330. It would appear that our Constitution has devised a wholesome and effective mechanism for the appointment of Judges which strikes a just balance between the judicial and executive powers so that while the final appointment vests in the highest authority of the executive, the power is subject to a mandatory consultative process which by convention is entitled to great weight by the President. Apart from these safety valves, checks and balances at every stage, where the power of the President is abused or misused or violates any of the constitutional safeguards it is always subject to judicial review. The power of judicial review, which has been conceded by the Constitution to the judiciary is in our opinion the safest possible safeguard not only to ensure independence of judiciary but also to prevent it from the vagaries of the executive. Another advantage of the method adopted by our Constitution is that by vesting the entire power in the President, the following important elements are introduced:
(1) a popular element in the matter of administration of justice,
(2) linking with judicial system the dynamic goals of a progressive society by subjecting the principles of governance to be guided by the Directive Principles of State policy,
(3) in order to make the judiciary an effective and powerful machinery, the Constitution contains a most onerous and complicated system by which Judges can be removed under Article 124(4), which in practice is almost an impossibility.
(4) in order to create and subserve democratic processes the power of appointment of the judiciary in the executive has been vested so that the head of the executive which functions through the Council of Ministers, which is a purely elected body, is made accountable to the people.
331. If absolute powers were to be vested in the judiciary alone for all its spheres of activities (appointment, retirement, removal, etc.) then the element of absolutism may have crept in, resulting in irreparable harm to the great judicial institution. Another reason why the power of appointment in the judiciary was not vested absolutely was to avoid judicial interference in the day-to-day working of the legislative or parliamentary institutions.
332. Dr. Singhvi submitted that independence of judiciary comprises two fundamental and indispensable elements, viz., (1) independence of judiciary as an organ and as one of the three functionaries of the State, and (2) independence of the individual Judge.
333. There can be no quarrel that this proposition is absolutely correct. Our Constitution fully safeguards the independence of Judges as also of the judiciary by a three-fold method--
(1) by guaranteeing complete safety of tenure to Judges except removal incases of incapacity or misbehaviour which is not only a very complex and complicated procedure but a difficult and onerous one.
(2) by giving absolute independence to the Judges to decide the cases according to their judicial conscience without being influenced by any other consideration and without any interference from the executive. Article 50 clearly provides that the State shall take steps to separate the judiciary from the executive in the public services of the State. This important Directive Principle enshrined in Article 50 has been, carried out by the CrPC, 1973 which seeks to achieve complete separation of judiciary from the executive.
(3) so far as the subordinate judiciary (is concerned the provisions of Arts, 233-236 vest full and complete control over them in the High Court. Only at the initial stage of the appointment of munsiffs or the District Judges, the Governor is the appointing authority and he is to act in consultation with the High Court but in all other matters like posting, promotion, etc., as interpreted by this Court in Samsher Singh's case , the High Court exercises
absolute and unstinted control over the subordinate judiciary. Promotion, holding of disciplinary inquiry, demotion, suspension of Sub Judges lie with the High Court and the Governor has nothing to do with the same. Hinting on the nature of the separation of powers brought about by our Constitution, this Court in Chandra Mohan v. State of U.P. made the following observations (at
p. 1993):
The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States; it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including inappropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction.
334. This Court has in several cases held that the condition of consultation which the Governor has to exercise implies that he would have to respect the recommendations of the High Court and cannot turn it down without cogent reasons and even if he does so, it is manifest that his order is always subject to judicial review on the ground of mala fide or exceeding his jurisdiction.
335. These are sufficient safeguards to ensure the independence of judiciary. The argument of Dr. Singhvi goes a step further so as to import the American concept of absolute independence in our Constitution which, however, is not permissible because as indicated above the provisions relating to judiciary of our Constitution and American Constitution are essentially different.
336. Dr. Singhvi then advanced the same argument which was put forward by Mr. Seervai that a transfer without consent would be punitive both in concept and consequences and would promote a relationship of master and servant which is Inapplicable to the case of Judges and the Chief Justices, We are, however, unable to accept this extreme argument because for the reasons that we have already given a transfer in public interest is an extraordinary provision which does not entail any stain or stigma and is a constitutional step which completely excludes the concept of master-servant relationship.
337. Dr. Singhvi later rightly laid greater stress on the nature and extent of the consultative process in the case of transfer. It was also submitted that even if a Judge is transferred individually, public interest, which leads to his transfer, would also have to be examined by the court: We propose to examine this aspect in greater detail when we deal with Transferred Case No. 24/81. At the moment it is sufficient to state that for the reasons that we have already given a non-consensual transfer cannot be treated as punitive, penal or punishment. Furthermore, we might state here that after a general policy is evolved by the Government for transfer of Judges of the High Court in order to ensure the goal of having 1/3rd Judges in each State from outside the State, such a policy Would be fully justified not only on the ground of public interest but in the larger interest of the country as a whole to promote integration and crush parochialism and provincialism. If this is done, then the question of effective consultation would have to be looked from a different angle. Similarly, a general policy to have CJs from outside in every State would serve the same national interest and there also the effective consultation is to be confined only to the just exceptions that may be made while pursuing this policy.
338. The last question that remains to be determined is as to whether the proposal for transfer of Judges from one High Court to another should emanate from the CJI or from the President. In this connection, the Solicitor-General has produced a memorandum showing the procedure to be adopted in connection with the appointment and transfer of Judges. This memorandum cannot take the place of a statute or a constitutional document. It merely prescribes, the manner in which the proposal can be processed. From a plain language of Article 222 it is manifest that the proposal for transfer can emanate either from the CJI or from the President through the Union Minister for Law and Justice. What is Important is whichever authority, initiates the transfer, the conditions prescribed under Article 222 must be complied with, viz.,
(a) if the proposal emanates from the President, he must ascertain the views of the CJI which are entitled to great weight, and
(b) as Article 222 contemplates consultation with the highest judicial authority in the whole country, it is obvious that the CJI also represents the Judges or the Judges who are sought to be transferred.
339. As a logical result of this concept, it would be necessary for the CJI, on receiving the proposal from the President, to ascertain the views of the Judge concerned and his personal circumstances or objections, if any, and then after applying his mind to them, place the same before the President through the Law Minister. Thereafter, the Matter would have to be processed according to the Rules of Business and advice sent to the President for formal orders.
340. Where, however, the proposal emanates from the CJI himself, then he should collect the necessary facts and examine the reasons given by the Minister concerned for the transfer and before giving his opinion or advice to the Minister he would have to consult the Judge concerned and ascertain his views and give due consideration to them. Thereafter he should also communicate the views expressed by the Judge concerned--whether against or in favour of the proposal--to the President through the Minister concerned so that even if the CJI does not agree with the view of the Judge, the President may be in a position to give his decision finally one way or the other.
341. These are the essential requirements of Article 222 which are briefly contained in the memo, though not strictly in consonance with what we have said above. We might hasten to add here that although the Constitution does not mention either the Chief Minister or the Governor of the State being consulted in the manner of. transfer of a Judge from one High Court to another but the memo provides for this procedure in order to solve some practical difficulties because when a Judge is transferred from one State to another the transferor State must be told, to make necessary arrangements for appointing his successor and similarly at the other end the receiving State would have to make adequate arrangements for the residence and other facilities which are to be given to the Judge concerned. In this process, the Chief Minister or the Governor of the two States may express their opinion but the President is not bound under Article 222 to accept their views. It does not appear to be the intention of the Memo to supplant. two additional authorities for the purpose of consultation, for that would be in direct contravention of Article 222 which merely stipulates consultation with the CJI and impliedly the Judge concerned. Thus, the information given by the Chief Ministers and the Governors of the States is merely for the limited purpose of ascertaining their views and other matters referred to above and is not, therefore, a part of the consultative process enshrined in Article 222 otherwise, if additional authorities are introduced for the purpose of being consulted, then the Memo will be clearly violative of Article 222.
342. Thus, the Memo, while prescribing that the proposal should emanate from the President does not exclude the other alternative, viz., that the proposal should emanate from the CJI. In Transferred Case No. 24/81 it is clear that the proposal of transfer of Justice K.B.N. Singh and others emanated from the CJI and that in our opinion was perfectly Legal, and constitutional and does not offend the provisions of the Memo as suggested by counsel for the petitioners because the Memo, does not and cannot in any way debar the CJI from initiating the proposal if he wants to do so.
343. This, therefore, disposes of all the contentions of the counsel for the parties so far as the various aspects of interpretation of Article 222 is concerned. On a, consideration, therefore, of the facts, circumstances and authorities the position is as follows:
(1) that Article 222 expressly excludes 'consent' and it is not possible to read the word 'consent' into Article 222 and thereby whittle down the power conferred on the President under this Article.: (2) that the transfer of a Judge or a CJ of a High Court under Article 222 must be made in public interest or national interest,
(3) that non-consensual transfer does not amount to punishment or involve any (sic).
(4) that in suitable cases where mala fide is writ large on the face of it, an order of transfer made by the President would be subject to judicial review,
(5) that the transfer of a Judge from one High Court to another does not amount to a first or fresh appointment in any sense of the term,
(6) that a transfer made under Article 222 after complying with the conditions and circumstances mentioned above does not mar or erode the independence of judiciary.
344. For the reasons given above, the contentions of Mr. Seervai, Dr. Singhvi and others fail and are overruled.
Point No. 3 - Policy of General Transfers'
345. We now come to the question of evolving a general policy of transfers (for short, to be referred to as the 'Policy') of Judges of Chief Justice from the home State to other States so that each State or a majority of them has a GJ from outside. Policy has two important limbs--(1) transfer of CJ or Judges from one High Court to another, and (2) recruitment of one-third judges in each High Court from outside the State in which the High Court is situate. The earliest roots and the foundation for evolving the aforesaid policy are to be found even when Article 222 was in the process of its birth. The most prophetic and pregnant observations of Dr. Ambedkar give a clear clue to the desire expressed and the goal sought to be achieved by introducing Article
222. these lines from his speech may be extracted thus:
Secondly, it might be desirable toimport a new Chief Justice to a High Court because it might be desirable to have a man who is unaffected by local politics and local jealousies. We thought therefore that the power to transfer should be placed in the hands of the Central Government.
(Emphasis ours)
(p. 580, Constituent Assembly Debates Vol. 11 (1949).)
346. These observations have a historical significance having been made by one of the greatest jurists, constitutionalist and one of the eminent Founding Fathers of our Constitution and perhaps the highest tribute that .we can pay to the dedicated service of Dr. Ambedkar is to evolve a policy and thus fulfil the pious wish and the last desire of the great jurist

302. Lastly, Dr. Rajendra Prasad expressed his view that the Constitution undoubtedly made' clear provisions for an independent judiciary and observed thus : (The Framing of India's Constitution by Shiva Rao (Vol: IV), p. 954)
We have provided in the Constitution for a judiciary which will be independent. It is difficult to suggest anything more to make the Supreme Court and the High Courts independent of the influence of the executive. There is an attempt made in the Constitution to make even the lower judiciary independent of any outside or extraneous influence. One of our articles makes it easy for the State Governments to introduce separation of executive from judicial functions and placing the Magistracy which deals with criminal cases on similar footing as civil Courts. I can only express the hope that this long overdue reform will soon be introduced in the States.
