{"id":37584,"date":"2008-12-17T00:00:00","date_gmt":"2008-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shanti-bhushan-anr-vs-u-o-i-anr-on-17-december-2008"},"modified":"2017-12-20T05:04:07","modified_gmt":"2017-12-19T23:34:07","slug":"shanti-bhushan-anr-vs-u-o-i-anr-on-17-december-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shanti-bhushan-anr-vs-u-o-i-anr-on-17-december-2008","title":{"rendered":"Shanti Bhushan & Anr vs U.O.I. & Anr on 17 December, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shanti Bhushan & Anr vs U.O.I. & Anr on 17 December, 2008<\/div>\n
Author: . Arijit Pasayat<\/div>\n
Bench: Arijit Pasayat, Mukundakam Sharma<\/div>\n
                                                                   REPORTABLE\n\n                  IN THE SUPREME COURT OF INDIA\n\n                    CIVIL ORIGINAL JURISDICTION\n\n               WRIT PETITION (CIVIL) NO. 375 OF 2007\n\n\n\nShanti Bhushan and Anr.                                   ...Petitioners\n\n                                   Versus\n\nUnion of India and Anr.                                   ....Respondents\n\n\n\n\n                              JUDGMENT\n<\/pre>\n
Dr. ARIJIT PASAYAT, J<\/p>\n
1.    Judges, like Caesar’s wife, should be above suspicion is the focal<\/p>\n
point in this petition under Article 32 of the Constitution of India, 1950 (in<\/p>\n
short the `Constitution’) filed by Mr. Shanti Bhushan, a senior lawyer of<\/p>\n
eminence and former Law Minister and Ms. Kamini Jaiswal, an Advocate.\n<\/p>\n
The writ petition is stated to have been filed in public interest litigation<\/p>\n
seeking appropriate declaration and issuance of a writ of quo warranto or
\nany other writ or direction quashing the appointment of respondent No.2 as<\/p>\n
a Judge of the Madras High Court. The prayers read as follows:\n<\/p>\n
     (a)         restrain respondent No.2 from functioning as a Judge of the<\/p>\n
                 Madras High Court.\n<\/p><\/blockquote>\n
     (b)         Direct respondent No.1 to produce all the records regarding<\/p>\n
                 the appointment\/re-appointment     of respondent No.2 as<\/p>\n
                 Additional Judge and also as the permanent Judge; and<\/p>\n<\/blockquote>\n
     (c)         pass any other or further orders, as this Hon’ble Court may<\/p>\n
                 deem fit and proper.\n<\/p><\/blockquote>\n
2.         The grievances center around the appointment of respondent No.2 as<\/p>\n
a permanent Judge by the Union of India (Department of Justice, Ministry<\/p>\n
of Law and Justice). It is stated that required norms have not been followed<\/p>\n
while appointing him as a permanent Judge and such appointment is in<\/p>\n
violation of the law as declared by this Court in Supreme Court Advocates-\n<\/p>\n
on-Record Association & Ors. v. Union of India (1993 (4) SCC 441) and<\/p>\n
Special Reference No.1 of 1998 (1998 (7) SCC 739). The primary ground<\/p>\n
urged is that the opinion of the Chief Justice of India has to be formed<\/p>\n
collectively after taking into account the views of his senior colleagues who<\/p>\n
are required to be consulted by him for the formation of opinion and no<\/p>\n
appointment can be made unless it is in conformity with the final opinion of<\/p>\n
                                                                         2<\/span>
\nthe Chief Justice of India formed in the aforesaid manner. In the oral<\/p>\n
arguments and the written submissions, reference has been made to various<\/p>\n
paragraphs of the aforesaid judgments and the memorandum dated 30th<\/p>\n
June, 1999 issued by the Minister of Law, Justice and Company Affairs,<\/p>\n
Union of India, laying down procedure to be followed in connection with<\/p>\n
the appointment and transfer of Judges of High Courts. It is submitted that<\/p>\n
while forming the opinion, the Chief Justice of India has to consult two<\/p>\n
senior-most Judges and some other Judges of the Supreme Court who are<\/p>\n
conversant with the affairs of the High Court concerned. The latter category<\/p>\n
includes the serving Supreme Court Judges who were either puisne Judges<\/p>\n
or Chief Justice of the concerned High Court though the concerned High<\/p>\n
Court may not be their parent High Court and they may have been<\/p>\n
transferred to the said High Court. It is, therefore, submitted that the<\/p>\n
appointment of respondent No.2 as a permanent Judge as notified on<\/p>\n
2.2.2007 has no sanctity in law. He was sworn as a permanent Judge on<\/p>\n
3.2.2007.\n<\/p>\n
3.    The following paragraphs in the judgments referred to above have<\/p>\n
been relied upon.\n<\/p>\n
                                                                        3<\/span><\/p>\n
1998 (7) SCC 739 (Special Reference No.1 of 1998)<\/p>\n
     “12. The majority view in the Second Judges case (1993 (4)
\n     SCC 441) is that in the matter of appointments to the Supreme
\n     Court and the High Courts, the opinion of the Chief Justice of
\n     India has primacy. The opinion of the Chief Justice of India is
\n     “reflective of the opinion of the judiciary, which means that it
\n     must necessarily have the element of plurality in its formation”.
