{"id":194123,"date":"1990-10-26T00:00:00","date_gmt":"1990-10-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990"},"modified":"2018-09-30T18:09:25","modified_gmt":"2018-09-30T12:39:25","slug":"subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","title":{"rendered":"Subhash Sharma And Others vs Union Of India on 26 October, 1990"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Subhash Sharma And Others vs Union Of India on 26 October, 1990<\/div>\n
Equivalent citations: 1991 AIR 631, \t\t 1990 SCR Supl. (2) 433<\/div>\n
Author: R Misra<\/div>\n
Bench: Misra, Rangnath (Cj)<\/div>\n
           PETITIONER:\nSUBHASH SHARMA AND OTHERS\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT26\/10\/1990\n\nBENCH:\nMISRA, RANGNATH (CJ)\nBENCH:\nMISRA, RANGNATH (CJ)\nVENKATACHALLIAH, M.N. (J)\nPUNCHHI, M.M.\n\nCITATION:\n 1991 AIR  631\t\t  1990 SCR  Supl. (2) 433\n 1991 SCC  Supl.  (1) 574 JT 1990 (4)\t245\n 1990 SCALE  (2)836\n\n\nACT:\n    Constitution  of  India: Articles 32, 124  and  217--Ap-\npointment   of\t Judges\t  of   High   Courts   and   Supreme\nCourt--\"Consultation\"  with Chief Justice of  India--Primacy\nof--Fixation of Judges strength--Justiciability--Referred to\nNine Judge Bench.\n\n\n\nHEADNOTE:\n    In\tthese  petitions in the nature\tof  public  interest\nlitigation under Article 32 of the Constitution, the  relief\nasked for is one for mandamus to the Union of India to\tfill\nthe vacancies of Judges in the Supreme Court and the several\nHigh  Courts of the country and ancillary orders  or  direc-\ntions in regard to the relief of filling up of vacancies.\nIn  response to the rule, the Union of India,  relying\tupon\nS.P.  Gupta  v. Union of India, [1982] 2 SCR 365,  raised  a\npreliminary objection as to the justiciability of the issue.\nThe objection, however, was later withdrawn by the  succeed-\ning  Attorney General who made a statement that it  was\t the\nconstitutional\tobligation of the Union of India to  provide\nthe  sanctioned\t Judge strength in the superior\t courts\t and\ndefault,  if any, was a matter of public interest,  and\t the\nwrit  petitions requiring a direction to the Union of  India\nto fill up the vacancies were maintainable.\nDisposing of the petitions, this Court,\n    HELD: (1) The ratio in S.P. Gupta's case left the matter\nof fixing Up Of the Judge strength to the President of India\nunder the constitutional scheme, and the choice of Judges to\nthe  prescribed procedure, but once the sanctioned  strength\nwas  determined it was the obligation of the Union of  India\nto maintain the sanctioned strength in the superior  Courts.\n[437H; 438A]\n    (2)\t It is too late in the day to dispute  the  position\nthat  justice has to be administered through the courts\t and\nsuch  administration  would relate to social,  economic\t and\npolitical  aspects of justice. The Judiciary  therefore\t be-\ncomes the most prominent and outstanding wing of the Consti-\ntutional System for fulfilling the mandate of the  Constitu-\ntion.\n434\nFor  its sound functioning, it is necessary that there\tmust\nbe  an efficient judicial system and one of the factors\t for\nproviding  the\trequisite efficiency  is  ensuring  adequate\nstrength. [440E-F]\n    (3)\t For the availability of the appropriate  atmosphere\nwhere  a  Judge would be free to act according to  his\tcon-\nscience it is necessary that he should not be over  burdened\nwith pressure of work which he finds it physically  impossi-\nble  to undertake. This necessarily suggests that the  judge\nstrength  should be adequate to the current requirement\t and\nmust remain under constant review in order that commensurate\nJudge strength may be provided. [441F-G]\nBradley v. Fisher, 80 US 335 1871, referred to.\n    (4)\t It is a matter for immediate attention of all\tcon-\ncerned--and  of Government in particular--that the  Adminis-\ntration\t of Justice is made a plan subject and given  appro-\npriate attention. [444C]\n    (5) Backlog in Courts has become a national problem. The\nadjudicatory  process  is  being blamed\t for  not  equalling\nitself\tto  the challenge of the times. There is  a  general\ncomplaint  that the judicial system is on the verge of\tcol-\nlapse. It is, therefore, the obligation of the constitution-\nal process to keep the system appropriately manned. There is\nno justification for the sluggish move in such an  important\nmatter. [447C-D]\n    (6)\t If  in a given case the Chief Justice of  the\tHigh\nCourt  has recommended and the name has been  considered  by\nthe  Chief Minister and duly processed through the  Governor\nso  as\tto  reach the hands of the Chief  Justice  of  India\nthrough\t the  Ministry of Justice and the Chief\t Justice  of\nIndia  as the highest judicial authority in the country,  on\ndue  application  of  his mind, has given  finality  to\t the\nprocess at his level, there cannot ordinarily be any  justi-\nfication  for reopening the matter merely because there\t has\nbeen  a change in the personal of the Chief Justice  or\t the\nChief  Minister of the State concerned. This has to  be\t the\nrule  and  the policy adopted by the Union of  India  should\nimmediately be given up. [448B-D]\n    (7)\t In the functioning of public offices there  is\t and\nshould be continuity of process and action and all objective\ndecisions  taken  cannot  be  transformed  into\t  subjective\nissues.\t That being the position, recommendations  finalised\nby  the\t Chief Justice of India unless\tfor  any  particular\nreason and unconnected with the mere change of the Chief\n435\nJustice or the Chief Minister justifying the same should not\nbe reopened and if in a given case the Union of India is  of\nthe view that the matter requires to be looked into again  a\nreference  should be made to the Chief Justice of India\t and\nthere  can be a fresh look at the matter only if  the  Chief\nJustice of India permits such a review of the case. [448E-F]\n    (8)\t Consistent  with  the\tconstitutional\tpurpose\t and\nprocess it becomes imperative that the role of the  institu-\ntion  of  the  Chief Justice of India be  recognised  as  of\ncrucial\t importance  in the matter of  appointments  to\t the\nSupreme Court and the High Courts of the States. This aspect\ndealt  with in Gupta's case requires re-consideration  by  a\nlarger bench. [450E]\n    (9)\t In India the judicial institutions,  by  tradition,\nhave an avowed a political commitment and the assurance of a\nnon-political complexion of the judiciary cannot be divorced\nfrom the process of appointments. Constitutional phraseology\nof  \"consultation\"  has\t to  be\t understood  and   expounded\nconsistent  with and to promote this constitutional  spirit.\nThese  implications are, indeed, vital.\t The  constitutional\nvalues cannot be whittled down by calling the appointment of\nJudges\tas an executive act. The appointment is\t rather\t the\nresult\tof  collective,\t constitutional\t process.  It  is  a\nparticipatory  constitutional  function.  It  is,   perhaps,\ninappropriate to refer to any `power' or `right' to  appoint\njudge.\tIt  is essentially a discharge of  a  constitutional\ntrust  of  which certain  constitutional  functionaries\t are\ncollectively repositories. [457D-F]\n    (10) The executive, on whose advice the President  acts,\nas  a participant in the process has its own  important\t and\neffective  role.  To say that the power\t to  appoint  solely\nvests  with  the  executive and that  the  executive,  after\nbestowing such consideration on the result of  consultations\nwith the judicial organ of the State, would be at liberty to\ntake  such  decision as it may think fit in  the  matter  of\nappointments,  is an over-simplification of a sensitive\t and\nsubtle constitutional sentence subversive of the doctrine of\njudicial independence. [457F-G]\n    (11)  The word \"consultation\" is used in  the  constitu-\ntional\tprovision in recognition of the status of  the\thigh\nconstitutional\tdignitary who formally expresses the  result\nof  the institutional process leading to the appointment  of\njudges. To limit that expression to its literal limitations,\nshorn  of its constitutional background and purpose,  is  to\nborrow\tJustice Frankfurter's phrase, \"to stick in the\tbark\nof words\". [458B]\n(12)  Judicial Review is a part of the basic  constitutional\nstructure\n436\nand  one of the basic features of the essential Indian\tCon-\nstitutional  policy. This essential constitutional  doctrine\ndoes not by itself justify or necessitate any primacy to the\nexecutive wing on the ground of its political accountability\nto the electorate. [458C]\n    (13)  It might under certain circumstances be said\tthat\nGovernment is not bound to appoint a judge so recommended by\nthe judicial wing. But to contemplate a power for the execu-\ntive  to appoint a person despite his being  disapproved  or\nnot  recommended by the Chief Justice of the State  and\t the\nChief  Justice\tof India would be wholly  inappropriate\t and\nwould constitute an arbitrary exercise of power. [458D-E]\n    (14)  The purpose of the `consultation' is to  safeguard\nthe independence of the judiciary and to ensure selection of\nproper persons. The matter is not, therefore, to be  consid-\nered that the final say is the exclusive prerogative of\t the\nexecutive government. The recommendations of the appropriate\nconstitutional functionaries from the judicial organ of\t the\nState  has an equally important role. \"Consultation\"  should\nhave sinews to achieve the constitutional purpose and should\nnot be rendered sterile by a literal interpretation.  [458F-\nG]\n    (15) There are preponerant and compelling cousideratious\nwhy  the views of the Chief Justices of the States and\tthat\nof the Chief Justice of India should be afforded a  decisive\nimport unless the executive has some material in its posses-\nsion  which may indicate that the appointment  is  otherwise\nundesirable. [458G-H]\n    (16)  The correctness of the opinion of the majority  in\nS.P.  Gupta's case relating to the status and importance  of\nconsultation,  the  primacy  of the position  of  the  Chief\nJustice\t of India and the views that the fixation  of  Judge\nstrength  is  not justiciable should be\t reconsidered  by  a\nlarger bench. [459B]\n    (17)  In view of the fact that the bulk of vacancies  in\nthe  High  Courts have been filled up, and in  view  of\t the\nassurance  held\t out by the learned  Attorney  General\tthat\nprompt steps are being taken to fill up the remaining vacan-\ncies,  further monitoring for the time being is\t not  neces-\nsary. [459F]\n\n\n\nJUDGMENT:\n<\/pre>\n
    ORIGINAL JURISDICTION: Writ Petition (Civil) Nos.  13003
\nof 1985, 1303 of 1987 and 302 of 1989.\n<\/p>\n
(Under Article 32 of the  Constitution of India)
\n437<\/span>
\nSubhash Sharma Petitioner in person.\n<\/p>\n
    M.S.  Ganeshan, Ms. M. Karanjawala (N.P.),\tH.S.  Anand,
\nP.H. Parekh and Ms. Sunita Sharma for the Petitioners.