303. We have mentioned these facts at this stage for two reasons. In the first place we wanted to illustrate and emphasise the actual philosophy of the Constitution so that the various articles may be read in the light of the views and the desire expressed: lay the Founding Fathers Secondly, the fact that our Constitution is based not on the American but on the British Pattern is established from the observations extracted above and the internal evidence furnished: by the various provisions of the Constitution itself. It is true that we have borrowed some provisions from the American Constitution and others from the Japanese Constitution but by and large our Constitution is fashioned on the British pattern. Therefore," white Considering the doctrine of privilege of the doctrine of candour it would be safer to rely on English cases rather than the American doctrine. However, this aspect of the matter will be dealt with at the appropriate stage.
304. It was next contended both by Mr. Seervai and Dr. Singhvi that non-consensual transfers of High Court Judges' are punitive in nature and amount to punishment. Detailed contentions in this regard have already been narrated by us when we dealt with their contentions 6n this point. One of the cardinal points made out by the learned Counsel for the petitioners against non-consensual transfers was that if a transfer, is made without the Consent of the Judge it will arm the Central Government with a strong weapon to punish a High Court Judge who either does not share the ideology of the Government or is not prepared to oblige it, by compelling him to toe the line of the Government at the risk of being transferred. Reliance was placed, in support of this argument on a large number of transfers that Were made during the emergency resulting in writ petitions filed in the Gujarat High Court in Seth's-case where this very point was argued on behalf of one of the Judges who had moved the petition before the Gujarat High Court. It was also pointed out that in the supreme. Court both Bhagwati and Untwalia, JJ., dissented, from the majority view and particularly Untwalia, J. mentioned the fact that the large number of transfers had created a panic. It is true that there were, quite a few transfers during the emergency which were not in consonance with the spirit of Article 222 and that is why the Government had conceded this fact and took steps to revoke the transfers by retfansferring, almost all the Judges to the High Courts from where they had been transferred. Even so the Government insisted, that the point of law involved should be decided by this Court as a result of which the majority judgment held that Article 222 does not contemplate that a transfer should foe made only with the consent of the Judge, concerned. Taking the argument at its face value, we cannot jump immediately to the conclusion that in all cases non-consensual transfers would amount to a punishment so as to arm the Government with a weapon to punish a Judge for not toeing the line of the Government, It is a well-known saying that one sparrow does not make a summer, it, seems that it is neither logical nor congruent to draw an irresistible inference merely from the massive transfers made during the emergency inspired by particular motive to the conclusion that the power of the President enshrined fin Article 222 would be exercised for collateral reasons always in future also more particularly so when this Court in the majority judgment in Seth's case had laid down the guidelines for transferring a Judge from one Court to another and also laid very great stress on the process of effective consultation, the possibility of abuse of power is completely ruled out. This Court in that case had laid down sufficient safeguards against a wrong or colourable exercise of power by the President under Article 222. Therefore, there is no reason to presume that any order which is passed by the President under Article 222 henceforward is bound to be mala fide or colourable and even if it is in a particular case or cases, it is doubtless subject to judicial review.
305. It was then contended that a transfer of a Judge from one High Court to another entails evil consequences inasmuch as it uproots the Judge from his hearth and home and transplants him in 4 new and alien place where he has to start his life or career anew and face Several personal difficulties and inconveniences. Once it is conceded that the power of transfer under Article 222 is to be exercised in public interest, then any in convenience that is felt by the Judge would have to yield to the larger interest of the community so as to make the said article workable. Although Article 222 is an extraordinary power, whenever a person accepts judgeship of a High Court he is fully aware that during his career as a Judge the power under Article 222 could be exercised by the president without his consent and if knowing this he accepts the position of a High Court Judge, he cannot be heard to say that he ought not to be transferred because he would suffer lot of inconvenience.
306. It is true that the transfer of a High Court Judge is an extraordinary phenomenon and is resorted to very sparingly. Though not the usual incident of the career of a High Court Judge as in the case of other services, particularly the subordinate judiciary the provision for transfer is undoubtedly there and has to be worked out in suitable cases. We shall deal with this aspect of the matter in greater detail when we come to the limb of the argument regarding the policy of general transfers.
307. Furthermore, the very concept of transfer under Article 222 being a punishment is highly derogatory to the high constitutional position that a High Court Judge holds. Such a constitutional appointment, which makes a Judge a constitutional functionary and not a Government servant, more so when he obtains certain special privileges having regard to the high position he holds, is against the very concept of penalty or puinshment. It is manifest that when a person is punished for an offence or a mistake or an error, then he is to undergo some penal process. In the case of a Judge who is transferred, no such penal consequences are at all visited because on the plain term of Article 222 the Judge has to get special facilities before being transferred to the transferee High Court. Clause (2) of Article 222 clearly provides that a transferred Judge is only to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and until so determined such compensatory allowance as the President may fix. Thus, the granting of compensatory allowance to a Judge in lieu of transfer completely destroys the concept that the transfer involves a stigma or a punishment. You don't have to award a person additional facilities if you punish him und if you do, then the act cannot amount to a punishment. Apart from the allowances, the High Court Judges (Conditions of Service) Act and the Rules made therein clearly provide that a Judge who is transferred from one High Court to another can always avail of the special leave concession rules by visiting his home State, along with his family, at Government cost once a year. The Judges Rules, as amended, further enjoin that the Judge must be supplied with a free furnished house which under the Amendment Act of 1981 is not even to be treated as a perquisite under the Income-tax Act. It is true that some of these facilities are available to a Judge in his original High Court also but the totality of the facilities taken into consideration undoubtedly seek to make him as comfortable as possible in the transferee Court also.
308. In view of the speeches and statements of the Members of the Drafting Committee particularly' those of Dr. Ambedkar Article 222 (which was 128 in Draft Constitution) was introduced not by way of punishing a Judge but to import better talents in other High Courts and enable the Judge to work in a free and fair atmosphere where he can work without any local influence. Indeed, if our Founding Fathers were alive today and were to be told to their utter dismay that transfer amounts to a punishment, they would have got the greatest shock of their life.
309. Far from being a punishment the transfer of a Judge does not involve any stain or stigma nor even the slightest reflection oh his legal functioning or his judicial character or integrity. The transfer of a Judge contemplated by Article 222 is in the nature of a response to a call of duty in the larger national interest of the country in order to maintain and ensure absolute purity of judicial administration. On being transferred the Judge would find himself free to work in an independent atmosphere untrammelled by any provincial or parochial consideration, undaunted by any external or internal influences or local pulls or pressures and uninfluenced by the considerations of class, caste or creed. He would also generate much greater confidence in the people to whom he imparts justice which is bound to enhance his judicial prestige and as a logical result would subserve the concept of independence of judiciary. For a true and conscientious Judge there can be no higher honour than to create a feeling that justice is not actually done but also appears to have been done, the latter being more important and fundamental quality of judicial approach. The apprehension that a Judge on being transferred to another State is likely to face a hostile Bar is merely an anathema and an illusion which has neither a factual nor a legal existence. If the Judge's behaviour towards the Bar is polite and courteous 'and he gives a little accommodation to the Bar he is bound to win laurels of the Bar. In fact, the Bar always welcomes an outside Judge who is likely to build up a new judicial structure and establish a flawless and unblemished reputation. This is not merely a pious wish or an ideal dream but a stark and speaking reality which is, evident from the performance and reputation of Judges who had been transferred outside their States and had proved to be not only successful but memorable Judges.
Judges transferred as CJ/Judges outside their State:
1. Justice Sinha of the Patna High Court was transferred and appointed as CJ in Nagpur High Court.
2. Justice Sarjoo Prasad of the Patna High Court was appointed as CJ of Assam and later of Raj as than High Courts.
3. Justice C.P. Sinha of Patna High Court to be CJ of Assam High Court.
4. Justice Malhotra of Allahabad High Court to be CJ of Assam High Court.
5. Justice Narasimham from Orissa to Patna as CJ
6". Justice Khalil Ahmed from Patna to Orissa as CJ
7. Justice A. T, Harries from Punjab to Calcutta as CJ
8. Justice S.R. Dasgupta from Calcutta to Karnataka High Court
9. Justice Ansari from Andhra Pradesh to Kerala High Court
10. Justice A.D. Koshal from Punjab & Haryana High Court to Madras High Court.
310. Apart from these there were other transfers, a list of which was submitted by the counsel for the respondents.
311. These Judges have left an indelible imprint in the judiciary of the State where on transfer or appointment they worked. We might also mention that the Solicitor General in his statement at the Bar drew our attention to the excellent manner in which, our colleague Justice A.D. Koshal shaped himself when he was transferred to Madras during the emergency. The Solicitor-General said that he had left behind an unparalleled reputation of being a very sharp and independent Judge. These circumstances therefore, fully justify transfer of Judges from one High Court to another.
312. The Attorney General with his usual ingenuity submitted a very plausnow that transfer of a Judge from one High Court to another under certain circumstances even though inconvenient cannot by any process of reasoning amount to a reflection or stigma. It was submitted by the Attorney-General that there may be two contingencies where a Judge may or may not give his consent. One type of Judges may consent to the transfer against the background of public interest and the Judge responds to the sensitive call of duty ignoring his private losses and inconveniences and gives his consent to the said transfer. There may be other type of Judges who care more for their personal conveniences or losses and refuse to give their consent. The hardship involved in both the cases is the same. The only question to consider is as to whether or not Article 222 operates to the disadvantage of a more conscientious Judge or of a Judge who is not willing to meet the demands of public interest or, if we may say so, national interest, for either public or national interest may some time make it not only desirable but imperative that a Judge should be transferred
313. Furthermore, the Attorney General pointed out that there may be several factors which may affect the administration of justice or the confidence of the community which may involve the Judge himself on a purely environmental basis. For instance, the atmosphere may be vitiated by his close relations or friends even without the knowledge of the Judge who may remain innocent and become an unfortunate victim of environments. In such cases, his continued presence in the High Court is bound to vitiate the very atmosphere in which justice is to be dispensed with so that a conscientious Judge would himself opt for a transfer outside his State. We have to take into account the advice given by the CJI in one of the Seminars that where close relations of a Judge or the Chief Justice practise in the same Court and are likely to gain undue advantage, the concerned judge should himself, in obedience to the keen sense of justice which every Judge possesses opt to be transferred to some other High Court. This is undoubtedly a very valuable advice which seems to have been given by our CJI to the Judges in the country.

(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duty qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
(2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court." This Article may be divided into four parts:
(1) that there should be a lack of quorum of the Judges of the Supreme Court.
(2) that the Chief justice of India may with the previous consent of the President and
(3) after consultation with the Chief Justice of the High Court,
(4) request in writing the attendance, as an ad hoc Judge, for such period as may be necessary of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court.
Clause (2) of the Article provides that It shall be the duty of the Judge to attend the sittings.
177. It would thus appear that when the Constituent Assembly intended that there should be consent, it has said so in very clear terms. The first part clearly shows that the power under Article 127(1) can be exercised only with the previous consent of the President and not otherwise. Similarly, in the second part, the word 'consultation' is used and in Clause (2) the word 'duty' is used which completely rules out 'consent'. An analysis of this Article clearly shows that whenever the Constitution intended a particular expression to have a particular meaning it has made its intention clear and unambiguous by using the word 'duty', 'consent' or 'consultation'.,
178. Article 128 requires consent of the President before an offer is made to a retired Judge to act as an ad hoc Judge of the Supreme Court. Proviso to Article 128 may be extracted thus:
Provided that nothing in this Article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
179. This proviso clearly enjoins that the ad hoc Judge cannot be requested to sit in the court unless he consents to do so. Indeed, if the intention of the Constituent Assembly was that a transfer could not be made without the consent of the Judge, then a similar expression as contained in the proviso or something like that would have been used in Article 222(1). The absence of any such expression shows that the Constituent Assembly deliberately omitted 'consent' by necessary intendment.
