Rajasthan High Court - Jaipur
Dalpatraj Bhandari vs The President Of India And Ors. on 13 April, 1992
Equivalent citations: AIR1993RAJ1
JUDGMENT J.R. Chopra, J.
1. This appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment of the learned single Judge of this Court dated 25-1 -1991 whereby the writ petition filed under Article 226 of the Constitution by the petitioner-appellant has been dismissed.
2. The facts necessary to be noticed for the disposal of this appeal briefly stated are : that the petitioner-appellant is a practising Advocate in the High Court of Judicature for Rajasthan at Jodhpur. He was enrolled as an Advocate on 27-12-1965 under the Advocates Act, 1961. He being a practising Advocate is very much interested in the matter of appointment of Chief Justice and other Judges of High Court and Supreme Court of India. He has submitted that he fulfils the qualification for appointment as Chief Justice or Judge of the Supreme Court, or Chief Justice or Judge of the High Court as laid down by Articles 124(3)(b) and 217(2)(b) of the Constitution. According to him, these appointments are the property of the State and thousands of Advocates who are eligible to such appointments are being denied these appointments without proper consideration. He has submitted that the respondents have not afforded an opportunity of consideration for appointment to the post of Chief Justice/Judges of the Supreme Court or the Chief Justice/Judges of the High Court to such eligible Advocates and, therefore, this action on the part of the respondents was always arbitrary and based on adoption of method of pick and choose and, therefore, it is violative of the principles of natural justice. These appointments have been made in flagrant violation of the provisions of the Constitution. He has contended that the Executive wing of the Government has no say in the matter but it is interfering in the matter of appointment to the post of Chief Justice/Judges of the Supreme Court or the Chief Justice/Judges of the High Court and, therefore, these appointments are invalid. He has further contended that for filling up these posts, no applications have been invited and appointments have been made a close secret. According to him, when from the posts of President of India, Vice President of India and Prime Minister of India to the post of a peon, persons are selected by applying provisions of Articles 14 and 16 of the Constitution then why the procedure of pick and choose is applied for appointment to the posts of Chief Justice/ Judges of the Supreme Court and Chief Justices and Judges of the High Courts. He has, therefore, claimed that all appointments, to the posts of Chief Justice/Judges of the Supreme Court and Chief Justice/Judges of the High Courts, made after the commencement of the Constitution of India are against the provisions of the Constitution of India, Law, Equity and good conscience as also are violative of Articles 14 and 16 of the Constitution,
3. The petitioner has further submitted that he does not know how persons have been selected to the posts of Chief Justice/Judges of the High Courts and Chief Justice/Judges of the Supreme Court till today. He, however, concedes that the respondents have adopted the method of appointments to the posts of Chief Justice/Judges of the Supreme Court and Chief Justices/ Judges of the High Court by adjudging the suitability of Advocates on the basis of case-laws etc. but this method has not come to his knowledge through respondents by way of replies but it has come to his notice through the judgments rendered by the Judges themselves. He has, therefore, doubt as to the worth of the persons who are appointed as Judges/Chief Justices of the Supreme Court and High Courts. According to him, these appointments are based on fraud on the Constitution. They are not only mala fide but they are also void, non est and illegal and are liable to be set aside. He has submitted that the uncertainty that results on account of lack of knowledge about appointment procedure results in chaos amongst eligibles and, therefore, citizens are loosing faith in the appointment of High Court Judges because all eligibles are not given an opportunity of consideration. He has, therefore, submitted that all appointments made after the commencement of the Constitution, are against basic concept of Constitution and thus they are liable to be set aside.
4. It was contended that till the applications are not invited for filling up the posts of Chief Justice/Judges of the Supreme Court or the Chief Justice/Judges of the High Courts and opportunity is not given to all eligibles, it cannot be said that appointments are made after affording an opportunity to all eligible Advocates. Even as regards District Judges, Article 233 of the Constitution says that the District Judges will be appointed by the Governor of the State in consultation with the High Court. According to the petitioner, for filling up the posts of District Judges, applications are invited and interviews are held but while appointing Chief Justices/Judges of the High Courts and Supreme Court, no such method is being adopted. Making reference to the provisions of Articles 58 66(2) and (3) and 75(1) of the Constitution, the petitioner has argued that even for the posts of President of India, Vice President of India and Prime Minister of India opportunity is afforded to all eligibles but that is not done in case of appointments to the posts of Chief Justices/ Judges of the High Courts and Supreme Court.
5. The petitioner-appellant has seriously objected interference of the Executive in the matter of appointments to the posts of Chief Justices/Judges of the Supreme Court/High Courts. According to him, Articles 124 and 217 of the Constitution authorise the President of India to make appointments on the posts of Judges and Chief Justices of the High Courts and Supreme Court and, therefore, the President of India alone should make up his mind to make appointments. The Executive wing of the Government has no right to make interference in such appointments. Articles 124 and 217 of the Constitution only indicates about 'President of India' and none else and hence, wherever the word 'President occurs it means 'President1 himself, and none else.
6. In para 25 of the writ petition, the petitioner has submitted that in the matter of Article 217 their Lordships of the Supreme Court have rendered some judgments which are binding only between the parties. If any thing has been observed in those judgments about any procedure that is to be followed in the matter of appointments of High Court and Supreme Court Judges, that is not the law of the land because the Hon'ble Judges have quoted certain things at their sweet will though the circumstances did not arise for them to quote them and, therefore, they are only precedents and they are not binding on the people at large. Article 141 of the Constitution has no application in such matters. He went to the extent of saying that Hon'ble Supreme Court many a times answered the questions which never arose before them but still they answered as it was thought by them that they are not answerable to anyone and, therefore, according to the petitioner, it is a deliberate design to show that their words are law of the land, which is a misconception. It was submitted that as we are guided by our own Constitution, we cannot adopt analogy of English and American Constitutions.
7. After quoting certain provisions of the Constitution as regards appointments of Governors, Judges and Chief Justices of the Supreme Court and High Courts, Members of the Public Service Commission, Attorney General, Chief Election Commissioner, Finance Commissioner and Auditor and Comptroller General of India, the petitioner has submitted that appointments to the above referred posts are exclusively within the jurisdiction of His Excellency the President of India and these powers should only be exercised by the President oflndia alone and the Executive has no right to interfere in such matters. In para 40 of the writ petition, it appears that the petitioner has made a concession that although, ail these appointments to the posts of Chief Justices/Judges of the Supreme Court and High Courts after the commencement of the Constitution are viola-tive of Articles 14 and 16 of the Constitution as also the Preamble of the Constitution but he has no ill will against any one, who are holding the post of Supreme Court or High Court Judges and he has no ill motive or bad design but he feels that in spite of this, although, he does not want their removal but he wants that appointments made so far to the posts of Chief Justices/Judges of the High Court and Supreme Court be declared illegal being violative of Articles 14 and 16 of the Constitution. He served a notice for Demand of Justice through a Telegram on 21-11-1988 to His Excellency the President of lndia but it evoked no response and hence, he has filed a writ petition before this court praying therein :
1. that a writ or direction or a writ in the nature of mandamus, quo warranto or prohibition be issued and all appointments for the posts of Chief Justices/ Judges so far made in Supreme Court and in this High Court be declared illegal, null and void;
2. that the respondents be directed in the matter of appointments of Chief Justice and other Judges of Supreme Court and of this Court to consider all eligibles including the petitioner and they be given an opportunity to apply for the office of the said posts and alt the appointments be made after giving such fair opportunity of consideration to all eligible candidates including the petitioner;
3. that respondent No. I be requested or directed to give appropriate reply to the Representation Ex. 1 made by the petitioner;
4. that the respondents be prohibited from making any further appointments of Supreme Court and High Court Judges without complying with Articles 14 and 16 of the Constitution by issuing appropriate writ, order or direction;
5. Any other order or direction which this Hon'ble Court deems fit and proper in the circumstances of the case;
6. The writ petition be accepted by awarding heavy cost to the petitioner."
Along with this writ petition, the petitioner has also filed certain documents, most of which are news papers extracts and the views expressed by certain legal luminaries. In support of his writ petition, the petitioner has also filed his written arguments, in which, he has claimed that it is essentially a public interest litigation. He has submitted that he being a practising Advocate for the past 22 years did not choose to remain dumb and he has taken it on himself to bring the wrongs done to eligible Advocates, for being appointed as Chief Justices/Judges of the Supreme Court/High Courts, before the Court and to secure justice. According to the petitioner, lakhs of lawyers are dumbs and they are deprived of their fundamental rights and a right of opportunity as regards employment which is an unamenable fundamental right of consideration for appointment to the posts of Judges and Chief Justices of the High Courts and Supreme Court as per the provisions of Articles 124 and 217 of the Constitution. He has reiterated in his written arguments his contentions raised in the writ petition. He has taken the plea that since the appointments of Judges and Chief Justices of Supreme Court/High Courts are under challenge in this writ petition, Judges and Chief Justices of the Supreme Court/High Court should not decide this writ petition and they should direct the respondents to appoint a Commission or Tribunal to go into the matter. He has again attacked the competence of Supreme Court Judges to decide the matter relating to appointment of Judges. He has submitted that a great mistake has crept into the legal world by misunderstanding import and effect of Article 141 of the Constitution. According to him, it is only the law declared by the Supreme Court, which is binding on all the courts of the Country and not the judgments.
8. The petitioner has further submitted that similar writ petitions have been admitted and, therefore, this writ petition should have also been admitted. He has referred to certain documents which have been filed by him in which it has been claimed that these appointments on the posts of Chief Justices/Judges of the Supreme Court/High Courts are arbitrary and the Executive wing of the Govt. has interfered in these appointments and therefore, they be declared null and void. In his written arguments, he has mentioned 14 grounds showing as to why these appointments are against the principles of natural, justice being violative of Articles 14 and 16 of the Constitution as also against the law of the land and the Constitution of India itself. Those 14 grounds are as follows :
(1) Being violative of Article 14 and 16 of the Constitution of India and Preamble of Constitution of India;
(2) Every(one) eligible under the law or Constitution must have an opportunity to apply for any post or appointment however high from President to a Constable or Peon low it may be. Right to opportunity is an unamenable fundamental right. See 1975 SC 2229 Para 665;
(3) Under the present system, nobody knows whether there is any vacancy or not. It is known to only appointment Givers and Posts seekers i.e. Employer and Employee;
(4) No application or Advertisement is issued nor it is put on notice Board that such and such vacancy has occurred or going to be filled up on the respective Notice Boards of Supreme Court or Rajasthan High Court.
