JUDGMENT <NAME>, J.

1. The appellant before us was one of the judgment-debtors. The appeal arises out of an application under Section 47, Civil P. C., filed by the appellant. The suit out of which the application under Section 47, Civil P. C., arose was a suit for specific performance of a contract. There were several defendants of whom the judgment-debtor was one. The judgment-debtor' was the transferee from the original vendor who was also made one of the defendants in the suit. The appellant had purchased the said property with knowledge of the agreement for sale made with the purchaser. In the plaint which was filed one of the prayers was that the contract for sale be specifically performed.

The suit was decreed by the lower Court and the opening words of the decree were that the suit be decreed with costs. In the subsequent portion of the said decree it was stated that the defendants on getting the payment of the consideration money do execute and register a conveyance in favour of the plaintiff and the plaintiff do deposit in court the balance of the consideration money and that the defendants, do pay the costs of the suit. Having obtained that decree an application was made, in execution thereof, for possession of the property in question by the decree-holder. The execution proceedings were' resisted by the present appellant who, as I have indicated, was one of the judgment-debtors and he made an application under Section 47, Civil P. C.

The contention raised before <ORG> by the appellant was that the decree which was passed did not entitle the plaintiff to obtain possession of the property; in other words, it was contended that the decree did not direct delivery of possession but only directed the defendants to execute a conveyance and register the same on getting the purchase-money and in the circumstances the plaintiff decree-holder cannot obtain possession of the property -in execution of the said decree. This contention of the appellant was overruled by the lower Court. There was an appeal against that order. That appeal was also dismissed. Both the <ORG> in coming to the said decision relied upon the case of -- ' <CITATION> ', , where it was held that the delivery of possession was incidental to the execution of a deed of sale. Against that order the, present appeal has been filed in this Court.

2. Unfortunately the respondent did not' appear at the hearing of this appeal and the appeal was going undefended. Having regard to the importance of the question involved in this appeal we thought it proper to request some learned Advocate to argue the matter 'amicus curiae'. We requested Mr. <NAME> to help the <ORG> in this matter. He was good enough to lend his assistance and we are obliged to him for the same.

3. The learned Advocate for the appellant put forth the same contentions which were urged before the lower Courts. It was contended that the decree did not entitle the' decree-holder to obtain possession in execution of the same; in other words, the decree only directed the judgment-debtors to execute the conveyance and to register the same on receipt of the consideration money, Therefore, the learned Advocate urged, the lower Courts were wrong in allowing this decree to be executed for possession.

4. It should be remembered that- in the plaint, which was filed the first prayer was that the contract of sale be specifically performed and it should also be remembered 'that the opening words of the decree that the suit be decreed on contest with costs. The question which arises is what is the effect of the decree in these circumstances? It is true that the subsequent portions of the decree only directed the defendants to execute the conveyance and register the same and there is no specific direction. upon the defendants to give delivery of possession to the plaintiff. But does it follow therefrom that the decree which was passed did not include a direction for delivery of possession to - the decree-holder?

In the case of -- 'Herambachandra v. Jotish chandra <NAME> dealing with the question as to this form of a decree for specific performance observed that the usual form of a decree in a suit for specific performance is to declare that the agreement ought to be specifically performed and the <ORG> doth order and decree that the same be specifically performed. Following the above observations of <NAME> a Division Bench of this <ORG> in a recent decision -- ' <CITATION> ', held that the most important part of such a decree is that portion where the <ORG> directs the contract to be specifically performed, and the details which follow do not in any way limit the jurisdiction of the executing <ORG> to the particular steps which are mentioned in the decree but all other steps which ought to be taken for giving full effect to] the decree for specific performance are not only within the competence of the <ORG> but the <ORG> is bound to assist the party to that extent.

If then the decree is not to be limited only to the matters specifically mentioned therein but to all other steps which ought to be taken for giving full effect to the decree for specific performance, the next question which arises is whether or not the judgment-debtor is bound to give delivery of possession to the plaintiff in order to give full effect to the decree for specific performance; in other words, does specific performance of a contract include' delivery of possession by the vendor to the, purchaser? For this purpose reference has to be made to Section 55, T. P. Act, which Inter alia' lays down as follows:

"In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold. * * * (f) to give, on being so required, the buyer or such person as he directs, such possession of the property as its nature-admits."

Thus unless there is a contract to the contrary, giving delivery of possession to the buyer by the seller is an incident of a contract for sale and when there is a decree directing the contract to be specifically performed it includes a direction upon the vendor to give delivery of possession to the purchasers.

This was also the view taken in the -said case of to which I have already referred. <NAME> and <NAME> held in that case that in a suit for specific performance of a contract for sale of land the right to recover possession springs out of the contract which is being specifically enforced and not as a result of the execution and completion of the conveyance. The facts in that case were in all respects similar to the facts in the present case. There also the opening words of the decree were that, the suit be decreed on contest with costs. Further directions followed the said words but there was no specific direction upon the defendant to give delivery of possession to the judgment-creditor. Nonetheless their Lordships held that the defendants were bound under the said decree to give delivery of possession to the plaintiff. The reason for that decision was that the suit toeing a suit for specific performance of a contract and one of the incidents of the contract being that the seller on being so required was to give delivery of possession to the buyer and the said suit having been decreed the direction to give delivery of possession becomes a part of the decree and the defend'ant is bound to take all steps to give full effect to the decree for specific performance. As I have already indicated, we take the same view as was taken by their Lordships <NAME> and <NAME>.

5. Some other decisions were cited before us but it is not necessary for us to go into the details of those decisions. I would only mention that in a Patna decision -- 'Atal Senary v. '<NAME>', AIR 1931 Pat 179 (D) their Lordships <NAME> and <NAME> held that even if there is an omission in the plaint or in the decree about possession the executing Court is not debarred from granting the plaintiff the possession of the property. In this case, of course, it is not necessary for us to go to that extent. There was a prayer in the plaint for specific performance of the contract and the suit has been decreed which means that the contract has to be specifically performed. In the circumstances we hold that the contention of the learned Advocate for the appellant on this point, must fail.

6. The learned Advocate then contended before us that the present case is distinguishable from the cases which were cited before us because in this case his client was not a party to the agreement. As I have already indicated, the appellant before us was a purchaser of the property from the vendor with knowledge of the agreement for sale He was made a party to the suit and in our opinion rightly. The decree was passed against him. The decree directed that the contract is to be specifically performed, one of the incidents of the contract, as I have indicated, is to give delivery of possession. Therefore, the appellant against whom the decree was passed was bound to give delivery of possession to the decree-holder. The fact that he was not a party to the original agreement, in our opinion, makes no difference. He was undoubtedly a representative-of the original vendor and as such is bound by the contract into which his predecessor-in-interest had entered. In my opinion there is no substance in this contention.

7. In the result, therefore, this appeal is dismissed. There will be no order as to costs.

8. We once again express our gratitude to Mr. <NAME> for the assistance he has given to the <ORG>.

Mallick, J.

9. I agree.


PETITIONER: THE STATE OF MAHARASHTRA Vs. RESPONDENT: VISHNU RAMCHANDRA DATE OF JUDGMENT: 18/10/1960 BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SHAH, J.C. CITATION: 1961 AIR 307 1961 SCR (2) 26 CITATOR INFO : RF 1964 SC 464 (13) RF 1973 SC1227 (54) ACT: Externment--Order, if can relate to antecedents of convicted offenders--Statute, if Prospective or retrospective--Bombay Police Act, 1951 (22 of 1951), SS. 57(1), 142--Indian Penal Code , SS. 114, 380, 411. HEADNOTE: On November 16, 1949, the respondent was convicted under ss. 38o and II4 of the Indian Penal Code . On October 5, 1957, the Deputy Commissioner of Police, Bombay, acting under s. 57(1) of the Bombay Police Act passed an order externing him from the limits of Greater Bombay. Later he was prosecuted and convicted under s. 142 of the Bombay Police Act by the Presidency Magistrate for returning to the area from which he was externed. On an application for revision <ORG> acquitted the respondent upholding his contention that S. 57 of the Bombay Police Act was not retrospective and was not applicable unless the conviction on which the externment was based took place after the Act came into force. On appeal by the appellant with the special leave of this Court it was 27 Held, that though statutes must ordinarily be interpreted prospectively unless the language makes them retrospective, either expressly or by necessary implication, and penal statutes creating new offences are always prospective, penal statutes creating disabilities though ordinarily interpreted prospectively are sometimes interpreted retrospectively when the intention is not to punish but to protect the public from undesirable persons whose past conduct is made the basis of future action. <ORG> v. <NAME>, IO C.B. (N.S.) 179, <NAME> v. Birth- whistle, (1889) 58 L.J. (N.S.) M.C. 158, <NAME> v. <NAME>,  IO Q.B. 195, Ex Parte Pratt,  12 Q.B. 334, Bourke v. <NAME>,  I Q.B. 725, <CITATION> , A.I.R. 1957 Cal. 33, <CITATION> , A.I.R. 1953 Bom. 183, The <NAME> v. Inhabitants of St. Mary Whitechapel,  12 Q.B. 120 (E) : 116 E.R. 811 and <NAME> v. <NAME>,  1 K.B. 551, considered and applied. Section 57 of the Bombay Police Act did not create a new offence but was designed to protect the public from the activities of undesirable persons convicted of particular offences and enabled the authorities to take note of their activities in order to put them outside the areas of their activities for preventing any repetition of such activities in the future. The verb " has been " as used in S. 57 meant " shall have been Legislation which takes note of a convicted offender's antecedents for restraining him from his acts cannot be said to be applied retrospectively as long as the action taken against him is after the Act comes into force. The Act in question was thus not applied retrospectively but prospectively. An externment order must be bona fide and must relate to a conviction which is sufficiently proximate in time. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 78 of 1959.