180. Article 224-A deals with the appointment of retired Judges at sittings of High Courts which may be extracted thus:
224-A. Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
181. The provisions of this Article make the exercise of powers conditional on the consent of the Judge concerned. In Chandra Mohan v. State of U.P. this Court has clearly indicated that where the Constitution intended particular expressions to be used it has expressed its intention clearly and observed thus (at p, 1690 of AIR):
Wherever the Constitution intended to provide more than one consultant, it has said so: see Articles 124(2) and 217(1). Wherever the Constitution provided for consultation of a single body or individual it said so: see Article 222. Article 124(2) goes further ;and makes a distinction between persons who shall be consulted and persons who may be consulted.
182. Article 258 runs thus:
258. (1) Notwithstanding anything in this Constitution the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State, has no power to make laws, confer powers, and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers and duties.
183. Here also, the President has to exercise his powers with the consent of the Government of a State, either conditionally or unconditionally. In other words, where the power conferred on the President is to be exercised with consent,1 the Founding Fathers of the Constitution have expressly said so in the concerned Articles. On a parity of reasoning, therefore, if the intention of the Founding Fathers was to make 'consent' an essential ingredient of Article 222, they would have used the expression 'the President may, with the consent of the Judge concerned, transfer a Judge from one High Court to another'. The fact that Article 258. requires the President to act with the; consent of the Government of a State, which is also a constitutional authority; the same principle will apply to a High Court Judge who is also a constitutional authority. Therefore, this leads to the irresistible conclusion that the word 'consent' was never intended to be included in the powers to be exercised under Article 222.
184. Article 258-A runs thus:
258-A. Notwithstanding anything in this Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends.
185. Here also, the Governor of a State has' to exercise a particular power only with the consent of the. Government of India and not otherwise. This also shows that the Founding Fathers were fully aware of the situations where consent is necessary find where it is not.
186. Article 254 deals with the legislative powers of the center and the States. Clause (2) of Article 254 provides thus:
254(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent list contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
187. It is obvious that here as a legislation is concerned, the expression used is 'assent' and not 'consent' though both the terms are synonymous. The use of the word 'assent' is generally made when we are dealing with statutory enactments.
188. Sub-clause (ii) of Clause (1) of Article 370 may be extracted thus:
(ii) such other matters in the said lists as, with the concurrence of the Government of the State, the President may by order specify.
189. The laws mentioned in Article 370 can be applied to the State of Jammu & Kashmir only with the concurrence of the Government of the State. Here the word 'concurrence', which is stronger than 'consent', has been used to indicate and maintain the special status given to that State. Certain aspects of this matter have been clearly pointed out by Krishna Iyer, J. in Sheth's case thus:
It would thus appear that the Constitution itself specifies 'consent' where it is intended and omits it when unnecessary. If, therefore, the Constitution makers intended that under Article 222 a Judge cannot be transferred from one High Court to another without his consent then it should have been expressly so mentioned in the Constitution.
190. We have given these dear instances to drive home the point that wherever the Founding Fathers intended that a particular expression should be used in an Article as a condition precedent to the exercise of a particular power, the same has been mentioned and where no such intention was there the expressions have not been used. As against this, Mr. Seervai submitted that in Article 217 which provides for the appointment of High Court Judges, it has nowhere been indicated that the Judge proposed to be appointed should give his consent to the appointment. In Seth's case , Krishna Iyer J. while
dealing with an identical argument observed as follows (at p. 2382):
It would be seen that in this constitutional provision the words "appointed" and "transferred" have been used separately conveying different connotations; and if the Constitution makers had used these two terms in the said subject in different contexts it cannot be argued that these two terms are interchangeable. On the other hand, an analysis of Article 217(1)(c) shows that the constitutional provision makes a clear-cut distinction between appointment and transfer.
191. We stick to the view expressed by Krishna Iyer, J. in the majority judgment. The argument of Mr. Seervai appears to be fallacious because this analogy cannot be applied to a Judge who after being appointed is transferred under Article 222. It is obvious that there is no provision in the Constitution empowering the President to appoint for the first time a person as a Judge of High Court against his consent and even if he is appointed, the persons appointed can refuse to act as a Judge and if he does so the matter ends there and he cannot be compelled to act as a Judge Once, however, the person decides to accept the appointment of a Judge of a High Court he becomes a constitutional functionary and therefore would be subject to the provisions of the Constitution because before deciding to accept the appointment he must be presumed to be aware of the constitutional provisions contained in the various Articles regarding High Court Judges, viz., the conditions of service, the salary and other allowances, the date of retirement and also the provision "regarding transfer as provided for in Article 222 which does not contain the word 'consent'. It would thus not be open to any Judge to complain that he had been transferred against his consent or to plead that had he known this he may not have accepted the office of a High Court Judge, As the word 'consent' is conspicuously absent from Article 222, such a plea cannot in the nature of things be permitted to be taken by the concerned Judge. If he does not want to be transferred, it is always open to him to resign for which also there is a clear provision under proviso (a) to Clause (1) of Article 217. Therefore, the argument of Mr. Seervai must be overruled.
192. These are the intrinsic circumstances to show that the Founding Fathers did not intend to use the word 'consent' in Article 222 deliberately. We have already held that Article 222 is expressed in the clearest possible terms, But, assuming for the sake of argument as urged by Mr. Seervai, that there is some element of ambiguity either in the setting and pattern of Article 222 or in the real object which it seeks to subserve, which according to Mr. Seervai finds ample support from the fact that two Judges in Seth's case have
taken the view which Is being propounded by the learned Counsel, we would attempt to construe Article 222 in the light of the well settled rules of interpretation of statutes.
193. Before, however, we discuss the various books, reference and authorities we must take into consideration a very weighty circumstance which is peculiar to our Constitution as also to the American Constitution. It must be remembered that in England if any error is committed by a court of Appeal, it may be corrected by the House of Lords or eventually by Parliament by a simple majority. Similarly, in Australia also if the High Court gives a wrong interpretation of a particular constitutional provision it can be set right by the privy Council by an appeal against the said order of a High Court and the Parliament may amend the statute to bring it in conformity with the intention and that too by a simple majority. The position so far as our country is concerned is similar to that of America and if any error of interpretation of a constitutional provision is committed by the Supreme Court or any interpretation which is considered to be wrong by the Government can be rectified only by a constitutional amendment which is a very complicated, complex, delicate and difficult procedure requiring not merely a simple majority but two-third majority of the Members present and voting. Apart from the aforesaid majority, in most cases the amendment has to be ratified by a majority of the States. In these circumstances, therefore, this Court which lays down the law of the land under Article 141 must be extremely careful and circumspect in interpreting statutes, more so constitutional provisions, so to obviate the necessity of a constitutional amendment every time which, as we have already mentioned, is an extremely onerous task. S.R. Das, C.J. in the case of Bengal Immunity Co. Ltd. v. State of Bihar expressly referred to this aspect of the matter and
observed as follows (at p. 672):
An erroneous Interpretation of the Constitution may quite conceivably to perpetuated or may at any rate remain unrectified for a considerable time to the great detriment to public well being.
194. Having carefully interpreted a particular provision of the Constitution, the Court should as far as possible stick to the doctrine of stare decisis. It must be remembered that as Lord Wright pointed out in James v. Commonwealth (1936) AC 578 that a Constitution is a federal component and the constituents must hold a balance between all its parts.
195. Thus, so far as the general principles regarding interpretation of statutes are concerned they are now well settled beyond any controversy for the last two centuries in almost all the countries of the world having a democratic Constitution or pattern of Government, As far as this Court is concerned, on some points decisions during the first decade of its existence were somewhat inconsistent but generally the view which found favour with most of the Judges during the first decade was that the methodology of interpretation of statutes should be the same for constitutional provisions as it is for statutory provisions. It has further been held that external aids like Parliamentary debates, report of the Drafting or select committees, the Objects and Reasons of the Act are wholly inadmissible for the purpose of interpreting the provisions of a statute which would depend entirely on the language of the provisions concerned. Here also, some of the cases have held that, where the language of the provisions is shrouded in obscurity or is not fully intelligible so as to ascertain or find out the objects of the Act, external aids may be permissible. So far as speeches made by a Minister is concerned, it has been consistently held to be wholly inadmissible because it represents the individual view of a single person with which the majority of the Members if Parliament or may not have agreed.
196. During the second and third decade this Court made a prominent shift from the original stand and a long course of recent decisions have permitted parliamentary debates of Reports of Drafting or Select Committees to be taken into consideration for the purpose of ascertaining the object or the real meaning of the language employed in a statutory or constitutional provision.
197. But there is one principle on which there is complete unanimity of all the courts in the world and this is that where the words or the language used in a statute are clear and cloudless, plain, simple and explicit unclouded and unobsecured, intelligible and pointed so as to admit of no ambiguity, vagueness, uncertainty or equivocation, there is absolutely no room for deriving support from external aids. In such cases, the statute should be interpreted on the face of the language itself without adding, subtracting or omitting words therefrom.
198. It is equally well settled that it is not the duty of the court to import words which have been omitted deliberately or intentionally in order to fill up a gap or supply omissions to fit in with the ideology of concept of the Judge concerned. The words and the language used must be given their natural meaning and interpreted in their ordinary and popular sense.
199. There may be a .third type of cases which may be .on the border line --where the language may admit of two interpretations in which case the court may consider the desirability of resorting to external aids in order to catch and delve into the spirit and object of the statute.
200. These principles have been enunciated over the years by several authorities of various courts to which I shall refer hereafter. Before, however, going to the authorities, it may be necessary to refer to extracts from the various books of legal scholars of the interpretation of Statutes.
201. Crawford in his book captioned "Statutory Construction' (1940 Edition) in para 158 'Purpose of Interpretation and Construction (pp. 244-245) has observed thus:
The basic principle has been announced time after time that if the statute is plain certain and free from ambiguity a bare reading suffices and interpretation is unnecessary.
202. At page 344, it has also been pointed out by the author that alteration, interpolation or elimination of words are not permissible. In this connection, the author makes the following observations while dealing with an American case:
As we have already stated, the intention of the legislature must be primarily ascertained from the language used. This obviously means, as a general rule, that the courts have no power to add to, or to change, alter, or eliminate the words which the legislature has incorporated in a statute, not even in order to provide for certain contingencies which the legislature failed to meet, or to avoid hardship flowing from the language used, or to advance the remedy of the statute.
203. At pages 368-389, the author further observed thus:
Where the meaning of a statute is in doubt, the court may resort to contemporaneous construction--that is, the construction placed upon the statute by its contemporaries at the time of its enactment and soon thereafter -- for as (sic) in removing any doubt. Similarly, resort may also be had to the usage or course of conduct based upon a certain construction of the statute soon after its enactment and acquiesced in by the courts and the legislature for a long period of time. As is obvious, the meaning given to the language of a statute by its contemporaries is more likely to reveal its true meaning than a construction given by men of another day or generation. Even words change in meaning with the march of time. And the meaning given by contemporaries can be revealed with no more certainty than by resort to the common usage and practice under the statute itself over a considerable period of time.