\n    Ashok Desai, Solicitor General, Ms. A. Subhashini,\tP.S.
\nPoti,  K.R.  Nambiar, (For Kerala),  Probir  Chowdhury\t(For
\nAssam), A.K. Panda (For Orissa), Ms. G.S. Misra, H.K.  Puri,
\nT.V.S.N.  Chari\t (For  Bihar), S.K.  Agnihotri\t(For  Madhya
\nPradesh),  Ms. Kamini Jaiswal (For Chandigarh), Ms. S.\tDik-
\nshit  (For  U.P.),  V. Krishnamurthy (For  Tamil  Nadu),  B.
\nParthasarthi  (For Andhra Pradesh), Ms. Urmila Kapoor &\t Ms.
\nS. Janani (For Manipur), Aruneshwar Gupta, M.N. Shroff\t(For
\nGujarat).  Mahabir  Singh (For Haryana),  A.S.\tBhasme\t(For
\nMaharashtra),  I. Makwana (For Rajasthan), Ms. Urmila  Kapur
\n(For  Manipur) and M. Veerappa (For Karnataka) the  Respond-
\nents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    RANGANATH MISRA, CJ. These are applications under  Arti-
\ncle  32\t of the Constitution. The first petition  is  by  an
\nadvocate practising in this Court; the second by the Supreme
\nCourt  Advocates on Record Association and the last  by\t the
\nHonorary  Secretary  of the Bombay  Bar\t Association.  These
\napplications  are in the nature of public  interest  litiga-
\ntion. The relief asked for is one for mandamus to the  Union
\nof  India to fill up the vacancies of Judges in the  Supreme
\nCourt and the several High Courts of the country and  ancil-
\nlary  orders of directions in regard to the same. The  peti-
\ntion from Bombay is confined to the relief of filling up  of
\nvacancies in the Bombay High Court. Since common please were
\nadvanced and the relief sought was of similar nature,  these
\napplications have been clubbed together and heard from\ttime
\nto time.\n<\/p>\n
    In\tresponse  to the rule, the Union of India  took\t the
\nstand  through the Attorney General that the petitions\twere
\nnot maintainable and the filling up of the vacancies in\t the
\nsuperior  courts was not a justiciable matter. Reliance\t was
\nplaced\ton the decision of this Court in the case’  of\tS.P.
\nGupta  v.  Union of India, [1982] 2 SCR 365.  The  objection
\nraised by the learned Attorney General was overruled by\t the
\nCourt  by  drawing a distinction between  fixing  the  Judge
\nstrength  in the Courts or selection of judges on  one\tside
\nand  the filling up of vacancies on the basis of  sanctioned
\nstrength on the other. This Court as an interim measure took
\nthe view that while the ratio in S.P. Gupta’s case left\t the
\nmatter\tof fixing up of the Judge strength to the  President
\nof India under the constitutional scheme, and the choice  of
\nJudges to the
\n438<\/span>
\nprescribed  procedure,\tonce  the  sanctioned  strength\t was
\ndetermined  it was the obligation of the Union of  India  to
\nmaintain the sanctioned strength in the superior Courts\t and
\nthese cases were allowed to proceed.\n<\/p>\n
    Mr.\t Soli  Sorabjee, the  succeeding  Attorney  General,
\nwithdrew  the objection regarding this Court’s\tjurisdiction
\nand made a statement that he was of the view that it was the
\nconstitutional\tobligation of the Union of India to  provide
\nthe sanctioned Judge strength in the superior courts and the
\ndefault,  if  any, was a matter of public interest  and\t the
\nwrit  petitions requiring a direction to the Union of  India
\nto fill up the vacancies were maintainable.\n<\/p>\n
\t\t    I
\n    The superior judiciary is divided into the Union Judici-
\nary  covered by Chapter 4 of Part V and the High  Courts  in
\nthe  States are covered by Chapter 5 of Part VI of the\tCon-
\nstitution. Article 124(1) of the Constitution provides:
\n“There\tshall  be a Supreme Court of India consisting  of  a
\nChief  Justice\tof India and, until Parliament by  law\tpre-
\nscribes\t a  larger  number, of not  more  than\tseven  other
\nJudges.”\n<\/p>\n
From  time to time the Judge strength in the  Supreme  Court
\nhas  been  expanded  and by the\t Supreme  Court\t (Number  of
\nJudges)\t Amendment  . Act, 1986 (22 of 1986),  the  existing
\nnumber\thas been fixed at 25 apart from the  Chief  Justice.
\nArticle 2 14 provides:\n<\/p>\n
“There shall be a High Court for each State.”
\nBut  there are 18 High Courts in all on account of the\tfact
\nthat the High Court at Guwahati exercises jurisdiction\tover
\nsix States including Assam; the High Court at Chandigarh  is
\ncommon\tfor the States of Punjab and Haryana and the  juris-
\ndiction of the High Court of Bombay extends over Goa.  There
\nis  High Court at Delhi though the mandate of Article  2  14
\ndoes not apply. Article 2 16 provides:\n<\/p>\n
“Every High Court shall consist of a Chief Justice and\tsuch
\nother Judges as the President may from time to time deem  it
\nnecessary to appoint.”\n<\/p>\n
439<\/span><\/p>\n
From time to time administratively the Judge strength of the
\ndifferent  High Courts has been retired. At the\t time  these
\nmatters\t were first placed before us the total strength\t was
\n462  but later it has been enhanced to 470. The\t enhancement
\nhas  been on account of the fact that in the Judge  strength
\nof the High Courts of Calcutta,. Himachal Pradesh,  Karnata-
\nka,  Madras and Rajasthan had ten additions in all  and\t the
\nsanctioned strength of the Kerala High Court was reduced  by
\ntwo.  There  was a time during the pendency  of\t these\twrit
\npetitions affidavit filed before this Court on behalf of the
\nMinistry of Law & Justice the position as on 20th of  Febru-
\nary, 1990, showed that as against the sanctioned strength of
\n462,368 had been filled up and the vacancies were 94 in all.
\nBy 16.8.1980, the sanctioned strength had gone up to 470 and
\nas against these, 440 appointments had been made. The  total
\nposts to be filled up were 30 in number–19 being  permanent
\nand 11 additional vacancies. We gather that by now some more
\nappointments have been made and the number of unfilled posts
\nhas been reduced to around 22.\n<\/p>\n
    These cases were adjourned from time to time with inter-
\nim  directions\tcalling upon Union of India to fill  up\t the
\nvacancies within specified dates. As a result of  monitoring
\nby  the Court by interim directions in these petitions,\t the
\nposition has somewhat eased but 22 vacancies still remain to
\nbe  filled up. With retirements and other cognate  processes
\nthe number of vacancies keeps increasing from time to time.