(5) It is unknown when, where and before whom it is to be applied. No notification is issued for it.
(6) There is no rules or guidelines to apply and in such circumstances, the advertisement is necessary so that all eligibles must apply failing such appointments would be void and non est;
(7) So far selection has been based on purely arbitrary method or at the choice of respondents which is clear from Exs. 2, 3 and 4 as stated above;
(8) Method adopted is nothing but based on hide and seek policy which is highly deplorable. It is nothing but based on fraud. It is a fraud on Constitution and to whole of nation. Anything based on fraud is nothing but void and non est;
(9) It has violated basic structure of Constitution as opportunity and dignity clause of Preamble has been violated. Right to opportunity is an unamenable fundamental right. All appointments have been made in violation to Articles 14 and 16 of the Constitution as no opportunity has been provided to all eligibles;
(10) That every appointment and Post is a 'National property AIR 1983 SC 803 : (1983 Lab IC 1128), in which every eligible has right to seek and apply for it and exception can be as provided in Article 16 or it can be out of purview of Article 14 if such appointments are put in 9th Schedule or Constitution be amended or make provision like Article 31A or 31B or put appointments in 9th Schedule but this cannot be done as held in 1975 SC 2229 para 665;
(11) Assume for sake of argument that respondent can have their Choice quota but that cannot be 100% quota of choice. Supreme Court has held that Reservation for Scheduled Caste, Scheduled Tribe, Women, Backward classes and minorities or others cannot be more than 50% in all in which there was no choice quota but for sake of argument, it may also be included but it cannot be more than 50% in all. Here choice quota is 100% which is clear from Exs. 2 and 3 which is wholly illegal and without jurisdiction as such all appointments made on choice quota renders all appointments null and void and are nullity and non est. See AIR 1980 SC 820;
(12) That all appointment so far made have not been made as provided in Constitution of India. Therefore, they are liable to be quashed;
(13) That Articles 124 and 217 have not been followed. Articles 124 or 217 do not provide that any paper should move regarding the appointment of Supreme Court or High Court Judges through Executive say through Prime Minister, Law Minister Home Minister, Chief Minister etc. The Executive cannot have any say in the matter and until now papers regarding appointment of Supreme Court Judges and High Court Judges have been moved through these agencies. In fact, what has been provided must be followed as envisaged in Articles 124 and 217 of the Constitution of India.
It will not be out of place to submit here after consultation the papers must go to proper authority. As already submitted as provided in AIR 1971 SC 1093 Para 31, the President Secretariat must only be channel. In appointment of Prime Minister as President Secretariat takes recourse, the same is to be followed here in strict sense;
(14) The Executive has no jurisdiction to intermeddle and because of its interference all appointments are void, because :
(a) Papers must not move through Centre or State Cabinet or Minister or Prime Minister or Chief Minister;
(b) Executive cannot make any advice in this matter to the President. It is President's personal job. Here Article 74 is not applicable. Here, Article 53 is applicable. There are jobs which only confers power exclusively on President in which Executive i.e. subordinate Officers as envisaged in Article 53 cannot intermeddle;
(c) According to petitioner, if President is qualified as qualification is given in Articles 217 and 124. After consultation his choice is final. Otherwise choice of Chief Justice of India must prevail."
The petitioner has further contended that the President of India, who is not always a literate person has been wrongly advised by Chief Justice of India and Chief Justice of States. If the president knew that there are Article 14 and 16 in our Constitu-tion and if all eligibles are not invited to apply for these appointments, these appointments would be rendered void. According to him, the present system of appointment to the posts of Chief Justices/Judges of the High Courts and Supreme Court is arbitrary and this choice method is a fraud on the Constitution and is a breach of oath.
9. It was further contended that he does not know how Hon'blc Justice J.S. Verma, the then Chief Justice of Rajasthan and presently a Judge of the Supreme Court, Hon'ble Justice S.C. Agrawal, who was appointed as a Judge of Rajasthan High Court and is now a Judge of the Supreme Court and Hon'ble Justice S.M. Jain, a retired Judge of the Rajasthan High Court, were appointed as Judges/Chief Justice of Rajasthan High Court though they never practised in Rajasthan High Court. He further wants to know, how Justice M.B. Sharma and Justice S.N. Deedwania of this Court were not confirmed as Judges of this Court and after some time, how only Justice M.B. Sharma has been re-elevated as a Judge of this Court. He has further submitted that how Ex-Chief Justices Shri P.K. Banerjee, and Shri J.S. Verma and for that matter, the present Chief Justice Shri K.C. Agrawal, who were never Judges of this Court have been appointed as Chief Justices of this Court and how they have recommended the names of Advocates or Judicial Officers for being appointed as Judges of this Court because they had little knowledge about them.
10. The learned single Judge of this Court after dealing with the contentions raised by the petitioner and after quoting authorities cited by him, came to the conclusion that the Office of Governor, Judges of the Supreme Court and High Courts arc constitutional Offices and thus the provisions of Articles 14 and 16 of the Constitution cannot be made applicable in such appointments. That is the scheme of the Constitution and appointments to these Offices have been made by the person, who hold the highest Office in the country through a well established convention and this scheme of appointments cannot be brought under the purview of Articles 14 and 16 of the Constitution of India and if it is done then it will be against the spirit of the Constitution. These appointments by their very nature are not of the public Government servants. These are exalted offices for which certain conventions have been developed and the framers of the Constitution deliberately kept these appointments out of the purview of Articles 14 and 16 of the Constitution of India. According to the learned single Judge, the writ petition is wholly misconceived. The learned single Judge further held that reference to Article 392 of the Constitution is also misconceived, and Article 392 is only for removal of difficulties and not for sending such petitions to the President of India for his disposal. In this view of the matter, the learned single Judge has dismissed the writ petition vide his judgment dated January 25, 1991. Hence this appeal.
11. Along with this appeal, the petitioner-appellant has further filed certain documents which are copies of certain news-papers, or their cuttings wherein controversy about the appointments of Judges of Supreme Court and High Courts has been voiced.
12. We have heard Mr. D.R. Bhandari, the petitioner-appellant himself as regards admission of this appeal. Detailed arguments have been advanced by him as regards the admissibility of this writ petition, which has been dismissed in liminc by the learned single Judge.
13. The first relief claimed by the petitioner-appellant is that a writ or direction or a writ in the nature of mandamus, quo warranto or prohibition be issued and all appointments to the posts of Chief Justices/ Judges of Supreme Court and this Court be declared illegal, null and void. Suffice it to say, that all those persons who have been elevated as Judges and Chief Justices of Supreme Court and of Rajasthan High Court (Judges) from the date these Institutions came into existence till have not been made parties to this writ petition and, therefore, in their absence, no order can be passed. If this contention of Mr. Bhandari is taken to its logical conclusion, what Mr. Bhandari wants is that all those who have been elevated as Judges/Chief Justices of Supreme Court and Rajasthan High Court and who have worked and retired and have left for heavenly abode be resurrected from their graves, cemetries or burial-grounds and be told that their elevation as Judges/Chief Justices of Supreme Court and Rajasthan High Court were illegal and void, although the judgments rendered by them still hold good in the fields of their jurisdiction. Likewise, Mr. Bhandari wants that all those who have been elevated as Judges/ Chief Justices of Supreme Court and Rajasthan High Court and have retired from these posts should be called and told that they were imposters and usurpers of Office and had no right to hold these Offices. He further wants to challenge the appointments of Judges/Chief Justices of Supreme Court and Rajasthan High Court who are presently functioning as Judges/Chief Justices of Supreme Court and Rajasthan High Court and wants to tell them that they are imposters and usurpers of their Offices because their elevation is violative of Articles 14 and 16 ofthe Constitution. Although, in his writ petition in para 14, the petitioner-appellant has made a concession that he has no ill-will against the Judges/Chief Justices of the Supreme Court and High Courts and he does not want to remove them from their respective posts but their appointments be declared null and void. Such a declaration cannot be academic but it has to be followed by its logical consequences. It is trite law that nobody can be condemned unheard and no decision can be given by a competent court of law, which may affect the rights of persons behind their back.
14. Their Lordships of the Supreme Court in the case of Chandigarh Administration v. Manpreet Singh, 1991 JT 436 have observed that by directing that category 4 should be treated as category 5 and category 5 should be treated as category 4, the High Court has prejudicially affected the rights of candidates falling under category 4, without even hearing them and this has been deprecated by their Lordships of the Supreme Court in the aforesaid judgment and, thereafter, it has been observed that the High Court has no power to do so. Likewise, how justice S.C. Agrawal, Justice S. M. Jain and Justice Jagat Narain were appointed/elevated as Judges of this Court and how Justice J.S. Verma, Justice PK. Banerjee and Justice K.C. Agrawal have been appointed as Chief Justices of this Court and how Justice M.B. Sharma has been re-elevated as a Judge of this Court, these questions cannot be decided in this writ petition or for that matter in this special appeal because those persons have not been made parties to these proceedings and therefore, no decisions can be given in their absence without affording them an opportunity of hearing. This disposes of the first relief claimed by the petitioner in his writ petition.