\n     It is to be formed “after taking into account the view of some
\n     other Judges who are traditionally associated with this
\n     function”. The opinion of the Chief Justice of India “so given
\n     has primacy in the matter of all appointments”. For an
\n     appointment to be made, it has to be “in conformity with the
\n     final opinion of the Chief Justice of India formed in the manner
\n     indicated”. It must follow that an opinion formed by the Chief
\n     Justice of India in any manner other than that indicated has no
\n     primacy in the matter of appointments to the Supreme Court
\n     and the High Courts and the Government is not obliged to act
\n     thereon.\n<\/p>\n
           xx                  xx                 xx<\/p>\n
     29. The majority judgment in the Second Judges case requires
\n     the Chief Justice of a High Court to consult his two seniormost
\n     puisne Judges before recommending a name for appointment to
\n     the High Court. In forming his opinion in relation to such
\n     appointment, the Chief Justice of India is expected (SCC
\n     p. 702, para 478)
\n           “to take into account the views of his colleagues in
\n           the Supreme Court who are likely to be conversant
\n           with the affairs of the concerned High Court. The
\n           Chief Justice of India may also ascertain the views
\n           of one or more senior Judges of that High
\n           Court….”\n<\/p>\n
     The Chief Justice of India should, therefore, form his opinion
\n     in regard to a person to be recommended for appointment to a
\n     High Court in the same manner as he forms it in regard to a<\/p>\n
                                                                         4<\/span>
\nrecommendation for appointment to the Supreme Court, that is
\nto say, in consultation with his seniormost puisne Judges. They
\nwould in making their decision take into account the opinion of
\nthe Chief Justice of the High Court which “would be entitled to
\nthe greatest weight”, the views of other Judges of the High
\nCourt who may have been consulted and the views of
\ncolleagues on the Supreme Court Bench “who are conversant
\nwith the affairs of the High Court concerned”. Into that last
\ncategory would fall Judges of the Supreme Court who were
\npuisne Judges of the High Court or Chief Justices thereof, and
\nit is of no consequence that the High Court is not their parent
\nHigh Court and they were transferred there. The objective
\nbeing to gain reliable information about the proposed
\nappointee, such Supreme Court Judge as may be in a position
\nto give it should be asked to do so. All these views should be
\nexpressed in writing and conveyed to the Government of India
\nalong with the recommendation.\n<\/p>\n
30. Having regard to the fact that information about a proposed
\nappointee to a High Court would best come from the Chief
\nJustice and Judges of that High Court and from Supreme Court
\nJudges conversant with it, we are not persuaded to alter the
\nstrength of the decision-making collegium’s size; where
\nappointments to the High Courts are concerned, it should
\nremain as it is, constituted of the Chief Justice of India and the
\ntwo seniormost puisne Judges of the Supreme Court.\n<\/p>\n
      xx                  xx                  xx<\/p>\n
32. Judicial review in the case of an appointment or a
\nrecommended appointment, to the Supreme Court or a High
\nCourt is, therefore, available if the recommendation concerned
\nis not a decision of the Chief Justice of India and his
\nseniormost colleagues, which is constitutionally requisite. They
\nnumber four in the case of a recommendation for appointment
\nto the Supreme Court and two in the case of a recommendation
\nfor appointment to a High Court. Judicial review is also<\/p>\n
                                                                     5<\/span>
\n     available if, in making the decision, the views of the
\n     seniormost Supreme Court Judge who comes from the High
\n     Court of the proposed appointee to the Supreme Court have not
\n     been taken into account. Similarly, if in connection with an
\n     appointment or a recommended appointment to a High Court,
\n     the views of the Chief Justice and senior Judges of the High
\n     Court, as aforestated, and of Supreme Court Judges
\n     knowledgeable about that High Court have not been sought or
\n     considered by the Chief Justice of India and his two seniormost
\n     puisne Judges, judicial review is available. Judicial review is
\n     also available when the appointee is found to lack eligibility.\n<\/p>\n
           xx                 xx                 xx<\/p>\n
     41. We have heard with some dismay the dire apprehensions
\n     expressed by some of the counsel appearing before us. We do
\n     not share them. We take the optimistic view that successive
\n     Chief Justices of India shall henceforth act in accordance with
\n     the Second Judges case and this opinion.\n<\/p>\n
           xx                 xx                 xx<\/p>\n
     44 (8) The Chief Justice of India is obliged to comply with the
\n     norms and the requirement of the consultation process, as
\n     aforestated, in making his recommendations to the Government
\n     of India.”\n<\/p>\n
1993 (4) SCC 441 Supreme Court Advocates-on-Record Assn. v. Union
\nof India<\/a><\/p>\n
     “460. The question of primacy of the role of the Chief Justice
\n     of India has to be examined not merely with reference to the
\n     fact that an appointment is an executive act, or with reference
\n     only to the comparative constitutional status of the different
\n     consultees involved in the process, but with reference also to
\n     the constitutional purpose sought to be achieved by these<\/p>\n
                                                                       6<\/span>
\nprovisions, and the manner in which that purpose can be best
\nachieved.\n<\/p>\n
      xx                  xx                  xx<\/p>\n
466. It has to be borne in mind that the principle of non-
\narbitrariness which is an essential attribute of the rule of law is
\nall pervasive throughout the Constitution; and an adjunct of
\nthis principle is the absence of absolute power in one
\nindividual in any sphere of constitutional activity. The
\npossibility of intrusion of arbitrariness has to be kept in view,
\nand eschewed, in constitutional interpretation and, therefore,
\nthe meaning of the opinion of the Chief Justice of India, in the
\ncontext of primacy, must be ascertained. A homogenous
\nmixture, which accords with the constitutional purpose and its
\nethos, indicates that it is the opinion of the judiciary
\n`symbolised by the view of the Chief Justice of India’ which is
\ngiven greater significance or primacy in the matter of
\nappointments. In other words, the view of the Chief Justice of
\nIndia is to be expressed in the consultative process as truly
\nreflective of the opinion of the judiciary, which means that it
\nmust necessarily have the element of plurality in its formation.
\nIn actual practice, this is how the Chief Justice of India does,
\nand is expected to function so that the final opinion expressed
\nby him is not merely his individual opinion, but the collective
\nopinion formed after taking into account the views of some
\nother Judges who are traditionally associated with this
\nfunction.\n<\/p>\n
467. In view of the primacy of judiciary in this process, the
\nquestion next, is of the modality for achieving this purpose.
\nThe indication in the constitutional provisions is found from
\nthe reference to the office of the Chief Justice of India, which
\nhas been named for achieving this object in a pragmatic
\nmanner. The opinion of the judiciary `symbolised by the view
\nof the Chief Justice of India’, is to be obtained by consultation
\nwith the Chief Justice of India; and it is this opinion which has
\nprimacy.\n<\/p>\n
                                                                      7<\/span><\/p>\n
468. The rule of law envisages the area of discretion to be the
\nminimum, requiring only the application of known principles
\nor guidelines to ensure non-arbitrariness, but to that limited
\nextent, discretion is a pragmatic need. Conferring discretion
\nupon high functionaries and, whenever feasible, introducing
\nthe element of plurality by requiring a collective decision, are
\nfurther checks against arbitrariness. This is how idealism and