Appeal by special leave from the judgment and order dated November 25, 1958, of the former <ORG> in Criminal Revision Application No. 1393 of 1958 arising out of the judgment and order dated September 18, 1958, of the Presidency Magistrate 11 Class, Mazagaon at Bombay in Case No. 1101/P of 1958.

<NAME>, for the appellant.

The respondent did not appear.

1960. October 18. The Judgment of the Court was delivered by <NAME> an appeal by the State of Bombay, with the special leave of this Court, against the order of acquittal by <ORG> of the respondent, <NAME>, who was prosecuted under s. 142 of the Bombay Police Act and sentenced to six months' rigorous im- prisonment by the Presidency Magistrate, <ORG>, Mazagaon, Bombay.

On November 16, 1949, <NAME> was convicted under s. 380 and 114 of the Indian Penal Code , and sentenced to one month's rigorous imprisonment. On October 15, 1957, the Deputy 'Commissioner of Police, Bombay, acting under s. 57(a) of the Bombay Police Act , passed an order against <NAME> which was to operate for one year, externing him from the limits of Greater Bombay. At that time, a prosecution under s. 411 of the Indian Penal Code was pending against <NAME>, and he was not immediately externed, to enable him to attend the case. This prosecution came to an end on July 10, 1958, and resulted in his acquittal. Immediately afterwards, a constable took him outside the limits of Greater Bombay, and left him there. The prosecution case was that he returned to Greater Bombay, and was arrested at Pydhonie on August 24, 1958. He was prosecuted under s. 142 of the Bombay Police Act. His plea that he was forcibly brought back to Pydhonie and arrested was not accepted by the Presidency Magistrate, and he was convicted.

He filed a revision application, which was heard by a learned single Judge of <ORG>. Three contentions were raised before <ORG>. The first was that the Deputy Commissioner of Police had not applied his mind to the facts of the case before making the order of externment. The second was that s. 57 of the Bombay Police Act was prospective, and could not be made applicable, unless the conviction on which the action of externment was based, took place after the coming into force of that Act. The third was that the belief entertained by the Deputy Commissioner that <NAME> was likely to engage himself in the commission of an offence similar to that for which he was prosecuted was based on the prosecution which was then pending, and that that ground disappeared after his acquittal. <ORG> did not consider the first and the third grounds, because it held that the second ground was good.

Section 57 of the Bombay Police Act reads as follows: " Removal of persons convicted of certain offences- If a person has been convicted-

(a) of an offence under Chapter XII, XVI or XVII of the Indian Penal Code (XLV of 1860), or

(b) twice of an offence under section 9 or 23 of the Bombay Beggars Act, 1945 (Bom. XXIII of 1945,) or under the Bombay Prevention of Prostitution Act, 1923 (Bom. XI of 1923), or

(c) thrice of an offence within a period of three years under section 4 or 12A of the Bombay Prevention of Gambling Act, 1887 (Bom. IV of 1887), or under the Bombay Prohibition Act, 1949 (Bom. XXV of 1949) the Commissioner, the District Magistrate or the Sub-Divisional Magistrate specially empowered by the State Government in this behalf, if he has reason too believe that such person is likely again to engage himself in the commission of an offence similar to that for which he was convicted, may direct such person to remove himself outside the area within the local limits of his jurisdiction, by such route and within such time as the said officer may prescribe and not to enter or return to the area from which he was directed to remove himself ".

In reaching his conclusion the learned single Judge observed that the legislature had used the present participle " has been " and not the past participle in the opening portion of the section, and that this indicated that the section was intended to be used only where a person was convicted subsequent to the coming into force of the Act. He further observed that being a penal section, it had to be interpreted prospectively. He repelled an argument of the Assistant Government Pleader that s. 57 merely re-enacted the provisions of s. 27 of the City of Bombay Police Act, 1902, and that a liability incurred under the older Act was preserved by s. 167 of the Bombay Police Act of 1951. Observing further that the Deputy Commissioner of Police at the time of the passing of the order could not be said to have entertained a belief about the activities of <NAME> based upon his conviction in the year 1949, he held that the order of externment must be regarded as invalid for that reason and also on the ground that the conviction was not after the coming into force of the Act. At the hearing before us, the respondent was not represented. We have heard Mr. <NAME> in support of the appeal, and, in our opinion, <ORG> was not right in the view it had taken of s. 57 of the Act. The question whether an enactment is meant to operate prospectively or retrospectively has to be decided in accordance with well- settled principles. The cardinal principle is that statutes must always be interpreted prospectively, unless the language of the statutes makes them retrospective, either expressly or by necessary implication. Penal statutes which create new offences are always prospective, but penal statutes which create disabilities, though ordinarily interpreted prospectively, are sometimes interpreted retrospectively when there is a clear intendment that they are to be applied to past events. The reason why penal statutes are so construed was stated by <ORG>, in <ORG> v. <NAME> (1) in the following words: "Those whose duty it is to administer the law very properly guard against giving to an Act of Parliament a retrospective operation, unless the intention of the legislature that it should be so construed is expressed in clear, plain and unambiguous language; because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should be made unlawful by some new enactment ". This principle has now been recognised by our Constitution and established as a Constitutional restriction on legislative power.

(1) 10 C.B. (N.S.) 179, 191.

There are, however, statutes which create Do new punishment, but authorise some action based on past conduct. To such statutes, if expressed in language showing retrospective operation, the principle is not applied. As Lord <NAME>, C. J., observed during the course of arguments in <NAME> v. <NAME> (1):

" Scores of Acts are retrospective, and may without express words be taken to be retrospective, since they are passed to supply a cure to an existing evil." Indeed, in that case which arose under the Married Women (Maintenance in Case of Desertion) Act, 1886, the Act was held retrospective without express words. It was said:

" It was intended to cure an existing evil and to afford to married women a remedy for desertion, whether such desertion took place before the passing of the Act or not." Another principle which also applies is that an Act designed to protect the public against acts of a harmful character may be construed retrospectively, if the language admits such an interpretation, even though it may equally have a prospective meaning. In <NAME> v. <NAME> (2), which dealt with the disqualification of persons selling spirits by retail if convicted of felony, the Act was applied retrospectively to persons who were convicted before the Act came into operation. Cock burn, C. J., observed:-

"If one could see some reason for thinking that the intention of this enactment was merely to aggravate the punishment for felony by imposing this disqualification in addition, I should feel the force of Mr. <NAME>'s argument, founded on the rule which has obtained in putting a construction upon statutes that when they are penal in their nature they are not to be construed retrospectively, if the language is capable of having a prospective effect given to it and' is not necessarily retrospective. But here the object of the enactment is not to punish offenders, but to protect the public against public houses in which spirits are retailed being kept by persons of doubtful character ... On looking at the Act, the words used seem (1) (1889) 58 L.J. (N.S.) M.C. 158.

