupta, Fazal Ali, V. D. Tulzapurkar, D. A. Desai, R. S. Pathak and E. S. Venkataramiah, JJ.

) (v) The transfer of Sri K. B. N. Singh, the Chief Justice of the Patna High Court is in public interest and not vitiated by malafides. (Vide /,,C. Gupta, V. D. Tulzapurkar, R. S. Pathak and E. S. Venkataramiah, JJ. ) (vi) No privilege could be claimed in respect of documents which constituted material for forming the opinions in the matter of either appointment or transfer of the Judges. (Vide P. N. Bhagwati, A. C. Gupta, V. D. Tulzapurkar, D. A. Desai, R. S. Pathak and E. S. Venkataramiah, JJ. ) Per Bhagwati, J. I : I. The principle of independence of the judiciary is not an abstract con· ception but it is a living faith which must derive its inspiration from the constitu- . 4. tional character and in nourishment and sustenance from the constitutional values.

Indian Constitution is a document of social revolution which casts an obligation on every instrumentality including the judiciary, which is a separate but equal branch of the State to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The judiciary has therefore a socio-economic d~stinat ion and a creative function. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of socio-economic justice.

Therefore, what is necessary is to have Judges who are prepared to fashion new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activist approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half hungry millions of India who are continulaly denied their basic human rights. Only Judges who are alive to the soc10-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the constitutional values and who are ready to use law as an instrument for achieving the constitutional objectives are needed. And this has to be the broad blue-print of the appointment project for the higher echelons of judicial service.

It is only if appointments of Judges are made with these considerations weighing predominently with the appointing authority that we can have a truly independent judiciary commit- \~d only to the C\l\11,lre for movin! I Supreme Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach Supreme Court. But, procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition ~nd act upon it.

But the individual who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the threshhold whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in court. As a matter of prudence and not as a rule of law, the court may confine this strategic exercise of jurisdiction to cases where legal wrong or legal injury is caused to a determinate class O" group of persons or legal right of such determinate class or group of persons is violated and as far as possible, not en.

tertain cases of individual wrong or injury at the instance of a third party, where ·there is an effective legal aid organisation which can take careof such cases. [520 B-H, 521 ~-Fl 2:5. Cases, where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest may conveniently be termed as public injury as distinguished from private injury. (521 H, 522 A] If the State or any public authority acts beyond the scope of its power and thereby causes a specific legal injury to a person or to a determinate class or group of persons, it would be a case of actionable private injury. If the duty is owed by the State or any public authority to a person or to a determinate class or group of persons, it would give rise to a corresponding right in such person or determinate class or group of persons and they would be entitled to maintain an action for judicial redress.

But if no specific legal injury is caused to a person or to a determinate class or group of persons by the act or omission of the State or any public authority and the injury is caused only to public interest, and if no one can maintain an action for redress of such public wrong or public injury, it would be disasterous for the rule of Jaw, for it would be open to the State or a public authority to act with impunity beyond the scope of its power or in breach of a public duty owed by it. The courts cannot countenance c;! o\lbt that the ris! . GUt>tA v. UNION 383 3:9.

Now an objection against the disclosure of a document on the ground that it relates to affairs of State may be made before the court either because it would be against the interest of the State or the public service to disclose its contents or because it belongs to a class of document which in the public interest ought not to be disclosed, whether or not it would be harmful to disclose the contents of the particular document.

Where immunity from disclosure is claimed on the ground that disclosure of the contents of the document would be injurious to the interest of the State or the public service it would not be difficult to decide the claim because it would almost invariably be supported by an affidavit made either by the Minister or by the head of the department and if the Minister or the head of the department asserts that to disclose the contents of the document "would or might do to the nation or the public service a grave injury, the court will be slow to question his opinion or to allow any interest, even that of justice to prevail over it" unless there can be shown to exist some factor suggesting either lack of good faith or an error of judgment or an error of law on· the part of the minister or the head· of the department.

But, even in such cases, it is now well-settled that that the court is not bound by the statement made by the minister or the bead of the department in the affidavit and it retains the power to balance the injury to the State or the public service against the risk of injustice, before reaching its decision. But the claim in the present case to withhold disclosure of the correspondence exchanged between the Law Minister the Chief Justice of Delhi High Court and the Chief Justice of India in 0 regard to continuance of S. N. Kumar is not based on the ground that the contents of these particular documents are such that their disclosure would harm the national interest or the interest of public service. [607 E-H, 609 A-BJ 3 : 10.

The court has to balance the detriment to the pubiic interest on the administrative or executive side which would result from the disclosure of the document against the detriment to the public interest on the judicial side which would result from non-disclosure of the document though relevant to the proceeding. 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 court has thus to perform a balancing e•ercise and after weighing the one competing aspect of public interest against the other, decide where the balance lies.

If the court comes to the conclusion that, on the balance, the disclosure of the document would cause greater injury to public interest than its non-disclosure the court would uphold the objec1ion and not allow the document to be disclosed but if, on the 01her hand, the court finds that the balance between competing public interest lies the other way, the court would order the disclosure of the document. This balancing between two competing aspects of public interesi has to be performed by the court even where an objection to the disclosure of the document is taken on the ground that it belongs to a class of documents which are protected irrespective of their contents, because there is no absolute immunity for documents belonging to such class. [612 G-H: 613 A-CJ 3 : 11. There is a heavy burden of proof on any authority which makes the. claim for cla~s immunity.

The claim for class immunity is an extraordinary claim because 1t is based not upon the contents of the document in question but 384 stJi>RilMil cobRT kEPORTs [1982] 2s. c. k. upon its membership of a class whatever be its contents and therefore the court should be very slow in upholding such a broad claim which is contradictory, if not destructive, of the concept of open government. Secondly, classes of documents which the immunity may be accorded are not closed and in the life of a fast changing society rapidly growing and developing under the impact of vast scientific and technological advances new class or classes of documents may come into existence to which the immunity may have to b~ granted in public interest, but that should only be as a highly exceptional measure.

It is only under the severest compulsion of the requirement of public interest that the court may extend the immunity to any other class or classes of document and in the context of our commitment to an open government with the concommitment right of the citizen to know what is happening in the government, the court should be reluctant to expand the classes of documents to which immunity may be granted. The court must on the contrary move in the direction of attenuating the protected class or classes of documents, because by and large secrecy is the badge of an authoritarian government. (625 C-G] 3 : 12.