\npragmatism are reconciled and integrated, to make the system
\nworkable in a satisfactory manner. Entrustment of the task of
\nappointment of superior judges to high constitutional
\nfunctionaries; the greatest significance attached to the view of
\nthe Chief Justice of India, who is best equipped to assess the
\ntrue worth of the candidates for adjudging their suitability; the
\nopinion of the Chief Justice of India being the collective
\nopinion formed after taking into account the views of some of
\nhis colleagues; and the executive being permitted to prevent an
\nappointment considered to be unsuitable, for strong reasons
\ndisclosed to the Chief Justice of India, provide the best method,
\nin the constitutional scheme, to achieve the constitutional
\npurpose without conferring absolute discretion or veto upon
\neither the judiciary or the executive, much less in any
\nindividual, be it the Chief Justice of India or the Prime
\nMinister.\n<\/p>\n
            xx                  xx                 xx<\/p>\n
478(5)- The opinion of the Chief Justice of India, for the
\npurpose of Articles 124(2) and 217(1), so given, has primacy in
\nthe matter of all appointments; and no appointment can be
\nmade by the President under these provisions to the Supreme
\nCourt and the High Courts, unless it is in conformity with the
\nfinal opinion of the Chief Justice of India, formed in the
\nmanner indicated.\n<\/p>\n
            xx           xx                  xx<\/p>\n
                                                                    8<\/span>\n<\/p>\n
      482. This is also in accord with the public interest of excluding
\n      these appointments and transfers from litigative debate, to
\n      avoid any erosion in the credibility of the decisions, and to
\n      ensure a free and frank expression of honest opinion by all the
\n      constitutional functionaries, which is essential for effective
\n      consultation and for taking the right decision. The growing
\n      tendency of needless intrusion by strangers and busybodies in
\n      the functioning of the judiciary under the garb of public interest
\n      litigation, in spite of the caution in S.P. Gupta while expanding
\n      the concept of locus standi, was adverted to recently by a
\n      Constitution Bench in Krishna Swami v. Union of India<\/a> (1992
\n      (4) SCC 605). It is, therefore, necessary to spell out clearly the
\n      limited scope of judicial review in such matters, to avoid
\n      similar situations in future. Except on the ground of want of
\n      consultation with the named constitutional functionaries or lack
\n      of any condition of eligibility in the case of an appointment, or
\n      of a transfer being made without the recommendation of the
\n      Chief Justice of India, these matters are not justiciable on any
\n      other ground, including that of bias, which in any case is
\n      excluded by the element of plurality in the process of decision-
\n      making.”\n<\/p>\n
4.    Learned counsel for the Union of India on the other hand with<\/p>\n
reference to Office Memorandum and decisions referred to above submitted<\/p>\n
that a total number of more than 350 Additional Judges             have been<\/p>\n
appointed as permanent Judges during the period from 1.1.1999 to<\/p>\n
31.7.2007 by successive Chief Justice of India who had not consulted the<\/p>\n
Collegium while considering the cases of appointment of Additional Judges<\/p>\n
as Permanent Judges of the High Courts although the collegium was<\/p>\n
consulted at the stage of initial appointment as Additional Judge. It is,<\/p>\n
                                                                           9<\/span>
\ntherefore, submitted that in view of the practice followed while<\/p>\n
implementing the memorandum the Government being once satisfied that a<\/p>\n
suitable candidate was in fact appointed as an Additional Judge of the High<\/p>\n
Court, elaborate consultations as required for    forming the opinion for<\/p>\n
appointment of an Additional Judge may not have considered necessary<\/p>\n
while considering the case for appointment as permanent Judge.\n<\/p>\n
Additionally, it is submitted that in Advocates-on-Records Association’s<\/p>\n
case (supra) in paras 466, 467 and 468 this Court had observed that though<\/p>\n
some aspects in S.P. Gupta v. Union of India and Anr.<\/a> (1981 (Supp) SCC<\/p>\n
87) have the approval of the larger Bench, yet the Executive itself has<\/p>\n
understood the correct procedure notwithstanding S.P. Gupta’s case and<\/p>\n
there is no reason to depart from it when it is in consonance with the<\/p>\n
concept of the independence of the judiciary. Consequent to the judgment in<\/p>\n
Advocates-on-Record Association’s case (supra)       the memorandum of<\/p>\n
procedure was revised vide D.O. No.K-11017\/9\/93-US.11 dated 9.6.1994.\n<\/p>\n
Subsequently, on the basis of the opinion in Special Reference No.1\/1998<\/p>\n
the revised procedure was prescribed by Reference No.K-110017\/13\/98-U.S<\/p>\n
II dated 30.6.1999. Paras 11, 12, 13, 14, 15, 16, 17, 18 and 19 pertain to<\/p>\n
appointment of permanent Judges. It is therefore submitted that there is no<\/p>\n
infirmity in the appointment of respondent No.2 as a Permanent Judge.\n<\/p>\n
                                                                        10<\/span><\/p>\n
5.    Reliance is placed on certain paragraphs of S.P. Gupta’s case (supra).\n<\/p>\n
They read as follows:\n<\/p>\n
1981 Supp SCC 87 (S.P. Gupta v. Union of India)<\/p>\n
      “39. It is clear on a plain reading of Article 217, clause (1) that
\n      when an Additional Judge is to be appointed, the procedure set
\n      out in that article is to be followed. Clause (1) of Article 217
\n      provides that “Every Judge” of a High Court shall be appointed
\n      after consultation with the Chief Justice of India, the Governor
\n      of the State and the Chief Justice of the High Court. The
\n      expression “Every Judge” must on a plain natural construction
\n      include not only a permanent Judge but also an Additional
\n      Judge. It is significant to note that whenever the Constitution-
\n      makers intended to make a reference to a permanent Judge,
\n      they did so in clear and explicit terms as in clause (2) of Article\n<\/p>\n
      224. Moreover, there is inherent evidence in Article 217, clause
\n      (1) itself which shows that the expression “Every Judge” is
\n      intended to take in an Additional Judge as well. Clause (1) of
\n      Article 217 says that: “Every Judge … shall hold office, in the
\n      case of an Additional Judge . . . as provided in Article 224. . .”,
\n      which clearly suggests that the case of an Additional Judge is
\n      covered by the opening words “Every Judge”. We may also
\n      consider what would be the consequence of construing the
\n      words “Every Judge” as meaning only a permanent Judge. On
\n      that construction, clause (1) of Article 217 will not apply in
\n      relation to appointment of an Additional Judge and it would be
\n      open to the Central Government under Article 224, clause (1)
\n      to appoint an Additional Judge without consulting any of the
\n      constitutional functionaries specified in clause (1) of Article\n<\/p>\n
      217. This could never have been intended by the Constitution-
\n      makers, who made such elaborate provisions in the
\n      Constitution for safeguarding the independence of the
\n      judiciary. We must therefore, hold that no Additional Judge can<\/p>\n
                                                                            11<\/span>
\nbe appointed without complying with the requirement of clause
\n(1) of Article 217.\n<\/p>\n
40. Now, when the term of an Additional Judge expires he
\nceases to be a Judge and therefore, if he is to continue as a
\nJudge, he must be either reappointed as an Additional Judge or
\nappointed as a permanent Judge. In either case, clause (1) of
\nArticle 217 would operate and no reappointment as an
\nAdditional Judge or appointment as a permanent Judge can be
\nmade without going through the procedure set out in Article
\n217, clause (1). Of course, an Additional Judge has a right to be
\nconsidered for such reappointment or appointment, as the case
\nmay be, and the Central Government cannot be heard to say
\nthat the Additional Judge need not be considered. The
\nAdditional Judge cannot just be dropped without consideration.