15. Now, so far as the second relief claimed by the petitioner is concerned, the contention of the petitioner-appellant is that every one who is eligible for being appointed/ elevated as a Judge of the High Court or Supreme Court must be provided equal opportunity and equal protection as regards these appointments/elevations as Chief Justices/Judges of the Supreme Court and High Courts. In this respect, the petitioner-appellant has placed reliance on a decision of their Lordships of the Supreme Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101 : (1991 Lab 19 91, wherein it has been held that removal from service without assigning any reasons based on the provisions of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations (1952), is arbitrary unfair, unjust unreasonable and opposed to public policy being violative of Articles 14 and 16 of the Constitution. It was further held that Govt. Company or Public Corporation being State instrumentalities are Slate within the meaning of Articles 12 of the Constitution and as such, they are subject to observance of fundamental rights embodied in Part III as well as to conform to the directive principles in Part IV of the Constitution.
16. Our attention was next drawn to a decision of the Gujarat High Court in B.M. Rana v. Ahmedabad Municipal Corporation (1975 (16) Guj Law Reporter 1030), wherein it has been observed that the Municipal Corporation is a State within the meaning of Articles 12 of the Constitution. It has been further observed that Article 16(1) which extends to the citizens of India, the guarantee that there shall be equality of opportunity in all matters relating to employment or appointment to any office under the State. Article 16(1) takes within its sweep every 'employment' and 'appointment' to the Office under the State. Whether the employment or appointment carries a 'salary' or 'stipend' is, therefore, altogether immaterial. While referring to Articles 14 and 16 of the Constitution, the learned Judge further observed that norms must be laid down for the purposes of selection and appointment without following these guidelines will not inspire confidence that equality principle has been followed. That was a case of employment under the Municipal Corporation, which has been treated as 'State' under Article 12 of the Constitution.
17. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, wherein the doctrine of equality as enshrined in Article 14 has been discussed. In that case, their Lordships of the Supreme Court have observed as under:
"Das, C. J. said that Article 14 combines the English doctrine of the rule of law and the equal protection clause of the I4th Amendment to the American Federal Constitution. Basheshar Nath v. The Commr. of I.T., 1959 Supp (1) SCR 528, at page 550-551 (AIR 1959 SC 149), In State of Bengal v. Anwar Ali Sarkar (1952) 3 SCR 284 P. 293 : (AIR 1952 SC 75 : 1953 Cri LJ 510) at p. 79) Patanjali Sastri, C. J. observed that the first part of the Article which has been adopted from the Irish Constitution is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the 'basic principle of repulicanism' CF Ward V. Flood,.(1874) 17 AM Rep 405 and that the second part which is a corollary of the first is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution. So, the concept of equality which is basic rule of law and that which is regarded as the most fundamental postulate of republicanism are both embodied in Article 14. If according to the majority in Bharati's case AIR 1973 SC 1461, Article 14 does not pertain to basic structure of the Constitution, which is the other principle of equality incorporated in the Constitution, which can be a basic structure of the Constitution or an essential feature of democracy or rule of law? However, it is unnecessary to pursue this aspect of the question as I have already given reasons to show Clause (4) to be bad."
18. Our attention was next invited to a decision of their Lordships of the Supreme Court in Chief Justice, Allahabad v. Abdul Wahid 1971 Lab 1C 773, wherein it has been observed that there is no violation of Article 14 of the Constitution if the classification created by the legislation is founded on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group and the differentia bears a reasonable relation to the object sought to be achieved by the legislation. If these two conditions are satisfied, group classification will be free from the vice of unconstitutional discrimination. These considerations apply also to Article 16(1) because while Article 14 guarantees the general right of equality. Article 16 is an instance of the same right in favour of citizens in certain special circumstances.
19 It "'as claimed by Mr. D.R. Bhandari, the petitioner-appellant that the guarantee embodied in Article 14 and Article 16(1) extends not merely to matters in contemplation at the time when a person enters into employment but thereafter in respect of measures which may be adopted during the entire period of employment. In this respect, he has drawn our attention to para 6 of the Judgment in Chief Justice Allahabad's case (supra) wherein their" Lordships of the supreme Court have followed the decisions in General Manager, Southern Railway v. Rangachari AIR 1962 SC 36 and State of Mysore v. P. Narsinga Rao AIR 1968 SC 349: (1968 Lab 1C 360). He has further submitted that in para 11 of the judgment in Chief Justice, Allahabad's case (supra), their Lordships held that fundamental rights guaranteed under Article 14 cannot be waived. Violation of Articles 14 and 16 renders offending provision void and non est.
20. It was, therefore, contended by Mr. Bhandari, the petitioner-appellant that since all eligible Advocates have not been afforded an opportunity to apply for being elevated as Judges/Chief Justices of the Supreme Court and High Courts and the right of consideration has been denied to them, all appointments/elevations of Judges/Chief Justices of the Supreme Court and High Courts after the constitution came into force are violative of Articles 14 and 16 of the Constitution and, therefore, they be struck down.
21. Mr. Bhandari has submitted that the President of India cannot claim any para-mountcy in the matter relating to appointments/elevations of Judges and Chief Justices of Supreme Court and High Court because the paramountcy lapsed with the Indian Independence Act, 1947 even its shadows disappeared with the integration of the States with the Indian Union. In this respect, he has placed reliance on a decision of their Lordships of the Supreme Court in Madhav Rao Scindia v. Union of India 1971 (1) SCC 85 : (AIR 1971 SC 530), wherein the Supreme Court has observed :
"that we are unable to agree with the Attorney-General that the "old unidentified concept of paramountcy of the British Crown" was inherited by the Union, by reason of the instruments of accession and merger agreements and that "recognition of Rulership was a gift of the President, and not a matter of legal right, existing as it did in the area of paramountcy and remaining with the Govt. of India. The British Crown did not acquire paramountcy rights by any express grant, cession or transfer, it exercised paramountcy rights because it was the dominant power. Paramountcy had no legal origin, and no fixed concept : its dimensions depended upon what in a given situation, the representatives of the British Crown through expedient. Paramountcy means those powers which the British authorities by the might of arms, and in diregard of the sovereignty and authority of States chose to exercise. But that paramountcy lapsed with the Indian Independence Act, 1947 : even its shadows disappeared with the integration of the States with the Indian Union. After the withdrawal of the British power and extinction of paramountcy of the British power, the Dominion Govt. of India did not and could not exercise any paramountcy over the States."
It is nobody's case that the President of India appoints Judges/Chief Justices of the Supreme Court and High Courts in exercise of his paramount powers. Even the concept of paramountcy has lapsed after the Indian Independence Act has come into force specially, when the States have merged with the Indian Union.
22. Mr. Bhandari has next placed reliance on a decision of their Lordships of the Supreme Court in Synthetics and Chemicals Ltd. v. State of U.P. 1990(1) SCC 109 : (AIR 1990 SC 1927), wherein thedoctrine of Police powers has been discussed. It is not a case, where while appointing Judges and Chief Justices of Supreme Court and High Courts, His Excellency the President of India has exercised his police powers and thus, this authority has no application to the facts of the present case.
23. It may be stated here that in the scheme of the Constitution, application of Articles 14 and 16 of the Constitution has been excluded from operation so far as appointments/elevations of these constitutional functionaries are concerned. Articles 124(1) and Article 217(1) relate to the procedure that has to be followed while appointing/elevating Chief Justices/Judges of the Supreme Court and High Courts. These two Articles have been incorporated in the Constitution by the Constitution Framers, who have also incorporated Part III of the Constitution, which pertains to the fundamental rights. The Framers of the Constitution were very much cognizent of the fact that part III exists in the Constitution, which relates to the fundamental rights. Parts V and VI of the Constitution which relate to Union and States respectively and Chapter IV of Part V of the Constitution relates to Union Judiciary and Chapter V of Part VI of the Constitution relates to the High Courts in the States and in incorporating Chapter IV of Part V and Chapter V of Part VI of the Constitution, the Framers of the Constitution have consciously not made applicable the provisions of Articles 14 and 16 of the Constitution to these two Chapters. Nobody estopped the Framers of the Constitution to make the provisions of Articles 14 and 16 of the Constitution applicable to these two Chapters. In Articles 124(2) and 217(1) of the Constitution, the Framers of the Constitution have authorised the President of India to appoint/elevate the Chief Justices and Judges of the Supreme Court and High Courts by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States, in the case of appointment of Judges of the Supreme Court and with the Governor of the State and the Chief Justice of Jndia, in the case of appointment of Chief Justices of High Courts and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, also. Part III of the Constitution was incorporated in the Constitution ahead of Parts IV and V of the Constitution and thus, if the application of Article 14 and 16 of the Constitution has been specifically excluded from the purview of Articles 124 and 217 of the Constitution, it was a deliberate act of the Framers of the Constitution. Nobody prevented the Framers of the Constitution, who were very much alive to the existence of Articles 14 and 16 in Chapter III of the Constitution to provide that after inviting applications from all eligible persons and their scrutiny, the President will consult these Constitutional functionaries and then make such appointments. If they have chosen not to make any such provision after inserting Article 14 and 16 in the Constitution then it has to be treated as a deliberate act on their part. It cannot be interpreted in any other manner.
24. It is true that in Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461, it has been observed by their Lordships of the Supreme Court that the basic structure of the Constitution cannot be interfered with by the Parliament. Here, it is not a case where the Parliament has amended the Constitution so far as these two Articles are concerned. As stated above, the provisions of Articles 124 and 217 of the Constitution were left out of the purview of Article 14 and 16 of the Constitution by the Framers of the Constitution themselves. Thus, we cannot travel beyond the Constitution. A particular procedure has been provided in Articles 124 and 217 of the Constitution for the appointment/elevation of Judges and Chief Justices of the Supreme Court and High Courts then how it can be declared that this procedure is secretive. The procedure has very much been prov'ded in the Constitution itself and when the Constitution itself provides a particular procedure for appointment of Chief Justice/Judges of the Supreme Court and High Courts then it cannot be termed a secretive.