\n    We had made it clear to the learned Attorney General  at
\nthe several interlocutory hearings that these petitions\t and
\nthe  Court’s directions have nothing to do with\t the  actual
\nselection of particular Judges to be appointed in the vacan-
\ncies and that was a matter exclusively within the domain  of
\nthe  constitutional  scheme  and concern  of  the  concerned
\nconstitutional functionaries. These petitions are  concerned
\nwith  the filling up of vacancies and discharge of the\tcon-
\nstitutional  obligation of the Union of India to the  nation
\nin  that behalf. We may point out that filing of these\twrit
\npetitions  and the proceedings of the Court have helped\t the
\nUnion  of India to fill up the vacancies to  a\tconsiderable
\nextent by making the various constitutional authorities con-
\nscious of the urgency of problem and of their responses.  We
\nhave  noticed the fact that while the process of filling  up
\nof  vacancies  was considerably slow prior  to\tthe  general
\nelection held in November, 1989, there has been an  improve-
\nment in the process from January this year. We have,  howev-
\ner, not been able to appreciate the stand taken
\n440<\/span>
\nin some of the affidavits of the Union of India that as\t the
\nplace  and process of appointments has been  expedited,\t the
\nwrit-petitions be taken to have served their purpose and  do
\nnot  survive. We recall several occasions when\tour  interim
\ndirections were received not with any conspicuous enthusiasm
\nand other occasions when inspite of assurance and  undertak-
\nings no progress was noticed.\n<\/p>\n
\t\t  II
\n    For more than six scores of years High Courts have\tbeen
\nfunctioning  in this country. Earlier appeals lay  from\t the
\nHigh  Courts  to the Privy Council  in\tcertain\t situations.
\nUnder the Government of India Act, 1935, a Federal Court was
\nstipulated  which started functioning from 1937. With  Inde-
\npendence  of  India in 1947, the jurisdiction of  the  Privy
\nCouncil\t got repealed. Our Constitution provided for  a\t Su-
\npreme  Court  for the entire country and a  High  Court\t for
\nevery State. The superior judiciary in India now, therefore,
\nconsists  of the Supreme Court and the High Courts.  Article
\n50 in Part IV of the Constitution required the State to take
\nsteps  to separate the Judiciary from the Executive  in\t the
\npublic\tservices of the States. By now that has\t been  done.
\nThe  constitutional scheme postulates Rule of Law and  inde-
\npendence of the judiciary. With a view to providing the same
\nas  an indispensable factor for the sustenance of the  demo-
\ncratic pattern of society, provisions have been made in\t the
\nConstitution.\n<\/p>\n
    The\t   Preamble   of   our\t  Constitution\t  stipulates
\njustice–social, economic and political for all citizens  of
\nIndia.\tIt  is too late in the day to dispute  the  position
\nthat  justice has to be administered through the courts\t and
\nsuch  administration  would relate to social,  economic\t and
\npolitical  aspects of justice. The Judiciary  therefore\t be-
\ncomes the most prominent and outstanding wing of the Consti-
\ntutional System for fulfilling the mandate of the  Constitu-
\ntion. For its sound functioning, it is, therefore, necessary
\nthat  there must be an efficient judicial system and one  of
\nthe factors for providing the requisite efficiency is ensur-
\ning adequate strength.\n<\/p>\n
    For Rule of Law to prevail, judicial independence is  of
\nprime necessity. Dr. Robert MacGregor Dawson, speaking about
\nindividual independence of Judges once said:
\n“The  Judge  must  be made independent of most\tof  the\t re-
\nstraints,  checks and punishments which are  usually  called
\ninto  play against other public officers  ………….\t  He
\nis
\n441<\/span>
\nthus protected against some of the most potent weapons which
\na democracy has at its command: he receives almost  complete
\nprotection against criticism; he is given civil and criminal
\nimmunity for acts committed in the discharge of his  duties;
\nhe  cannot be removed from office for any ordinary  offence,
\nbut  only  of misbehaviour of a flagrant kind,\tand  he\t can
\nnever  be removed simply because his decisions happen to  be
\ndisliked by the Cabinet, the Parliament, or the people. Such
\nindependence is unquestionably dangerous, and if this  free-
\ndom  and  power were indiscriminately  granted\tthe  results
\nwould certainly prove to be disastrous. The desired  protec-
\ntion  is found by picking with special care the men who\t are
\nto be entrusted with these responsibilities, and then  para-
\ndoxically  heaping  more privileges upon them  to  stimulate
\ntheir sense of moral responsibility, which is called in as a
\nsubstitute  for the political responsibility which has\tbeen
\nremoved.  The Judge is placed in the position where  he\t has
\nnothing to loss by doing what is right and little to gain by
\ndoing what is wrong; and there is therefore every reason  to
\nhope that his best efforts will be devoted to the  conscien-
\ntious performance of his duties.”\n<\/p>\n
In Bradley v. Fisher, 80 US 335 (1871) it was pointed out:
\n“Our  judicial\tsystem\tis guided by the  principle  that  a
\njudicial officer, in exercising the authority vested in\t him
\nmust be free to act upon his own convictions, without appre-
\nhension of personal consequences to himself.”\n<\/p>\n
    For the availability of an appropriate atmosphere  where
\na Judge would be free to act according to his conscience  it
\nis necessary, therefore, that he should not be over burdened
\nwith pressure of work which he finds it physically  impossi-
\nble  to undertake. This necessarily suggests that the  Judge
\nstrength  should be adequate to the current requirement\t and
\nmust remain under constant review in order that commensurate
\nJudge strength may be provided.\n<\/p>\n
    Within a few years of functioning under the aegis of the
\nConstitution  our  people started realising that  there\t was
\nbacklog\t in  courts and the same was on rapid  and  constant
\nincrease.  The Law Commission in its 14th Report in  Septem-
\nber,  1958,  dealt with the question  adequacy\tof  judicial
\nstrength as a matter of special importance. It pointed out:\n<\/p>\n
442<\/span><\/p>\n
“The  fundamental rights conferred by the  Constitution\t and
\nresort\tto the remedies provided for their enforcement\thave
\ncontributed largely to the increase in the volume of work in
\nthe High Courts. Applications for the enforcement of  funda-
\nmental rights, applications seeking to restrain the  usurpa-
\ntion  of jurisdiction by administrative bodies and  applica-
\ntions  or  suits challenging the constitutionality  of\tlaws
\nhave  made large additions to the pending files of the\tHigh
\nCourts.\t It has to be observed that many laws have  come  in
\nfor  challenge in the courts on the ground of  their  incon-
\nsistency  with\tthe Constitution. The complexity  of  recent
\nlegislation  has  resulted in a large number  of  novel\t and
\ndifficult  questions  having been brought  before  the\tHigh
\nCourts.\t Their decision have not only taken longer time\t but
\nhave led not infrequently to reference to Full Benches which
\nnecessarily  divert the available judge power from what\t may
\nbe  called normal judicial work. As a result of\t this  large
\naddition  to their work, the disposal of ordinary civil\t and
\ncriminal work in the High Courts has suffered very consider-
\nably. This increase of work and its specially difficult\t and
\nnovel  character can well be regarded as an important  cause
\nof the accumulation of old cases.”\n<\/p>\n
The  Law Commission emphasised the position by further\tsay-
\ning:\n<\/p>\n
“Governments  could not have been unaware, at any rate\tfrom
\n1950  onwards, that the files of the High Courts were  being
\nloaded\twith  a large amount of additional work.  The  large
\nnumber of writ applications and applications questioning the
\nconstitutionality of enactments and rules flamed  thereunder
\nmust  have come directly to the notice of  the\tGovernments.
\nResponsible  persons cannot also have failed to notice\tthat
\nthe  disposal  of  these complicated and in  a\tsense  novel
\nmatters consumed a great deal of the time of the High Courts
\nwhich had the natural consequence of clogging the normal and
\nusual work.”\n<\/p>\n
    Inspite  of\t highlighting  of the position\tby  the\t Law
\nCommission  and the warning administered by it, the  process
\nof  providing adequate judge strength commensurate with\t the
\nvolume\tof  litigation\thas been  usually  slow.  Subsequent
\nreports of the Law Commission have referred to this aspect.\n<\/p>\n
443<\/span><\/p>\n
    The\t Commission took note of the position that due\tcon-
\nsideration was not being bestowed upon the administration of
\njustice\t and the importance of the subject was not  realised
\nby  the\t Executive authorities. Lack of\t adequate  financial
\nprovision and absence of appropriate funding of schemes\t for
\nimprovement often led to abandonment of contemplated  whole-
\nsome  measures\tand made long term  planning  difficult.  In
\nfact, the plea from several relevant quarters that `Adminis-
\ntration\t of Justice’ should be treated as a  `plan  subject’
\nhas  not  been entertained all these years. It has  been  so
\nmore  on account of lack of appropriate appreciation of\t the
\nimportance of the matter than anything also.
\n    Lord  Denning  of the Preface to the Law  in  Crisis  by
\nProfessor C.G. Weera Mantry has said:\n<\/p>\n
“We are passing through a critical moment in the history  of
\nmankind.  Civilised  society appears to\t be  disintegrating.
\nMinorities  openly defy the law for their own ends.  Terror-
\nists  seize hostages and threaten to-kill them. Workmen\t set
\nup picket hives outside power stations and threaten to bring
\nthe  country to a standstill. Students occupy buildings\t and
\nprevent\t the running of their universities. Only  too  often
\ntheir  threats succeed. The peaceful majority give in.\tThey
\nsurrender.\n<\/p>\n
\t Moral and spiritual values, too, appear to be at  a
\nlow  ebb. The sanctions of religion have lost  their  force.
\nSchools and teachers take much interest in social  sciences.