\nThe name of the Additional Judge would have to go through
\nthe procedure of clause (1) of Article 217 and after consultation
\nwith the Chief Justice of India, the Governor of the State and
\nthe Chief Justice of the High Court, the Central Government
\nwould have to decide whether or not to reappoint him as an
\nAdditional Judge or to appoint him as a permanent Judge. If the
\nprocedure for appointment of a Judge followed as a result of a
\npractice memorandum issued by the Central Government is that
\nthe proposal for appointment of a Judge may ordinarily
\noriginate from the Chief Justice of the High Court and may
\nthen be sent to the Governor of the State and thereafter to the
\nChief Justice of India through the Justice Ministry for their
\nrespective opinions before a decision can be taken by the
\nCentral Government whether or not to appoint the person
\nproposed the name of the Additional Judge must be sent up by
\nthe Chief Justice of the High Court with his recommendation
\nwhether he should be reappointed as an Additional Judge or
\nappointed as a permanent Judge or not and it must go up to the
\nCentral Government with the opinions of the Chief Justice of
\nIndia, the Governor of the State and the Chief Justice of the
\nHigh Court, so that the Central Government may, after
\nconsidering such opinions, make up its mind on the question of
\nreappointment or appointment as the case may be. But this is
\nthe only right possessed by the Additional Judge. The
\nAdditional Judge is not entitled to contend that he must<\/p>\n
                                                                    12<\/span>
\nautomatically and without any further consideration be
\nappointed as an Additional Judge for a further term or as a
\npermanent Judge. He has to go through the process of clause
\n(1) of Article 217 and to concede to him the right to be
\nappointed either as an Additional Judge for a further term or as
\na permanent Judge would be to fly in the face of Article 217,
\nclause (1). If the Additional Judge is entitled to be appointed
\nwithout anything more, why should the process of consultation
\nbe gone through in regard to his appointment? Would
\nconsultation with the Chief Justice of India, the Governor of
\nthe State and the Chief Justice of the High Court not be
\nreduced to a farce? It would be a mockery of consultation with
\nsuch high constitutional dignitaries. There can, therefore, be no
\ndoubt that an Additional Judge is not entitled as a matter of
\nright to be appointed as an Additional Judge for a further term
\non the expiration of his original term or as a permanent Judge.
\nThe only right he has is to be considered for such appointment
\nand this right also belongs to him not because clause (1) of
\nArticle 224 confers such right upon him, but because of the
\npeculiar manner in which clause (1) of Article 224 has been
\noperated all these years.\n<\/p>\n
      Xx                 xx                  xx<\/p>\n
88……It would have been most improper for the Chief Justice
\nof Delhi to ask the Central Government to investigate into
\ncomplaints or doubts against a sitting Judge of his Court. This
\nCourt has in unhesitating terms condemned the adoption of
\nsuch a course by the High Court in the case of subordinate
\njudiciary and much more so would it be reprehensible in the
\ncase of sitting Judge of a High Court. Moreover, leaving the
\ninvestigation of complaints and doubts against a sitting Judge
\nin the hands of an investigative agency under the control of a
\npolitical Government would not be desirable because, apart
\nfrom exposing the sitting Judge to unhealthy political
\npressures, it may not yield satisfactory result in all cases,
\nbecause such an investigation would not have the benefit of the
\nguidance of a mature and experienced person like the Chief
\nJustice who has lived a whole lifetime in the courts and who is<\/p>\n
                                                                    13<\/span>
\nclosely and intimately connected with lawyers and Judges in
\nthe court over which he presides. It would indeed be impossible
\nfor any one unfamiliar with the legal profession and the
\nfunctioning of the courts to Judge the genuineness or veracity
\nof the sources from which information might be obtained in
\nregard to a sitting Judge. It must, therefore, necessarily be left
\nto the Chief Justice of the High Court to give his opinion in
\nregard to the suitability of an Additional Judge for further
\nappointment on the basis of such information as he may gather
\nby making his own inquiries. The Chief Justice of the High
\nCourt would have sufficient opportunities for judging the
\nsuitability of an Additional Judge for further appointment,
\nbecause the Additional Judge would be working with him in
\nthe same court and he would be in close contact with the
\nmembers of the Bar and his own colleagues and if there is
\nanything wrong with the functioning of the court or the Judges,
\nhe would be best in a position to know about it. If an
\nAdditional Judge does not enjoy good reputation for integrity,
\nthe Chief Justice of the High Court would ordinarily come to
\nknow about it. Of course, the possibility cannot be ruled out
\nthat the information received by the Chief Justice of the High
\nCourt may at times be motivated or prejudiced, because the
\nAdditional Judge has offended some member of the Bar or
\ndecided some case against a litigant. These occupational
\nhazards which beset the life of an Additional Judge — in fact,
\neven of a permanent Judge whether in the High Court or in the
\nSupreme Court have unfortunately increased in recent times,
\nbecause there has been a steady erosion of values and not only
\nsome interested politicians but also a few — and fortunately
\ntheir tribe is still small — lawyers and members of the public
\nare prone to make wild and reckless allegations against Judges
\nand impute motives for the decisions given by them. It is not
\nrealised by many that very often the judgments given by the
\nHigh Courts and the Supreme Court are value judgments,
\nbecause there are conflicting values competing for recognition
\nby the Judge and the choice made by the Judge is largely
\ndictated by his social philosophy and it is not possible to
\nemphatically assert that a particular view taken by one Judge is
\nwrong and a different view taken by another Judge is right. The
\nnature of the judicial process being what it is, it is inevitable<\/p>\n
                                                                     14<\/span>
\nthat the view taken by a Judge, perfectly bona fide though it
\nmay be, may not accord with the expectations of a section or
\ngroup of persons believing in a particular social or political
\nphilosophy, but that cannot be a ground affording justification
\nfor making imputation against the Judge or accusing him of
\nlack of bona fides or charging him with surrender or
\nsubservience to the executive or to any other interest. Those
\nwho indulge in such personal attacks against Judges for the
\ndecisions given by them do not realise what incalculable
\ndamage they are doing to the judicial institution by destroying
\nthe confidence of the public in the integrity and inviolability of
\nadministration of justice. Unfortunately, it is the easiest thing to
\nmake false, reckless and irresponsible allegations against
\nJudges in regard to their honesty and integrity and in recent
\ntimes the tendency has grown to make such allegations against
\nJudges because they have decided the case in a particular
\nmanner either against a dissatisfied litigant or contrary to the
\nview held by a group or section of politicians or lawyers or
\nmembers of the public. The Judge against whom such
\nallegations are made is defenceless because, having regard to
\nthe peculiar nature of the office held by him, he cannot enter
\nthe arena of conflict and raise or join a public controversy. This
\npernicious tendency of attributing motives to Judges has to be
\ncurbed, if the judicial institution is to survive as an effective
\ninstrument for maintenance of the rule of law in the country
\nand this can happen only if politicians, lawyers and members of
\nthe public accept the judgments rendered by the Judges as bona
\nfide expressions of their views and do not impute motives to
\nJudges for the judgments given by them, even though they be
\nadverse to the views held by them. But unfortunately, the
\nsituation being what it is, we must emphasise with all the
\nstrength and earnestness at our command that the Chief Justice
\nof the High Court should exercise the greatest care and
\ncircumspection in judging the veracity of the information
\nwhich he may receive from time to time in regard to the
\nconduct or behaviour or integrity of an Additional Judge of his
\ncourt. The Constitution has entrusted to him the task of giving
\nhis opinion in regard to the suitability of an Additional Judge
\nfor further appointment and on the basis of the information