25. Articles 124(1) of the Constitution provides that there shall be a Supreme Court of India consisting of a Chief Justice of India and until parliament by law prescribes a larger number, of not more than seven other Judges. The strength of Judges of the Supreme Court has been revised from time to time. Articles 124(2) provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years. Thus, it is clear that the Judges of Supreme Court are to be appointed by the President of India and while making appointment of Judges of Supreme Court, the President of India is required to make consultation with such of the Judges of the Supreme Court and of the High Courts in the States as he may deem necessary for the purpose and the person so appointed as Judge of the Supreme Court shall hold Office until he attains the age of 65 years. Likewise, Article 217(1) of the Constitution provides that every Judge of a High Court shall be appointed by the President of India by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold Office in the case of an additional or acting Judge as provided in Article 224 and in any others case, until he attains the age of sixty two years. Articles 124(4) further provides that a Judge of the Supreme Court shall not be removed from his Office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented tp the President in the same session for such removal on the ground of proved misbehaviour or incapacity, and this provision also applies to the High Court Judges. Thus, it is clear that a Judge of the High Court/ Supreme Court once appointed shall complete his term and he cannot be removed by the President of India at his pleasure and he can only be removed after following the procedure laid down in Articles 124(4) of the Constitution. It is not a case of civil appointment under the State or under the Union, where a person who has been appointed can be removed by his Appointing Authority. The terms and conditions of services of Judges and Chief Justices of the High Courts and Supreme Court have been prescribed in the Constitution itself and they can only be changed by law by the Parliament and that Act of Parliament cannot change those conditions to the detriment of a Judge, during the tenure of his office. It is a different thing that if a Judge chooses, he can resign from his Office by writing a letter addressed to the President of India under his own hand. Similar provisions have been made in regard to the appointment of Chief Election Commissioner, Auditor and Comptroller General as also the Governors of the State with this difference that the Governors serve at the pleasure of the President because he is answerable to the President. The other functionaries cannot be removed by the President of India without following the procedure laid down in Articles 124(4) of the Constitution.. Thus, it is clear that the Judges/Chief Justices of the Supreme Court and High Courts are not ordinary civil functionaries, who work under the Union Govt. or the State Govts. These Constitutional functionaries are appointed by the President of India, which means President acting under the advice of the Union Govt. and its Ministers and they cannot be removed by the President at his pleasure. In order to ensure their independent action, the Judges and Chief Justices of the High Courts and Supreme Court have been provided with their secured tenure of service so that the Executive wing of the Govt. may not influence them otherwise. The Executive wing of the govt. may have a say in the matter of appointments of Judges/Chief Justices of the High Courts and Supreme Court, as held by their Lordships of the Supreme Court in S.P. Gupta v. President of India, AIR 1982 SC 149. As stated above, once a Judge of the High Court/Supreme Court is appointed/ elevated, his tenure is not dependent on the will of the Executive. It is futile to contend that from the post of President of India to that of a peon, the provisions of Articles 14 and 16 of the Constitution are applicable. There is a lot of difference between selection and election. In matters of election, selection results in election and in matters of selection, election results in selection. For the posts of President, Vice-President and Prime Minister, the party which possesses majority in the Parliament elects their own winning candidates and then they arc put or set them up for these posts and thereafter, the electoral college elects them. Thus, for the posts of President, Vice President and Prime Minister selection results in election. However, so far as civil employment is concerned, number of posts are advertised and a candidates may elect for a particular post to which he wants to apply and after that election, he applies and then the selection process starts. After his selection, he is appointed. Appointments to the civil posts in the country under the Union Govt. or the State Govts. are regulated according to the Conditions or Service Rules framed by the Union Govt. or the State Govts. Though a legislation and these appointments are termed as public services. Article 16(1) of the Constitution provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The provision of this Article applies to those appointments which are made under the State i.e. Union Govt. or the State Govts. The judges and Chief Justices of the Supreme Court and High Courts are not appointed under the State. They are constitutional functionarise.
26. Article 14 of the Constitution provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 13(3) of the Constitution defines the 'law' and it says that the law includes any Ordinance, Order, bye law, rule regulation, notification, custom or usage having in the territory of India the force of taw. These constitutional provisions are beyond the pale of law as defined in Article 13(3) of the Constitution. All laws must abide by the Constitution. If the contention of Mr. Bhandari is accepted then certain provisions of the Constitution itself are to be declared as unconstitutional. This has never been the intention of the Framers of the Constitution that the provisions of the Constitution as it stands has to declare entra vires. Courts have no liberty to violate the Constitution. They can only judge the vires of a particular law or its provision and declare whether it is intra vires of the Constitution or it is ultra vires of the Constitution. They have no right to declare the constitutional provisions to be ultra vires of the Constitution. It is another thing when the Courts are called upon to decide how far the Parliament can change the Constitution and whether they have power to violate the basic structure of the Constitution or not i.e. how far thay can go to change the Constitution but the Courts cannot decide what should be the Constitution of the Country. They can only interpret its spirit, they cannot furnish caussus omissus. It is beyond their domian to transgress on a field of activity which ligitimately belongs to the Parliament.
27. The Constitution is the bed-rock of our own democracy and every law governing the country must not offend the Constitution and specially, the basic feature of the Constitution i.e. fundamental rights. As stated above, when the Framers of the Constitution themselves have provided a particular procedure for appointment of Judges and Chief Justices of the High Courts and Supreme Court by incorporating that procedure in Articles 124 and 217 of the Constitution and they themselves have excluded the provisions of Articles 124 and 217 of the Constitution from the purview of Articles 14 and 16 of the Constitution, the provisions of Articles 14 and 16 of the Constitution cannot be made applicable to the appointments of Judges/Chief Justices of the High Courts and Supreme Court. Thus, no comparison can be made with the appointments of Civil employees and these Constitutional functionaries. The manner and method of appointment of Judges and Chief Justices of the Supreme Court and High Courts have been provided in the Constitution itself. In this respect, we can do no better than to refer to the decision of their Lordships of the Supreme Court in S.P. Gupta's case (supra).
28. It has been contended by the petitioner-appellant that every decision of their Lordships of the Supreme Court is not binding on the country. The decisions rendered by their Lordships of the Supreme Court are the decisions between parties. In case where the law is laid down by their Lordships of the Supreme Court, that law alone becomes binding on the country under Article 141 of the Constitution. He has gone to the extent of saying that many a times, the questions which are not referred to their Lordships of the Supreme Court or they are not argued before them, they are answered by them and the law is declared on those questions. A lawyer of 27 years of standing is not expected to use such a indiscreet and in descent language for the decisions rendered by their Lordships of the Supreme Court and should not indulge in passing such despicable remarks bordering the contempt of their Lordships of the Supreme Court. It has been held by their Lordships of the Supreme Court in Waman Rao v. Union of India, AIR 1981 SC 271 that these decisions and texts are of high authority and cannot be overlooked. In fact, these decisions are themselves precedents on the binding nature of precedents.
29. Article 141 of the Constitution says that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Article 142 of the Constitution provides that the Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and until provision in that behalf is so made, in such manner as the President may by order prescribe. Although, the matters are decided between the parties but the law laid down therein is binding on the entire country. All Courts in India are bound to follow the decisions of the Supreme Court. In case of any conflict between the decisions of the Supreme Court, the latest-pronouncement will be binding upon the inferior courts unless the earlier decision was of the larger Bench and if the later decision is that of a larger Bench, the previous decision will have to be overlooked.
30. We may state here that most of the contentions raised by the petitioner-appellant as regards the procedure of appointment of Judges/ Chief Justices of the High Courts and Supreme Court and the interference of Executive wing of the Govt. in these matters were directly at issue before their Lordships of the Supreme Court in S.P. Gupta's case (supra) and we cannot do better than to quote the views expressed by their Lordships of the Supreme Court in S.P. Gupta's case. In that case, in para 26 of the judgment, P.N. Bhagwati, J. (as he then was) speaking for the Court observed:
"that the judiciary stands between the citizens and the State as a bulwark against executive excesses and misuse or abuse of power by the executive and, therefore, it is not absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth's case AIR 1977 SC2328: (1977 Lab 1C 1857) (supra). But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions namely fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong."
After dealing with this aspect of the independence of the judiciary, the learned Judge dealt with the powers of appointment of Judges under Art. 217 of the Constitution in para 28 and observed :
"It-is obvious on a plain reading of clause (2) of Articles 124 that it is the President, which in effect and substance means the Central Govt. which is empowered by the Constitution to appoint Judges of the Supreme Court. So also, Article 217 Clause (1) vests the power of appointment of Judges of High Courts in the Central Govt. but such power is exercisable only 'after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. It is clear on a plain reading of these two Articles that the Chief Justice of India, the Chief Justice of the High Court and such other Judges of the High Court and of the Supreme Court as the Central Govt. may deem it necessary to consult, are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Govt. It is not an unfettered power in the sense that the Central Govt. cannot (can?) act arbitrarily without consulting the constitutional functionaries specified n the two Articles but it can act only after consulting them and the consultation must be full and effective consultation."
In para 29 of the judgment, the learned Judge discussed the scope of consultation which the President is obliged to make and after quoting the views expressed by Chandrachud, J. (as he then was) in Sankalchand Seth's case (supra), it was observed:
"that we may make it clear that on a proper interpretation of Clause (2) of Articles 124 and Clause (1) of Article 217 it is open to the Central Govt. 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 and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations. Where there is a difference of opinion amongst the constitutional functionaries who are consulted, it is for the Central Govt. to decide whose opinion should be accepted and 1 whether appointment should be made or not. It was contended on behalf of the petitioners that where there is difference of opinion amongst the constitutional 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. It is difficult to see on what principle can primacy be given to the opinion of one Constitutional functionary, when Clause (1) of Article 217 places al! 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 (1) 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."