204. The author has rightly observed that sometimes it so happens that words change in meaning with the march of times. If this is so, it is manifest that the court while interpreting a statute dealing with socialism cannot ignore the temper of the times and the modern trends of legal thought.
205. Similarly, while dealing with the circumstances and the history of the Statute, the author says thus:
According to the weight of authority and surely the better view, the court may consider the general history of a statute, including its derivation that is the various steps leading up to and at tending its enactment, as shown by the legislative journals, in its effort to ascertain the intention of the legislature where it is in doubt. Conversely, the legislative history cannot be considered where the statute's meaning is plain. (p. 383)
206. Here also, we find that history, etc., is permissible only where the language of a statute is ambiguous and not where the meaning of the statute is plain and clear.
207. V.P. Sarathi in 'Interpretation of Statutes' (1975 Edn.) observed thus:
In order to arrive at the intention of the legislature, the state of law and judicial decisions antecedent to and at the time the statute was passed are material matters to be considered....
Courts sometimes make a distinction between legislative debates and reports of committees and treat the latter as a more reliable or satisfactory source of assistance.
It is submitted that the subtle distinction that parliamentary history may be referred for ascertaining the intention, foul not for construction, is pedantic. In fact all such material must be freely referred: and it is only by resort to such material that the object of the legislation and how the legislature intended to achieve that object by the particular statute can be correctly ascertained by the Court. (p. 339)
208. At page 367, the author observes thus:
(a) Reference to English and American decisions may be made, because they have the same system of jurisprudence as ours, but do not prevail when the language of the Indian Statute or enactment is clear.
(b) They are of assistance in elucidating general principles and construing Acts in part materia.
(c) But Indian statutes should be interpreted with reference to the facts of Indian life.
209. The observations in Clause (c) are rather important because that seems to us to be the correct approach. Seervai in "Constitutional Law of India" (2nd Edn.) Vol. II, pp. 1543-44 observes thus:
Secondly, where words are clear and unambiguous effect must be given to them regardless of consequences....After all the object of interpretation or documents and statutes is to ascertain "the intention of .them that made it". The literal interpretation has a prima facie preference, but to get at the real meaning it is necessary to apply the rule in Heydon's case.
...
However, where the words of a statutory or constitutional provision are ambiguous, resort may be had to well recognised extrinsic aids to construction and regard may be had to the consequences of adopting one construction rather than another. The meaning of "ambiguity" has been considered at length in paras 2.31 and 2.32 of the text.
210. Craies on "Statute Law" (6th Edn.) while quoting Jervis C.J., at p. 86 observes thus:
It is clear that "if", as Jervis C.J. said in Abley v. Dale (1850) 20 LJCP 33, 35 the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but, we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning.
211. Similarly, the author has categorically observed that in the interpretative process casus omissus is not to be added or supplied. In this connection, the following observations have been made at p. 70:
A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made....Although in construing an Act of Parliament the Court must always try to give effect to the intention of the Act and must look not only at the remedy provided but also at the mischief aimed at, it cannot add words to a statute or read words into it which are not there" and quoting Lord Parker, the author says thus:
Where the literal reading of a statute...produces an intelligible result...there is no ground for reading in words or changing words according to what may be the supposed intention of Parliament.
212. At page 66, the author observes thus:
The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves....If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver.
Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature.
213. Lord Bacon says that the function of a Judge is jus decere and not jus dare, i.e., to interpret the law and not to make it. Similarly, Marshal, C.J, observed that we must remember that "it is the Constitution that we are expounding". These observations aptly apply to the instant case where we are construing a constitutional provision, viz., Article 222, particularly when a provision like this is not to be found in any Constitution of any other country of the world.
214. According to Maxwell, the golden rule of interpretation is to adhere to the ordinary meaning of the words used unless it is in direct conflict with the intention of the Act. In this connection, the author in his book 'Interpretation of Statutes' (l'2th Edition) observes thus:
It is a corollary to the general rule of literal construction that nothing is to be added to or taken from a statute unless there are adequate grounds to justify the inference that the legislature intended something which it omitted to express.
215. I have laid particular stress on the casus omissus aspect of the interpretative process because the main thrust of the argument of Mr. Seervai on interpretation of Article 222 was that the word 'consent' should be read into Article 222 which is not there at all, and if the contention of the counsel is accepted, it will amount to the court supplying an omission which has been made deliberately by the Founding Fathers of the Constitution and would be in direct contravention of the scheme of the Constitution as discussed above.
216. The leading case on the subject is Heydon's case (1584) 76 ER 637 where the broad principle of interpretation of Statutes was spelt out and explained. In this connection the Court observed as follows:
And it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered:
1st. What was the common law before the making of the Act.
2nd. What was the mischief and defect for which the common law did not provide.
3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.
And, 4th, The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.
217. This case has been followed both by this Court as also by the courts in England for a pretty length of time. This may be the starting point of the manner and the method which the Court should adopt in interpretation of statutes.
218. The authorities-on the question of interpretation of the constitutional provisions may roughly be divided into four categories which may not exactly be absolutely separate or independent so as to be confined in a watertight compartment but in some cases may overalp, yet they generally lay down the law on the subject categorised by us:
Categories
(A) Where the language of a statute is plain, explicit and unambiguous, no external aid is permissible.
(B) Where the language is vague and ambiguous or does not clearly spell out the object and the spirit of the Act, external aids in the nature of parliamentary debates, reports of Drafting or Select Committees may be permissible to determine and locate the real intention of the legislature.
(C) Where certain words are omitted from the statute, the court cannot supply the omission or add words to the statute on a supposed view regarding the intention of the legislature.
(D) Any speech made by a Minister or a Member in the Parliament is not admissible or permissible to construe a statutory or a constitutional provision.
219. We shall now deal with the authorities which fall more or less within the four categories indicated above.
Category (A)
220. The earliest case on the subject 13 A.K. Gopalan v. State of Madras where Kania C.J. pointed out that external aid was not permissible unless a statute was ambiguous and observed thus (at p. 36 of AIR):
"Our attention was drawn to the debates and report of the drafting committee of the Constituent Assembly in respect of the working of this clause. The \ report may be read not to control the meaning of the article, but may be seen in case of ambiguity....
Resort may be had to these sources with great caution and only when latent ambiguities are to be resolved.
221. Fazal Ali, J. (as he then was) speaking in the same strain made the following observations (at p. 56):
In my opinion, though the proceedings or discussions in the Assembly are not relevant for the purpose of construing the meaning of the expressions used in Article 21, especially when they are plain and unambiguous they are relevant to show that the Assembly intended to avoid the use of the expression without due process of law.
(Emphasis ours)
And Mukherjea, J. observed thus (at p. 03):
It is well settled that the Constitution must be interpreted in a broad and liberal manner giving affect to all its parts, and the presumption should be that no conflict or repugnancy was intended by its framers. In interpreting the words of a Constitution, the same principles undoubtedly apply which are applicable in construing a statute.
As an aid to discover the meaning of the words in a Constitution, these debates are of doubtful value. "Resort can be had to them", says Willoughby, "With great caution and only when latent ambiguities are to be solved....
222. The same view was expressed by Gajendragadkar, J. (as he then was) in Kanai Lal Sur v. Paramnidhi Sadhukhan where the
learned Judge observed as follows (at p. 910):
If the words used are capable of one construction only then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise.
223. In M. Pentiah v. Muddala Veeramallappa Sarkar, J. observed thus (at p. 1115):
Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a Statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense.
224. In M.V. Joshi v. M.U. Shimpi Subba Rao, J.
expressed the opinion of the Court thus (at p. 1498):
But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language employed in the Act and when the words are clear and plain the court is bound to accept the expressed intention of the Legislature.
225. In Hansraj Gordhandas v. H.H-Dave, Asstt. Collector of Central Excise & Customs, Surat Ramaswami, J. speaking for
the court observed thus (at page 759):
It is well established that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.
It is an application of this principle that a statutory notification, may not be extended so as to meet a casus omissus.
226. Although these observations were made in respect of a taxing statute, the principle of interpretation of provisions of a statute or of the Constitution is the same; the only difference being that in a taxing statute where two interpretations are possible, benefit of the doubt is normally given to the tax-payer.
227. iD Commissioner of Income-tax, Assam & Nagaland v. G. Hyatt , Hegde, J. speaking for the Court made the following observations (at p. 726):
In our opinion the meaning of Section 17(3)(ii) is plain and unambiguous. Hence there is no need to call into aid any of the rules of construction as was sought to be done by the High Court.
228. In Senior Superintendent, R.M.S., Cochin v. K.V. Gopinath, Sorter , Mitter, J. reiterated this well settled principle
thus (at p. 1488):
As has often said that if "the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense", "and not to limit plain words in an Act of Parliament by con-siderations of policy, if it be policy, as to which minds may differ and as to which decisions may vary.
229. In Umed v. Raj Singh , Bhagwati, J. (one of us
made the following observations) (at p. 61):
But that does hot mean that a construction should be adopted which ignores the plain natural meaning of the words or disregards the context and the collocation, in which they occur. It is a familiar rule of interpretation that the words used by the Legislature must be construed according to their plain natural meaning.
230. In Anandji Haridas & Co. Pvt. Ltd v. Engineering Mazdoor Sangh this Court observed as follows (at p. 949):
a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words.
231. In Mangalore Electric Supply Co. Ltd. v. Commr. of Income Tax, West Bengal this Court observed thus (at p. 1274).
The justification for this submission is stated to be that the word 'transfer', occurs in the collocation of three other words 'sala', 'exchance' and "relinquishment"which are essentially "optional or voluntary acts, leading to the conclusion that the word 'transfer' must take its colour from the three other words in association with which it is used. 'Transfer' therefore, according to the learned Counsel, means a voluntary transfer and cannot include all compulsory acquisition of property.
We find it impossible to accept the submission. In the first place if it was intended that voluntary transfers alone should fall within the meaning of the section, it was unnecessary for the legislature to use the expression 'transfer', an expression acknowledged in law as having a wide connotation and amplitude....Without more, therefore, there is no reason for limiting the operation of the word 'transfer' to voluntary acts of transfer so as to exclude compulsory acquisitions of property.
232. This decision seems to us to be apposite to the facts of the present case, viz., interpretation of the word "transfer" as the argument of Mr. Seervai is that the word 'transfer' used in Article 222 must be confined only to a transfer with the consent of the Judge concerned, thereby limiting the scope and ambit of Article 222, A similar argument was advanced in the case supra and rejected and the Court held that there was no reason to limit the word 'transfer' only to a voluntary transfer so as to include compulsory acquisition of property. On a parity of reasoning, therefore, we are of the opinion that to read 'consent' into Article 222 would be to limit and whittle down the scope, ambit and purpose of Article 222.
233. It is not necessary for us to multiply authorities on the subject covered by category 'A' because the text books and the authorities of this Court as also of some foreign courts referred to above, clearly lay down that where the language of a statute is plain and unambiguous it is not permissible to rely on external aids. Category (B)
234. This category consists of those cases which have laid down that where the language is vague or ambiguous to what extent external aid can be used to locate the actual intention of the Legislature. In Powell v. The Kempton Park Racecourse Co. Ltd. (1899) AC 143. Lord Halsbury indicated the extent to which external aid could be used by courts in construing a statutory provision and observed thus:
It has, indeed been argued that the history of the legislation and of the facts which gave rise to the enactment may in view of the preamble affect the construction of the Act itself, but though I do not deny that such topics may usefully be employed to interpret the meaning of a statute, they do not, in my view, afford conclusive argument here.