\nreceived by him or gathered as a result of inquiries made by<\/p>\n
                                                                       15<\/span>
\nhim, he has to decide wisely and with responsibility whether or
\nnot he should recommend the appointment of an Additional
\nJudge for a further term.\n<\/p>\n
      xx                  xx                        xx<\/p>\n
102. …There are occasions when persons holding high
\nconstitutional offices are called upon to perform an unpleasant
\nduty and this duty they have to perform, whatever be the
\nconsequences. If necessary, let the heavens fall but what is
\nright and just shall be done without fear or favour, affection or
\ngoodwill. Long years ago that great common law Judge, Lord
\nMansfield spoke of the judicial office in majestic tones and
\nsaid:\n<\/p>\n
       “I will not do that which my conscience tells me
\n      is wrong, upon his occasion; to gain the huzzas of
\n      thousands, or the daily praise of all the papers
\n      which come from the Press; I will not avoid doing
\n      what I think is right; though it should draw on me
\n      the whole artillery of libels; all that falsehood and
\n      malice can invent, or the credulity of a deluded
\n      populace can swallow…. Once for all, let it be
\n      understood, that no endeavours of this kind will
\n      influence any man who at present sits here.”\n<\/p><\/blockquote>\n
What the learned Chief Justice said in regard to judicial
\nfunction must apply with equal validity where a Judge is called
\nupon to discharge any other function entrusted to him by the
\nConstitution and he must boldly and fearlessly do that which
\nConstitution commands. But merely because the Chief Justice
\nof Delhi flinched and faltered out of a sense of apprehension
\nthat the Chief Justice of India might feel offended by his
\nwriting the letter dated May 7, 1981, it does not follow that the
\nfacts set out in that letter were not personally discussed by him
\nwith the Chief Justice of India at the meeting held on March<\/p>\n
                                                                    16<\/span>
\n      26, 1981. We are clearly of the view that the “full and identical
\n      facts” on which the decision of the Central Government was
\n      based were placed before the Chief Justice of India and there
\n      was full and effective consultation with him before the Central
\n      Government reached the decision that S.N. Kumar should not
\n      be continued as an Additional Judge. We may also point out
\n      that this decision of the Central Government was not based on
\n      any irrelevant considerations, since, as we have already pointed
\n      out earlier, lack of reputation for integrity is certainly a most
\n      relevant consideration in deciding whether a person should be
\n      appointed a Judge.\n<\/p>\n
      103. We may make it clear that in taking this view we do not
\n      for a moment wish to suggest that S.N. Kumar was lacking in
\n      integrity. That is not a matter into which we are called upon to
\n      enquire and nothing that is stated by us should be regarded as
\n      expression of any opinion on this question. We may observe in
\n      fairness to S.N. Kumar that the Chief Justice of India clearly
\n      stated it to be his opinion that the integrity of S.N. Kumar was
\n      unquestionable. What happened here was that there were two
\n      conflicting opinions given by the two constitutional authorities
\n      required to be consulted, namely, the Chief Justice of Delhi and
\n      the Chief Justice of India. Both were perfectly bona fide
\n      opinions and the Central Government had to choose between
\n      them and come to its own decision. The Central Government
\n      preferred the opinion of the Chief Justice of Delhi for the
\n      reasons mentioned in the note of the Law Minister dated May
\n      27, 1981 and decided not to appoint S.N. Kumar as an
\n      Additional Judge for a further term. We do not think this
\n      decision suffers from any constitutional infirmity.”\n<\/p>\n
6.    It is the further stand of the Union of India that on true interpretation<\/p>\n
of Article 224(1) of the Constitution it can be said that Additional Judges<\/p>\n
are not intended to be re-appointed out of turn. Reliance is placed on the<\/p>\n
observations to that effect made by Bhagwati, J (as the Hon’ble Judge then<\/p>\n
                                                                          17<\/span>
\nwas) in S.P. Gupta’s case (supra). It is submitted that on expiry of the term<\/p>\n
as an Additional Judge,      he or she is entitled to be considered for<\/p>\n
appointment as a Permanent Judge. But in either case the procedure under<\/p>\n
Article 217(1) of the Constitution has to be repeated. An additional Judge<\/p>\n
who had worked for a period of his tenure has a weightage in his favour<\/p>\n
compared to a fresh appointee and any process of appointment while filling<\/p>\n
in a vacancy must commence with an Additional Judge whose tenure has<\/p>\n
come to an end and has led to the vacancy. Pathak, J (as the Hon’ble Judge<\/p>\n
then was) had expressed similar opinion by observing that in following the<\/p>\n
procedure of Article 217(1) while appointing an Additional Judge as a<\/p>\n
Permanent Judge there would be reduced emphasis with which the<\/p>\n
consideration would be exercised though the process involves the<\/p>\n
consideration of all the concomitant elements and factors which entered into<\/p>\n
the process of consultation at the time of appointment earlier as an<\/p>\n
additional Judge. The position was succinctly stated by observing that there<\/p>\n
is a presumption that a person found suitable for appointment as an<\/p>\n
Additional Judge continues to be suitable for appointment as a Permanent<\/p>\n
Judge, except when circumstances or events arise which bear adversely on<\/p>\n
the mental and physical capacity, character and integrity or other matters<\/p>\n
rendering it unwise to appoint him as a permanent Judge. There must be<\/p>\n
                                                                         18<\/span>
\nrelevant and pertinent material to sufficiently convince a reasonable mind<\/p>\n
that the person is no longer suitable to fill the high office of a Judge and has<\/p>\n
forfeited his right to be considered for appointment. Venkataramaiah, J (as<\/p>\n
the Hon’ble Judge then was) observed that a Judge appointed under Article<\/p>\n
224 (1) of the Constitution had a well founded expectation that he would be<\/p>\n
made permanent. The test which applied to the appointment of an<\/p>\n
Additional Judge under Article 217(1) would apply when an Additional<\/p>\n
Judge is to be appointed as a permanent Judge.\n<\/p>\n
7.    Before dealing with the case of respondent No.2, the memorandum of<\/p>\n
procedure needs to be extracted so far as relevant. Paragraphs 11 to 18 and<\/p>\n
20 read as follows:\n<\/p>\n
      “11. The Chief Justice and Judges of High Courts are to be
\n      appointed by the President under Clause (1) of the Article 217
\n      of the Constitution. The Judges of the Jammu and Kashmir
\n      High Court are to be appointed by the President under Section
\n      95 of the Constitution of Jammu and Kashmir. Appointments to
\n      the High Court should be made on a time bound schedule so
\n      that the appointments are made well in advance preferably a
\n      month before the occurrence of the anticipated vacancy.<\/p><\/blockquote>\n
      12. When a permanent vacancy is expected to arise in any
\n      year in the office of a Judge, the Chief Justice will as early as
\n      possible but at least 6 months before the date of occurrence of
\n      the vacancy, communicate to the Chief Minister of the State his
\n      views as to the persons to be selected for appointment. Full<\/p>\n
                                                                            19<\/span>
\ndetails of the persons recommended, in the format given in
\nAnnexure-1 should invariably be sent. Before forwarding the
\nrecommendation, the Chief Justice must consult two of his
\nsenior most colleagues on the Bench regarding the suitability of
\nthe names proposed. All consultation must be in writing and
\nthese opinions must be sent to the Chief Minister along with
\nthe recommendations.\n<\/p>\n
13. The Chief Justice while sending the recommendation for
\nappointing an additional Judge as a permanent Judge must
\nalong with his recommendation furnish statistics of month wise
\ndisposal of cases and judgments rendered by the Judge
\nconcerned as well as the number of cases reported in the Law
\nJournal duly certified by him. The information would also be
\nfurnished regarding the total number of working days, the
\nnumber of days he actually attended the Court and the days of
\nhis absence from the Court during the period for which the
\ndisposal statistics are sent.\n<\/p>\n
14. The proposal for appointment of a Judge of a High Court
\nshall be initiated by the Chief Justice of the High Court.