\nThey  explain how people behave. They seek to help the\tmis-
\nfits.  But they do not set forth standards of conduct.\tThey
\ndo not tell people how to behave. The only discipline to  do
\nthis  is the discipline of law. It is the law which  teaches
\nthat  men must not resort to violence to obtain their  ends;
\nthat  they  must keep their promises; they must\t not  injure
\ntheir  neighbours and they must act fairly. The\t law  covers
\nthe whole range of human behaviour and says what men must do
\nand  must not do  …….  Law which is the very  foundation
\nof the civilized society is in peril.”\n<\/p>\n
    Sir Frederick Pollock in one of his lectures pointed out
\nthat  long indifference to the legal system and to all\tthat
\ngoes with it is the result of many generations of neglect in
\ncommunicating  to the layman some understanding of the\tvery
\nground work of the legal system under which
\n444<\/span>
\nhe spends his life. Religion, politics, art, literature–all
\nthese  are taught as part of general education, but not\t the
\nfundamentals  concerning the administration of law, nor\t the
\nhistory\t of liberty nor the need for public  vigilance\tover
\nits  legal system. It is not surprise that faith and  confi-
\ndence  in the law are steadily declining and legal  systems,
\nby  and Large, are losing their base of popular\t support  on
\nwhich they must ultimately rely.\n<\/p>\n
    We\tare living in an age when all  traditional  institu-
\ntions are under scrutiny, suspicion and challenges of  reas-
\nsessment. If the current mood of disillusionment infects the
\ncore  of the law and its institutions, we may have lost\t our
\nlast  opportunity for the preservation of freedom under\t the
\nLaw.  It is, therefore, a matter for immediate attention  of
\nall  concerned–and  of Government in  particular–that\t the
\nneed is recognised and the Administration of Justice is made
\na plain subject and given appropriate attention.
\n    It\tis true that the number of High Courts\tcompared  to
\n1950 has increased in later years. It is also true that\t the
\nJudge  strength has been increased. It is, however,  equally
\ntrue that the enhancement has not been commensurate. After a
\nlot  of exercise, per year disposal per Judge of main  cases
\nhas been fixed at 650. If this be the basis, perhaps no High
\nCourt in India excepting that for Sikkim has adequate  judge
\nstrength.\n<\/p>\n
     e\tgather\tthat the Kerala High Court where  the  sanc-
\ntioned\tstrength  has been reduced by 2,  has  a  sanctioned
\nstrength 22 while its pendency as on 1.1. 1990 being  34,330
\ncases  justifies a Judge strength of almost 50 on the  basis
\nof the measure of 650 cases per Judge per year. We intend to
\nindicate  that there was no justification for  reduction  of
\nthe sanctioned strength.\n<\/p>\n
    We\tare alive to the position that in S.P. Gupta’s\tcase
\nthis  aspect has been held to be not justiciable. We do\t not
\nagree  with  the opinion expressed by the majority  on\tthis
\naspect\tand  are of the opinion that  that  aspect  requires
\nreconsideration.  For the present we suggest  to  Government
\nthat  the  matter should be reviewed from time to  time\t and
\nsteps  should  be  taken  for  determining  the\t  sanctioned
\nstrength  in  a pragmatic way on the basis of  the  existing
\nneed.  If there be no correlation between the need  and\t the
\nsanctioned  strength and the provision of judge-manpower  is
\ntotally\t inadequate,  the necessary consequence\t has  to  be
\nbacklog and sluggish enforcement of the Rule of Law.\n<\/p>\n
445<\/span><\/p>\n
III
\n    Another reason directly contributing to backlog and\t its
\nincrease is the non-filling up of the sanctioned  vacancies.
\nUnder the traditional process followed the matter, steps for
\nfilling\t up  of vacancies have been initiated by  the  Chief
\nJustice\t of  the  High Court six months in  advance  of\t the
\noccurrence of the vacancy. The date of retirement of a Judge
\nis  known  on the date he enters office\t unless\t vacancy  is
\ncaused\tby  resignation, removal by  impeachment  or  death.
\nApart  from these eventualities, the date of vacancy in\t the
\npost  being  known for years before there can really  be  no
\njustifiable  excuse for inaction in the initiation of  steps
\nfor  filling  up the vacancy well in advance of\t its  actual
\noccurrance.  The existing scheme of appointment\t involves  a
\nprocess of consultation with the Chief Justice, the Governor
\nof  the State, the Chief Justice of India before the  Presi-
\ndent of India makes the appointment. The involvement of\t the
\nGovernor  brings  in  the Chief\t Minister  and\tPresidential
\naction\tinvolves the Central Government. If, however,  every
\nfunctionary associated with the process remains cognisant of
\nthe constitutional obligation involved in the matter we\t see
\nno  justification as to why for selection of  the  incumbent
\nmore  than  3 to 4 months should be  necessary.\t The  system
\nshould be so perfect and smooth that with the retirement  of
\none  Judge his successor should be ready to step in  and  by
\nthis process not a day’s judge strength should be lost to  a
\nHigh Court.\n<\/p>\n
    The\t question of appointment of Judge was  the  subject-
\nmatter of the 80th Report of the Law Commission. It referred
\nto its earlier Report (1979) where it was said:
\n“As mentioned earlier, though the sanctioned judge  strength
\nof  the High Courts in the country during the year 1977\t was
\n352,  only 287 judges on an average were in position.  Like-
\nrise, in the year 1976, even though the sanctioned  strength
\nwas 351, only 292 judges were in position. Leaving aside the
\njudges\twho  were entrusted with work outside  their  normal
\nduties, the fact remains that the number of judges in  posi-
\ntion  in  both\tthe  years  was\t less  than  the  sanctioned
\nstrength.  This disparity between the  sanctioned  strength,
\nand  the number of judges in position was apparently due  to
\nthe  fact that vacancies in the post were not filled  in  as
\nsoon  as  they occurred. It is our considered  opinion\tthat
\ndelay  in filling in the vacancies is one of the major\tcon-
\ntrolling factors reasonsible for the filling accu-\n<\/p>\n
446<\/span><\/p>\n
mulation  of  arrears.\tIn our opinion, when  a\t vacancy  is
\nexpected  to arise out of the retirement of a  judge,  steps
\nfor filling in the vacancy should be initiated six months in
\nadvance.  The  date on which such a  vacancy  will  normally
\narise is always known to the Chief Justice of the High Court
\nand  also  to others concerned. It should  be  ensured\tthat
\nnecessary formalities for the appointment of a Judge to fill
\nthe  vacancy are completed by the date on which the  vacancy
\noccurs.”\n<\/p>\n
Several other reasons contributing to the non-filling up  of
\nvacancies were brought to the fore in the Report. Obviously,
\nthe  reports furnished by the Law Commissions from  time  to
\ntime  have not received adequate consideration in the  hands
\nof the appropriate authorities and administration of justice
\nhas  not  received its due attention. This has\tresulted  in
\nthe_   obstinate problem of backlog.\n<\/p>\n
    Prolongation  of litigation is perhaps a necessary\tevil
\nof  our\t type  of adjudicatory system.\tDacon  (Law  Tracts)
\nlisted\tthe  grievances\t of his times against  the  laws  of
\nEngland and the Justice system in the following way:
\n“Certain it is that our laws, as they now stand, are subject
\nto  great uncertainties, and variety of opinion, delays\t and
\nevasions  whereof  ensueth: (i) that  the  multiplicity\t and
\nlength\tof suits in great; (ii) that the contentious  person
\nis armed and the honest subject wearied and oppressed; (iii)
\nthat  the  judge is more absolute, who, in  doubtful  cases,
\nhath  a\t greater scope and liberty; (iv) that  the  chancery
\ncourts are more filled, the remedy of law being often absent
\nand  doubtful;\t(v) that the ignorant lawyer  shroudeth\t his
\nignorance of law, in that doubts are frequent and many;\t and\n<\/p>\n
(vi)  that  men’s assurances of their lands and\t estates  by
\npatents,  deeds,  wills are often subject  to  question\t and
\nhollow\t…….\t ”\n<\/p>\n
    Bacon’s description to a considerable extent  represents
\neven  today’s  situation. The volume of litigation  has\t in-
\ncreased\t while there has been no commensurate  expansion  of
\nthe adjudicatory machinery.\n<\/p>\n
    When  interim  directions made in these cases  were\t not
\nyielding  results, the Attorney General mentioned to  us  on
\nrepeated occasions that the consultations were taking  time.