Thus, it is clear that the opinion of each of the three constitutional functionaries is entitled to equal weight and it is not possible to say that the opinion of the Chief Justice of India must have a primary over the opinion of the other two constitutional functionaries. No fault has been found in the procedure of making appointment of Judges and Chief Justices of the High Courts and Supreme Court. If all the three constitutional functionaries are consulted by the President, it is the prerogative of the President to appoint the Judges/ Chief Justices of the High Courts and Supreme Court under Articles 124 and 217 of the Constitution. It is the President of India, who is the Appointing Authority and the other Constitutional functionaries have only the consultative role and the consultation does not mean concurrence. For the convenience of the President, the Chief Justice of India recommends the name of a particular person for being appointed as a Judge of the Supreme Court to the Union Govt. in the Ministry of Law and Justice and thereafter, the Govt. gives its opinion on the basis of the advice tendered to it by the Council of Ministers and, thereafter, the matter is sent to the President for being appointed that particular person as the Judge of the Supreme Court and in case of appointment of a Judge of the High Court, the Chief Justice of the concerired State recommends the name of a particular person for being appointed as a Judge of the High Court to the State Govt. through Ministry of Law and Justice and the Chief Justice of India and thereafter, these two constitutional functionaries gives their opinion to the Union Govt. in the Ministry of Law and Justice, who after scrutinising the advice tendered by the constitutional functionaries, sends that matter to the President of India for elevating that person as a Judge of the High Court. Thus, it has been held by their Lordships of the Supreme Court that the Executive wing of the Govt. has a role in the matter of appointment of Judges and Chief Justice of the Supreme Court and High Courts.
31. We next refer to the observations made by Justice A. C. Gupta in para 129 of the judgment in S.P. Gupta's case (supra):
"129. It seems from what the Chief Justice of the High Court said in his letter of May 7, 1981 that he had not recommended extension of Justice Kumar's term not really because he found the reports against Shri Kumar were true he had admittedly no 'investigating machinery' but because he thought that reputation of integrity is as important as a man being actually above board. I have already said that this is a view which will undermine the independence of the judiciary."
In para 124 of the judgment the learned Judge has considered how the consultation with the Constitutional functionaries should be made. It has been observed by the learned Judge:
"that it must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty on the Chief Justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted. The fulfilment by the President of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1) therefore, means full and effective, not formal or unproductive consultation."
Fazal Ali, J. has observed in para 321 of the judgment as under:
"321. Thus, under Section 1 of Article 1 while legislative powers completely vests in the Congress, the executive powers vests in the President. Here, our Constitution makes a distinct departure by making the President, in whom, the executive power vests, to be bound by the advice of the Council of Ministers. Therefore, under our Constitution, for all practical intents and purposes, the executive power vests in the Council of Ministers only and the President is bound to accept the advice of the Council of Ministers. Proviso to Clause (1) of Article 74 may be extracted thus :
"Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration."
R.S. Pathak, J. has he then was) speaking for the Court has observed in paras 876, 877, 878, 879, 880 and 881 as follows :
"876............. The appointment of a Judge is an executive act. The power to appoint is vested in the President, who by virtue of Clause (1) of Article 74 is required to act in accordance with the advice of the Council of Ministers. The President may require the Council of Ministers to reconsider such advice, either generally or otherwise, but he must act in accordance with the advice tendered after such reconsideration. The nature of the power exercised by the President under Clause (1) of Article 217 being executive in character, it cannot be identified with the power exercised under Clause (3) of Article 217 in regard to the determination of the age of a Judge of a High Court. The power exercised under Clause (3) of Article 217 has been held by this Court in Union of India v. Jyoti Prakash Miner, (1971) 3 SCR 483 : AIR 1971 SC 1093 to involve a judicial function and which, therefore, does not fall within the scope of Clause (1) of Article 74.
"877. While there can be no doubt that the appointment of a Judge of a High Court lies-in the executive power of the President, it is not an absolute and unfettered power. It is conditioned by the obligation imposed on the President to consult the Chief Justice of India, the Governor of the State and in the case of an appointment of a Jand the likelihood udge other than the Chief Justice, the Chief Justice of the High Court. The consultation is a constitutional imperative and the process of consultation must precede the appointment. Three constitutional functionaries are required to be consulted, the Chief Justice of India and the Chief Justice of the High Court, who are judicial functionaries, and the Governor of the State, who is the executive head of the State in respect of which the High Court has jurisdiction. In this, Clause (1) of Article 217 makes a marked departure from Section 220 Govt. of India Act, 1935. Under Section 220 a permanent judge of a High Court was appointed in the absolute discretion of the Crown, and the additional Judges appointed in the absolute discretion of the Governor General. In practice, of course, the Chief Justice of the High Court was usually consulted, as well as sometimes, a few eminent leaders of the Bar who would not be interested in the appointment. But when a Constitution was being drafted there was general agreement that the appointment of a Judge of a High Court shoud not be left to the unfettered discretion of the Executive Government. The Constitution itself now imposed the obligation to consult, Judicial independence under the Government of India Act, 1935 has been assured by prescribing a fixed tenure under Sub-section (2) of Section 220 and a Judge could not be removed from his office except on the ground of misbehaviour or of infirmity of mind or body and on a report by the Judicial Committee of the Privy Council that the Judge ought to be removed. There was the further stipulation by the proviso to Section 221 that neither the salary of a Judge nor his rights in respect of leave of absence or pension could be varied to his disadvantage after his appointment. Now, the independence of the Judiciary can be fully safeguarded not by merely conferring security on the Judges during their term of office but by ensuring in addition that persons who are independent, upright and of the highest character are appointed as Judges. Moreover, there is always the fear that appointments left to the absolute discretion of the appointing executive could be influenced by party considerations. The frarners of the Constitution apparently had this in mind when they decided to incorporate the prescription of consultation in the terms set forth in Clause (1) of Article 217. As Sardar Vallabhbhai Patel explained in the Constituent Assembly on June 21, 1947 when presenting the Report on the Principles of a Model Provincial Constitution :
"With so many checks and counter-checks, these appointments place the High Court Judges beyond any influence of the parties or any other influences and beyond any suspicion or doubt of such a nature. There is thus enough guarantee provided for the independence of the Judiciary. "(Constituent Assembly Debates Vol. IV P. 694).
878. As has been observed, Clause (1) of Article 217 prescribes that besides the Governor of the State, the Chief Justice of India and the Chief Justice of the High Court must be consulted in the appointment of a Judge of a High Court. Three distinct constitutional functionaries are involved in the consultative process, and each plays a distinct role, and the nature and scope of the role are indicated by the character and status of their respective offices. The Chief Justice of the High Court is the head of the institution to which the Judge will be appointed. He is, therefore, particularly qualified to know the needs of the Court in the context of its present Constitution and the work which is pending. Generally, an appointment is made either from the High Court Bar or from the District Judiciary. In both cases, the Chief Justice can be expected to possess an intimate knowledge of the legal ability of the person under consideration and to have a sufficiently accurate estimate of his character, antecedents and reputation, including his integrity in the context of the legal profession or the judicial service, as the case may be as well as his potential capacity as a Judge. It is also conveniently possible for him to obtain a fair measure of information in respect of a member of a District Bar, should such a member be under consideration. In regard to persons practising in other courts or members of judicial tribunals, it is not difficult for him to secure adequate information. It is apparently for this reason that the practice which has prevailed for several years in this country postulates that it is the Chief justice of the High Court who should initiate the process of appointment by suggesting a person for the office of a Judge. But by virtue of his position in the High Court and the State, the Chief Justice is also exposed to local influences, and to prejudice or bias in relation to lawyers appearing before him or judicial officers who meet him. His assessment can be subjectively affected. The Chief Justice of India has been brought in, and it is apparent that, in virtue of the exalted office held by him and the circumstances that he is far removed from the local pull of influences and that temptations of partisanship, he can be trusted to apply a strictly objective approach to the recommendation proceeding from the High Court. Besides, the Chief Justice of India possesses the advantage of viewing the matter from the superior plane of a national perspective. He is seized with knowledge of prevailing standards and trends in the different High Courts, and as the head of the highest court in India exercising appellate jurisdiction over the High Courts by way of the widest power under Article 136, he would be cognisant of the need to ensure that the highest quality was maintained in the appointment of judges of the High Courts. Indeed, he is expected by the Constitution to keep himself adequately informed of the affairs of each High Court. For it is not merely for the purpose of appointing a Judge to the High Court under Clause (1) of Article 217 that he is to be consulted. The President is also obliged to consult him before he can transfer a Judge under Clause (1) of Article 222 from one High Court to another High Court a matter in which the Constitution does not expressly stipulate consultation even with the Chief Justices of the two High Courts concerned, the High Court from which the Judges is to be transferred and the High Court to which his transfer is contemplated. It must also be remembered that in the determination of the age of a Judge of a High Court under Clause (3) of Article 217 it is the Chief Justice of India alone whom the President is required to consult."
"879. The part played by the Governor of the State must, it seems, be limited. The Government possesses the advantage of being able to secure information which may not be within the knowledge of the Chief Justice in regard to the character and integrity of the person recommended and his local position and affiliations. Besides as the High Court is the highest court of the State and the funds for it flow from the State Exchequer, it is only logical that the State Govt. should be allowed a voice in assessing the suitability of the person recommended for appointment (Law Commission of India, Fourteenth Report Vol. I, p. 74). The State Govt. however, can have no role in commenting of his legal ability, knowledge of law and judicial potential."
"880. The President is obliged to consider the advice tendered by the three constitutional functionaries under Clause (1) of Article 217 and in the evaluation of the advice from each he must bear in mind that the appointment under consideration is the appointment of a Judge of a High Court, that is to say, a judicial appointment. Once that is kept in the forefront and it is apparent that the person recommended is of desirable personal character and reputation, the greatest value should be attached to the advice tendered by the Chief Justice of the High Court and the Chief Justice of India. The advice tendered by the two judicial functionaries possesses a quality peculiarly pertinent to the appointment of an able, and efficient Judge. It is in a sense, "expert" advice, and where the Chief Justice of the High Court and the Chief Justice of India agree on the recommendation, it is within reason to hold that the President will ordinarily accept the recommendation, unless there is strong and cogent reasons for not doing so, which must be a reason directly relevant to the purpose of the appointment. It may be reiterated that the departure made by Clause (1) of Article 217 of our Constitution from Section 220 of the Govt. of India Act, 1935 clearly establishes that the advice tendered by the judicial functionaries was considered to be a safeguard against arbitrary appointments and, therefore, entitled to the greatest weight. It may be pointed out that appointments in England to the Court of Appeal, to the Judicial Committee of the House of Lords and to the offices of Lord Chief Justice and President of the Family Division are made on the advice of the Prime Minister after consultation with the Lord Chancellor, and the likelihood that the Prime Minister may depart from the recommendations of the Lord Chancellor can be contemplated "only in the most exceptional case", (J.A. Griffith : The Politics of the Judiciary pp. 17, 18).