\nHowever, if the Chief Minister desires to recommend the name
\nof any person he should forward the same to the Chief Justice
\nfor his consideration. Since the Governor is bound by the
\nadvice of the Chief Minister heading the Council of Ministers,
\na copy of the Chief Justice’s proposal, with full set of papers
\nshould simultaneously be sent to the Governor to avoid delay.
\nSimilarly, a copy thereof may also be endorsed to the Chief
\nJustice of India and the Union Minister of Law, Justice and
\nCompany Affairs to expedite consideration. The Governor as
\nadvised by the Chief Minister should forward                  his
\nrecommendation along with the entire set of papers to the
\nUnion Minister of Law, Justice and Company Affairs as early
\nas possible but not later than six weeks from the date of receipt
\nof the proposal from the Chief Justice of the High Court. If the
\ncomments are not received within the said time frame, it should
\nbe presumed by the Union Minister of Law, Justice and
\nCompany Affairs that the Governor (i.e. Chief Minister) has
\nnothing to add to the proposal and proceed accordingly.\n<\/p>\n
                                                                    20<\/span><\/p>\n
15. The Union Minister of Law, Justice and Company
\nAffairs would consider the recommendations in the light of
\nsuch other reports as may be available to the Government in
\nrespect of the names under consideration. The complete
\nmaterial would then be forwarded to the Chief Justice of India
\nfor his advice. The Chief Justice of India would in consultation
\nwith the two senior most judges of the Supreme Court form his
\nopinion in regard to a person to be recommended for
\nappointment to the High Court. The Chief Justice of India and
\nthe collegium of two Judges of the Supreme Court would take
\ninto account the views of the Chief Justice of the High Court
\nand of those Judges of the High Court who have been
\nconsulted by the Chief Justice as well as views of those Judges
\nin the Supreme Court who are conversant with the affairs of
\nthat High Court. It is of no consequence whether that High
\nCourt is their parent High Court or they have functioned in that
\nHigh Court on transfer.\n<\/p>\n
 15.1 After their consultation the Chief Justice of India will in
\ncourse of 4 weeks send his recommendation to the Union
\nMinister of Law, Justice and Company Affairs. Consultation by
\nthe Chief Justice of India with his colleagues should be in
\nwriting and all such exchange of correspondence with his
\ncolleagues would be sent by the Chief Justice of India to the
\nUnion Minister of Law, Justice and Company Affairs. Once the
\nnames have been considered and recommended by the Chief
\nJustice of India they should not be referred back to the State
\nconstitutional authorities even if a change takes place in the
\nincumbency of any post. However, where it is considered
\nexpedient to refer back the names, the opinion of Chief Justice
\nof India should be obtained. The Union Minister of Law,
\nJustice and Company Affairs would then put up as early as
\npossible preferably within 3 weeks the recommendation of the
\nChief Justice of India to the Prime Minister who will advise the
\nPresident in the matter of appointment.\n<\/p>\n
16. The correspondence between the Chief Justice and the
\nChief Minister and the correspondence between the Chief
\nMinister and the Governor, if any should be in writing and<\/p>\n
                                                                    21<\/span>
\ncopies of the correspondence should invariably be forwarded
\nalong with the Chief Minister’s recommendations.\n<\/p>\n
17. As soon as the appointment is approved by the President
\nthe Secretary to the Government of India in the Department of
\nJustice will inform the Chief Justice of the High Court who will
\nobtain from the person selected (i) a certificate of physical
\nfitness as in Annexure II signed by a Civil Surgeon or District
\nMedical Officer and, (ii) a certificate of date of birth as in
\nAnnexure III. A copy of the communication will also be sent
\nsimultaneously to the Chief Minister of the State. The medical
\ncertificate should be obtained from all persons selected for
\nappointment whether they are at the time of appointment in the
\nservice of the State or not. When these documents are obtained
\nthe Chief Justice will intimate the fact to the Secretary to the
\nGovernment of India in the Department of Justice and also
\nforward these documents to him.\n<\/p>\n
18. As soon as the warrant of appointment is signed by the
\nPresident the Secretary to the Government of India in the
\nDepartment of Justice will inform the Chief Justice and a copy
\nof such communication will be sent to the Chief Minister. He
\nwill also announce the appointment and issue necessary
\nnotification in the Gazette of India.\n<\/p>\n
      xx                 xx                        xx<\/p>\n
20. Additional Judges can be appointed by the President
\nunder Clause (1) of Article 224 of the Constitution. When the
\nneed for this arises, the State Government should first obtain
\nthe sanction of the Central Government for the creation of such
\nadditional posts. The correspondence relating to this should be
\nin the normal official form. After the post is sanctioned the
\nprocedure to be followed for making the appointment will be
\nthe same as given in paragraph 12 to 18 for the appointment of
\na permanent Judge, except that a medical certificate will not be
\nnecessary from the person being appointed as an Additional
\nJudge.”\n<\/p>\n
                                                                   22<\/span><\/p>\n
8.    So far as the scope of judicial review in such matters is concerned, it<\/p>\n
is extremely limited and is permitted to the extent indicated in para 482 of<\/p>\n
the Supreme Court Advocates-on-Record case (supra).\n<\/p>\n
9.    Essentially the decision     in this case    would depend upon the<\/p>\n
combined reading of paras 12 and 13.\n<\/p>\n
10.   It is to be noted that an Additional Judge cannot be said to be on<\/p>\n
probation for the purpose of appointment as a Permanent Judge. This<\/p>\n
position is clear from the fact that when an Additional Judge is appointed<\/p>\n
there may not be vacancy for a Permanent Judge. The moment a vacancy<\/p>\n
arises, the Chief Justice of the concerned High Court is required to send a<\/p>\n
proposal for appointment of the Additional Judge as a Permanent Judge<\/p>\n
along with material as indicated in para 13. The rigor of the scrutiny and the<\/p>\n
process of selection initially as an Additional Judge and a Permanent Judge<\/p>\n
are not different.   The yardsticks are the same. Whether a person is<\/p>\n
appointed as an Additional Judge or a Permanent Judge on the same date, he<\/p>\n
has to satisfy the high standards expected to be maintained as a Judge.\n<\/p>\n
Additionally, on being made permanent, the effect of such permanency<\/p>\n
                                                                          23<\/span>
\nrelates back to the date of initial appointment as an Additional Judge. The<\/p>\n
parameters of paragraph 12 of the memorandum cannot be transported in its<\/p>\n
entirety to paragraph 13.         To begin     with, while making the<\/p>\n
recommendations for appointment of an Additional Judge as a permanent<\/p>\n
Judge, Chief Justice of the High Court is not required to consult the<\/p>\n
collegium of the High Court. Additionally, there is no requirement of<\/p>\n