In cases of this kind where non-appoinment of a additional Judge for a further term or transfer of a High Court Judge is challenged, the disclosure of the correspondence exchanged between the Law Minister, the Chief Justice of the High Court, the State Government and the Chief Justice of India and the relevant notings made by them, could not at all be said to be injurious to public interest. (628 A-BJ Science Research Council v. Nasse, 1979 All England Reports p. 673, . ; what was meant was that the Chief Minister should obtain the consent of each additional Judge if be was willing to give such consent. The use of the wold 'obtain' ca11not possibly be construed to mean that the person from whom the consent is to be obtained must be coerced into giving it.

To read the word 'obtain' in the circular letter as meaning that the Chief Minister was expected to coerce the additional Judges into giving their consent or as conveying an implied threat to the additional Judges that if they do not give their consent they might be dropped as additional Judges on the expiration of their term, would, therefore, be nothing short of torturing out of the language used in the circular letter, a meaning which the language does not bear and which could not possibly have been intended by the Law Minister. [579 D-H] 4 : 6. The circular letter deals with two categories of persons; one is the category of persons who are recommended may in future be recommended for initial appointment as Judges and the other is the category of additional Judges who are appointed for a period of two years or less.

So far as the first category of persons is concerned, when a person who is recommended or proposed to be recommended for initial appointment as a Judge is a;ked whether he is willing to be appointed as a Judge in another High Court, no transfer is involved in such process, as such person is not a sitting Judge in any High Court and is appointed for the first time in another High Court. The transfer contemplated in Article 222 clause (1) is not a mere act of physical locomotion or transfer of residence from one place to another, but it is an act by which a Judge in one High Court is transferred as a Judge of another High Court. Equally there is no transfer involved where an additional Judge is, on the expiration of his term, appointed as a permanent Judge in any other High Court.

It is no doubt true that by reason of his appointment as an additional Judge or permanent Judge in another High 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 be 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 (I) of Article 222. - [582 G-H; 583 A-DJ 4 : 7. Further, the circular did not seek to transfer Judges from one High Court to another. The expression "transfer"/"transferred" happened to be used by the Law Minister in an ex-tempore speech made on the floor of the House and not in a document or letter prepared after much care and dellberation.

No undue reliance can therefore be placed on the use of the expression 'transfer' or 'transferred' in the speech of the Law Minister. What was contemplated by the circular letter was not transfer of additional Judge from one High Court to another and it did not therefore, have to satisfy the requirements of clause (l) of Article 222. [584 B, F-G, H; 585 A] . 4 : 8. But quite apart from this consideration, even if the view be taken that what the circular Jetter sought to achieve was transfer of additional Judge from one High Court to another by obtaining consent of the additional Judges in • ' . ' • • ' ' ~ ,! advance, the Law Minister would not be circumventing the majority decision in Sankalchand Sheth's case. [585A-B, G-H] 4 : 9.

Even where the consent of the additional Judge has been obtained in advance, the Chief 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 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. [585 E-G] 5.

On a plain reading of Articles 217 (1) and 124 it is clear 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 reside solely and exclusively in the Central Government. It is not an unfettered power in the sense that the Central 'D Government cannot act arbitrarily without ~onsulting the constitutional functionaries specified in the two Articles but it can act only after consulting them and the consultation must be full and effective consultation. [541 B-D] 6: I.

Each of the constitutional functionaries required to be consulted under Articles 124 (2) and 217 (1) must ha•e for his consideration full and identical facts bearing upon appointment or non-appointment of the person concerned as a Judge and the opinion of each of them taken on identical material must be considered by the Cenetral Government before it takes a decision whether or not to appoint the person concerned as a Judge. It is only "consultation" which is provided by way of fetter upon the power of appointment vested in the Central Government and "consultation" cannot be equated with "concurrence" [542 D-E] - 6: 2.

On a proper interpretation of clause (2) of Article 124 and clause (I) of Article 217, it is open to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional functionaries required to be consulted under these two Articles. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with stich opinion though being a unanimous opinion of all the three constitution functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may become vulnerable to attack on ground that it is mala fide or based on irrelevant. grounds.

But, ordinarily the Central Government would not make an appointment of a Judge in a High Court, if all the three conslitutional functionaries have expressed an opinion aiiainst it. [543 A-Cl s. 1>. GUPtA v. IJNtON 389 6 : 3. The contention that where there is difference of opinion amongst the constitutional funtionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary any paterfamilias of the judicial fraternity, is not sound. On no principle primacy can be given to the opinion of one constitutional functionary, when clause (I) of Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned and does not make any distinction between one constitutional functionary and another.

Each of the three constitutional functionaries occupies a high constitutional office and clause (I) of Article 217 provides that the appointment of a High Court Judge shall be made after consultation with all the three constitutional functionaries without assigning superiority to the opinion of one over that of another. (543 D-F] 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, be is in any way less importal'lt than the Chief Justice of India. In fact under the constitutional scheme, the Chief Justice of a High Court is not subject to the administrative superintendence of the Chief Justice of India nor is he under the control of supervision of the Chief Justice of India.

It is only the 0 power of bearing appeals against the decision of the Chief Justice of a High Court that is possessed by the Chief Justice of India and there his superiority over the Chief Justice of the High Court ends. (543 F-H; 544 E] • Looking at the raison d'etre of the provision for consultation enacted in clause (I) of Article 217, it will be obvious that the opinion given by the Chief Justice of the High Court must have at least equal weight as the opinion of the . "'-· ......... Chief Justice of India, because ordinarily the Chief Justice of the High Court would be better in a position to know about the competence, character and integrity of the person recommended for appointment as a Judge in the High Court.

The opinion of the Governor of the State, which means the State Government would also be entitled to equal weight, not in regard to the technical competence of the person recommended and his knowledge and perception of law on which the Chief Justice of the High Court would be the proper person to express an opinion, but in regard to the character and integrity of such person, his antecedents and his social philosophy and value-system, the opinion of the Chief Justice of India would be valuable because he would not be affected by caste, communal or other parochial considerations and standing outside the turmoil of local passions and prejudices. he would be able to look objectively at the problem of appointment. There is therefore, 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.

(544A-E] The opinion of each of the three constitutional functionariei; is entitled to equal weight and it cannot be said that the opinion of the Chief Justice of India must have primacy over the opinions of the other two constitutional functionaries. If pritnacy were to be given to the opinion of the Chief Justice of India, it would, 396 si:Ji>:REME cotiRt ltEi>oRts (19B2i 2s. c. il. in effect and substance amount to "concurrence", because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion. But it is only "consultation" and not "concurrellee" of the Chief Justice of India that is provided in clause (1) of Article 217.

[544 E-G] Where there is a 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 cmtitled to primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, the Contra] 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. The ultimate power of appointment rests with the Central Government and that is in accord with the constitutional practice prctvailing in all democratic countries. [545 C-E] 6 : 4.