235. In A.K. Gopalan's case (supra), Sastri, J. (as he then was) observed as follows:
It is not a matter for surprise, therefore, that the Drafting Committee appointed by the Constituent Assembly of India recommended the substitution of the expression "except according to procedure established by law" taken from the Japanese Constitution, 1946, for the words "without due process of law" which occurred in the original draft, "as the former is more specific".
236. The learned Judge has clearly Indicated that the reason why our founding Fathers substituted the words 'except according to the procedure established by law' in Article 21 instead of the words "without due process of law" as used in the American Constitution because they implemented the Report of the Drafting Committee which had taken the words 'procedure established by law' from the Japanese Constitution of 1946. His Lordship then indicated the nature, extent and the circumstances in which external aid could be used to construe a constitutional provision, Sastri J., also commented on the extent of the relevancy of a speech made in the course of a debate on a Bill and in this connection observed thus:
A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the/minds of all those legislators were in accord.
237. Thus, the view of Sastri, J. was that a court could locate the objective and intent of the legislature primarily in the words used by the Constitution supported by such historical material as may be available.
238. In Commr. of Income Tax, Gujarat v. Vadilal Lallubhai . Hegde, J. observed as follows (at p. 1019):
In order to find out the legislative intent, we have to find out what was the mischief that the legislature wanted to remedy. The Act was extensively amended in the year 1939. Section 44-F was not in the draft bill. That section was recommended by the Select Committee consisting of very eminent lawyers. It will net be inappropriate to find out the reasons which persuaded the select Committee to recommend the inclusion of Section 44F, if the section is considered as ambiguous.
239. In this case, the Court relied on the recommendation of the Select Committee in order to find out the reasons for inclusion of a particular section.
240. In State of Mysore v. R.V. Bidap this Court
seems to have made a positive shift from the view taken in earlier cases of this Court and held that in order to ascertain the meaning of a statute or its object the court should not confine itself within a particular sphere but should take into consideration whatever is logically relevant or admissible. This is a decision of a Constitution Bench and shows the modern trend of interpretation of statutes. Krishna Iyer, J. speaking for the Court tersely observed as follows (at p. 2558):
The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of course, nobody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. There is a strong case for whittling down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief-sought to be remedied the social context, the words of the authors and other allied matters.
241. An identical view was taken in a later case of this Court in Faqu Shaw v. State of West Bengalwhere Bhagwati, J.
relied on the decision extracted above and observed thus (at p. 628):
Since the purpose of interpretation is to ascertain the real meaning of a constitutional provision, it is evident that nothing that is logically relevant to this process should be excluded from consideration. It was at one time thought that speeches made by the members of the Constituent Assembly in the course of the debates on the Draft Constitution were wholly inadmissible an extraneous aids to the interpretation of a constitutional provision, but of late there has been a shift in this position and following the recent trends in juristic thought in some of the Western countries and the United States, the rule of exclusion rigidly followed in Anglo-American jurisprudence has been considerably diluted.
242. It is true that these observations are to be found in the dissenting judgment of Bhagwati, J. (one of us) but on this issue there was no dissent. We are inclined to endorse the observations made by Krishna Iyer, J. and Bhagwati, J. as referred to in the cases mentioned above.
243. In Anandji Haridas & Co. v. Engineering Mazdoor Sangh , Sarkaria, J. speaking for the Court observed as
follows (at p. 949):
It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertaining the object which the Legislature had in view in using the word in question.
244. In Sole Trustee, Loka Shikshana Trust v. Commr. of Income-tax, Mysore , this Court made the following observations
(at p. 22):
But, in the case before us, the real meaning and purpose of the words used cannot be understood at all satisfactorily without referring to the past history of legislation on the subject and the speech of the mover of the amendment who was, undoubtedly, in the best position to explain what defect in the law the amendment had sought to remove.
245. In State of Tamil Nadu v. Pyare Lal Malhotra
Beg, J. (as he then was) observed thus (at D. 803):
The reason given, in the Statement of Objects and Reasons of the 1972 Act, for an elucidation of the "definition" of iron and steel, was that the "definition" had led to varying interpretations by assessing authorities and the courts so that a comprehensive list of specified declared iron and steel goods would remove ambiguity. The Select Committee, which recommended the amendment called each specified category "a sub-item" falling under "iron and steel.
246. In this case, the court relied on the Report of the Select Committee as also on the Statement of Objects and Reasons of the Act in order to elucidate the definition of certain words used in the statute.
247. To the same effect is a later decision of this Court in Jaisingh Jairam Tyagi v. Mamanchand Ratilal Agarwal , where the court observed as follows (at p. 1203):
Amending Act 22 of 1972 was, therefore, enacted for the express purpose of saving decree which had already been passed. The Statement of Objects and Reasons of the Amending Act stated.
248. Same view was taken in a batch of appeals by this Court in Polestar Electronic (Pvt.) Ltd. v. Addl. Commr. Sales-Tax where Bhagwati, J. (one of us) took into
consideration the subsequent history of the Act as also the Statement of Objects and Reasons in order to construe certain provisions of the statute concerned and observed thus (at p. 910):
The subsequent history of the Act also supports the construction which we are inclined to place on Section 5(2)(a)(ii) and second proviso. Section 5 (2) (a) (ii) was amended with effect from May 28, 1972 by Finance Act, 1972 and the words 'in the Union Territory of Delhi' were added after the word 'manufacturer' so as to provide that manufacture should be inside the territory....It is clear from the Statement of Objects and Reasons that this amendment was not introduced by Parliament ex abundanti cautela, but in order to restrict the applicability of the exemption clause in Section 5(2)(a)(ii). The Statement of Objects and Reasons admitted in clear and explicit terms that....
249. In Mangalore Electric Supply Co. (supra)
Chandrachud, J. (as he then was) relied on the legislative history of the provision of the statute concerned in order to construe the intention of the legislature and pointed out thus:
The legislative history of Section 12B (I) furnishes an important clue to the question raised by the appellant's counsel.
250. In Dadaji v. Sukhdeobabu this Court made the
following observations (at p. 155):
Even though the proceedings of the Joint Committee cannot be relied upon for the purpose of construing the order, they may be looked into to ascertain the circumstances in which the several communities were grouped under one entry or the other." Category (C)
251. This category consists of those cases which take the view that words cannot be omitted from the statute or supplied to it if they are not there. In other words, in interpretation of statute, the doctrine of casus omissus is a fundamental test. In A.K. Gopalan's case (supra) S.R. Das J. very poignantly pointed out thus:
The Constitution has by Article 21 required a procedure and has prescribed certain minimum requirements of procedure in Article 22. To add to them is not to interpret the Constitution but to recast it according to our intellectual yardstick and our unconscious predilections as to what an ideal Constitution should be.
(Emphasis supplied)
252. A similar view was taken by Das, J. in Nalinakhya Bysack v. Shyam Sunder Haldar where he very pithily observed thus (at p. 152):
It must always be borne in mind, as said by Lord Halsbury in Commissioner for Special Purposes of Income Tax v. Pemsel L.R. (1891) AC 531 at p. 549 that it is not competent to any Court to proceed upon the assumption that the Legislature has made a mistake. The Court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner 6 Moo PC 1 aid the Legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Official Liquidator of Dehra Dun Mussorie Electric Tramway Co. Ltd. others than the courts to remedy the defect.
253. Thus, this Court has clearly held that in construing a statutory or Constitutional provision, the court should not presume that the legislature has either committed a mistake or has omitted something which was very necessary. Das J. very rightly remarked that it was not for the Court but for others to remedy the defect, if any, found in a statutory provision. If we accept the argument of Mr. Seervai and read the word 'consent' in Article 222 by supplying the omission, we will be violating the cardinal principle of interpretation as adumbrated by Das J. in the case supra.
254. In Sri Ram Ram Narain Medhi v. State of Bombay
the law on the subject was very succinctly and clearly laid down by this Court and N.H. Bhagwati J. observed thus (at p. 470):
Acceptance of the interpretation which is sought to be put upon these words by the petitioners would involve the addition of words "in the process of the acquisition by the State of any estate or of any rights therein" or "in the process of such acquisition" which according to the well known/ canons of construction cannot be done. If the language of the enactment is clear and unambiguous it would not be legitimate for the Courts to add any words thereto and evolve therefrom some sense which may be said to carry out the supposed intentions of the legislature.
255. We find ourselves in complete agreement with these observations which aptly apply to the present case so far as Article 222 is concerned and are sufficient to demolish the argument of Mr. Seervai that the word 'consent' should be added to or read into Article 222 even if it is not there.
256. In Commr. of Income Tax, Central Calcutta v. National Taj Traders Tulzapurkar, J. speaking for the Court highlighted
the importance of the doctrine of casus omissus in a very poignant exposition of the law on the subject and opined thus (at p. 489):
In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily referred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute.
257. Thus, Tulzapurkar J, laid down three conditions under which omissions could be supplied to a statute--
(1) that there was a clear necessity for the same,
(2) that the reason for supplying the omission was to be found in the provisions of the statute itself expressed or by necessary intendment and
(3) that the omission was to be supplied only to make the provision consistent with the object of the statute.
258. It is manifest that none of these conditions apply to Article 222 and therefore to supply the omission by reading the word 'consent' would really be going against the principles laid down by this Court in the aforesaid case.
259. In Gurbaksh Singh Sibbi'a v. State of Punjab
Chandrachud C.J. while dealing with this particular aspect of canon of construction of a statute, very pithily observed thus (at p. 1639):
By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
260. It follows from the observations made by this Court that if the word consent is read into Article 222 then it with amount to imposing unnecessary restraints and conditions in the Article which are not there at all and which cannot be done under the well known rules of interpretation of statutes. Category 'D'
261. In this category we shall include those cases which hold that a speech made by a Minister or by a Member of Parliament is neither admissible' nor permissible to construe a statutory or a constitutional provision. It may, however, be noted that a speech made in a debate is different from the Report of a Select Committee or views expressed in close proximity to the making of a statute or introduction or insertion of a statutory provision where the statement would undoubtedly be relevant because it forms part of the formative process of "the statutory provision itself. We have highlighted this particular aspect of the matter because in the instant case. we shall show that there 'are statements made by some of the Founding Fathers when the Constitution was being framed and the reasons given by the speakers formed the basis and foundation, of the constitutional provisions inserted in the Constitution,
262. In A.K. Gopalan's case (supra) Sastri J. while dwelling on the admissibility of the speech made by a Minister on the floor of the House observed thus:
A speech made in the course of the debate on a bill could at best be indicative of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill, Nor is it reasonable to assume, that the minds of all those legislators were in accord.
263. Similar view was 4aken in United States v. Trans Missouri Freight Association (1896) 166 US 290 where the following observations were made:
Those who did not speak may not have agreed with those who did, and those who spoke might differ front each other.
264. To the same effect is a decision of this Court in Aswini Kumar Ghosh v. Arabinda Bose where Sastri C.J. speaking for himself, Bose and Ghulam Hasan JJ. observed as follows (at p. 378):
As regards the speeches made by the members of the House in the course of the debate, this Court has recently held that they are not admissible as extrinsic aids to the interpretation of statutory provisions. Mukherjea J. also spoke in a similar strain and observed as follows (at pp. 384, 385):
...the language of a "Minister of the Crown" in proposing a 'measure in Parliament which, eventually becomes law is inadmissible.