(2) [1875] 10 Q.B. 195.

to import the intention to protect the public against persons convicted in the past as well as in future; the words are in effect equivalent to 'every convicted felon'." In the same case, <NAME>, J., expressed himself forcefully when he observed:-

" I quite agree, if it were simply a penal enactment, that we ought not to give it a retrospective operation ; but it is an enactment with regard to public and social order, and infliction of penalties is merely collateral." Similarly, in Ex Parte Pratt (1), which dealt with the words " a debtor commits an act of bankruptcy " to enable the <ORG> to make a receiving order, <NAME>, L. J., gave the words a retrospective operation, observing:-- " I think that no reliance can be placed on the words I commits' as showing that only acts of bankruptcy committed after the Act came into operation are intended." In the same case, the observations of <NAME>, L. J., were:- " I think that the more the Act is studied the more it will be found that it is framed in a very peculiar way. I do not mean to say that it is inartistically framed. I think it is framed on the idea that a bankruptcy code is being constructed, and when the present tense is used, it is used, not in relation to time, but as the present tense of logic." <NAME>, L. J., added :-

" I entirely agree with <NAME>, L. J., as to the meaning of the present tense in the section ; it is used, I think, to express a hypothesis, without regard to time." In <NAME> v. <NAME> (2), Lord <NAME>, M. R., speaking of these observations of <NAME> and <NAME>, LL. J., observed :- " ... the case seems to show that when the present tense is used in this statute (s. 32 of the Bankruptcy Act, 1883) the time to be considered is the time at (1) [1884] 112 Q.B. 334.

(2) [1894] I Q.B. 725.

which the <ORG> has to act, and not the time at which the condition of things on which it has to act came into existence."

Applying the above principles, Lord <NAME>, M. R., held that the section was not retrospective but prospective, because the important time was that at which it had to be considered whether the person was disqualified and it related to a time after the passing of the Act. He, however, added that " even if it could be said that it is retrospective its enactments are solely for the public benefit, and the rule that restricts the operation of a penal retrospective statute does not apply, because this statute is not penal." These principles, though not unanimously expressed, have been accepted in later cases both in England and in India. <CITATION> (1), <NAME>, C. J., observed, <NAME>, J. (as he then was), concurring:- " I may state, however, that in spite of the ordinary and I might almost say cardinal rule of construction that statutes, particularly statutes creating liabilities, ought not to be so construed as to given them a retrospective operation unless there is a clear provision to that effect or a necessary intendment implied in the provisions, there is another principle on which <ORG> have sometimes acted. It has been held that where the object of an Act is not to inflict punishment on anyone but to protect the public from undesirable persons, bearing the stigma of a conviction or misconduct on their character, the ordinary rule of construction need not be strictly applied." <CITATION> (2), the same principles were applied by <NAME>, C. J. and <NAME>, J. (as he then was), and reference was made also to The Queen v. Inhabitants of St. Mary Whitechapel (3) where Lord <NAME>, C. J., in his judgment observed:- " ... it was said that the operation of the statute was confined to persons who had become widows after (1) A.1 R. 1957 Cal. 33,38.

(2) A.I.R. 1953 Bom. 183, z86, 187.

(3) [1848) 12 Q.B. 120 (B): 116 E.R. 811.

the Act passed, and that the presumption against a retrospective statute being intended supported this construction; but we have before shown that the statute is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from time antecedent to its passing." Now s. 57 of the Bombay Police Act, 1951, does not create a new offence nor makes punishable that which was not an offence. It is designed to protect the public from the activities of undesirable persons who have been convicted of offences of a particular kind. The section only enables the authorities to take note of their convictions and to put them outside the area of their activities, so that the public may be protected against a repetition of such activities. As observed by <NAME>, J., in <NAME> v. <NAME> (1), "No man has such a vested right in his past crimes and their consequences as would entitle him to insist that in no future legislation shall any regard whatever be had to his previous history."

An offender who has been punished may be restrained in his- acts and conduct by some legislation, which takes note of his antecedents; but so long as the action taken against him is after the Act comes into force, the statute cannot be said to be applied retrospectively. The Act in question was thus not applied retrospectively but prospectively. It remains only to consider if the language of the section bars an action based on past actions before the Act was passed. The verb "has been" is in the present perfect tense, and may mean either " shall have been " or " shall be ". Looking, however, to the scheme of the enactment as a whole and particularly the other portions of it, it is manifest that the former meaning is intended. The verb " has been " describes past actions, and, to borrow the language of <NAME>, L.J., in Ex Parte Pratt (2), " is used to express a hypothesis, without regard to time ". An externment order, however, to satisfy the (1) [1913] 1 K.B. 551, 556.

(2) [1884] 12 Q.B- 334-

requirements of s. 57 of the Bombay Police Act, must be made bona fide, taking into account a conviction which is sufficiently proximate in time. Since no absolute rule can be laid down, each case must depend on its own facts. In the result, we set aside the acquittal, and remit the case to <ORG> for disposal on the other points urged before it and in the light of observations made here by us.

Appeal allowed.


PETITIONER: SUBHASH SHARMA AND OTHERS Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT26/10/1990 BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) VENKATACHALLIAH, M.N. (J) PUNCHHI, M.M. CITATION: 1991 AIR 631 1990 SCR Supl. (2) 433 1991 SCC Supl. (1) 574 JT 1990 (4) 245 1990 SCALE (2)836 ACT: Constitution of India: Articles 32, 124 and 217--Ap- pointment of Judges of <ORG> and <ORG>" with Chief Justice of India--Primacy of--Fixation of Judges strength--Justiciability--Referred to Nine Judge Bench. HEADNOTE: In these petitions in the nature of public interest litigation under Article 32 of the Constitution, the relief asked for is one for mandamus to <ORG> to fill the vacancies of Judges in <ORG> and the several <ORG> of the country and ancillary orders or direc- tions in regard to the relief of filling up of vacancies. In response to the rule, <ORG>, relying upon <CITATION> ,  2 SCR 365, raised a preliminary objection as to the justiciability of the issue. The objection, however, was later withdrawn by the succeed- ing Attorney General who made a statement that it was the constitutional obligation of <ORG> to provide the sanctioned Judge strength in the superior courts and default, if any, was a matter of public interest, and the writ petitions requiring a direction to <ORG> to fill up the vacancies were maintainable. Disposing of the petitions, this Court, HELD: (1) The ratio in <NAME> case left the matter of fixing Up Of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the prescribed procedure, but once the sanctioned strength was determined it was the obligation of <ORG> to maintain the sanctioned strength in the superior Courts. [437H; 438A] (2) It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The <ORG> therefore be- comes the most prominent and outstanding wing of the Consti- tutional System for fulfilling the mandate of the Constitu- tion. 434 For its sound functioning, it is necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensuring adequate strength. [440E-F] (3) For the availability of the appropriate atmosphere where a Judge would be free to act according to his con- science it is necessary that he should not be over burdened with pressure of work which he finds it physically impossi- ble to undertake. This necessarily suggests that the judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided. [441F-G] Bradley v. <NAME>, 80 US 335 1871, referred to. (4) It is a matter for immediate attention of all con- cerned--and of Government in particular--that the Adminis- tration of Justice is made a plan subject and given appro- priate attention. [444C] (5) Backlog in Courts has become a national problem. The adjudicatory process is being blamed for not equalling itself to the challenge of the times. There is a general complaint that the judicial system is on the verge of col- lapse. It is, therefore, the obligation of the constitution- al process to keep the system appropriately manned. There is no justification for the sluggish move in such an important matter. [447C-D] (6) If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through <ORG> and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinarily be any justi- fication for reopening the matter merely because there has been a change in the personal of the Chief Justice or the Chief Minister of the State concerned. This has to be the rule and the policy adopted by <ORG> should immediately be given up. [448B-D] (7) In the functioning of public offices there is and should be continuity of process and action and all objective decisions taken cannot be transformed into subjective issues. That being the position, recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief 435 Justice or the Chief Minister justifying the same should not be reopened and if in a given case <ORG> is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case. [448E-F] (8) Consistent with the constitutional purpose and process it becomes imperative that the role of the institu- tion of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to <ORG> and the <ORG> of the States. This aspect dealt with in <NAME>'s case requires re-consideration by a larger bench. [450E] (9) In India the judicial institutions, by tradition, have an avowed a political commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of "consultation" has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed, vital. The constitutional values cannot be whittled down by calling the appointment of Judges as an executive act. The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any `power' or `right' to appoint judge. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories. [457D-F] (10) The executive, on whose advice the President acts, as a participant in the process has its own important and effective role. To say that the power to appoint solely vests with the executive and that the executive, after bestowing such consideration on the result of consultations with the judicial organ of the State, would be at liberty to take such decision as it may think fit in the matter of appointments, is an over-simplification of a sensitive and subtle constitutional sentence subversive of the doctrine of judicial independence. [457F-G] (11) The word "consultation" is used in the constitu- tional provision in recognition of the status of the high constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice <NAME>'s phrase, "to stick in the bark of words". [458B] (12) Judicial Review is a part of the basic constitutional structure 436 and one of the basic features of the essential Indian Con- stitutional policy. This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate. [458C] (13) It might under certain circumstances be said that Government is not bound to appoint a judge so recommended by the judicial wing. But to contemplate a power for the execu- tive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power. [458D-E] (14) The purpose of the `consultation' is to safeguard the independence of the judiciary and to ensure selection of proper persons. The matter is not, therefore, to be consid- ered that the final say is the exclusive prerogative of the executive government. The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role. "Consultation" should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation. [458F- G] (15) There are preponerant and compelling cousideratious why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its posses- sion which may indicate that the appointment is otherwise undesirable. [458G-H] (16) The correctness of the opinion of the majority in <NAME> case relating to the status and importance of consultation, the primacy of the position of the Chief Justice of India and the views that the fixation of Judge strength is not justiciable should be reconsidered by a larger bench. [459B] (17) In view of the fact that the bulk of vacancies in the <ORG> have been filled up, and in view of the assurance held out by the learned Attorney General that prompt steps are being taken to fill up the remaining vacan- cies, further monitoring for the time being is not neces- sary. [459F] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Civil) Nos. 13003 of 1985, 1303 of 1987 and 302 of 1989.