Thus the appointment of a Judge belonging to the higher echelons of Judicial service is wholly in the hands of the Executive. This is, of course, not an ideal system of appoi11tment of Judges, but the reason why the power of appointment of Judges is left to the Executive is that the Executive is responsible to the Legislature and through the Legislature, it is accountable to the people who are consumers ofjustice.

The power of appointment of Judges is not entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not have any accountability to the people and even if any wrong or improper appointment is made, they are not liable to account t - Judge, if by reason of any temporary increase in the business of a High Coutt 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 and in that event he can appoint an additional Judge for such period not exceeding two years as he may specify. 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. Article 224 clause (!

) did not contemplate that the increase in the number of Judges should be for an indefinite duration, the object being that additional Judge should be appointed for a short period in order to dispose of the temporary increase of pending cases. The underlying idea was that there should be an adequate strength of permanent Judges in each High Court to deal with its normal institutions and so far as the te·mporary increa~e. in the work or the arrears of pending cases were concerned, additional Judges appointed for a period not exceeding two years should assist in disposing of such work. On ·a true interpretation of clause (l) of Article 224 it was never intended ihat additional Judges should go on being appointed and reappointed term after term.

" [554 G-11, 555 B-E, 557 D-E] 7:2: It is obvious that ·if additional Judges were appointed according to the true intendment of clause (I) of Article 224, they would be temporary Judges appointed for a short duration to dear off the arrears and once the arrears are cleared off, which was expected by Parliament to be achieved within not more than ·two years they would, on the expiration their term, go back to the Bar or to the District Judicial service. Their tenure being for a short period limited by the ii'me expeeted to be taken in clearing off the arrears-such time, in any event, being hopefully not more than two years they would know that, on the expiration fl. ll. OtJl>tA v. tJNtON 393 of their term, they Would have to go back. They would have no right to be appointed or even to be c1.

msidered for appointment as permanent Judges, because when they accepted appomtment as additional Judges under clause (1) of Article 224, they would have known that they were appointed only as temporary Judges for a short period in order to clear off the arrears. [557 E-H] 7;3. But in practice the true intendment and' purpose of clause (I) of Article 224 was never carried into effect. The strength of additional Judges was not fixed realistically and a much lesser number of additional . Tudges than required for the purpose of clearing off the arrears within a period of about two years were appointed in the different High Courts from time to time with the . result that the arrears continued to ·increase and the need for additional Judges continued to subsist. The entire object and purpose of the introduction of clause (!

) of Article 224 was perverted and additional Judges were appointed under this Article not as temporary Judges for a short period who would go·back on the expiration of their term as soon as the arrears are cleared off, but as Judges whose tenure, though limited to a period not exceeding two years at the time of each appointment as an addi1ional Judge, would be renewed from time to time until a berth was found for them in tl1e cadre of permanent Judges. (557 H, 558 A, E-F, 559 A-CJ 7:4. Therefore, 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 permanent Judge became available, they would be confirmed as permanent Judges. This expectation which was generated in the minds of additional Judges by reason of the peculiar manner in which clause (1) of Article 224 was operated, cannot now be ignored by the Government and the Government cannot be permitted to say that when the term of an additi. onal Judge expires, the Govern- ! I)ent can drop him at its sweet will.

By reason of the expectation raised in his mind through a practice followed for almost over a quarter of a century, an additional Judge is entitled to be considered for appointment as an additional Judge for a further term on the expiration of his original term and if in the meanwhile, a vacancy in the post of a permanent Judge becomes available to him on the basis of seniority amongst additional Judges, he has a right to be considered for appointment as a permanent Judge in his high Court. [559 D-H] 7:5. On a plain reading of Article 217 clause (1) it is clear that when an additional Judge is to be appointed, the procedure set out in that Article is to be followed. 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. The expression "Every Judge' mun on a plain natural COl1$tructi Q jQcluqe J:lOt o! llr a ! 'ermanen\ [i982] 2 s. c.

tt. Judge but also an additional Judge. Therefore, no additional Judge can be appointed without complying with the requirement of clause (1) of Article 217. (560 A-B, F] I 7:6. When the term of an additional Judge expires he ceases to be a Judge and therefore, if he is to continue as Judge, he must be either reappointed as an additional Judge or appointed as a permanent Judge. In either case, clause (I) 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 21 clause (I). [560 F-G] 7. 7. An additional Judge has a right to be considered for such reappointment or appointment as the case may be, and the Central Government cannot be heard to say that the additional Judge need not be considered. The additional Judge cannot just be dropped without consideration.

The name of the additional Judge would have o go through the procedure clause (I) of Article 217 and after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, the Central Government would have to decide whether or not reappoint him as an additional Judge or to appoint him as permanent Judge. But this is the only right possessed by the additipnal Judge. The additional Judge is not entitled to contend that he must automatically and without any further consideration be appointed as an additional Judge for a further term or as a permanent Judge. He has to go through the process of clause (1) of Article 217 and to concede to him the right to be appointed either as an additional Judge for a further term or as a permanent Judge would be to fly in the face of Article 217 clause (1 ).

The only right he has is to be considered for such appointment and this right also belongs to him not because clause (1) of Article 224 confers such right upon him, but because of the peculiar manner in which clause (1) of Article 224 has been operated aII these years. [560 G-H, 561 A, D-H] 7:8. There are no limitations in the language of clause (I) of Article 217 as to what factors shall be considered and what factors shaII not be, but having regard to the object and purpose of that provision, namely, appointment of a High Court Judge, it is obvious that fitness and suitability, physical, inteilectual and moral, would be the governing considerations to be taken into account in deciding the question of appointment.

Public interest requires that only such person should be appointed as a Judge who is physically, inteIIectually and morally fit and suitable to be appointed as a Judge and it would be contrary to public weal to appoint a person, who does not possess the requisite fitneios and suitability. The Central Government would, therefore, be under a constitutional obligation to consider whether the additional Judge, whose term has expired, is fit and suitable to be reappointed as an additional Judge or appointed as a permanent Judge. Of course, at the time when the question of reappointment of an additional Judge for a further term or his appointment as a permanent Judge comes-up before the Central Government for consideration, the additional Judge would have two weighty circumstances in his favour: one, that he has experience ;is a Judge f9r one term and the other, that it would not be desirable to send an S. P. GUPTA v. UNION 395 additional Judge back to the Bar.