\nVery often, while the Chief
\n447<\/span>
\nJustice\t of the High Court had made his recommendation,\t the
\nresponse  from\tthe Chief Minister through the\tGovernor  of
\nthe-State  was\tnot forthcoming, he used  to  say.  Repeated
\nreminders were being sent from the Union Government and they
\nwent unheaded. On one occasion to meet the stalemate we\t had
\nindicated  in an interlocutory order that a time frame\tmust
\nbe  set for the response of the constitutional authority  in
\nthe  State and if there was no response\t forthcoming  within
\nthe  time,  the Union of India should be in  a\tposition  to
\nproceed with the recommendation of the Chief Justice of\t the
\nHigh Court. That even bore no fruit.\n<\/p>\n
    Backlog  in\t Courts has become a national  problem.\t The
\nadjudicatory  process  is  being blamed\t for  the  equalling
\nitself\tto  the challenge of the times. There is  a  general
\ncomplaint  that the judicial system is on the verge of\tcol-
\nlapse. It is, therefore, the obligation of the constitution-
\nal process to keep the system appropriately manned. We\thave
\nfound  no  justification for the sluggish move\tin  such  an
\nimportant matter.\n<\/p>\n
    We\tmay,  at  this stage,  advert  to  the\tConstitution
\n(Sixty-Seventh\tAmendment)  Bill,  1990,  which\t is  pending
\nbefore\tthe  Parliament.  In the statement  of\tobjects\t and
\nreasons of this Bill, it has been stated:\n<\/p>\n
“The  Government of India have in the recent past  announced
\ntheir intention to set up a high level judicial\t commission,
\nto  be called the National Judicial Commission for  the\t ap-
\npointment  of  Judges of the Supreme Court and of  the\tHigh
\nCourts\tand the transfer of Judges of the High Courts so  as
\nto  obviate the criticisms of arbitrariness on the  part  of
\nthe Executive in such appointments and transfers and also to
\nmake such appointments without any delay. The Law Commission
\nof India in their 121st Report also emphasised the need\t for
\na change in the system.”\n<\/p>\n
    This  part of the statement obviously accepts the  posi-
\ntion  that Government are satisfied that there is basis\t for
\ncriticism of the arbitrariness on the part of the  Executive
\nand  the modality adopted following S.P. Gupta’s  ratio\t has
\nled to delay in the making of appointments which the Consti-
\ntutional Amendment seeks to eliminate.\n<\/p>\n
    From the affidavits filed by the Union of India and\t the
\nstatements made by learned Attorney General on the different
\noccasions when the matter was heard. We found that the Union
\nGovernment had
\n448<\/span>
\nadopted the policy of reopening recommendations even  though
\nthe  same had been cleared by the Chief Justice of India  on
\nthe  basis that there had in the meantime been a  change  in
\nthe personnel of the Chief Justice of the High Court or\t the
\nChief Minister of the State. The selection of a person as  a
\nJudge  has nothing personal either to the Chief\t Justice  of
\nthe High Court or the Chief Minister, of the State. The High
\nCourt  is an institution of national importance wherein\t the
\nperson\tappointed  as  a Judge functions  in  an  impersonal
\nmanner.\t The process of selection is intended to be  totally
\nhonest\tand  upright  with a view to finding  out  the\tmost
\nsuitable  person  for the vacancy. If in a  given  case\t the
\nChief Justice of the High Court has recommended and the name
\nhas been considered by the Chief Minister and duly processed
\nthrough\t the Governor so as to reach the hands of the  Chief
\nJustice\t of  India through the Ministry of Justice  and\t the
\nChief Justice of India as the highest judicial authority  in
\nthe  country,  on  due application of his  mind,  has  given
\nfinality to the process at his level, there cannot ordinari-
\nly  be\tany justification for reopening\t the  matter  merely
\nbecause\t there\thas been a change in the  personnel  of\t the
\nChief Justice or the Chief Minister of the State  concerned.
\nWe intend to make it clear that this has to be the rule\t and
\nthe  policy adopted by the Union of India as has been  indi-
\ncated to us in Court by the learned Attorney General  should
\nimmediately  be given up. In the functioning of\t public\t of-
\nfices  there  is and should be a continuity of\tprocess\t and
\naction\tand all objective decisions taken cannot  be  trans-
\nformed\t  into\t subjective   issues.\tThat\tbeing\t the
\nposition, .recommendations finalised by the Chief Justice of
\nIndia unless for any particular reason and unconnected\twith
\nthe  mere change of the Chief Justice or the Chief  Minister
\njustifying the same should not be reopened and if in a given
\ncase  the  Union  of India is of the view  that\t the  matter
\nrequires to be looked into again a reference should be\tmade
\nto the Chief Justice of India and there can be a fresh\tlook
\nat  the\t matter only if the Chief Justice of  India  permits
\nsuch a review of the case. In fact, as an interim measure we
\nhad  indicated that this should be the position but we\tfind
\nthat  steps contrary to the expression of this opinion\thave
\nbeen  taken. That is why we have found it necessary  to\t re-
\nstate the opinion. Government shall take appropriate  action
\nin accordance with this principle.\n<\/p>\n
IV
\n    An independent non-political judiciary is crucial to the
\nsustenance  of our chosen political system. The vitality  of
\nthe  democratic process, the ideals of social  and  economic
\negalitarianism,\t the imperatives of a socio-economic  trans-
\nformation envisioned by the constitution as well as the Rule
\nof  law\t and great values of liberty and  equality  are\t all
\ndependent on the tone of the judiciary. The quality of the
\n449<\/span>
\njudiciary  cannot remain unaffected, inturn, in the  process
\nof  selection  of Judges.\n<\/p>\n
    Some of the important aspects of selection and  appoint-
\nment of Judges fell for debate before a seven-judge bench in
\nS.P.  Gupta’s  case [1982] 2 SCR 365.  The  controversy\t was
\ntriggered-off by a circular dated 13th March, 1981 issued by
\nthe  Union Law Minister addressed to the Governor of  Punjab
\nand  the  Chief\t Ministers of the States  referring  to\t the
\ndesirability of one-third of the judges of the High  Courts,
\nas  for\t as possible, being from outside the  State  in\t the
\ninterest  of  `National Integration’ and “to  combat  narrow
\nparochial  tendency bred by caste, kinship and\tother  local
\nlinks and affiliations.”  The circular requested the  Gover-
\nnor and the Chief Ministers to obtain from all the addition-
\nal  judges  working in the High Court  in  their  respective
\nStates their consent to be appointed as permanent judges  in
\nthe other High Courts of the country and also to obtain from
\npersons\t who  had  already been, or may in  the\t future\t be,
\nproposed  for  initial appointment their consent to  be\t ap-
\npointed\t to any other High Court in the country.  The  addi-
\ntional\tjudges as well as the proposed-appointees were\talso
\nasked to name three High Court, in the order of\t preference,
\nto  which they would prefer to be so appointed as  permanent
\njudges.\t The main issues that fell for consideration in\t the
\ncase were whether the said circular interfered with judicial
\nindependence;  whether at all, and if so under what  circum-
\nstances,  a  judge  of High Court could\t be  transferred  to
\nanother High Court without his consent; and as to the crite-
\nria  on\t which an additional judge was entitled to  be\tmade
\npermanent.  Several  inciental issues such  as\twhether\t the
\nlawyers who brought the petitions had the requisite  `stand-
\ning to sue’; whether the records of the Government  pertain-
\ning  to\t the appointment or  non-appointment  of  additional
\njudges\tas  permanent judges and to the transfer  of  judges
\nwere  privileged from disclosure and, more importantly,\t the
\nquestion as to the significance and status of the process of
\n`consultation’\tenvisaged in the constitutional\t process  of
\nappointment of judges and the primacy of the position of the
\ninstitution  of the Chief Justice of India in the  consulta-
\ntive  process–whether the opinion and advice of  the  Chief
\nJustice\t of India was on the same significance as  those  of
\nthe other constitutional `functionaries viz., the  Governor,
\nthe  Chief  Justice  of\t the  State  who  consulted  in\t the
\nmatter–also  came to be debated. In our opinion,  the\tview
\nexpressed by four learned Judges whose views constituted the
\nmajority on the point–the other three learned judges took a
\ndifferent  view–vitally affects the concept and  values  of
\njudicial independence.\n<\/p>\n
That  case,  indeed, traversed a wide ground  and  range  of
\nideas.\n<\/p>\n
450<\/span><\/p>\n
Referring  to that case a critical-review published  in\t the
\nInternational  and Comparative Law Quarterly [vol.  33-1984]
\nsaid.\n<\/p>\n
“In reaching these conclusions, members of the Court  passed
\nover  much fascinating ground, and it gives  intriguing\t in-
\nsight  into  the attitude of the  Indian  judiciary  towards
\ntheir  own role and that of the Constitution in the  context
\nof  India today. Some of the most  interesting\tobservations
\nare obiter, but that does not necessarily detract from their
\nimportance in the decision of a final court of appeal.”
\nThe  view taken by Bhagwati J., Fazal Ali J. Dasai  J.,\t and
\nVenkataramiah J., to which we will presently advert, in\t our
\nopinion, not only seriously detracts from denudes the prima-
\ncy  of the position, implicit in the constitutional  scheme,
\nof  the Chief Justice of India in the  consultative  process
\nbut  also whittles down the very significance of  “consulta-
\ntion”  as  required to be understood in\t the  constitutional
\nscheme and context. This bears both on the substance and the
\nprocess\t of  the constitutional scheme.\t The  constitutional
\nphraseology  would require to be read and expounded  in\t the
\ncontext\t of the constitutional philosophy of  separation  of
\npowers\tto  the\t extent recognised and\tadumbrated  and\t the
\ncherished  values of judicial independence. Consistent\twith
\nthe constitutional purpose and process it becomes imperative
\nthat  the  role of the institution of the Chief\t Justice  of
\nIndia  be recognised as of crucial importance in the  matter
\nof  appointments to the Supreme Court and the High Court  of
\nthe  States. We are of the view that this aspect dealt\twith
\nin Gupta’s case requires re-consideration by a larger bench.