(Under Article 32 of the Constitution of India) <NAME> in person.

<NAME>, Ms. <NAME> (N.P.), <NAME>, <NAME> and Ms. <NAME> for the Petitioners. <NAME>, Solicitor General, Ms. <NAME>, <NAME>, <NAME>, (For Kerala), <NAME> (For Assam), <NAME> (For Orissa), Ms. <NAME>, <NAME>, <NAME> (For Bihar), <NAME> (For Madhya Pradesh), Ms. <NAME> (For Chandigarh), Ms. <NAME> (For U.P.), <NAME> (For Tamil Nadu), <NAME> (For Andhra Pradesh), Ms. <NAME> & Ms. <NAME> (For Manipur), <NAME>, <NAME> (For Gujarat). <NAME> (For Haryana), <NAME> (For Maharashtra), <NAME> (For Rajasthan), Ms. <NAME> (For Manipur) and <NAME> (For Karnataka) the Respond- ents.

The Judgment of the Court was delivered by <NAME>, CJ. These are applications under Arti- cle 32 of the Constitution. The first petition is by an advocate practising in this Court; the second by <ORG> and the last by the Honorary Secretary of <ORG>. These applications are in the nature of public interest litiga- tion. The relief asked for is one for mandamus to <ORG> to fill up the vacancies of Judges in <ORG> and the several <ORG> of the country and ancil- lary orders of directions in regard to the same. The peti- tion from Bombay is confined to the relief of filling up of vacancies in <ORG>. Since common please were advanced and the relief sought was of similar nature, these applications have been clubbed together and heard from time to time.

In response to the rule, <ORG> took the stand through the Attorney General that the petitions were not maintainable and the filling up of the vacancies in the superior courts was not a justiciable matter. Reliance was placed on the decision of this <ORG> in the case' of <CITATION> ,  2 SCR 365. The objection raised by the learned Attorney General was overruled by the <ORG> by drawing a distinction between fixing the Judge strength in the <ORG>s or selection of judges on one side and the filling up of vacancies on the basis of sanctioned strength on the other. This <ORG> as an interim measure took the view that while the ratio in <NAME> case left the matter of fixing up of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the prescribed procedure, once the sanctioned strength was determined it was the obligation of <ORG> to maintain the sanctioned strength in the superior <ORG>s and these cases were allowed to proceed.

Mr. <NAME>, the succeeding Attorney General, withdrew the objection regarding this Court's jurisdiction and made a statement that he was of the view that it was the constitutional obligation of <ORG> to provide the sanctioned Judge strength in the superior courts and the default, if any, was a matter of public interest and the writ petitions requiring a direction to <ORG> to fill up the vacancies were maintainable.

I The superior judiciary is divided into the Union Judici- ary covered by Chapter 4 of Part V and the High Courts in the States are covered by Chapter 5 of Part VI of the Con- stitution. Article 124(1) of the Constitution provides: "There shall be <ORG> of India consisting of a Chief Justice of India and, until <ORG> by law pre- scribes a larger number, of not more than seven other Judges."

From time to time the Judge strength in <ORG> has been expanded and by <ORG> (Number of Judges) Amendment . Act, 1986 (22 of 1986), the existing number has been fixed at 25 apart from the Chief Justice. Article 2 14 provides:

"There shall be <ORG> for each State." But there are 18 <ORG> in all on account of the fact that <ORG> at Guwahati exercises jurisdiction over six States including Assam; <ORG> at Chandigarh is common for the States of Punjab and Haryana and the juris- diction of <ORG> of Bombay extends over Goa. There is <ORG> at Delhi though the mandate of Article 2 14 does not apply. Article 2 16 provides:

"Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint."

From time to time administratively the Judge strength of the different <ORG> has been retired. At the time these matters were first placed before us the total strength was 462 but later it has been enhanced to 470. The enhancement has been on account of the fact that in the Judge strength of the <ORG> of Calcutta,. Himachal Pradesh, Karnata- ka, Madras and Rajasthan had ten additions in all and the sanctioned strength of <ORG> was reduced by two. There was a time during the pendency of these writ petitions affidavit filed before this Court on behalf of <ORG> the position as on 20th of Febru- ary, 1990, showed that as against the sanctioned strength of 462,368 had been filled up and the vacancies were 94 in all. By 16.8.1980, the sanctioned strength had gone up to 470 and as against these, 440 appointments had been made. The total posts to be filled up were 30 in number--19 being permanent and 11 additional vacancies. We gather that by now some more appointments have been made and the number of unfilled posts has been reduced to around 22.

These cases were adjourned from time to time with inter- im directions calling upon <ORG> to fill up the vacancies within specified dates. As a result of monitoring by the <ORG> by interim directions in these petitions, the position has somewhat eased but 22 vacancies still remain to be filled up. With retirements and other cognate processes the number of vacancies keeps increasing from time to time. We had made it clear to the learned Attorney General at the several interlocutory hearings that these petitions and the <ORG>'s directions have nothing to do with the actual selection of particular Judges to be appointed in the vacan- cies and that was a matter exclusively within the domain of the constitutional scheme and concern of the concerned constitutional functionaries. These petitions are concerned with the filling up of vacancies and discharge of the con- stitutional obligation of the <ORG> to the nation in that behalf. We may point out that filing of these writ petitions and the proceedings of the <ORG> have helped the <ORG> to fill up the vacancies to a considerable extent by making the various constitutional authorities con- scious of the urgency of problem and of their responses. We have noticed the fact that while the process of filling up of vacancies was considerably slow prior to the general election held in November, 1989, there has been an improve- ment in the process from January this year. We have, howev- er, not been able to appreciate the stand taken in some of the affidavits of the <ORG> that as the place and process of appointments has been expedited, the writ-petitions be taken to have served their purpose and do not survive. We recall several occasions when our interim directions were received not with any conspicuous enthusiasm and other occasions when inspite of assurance and undertak- ings no progress was noticed.

II For more than six scores of years <ORG> have been functioning in this country. Earlier appeals lay from the <ORG> to <ORG> in certain situations. Under the Government of India Act, 1935, <ORG> was stipulated which started functioning from 1937. With Inde- pendence of India in 1947, the jurisdiction of <ORG> got repealed. Our Constitution provided for <ORG> for the entire country and <ORG> for every State. The superior judiciary in India now, therefore, consists of <ORG> and the <ORG>. Article 50 in Part IV of the Constitution required the State to take steps to separate the <ORG> from the <ORG> in the public services of the States. By now that has been done. The constitutional scheme postulates Rule of Law and inde- pendence of the judiciary. With a view to providing the same as an indispensable factor for the sustenance of the demo- cratic pattern of society, provisions have been made in the Constitution.