But even with these weighty circumstances in his favour, he would have to satisfy the test ·of fitness and suitability, physical, intellectual and moral, before the Central Government can, consistently with its constitutional obligation and in public interest, decide to reappoint him as an additional Judge or appoint him as a permanent Judge. [562 C-H, 563 A-Bl 8 7:9. It is true that the fitness and suitability of the additional Judge must have been considered by the Central Government at the- time of his original appointment, hut when the question again comes-up for consideration on the expiration of his term, the Central Government has. to consider afresh, in the light of the mate1ial then available save and except material which was already with the Central Government at the time of original appointment, as to whether he possesses the requisite fitness and suitability being appointed as a Judge. This would not amount to treating his as if he were on probation.

An additional Judge is certainly not on probation in the sense that his services cannot be terminated before the expiration of his term, unlike a probationer who can be sent out at any time during the period of probation. It would also not be open to the Chief Justice of the High Court or the Governor of ! he State or the Chief Justice of india to sit in judgment over the quality of the work turned out by • ,.. ... the additional Judge during his term, because that would be essentially an appellate function which can be discharged only by court entitled to hear appeals from the decisions of the additional Judge. But every other consideration which . bears on the physical, . intellectual and moral fitness and suitability of the additional Judge based on material other than that which was with the Central l.

Government at the time of original appointment can and must be considered and if the Central Government finds, after consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India that the additional Judge is not fit and suitable for being appointed as a Judge the Central Government may decide not to appoint him an additional Judge for a further . term or as a permanent Judge. [563 B-H] 7:IO. So Iong as tl1e case of the .

additional Judge is considered by the Central Government for reappointment or appointment as the case may be, the decision of the Central Government cannot be questioned except on the ground · that it was reached without full and effective consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Ju~tice of India or that ' it was based on irrelevant considerations: Where such a challenge is made, the burden is on Central Government to show that there was full and effective consultation and the decision was based on relevant considerations.

In fact 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 heavily on the Central G wernment to show that it had cogent reasons to disagree with the Chief Justice of the Hil! '1 thQ Court. [539 E-Hi 540 A-DJ .. 9:1. The decision not to continue S. N. Kumar as an Additional Judge was taken by the Central Government "after full and effective consultation" within the meaning of Article 217, with the Chief Justice of Delhi and the Chjef Justice oflndia and it was not based on any irrelevant consideration. As between two conflicting but perfectly bonafide opinions of the two constitutional authoritles, the Central Government had to choose between them and come to its own decision.

Here it chose that of Chief Justice of Delhi High Court. As such the decision does not suffer from constitutional infirmity. [668G·669 B-C] 9:2. It is not open to the court to hold an inquiry and determine for itself the correctnes. s of the opinion of any of the constitutional authorities required to be consulted by the President. The opinion given by any such constitutional . authority may be mis taken or erroneous but the corrective for such mistake or error is to be found in the constitutional provision itself and it cannot be provided by judicial intervention. The Court cannot take evidence for the purpose of determining whether the facts on which the opinion of a constitutional authority required to be consulted is based are true or not or whether the opinion expressed by such constitutional authority is well-founded or not.

That is a function entrusted by the Constitution to the President, that is, the Central Government and it is for the Central Government to judge whether the opinion expressed by the constitutional authority such as the Chief ~Justice of the High Court is well-founded or not and whether it should be accepted or rejected. The court cannot be invited to go into the question whether the facts on which th~ opinion of the Chief Justice of Delhi was based were correct or not and whether the op inio~ expressed by him was or was not justified. The court 1s concerned merely to enquire whether there was in fact full and effective consultation. [656C-F, 657 DJ 9:3.

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 Court or the State Government or the Chief Justice of India, should be subjected to the process of consultation set out in Article 217 and his name can be dropped without any such consultation. But the position is different in c. asc of an additional Judge, for though an additional Judge has no right, on the expiration of his term, to be appointed an additional Judge for a further term or to be appointed a permanent Judge, be has still a right to be considered for such appointment and the Central Government has to decide whether or not to appoint him after consultation with the three constitutional functionaries mentioned in Article 217.. [636 D-G] 9:4.

Article 217 does not require that any particular procedure should be followed for full and effective consultation nor does it insist that the relevant facts on which the final decision of the Central Government is based should be conveyed to the other three constitutional functionaries in any particular manner or by the Central Government itself. What is necessary to ensure full and effective consultati~n within the meaning of Article 217 is that the Central Qovern! llc;ont as well as eitc~ of the three copstitμtional functiooarie~ require . Glii>TA v. UNION 40S municated to the Chief Justice of India for his opinion, There was therefore clearly no full and effective consultation even in regard to this aspect. Moreover this reason given by the Central Government for making the order of transfer clearly shows that the Central Government did not apply its wind to the question ' whether on the facts, it was necessary or expedient to transfer Chief Justice K. B. N.

Singh, but accepted the recommendation of the Chief Justice of India, because it thought that if the recommendation of the Chief Justice of India was accepted and the transfers of Chief Justice M. M. Ismail and Chfef Justice K. B. N. Singh were made, it would be easier for the . Central Government thereafter to · press for acceptance of the government policy by the Chief Justice of India. There was clearly abdication of its constitutiona I function by the Central Government. . [685 B-G] ·,_,. unding fathers of the Constitution and the Parliament thr. reafter having been fully aware of the view taken by the American courts in recent decisions has affirmatively chosep to reject the liberal and somewhat dangerous doctrine of candour. [85JB-Dl 2:7.

Coming to the practical side of the dangerous consequences of the disclosure, and in support of the view that afler inspecting the documents, it was not in public interest to order disclosure of the contents of the documents, the following considerations must be kept in mind : (a) appointment of High Courts Judges are highly confidential matters containing frank and free legal views expressed by the CJ of the High Court, CJI and the Central Government repre· sented by the Law Minister and Council of Ministers. These authorities have expressed their views in the secret correspondence on the distinct assurance and belief that for the last two centuries such docu meats have always been treated as secret, confidential and privileged and uni ii today no disclosure of such documents has ever been allowed by any court.

Thus, any disclosure of the contents of the documents would be extremely derogatory to the High constitutional position that these Constitutional functionaries enjoy and would in the Jong run prove counter-productive and destroy the sacrosanct consultative process as envisaged by the Constitution. (b) If disclosure is allowed, it will bring into disrepute the judicial institution itself and lead to a continual process of washing of dirty linen and perpetual mudslinging by allowing the so called wronged persons to make allegations and counter-allegations against the Government and CJ concerned as was sought to be done in this very case.