\n    The\t points which require to be re-considered relate  to
\nand  arise from the views of the majority  opinion  touching
\nthe very status of “consultation” generally and in  particu-
\nlar  with reference to “consultation” with Chief Justice  of
\nIndia  and, secondly, as to the primacy of the role  of\t the
\nChief Justice of India. The content and quality of consulta-
\ntion may perhaps vary in different situations in the  inter-
\naction between the executive and the judicial organs of\t the
\nState and same aspects may require clarification.
\n    There is yet another aspect as to the right to  initiate
\nthe  appointments  of Judges. In regard to this\t aspect,  in
\npractice,  there  appears to have been a distortion  of\t the
\nscope  of  the\tobservations of the majority,  even  to\t the
\nextent\tthese  observations  go. The  statement\t that  there
\nshould\tbe no embargo on the State executive initiating\t the
\nproposal  for appointments goes with the qualification\tthat
\nthe State executive can-\n<\/p>\n
451<\/span><\/p>\n
not send its proposals directly to the Union Government\t but
\nshould\tfirst  send it to the Chief Justice  of\t the  State.
\nDesai J., clearly and unambiguously qualified this right  of
\nthe executive thus:\n<\/p>\n
\t  “.   ……..\t  Similarly,  mere could  not  be  a
\nblanket\t embargo on the State executive initiating the\tpro-
\nposal. We agree that the State executive should not make its
\nown  recommendation and forward it directly to\tthe  Centre.
\nThe  State  executive  initiating the  proposal\t must  first
\nforward it to the Chief Justice of the High Court who  would
\nbe better informed about the practising advocates as well as
\nthe District Judges subordinate to the High Court, and\tseek
\nthe  views  of the Chief Justice. The view of  both  may  be
\nforwarded to the Chief Justice of India\t …..\t”
\n(Emphasis Supplied)
\n    But\t it has been mentioned that a practice is sought  to
\nbe  developed  where the executive Government of  the  State
\nsends up the proposals directly to the Centre without refer-
\nence to the Chief Justice of the State. This is a distortion
\nof the constitutional scheme and is wholly impermissible. So
\nfar  as the executive is concerned, the `right’ to  initiate
\nan  appointment should be limited to suggesting\t appropriate
\nnames  to the Chief Justice of the High Courts or the  Chief
\nJustice\t of India. If the recommendation is to\temanate\t di-
\nrectly\tfrom a source other than that of the Chief  Justices
\nof  the High Courts in the case of the High Courts  and\t the
\nChief  Justice of India in the case of both the High  Courts
\nand the Supreme Court it would be difficult for an appropri-
\nate selection to be made. It has been increasingly felt over
\nthe  decades that there has been an anxiety on the  part  of
\nthe Government of the day to assest its choice in the  ulti-
\nmate  selection of Judges. If the power to  recommend  would
\nvest in the State Government or even the Central Government,
\nthe  picture  is  likely to be blurred and  the\t process  of
\nselection ultimately may turn out to be difficult.
\n    Returning  to the views of the majority, we may set\t out
\nthe  views  of these learned Judges in the  Judgment  as  to
\n“consultation”\tand  primacy of the position  of  the  Chief
\nJustice\t of India which would, in our opinion,\trequire\t re-
\nconsideration.\tReferring  to `Consultation’ in\t Article  1-
\n24(2) and 217(1) Bhagwati, said:\n<\/p>\n
”   ….  Iris obvious on a plain reading of clause  (2)  of
\nArticle\t 124 that it is the President, which in\t effect\t and
\nsubstance  means the Central Government, which is  empowered
\nby the
\n452<\/span>
\nConstitution to appoint Judges of the Supreme Court  ….
\nIt  is clear on a plain reading of these two  Articles\tthat
\nthe  Chief Justice of India, the Chief Justice of  the\tHigh
\nCourt  and such other Judges of the High Courts and  of\t the
\nSupreme\t Court as the Central Government may deem it  neces-
\nsary  to  consult, are merely  constitutional  functionaries
\nhaving\ta  consultative role and the  power  of\t appointment
\nresides\t   solely   and\t  exclusively\tin    the    Central
\nGovernment  ….  ”\n<\/p>\n
\t ”  ….  But, while giving the fullest meaning\t and
\neffect\tto `consultation’, it must be borne in mind that  it
\nis only consultation which is provided by way of fetter upon
\nthe  power of appointment vested in the\t Central  Government
\nand consultation cannot be equated with concurrence  …….
\nIt  would  therefore be open to the  Central  Government  to
\nover-ride the opinion given by the constitutional  function-
\naries  required\t to be consulted and to arrive\tat  its\t own
\ndecision in regard to the appointment of a Judge in the High
\nCourt  or  the Supreme Court  ……………. Even  if\t the
\nopinion\t given by all the constitutional functionaries\tcon-
\nsulted\tby  it is identical, the Central Government  is\t not
\nbound to act in accordance with such opinion  ….  ”
\n(emphasis supplied)
\n[See: [1982] 2 SCR 540, 541,542]
\nAs to the primacy of the position of Chief Justice of India,
\nthe learned Judge observed:\n<\/p>\n
”  ….\t It was contended on behalf of the petitioners\tthat
\nwhere  there is difference of opinion amongst the  constitu-
\ntional\tfunctionaries required to be consulted, the  opinion
\nof the Chief Justice of India should have primacy, since  he
\nis  the head of the Indian Judiciary and pater\tfamilies  of
\nthe judicial fraternity. We find ourselves unable to  accept
\nthis  contention   ……….  Article 217  places  all\t the
\nthree  constitutional functionaries on the same pedestal  so
\nfar as the process of consultation is concerned.
\n(emphasis supplied)
\n“It is therefore, clear that where there is difference of
\n453<\/span>
\nopinion\t amongst the constitutional functionaries in  regard
\nto  appointment of a Judge in a High Court, the\t opinion  of
\nnone  of  the constitutional functionaries  is\tentitled  10
\nprimacy\t but  after considering the opinion of each  of\t the
\nconstitutional\tfunctionaries and giving it due weight,\t the
\nCentral\t Government is entitled to come to its own  decision
\nas to which opinion it should accept in deciding whether  or
\nnot to appoint the particular person as a Judge\t …..\t”
\n(emphasis supplied)
\n[See: [1982] 2 SCR 543 and 545]
\n    Certain observations of Fazal Ali J., on judicial  inde-
\npendence,  indeed,  reflect the state of acute\tpoverty\t and
\nignorance  of  the large masses of Indian  society  and\t the
\nconsequent  lack of awareness on their part of the  niceties
\nof  the\t controversy and the general air  of  cynicism\tthat
\ndegenerating  standards\t in public-life\t has  engendered  in
\nthem..\n<\/p>\n
Learned judge observed:\n<\/p>\n
“There\tis another fact of life which,\thowever\t unpleasant,
\ncannot\tbe denied and this is that precious little  are\t our
\nmasses or litigants concerned with which Judge is  appointed
\nor not appointed or which one is continued or not continued.