881. At the same time, I am unable to accept the contention that as the Constitution stands today, the President is obliged in all cases to agree with a recommendation in which the Chief Justice of the High Court and the Chief Justice of India have concurred. During the Constitution Assembly Debates a proposal was made by a member that the appointments of Judges should require the concurrence of the Chief Justice of India (although that suggestion was made in connection with the appointment of Judges of the Supreme Court), but that proposal was not accepted. The Law Commission of India (Ibid) p. 75) surveyed the machinery for appointing a Judge of a High Court and considered it desirable that the provision in Clause (1) of Article 217 should be altered to provide for 'not merely consultation with the Chief Justice of India but his concurrence in the proposed appointment. That recommendation has not borne fruit and we are concerned with the position which prevailed then and continues today."
Thereafter, the Hon'ble Judge dealt with this aspect of the matter whether the advice given by the Chief Justice of India have primacy over that rendered by the Chief Justice of High Court and has observed in para 882 as follows:
"882............ In the ultimate analysis, it would be unrealistic to suppose that the advice rendered by the Chief Justice of India enjoys mere parity with that of the Chief Justice of the High Court. If the Chief Justice of India was intended to enjoy equal status merely with the Chief Justice of the High Court in this regard, it is difficult to appreciate why the Chief Justice of India was brought in at all especially when the advice expected of a judicial functionary for appointing a Judge of a High Court could be obtained from the Chief Justice of the High Court alone. The constitutional scheme appears to indicate that in matters concerning the High Courts there is a close consultative relationship between the President and the Chief Justice of India. In matters so serious as transfer of Judges and the determination of the age of Judges, the Constitution has appointed the Chief Justice of India as the sole functionary to be consulted by the President. In that capacity, the Chief Justice of India functions under the Constitution as a constitutional check on the exercise of arbitrary power and protects the independence of the judiciary."
Justice Venkatramiah, (as he then was) speaking for the court has observed in paras 1003, 1006,1009, 1010, 1012, 1014, 1015, 1016 and 1026 and follows:
"1003. Article 217(1) confers the power of appointment on the President, who ordinarily has to act on the advice of the Council of Ministers under Article 74(1) of the Constitution. Now, we have to examine whether there is any compelling reason to hold that the Council of Ministers would have no voice in the matter of appointment of a High Court Judge and the opinion of the Chief Justice of India would be binding on the President. It is necessary to refer here to certain articles of the Constitution. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall in the exercise of his functions, act in accordance with such advice. The proviso to that clause provides that the President may require the Council of Ministers to reconsider such advice either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. It is thus clear that the only means of counteracting any advice tendered to him by his Council of Ministers avaiable to the President where he feels that the advice should not be straightway acted upon is to remit it to the Council of Ministers for reconsideration. If after such reconsideration, the Council of Ministers tenders its advice the President has to act in accordance with such advice. The advice thus tendered is .binding on the President. A comparison, of Article 74(1) with Article 163(1) which also requires a Governor to act on the advice of his Council of Ministers shows that the Governor may in certain matters which are within his discretionary power act independently of his Council of Ministers. There is no such exception expressly, made in Article 74(1) specifically excluding any matter from its scope. Article 103 of the Constitution is another provision which has to be noticed here. It confers power on the President to decide the question whether a Member of Parliament has incurred any disqualification mentioned in Article 103(1) of the Constitution. It reads :
"103.(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in Clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to Such opinion."
1006. The power of appointment of a Judge of a High Court is an executive power and the analogy of Article 217(3) is, therefore, inappropriate."
1009. In Samsher Singh v. State of Punjab (1975) 1 SCR 814 : AIR 1974 SC 2192 : (1974 Lab IC 1380) which is a judgment of a Bench of seven learned Judges of this Court, Chief Justice Ray observed at page 843 (of SCR): at page 2209 of AIR) thus:
"For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion, Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions of the Constitution. Appointments and removal of persons are made by the President and the Governor as the Constitutional head of the executive on the aid and advice of the Council of Ministers, That is why any action by any servant of the Union or the State in regard to appointment dismissal is brought against the Union or the State and not against the President or the Governor."
1010. In the same case, Krishna lyer, J. with whom Bhagwati J. agreed in his concurring judgment has summed up the true legal position under Article 74 and Article 163 of the Constitution at page 875 (of SCR) : (at p. 2230 of AIR) thus :
"We declare the law of this branch of our Constitution to be that the President and Governor custodians of all executive and other powers under various Articles, shall, by virtue of these provisions exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers save in a few well known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of Prime Minister (Chief Minister), restricted though this choice is by the paramount consideration that he should command a majority in the House; (b) the dismissal of a Govt. which has lost its majority in the House but refuses to quit office; (c) the dissolution of the house where an appeal to the country is necessitous, although in this area the Head of State should avoid getting involved in politics and must be advised by his Prime Minister (Chief Minister) who will eventually take the responsibility for the step."
1012. The binding nature of an opinion expressed by an authority who has to be consulted before making an appointment of a Judge was disposed of by Chandrachud C.J. In Re. -- The Special Courts Bill 1978 (1979) 2 SCR 476 at page 550 : (AIR 1979 SC 478 at p. 517) with the following words "......the process of consultation has its own limitations and they are quite well-known. The obligation to consult may not necessarily act as a check on an executive......" Later on the learned Chief Justice again observed at pages 550-551 (of SCR): (at p. 518 of AIR) :-
"Yet another infirmity from which the procedure prescribed by the Bill suffers is that the only obligation which Clause 7 imposes on the Central Govt. while nominating a person to preside over the Special Court is to consult the Chief Justice of India. This is not a proper place and it is to some extent embarrassing to dwell upon the pitfalls of the consultative process though, by hearsay, one may say that as a matter of convention, it is in the rarest of rare cases that the advice tendered by the Chief Justice of India is not accepted by the Government. But the right of an accused to life and liberty cannot be made to depend upon pious expressions of hope howsoever past experience may justify them. The assurance that conventions are seldom broken is a poor consolation to an accused whose life and honour are at stake. Indeed one must look at the matter not so much from the point of view of the Chief Justice of India, nor indeed from the point of view of the Government, as from the point of view of that accused and the expectations and sensitivities of the society."
1014. The thesis that the Constitution prohibits the participation of the Executive in the appointment of Judges of superior courts and that the opinion of the Chief Justice of India alone should be binding on the President in such matters totally fails when we consider the question of appointment of the Chief Justice of India. Articles 124(2) of the Constitution provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judge of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. From the above clause of Articles 124, it is obvious that when the appointment is to the post of the Chief Justice of India, it is not obligatory on the part of the President to consult any specified functionary. But he has to consult such of the Judges of the Supreme Court each one of whom may himself be an aspirant to the post and such other Judges of the High Courts he may consider necessary. In this situation, it is quite evident that the opinion of any one of the Judges who may be consulted cannot be treated as binding on the President. The power of appointment rests with the President who has no doubt to take the decision on the advice given by the Council of Ministers after making the necessary consultation. When the 'primacy' of judicial opinion' doctrine thus fails in the case of the appointment of the Chief Justice of India, it would not be appropriate to hold that it prevails in the case of appointments of other Judges of the Supreme Court and the Judges of the High Courts.
1015. Under Article 217(1) of the Constitution, the President should, therefore, while making an appointment of a High Court Judge act on the advice of his Council of Ministers having due regard to the opinions expressed by the functionaries mentioned therein after a full and effective consultation. There is no scope for holding that either the Council of Ministers cannot advice the President on this matter or that the opinion of the Chief Justice of India is binding on the President although such opinion should be given due respect and regard.
1016. As a part of this very contention it is urged that the executive should have no voice at all in the matter of appointment of Judges of the superior courts in India as the independence of the judiciary which is a basic feature of the Constitution would be in serious jeopardy if the executive can interfere with the process of their appointment. It is difficult to hold that merely because the power of appointment is with the Executive, the independence of the judiciary would become impaired. The true principle is that after such appointment, the executive should have no scope to interfere with the work of a Judge.
1026. As a corollary to the above contention, it is urged that an advocate or a member of the subordinate judiciary who is recommended by the Chief Justice of a High Court acquires a right to he appointed if his name is approved by the Chief Justice of India also and one of the learned counsel appearing in these cases said that such a person would be entitled to request the Court to issue a writ of mandamus compelling the President to appoint him as a Judge of the High Court. The soundness of this argument depends upon the process of appointment itself. Article 217 of the Constitution does not say in terms that the proposal for appointment of a person as a Judge should be initiated by the Chief Justice of the High Court. Let us assume for purposes of argument that he may initiate the proposal recommending the name of a person who according to him is qualified for the post. The Governor may or may not agree with the proposal. The Chief Justice of India may or may not agree with the proposal. Ultimately, the appointing authority has to take a decision on the question.