The Preamble of our Constitution stipulates justice--social, economic and political for all citizens of India. It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The <ORG> therefore be- comes the most prominent and outstanding wing of the Consti- tutional System for fulfilling the mandate of the Constitu- tion. For its sound functioning, it is, therefore, necessary that there must be an efficient judicial system and one of the factors for providing the requisite efficiency is ensur- ing adequate strength.

For Rule of Law to prevail, judicial independence is of prime necessity. Dr. <NAME>, speaking about individual independence of Judges once said: "The Judge must be made independent of most of the re- straints, checks and punishments which are usually called into play against other public officers ............. He is thus protected against some of the most potent weapons which a democracy has at its command: he receives almost complete protection against criticism; he is given civil and criminal immunity for acts committed in the discharge of his duties; he cannot be removed from office for any ordinary offence, but only of misbehaviour of a flagrant kind, and he can never be removed simply because his decisions happen to be disliked by the <ORG>, the <ORG>, or the people. Such independence is unquestionably dangerous, and if this free- dom and power were indiscriminately granted the results would certainly prove to be disastrous. The desired protec- tion is found by picking with special care the men who are to be entrusted with these responsibilities, and then para- doxically heaping more privileges upon them to stimulate their sense of moral responsibility, which is called in as a substitute for the political responsibility which has been removed. The Judge is placed in the position where he has nothing to loss by doing what is right and little to gain by doing what is wrong; and there is therefore every reason to hope that his best efforts will be devoted to the conscien- tious performance of his duties."

In <NAME> v. <NAME>, 80 US 335 (1871) it was pointed out: "Our judicial system is guided by the principle that a judicial officer, in exercising the authority vested in him must be free to act upon his own convictions, without appre- hension of personal consequences to himself."

For the availability of an appropriate atmosphere where a Judge would be free to act according to his conscience it is necessary, therefore, that he should not be over burdened with pressure of work which he finds it physically impossi- ble to undertake. This necessarily suggests that the Judge strength should be adequate to the current requirement and must remain under constant review in order that commensurate Judge strength may be provided.

Within a few years of functioning under the aegis of the Constitution our people started realising that there was backlog in courts and the same was on rapid and constant increase. <ORG> in its 14th Report in Septem- ber, 1958, dealt with the question adequacy of judicial strength as a matter of special importance. It pointed out:

"The fundamental rights conferred by the Constitution and resort to the remedies provided for their enforcement have contributed largely to the increase in the volume of work in <ORG>. Applications for the enforcement of funda- mental rights, applications seeking to restrain the usurpa- tion of jurisdiction by administrative bodies and applica- tions or suits challenging the constitutionality of laws have made large additions to the pending files of <ORG>. It has to be observed that many laws have come in for challenge in the courts on the ground of their incon- sistency with the Constitution. The complexity of recent legislation has resulted in a large number of novel and difficult questions having been brought before <ORG>. Their decision have not only taken longer time but have led not infrequently to reference to Full Benches which necessarily divert the available judge power from what may be called normal judicial work. As a result of this large addition to their work, the disposal of ordinary civil and criminal work in <ORG> has suffered very consider- ably. This increase of work and its specially difficult and novel character can well be regarded as an important cause of the accumulation of old cases."

<ORG> emphasised the position by further say- ing:

"Governments could not have been unaware, at any rate from 1950 onwards, that the files of <ORG> were being loaded with a large amount of additional work. The large number of writ applications and applications questioning the constitutionality of enactments and rules flamed thereunder must have come directly to the notice of the Governments. Responsible persons cannot also have failed to notice that the disposal of these complicated and in a sense novel matters consumed a great deal of the time of <ORG> which had the natural consequence of clogging the normal and usual work."

Inspite of highlighting of the position by <ORG> and the warning administered by it, the process of providing adequate judge strength commensurate with the volume of litigation has been usually slow. Subsequent reports of <ORG> have referred to this aspect.

The Commission took note of the position that due con- sideration was not being bestowed upon the administration of justice and the importance of the subject was not realised by the Executive authorities. Lack of adequate financial provision and absence of appropriate funding of schemes for improvement often led to abandonment of contemplated whole- some measures and made long term planning difficult. In fact, the plea from several relevant quarters that `Adminis- tration of Justice' should be treated as a `plan subject' has not been entertained all these years. It has been so more on account of lack of appropriate appreciation of the importance of the matter than anything also. Lord <NAME> of the Preface to the Law in Crisis by Professor <NAME> has said:

"We are passing through a critical moment in the history of mankind. Civilised society appears to be disintegrating. Minorities openly defy the law for their own ends. Terror- ists seize hostages and threaten to-kill them. Workmen set up picket hives outside power stations and threaten to bring the country to a standstill. Students occupy buildings and prevent the running of their universities. Only too often their threats succeed. The peaceful majority give in. They surrender.

Moral and spiritual values, too, appear to be at a low ebb. The sanctions of religion have lost their force. Schools and teachers take much interest in social sciences. They explain how people behave. They seek to help the mis- fits. But they do not set forth standards of conduct. They do not tell people how to behave. The only discipline to do this is the discipline of law. It is the law which teaches that men must not resort to violence to obtain their ends; that they must keep their promises; they must not injure their neighbours and they must act fairly. The law covers the whole range of human behaviour and says what men must do and must not do ....... Law which is the very foundation of the civilized society is in peril."

Sir <NAME> in one of his lectures pointed out that long indifference to the legal system and to all that goes with it is the result of many generations of neglect in communicating to the layman some understanding of the very ground work of the legal system under which he spends his life. Religion, politics, art, literature--all these are taught as part of general education, but not the fundamentals concerning the administration of law, nor the history of liberty nor the need for public vigilance over its legal system. It is not surprise that faith and confi- dence in the law are steadily declining and legal systems, by and Large, are losing their base of popular support on which they must ultimately rely.

We are living in an age when all traditional institu- tions are under scrutiny, suspicion and challenges of reas- sessment. If the current mood of disillusionment infects the core of the law and its institutions, we may have lost our last opportunity for the preservation of freedom under the Law. It is, therefore, a matter for immediate attention of all concerned--and of Government in particular--that the need is recognised and <ORG> is made a plain subject and given appropriate attention. It is true that the number of <ORG> compared to 1950 has increased in later years. It is also true that the Judge strength has been increased. It is, however, equally true that the enhancement has not been commensurate. After a lot of exercise, per year disposal per Judge of main cases has been fixed at 650. If this be the basis, perhaps no <ORG> in India excepting that for Sikkim has adequate judge strength.

e gather that <ORG> where the sanc- tioned strength has been reduced by 2, has a sanctioned strength 22 while its pendency as on 1.1. 1990 being 34,330 cases justifies a Judge strength of almost 50 on the basis of the measure of 650 cases per Judge per year. We intend to indicate that there was no justification for reduction of the sanctioned strength.

We are alive to the position that in <NAME> case this aspect has been held to be not justiciable. We do not agree with the opinion expressed by the majority on this aspect and are of the opinion that that aspect requires reconsideration. For the present we suggest to Government that the matter should be reviewed from time to time and steps should be taken for determining the sanctioned strength in a pragmatic way on the basis of the existing need. If there be no correlation between the need and the sanctioned strength and the provision of judge-manpower is totally inadequate, the necessary consequence has to be backlog and sluggish enforcement of the Rule of Law.

III Another reason directly contributing to backlog and its increase is the non-filling up of the sanctioned vacancies. Under the traditional process followed the matter, steps for filling up of vacancies have been initiated by the Chief Justice of <ORG> six months in advance of the occurrence of the vacancy. The date of retirement of a Judge is known on the date he enters office unless vacancy is caused by resignation, removal by impeachment or death. Apart from these eventualities, the date of vacancy in the post being known for years before there can really be no justifiable excuse for inaction in the initiation of steps for filling up the vacancy well in advance of its actual occurrance. The existing scheme of appointment involves a process of consultation with the Chief Justice, the Governor of the State, the Chief Justice of India before the Presi- dent of India makes the appointment. The involvement of the Governor brings in the Chief Minister and Presidential action involves <ORG>. If, however, every functionary associated with the process remains cognisant of the constitutional obligation involved in the matter we see no justification as to why for selection of the incumbent more than 3 to 4 months should be necessary. The system should be so perfect and smooth that with the retirement of one Judge his successor should be ready to step in and by this process not a day's judge strength should be lost to <ORG>.