\nThe  high sounding concept of independence of  judiciary  or
\nprimacy of one or the other of the Constitutional  function-
\naries  or the mode of effective consultation are matters  of
\nacademic   interest   in   which  our\tmasses\t are   least
\ninterest  …..\n<\/p>\n
\t “It is only a sizeable section of the intellectuals
\nconsisting  of\tthe press and the lawyers who  have  made  a
\nprestigious  issue of the independence of the  judiciary.  I
\ncan fully understand that lawyers or other persons  directly
\nconnected  with\t the administration of justice\tmay  have  a
\ngrievance  however  ill-rounded that improper  selection  of
\nJudges\tor  interference  with\tthe  appointment  of  Judges
\nstrictly according to constitutional provisions may mar\t the
\ninstitution  of\t judiciary and therefore they  may  to\tsome
\nextent be justified in vindicating their rights. But at\t the
\nsame  time, however, biting or bitter, distasteful and\tdia-
\nbolical it may seem to be, the fact remains that the  masses
\nin  general are not at all concerned with these legal  nice-
\nties and so far as
\n454<\/span>
\nadministration of justice is concerned they merely want that
\ntheir cases should be decided quickly by Judges who generate
\nconfidence…”\n<\/p>\n
(emphasis supplied)
\n[See: [1982] 2 SCR 852]
\n    But it is only through the great institutions of  democ-
\nracy,  political statesmanship and the activist role of\t the
\njudiciary that the much needed socio-economic transformation
\nfrom  a\t fuedal and exploitative society to  an\t egalitarian
\nsocial\tand economic order of a true welfare state that\t the
\nConstitution dreams of, can emerge. Political observers `see
\nthat  despite object poverty and squalor amongst large\tsec-
\ntions  of Indian masses, they manifest such  rare  intuitive
\npolitical  acumen, insight and sagacity which has  sustained
\nthe democratic spirit that there is no justification for any
\ncynical\t pessimism. Even if the assumption that\t large\tsec-
\ntions  of the people are not be able to appreciate the\tcon-
\nstitutions  niceties  is  true, that, by  itself,  does\t not
\ndetract from the necessity to maintain the highest standards
\nof  judicial independence. On the contrary the need  becomes
\nall the greater.\n<\/p>\n
    Desai  J., contemplated “Value-packing” on\tthe  premise
\nthat  a preponderant role for the judicial wing in  the\t ap-
\npointments raises a question of essential political doctrine
\nthat the very power of Judicial Review, with the concomitant
\njurisdiction  to defeat the will of the people\tby  striking
\ndown laws enacted by the people’s representatives, would  be
\nessentially an undemocratic process, a-fortiori where  there
\nis no elective element in the appointment of judges. Certain
\nobservations  of  Prof. Schwartz were referred\tto  in\tthis
\nbehalf.\n<\/p>\n
On the same topic Venkataramiah, J. said:\n<\/p>\n
“In India we have adopted the procedure contained in Article
\n2 17(1) of the Constitution for the appointment of judges of
\nthe High Courts\t ……..  This method appears to have\tbeen
\nadopted so that the appointment of judges may have ultimate-
\nly the sanction of the people whom the Council of  Ministers
\nrepresent in a parliamentary form of Government. In that way
\nonly  the judges may be called people’s judges. If  the\t ap-
\npointment of judges is to be made on the basis of the recom-
\nmendation  of judges only then they will be  Judges’  judges
\nand such appointments may not fit into the scheme of popular
\ndemocracy.”\n<\/p>\n
555<\/span><\/p>\n
[See: [1982] 2 SCR 1273]
\n“The position of the Chief Justice of India under Article  2
\n17(1) however is not that of an appellate authority or\tthat
\nof the highest administrative authority having the power  to
\noverrule  the opinion of any other authority. From the\tspe-
\ncific  roles attributed to each of them as explained  above,
\nwhich  may to some extent be Overlapping also, it cannot  be
\nsaid  that  the Chief Justice of India has  been  given\t any
\nposition of primacy amongst the three persons who have to be
\nconsulted  under Article 217(1) of the\tConstitution.  There
\nare  no express words conveying that meaning. The  President
\nhas  to take into consideration the opinions of all of\tthem
\nand he should not accept the opinion of any of them only  on
\nthe sole principle of primacy………”\n<\/p>\n
[See: [1982] 2 SCR 1262]
\n    This,  indeed, has the familiar ring of the\t controversy
\narising out of the judicial response of the Supreme Court of
\nthe United States to the “New-Deal” legislation. The  strik-
\ning  down of the minimum wage law as unconstitutional  trig-
\ngered an impassioned debate as to the very doctrinal  justi-
\nfiability of Judicial Review and said to have led the Ameri-
\ncan  President to contemplate “Court-packing”. That,  subse-
\nquently\t the court gave a clean bill of health to the  “New-
\nDeal” legislation is part of judicial history of that  coun-
\ntry.  Certain observations of Prof. Schwartz referred to  by
\nDesai J –as the learned author’s own views to the  contrary
\nindicate–are  not  apposite  in the context  in  which\t the
\nlearned\t judge\tsought to invoke them. The  learned  author,
\neven  in the American context, reiterated the imperative  of
\nJudicial  Review to make “the provisions of  a\tconstitution
\nmore  than mere maxims of political morality” and that\t“the
\nuniversal  sense of America has come to realise\t that  there
\ncan be no constitution without law administered through\t the
\nSupreme\t Court”. Referring to Chief Justice Marshall’s\tpro-
\nnouncement in the Marbury case, the learned author said:
\n\t “That\tcase is now rightly considered as  the\tvery
\nkeystone  of the American constitutional arch, for,  in\t it,
\nthe  U.S.  Supreme Court first ruled that it  possessed\t the
\nauthority to review the constitutionality of statutes.\tYet,
\nwhen  the case came before the Supreme Court, it  seemed  to
\npresent any-\n<\/p>\n
456<\/span><\/p>\n
thing but the question of judicial review.”
\n\t “Marbury  v. Madison is crucial in the\t history  of
\nAmerican  public  law because it laid down the\tdoctrine  of
\njudicial  review which has since been the foundation of\t the
\nconstitutional\tstructure. Marbury v. Madison was the  first
\ncase  to establish the Supreme Court’s power to\t review\t the
\nconstitutionality of legislative acts and it did so in terms
\nso firm and clear that the power has never since been legal-
\nly  doubted. Had Marshall not confirmed review power at\t the
\noutset in his magisterial manner, it is entirely possible it
\nwould  never have been insisted upon, for it was  not  until
\n1857 that the authority to invalidate a federal statute\t was
\nnext  exercised by the U.S. Supreme Court. Had the  Marshall
\nCourt not taken its stand, more than sixty years would\thave
\npassed without any question arising as to the omnipotence of
\nCongress. After so long a period of judicial acquiescence in
\nCongressional supermacy, it is probable that opposition then
\nwould have been futile.”\n<\/p>\n
[See:\t“Some\tmakers\t of  American\tLaw”;\tTagore\t Law
\nLectures–pages 32 & 34]
\n    Referring to the dilemma of political theorists  whether
\nassumption by the Marshall Court of review power was  justi-
\nfied  by the constitution or was an act of judicial  usurpa-
\ntion the learned author says:\n<\/p>\n
”   ….  Those who urge the latter position lose  sight  of
\nthe fact that Marbury v. Madison Merely confirmed a doctrine
\nthat  was part of the American legal tradition of the  time,
\nderived from both the colonial and revolutionary experience.
\nOne  may  go further. Judicial review was  the\tinarticulate
\nmajor premise upon which the movement (discussed in my\tlast
\nlecture)  to  draft Constitutions and Bills  of\t Rights\t was
\nultimately  based. The doctrine of  unconstitutionality\t had
\nbeen  asserted\tby Americans even before the  first  written
\nConstitutions,\tnotably by James Otis in his 1761 attack  on
\ngeneral\t writs\tof assistance and by Patrick Henry  in\t1763
\nwhen he challenged the right of the Privy Council to  disal-
\nlow the Virginia Two-penny Act. The Otis-Henry doctrine\t was
\na necessary foundation, both for the legal theory underlying
\nthe  American Revolution and the Constitutions and Bills  of
\nRights it produced.\n<\/p>\n
457<\/span><\/p>\n
\t  “Addressing  the court in the Five  Knights’\tcase
\n(one  of  the  great state trials of  Stuart  England),\t the
\nAttorneyGeneral,  arguing for the Crown, asked,\t “Shall\t any
\nsay,  The King cannot do this? No, we may only say, He\twill
\nnot do this.” It was precisely to insure that in the  Ameri-
\ncan  system one would be able to say, “The State  cannot  do
\nthis,”\tthat the people enacted a written Constitution\tcon-
\ntaining basic limitations upon the powers of government.  Of
\nwhat avail would such limitations be, however, if there were
\nno  legal machinery to enforce them? Even a Constitution  is
\nnaught\tbut  empty  words if it cannot be  enforced  by\t the
\ncourts.\t It  is judicial review\t that  makes  constitutional
\nprovisions more than mere maxims of political morality.”
\n(emphasis supplied)
\n[See:\t“Some\tmakers\t of  American\tLaw”;\tTagore\t Law
\nLectures–pages 35 & 37]
\nIn India, however, the judicial institutions, by  tradition,
\nhave an avowed a-political commitment and the assurance of a
\nnon-political complexion of the judiciary cannot be divorced
\nfrom the process of appointments. Constitutional phraseology
\nof  “consultation” has to be understood and  expounded\tcon-
\nsistent\t with  and to promote  this  constitutional  spirit.
\nThese  implications are, indeed, vital.\t The  constitutional
\nvalues can not be whittled down by calling the\tappointments
\nof judges as an executive act. The appointment is rather the
\nresult\tof collective, constitutional process. It is a\tpar-
\nticipatory constitutional function. It is, perhaps, inappro-
\npriate to refer to any `power’ or `right’ to appoint judges.
\nIt  is essentially a discharge of a constitutional trust  of
\nwhich certain constitutional functionaries are\tcollectively
\nrepositories.  The executive, on whose advice the  President
\nacts, as a participant in the process has its own  important
\nand effective rule. To say that the power to appoint  solely
\nvests  with  the  executive and that  the  executive   after
\nbestowing such consideration on the result of  consultations
\nwith the judicial organ of the State, would be at liberty to
\ntake  such  decision as it may think fit in  the  matter  of
\nappointments,  is an over-simplification of a sensitive\t and
\nsubtle\tconstitutional sentence and, if allowed\t foul  play,
\nwould  be subversive of the doctrine .of judicial  independ-
\nence. What Endmond Burke said is to be recalled:
\n“All  persons possessing a position of power ought to be
\nstrongly and awfully impressed with an idea that they act in
\ntrust and are to account for their conduct in that trust to
\n458<\/span>
\nthe one great Master; Author and Founder of Society.”\n<\/p>\n
    The\t word “consultation” is used in\t the  constitutional
\nprovision in recognition of the status of the high constitu-
\ntional\tdignitary who formally expresses the result  of\t the
\ninstitutional process leading to the appointment of  judges.