It is true that even after the conteilts of the documents are' disclosed, the petitioners cannot be allowed to travel beyond the material disclosed by the documents but even the material could be exploited and affect the secrecy of such high constitutional officers and raise a controversy which will ultimalely lead to opening a pandora's box which is neither in the interest of the judiciary nor even of the lawyers, [825F-H, 853A-F] 3. 1. Re. Circular letter ofthe law Minister- The circular of Union Law Minister dated March 18, 1981 does not endanger and erode the independence of the judiciary or intend to do any such thing. The circular merely seeks to provide an easy and practical, a rough and ready and an ingenious and scientific mechanism to achieve the policy of taking i:me·third of the Jud~es in a Hi~h "' bability the proposal would die a natural death. [816 F-HJ 0 J:5.

No ques,ion of transfer is invoi~ed in the mechanism sought to be devised by ~h·C circular as the AdditionafJudges have only to be appointed for the firSt timC in. other High. CoUrts and are not to be transferred. They wOUtd not be transferee J~dges and thCrefore~ not entitled to. the . facilities which are aVailabtC io trans_feree. Judgc:s compens~tory allowance. visiting bis home State e•ery. year. · · · ·· [817 B-CJ. 3:6. The circular letter issued by the· Law Mi~~ter is not maridatory but purely directory.. ' It is open to the Judges to refuse to answer the queries made from them by the C~l in pursu3. nce of the Circular and no adverse inference . ca~ blf taken agai~st them, though the law Will take its own course. [817 C-D] ·- . - ... - . . . . . . . - '' .. - . • . 4:1. At;t ~Aamination or the various optntons expressed by the legal lumin3'. r_iCs, StateSffieo, politicians aiid jurists from' 1958 to 1981 makes it clear · thai the.

idea ·or the Cetitral Govi:mnient of a uniform Policy of tCanSrCr of . ·CJs~ . sc;i'that. c'ach Sta~ei bits~ ·CJ fr~rll olltside, is a·~. ery essential, u~~ful, seti. sible 'arid a· wise· ·o~e \vpich CutS at' . the rOots 'Or sO . inaDY Cvils With_ which·· nOi O? tY"o~. r CNJniry but~ e~ei;i fhe higher j1:1dicfary is faced. Se~ndly,"' sue_~ a uniform policy will be in the betier interest 9f the concerned Judge himself ~Ca~se however disi~terested or ·independ~rlt ~e may be, p. C is ·bo'und t6 'be ~~c~-~ Cith~r f9RS'£!? ~~11~r-~p~~~c~~~~Ir1? ~ ~qt~~-~~i~4 ~~~o~ whQ. ~~O? ~~ [19821 2 s. c. R. . ' - I .. to exp1oit him even ·without his . knOwtedge. Such a policy wou! d enhance the prestige or the judiciary, ensure its independence and make the. working of _the head of the judiciary in the State more efficient and generate a greater confidence in the people of the new State where he is transferred..

The language problem also does'not 3ppear to be an insurmountable obstacle because while laying down the polic}r the Government can start with tran5fers of CJs ·within the Zones as recoinmended by the Law Commission which will minimise the language difficully. (800 D·H, 801 A] 4:2. In making the tranr;. fers,_ there wOuld · be ·no senous objection if the CJ is allowed to indicate his choice regaring the State where be. - would be· prepared to be transferi'Cd and the same niay be accepted as far as ,practicable. So far as recruitment of One. -third jlldges at the initial st3gC is coricemed, ·this will ·c~· no doubt. present some difficulties in the beginOirig because~ several Constitutional authorities would have to be consulted but this difficulty can be overcome either . by the appropriate method adopted by the Circular or any mechanism similar to the same.

(801 A-CJ · The Chief Justice of each High Court should be asked· to Prepare a 0 panel of suitable persons who are considered· for· appointment as High Court Judges both from the Bar and from the subordinate judiciary. ·Before including the narm: Of the persons concerned their previous consent for being . appointed outside the State may be ·obtained by the CJ. This can be done by determining: the strength of the panel so that it may form one-third of the total strength of permanent judges already fixed by the Presi4ent or as may be fixed from time to time.. The Civil. List of Jndges oftbe Supreme Court and High Courts gives the ·sa. nctioned· strength of permaiient and·Additional Judges. One-third of the ,. strength of the permanent judges according to the vacancies that fa11 should be reserved for the persons found suitable and who are. willing to serve outside the State;- It would be better if the t>ersons whose ·names are included in the Panel ..

are appointed outside the State as permanent judges which would Provide an ·attractive offer and give a better impetus. to the persons aspiring for judgeship and would tempt theni to serve outside the State. [801 CF] f-, ·, . ID.. fact;iawyers,. Judges9 pol;ticians;jurists, nlembers of the ~Bai and other ·f statesmen h3ye aJ)plied ~heir minds and expressed . themselves strongly in favour or thepolicysoughttobeevolved_by the Government. In_view, however, of the ~banged circumstances, such a Policy is not oiity proper but essential as being theprime need of the hour. One should nof be blind to the. fissiparous and parochial tendencies that have sta. fted raisillg their heads threatening disintegration of the . country. The dark clouds -of.

s1tparatism, · conservatism and paroChialisni' haYe-started ·casting their shadows- on the entire" Country and it is high time that SuCh a sacred and sacrosanct institution like the High Courts should be protected and kept aloof from such evil forces~ It is manifest that a CJ from outside will apply an jndepei:ident approach both in discharging his judicial dUties as a Judge and in recommending appoiiltment of members of the Bar . :or service io the High Court and his selection will not be inspired or tainted by any local s. 1>, GUPTA v, tJ~iON 417 or personal consideration because he would be an outsider in the High Court of a State where he presides. Further, even the litigant would have much greater confidence in such a ci than in a local person. [805 B-E] 4:3.

Indeed, if we are really concerned that we should build up an independent judiciary then it is absolutely essential that new talents from outside should be imported in every High Court either to man it or to head it so that they may generate much greater confidence in the people than the local Judges. The position of a CJ is indeed a very high constitutional position and our Con- . stitution contains sufficient safeguards to protect both his decision making ,process and his tenure. It is a well-known saying that power corrupts and absolute power corrupts absolutely. As man is not infallible, so is a Chief Justice, though a person holding a high judicial post is likely to be incorruptible because of the quality of sobriety and restraint that the judicial method contains, even so, if a CJ is from outside the State, the chances of misusing his powers are reduood to the absolute minimum. The power to formulate or evolve this.

policy clearly lies within the four comers of Article 222 itself which contains very wide power conditioned only by consultation with CJI who is the highest judicial authority in the country. It is always open to the President, which in practice means the Central Government. to lay down a policy, norms and guidelines according to which the presidential powers are to be exercised and once these norms _are followed, the powe~s of the PresiGent would be beyond judicial review. [805 H, 806 A-DJ As against policy transfer selective transfers of CJs to High Courts other •han the one where they are working or may be appointed, contains· the colour of discrimination and arbitrariness because however careful the CJI may be if he starts picking and choosing CJs from outside the High Courts the element of discrimination or arbifrariness cannot be reasonably excluded.