The question of appointment of Judge was the subject- matter of the 80th Report of <ORG>. It referred to its earlier Report (1979) where it was said: "As mentioned earlier, though the sanctioned judge strength of <ORG> in the country during the year 1977 was 352, only 287 judges on an average were in position. Like- rise, in the year 1976, even though the sanctioned strength was 351, only 292 judges were in position. Leaving aside the judges who were entrusted with work outside their normal duties, the fact remains that the number of judges in posi- tion in both the years was less than the sanctioned strength. This disparity between the sanctioned strength, and the number of judges in position was apparently due to the fact that vacancies in the post were not filled in as soon as they occurred. It is our considered opinion that delay in filling in the vacancies is one of the major con- trolling factors reasonsible for the filling accu-

mulation of arrears. In our opinion, when a vacancy is expected to arise out of the retirement of a judge, steps for filling in the vacancy should be initiated six months in advance. The date on which such a vacancy will normally arise is always known to the Chief Justice of <ORG> and also to others concerned. It should be ensured that necessary formalities for the appointment of a Judge to fill the vacancy are completed by the date on which the vacancy occurs."

Several other reasons contributing to the non-filling up of vacancies were brought to the fore in the Report. Obviously, the reports furnished by <ORG> from time to time have not received adequate consideration in the hands of the appropriate authorities and administration of justice has not received its due attention. This has resulted in the_ obstinate problem of backlog.

Prolongation of litigation is perhaps a necessary evil of our type of adjudicatory system. <NAME> (Law Tracts) listed the grievances of his times against the laws of England and the Justice system in the following way: "Certain it is that our laws, as they now stand, are subject to great uncertainties, and variety of opinion, delays and evasions whereof ensueth: (i) that the multiplicity and length of suits in great; (ii) that the contentious person is armed and the honest subject wearied and oppressed; (iii) that the judge is more absolute, who, in doubtful cases, hath a greater scope and liberty; (iv) that the chancery courts are more filled, the remedy of law being often absent and doubtful; (v) that the ignorant lawyer shroudeth his ignorance of law, in that doubts are frequent and many; and

(vi) that men's assurances of their lands and estates by patents, deeds, wills are often subject to question and hollow ....... "

<NAME>'s description to a considerable extent represents even today's situation. The volume of litigation has in- creased while there has been no commensurate expansion of the adjudicatory machinery.

When interim directions made in these cases were not yielding results, the Attorney General mentioned to us on repeated occasions that the consultations were taking time. Very often, while the Chief Justice of <ORG> had made his recommendation, the response from the Chief Minister through the Governor of the-State was not forthcoming, he used to say. Repeated reminders were being sent from the Union Government and they went unheaded. On one occasion to meet the stalemate we had indicated in an interlocutory order that a time frame must be set for the response of the constitutional authority in the State and if there was no response forthcoming within the time, <ORG> should be in a position to proceed with the recommendation of the Chief Justice of <ORG>. That even bore no fruit.

Backlog in <ORG> has become a national problem. The adjudicatory process is being blamed for the equalling itself to the challenge of the times. There is a general complaint that the judicial system is on the verge of col- lapse. It is, therefore, the obligation of the constitution- al process to keep the system appropriately manned. We have found no justification for the sluggish move in such an important matter.

We may, at this stage, advert to the Constitution (Sixty-Seventh Amendment) Bill, 1990, which is pending before the <ORG>. In the statement of objects and reasons of this Bill, it has been stated:

"<ORG> have in the recent past announced their intention to set up a high level judicial commission, to be called <ORG> for the ap- pointment of Judges of <ORG> and of <ORG> and the transfer of Judges of <ORG> so as to obviate the criticisms of arbitrariness on the part of the Executive in such appointments and transfers and also to make such appointments without any delay. <ORG> in their 121st Report also emphasised the need for a change in the system."

This part of the statement obviously accepts the posi- tion that Government are satisfied that there is basis for criticism of the arbitrariness on the part of the <ORG> and the modality adopted following <NAME> ratio has led to delay in the making of appointments which the Consti- tutional Amendment seeks to eliminate.

From the affidavits filed by <ORG> and the statements made by learned Attorney General on the different occasions when the matter was heard. We found that <ORG> had adopted the policy of reopening recommendations even though the same had been cleared by the Chief Justice of India on the basis that there had in the meantime been a change in the personnel of the Chief Justice of <ORG> or the Chief Minister of the State. The selection of a person as a Judge has nothing personal either to the Chief Justice of <ORG> or the Chief Minister, of the State. <ORG> is an institution of national importance wherein the person appointed as a Judge functions in an impersonal manner. The process of selection is intended to be totally honest and upright with a view to finding out the most suitable person for the vacancy. If in a given case the Chief Justice of <ORG> has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through <ORG> and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, there cannot ordinari- ly be any justification for reopening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned. We intend to make it clear that this has to be the rule and the policy adopted by <ORG> as has been indi- cated to us in Court by the learned Attorney General should immediately be given up. In the functioning of public of- fices there is and should be a continuity of process and action and all objective decisions taken cannot be trans- formed into subjective issues. That being the position, .recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief Justice or the Chief Minister justifying the same should not be reopened and if in a given case <ORG> is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be a fresh look at the matter only if the Chief Justice of India permits such a review of the case. In fact, as an interim measure we had indicated that this should be the position but we find that steps contrary to the expression of this opinion have been taken. That is why we have found it necessary to re- state the opinion. Government shall take appropriate action in accordance with this principle.

IV An independent non-political judiciary is crucial to the sustenance of our chosen political system. The vitality of the democratic process, the ideals of social and economic egalitarianism, the imperatives of a socio-economic trans- formation envisioned by the constitution as well as the Rule of law and great values of liberty and equality are all dependent on the tone of the judiciary. The quality of the judiciary cannot remain unaffected, inturn, in the process of selection of Judges.

Some of the important aspects of selection and appoint- ment of Judges fell for debate before a seven-judge bench in <NAME> case [1982] 2 SCR 365. The controversy was triggered-off by a circular dated 13th March, 1981 issued by the Union Law Minister addressed to the Governor of Punjab and the Chief Ministers of the States referring to the desirability of one-third of the judges of <ORG>, as for as possible, being from outside the State in the interest of `National Integration' and "to combat narrow parochial tendency bred by caste, kinship and other local links and affiliations." The circular requested the Gover- nor and the Chief Ministers to obtain from all the addition- al judges working in <ORG> in their respective States their consent to be appointed as permanent judges in the other <ORG> of the country and also to obtain from persons who had already been, or may in the future be, proposed for initial appointment their consent to be ap- pointed to any other <ORG> in the country. The addi- tional judges as well as the proposed-appointees were also asked to name three <ORG>, in the order of preference, to which they would prefer to be so appointed as permanent judges. The main issues that fell for consideration in the case were whether the said circular interfered with judicial independence; whether at all, and if so under what circum- stances, a judge of <ORG> could be transferred to another <ORG> without his consent; and as to the crite- ria on which an additional judge was entitled to be made permanent. Several inciental issues such as whether the lawyers who brought the petitions had the requisite `stand- ing to sue'; whether the records of the <ORG> pertain- ing to the appointment or non-appointment of additional judges as permanent judges and to the transfer of judges were privileged from disclosure and, more importantly, the question as to the significance and status of the process of `consultation' envisaged in the constitutional process of appointment of judges and the primacy of the position of the institution of the Chief Justice of India in the consulta- tive process--whether the opinion and advice of the Chief Justice of India was on the same significance as those of the other constitutional `functionaries viz., the Governor, the Chief Justice of the State who consulted in the matter--also came to be debated. In our opinion, the view expressed by four learned Judges whose views constituted the majority on the point--the other three learned judges took a different view--vitally affects the concept and values of judicial independence.

That case, indeed, traversed a wide ground and range of ideas.

Referring to that case a critical-review published in <ORG> [vol. 33-1984] said.