enquiry by the Intelligence Bureau. The Chief Justice while sending his<\/p>\n
recommendation has to furnish statistics of month-wise disposal of cases<\/p>\n
and judgments rendered by a Judge concerned as well as the number of<\/p>\n
cases reported in the Law Journals duly certified by him. Further<\/p>\n
information required to be furnished regarding the total number of working<\/p>\n
days, the number of days the concerned Judge attended the Court and the<\/p>\n
days of his absence from Court during the period for which the disposal<\/p>\n
statistics are sent.   It is also clear from para 15 that at the stage of<\/p>\n
appointment of either as an Additional Judge or a Permanent Judge, the<\/p>\n
Union Minister of Law, Justice and Company Affairs is required to consider<\/p>\n
the recommendation in the light of such other reports as may be available to<\/p>\n
the Government in respect of the names under consideration. The complete<\/p>\n
material would then be forwarded to the Chief Justice of India for his<\/p>\n
advice. This procedure is not required to be followed when an Additional<\/p>\n
                                                                        24<\/span>
\nJudge is appointed as a Permanent Judge. Further, the consultation with<\/p>\n
members of the Collegium and other Judges, as noted above, is not<\/p>\n
expressly provided in para 13. The details which are required to be given in<\/p>\n
the format in Annexure I in para 12 are not required to be given in a case<\/p>\n
relatable to para 13.\n<\/p>\n
11.   As rightly submitted by learned counsel for the Union of India unless<\/p>\n
the circumstances or events arise subsequent to the appointment as an<\/p>\n
Additional Judge, which bear adversely on the mental and physical capacity,<\/p>\n
character and integrity or other matters the appointment as a permanent<\/p>\n
Judge has to be considered in the background of what has been stated in<\/p>\n
S.P. Gupta’s case (supra). Though there is no right of automatic extension<\/p>\n
or appointment as a permanent Judge, the same has to be decided on the<\/p>\n
touchstone of fitness and suitability (physical, intellectual and moral). The<\/p>\n
weightage required to be given cannot be lost sight of. As Justice Pathak J,<\/p>\n
had succinctly put it there would be reduced emphasis with which the<\/p>\n
consideration would be exercised though the process involves the<\/p>\n
consideration of all the concomitant elements and factors which entered into<\/p>\n
the process of consultation at the time of appointment earlier as an<\/p>\n
additional Judge. The concept of plurality and the limited scope of judicial<\/p>\n
                                                                         25<\/span>
\nreview because a number of constitutional functionaries are involved, are<\/p>\n
certainly important factors. But where the constitutional functionaries have<\/p>\n
already expressed their opinion regarding the suitability of the person as an<\/p>\n
Additional Judge, according to us, the parameters as stated in para 13 have<\/p>\n
to be considered differently from the parameters of para 12. The primacy in<\/p>\n
the case of the Chief Justice of India was shifted because of the safeguards<\/p>\n
of plurality. But that is not the only factor. There are certain other factors<\/p>\n
which would render the exercise suggested by the petitioners impracticable.\n<\/p>\n
Having regard to the fact that there is already a full fledged participative<\/p>\n
consultation in the backdrop of pluralistic view at the time of initial<\/p>\n
appointment as Additional Judge or Permanent Judge, repetition of the same<\/p>\n
process does not appear to be the intention.\n<\/p>\n
12.   It is not in dispute that Union of India is the ultimate authority to<\/p>\n
approve the recommendation for appointment as a Judge. The Central<\/p>\n
Government, as noted above, has stated that in view of the practice followed<\/p>\n
in implementing the memorandum, once the Government on being satisfied<\/p>\n
that a suitable candidate who was earlier appointed as an Additional Judge<\/p>\n
is suitable for appointment as a permanent Judge, the elaborate consultation<\/p>\n
has not been considered necessary. It is of significance to note that some of<\/p>\n
                                                                          26<\/span>
\nthe Hon’ble Judges who were parties to the judgments relied on by the<\/p>\n
petitioners while functioning as a Chief Justice of India have not thought it<\/p>\n
necessary to consult the Collegium as is evident from the fact that from<\/p>\n
1.1.1999 to 31.7.2007 in more than 350 cases the Collegium was not<\/p>\n
consulted. It means that they were also of the view that the<\/p>\n
practice\/procedure was being followed rightly. Therefore, the plea that<\/p>\n
without consultation with the Collegium, the opinion of the Chief Justice of<\/p>\n
India is not legal, cannot be sustained.\n<\/p>\n
13.   But at the same time we find considerable substance in the plea of the<\/p>\n
petitioners that a person who is not found suitable for being appointed as a<\/p>\n
permanent Judge, should not be given extension as an Additional Judge<\/p>\n
unless the same is occasioned because of non availability of the vacancy. If<\/p>\n
a person, as rightly contended by the petitioners, is unsuitable to be<\/p>\n
considered for appointment as a permanent Judge because of circumstances<\/p>\n
and events which bear adversely on the mental and physical capacity,<\/p>\n
character and integrity or other relevant matters rendering it unwise for<\/p>\n
appointing him as a permanent Judge, same yardstick has to be followed<\/p>\n
while considering whether any extension is to be given to him as an<\/p>\n
Additional Judge. A person who is functioning as an Additional Judge<\/p>\n
                                                                         27<\/span>
\ncannot be considered in such circumstances for re-appointment as an<\/p>\n
Additional Judge.     If the factors which render him unsuitable for<\/p>\n
appointment as a permanent Judge exist, it would not only be improper but<\/p>\n
also undesirable to continue him as an Additional Judge.\n<\/p>\n
14.   Coming to the factual scenario it appears      that eight Additional<\/p>\n
Judges including respondent No.2 were appointed on 3.4.2003 and<\/p>\n
respondent No.2 was second in the order of seniority. On 1.4.2005 the term<\/p>\n
of the aforesaid Additional Judges was extended for a period of four<\/p>\n
months. On 27.7.2005, seven of the eight Additional Judges (except<\/p>\n
respondent No.2) were appointed as permanent Judges and the term of<\/p>\n
respondent No.2 was extended by one year w.e.f. 3.8.2005. Again on<\/p>\n
3.8.2006 the term of respondent No.2 was extended for a period of six<\/p>\n
months. The aforesaid scenario according to the petitioners shows that<\/p>\n
respondent No.2 was found to be unsuitable to be appointed as a permanent<\/p>\n
Judge. It is emphasized that all the three members of the collegium<\/p>\n
including the then Chief Justice of India opposed the appointment of<\/p>\n
respondent No.2 as a permanent Judge. A grievance is made that for the<\/p>\n
reasons best known, all the 8 Judges were appointed as Additional Judges,<\/p>\n
with a view to draw smokescreen over the factual scenario. After the expiry<\/p>\n
                                                                       28<\/span>
\nof the four months period, 7 Additional Judges were made permanent and<\/p>\n