On the other band, if a general policy applying to all and sundry (CJs) is evolved by which every state would have a CJ from outside no complaint of discrimination can ever be made. In fact, the very foundation of discrimination would disappear. The view taken by the CJI, does not appear to be correct or acceptable and perhaps in his o'wn interest selective transfers should not be made because even if in one or two cases discrimination is made due to oversight or bona fide lapse, it will amount to a great slur on such a high position as the CJI bolds. On the other hand, if a uniform policy of appointing or promoting CJs to High Courts outside the State is followed it will promote national integration. and curb the fissiparoas and parochial tendencies and preserve and protect the purity of judicial administration. [806 E-H] 5:1.

Re: Policy of transfer ofJudges and Chief Justices: Article 222 confers an express power on the· President to transfer a judge (which includes the CJ) fro"m one State to another. This power is not circums- ff cribed or he suitability would be the first criterion. As in the case of initial appointment under Article-217, so in the case of a fresh appointment after the period mentioned in Article 224 expires, there is no leg~! right to be appointed nor does non-appointment give rise to any legal or constitutional infirmity so as to be the subject of a judicial review. It is a different. matter that if an additional judge is consici'ered for a permanent appointment afresh, the fact that he has acquired some experience would u·ndoub- 1edly be an important factor to be taken into consideration while judging the ' . suitability of the candidate concerned.

At the same time, the constitutional functionaries cannot shut their eyes to the facts which may have come to their knowledge either against the Additional Judge or in his favour. [859 H; 860 A-DJ Thus, thc·position is that even if an Add;tional Judge is not appointed afresh and somebody else is appointed, \lwre~isj no q_uestion of ju TA v. ONION 9. The . constitutional requirements of an effective consultation have not been proved beyond reasona_ble doubt inasmuch as-(i) t. he petitioner was not consulted before the formal proposal recommending him for transfer to Rajasthan and then to Madras, was sent to the Government; (ii) that there is no mention . al all in any of the proposals dated 7-12-80 or 20-12-80 regarding any discussion having been held with the petitioner; (iii) that there is noth'.

ng to sbow that the President or the concerned Constitutional authority had sufficient time to deliberate over tbe pros and cons of the transfer particularly in view of the difficulties placed by the petitioner; factually, as held by the CJI himself, in Sheth'1 case that deliberation is the very quintessence of consultation; (iv) the case . squarely falls within the. ratio laid down in Chandramouleshwar's case. [881 C, 882! 0-G] In view of the circumstances discussed above the consultative process as contemplated by Article 222 is clearly vitiated which renders the order impugned passed by the Presid_ent constitutionally invalid. [882 H] 10. While Article 222(2) does require that on transfer from one High Court to another, compensatory allowance may be paid, it does not state . that the Pre•idential Order should issue pari passu the order of transfer. Such an Order could follow the transfer.

Moreover, as the petitioner never cared to join his new assignment and before· he could do so the wr_it petitions were filed and proceedings were stayed, there was no occasion for the President to pass the order directing compensatory allowance to be paid to him until the validity of the transrer;of the petitioner was finally a. diudged by Supreme Court. This is not a case whereJajudge or a~CJ having been transferred had joined his new assignment and started w rking and still no order of compensatory allowance was made by the President. [883 F-H] 11_. The . presumption un,der section 114 (e) of the Evidence Act, that official Acts must . deemed to have been actually done applies only where there is no challenge to the constitutional validity of. an official act. Where an act is found to be per se unconstltutional, the question of raising a . presumption does not arise because once it :is '.

held, that the consultation did not fulfil the constitutional requirements, the order impugned would become void ab initio and non-est. The order transferring Mr. K. B. N. Singh to Madras to constitutionaily invalid. [883 B-C, G] Collector of Customs, Barod~ v. Digvijayasinhji Spinning & Weaving Mills Ltd. , (1962] 1 SCR 896 followed. 12:1. 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 interests. Although Art. 222 does not contain the words 'Public interest' in so many words but tbe very exercise of the power, which is not a normal power but an exceptional one, it follows as a logical consequence that public interest is a necessary concomitant of the exercise of this power. It.

cannot be said that on a parity of reasoning that 'consent' also should be read as a part and parcel of the exercise of the power under Article 222, / 422 SUPRBME COURT REPORTS [I982] 2 s. c. R. because if a Judge cannot be transferred without his consent then the power loses its signiikan~e and becomes an immunity to a judge from transfer by withholding his consent. Thus, 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 bis consent to the 1ransfer. This could never have been the intention of the founding fathers of the Constitution. [722 H, 723 A-D] 12:2. A perusal of Article 222 unmistakably shows that it is expressed in absolutely clear, Iexplicit, intelligible, plain and unambiguous language which admits of no vagueness or ambiguity.

It is not the function of the court to supply words to suit a particular course of action so as to be acceptable to a particular set of persons as a doctrine of implied consent. The word 'consent' h·as been dropped by the legislature deliberately or it is a case of deliberate omission rather than casus omissus. Whenever the Founding Fathers intended that a particular expression should be used in an ArtiCle as a condition precedent to the exercise of a particular power, the same has been mentioned and where no such intention was there the expressions have not been used. [723 H, 724 A-C, 729 CJ - Chandra Mohan v. State ofU. P. & Ors. (1967] I S. C. R. 77, followed. 12:3. The word 'consent' was never intended to be included ia the powers to be exercised under Article 222.

There is no provision in the Constitution, empowering the President to appoint for the first time a person as a Judge of a High Court against his consent and even if he is appointed, th~ person so appointed, can refuse to act as a Judge and if he does so the matter ends there and he cannot be compelled to act as a Judge. Once however, the person decides to accept the appointment of a Judge of a High Court he becomes a constitutional functionary and therefore would be subject to the provisions of the Constitution because before deciding to accept the appointment he must be presull). ed to be aware of the constitutional provision contained in the ·various Articles regarding High Court Judges, viz. , the conditions of of service, the salary and other allowances; the date of retirement and also the provision . regarding transfer as provided for in Article 222 which does not contain the word 'consent'.

Therefore no Judge can complain that be bad been transferred against bis consent or plead that had he known this he may not have accepted the office of a High Court Judge. As the word 'consent' is conspicuously absent from Article 222, such a plea cannot in th'e very nature of things be permitted to be taken by the concerned Judge. If he does not want to be transferred, it is always open to him to resign for which also there is a clear provision under Proviso (a) to clause (! )·of Article 217. [727 G, 729 G-H, 730 A-DJ Even at the time when Article 222 was taking its birth there was some talk of making the transfer with the consent of 1be Judge concerned but this was given up when it was pointed out that in the national interest it may be necessary to send a compeient Judge to another High Court and this policy may be stalled by the judge by withholding this consent.