"In reaching these conclusions, members of the <ORG> passed over much fascinating ground, and it gives intriguing in- sight into the attitude of the Indian judiciary towards their own role and that of the Constitution in the context of India today. Some of the most interesting observations are obiter, but that does not necessarily detract from their importance in the decision of a final court of appeal." The view taken by <NAME>, <NAME>, and <NAME>, to which we will presently advert, in our opinion, not only seriously detracts from denudes the prima- cy of the position, implicit in the constitutional scheme, of the Chief Justice of India in the consultative process but also whittles down the very significance of "consulta- tion" as required to be understood in the constitutional scheme and context. This bears both on the substance and the process of the constitutional scheme. The constitutional phraseology would require to be read and expounded in the context of the constitutional philosophy of separation of powers to the extent recognised and adumbrated and the cherished values of judicial independence. Consistent with the constitutional purpose and process it becomes imperative that the role of the institution of the Chief Justice of India be recognised as of crucial importance in the matter of appointments to the Supreme <ORG> and the High <ORG> of the <ORG>s. We are of the view that this aspect dealt with in <NAME>'s case requires re-consideration by a larger bench. The points which require to be re-considered relate to and arise from the views of the majority opinion touching the very status of "consultation" generally and in particu- lar with reference to "consultation" with Chief Justice of India and, secondly, as to the primacy of the role of the Chief Justice of India. The content and quality of consulta- tion may perhaps vary in different situations in the inter- action between the executive and the judicial organs of the <ORG> and same aspects may require clarification. There is yet another aspect as to the right to initiate the appointments of Judges. In regard to this aspect, in practice, there appears to have been a distortion of the scope of the observations of the majority, even to the extent these observations go. The statement that there should be no embargo on the <ORG> executive initiating the proposal for appointments goes with the qualification that the <ORG> executive can-

not send its proposals directly to <ORG> but should first send it to the Chief Justice of the <ORG>. <NAME>, clearly and unambiguously qualified this right of the executive thus:

". ........ Similarly, mere could not be a blanket embargo on the <ORG> executive initiating the pro- posal. We agree that the <ORG> executive should not make its own recommendation and forward it directly to the <ORG>. The <ORG> executive initiating the proposal must first forward it to the Chief Justice of <ORG> who would be better informed about the practising advocates as well as the District Judges subordinate to <ORG>, and seek the views of the Chief Justice. The view of both may be forwarded to the Chief Justice of India ..... " (Emphasis Supplied) But it has been mentioned that a practice is sought to be developed where the executive Government of the <ORG> sends up the proposals directly to the <ORG> without refer- ence to the Chief Justice of the <ORG>. This is a distortion of the constitutional scheme and is wholly impermissible. So far as the executive is concerned, the `right' to initiate an appointment should be limited to suggesting appropriate names to the Chief Justice of <ORG>s or the Chief Justice of India. If the recommendation is to emanate di- rectly from a source other than that of the Chief Justices of <ORG>s in the case of <ORG>s and the Chief Justice of India in the case of both <ORG>s and <ORG> it would be difficult for an appropri- ate selection to be made. It has been increasingly felt over the decades that there has been an anxiety on the part of the Government of the day to assest its choice in the ulti- mate selection of Judges. If the power to recommend would vest in the <ORG> Government or even the <ORG>, the picture is likely to be blurred and the process of selection ultimately may turn out to be difficult. Returning to the views of the majority, we may set out the views of these learned Judges in the Judgment as to "consultation" and primacy of the position of the Chief Justice of India which would, in our opinion, require re- consideration. Referring to `Consultation' in Article 1- 24(2) and 217(1) <NAME>, said:

" .... Iris obvious on a plain reading of clause (2) of Article 124 that it is the President, which in effect and substance means <ORG>, which is empowered by the Constitution to appoint Judges of <ORG> .... It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of <ORG> and such other Judges of <ORG>s and of <ORG> as <ORG> may deem it neces- sary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in <ORG> .... "

" .... But, while giving the fullest meaning and effect to `consultation', it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in <ORG> and consultation cannot be equated with concurrence ....... It would therefore be open to <ORG> to over-ride the opinion given by the constitutional function- aries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in <ORG> or <ORG> ................ Even if the opinion given by all the constitutional functionaries con- sulted by it is identical, <ORG> is not bound to act in accordance with such opinion .... " (emphasis supplied) [See: [1982] 2 SCR 540, 541,542] As to the primacy of the position of Chief Justice of India, the learned Judge observed:

" .... It was contended on behalf of the petitioners that where there is difference of opinion amongst the constitu- tional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, since he is the head of the Indian Judiciary and pater families of the judicial fraternity. We find ourselves unable to accept this contention .......... Article 217 places all the three constitutional functionaries on the same pedestal so far as the process of consultation is concerned. (emphasis supplied) "It is therefore, clear that where there is difference of opinion amongst the constitutional functionaries in regard to appointment of a Judge in <ORG>, the opinion of none of the constitutional functionaries is entitled 10 primacy but after considering the opinion of each of the constitutional functionaries and giving it due weight, <ORG> is entitled to come to its own decision as to which opinion it should accept in deciding whether or not to appoint the particular person as a Judge ..... " (emphasis supplied) [See: [1982] 2 SCR 543 and 545] Certain observations of Fazal Ali J., on judicial inde- pendence, indeed, reflect the state of acute poverty and ignorance of the large masses of Indian society and the consequent lack of awareness on their part of the niceties of the controversy and the general air of cynicism that degenerating standards in public-life has engendered in them..

Learned judge observed:

"There is another fact of life which, however unpleasant, cannot be denied and this is that precious little are our masses or litigants concerned with which Judge is appointed or not appointed or which one is continued or not continued. The high sounding concept of independence of judiciary or primacy of one or the other of the Constitutional function- aries or the mode of effective consultation are matters of academic interest in which our masses are least interest .....

"It is only a sizeable section of the intellectuals consisting of the press and the lawyers who have made a prestigious issue of the independence of the judiciary. I can fully understand that lawyers or other persons directly connected with the administration of justice may have a grievance however ill-rounded that improper selection of Judges or interference with the appointment of Judges strictly according to constitutional provisions may mar the institution of judiciary and therefore they may to some extent be justified in vindicating their rights. But at the same time, however, biting or bitter, distasteful and dia- bolical it may seem to be, the fact remains that the masses in general are not at all concerned with these legal nice- ties and so far as administration of justice is concerned they merely want that their cases should be decided quickly by Judges who generate confidence..."

(emphasis supplied) [See: [1982] 2 SCR 852] But it is only through the great institutions of democ- racy, political statesmanship and the activist role of the judiciary that the much needed socio-economic transformation from a fuedal and exploitative society to an egalitarian social and economic order of a true welfare state that the Constitution dreams of, can emerge. Political observers `see that despite object poverty and squalor amongst large sec- tions of Indian masses, they manifest such rare intuitive political acumen, insight and sagacity which has sustained the democratic spirit that there is no justification for any cynical pessimism. Even if the assumption that large sec- tions of the people are not be able to appreciate the con- stitutions niceties is true, that, by itself, does not detract from the necessity to maintain the highest standards of judicial independence. On the contrary the need becomes all the greater.

<NAME>, contemplated "Value-packing" on the premise that a preponderant role for the judicial wing in the ap- pointments raises a question of essential political doctrine that the very power of <ORG>, with the concomitant jurisdiction to defeat the will of the people by striking down laws enacted by the people's representatives, would be essentially an undemocratic process, a-fortiori where there is no elective element in the appointment of judges. Certain observations of Prof. <NAME> were referred to in this behalf.

On the same topic Venkataramiah, J. said:

"In India we have adopted the procedure contained in Article 2 17(1) of the Constitution for the appointment of judges of <ORG> ........ This method appears to have been adopted so that the appointment of judges may have ultimate- ly the sanction of the people whom <ORG> represent in a parliamentary form of Government. In that way only the judges may be called people's judges. If the ap- pointment of judges is to be made on the basis of the recom- mendation of judges only then they will be Judges' judges and such appointments may not fit into the scheme of popular democracy."

[See: [1982] 2 SCR 1273] "The position of the Chief Justice of India under Article 2 17(1) however is not that of an appellate authority or that of the highest administrative authority having the power to overrule the opinion of any other authority. From the spe- cific roles attributed to each of them as explained above, which may to some extent be Overlapping also, it cannot be said that the Chief Justice of India has been given any position of primacy amongst the three persons who have to be consulted under Article 217(1) of the Constitution. There are no express words conveying that meaning. The President has to take into consideration the opinions of all of them and he should not accept the opinion of any of them only on the sole principle of primacy........."