A reference to the legislative debates or the speeches that were actually delivered in the floor of the House is, in my opinion inadmissible to ascertain the meaning of the words used in the enactment". and Das J. observed thus (at p. 395):
that the debates and speeches in the Legislature which reflect the individual opinion, of the speaker cannot be referred to for the purpose of construing the Act as it finally, emerged from the Legislature and so the debates must be left out of consideration.
265. It appears that while all the Judges were unanimously of the opinion that speech by a Minister or a speaker in the course of a debate was not admissible to construe the intention of the legislature, the majority judgment held that external aid in the nature of the legislative debates which resulted in the coming into existence of the constitutional provisions and, were in close proximity to the same, could be pressed into service. On this point we would like to follow the majority decision on the subject, subject of course to the condition that the language of a statute does not clearly spell out the dominant object which was sought to be achieved by the legislature.
266. In State of West Bengal v. Union of India Sinha, C.J. speaking for himself, Jafer Imam, Shah; Ayyangar and Mudholkar JJ. observed as follows (at p. 1247):
A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister of the intention and objects of the 'Act cannot be used to cut down the generality of the words used in the statute.
(Emphasis ours)
267. In another Constitution Bench decision in Shyamlal Mohanlal v. State of Gujarat' Shah J.speaking for the Court
endorsed the stand taken in the case referred to above and observed as follows (at p. 1255):
In construing the words used by the Legislature, speeches on the floor of the Legislature are inadmissible. I do not refer to the speech for the purpose of interpreting the words used by the Legislature, but to ascertain the historical setting in which the statute, which is parent to Section 94(1) came to be enacted.
268. The learned Judge clearly held that while a speech on the floor of a legislature was inadmissible in ascertaining the real meaning of the word used by the legislature, the historical setting in which the statute was passed could! doubtless be admissible. This decision, therefore, make a clear departure, on the point of admissibility of historical setting, from the minority dissenting judgment of Das J. as indicated above.

150. This petition has been filed by Mr. S.P. Gupta against the President, Union of India, Chief Justice of the Allahabad Court and the Governor of U.P. In view of similar petitions having been transferred to this Court, this petition was also transferred to this Court from the Allahabad High Court by an order dated 1-5-1981. In this petition, the following reliefs were prayed:
(a) issue a writ, direction or order in the nature of a declaratory writ that Justice Murlidhar, Justice A.N. Verma, Justice N.N. Mitthal have already been appointed as permanent Judges of the High Court of Judicature at Allahabad by virtue of the warrants of appointment dated 12-12-1980, 12-3-1981 and 12-3-1981 respectively.
(b) in the alternative, issue a writ, direction or order in the nature of Mandamus directing the President to appoint Judges of the High Court according, to the submissions made in this petition;
(c) issue a writ, direction or order in the nature of Mandamus directing the President of India to appoint permanent judges of the High Court on the vacancies in the office of the permanent Judges, whenever such vacancies occur, in accordance with the constitutional scheme and provisions, as submitted in this petition and found by this court;
(d) issue a writ, order or direction in the nature of Mandamus directing the President of India to fill the vacancy of the Additional Judges of the High Court without delay.
Transferred Case No. 21 of 1981.
151. A petition exactly similar to the one filed by Mr. S.P. Gupta was also filed by Mr. J.L. Kalra, Advocate and others in the Delhi High Court which was also transferred to this Court by an order dated 1-5-1981 along with the case of Mr. S.P. Gupta. In this case, the following reliefs were sought:
(a) issue a writ of mandamus or any ether appropriate writ, order or direction commanding the respondent to assess the number of permanent and additional Judges required for this Hon'ble Court having regard to its current business and the accumulated arrears of work and create such number of permanent and additional posts of Judges as may be required, within such reasonable time as this Hon'ble Court may deem fit, in accordance with law;
(b) direct the respondent to appoint Hon'ble Mr. Justice N.N. Goswamy, Mr. Justice Sultan Singh and Hon'ble Mr. Justice O.N. Vohra as permanent Judges of this Hon'ble Court against the three vacant permanent posts forthwith;
(c). direct the respondent to extend the term of the additional Judges namely Hon'ble Mr. Justice S.N. Kumar and Hon'ble Mr. Justice S.B. Wad by a period of two years within two weeks from the date of the order;
(d) direct the respondent likewise to confirm/extend the terms of the additional Judges of the High Courts of Madhya Pradesh, Punjab and Haryana and Rajasthan, whose names are mentioned in paragraph No. 5 of this petition;
(e) direct that no such piecemeal extension, but a reasonable long term shall be given to the other additional Judges of this Hon'ble Court as well as of other High Courts in future.
152. Apart from these petitions which have been transferred to this Court other petitions were also filed against the order of the President transferring Justice Ismail, Chief Justice of the Madras High Court to be the Chief Justice of Kerala High Court and Justice K.B.N. Singh, Chief Justice of the Patna High Court to be the Chief Justice of Madras High Court.
Writ Petition No. 274 of 1981.
153. This writ petition was filed by Miss Lily Thomas, an Advocate of the Supreme Court challenging the order of transfer of Justice Ismail from Madras High Court to Kerala High Court. While the petition was pending, Justice Ismail choose to retire from service and hence the petition became infructuous so far as the main relief was concerned. Miss Thomas, however, pressed the petition only on one ground, viz., that even if the grievance against the transfer of Justice Ismail no longer survived yet she was entitled to contact the order of the President of India transferring Justice K.B.N. Singh from Patna High Court to Madras High Court. She was permitted to argue the case on this limited point,
Transferred Case No. 2 of 1981.
154. Another petition was filed by Mr. Rajappa, Advocate in the Madras High Court being writ petition No. 3 of 1981 praying that the orders of the President of India transferring Chief Justice of the Madras High Court to the Kerala High Court and the Chief Justice of the Patna High Court to the Madras High Court be quashed on the ground that they were null and void and unconstitutional, This case was also transferred to this Court and numbered as T.C. No. 2 of 1981. This case, therefore, raises substantially the same questions as are involved in Writ petition No. 274 of 1981.
Transferred Case No. 24 of 1981.
155. So far as the case of Justice K.B.N. Singh, Chief Justice of the Patna High Court is concerned, Mr. D.N. Pandey, Secretary of the Bihar State Socialist Lawyers' Association along with Thakur Ramapati Sinha filed a Writ Petition No. CMJC 2224/1981 in the Patna High Court against the Union of India, the Chief Justice of India, Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court and the Registrar, Patna High Court. Justice K.B.N. Singh, respondent No. 3, later after filing an affidavit in this Court prayed that he may be transposed to the category of petitioner. He was directed to file a detailed affidavit which was filed on 16-9-81 and he was transposed as petitioner No 3. This petition was also transferred to this Court as similar points were involved. In this petition, the petitioners prayed that the order of the President transferring Justice K.B.N. Singh be quashed and the respondents be directed not to give effect to the notification issued by the President transferring petitioner No. 3 to Madras.
Transferred Case No. 6 of 1981.
156. A similar Writ Petition No. 553/81 was filed by Mr. P. Subramanian before the Madras High Court praying that the order of the President transferring Justice Ismail from the Madras High Court to Kerala High Court be quashed. This petition also does not survive in view of the retirement of Justice Ismail.
Special Leave petition (Civil) No. 1509 of 1981.
157. This petition has been filed by Bipudaman Prasad Sinha praying for a writ of the quo warranto against Justice K.B.N. Singh, Chief Justice, Patna High Court for not proceeding to join his new posting at Madras and in continuing as Chief Justice of Patna High Court without any sanction of law in view of the order of the President transferring him to Madras. Special leave has not yet been granted in this petition but it has been tagged on with the cases relating to Justice K.B.N. Singh but was ultimately withdrawn before the conclusion of hearing of their cases.
158. Since the various writ petitions and intervener applications transferred to this Court raised almost common questions they were heard together but so far as the petitions relating to Justice K.B.N. Singh, Chief Justice of the Patna High Court are concerned they were relinked. After having heard Dr, Singhvi, counsel for the petitioners, on the point of law regarding the interpretation of Article 222 of the Constitution, we proceeded to deed with the questions of law and the constitutional points raised in the petitions of Mr. Chagla, Mr. Tarkunde, Mr. S.P. Gupta and others as also the constitutional points involved in Justice K.B.N. Singh's case. So far as Justice K.B.N. Singh's case is concerned we delinked it from other cases because his was the only case which had to be heard on facts turning upon mainly on the question -- whether or not there was an effective consultation between the Chief Justice of India, the President of India, and the Chief Justice concerned, viz., Justice K.B.N. Singh.
159. As these petitions more or less involve common and overlapping points, we shall dispose them bf by one common judgment but deal' with individual cases separately wherever necessary. T.C. Nos. 19 and 22//1981.
160. We would first deal with the question relating to the various facets, shades and aspects of Article 222 of the Constitution as contended before us by Messrs Seeryai, Sorabjee, Dr. Singhvi and others duting their respective terms.
161. So far as Mr. Seervai is concerned his contentions on the interpretation of Article 222, apart from its legislative history and setting, may be indicated as follows:
(1) The language of Article 222(1) is clear enough to enable the Court to hold that the transfer must be with the consent of the Judge concerned. Even if it is not so, then the main object of Article 222 is not very clear and plain and, therefore, it is necessary to go into the legislative history of the doctrine of transfer in order to ascertain the real intention of the Founding Fathers of the Constitution and, if so read, it would be amply clear that even if Article 222(1) does not expressly mention 'consent', the same must be implied in the Article by necessary intendment.
(2) As transfer of a High Court Judge from one High Court to another is an extraordinary phenomenon and has to be made in public interest, we must read consent of the Judge concerned before he can be transferred under Article 222, otherwise the very purpose and object of the Article would be defeated.
(3) As a transfer without consent of a Judge amounts to punishment, such a transfer involves a serious stain and stigma. Hence, in order to avoid such an anomalous petition it should be held that no Judge can toe transferred under Article 222 from one High Court to another without his consent.
In the same token it was argued by Dr. Singhvi that before transferring a Judge various aspects of public interest have to be examined qua the circumstances under which the Judge is transferred the compelling reasons why the transfer is being made and .the personal difficulties or hardships that the Judge may suffer as a result of his transfer. In other words, by and large, it was contended that non-consensual transfers should be considered to be prima facie punitive and, therefore, violative of Article 124(4) because if they amount to punishment then the punishment can only be for his misbehaviour or incapacity as contemplated by Article 124(4) and the procedure established by the Constitution or impeachment. We shall, however, develop the detailed aspect of the arguments of Dr. Singhvi when, we deal with the same at a later stage.
(4) It would appear from the historical background Of Article 222, that a transfer of a Judge from one High Court to another really amounts to a fresh appointment as a Judge to the transferee court because before taking oath in the transferee court, the Judge has to vacate his office of the original court and thereby he ceases to be a Judge in, the legal sense of the term of, the transferor court although for purposes of pension, allowances and salary, etc. he continues to be a Judge by virtue of a legal fiction.
As no person can be appointed as a Judge of the High Court in the first instance against his consent the same principle will apply mutatis mutandis to a Judge who is transferred from one High Court to another because his transfer to the transferee court would amount to his first appointment. In other words, the argument comes to this that once an order of transfer is passed by the President of India under Article 222, the Judge so transferred dies a civil death in the original High Court where he was appointed and takes a new birth in the new High Court where he is transferred.
(5) That if a transfer is made by the President without the consent of a Judge, it will seriously undermine and impair the independence of the judiciary which is doubtless the basic structure of our Constitution.