In other words, the idea of consent having been conceived, discussed and rejected clearly shows that the Founding Fathers deliberately omitted the word consent from Article 222. . . · . [766 C-EJ S. P. ouPtA v. UNtON 12:4. The plain and unambiguous language of Article 217(c) and Article 222 cannot be stretched to indicate that 'appointment' and 'transfer' are synony· mous terms when the constitutional provisions make it very clear that the power of transfer and the ·power of appointment are two different kinds of powers to be exercised in different ways. [763 A-CJ Kesavananda Bharati Sripadag'alavaru v. State ofKera/a [1973J Supp. S. C. R. 1 explained. 12:5 The coastitution has used the word "appointed' in the case of a Judge ·of the Supreme Court and 'transfer' in the case of Jiidge of a High Court.

perusal of the language of Article 217 (c) leads to the irresistible conclusion and logical inference that the Founding Fathers have made a clear distinction between transfer and appointment. It is true that in both cases the office held by a Judge is vacated in a fictional sense because there is a complete change in the life of the Judge but that does mean. that the incidental of both these appointments are the same. 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 poss~ss the same status, position . and emoluments which is essentially different from a Judge of the Supreme Court.

It is true that on being transferred to another High Court a Judge ceases to be a Judge but then he ceases to be Judge of the transferor court only and does not cease to be a Judge for all times to come so ·as to make his transfer in the transferee court a fresh appointment. This is clear from paragraph 11 (iii) to the Second Schedule to the Constitution. It is true that i. n 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 however 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. (761 A-HJ 12:6. When a judge was appointed in the original High Court he had taken the oath of his office which bound him to act as aJudge of that. particular High Court. Since by virtue of the transfer, the court is chang~d.

a fresh oath becomes necessary as a clerical formality to indicate that although his appointment as Judge of a High Court does not cease to exist he discharges his duties as a judge in another court in respect of which be had not taken the oath of office. Io these circumstances, it cannot be said that merely because a transferee Judge has to take a fresh oath the transfer becomes a new or a fresh appointment. Moreover it is doubtful if the taking of a fresh oath is necessary at all because the warrant signed by the President appointing a person as a Judge of a High Court bolds good in the transferee court and the place is indicated by the notification issued under the authority of the President which really means that after the notification the warrant would have to be read to indicate that the judge was transferred to the transferee court where he is to act as a Judge. (762 A-DJ [1982] 2 s. c. R. 12:7. T ere is no reason to presume that any order Which is passed by .

the President under Article 222 hence forward 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. Therefore in all cases, constitutional transfers could not amount to a punishment so as to arm the Government with a weapon to punish a Judge for not toeing the line of Government. [770 C-E] 12:8. Once it is conceded that the power of transfer under Article 222 is to be exercised in public interest then any inconvenience that is felt by the judge would have to yield to the larger interest of the community so as to· make the said article workable.

Alth_ough Article 222 is an extraordinary power, whenever a person accepts judgeship of a High Court he is fully aware that during his career as a judge the power under Article 222 could be exercised by the President without his consent and if knowing this he accepts the position of High Court Judge, he cannot be heard to say that he ought not to be transferred because be would suffer lot of inconvenience. [770 P-H] 12:9. The very concept of transfer under Article 222 being a punishment is highly derogatory to the high constitutional posit. ion that a High Court judge holds. Such a constitutional appointment, )'llhich makes a judge a constitutional · functionary and not a government servant, more·so when he obtains certain special privileges having regard to the high position he holds, is against . the very concept of penalty or punishment. It is manifest that when a person is punished . for an offence or a mistake or an error, then be is to undergo some penal process.

In the case of a Judge who is transferred, no such pei;u,d consequence~ 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. . clause (2) of Art. :222 clearly provides that a tra~sferred judge is only to receive in . addition to bis salary such compensatory allowance as may be determined by Parliament by law and until so determined such compensatory allowance as the President may fix. Thus, 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. Apart from the allowances, the High Court Judges (Conditions of Service) Act and the Rules m~de therein clearly provide that a judge who is transferre. d from one High Court to l! nother can always avail· of the specia. 1 _Ieave concession rules by visiting his home State, along with his family, at Governinen. t . cost once a year.

The Judges Rules, as amended, further enjoin that the Judge must be supplied with a free furnished house. which under the Amendment Act of 1981 is not even to be treated as a perquisite under the Income Tax Act. . It . is true that some of these facilities are available to a Judge in his original High Court also but the totality of the facilities taken into consideration undoubted. ly seek to make him as comfortable as possible in the transferee court also. [771 B-l;I] 12:10. Far from being a punishment the transfer of a judge does not involve any strain or stigma nor even the slightest reflection on his legal functioning or his judicial character or integrity. The transfer of a judge contemplated by Article 222 is in the nature of a response to a call of duty in the larger batioiial ifiterest ot ihe country in order to fnaihlai~ ahd ensute absoiute purity oftudieial adm iti istratiob. bn beibg transferred the Judge would find himself free to .

\Vbrk in at'I ihdependeht ntmosphere untramelled by any provindal or parochial eonsideta:tion, undaunted by any external or internal influences or local pulls or pressures and uninfluenced by the considerati! ins of class, caste or creed. He would also generate much gfea:ter confidence in the people to whom he imparts justice which is bound to enhance his judicial prestige and as a logical result would subserve the concept of independence of judieiary. For a true and conscientious judge there can be no higher honour than to create a feeling that justice is not actually done but also appears to have been done, the latter being more important and fundamental quality of judicial approach. j The apprehension that a judge on being transferred to another State is likely to face a hostile bar is merely an anathema and an illusion which has either a factual normal legal existence.

If the judge's behaviour towards · the Bar is polite and courteous and he gives a little accommodation to the Bar he is bound to win laurels of the Bar. In fact, the Bar always welcomes an outside judge who is likely to build uo a new judicial structure and establish a flawless and unblemished reputation This is not merely a pious wish or an ideal dream out a stark and speaking reality which is evident from the perfor-· mance and reputation of judges who had been transferred outside their States and had proved to be not only successful but memorable judges. [772 B-G] 12:11.