\nTo  limit that expression to its literal limitations,  shorn
\nof  its constitutional background and purpose, is to  borrow
\nJustice\t Frankfurther’s\t phrase, “to stick in  the  bark  of
\nwords”.\n<\/p>\n
    Judicial  Review is a part of the  basic  constitutional
\nstructure  and\tone of the basic features of  the  essential
\nIndian Constitutional policy. This essential  constitutional
\ndoctrine  does\tnot  by itself justify\tor  necessitate\t any
\nprimacy to the executive wing on the ground of its political
\naccountability\tto the electorate. On the contrary  what  is
\nnecessary  is an interpretation sustaining the strength\t and
\nvitality of Judicial Review. It might under certain  circum-
\nstances\t be said that Government is not bound to  appoint  a
\njudge  so recommended by the judicial wing. But\t to  contem-
\nplate a power for the executive to appoint a person  despite
\nhis  being disapproved or not recommended by the Chief\tJus-
\ntice  of the State and the Chief Justice of India  would  be
\nwholly\tinappropriate  and  would  constitute  an  arbitrary
\nexercise  of  power.  Then-again, whatever  there  might  be
\ndifference  of opinion between the Chief Justice of a  State
\nand  the Chief Justice of India some of the weighty  reasons
\nin  this  behalf are set out by the other  three  judges  in
\ntheir  opinion\t  the opinion of the Chief Justice of  India
\nshould\thave the preponderant role. We are of the view\tthat
\nthe primacy of the Chief Justice of India in the process  of
\nselection  would improve the quality of selection. The\tpur-
\npose of the `consultation’ is to safeguard the\tindependence
\nof the judiciary and to ensure selection of proper  persons.
\nThe  matter  is not, therefore, to be  considered  that\t the
\nfinal  say  is the exclusive prorogative  of  the  executive
\nGovernment. The recommendations of the appropriate constitu-
\ntional\tfunctionaries from the judicial organ of  the  State
\nhas  an equally important rule. “Consultation”\tshould\thave
\nsinews to achieve the constitutional purpose and should\t not
\nbe rendered sterile by a literal interpretation. Who is able
\nto  decide the qualities of lawyers proposed to be  elevated
\nto  the\t Bench more than the Judges of the  Superior  Courts
\nbefore\twhom they practice? There are preponderant and\tcom-
\npelling\t considerations why the views of the Chief  Justices
\nof the States and that of the Chief Justice of India  should
\nbe afforded a decisive import unless the executive has\tsome
\nmaterial  in  its  possession which may\t indicate  that\t the
\nappointment is otherwise undesirable.\n<\/p>\n
459<\/span><\/p>\n
    The\t view which the four learned Judges shared, in\tGup-
\nta’s  case, in our opinion, does not recognise\tthe  special
\nand  pivotal position of the .institution of the Chief\tJus-
\ntice of India.\n<\/p>\n
    The\t correctness of the opinion of the majority in\tS.P.
\nGupta’s\t case relating to the status and importance of\tcon-
\nsultation, the primacy of the position the Chief Justice  of
\nIndia  and the view that the fixation of Judge\tstrength  is
\nnot justiciable should be re-considered by a larger bench.
\n    Indeed, the Union Government has quite often both before
\nthe Parliament and outside has stated that it has, as matter
\nof policy, not made any appointments to the superior judici-
\nary  without the name being cleared by the Chief Justice  of
\nIndia. This, indeed, would be the application of a  standard
\nof  selection higher than envisaged by the majority  opinion
\nin S.P. Gupta’s case. But if the executive sets up a  stand-
\nard  by which it professes its actions to be judged it\tmust
\nbe held to those standards. This is to be done by a judicial
\nrecognition  of\t the standard with a concomitant  legal\t and
\nconstitutional\tobligation  for the executive to  adopt\t and
\napply the standard.\n<\/p>\n
    As\twe have already pointed out, the bulk of the  vacan-
\ncies in the High Courts have been filled up. Apart from\t two
\nvacancies  all\tother  Judges in the Supreme  Court  are  in
\nposition.  Learned  Attorney  General has  assured  us\tthat
\nprompt steps are being taken to fill up the remaining vacan-
\ncies and thereafter it will take steps to fill up the  addi-
\ntional posts which have recently been created in the differ-
\nent High Courts. In view of what we have already stated\t and
\nthe  assurance held out by the learned Attorney\t General  we
\nare  of the view that further monitoring for the time  being
\nis not necessary.\n<\/p>\n
    As\talready\t pointed out the petition  from\t Bombay\t was
\nconfined  to  filling  up of vacancies in  the\tBombay\tHigh
\nCourt.\tExcepting  two, the remaining  vacancies  have\tbeen
\nfilled\tup  and we have been told that steps are  afoot\t for
\ngetting two Judges to the Bombay High Court. We,  therefore,
\ndispose\t of  the writ petition from Bombay with\t no  further
\ndirection. Similarly, the writ application filed by  Subhash
\nSharma for the reasons indicated above may also be  disposed
\nof  without  further directions. As and when  necessary\t the
\nmatter\tcan be brought before the Court. As in\tour  opinion
\nthe  correctness of the majority view in S.P.  Gupta’s\tcase
\nshould be considered by a larger Bench we direct the  papers
\nof  W.P.  No. 1303 of 1987 to be placed before\tthe  learned
\nChief  Justice\tfor constituting a Bench of nine  Judges  to
\nexamine the two
\n460<\/span>
\nquestions we have referred to above, namely, the position of
\nthe  Chief Justice of India with reference to  primacy\tand,
\nsecondly, justiciability of fixation of Judge strength.
\n    We are aware of the position. that the setting up of the
\nNational Judicial Commission through a Constitutional Amend-
\nment  is  in contemplation. In the event  of  the  Amendment
\nbeing  carried and a National Judicial Commission being\t set
\nup, the correctness of the ratio in S.P. Gupta’s case of the
\nstatus of the Chief Justice of India may not be necessary to
\nbe  examined in the view of the fact that by  the  Amendment
\nthe Chief Justice of India would become the Chairman of\t the
\nCommission.  In case the Commission is not constituted,\t the
\ntwo questions indicated above which are of vital  importance
\nto  the efficient functioning of the judicial system in\t the
\ncountry\t require  consideration and there is an\t element  of
\nimmediacy  in  the matter. We, therefore, suggest  that\t the
\nwrit petition on the two issues indicated above maybe  taken
\nup  for hearing at an early date and preferably\t before\t the
\nend  of this year. We hope and trust that the Supreme  Court
\nAdvocate-on-Record  Association\t would\tcontinue  to  evince
\ninterest  in the matter but if our expectations are  belied,
\nthis  being in the nature of a public  interest\t litigation,
\nsome on interested in the restitution of the issues would be
\nbrought on record to effectively continue the proceeding and
\nassist the Court.\n<\/p>\n
    We\tclarify that apart from the two questions  which  we
\nhave  indicated,  all  other aspects dealt with\t by  us\t are
\nintended to be final by our present order.\n<\/p>\n
There shall be no order for costs.\n<\/p>\n
R,  S. S\t\t\t\t     Petitions\tdis-\nposed of.\n461<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Subhash Sharma And Others vs Union Of India on 26 October, 1990 Equivalent citations: 1991 AIR 631, 1990 SCR Supl. (2) 433 Author: R Misra Bench: Misra, Rangnath (Cj) PETITIONER: SUBHASH SHARMA AND OTHERS Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT26\/10\/1990 BENCH: MISRA, RANGNATH (CJ) BENCH: MISRA, RANGNATH (CJ) VENKATACHALLIAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-194123","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSubhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Subhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"1990-10-25T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-09-30T12:39:25+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"55 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Subhash Sharma And Others vs Union Of India on 26 October, 1990\",\"datePublished\":\"1990-10-25T18:30:00+00:00\",\"dateModified\":\"2018-09-30T12:39:25+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\"},\"wordCount\":9489,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\",\"name\":\"Subhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"1990-10-25T18:30:00+00:00\",\"dateModified\":\"2018-09-30T12:39:25+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Subhash Sharma And Others vs Union Of India on 26 October, 1990\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Subhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","og_locale":"en_US","og_type":"article","og_title":"Subhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"1990-10-25T18:30:00+00:00","article_modified_time":"2018-09-30T12:39:25+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"55 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Subhash Sharma And Others vs Union Of India on 26 October, 1990","datePublished":"1990-10-25T18:30:00+00:00","dateModified":"2018-09-30T12:39:25+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990"},"wordCount":9489,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","url":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990","name":"Subhash Sharma And Others vs Union Of India on 26 October, 1990 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"1990-10-25T18:30:00+00:00","dateModified":"2018-09-30T12:39:25+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/subhash-sharma-and-others-vs-union-of-india-on-26-october-1990#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Subhash Sharma And Others vs Union Of India on 26 October, 1990"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/194123","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=194123"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/194123\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=194123"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=194123"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=194123"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}