(6) That the majority decision of this Court in Union of India v. Sankal Chand Himatlal Sheth . (Hereinafter referred to as 'Sheth's case') merits a second look and since the present is a larger Bench consisting of seven Judges, the previous decision, should be reconsidered and the view taken therein that consent is not necessary for the application of Article 222 must be overruled.
162. Thus; the sum and substance of the contentions raised by Mr. Seervai is that the words 'with his consent' should be read into Article 222(1) after the words 'transfer a Judge'.
163. Messrs Sorabjee, Garg and S.P. Gupta who followed Mr. Seervai adopted his arguments in toto so far as the interpretation of Article 222 is concerned. They, however, laid greater emphasis on the question of primacy' of the Chief Justice of India (hereinafter referred to as 'CJI') and contended that the opinion of the CJI was final and binding on the President or on the Council of Ministers who should tender advice to the President in accordance with the opinion expressed by the CJI if independence of judiciary was to be ensured.
164. Dr. Singhvi while adopting the arguments of Mr. Seervai submitted that a transfer without consent affects a Judge adversely and results in evil consequences and virtually amounts to a punishment which is worse than removal but he laid greater stress on the efficacy of the consultative process by the constitutional authorities concerned and a proper meeting and application of minds before a transfer is ordered. Other aspects and conditions of Article 222 relating to the nature and content of consultation will be examined when we deal with the case of D.N. Panday (T.C. No. 24/81) in which the Chief Justice of Patna High Court has been transposed as a petitioner.

165. These are the broad contentions advanced before us by the counsel for the parties, in these petitions.

128. The Chief Justice added that these "unconfirmed reports" made him "conclude that the reputation for integrity of Justice Kumar was not what should be for a Judge of the High Court. To my mind, reputation of integrity is just as important as a person actually being above board." The Chief Justice also mentioned certain figures to show the rate of disposal of cases by the Division Bench of which Justice Kumar was a member.
129. It seems from what the Chief Justice of the High Court said in his letter of May 7, 1981 that he had not recommended extension of Justice Kumar's term not really because he found the reports against Shri Kumar were true -- he had admittedly no "investigating machinery" -- but because he thought that reputation of integrity is as important as a man being actually above board. I have already said that this is a view which will undermine the independence of the judiciary.
130. The letter of May 7, 1981 written by the Chief Justice of the Delhi High Court to the Law Minister was marked "SECRET (For Personal Attention Only)". It appears from a subsequent letter addressed by the Law Minister to the Chief Justice of the High Court on May 29, 1981 that a few days after the letter of May 7 was written, the Chief Justice of the High Court had requested the Law Minister to keep that letter a secret from the Chief Justice of India. The letter of May 29 discloses that the Chief Justice of the High Court mentioned three reasons for not disclosing the letter to the Chief Justice of India. The reasons as appearing from the Law Minister's letter are as follows:
1. ...the reasons stated in the opening portion of your letter dated 7th May, 1981,
Probably the reference is to the following lines of the 7th May letter written .by the Chief Justice of the High Court:
Hon'ble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S.N. Kumar and the same were communicated to me by you for my comments in your D.O. No. 50/2/81-Jus., dated 19th March, 1981. The Chief Justice had also written to me a letter dated 14th March, 1981 asking for "details and concrete facts in regard to the allegations against Justice Kumar." As I wrote to you in my D.O. No. 293-HCJ/PPS, dated 28th March, 1981, I discussed the matter with Hon'ble the Chief Justice and as desired by him, in reply to his letter, wrote my D.O. No. 292-HCJ/PPS, dated March 28, 1981, a copy of which was forwarded to you. Accordingly, it is not only embarrassing but painful for me to write this letter. As you, however, desire to know what material provided the basis for me to conclude that Justice Kumar's integrity was not above board, I give below some facts.
2. You felt highly embarrassed as the contents of your letter dated 19th February, 1981 about Shri Kumar came clearly to be known to Shri S.N. Kumar and some of his colleagues on the Bench. You felt that the contents of your letter dated 7th May, 1981 might also get known to them and cause you further embarrassment.
3. You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of February 19, 1981,
The letter of May 29 concludes by saying that in view of the fact that the Chief Justice of the High Court was keen on keeping the letter "confidential from the Chief Justice of India", the letter was not shown to him, Whether the reasons for not disclosing the letter of May 7 to the Chief Justice of India were valid or not, it is clear that the Chief Justice of India was not apprised of the particulars contained in the letter of May 7 concerning Justice Kumar's integrity. It was argued on behalf of the Union of India and the Law Minister that it must be presumed that all the details were placed before the Chief Justice of India because the Chief Justice of the High Court in his letter dated March 28, 1981 addressed to the Law Minister had stated that he "had an opportunity to discuss the entire matter in detail with the Chief Justice of India" and that in another letter written on the same day to the Chief Justice of India he had said:
With regard to the complaints about Justice Kumar's integrity and general conduct, the matter has already been discussed between us.
That this presumption is wrong would appear from the following facts. On May 21, 1981 the Law Minister had written a letter to the Chief Justice of India when he was in Simla Paragraphs 3, 5 and 6 of this letter read as follows:
3. In regard to complaints regarding Justice Kumar's integrity and general conduct, the Chief Justice of the High Court discussed the matter with you as mentioned in his D.O. letter No. 292-HCJ, dated 28th March, 1981, to you, a copy of which he had sent to me. In that letter he had also mentioned the disposals of Justice Kumar.
4. x x x
5. You will please see that in your advice doted 3rd March, 1981 you desired to look carefully into the charges against Shri S.N. Kumar. In terms thereof if you were pleased to make any inquiries, I shall be grateful to have the details.
6. I would be grateful for your urgent advice in regard to the continuance or otherwise of the terms of Justice S.N. Kumar....
There is no reference here to the letter of May 7 from the Chief Justice of the High Court. The Chief Justice of India replied to this letter next day, May 22, 1981 from Simla, The relevant portions of the letter are as follows:
Shri Prakash Narain, Chief Justice of the Delhi High Court, had written a letter dated February 19, 1981 to you, a copy of which was sent to me, The Chief Justice had recommended in that letter that Justice Kumar's appointment should not be extended further for three reasons: (1) that serious complaints were received against Justice Kumar orally as well as in writing; (2) that Justice Kumar was not very helpful in disposing of cases) and (3) that some responsible members of the Bar and Bench had expressed doubts about Justice Kumar's integrity, By my letter dated March 14, 1981 to the Delhi Chief Justice I requested him to furnish further details and concrete facts in regard to the allegations against Justice Kumar since the result of the enquiries made by me was quite at variance with what the Chief Justice had stated in his letter of March 19.
The Chief Justice met me on March 26, 1981 when he told me that Justice Kumar was very slow in his disposals and that he doubted his integrity because even after Justice Kumar's allocation was changed from the original side to the appellate side," he still continued to hear the part-heard cases on the original side. The Chief Justice did not mention anything adverse in regard to Justice Kumar's political leanings or affiliations By my request the Chief Justice promised to send a statement showing the disposals of Justice Kumar.
I have made the most careful and extensive enquiries in regard to both of these matters and I am satisfied that there is no substance in any one of them. I have with me a detailed statement of the disposals of Justice Kumar from which it would appear that no charge can be made against him that he is slow in his disposals.
As regards the complaint of the Chief Justice that Justice Kumar's integrity was doubtful since he continued to take old part-heard matters even after the allocation of his work was changed. I have made enquiries not only from members of the Bar but from the sitting Judges of the Delhi High Court which show that it is a common practice in the Delhi High Court that even after the allocation of a Judge is changed from the original side to the appellate side and vice versa, he continues to take up partheard cases on which a substantial amount of time has been already spent. Justice Kumar, therefore, did nothing But of the way or unusual in taking up part-heard cases after the allocation of his work was changed.
I find it, therefore, difficult to agree that Justice Kumar's term should not be extended for the reasons mentioned by the Chief Justice of the Delhi High Court. I disagree with the learned Chief Justice, on enquiries made by me, that Justice Kumar is either slow in his disposals or that his integrity is doubtful.
I must mention that I also made independent enquiries in regard to Justice Kumar's integrity generally and apart from the reason for which the learned Chief Justice thought that Justice Kumar lacked integrity. Not one member of the Bar or of the Bench doubted the integrity of Justice Kumar. On the other hand, several of them stated that he is a man of unquestioned integrity." However, on May 27, 1981 the Law Minister recorded a note in the relevant file recommending that "Shri Justice S.N. Kumar may not be continued any further as Additional Judge of the Delhi High Court after the expiry of the present tenure on 7-6-1981". It appears from this note that in making this recommendation, the Law Minister confined himself only to Shri Kumar's reputation. The portion of the note relevant for the present purpose reads:
C.J.I. does mention that C.J. Delhi met him on 26-3-198l. He also refers about the common practice in the Delhi High Court that even after the allocation of a Judge is changed from the original side to the appellate side and vice versa, he continues to take up part-heard cases on which a substantial amount of time has been already spent. I presume that when C.J. Delhi and the C.J. of the Supreme Court met, the former must have informed the latter about the details that he had mentioned to me in his letter dated 7-5-1981. This presumption is raised on the basis of the letters from the Chief Justice, Delhi....The C.J.I, in his advice proceeds from the premises that taking up part-heard cases after the allocation of work is changed does not amount to lacking in integrity. If it were that simple I would not have joined issue, but the details furnished by the C.J. Delhi in his letter dated 7-5-1981 go farther.

91. When a copy of this letter dated 19th Feb., 1981 was received by the Chief Justice of India, he took the view that what was stated in the letter was "too vague to accept that Shri Kumar lacks integrity" and he therefore stated in a note dated 3rd Mar., 1981 submitted by him to the Central Government that he "would like to look carefully into the charges against Shri S.N. Kumar" and recommended extension of the term of S.N. Kumar by six months. The reason which prevailed with the Chief Justice of India in recommending extension of the term of S.N. Kumar for six months was twofold. In the first place, he felt that since he had recommended extension of the term of O.N. Vohra by six months and O.N. Vohra was senior to S.N. Kumar, the interests of propriety required that the term of S.N. Kumar should also be extended by six months and secondly, he desired to look carefully into the charges against S.N. Kumar before deciding whether to recommend bus further appointment or not. Now having regard to the scope and purpose of Article 224 which we have discussed in some detail in an earlier portion of this judgment, it is clear that the Chief Justice of India misconceived the true legal position when he recommended extension of S.N. Kumar for a period of six months in order to enable him to look carefully into the charges against S.N. Kumar, We have already pointed out that on a true interpretation of Article 224 no short term appointment of an additional Judge can be made for the purpose of enabling the constitutional authorities to examine and decide whether the complaints or charges against the additional Judge arc justified or not, so that if the complaints or charges are found to be not without basis, the constitutional authorities may advise the Central Government not to anoint the Additional Judge for a further term. We have held that such short term appointment being for a purpose other than that warranted by Article 224, would be outside the scope and ambit of that Article. But even so the Chief Justice of India recommended, though Constitution felly it was impermissible to do so, that the appointment of S.N. Kumar be extended for a further term of six months in order that he should in the meantime be able to examine carefully the charges against S.N. Kumar, The Law Minister thereupon submitted a note to the Prime Minister on 3rd March, 1981 pointing out that the letter of the Chief Justice of Delhi dated 19th Feb., 1981 made a serious complaint against the integrity of S.N. Kumar but he did not propose to go into the merits of the case at that stage since he was suggesting a short extension of three months for S.N. Kumar, But while so staling, he added that he strongly felt that in matters of this nature, "the views of the Chief Justice of the "High Court" are paramount as it is in his association that the Judge concerned discharges his duties" yet "out of sheer reverence to the views of the Chief Justice, of India" he proposed that the term of S.N. Kumar as additional Judge be extended for three months, Thus, while the Chief Justice of India recommended extension of the term of S.N. Kumar for six months, the Law Minister proposed an extension for only three months, presumably because he took the view that whatever inquiries are to be made in regard to the complaints and doubts against S.N. Kumar should be carried out as quickly as possible and the decision on such a sensitive issue as to whether an additional Judge should be continued or not should not be unduly 'delayed The result was that S.N. Kumar was appointed as an additional Judge for a period of three months from 7th Mar., 1981.