Where a judge is transferred because the envirnoment or the atmosphere is not congenial or conducive to administration of impartial justice, he does so as a conscientious judge responding to a call of duty but where his sons or relations follow him in the transferee court then it becomes the most cogent and reliable evidence to show that the judge openly allows himselfto be exploited by his sons or relations and this p~r se would be conclusive proof of misbehaviour for which, he can be impeached under Article 124(4) read with Article 218. If these facts are proved, then he will have to be removed for no court can ever accept a plea of the judge that even after he was transferred to some other court his close relations followed him there without his knowledge. [774 l;>sc:ured! intelli~ible and' pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation there is absolutely no room for deriving support from external aids.

In such cases, the statute should be interpreted on the face of the language itself without adding, substracting or omitting words therefrom. It is equally well settled that it is not the duty of the court to import words which have been omitted deliberately or intentionally in order to fill up a gap or supply omissions to fit in with the ideology or concept of the Judge concerned. The words and the' language used must be given their natural meaning and interpreted in their ordinary and popular sense. [743 C-F] There may be a third type of cases which may be on the border line-where the language may admit of two interpretations in which case the court may consider the desirability of resorting to external aids in order to catch ond delve into the spirit and object of the statute. In construing a statutory or a constitutional provision, the Court should not presume that the legislature has either committed a mistake or has omitted something which was very necessary.

It was not for the Court but for others to remedy the defect, if any, found in a statutory provision. To read the word "consent" in Art. 222 by supplying the omission, would be violating the cardinal principle of interpretation. (749 G-H, 750 A) 13:3. On a full and complete consideration of the decisions classified under the various categories,· the propositions that emerge from the decided cases of this Court and other foreign courts are as follows:- [754 G-H) (1) Where the language of a statute is clear and unambigous, there is no room for the application of the doctrine of casus omissus or of pressing into service external aids or in such a case the words used by the constitution or the statute speak for themselves and it is not the intention of the court to and words or expressions merely to suit what the courts think is the supposed intention of legislature.

[755 A-BJ (2) · Where, however, the words or expression used in the constitutional or or statutory provisions are shrouded in· mystery, clouded with ~mbiguity and are unclear and unintelligible so that the dominant object and spirit of the legislature cannot be spelt out from the language, external aids in the nature of parliamentary debates, immediately proceeding the passing of the statute, the report of the select committees or its Chairmar,, the s1atement of objects and reasons of the statute, if any, or any statement made by the sponsor of the statute which is in close proximity to the actual introduction or insertion of the statutory provision so as to become, as it were, a result of the statement made, can be pressed into service in order to ascertain the real purport, intent and will of the legislature to make the constitutional provision workable.

Such aids may neither be decisive nor conclusive but they would certainly assist the courts in interpreting the statute in order to determine the a. vow~d object of t. he Act or the (:onstitution as the case may be. (755 B-EJ · s. i>. oui>h v. UNION 427. (3) Except in the aforesaid cases, a mere speech of any Member made on the floor of the House during the course of a parliamentary or legislative debate would not be admissible at all because the views expressed by the speaker may be his individual views which may or may not be accepted by the majority of the Members present in. the House.

[755 F-G] (4) Legislative history of a constitutional provision though not directly germane for the purpose of consutring a statute may, however, be used in exceptional cases to denote the beginning of the legislative process which;results ' in the logical end and the finale of the statutory provision but in no case can the ( legislative history take the place of or be a substitute for an interpretation which is in direct contravention of the statutory provision concerned. [755 G-H, 756 A-B] (5) Where the scheme of a statute clearly shows that certain words or phrases were deliberately omitted by the legislature for a particular purpose or motive it is not open to the court' to add those words either by confirming to the supposed intention of the legislature or because the insertion or the omission suits the ideology of the Judges deciding the case.

Such a course of action would amount not to interpretation but to interpolation of the statutory or constitutional provisions, as the case may be, and is against all the well established canons of interpretation of statutes. The main reason behind the principles enunciated above is that the legislature must be presumed to be aware of the expanding needs of the nation, the requirements of the people and above all, the dominant object which the legislation seeks to subserve. Thus where the language is plain and unambiguous the court is not entitled to go behind the language so as to add or supply omissions and thus play the role of a political [reformer or of a wise counsel to the legislature. [756 B-E] Heydo11's case 76 English Reports 637; A. K. Gopala11 v. The State ofMadras [1950] SCR 88; Kanai Lal Sur v. Paramnidhi Sadhukan [1958] SCR 360; M. Pentiah & Ors. v. Muddala Veeramal/appa & Ors. [1961]2 SCR 294; N. V. Joshi v. M. U, Shimpi & Anr. [1961] 3 SCR 986; Hansraj Gordhandasv. N.

H. Da~e, Asstt. Collector ofCentral Excise & Customs, Surat & Two Ors. [1969] 2 SCR 253; Commissioner of Income-Tax, Assam & Nagaland, etc. v. Shri G. Hyatt [1971] 1 sec 466; Senior Superintendent, R. M. S. Cochin & Anr. v. K. V. Gopinath, Sorter [1972] 3 SCR 530; Shri Umed v. Raj Singh & Ors. [1975] 1 sec 76; Anandji Haridas & Co. P. Ltd. v. Engineering Mazdoor Sangh & Anr, [1975] 3 seR 542; Mangalore Electric Supply Co. Ltd. v·. The Commissioner of Income Tax, West Bengal [1978) 3 sec 248; Powell v. The Kempton Park Racecourse Co. Ltd. [1899] A. C. 143; Commissioner of Income Tax, Gujarat v. Vadilal Lallubhai etc. [1973] 1 SCR 1058; State of Mysore v. R. V. Bidap [1974) 3 sec· 337; Fagu Shaw & Ors. v. The State of West Bengal [1974] 4 SCC 152; - Anandji Haridas & Co. v. Engineering Mazdoor Sangh & Anr. [1975] 3 sec 862; · The Sole Trustee, Lok Shikshana Trust v. Commissioner of Income· Tax, My1~re [1976) 1 SCC 254; State o/Tamil Nadu v.

Pyare Lal Malthotra & Ors; [)97o] 1 SCC 834; Jaisingh Jairam Tyagi & Ors. v. Mamachand Ratilal Agarwal & Ors. ' [1980] 3 SCC 162; M/s. Polestar Electronic (Pvt) Ltd. etc. v. Additional Commis· sioner, Sales Tax Anr. etc. [197811 SCC 638; Dadafi Alias Dina v. Sukhdeobabu & Ors. [1980] I SCC 621; Malinakhya Bysack v. Shyam Sunder Haldar & Ors. [1953] SCR 533; Sri Ram Ram Narain Medhi v. State of Bombay [1959] Supp. I SCR 489; Commissioner ofIncome Tax, Central Calcutta v National Taj Traders (1980] I SCC 370; Shri Gurbaksh Singh Sibbia & Ors. v. State of Punjab [1980] 2 SCC,5