not respondent No.2. A plea is taken that when he was not found suitable<\/p>\n
to be made as a permanent Judge, why his tenure as an Additional Judge<\/p>\n
was extended, and that too, for a period of one year? Again, his term was<\/p>\n
extended for a period of 6 months.      Such extensions for short periods<\/p>\n
obviously, according to the petitioners, were intended to continue him as a<\/p>\n
Judge notwithstanding his unsuitability to be appointed as a permanent<\/p>\n
Judge. But the belated challenge as has been done in the present writ<\/p>\n
petition to such extensions cannot put the clock back. The position is<\/p>\n
almost undisputed that on 17.3.2005 the then Chief Justice of India<\/p>\n
recommended for extension of term of 8 out of 9 persons named as<\/p>\n
additional Judges for a further period of four months w.e.f. 3rd April, 2005.\n<\/p>\n
On 29.4.2005 the collegium including the then Chief Justice of India was<\/p>\n
of the view that name of respondent No.2 cannot be recommended<\/p>\n
alongwith another Judge for confirmation as permanent Judge. Since it is<\/p>\n
crystal clear that the Judges are not concerned with any political angle if<\/p>\n
there be any in the matter of appointment as Additional Judge or Permanent<\/p>\n
Judge; the then Chief Justice should have stuck to the view expressed by<\/p>\n
the colllegium and should not have been swayed by the views of the<\/p>\n
government to recommend extension of the term of respondent No.2 for one<\/p>\n
                                                                         29<\/span>
\nyear; as it amounts to surrender of primacy by jugglery of words.\n<\/p>\n
15.   Again on 3.8.2006, the then Chief Justice of India who was earlier of<\/p>\n
the view about unsuitability of respondent No.2, alongwith his senior<\/p>\n
colleagues, extended the term for six months on the ground that the time<\/p>\n
was inadequate to obtain views of then Chief Justice of the Madras High<\/p>\n
Court. It is to be noted that at different points of time, starting from the<\/p>\n
point of initial appointment,       the successive Chief Justices have<\/p>\n
recommended for respondent No.2 to be made permanent. That situation<\/p>\n
continued till 3.2.2007 when the recommendation of the then Chief Justice<\/p>\n
of the Madras High Court for appointing respondent No.2 as a permanent<\/p>\n
Judge was accepted. The grievance of the petitioners as noted above is that<\/p>\n
collegium was not consulted. We have dealt with the legal position so far as<\/p>\n
this plea is concerned in detail above. Before the Chief Justice of India, at<\/p>\n
the time of accepting the recommendation for respondent No.2 being made<\/p>\n
permanent, the details required to be furnished in terms of para 13 of the<\/p>\n
memorandum were there. There was also the recommendation of the then<\/p>\n
Chief Justice of Madras High Court who re-iterated the view of his<\/p>\n
predecessor in this regard.\n<\/p>\n
                                                                         30<\/span><\/p>\n
16.   The matter can be looked at from another angle. Supposing instead of<\/p>\n
accepting the recommendation for appointment as a permanent Judge, the<\/p>\n
Chief Justice of India would have extended the period of Additional<\/p>\n
Judgeship for two years which is maximum time permissible. There would<\/p>\n
not have been any requirement for taking the views of the collegium (as<\/p>\n
contended by the petitioners) and the result ultimately would have been the<\/p>\n
same i.e. respondent No.2 would have continued as a Judge. It is to be<\/p>\n
noted that he is due to retire on 9.7.2009. As noted above, at various points<\/p>\n
of time, when the term of appointment as an Additional Judge of respondent<\/p>\n
No.2 was extended, there was no challenge. The situation prevailed for<\/p>\n
more than two years. As noted above, the clock cannot be put back.\n<\/p>\n
17.   In the peculiar circumstances of the case, we are not inclined to<\/p>\n
accept the prayer of the petitioners. But as indicated above, we have no<\/p>\n
hesitation in saying that a person who is not suitable to be appointed as a<\/p>\n
permanent Judge on the ground of unsuitability due to adverse factors on<\/p>\n
account of mental and physical capacity, adverse materials relating to<\/p>\n
character and integrity and other relevant matters, which are so paramount<\/p>\n
and sacrosanct for the functioning as a Judge, should not be continued as<\/p>\n
an Additional Judge. Even when an additional Judge is appointed as a<\/p>\n
                                                                         31<\/span>
\npermanent Judge, he does not become immune from action, if circumstances<\/p>\n
so warrant. Whenever materials are brought to the notice of the Chief<\/p>\n
Justice of India about lack of mental and physical capacity, character and<\/p>\n
integrity, it is for him to adopt such modalities which according to him<\/p>\n
would be relevant for taking a decision in the matter.\n<\/p>\n
18.    So far as respondent No.2 is concerned, it appears that he has been<\/p>\n
transferred to some other High Court in public interest. If, it comes to the<\/p>\n
notice of the Hon’ble Chief Justice of India that action needs to be taken in<\/p>\n
respect of him for any aberration while functioning as a Judge, it goes<\/p>\n
without saying appropriate action as deemed proper shall be taken.\n<\/p>\n
19.    Before saying “omega” it needs to be emphasized what Shakespeare<\/p>\n
wrote in Othello (Act III, Scene 3, 155)<\/p>\n
      “Good name in man and woman, dear my lord,<\/p>\n
      Is the immediate jewel of their souls.\n<\/p>\n
      Who steals my purse steals trash; ’tis something, nothing;\n<\/p>\n
      ‘T was mine, ’tis his, and has been slave to thousands:\n<\/p>\n
      But he that filches from me my good name<\/p>\n
                                                                         32<\/span>
\n      Robs me of that which not enriches him<\/p>\n
      And makes me poor indeed.”\n<\/p>\n
       Again in “Richard II”, Act I, Sc. 1 said Shakespeare wrote:\n<\/p>\n
             “The purest treasure moral times afford<\/p>\n
             Is spotless reputation; that away,<\/p>\n
             Men are but gilded loam or painted clay.”\n<\/p><\/blockquote>\n
20.    The writ petition is disposed of accordingly.\n<\/p>\n
                                       …………………………………..J.
\n                                       (Dr. ARIJIT PASAYAT)<\/p>\n
                                       …………………………………..J.
\n                                       (Dr. MUKUNDAKAM SHARMA)<\/p>\n
New Delhi,
\nDecember 17, 2008<\/p>\n
                                                                                 33<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shanti Bhushan & Anr vs U.O.I. & Anr on 17 December, 2008 Author: . Arijit Pasayat Bench: Arijit Pasayat, Mukundakam Sharma REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 375 OF 2007 Shanti Bhushan and Anr. …Petitioners Versus Union of India and Anr. ….Respondents JUDGMENT […]<\/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-37584","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShanti Bhushan & Anr vs U.O.I. & Anr on 17 December, 2008 - 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\/shanti-bhushan-anr-vs-u-o-i-anr-on-17-december-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shanti Bhushan & Anr vs U.O.I. & Anr on 17 December, 2008 - 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