All these observations of their Lordships of the Supreme Court are contained in Part III of this Judgment (S.P. Gupta's case). These observations unequivocally go to prove that the appointing authority of the Judges and Chief Justices of the High Courts and Supreme Court is His Excellency the President of India. The other constitutional functionaries have a consultative role and the role that is assigned to them has been closely scrutinised and it has been held that the framers of the Constitution were not ready to give a veto in the matter of appointments in the judiciary to the judiciary. The appointment of Judges and Chief Justices of the High Courts and Supreme Court is an executive act, which is performed by His Excellency the President of India in consultation with the constitutional functionaries as provided by Articles 217 and 124 of the Constitution. Soon after the persons are appointed as Judges and Chief Justices of the High Courts and Supreme Court, safeguards have been provided as regards their security of appointment, conditions of service and their removal from service so that they may act independently and, therefore, the argument of Mr. Bhandari that the executive wing of the Government has no say in the matter and it hould not meddle in these affairs cannot be sustained. This question has very much been agitated before their Lordships of the Supreme Court in S.P. Gupta's case (supra) and as stated above, their Lordships of the Supreme Court have held that the matter regarding appointment of Judges and Chief Justices of the High Courts and Supreme Court is an executive act which is to be performed by His Excellency the President of India in consultation with the constitutional functionaries as provided by Articles 124 and 217 of the Constitution,. The aforesaid observations are the ratio of the decision of their Lordships of the Supreme Court and, therefore, this ratio of the decision in S.P. Gupta's case (supra) is bind ing on all the Courts in the country under Article 141 of the Constitution. They are not obiterdicta. Their Lordships of the Supreme Court has observed that the executive wing of the Govt. can have a say in the matter of appointments of Judges/Chief Justices of the High Courts and Supreme! Court.
32. It has nowhere been provided in the Constitution that the provisions of Articles 14 and 16 of the Constitution will be attracted in the matter of appointments of Judges and Chief Justices of the High Courts and Supreme Court under Articles 124 and 217 of the Constitution. The Judges and Chief Justices of the High Courts and Supreme Court are the constitutional functionaries and they are not public servants. They are not governed by the Rules regarding recruitment and conditions of service of persons serving under the Union or under the State, which are framed under Article 309 of the Constitution and, therefore, the application of the provisions of Articles 14 and 16 in the matters of appointments of such high constitutional functionaries is totally ruled out. The procedure for appoinment of these high constitutional functionaries is provided in the Constitution itself. When the Framers of the Constitution have specifically avoided the application of the provisions of Articles 14 and 16 of the Constitution in the matter relating to the appointment of Judges and Chief Justices of the High Courts and Supreme Court when these provisions cannot be read in the Constitution. We have alreadv said that Part V and Part VI of the Constitution were enacted after the Part III of the Constitution was inserted and, therefore, the framers of the Constitution were very, much alive to the provisions mentioned in Part III of the Constitution and when they have specifically avoided its application to such high constitutional functionaries then these provisions cannot be read into these Articles i.e. Articles 124 and 217 of the Constitution.
33. It is true that certain flaws have crept into the system while making such appointments and certain views have been expressed by retired Chief Justices of the Supreme Court and even by legal luminaries and some of the views expressed by them are contained in the documents filed by the petitioner-appellant with the writ petition as also this special appeal. A debate is going on in the Country as to how the procedure for appointment of Judges and Chief Justices of the High Courts and Supreme Court may be made flaw-less. Opinions have been expressed in making such appointments considerations such as race, religion, caste, creed, region and personal background of persons who are considered for appoitment as Judges and other considerations emanating from power centres like political, economic and financial which are making dents in the process of selection of persons as Judges of the High Courts and Supreme Court should be avoided. It is for the law-framers to take note of these views expressed by the retired Chief Justices of the Supreme Court and other legal luminaries. If some persons are appointed without proper consultation with the constitutional functionaries; if less meritorious persons are appointed as Judges of the High Courts and Supreme Court and if persons are appointed to these posts on political considerations; and some persons are appointed to these posts on the basis of race, religion, caste, creed, region or other extraneous considerations which may adversely affect such appointments to be made purely on the basis of merit then these factors which are making dents in the process of proper selection of meritorious persons as Judges of the High Courts and Supreme Court then it is for the law-framers to make suitable amendments in the Constitution in respect thereof. It is not for the Court to legislate. The Courts can only interpret and their Lordships of the Supreme Court in S.P. Gupta's case (supra) have interpreted these provisions. We would like to observe that even if the law confers a discretionary power on a particular constitutional functionary i.e. the President of India then too whether a law conferring such discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will all in an arbitrary manner in exercising the discretion conferred on it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power. In this respect, reliance is placed on a decision of their Lordships of the Supreme Court in re-Special Courts Bill, 1978 AIR 1979 SC478, wherein in all 13 principles have been extracted for application of Article 14 on the basis of earlier judgments of their lordships of the Supreme Court. Principle 10 reads as under:
"10. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does not occur but the validity of the law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
We may, therefore, observe here that the discretionary powers vested in the President are not necessarily discriminatory powers because enough safeguards are provided in the shape of consultation with the high constitutional authorities viz., the Chief Justice of India, Governor of the concerned State and the Chief Justice and Chief Minister of the concerned State, so far as appointment of High Court Judges is concerned and while making appointment of Judges of the Supreme Court, the President of India is required to consult the Chief Justice of India, Judges of the Supreme Court and of the High Courts in the States, as he may deem necessary for the purpose, and, therefore, when such a discretion is exercised with the aid and advice of such high constitutional functionaries, it can safely be said that enough safeguards have been provided in the Constitution while making appointments of High Court and Supreme Court Judges by the President of India. The discretion so vested in the President to appoint Judges of the High Courts and Supreme Court cannot be held to be arbitrary and unreasonable. We may further observe that it is not a case of selection where after inviting applications and after taking the written examinations, suitable persons may be appointed but it is a case where a request is made on behalf of his Excellency the President of India to a person who is practising Advocate, keeping in view his legal knowledge, integrity and performance at the Bar etc. or to person who is a Judicial Officer, keeping in view his integrity, legal acumen and performance as Judicial Officer for being appointed as a Judge of the High Court or Supreme Court and if that person accepts that offer then his name is recommended for being elevated as a Judge of the High Court or Supreme Court, as the case may be. His suitability is further adjudged by the Executive through its own sources. If the Chief Justice of a particular High Court on account of subjective considerations is influenced to recommend the name of a particular person who being appointed/elevated as a Judge of the High Court, the matter is further examined at the stage of the Chief Justice of India and the Union Law Minister and thereafter, the matter is sent to the President of India through the Prime Minister who after taking into consideration the entire material on record makes the appointment of a Judge of the High Court or the Supreme Court. So are as the Chief Justices of the High Courts and Supreme Court are concerned, they are not appointed directly. They are appointed from amongst the working Judges of the High Courts and Supreme Court and, therefore, no right can be claimed for appointment as a Chief Justice of the High Court or the Chief Justice of the Supreme Court directly.
34. Our attention was drawn to a decision of the Calcutta High Court in Subir Chowdhury v. Union of India AIR 1984 Cal 7, wherein it has been held that even an Advocate of a subordinate court has a right to be appointed as a Judge of the High Court. There is no bar to the appointment of an Advocate practising in the District Court as a Judge of the High Court and the Chief Justice of a High Court has enough sources at his command to adjudge the suitability of a particular Advocate practicing in the High Court or the Subordinate court. Even if a Chief Justice is appointed from outside the State, he can seek opinion of the Senior most Judges of that High Court, who have been elevated to that very Court and they can consult legal luminaries of that State, who are not interested to be appointed as a Judge of that High Court. This authority does not say that the Chief Justice of a particular High Court does not have the means to adjudge the suitability of a lawyer practising in the subordinate courts for being appointed as a Judge of the High Court.
35. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Subhash Sharma v. Union of India (JT 1990 (4) SC 245 : (AIR 1991 SC 631), wherein it has been observed that 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 the Ministry of Justice 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 justification for re-opening the matter merely because there has been a change in the personnel of the Chief Justice or the Chief Minister of the State concerned. This authority shows that the recommendations finalised by the Chief Justice of India should not ordinarily be reopened merely because of the change of the Chief Justice or the Chief Minister of that particular State.
36. Mr. Bhandari has next placed reliance on a decision of their Lordships of the Supreme Court in Kumari Shrilekha Vidyarthi etc. v. State of U.P. JT 1990 (4): SC 211 : (AIR 199! SC 537), wherein it has been observed that every State action must be informed by reason and it follows that an act uninformed by reason is arbitrary. In that case, even in matters of contractual appointments, reasons for termination of the services of Govt. Advocates were not assigned in the note-sheets that the order of termination of their services is and, therefore, it was held/ arbitrary. In this case, nobody has challenged the proposition that the actions of the State Govt. should be fair and reasonable. This proposition has no application to the facts of this case.
37. The opinions expressed by the retired Chief Justices of the Supreme Court and various other legal luminaries are contained in the Exhibits that have been filed along with the writ petition and the special appeal. It has been held by their Lordships of the Supreme Court in Madhav Rao Scindia v. Union of India, 1971 (1) SCC 85 : (AIR 1971 SC 530) that it is wrong to mistake a duty for a right. The power to appoint the Election Commissioner is that of the President. The Election Commissioner alone can hold the elections of the President, Vice-President, Members of the Parliament and the State Legislatures. The President cannot decline to appoint the Election Commissioner, It is not the power of the Cabinet to advise the President not to appoint one or more of Election Commissioners even if some future cabinet should think that the elections are trappings of feudalism. Similarly, the Cabinet cannot advise the President not to appoint a Governor and thus, destroy the federal structure of our Constitution or not to appoint the Chief Justice of Supreme Court or of the High Courts and thereby remove those Courts and thus make a mockery of the fundamental rights. The President cannot do indirectly, what the Legislature cannot do directly. It is wrong to mistake a duty for a right. Thus, it is clear that if certain constitutional obligations have been placed on the President, he has to discharge those obligations in the manner provided by the Constitution. Those obligations cannot be termed as rights conferred on the President. They are actually duties imposed on him so that such Institutions may function properly. In para 178 of the judgment in Madhav Rao Scindia's case (supra), their Lordships of the Supreme Court have further observed that our Constitution recognises only three powers viz., the legislative power, the judicial power and the executive power. It does nol recognise any other power. In our country the executive cannot exercise any sovereignty over the citizens. The legal sovereignty in this country vests with the Constitution and the political sovereignty is with the people of this country. The executive possesses no sovereignty. There is no analogy between our President and the British Crown. The President is a creature of the Constitution. He can only act in accordance with the Constitution. Thus, we can safely observe that unless Articles 124 and 217 of the Constitution, which relate to the appointment of Judges and Chief Justices of the Supreme Court and High Courts are changed by suitable amendments in the Constitution, the President of India has to act in accordance with these two provisions. In this respect, public opinion has no relevancy. What is relevant is that the provisions of the Constitution must be followed, may be that certain legal luminaries are worried about the loopholes in the procedure for appointments of Judges and Chief Justices of the High Courts and Supreme Court. It is for the legislature to take note of it and make suitable amendments in the Constitution, if necessary. Till these provisions are there in the Constitution, one has to abide by them.