[See: [1982] 2 SCR 1262] This, indeed, has the familiar ring of the controversy arising out of the judicial response of <ORG> of the United States to the "New-Deal" legislation. The strik- ing down of the minimum wage law as unconstitutional trig- gered an impassioned debate as to the very doctrinal justi- fiability of <ORG> and said to have led the Ameri- can President to contemplate "Court-packing". That, subse- quently the court gave a clean bill of health to the "New- Deal" legislation is part of judicial history of that coun- try. Certain observations of Prof. <NAME> referred to by <NAME> --as the learned author's own views to the contrary indicate--are not apposite in the context in which the learned judge sought to invoke them. The learned author, even in the American context, reiterated the imperative of <ORG> to make "the provisions of a constitution more than mere maxims of political morality" and that "the universal sense of America has come to realise that there can be no constitution without law administered through <ORG>". Referring to Chief Justice <NAME>'s pro- nouncement in the <NAME> case, the learned author said: "That case is now rightly considered as the very keystone of the American constitutional arch, for, in it, <ORG> first ruled that it possessed the authority to review the constitutionality of statutes. Yet, when the case came before <ORG>, it seemed to present any-

thing but the question of judicial review." "<NAME> v. <NAME> is crucial in the history of American public law because it laid down the doctrine of judicial review which has since been the foundation of the constitutional structure. <NAME> v. <NAME> was the first case to establish <ORG> power to review the constitutionality of legislative acts and it did so in terms so firm and clear that the power has never since been legal- ly doubted. Had <NAME> not confirmed review power at the outset in his magisterial manner, it is entirely possible it would never have been insisted upon, for it was not until 1857 that the authority to invalidate a federal statute was next exercised by <ORG>. Had the <NAME> Court not taken its stand, more than sixty years would have passed without any question arising as to the omnipotence of <ORG>. After so long a period of judicial acquiescence in <ORG>ional supermacy, it is probable that opposition then would have been futile."

[See: "Some makers of American Law"; Tagore Law Lectures--pages 32 & 34] Referring to the dilemma of political theorists whether assumption by <ORG> of review power was justi- fied by the constitution or was an act of judicial usurpa- tion the learned author says:

" .... Those who urge the latter position lose sight of the fact that <NAME> v. <NAME> Merely confirmed a doctrine that was part of the American legal tradition of the time, derived from both the colonial and revolutionary experience. One may go further. Judicial review was the inarticulate major premise upon which the movement (discussed in my last lecture) to draft Constitutions and Bills of Rights was ultimately based. The doctrine of unconstitutionality had been asserted by Americans even before the first written Constitutions, notably by <NAME> in his 1761 attack on general writs of assistance and by <NAME> in 1763 when he challenged the right of <ORG> to disal- low the Virginia Two-penny Act. The Otis-Henry doctrine was a necessary foundation, both for the legal theory underlying the American Revolution and the Constitutions and Bills of Rights it produced.

"Addressing the court in the Five Knights' case (one of the great state trials of <NAME> England), the AttorneyGeneral, arguing for the <ORG>, asked, "Shall any say, The King cannot do this? No, we may only say, He will not do this." It was precisely to insure that in the Ameri- can system one would be able to say, "The <ORG> cannot do this," that the people enacted a written Constitution con- taining basic limitations upon the powers of government. Of what avail would such limitations be, however, if there were no legal machinery to enforce them? Even a Constitution is naught but empty words if it cannot be enforced by the courts. It is judicial review that makes constitutional provisions more than mere maxims of political morality." (emphasis supplied) [See: "Some makers of American Law"; Tagore Law Lectures--pages 35 & 37] In India, however, the judicial institutions, by tradition, have an avowed a-political commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments. Constitutional phraseology of "consultation" has to be understood and expounded con- sistent with and to promote this constitutional spirit. These implications are, indeed, vital. The constitutional values can not be whittled down by calling the appointments of judges as an executive act. The appointment is rather the result of collective, constitutional process. It is a par- ticipatory constitutional function. It is, perhaps, inappro- priate to refer to any `power' or `right' to appoint judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories. The executive, on whose advice the President acts, as a participant in the process has its own important and effective rule. To say that the power to appoint solely vests with the executive and that the executive after bestowing such consideration on the result of consultations with the judicial organ of the <ORG>, would be at liberty to take such decision as it may think fit in the matter of appointments, is an over-simplification of a sensitive and subtle constitutional sentence and, if allowed foul play, would be subversive of the doctrine .of judicial independ- ence. What <NAME> said is to be recalled: "All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master; Author and Founder of Society."

The word "consultation" is used in the constitutional provision in recognition of the status of the high constitu- tional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitations, shorn of its constitutional background and purpose, is to borrow Justice <NAME>'s phrase, "to stick in the bark of words".

<ORG> is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional policy. This essential constitutional doctrine does not by itself justify or necessitate any primacy to the executive wing on the ground of its political accountability to the electorate. On the contrary what is necessary is an interpretation sustaining the strength and vitality of <ORG>. It might under certain circum- stances be said that <ORG> is not bound to appoint a judge so recommended by the judicial wing. But to contem- plate a power for the executive to appoint a person despite his being disapproved or not recommended by the Chief Jus- tice of the <ORG> and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power. Then-again, whatever there might be difference of opinion between the Chief Justice of a <ORG> and the Chief Justice of India some of the weighty reasons in this behalf are set out by the other three judges in their opinion the opinion of the Chief Justice of India should have the preponderant role. We are of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection. The pur- pose of the `consultation' is to safeguard the independence of the judiciary and to ensure selection of proper persons. The matter is not, therefore, to be considered that the final say is the exclusive prorogative of the executive <ORG>. The recommendations of the appropriate constitu- tional functionaries from the judicial organ of the <ORG> has an equally important rule. "Consultation" should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation. Who is able to decide the qualities of lawyers proposed to be elevated to the Bench more than the Judges of <ORG> before whom they practice? There are preponderant and com- pelling considerations why the views of the Chief Justices of the <ORG>s and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable.

The view which the four learned Judges shared, in <NAME> case, in our opinion, does not recognise the special and pivotal position of the .institution of the Chief Jus- tice of India.

The correctness of the opinion of the majority in <NAME> case relating to the status and importance of con- sultation, the primacy of the position the Chief Justice of India and the view that the fixation of Judge strength is not justiciable should be re-considered by a larger bench. Indeed, <ORG> has quite often both before the <ORG> and outside has stated that it has, as matter of policy, not made any appointments to the superior judici- ary without the name being cleared by the Chief Justice of India. This, indeed, would be the application of a standard of selection higher than envisaged by the majority opinion in <NAME> case. But if the executive sets up a stand- ard by which it professes its actions to be judged it must be held to those standards. This is to be done by a judicial recognition of the standard with a concomitant legal and constitutional obligation for the executive to adopt and apply the standard.

As we have already pointed out, the bulk of the vacan- cies in the <ORG> have been filled up. Apart from two vacancies all other Judges in <ORG> are in position. Learned Attorney General has assured us that prompt steps are being taken to fill up the remaining vacan- cies and thereafter it will take steps to fill up the addi- tional posts which have recently been created in the differ- ent <ORG>. In view of what we have already stated and the assurance held out by the learned Attorney General we are of the view that further monitoring for the time being is not necessary.

As already pointed out the petition from Bombay was confined to filling up of vacancies in <ORG>. Excepting two, the remaining vacancies have been filled up and we have been told that steps are afoot for getting two Judges to <ORG>. We, therefore, dispose of the writ petition from Bombay with no further direction. Similarly, the writ application filed by <NAME> for the reasons indicated above may also be disposed of without further directions. As and when necessary the matter can be brought before the <ORG>. As in our opinion the correctness of the majority view in <NAME> case should be considered by a larger Bench we direct the papers of W.P. No. 1303 of 1987 to be placed before the learned Chief Justice for constituting a Bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of Judge strength. We are aware of the position. that the setting up of <ORG> through a Constitutional Amend- ment is in contemplation. In the event of the Amendment being carried and <ORG> being set up, the correctness of the ratio in <NAME> case of the status of the Chief Justice of India may not be necessary to be examined in the view of the fact that by the Amendment the Chief Justice of India would become the Chairman of the <ORG>. In case the <ORG> is not constituted, the two questions indicated above which are of vital importance to the efficient functioning of the judicial system in the country require consideration and there is an element of immediacy in the matter. We, therefore, suggest that the writ petition on the two issues indicated above maybe taken up for hearing at an early date and preferably before the end of this year. We hope and trust that <ORG> would continue to evince interest in the matter but if our expectations are belied, this being in the nature of a public interest litigation, some on interested in the restitution of the issues would be brought on record to effectively continue the proceeding and assist the <ORG>.

We clarify that apart from the two questions which we have indicated, all other aspects dealt with by us are intended to be final by our present order.

There shall be no order for costs.

R, S. S Petitions dis- posed of.