38. As regards the application of Article 14 of the Constitution, our attention was also drawn to a decision of their Lordships of the Supreme Court in Ramana v. I.A. Authority of India, AIR 1979 SC 1628, wherein it has been observed:
"that on a proper construction, what the notice required was that only a person running a registered IInd Class hotel or restaurant and having at least 5 years' experience as, such should be eligible to submit a tender. This was a condition of eligibility and it is difficult to see how this condition could be said to be satisfied by any person who did not have five years' experience of running a IInd class hotel or restaurant. The test of eligibility laid down was an objective test and not a subjective one.
Here, it is not the case of the petitioner-appellant that the provisions of Articles 124 and 217 of the Constitution arc riot complied with. Here, the contention of the petitioner-appellant is that the provisions of Articles 14 and 16 of the Constitution should be read into in the provisions of Articles 124 and 217 of the Constitution. When the Framers of the Constitution have specifically avoided the application of the provisions of Articles 14 and 16 of the Constitution while enacting provisions of Arts. 124 and 217 of the Constitution, the provisions of Articles 14 and 16 of the Constitution cannot be read into in the provisions of Articles 124 and 217 of the Constitution.
39. In Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789, their Lordships of the Supreme Court have observed that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. This authority is beside the point that is involved in this case. Here, we are not concerned with this controversy as to whether the Parliament has changed the basic structure of the Constitution by any amendments in the Constitution. Thus, this authority has no application to the facts of the present case.
40. Out attention was next drawn to a decision of their Lordships of the Supreme Court in Gazula Dasaratha Rama Rao v. State of A.P., AIR 1961 SC 564, wherein it has been observed as under (at page 570) :
"Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances. Article 15 is more general than Article 16, the latter being confined to matters relating to employment or appointment to any office under the State. Article 15 does not mention descent as one of the prohibited grounds of discrimination, whereas Article 16 does."
As stated above, the appointment of Judges and Chief Justices of the High Courts and Supreme Court are not at all appointments under the State and, therefore, this authority has little application to the facts of the present case.
41. There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. In Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 SC 538, it has been held by their Lordships of the Supreme Court that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. Thus, when the Framers of the Constitution themselves have thought that the Judges and Chief Justices of the High Courts and Supreme Court should be appointed in a particular manner and for that, certain procedure has been incorporated in the Constitution itself then such a provision cannot be attacked on the basis that they are against the spirits of the Constitution because these provisions have been enacted by the Framers of the Constitution and not by laws. What was the spirit of the Constitution could not have been better understood by anybody else then the framers of that very Constitution. We will like to state here that once a particular law has been laid down by their lordships of the Supreme Court and till that is not changed by any subsequent judgment, that judgment must hold good. In Ganga Sugar Corporation v. State of UP. AIR 1980 SC 286, it has been held that Enlightened litigative policy in the country must accept as final the pronouncements of the Supreme Court by a Constitution Bench unless the subject be of such fundamental importance to national life or the reasoning is so plainly erroneous in the light of later thought that it is wiser to be ultimately right rather than to be consistently wrong. Stare decisis is not a ritual of convenience but a rule with limited exceptions. Pronouncements by Constitution Benches should not be treated so cavalierly as o be revised frequently. The decisions of the Supreme Court cannot be devalued to brief ephemerality.
42. Our attention was also drawn to a decision of their Lordships of the Supreme Court in H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka AIR 1991 SC295: (1991 Lab 1C 295). That was a case where appointments were made by Hon'ble the Chief Justice of the Karnataka High Court violating the relevant Rules. This authority has no application to the facts of the present case.
43. The decision of their Lordships of the Supreme Court in B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 relates to the executive powers, which can be exercised under Art. 162 of the Constitution, if the Rules have not been framed under proviso to Art. 309 of the Constitution. This authority has no application to the controversy involved in this case.
44. Mr. Bhandari has next placed reliance on a decision of their Lordships of the Supreme Court in H.E.M. Union v. State of Bihar, AIR 1970 SC 82 : (1970 Lab 1C 212) wherein the phrase 'under the authority of came up for consideration and it was held that the words 'under the authority of means pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. There is no relationship of principal or master and servant in such appointments. It is a case of appointment as constitutional functionary and, therefore, this authority too has no application to the facts of the present case.
45. It was contended by Mr. Bhandari that his writ petition raises number of important questions and, therefore, in such matters, rule nisi should be issued. In this respect, reliance has been placed on a decision of their Lordships of the Suprme Court in Himansu Kumar v. Jyoti Prakash, AIR 1964 SC 1636 and Tejram v. Union of India AIR 1972 SC 1966. These authorities do not lay down that even if the special appeal has no force, but as the petitioner-appellant has raised number of important questions, the rule nisi should be issued. We are hearing special appeal and the controversy raised in it covered by a decision of their Lordships of the Supreme Court and so, we deem it proper to hear it at the admission stage. In our considered opinion, it will be a sheer waste of time to issue the rule nisi and, therefore, we heard this appeal at length at the admission stage itself. Thus, these authorities cited by Mr, Bhandari has no application to the facts of the present case.
46. It was contended by the petitioner-appellant in his written arguments that since he challenged the appointments of Chief Justices and Judges of the High Courts and Supreme Court, after the Constitution came into force, this matter should be referred to his Excellency the President of India for proper determination. We have already held that as the petitioner-appellant has not impleaded all the persons, who have been appointed/elevated as Chief Justices and Judges of the High Courts and Supreme Court after the Constitution came into force, no order can be passed in their absence affecting their rights. When the petitioner-appellant himself has chosen a particular forum to ventilate his grievances, he cannot wriggle out of that forum. This forum was not thrust upon him and, therefore, this contention has no force. If the petitioner-appellant wants to move His Excellency the President of India for appointment of a special Tribunal about it he can dp so. Merely by sending a telegram, which may not have evoked any response, no direction need be given to his Excellency the President of India when the provisions of the Constitution are and very clear and categorical about the procedure to be followed in the appointment of Judges/ Chief Justices of the High Courts and Supreme Court. No doubt, it is true that a debate is going on in the Country pointing out certain defects in the procedure that has been adopted for appointing Judges of the High Courts and Supreme Court, but it is for the legislature to take note of it and to make suitable amendments in the Constitution, if they think it necessary. The Courts can only interpret the law, they cannot legislate.
47. It was next contended by Mr. Bbhandari that the Executive wing of the Govt. should not have any say in the matter relating to the appointments of Judges of the High Courts and Supreme Court. This aspect of the matter has already been discussed by us above and we have quoted the views expressed by their Lordships of the Supreme Court in S. P. Gupta's case (supra). In this respect, Mr. Bhandari has placed reliance on a decision of their Lordships of the Supreme Court in Union of India v. Jyoti Prakash, AIR 1971 SC 1093. That case relates to the correction of age of a Judge of the High Court. This decision has been cited by their Lordships of the Supreme Court in S.P. Gupta's case and it has been distinguished as it has no application to the controvery involved in that case, i.e. the appointment of Judges of the Supreme Court and High Courts. Thus, this authority has no application to the facts of the present case.
48. It is true that their Lordships of the Supreme Court in Jayantilal Amratlal v. F.N. Rana, AIR 1964 SC 648 have held that Art. 258(1) enables the President to entrust to the State the functions which are vested in the Union, and which are exercisable by the President on behalf of the Union; it does not authorise the President to entrust to any other person or body the powers and functions with which he is by the express provisions of the Constitution as President invested. We have already held that the powers which are exercisable by His Excellency the President of India under Articles 124 and 217 of the Constitution are exercisable with the aid and advice of the Council of Ministers and so, this authority does not help the case of the petitioner-appellant.
49. Reference has also been made to a decision of their Lordships of the Supreme Court in Pashupati Nath v. Nemchandra AIR 1984 SC 399 : (1984 All LJ215) whereinithas been held that the Secretary of a State Legislative Assembly is an Officer of the Govt. and as such is qualified to be appointed as the Returning Officer at an election held to fill a seat in the Rajya Sabha. This authority has no application to the controversy involved in this case.
50. In this view of the matter and for the reasons aforesaid we are firmly of the opinion that this appeal has no force and it is hereby dismissed summarily.
51. Before parting with the case, we will like to observe that we can understand the obsession and frustration of the petitioner-appellant that in spite of his practising as an Advocate since the year 1965, he has not yet been found suitable to be appointed/elevated as a Judge of the High Court or Supreme Court but he being an Advocate of 27 years, standing should have refrained from making such indiscreet and despicable remarks about the judgments of their Lordships of the Supreme Court and the manner in which their Lordships decide matters pending before them. The remarks are contemptuous but we are inclined to overlook them keeping in view his sense of frustration and his obsession to get himself appointed as a Judge of the High Court or Supreme Court. However, we must make it clear that this indiscretion on his part deserves to be condemned in no uncertain terms. Let it be made clear that to adore these posts of high constitutional functionaries, the honour has to be conferred and not craved. It has to be offered and not canvassed. It is not a case of making any applications and a consequent selection but it is a case of selection which has to be made objectively based on the considerations of merit. It is a case of confir-ment of distinction based on meritorious performance in the field of law. Such a distinction has not been made subject-matter of applications and competition. The petitioner-appellant must have refrained from bracketing the post of his Excellency the President of India and the Prime Minister of India with that of a Peon. It is most uncharitable on his part to say that mostly the President of India is not a literate person and he is prone to be misguided.
52. This appeal, therefore, stands disposed of accordingly, with the aforesaid observations.