92. The Law Minister thereafter ad-dressed a letter dated 19th Mar., 1981 to the Chief Justice of Delhi drawing his attention to the observations made by the Chief Justice of India in regard to his earlier letter dated 19th Feb., 1981 and requesting him that in the light of those observations he should offer his "further comments on the question of continuance or otherwise" of S.N. Kumar. The Law Minister stated that since the term of S.N. Kumar as an Additional Judge was expiring on 6th June, 1981, he would be grateful if the Chief Justice of Delhi could send his comments so as to reach him latest by 15th April, 1981. This communication addressed by the Law Minister to the Chief Justice of Delhi shows clearly beyond any doubt that the Law Minister was not party to any conspiracy for discontinuing S.N. Kumar as an additional Judge. Since the Chief Justice of India had observed that the letter dated 19th Feb., 1981 addressed by the Chief Justice of Delhi was too vague to form the basis of an opinion that S.N. Kumar was lacking in integrity, the Law Minister naturally asked the Chief Justice of Delhi to offer his further comments in answer to this remark of the Chief Justice of India. It appears that the Chief Justice of India also addressed a letter dated 14th Mar., 1981 to the Chief Justice of Delhi asking him, with reference to the observations made by him in his letter dated 19th Feb., 1981, to furnish "details and concrete facts in regard to the allegations against Justice Kumar". The Chief Justice of Delhi thereupon met the Chief Justice of India and had discussion with him on 26th March, 1981, There was considerable controversy between the parties as to what were precisely the facts which were discussed between the Chief Justice of Delhi and the Chief Justice of India at this meeting, but the subsequent correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India throws considerable light on this controversy and we must therefore proceed to examine it. It appears that subsequent to this meeting held on 26th Mar., 1981, the Chief Justice of Delhi address-'ed a letter dated 28th March, 1981 to tha Chief Justice of India recording that since receipt of the letter of the Chief Justice of India dated 14th Mar., 1981, the Chief Justice of Delhi had an opportunity "to discuss this delicate matter" with the Chief Justice of India and observing, to quote the exact words used by Chief Justice of Delhi:
There were three points mentioned in my D.O. 275-HCJ/PPS, dated 19th Feb., 1981, addressed to the Law Minister, a copy of which was forwarded to you. I had also mentioned in that letter that I have no investigating agency to conclusively find out whether the complaints are genuine or not. Understandably there will be some who would support the allegations and there will be some who would refute them. Therefore it is natural that there may be variance between the views that may be expressed by different people. Indeed, my experience is that people are hesitant in speaking out frankly.
With regard to the complaints about Justice Kumar's integrity and general conduct, the matter has already been discussed between us. About Justice Kumar not being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980. Just by way of comparison I have also included the figures of disposal in the same period of my other two colleagues whose cases for reappointment are under consideration.
The Chief Justice of Delhi also addressed a letter dated 28th March, 1981 to the Law Minister pointing out that since receipt of the letter of the Chief Justice of India, he had an opportunity "to discuss the entire matter in detail with the Chief Justice of India" and that after this discussion he had addressed a letter dated 28th March, 1981 to the Chief Justice of India, a copy of which was being enclosed by him. The Chief Justice of Delhi then proceeded to add in this letter addressed to the Law Minister:
Perhaps you will consider this to be sufficient "comments" on my part as desired by you in your letter under reply about the 'Observations of the Chief Justice of India which you have quoted in your letter.

90. There was also one other argument urged on behalf of the petitioners which we might conveniently dispose of at this stage, since it is an argument closely allied to the one which we have just discussed and rejected. The petitioners contended that fair play and justice required that before an additional Judge is dropped on the ground that he is lacking in integrity or that he does not enjoy good reputation for integrity, he must have an opportunity of showing cause against such a serious imputation made against his honour and integrity, This contention is also in our opinion without merit and the answer to it is provided by what we have already discussed above. What the Chief Justice of the High Court is required to do is to give his opinion in regard to the suitability of the additional Judge for further appointment and he has therefore to consider various matters relevant to the question of appointment and give his opinion to the President. He does not hold a judicial or quasi-judicial inquiry into the honour and integrity of the additional Judge nor does he arrive at any conclusive finding or determination. He merely gives his personal opinion in regard to the suitability of the additional Judge in discharge of the constitutional duty laid upon him and there Is there-fore no question of any opportunity being afforded to the additional Judge before the Chief Justice of the High Court arrives at his opinion. When the Chief Justice of the High Court gives Ms opinion, it is a confidential communication which would not ordinarily be known to the public and in the case of S.N. Kumar too, but for the disclosure of documents vehemently pressed and passionate thought not only by the counsel for the petitioners but also by the counsel for S.N. Kumar, the world would never have known that the Chief Justice of Delhi has given an adverse opinion against the continuance of S.N. Kumar on the ground that his integrity was doubtful. It is obvious that in cases of this kind where the Chief Justice of the High Court gives his personal opinion or assessment on consultation by the President, there is neither adjudication nor condemnation and hence there is no basis or justification for importing the requirement of fair play or natural justice.

Article 222(1). The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
This article came up for consideration before a Bench of five Judges of this Court in Sankalchand Sheth's case (supra), Mr. Seervai arguing on behalf of Sankalchand Sheth in that case contended that a Judge cannot be transferred from one High Court to another without his consent, and there were two grounds on which he rested this contention, One was that on a proper construction of Article 222 Clause (1) in the context of the basic principle of independence of the Judiciary, consent must be read as a necessary requirement in that article and the other was that since transfer of a Judge involves a fresh appointment in the High Court to which he is transferred, such transfer cannot be made without the consent of the Judge. The majority Judges comprising Chandrachud, J., (as he then was) Krishna lyer, J. and Fazal Ali, J., rejected this contention of Mr. Seervai and held that there was no need or Justification, in order to uphold and protect the independence of the judiciary, to construe Article 222 Clause (1) as meaning that a Judge can be transferred from one High Court to another only with his consent, Justice Untwalia and myself, however, took a different view. We upheld the contention of Mr. Seervai and held that a Judge cannot be transferred from one High Court to another without his consent, Mr. Justice Untwalia based his conclusion on the second ground urged by Mr. Seervai, namely, that the transfer of a Judge involves fresh appointment in the High Court to which he is transferred and the Judge is also required to take a fresh oath in accordance with Article 219 and in the form prescribed in the Third Schedule and he cannot therefore be transferred without his consent. I accepted both the grounds urged by Mr. Seervai in support of his contention and held that it is no doubt true that the words "without his consent" are not to be found in Clause (1) of Article 222, but the word 'transfer' which is used there is a neutral word which can mean consensual as well as compulsory transfer and if the high and noble purpose of the Constitution to secure the independence of superior judiciary by insulating it from all forms of executive control or interference is to be achieved, the word 'transfer' must be read in the limited sense of consensual transfer. I pointed that when a Judge is transferred to another High Court, he has to make and subscribe a fresh oath or affirmation before the Governor of the State to which he is transferred before he can enter upon the office of a Judge of that High Court and such transfer would not become effective unless the Judge makes and subscribes an oath or affirmation before the Governor and that would plainly be a matter within the volition of the Judge and I therefore, concluded that since the volition of the Judge who is transferred is essential for making the transfer effective, there can be no transfer of a Judge of a High Court without his consent The view taken by Justice Untwalia and myself was thus a minority view, but since the present writ petitions were being heard by a larger Bench than that which decided Sankalchand Sheth's case, Mr. Seervai canvassed the minority view for acceptance by the Bench of seven Judges. The learned Attorney General, on the other hand, contended that the majority view taken in Sankalchand Sheth's case represented the correct law on the point and the Bench of seven Judges should affirm that view. I have carefully examined the arguments which have been advanced with great ability and learning on both sides, but I am afraid I find it impassible to change the view I took in Sankalchand Sheth's case. Nothing that has been said in the course of the arguments has persuaded me to take a different view. I remain unconvinced of the incorrectness of the view taken by me and I hold to that view despite the fact that I still happen to be in a minority, I have already, given elaborate reasons in my Judgment in Sankalchand Sheth's case for taking the view that a Judge cannot be transferred from one High Court to another without his consent and I think would be a futile exercise on my part to reiterate those reasons once again in this judgment, I hold for the reasons given by me in my judgment in Sankalchand Sheth's case that the power of transfer under Article 222 Clause (1) cannot be exercised against a Judge without his consent, It is, I may repeat, a highly dangerous power involving great hardship and, injury to the Judge transferred including a stigma on his reputation in cases where the transfer is not effected pursuant to any policy but the Judge is picked out for transfer on a selective basis and to my mind, it makes no difference whether the transfer is made by the Government on its own initiative or it is made at the instance of the Chief Justice of India as in the case of Chief Justice K.B.N. Singh.
107. Even if I am wrong in taking the view that no Judge can be transferred from one High Court to another without his consent, the transfer of Chief Justice K.B.N. Singh must still fail. It has been held in Sankalchand Sheth's case ), and on this point there was no disagreement between the majority and the minority, that the power to transfer a Judge from one High Court to another can be exercised only in public interest and there must be full and effective consultation between the President, that is, the Central Government and the Chief Justice of India before the decision to transfer a Judge is taken. I wholly accept this construction of Clause (1) of Article 222 and since full and detailed reasons have been given in the various judgments in Sankalchand Sheth's case I need not indulge in the same exercise again,
108. Now it is obvious that when a Judge is transferred from one High Court to another by way of punishment, it can never be in public interest for no public interest would countenance punishment of a Judge except by way of impeachment under proviso (b) to Clause (1) of Article 217 read with Clause (4) of Article 124. There is a clear antithesis between a transfer by way of punishment and a transfer In public interest and therefore, a transfer by way of punishment must be held to be outside the scope and ambit of Article 222 Clause (1), In fact, if was so held in Sankalchand Sheth's case by all the Judges, But the question then arises when can it be said that a Judge is transferred from one High Court to another by way of punishment, Undoubtedly, when a Judge is transferred by the Government because he does not toe the line of the executive or gives decisions against the Executive or has for some reason or the other fallen from its grace, it would be a transfer byway of punishment. That would be the plainest case of penal transfer. But these are not the only circumstance in which a Judge may be transferred from one High Court to another by way of punishment. The element of punishment is not confined merely to the wrath of the Government on account of a Judge being inconveniently independent. There may be cases where a Judge may be transferred because he is not behaving properly or is conducting himself in a manner not befitting the position of a High Court Judge and such a transfer grounded on the conduct or behaviour of the Judge would clearly be punishment, even if it be on the recommendation of the Chief Justice of India. It is also possible that the Chief Justice of India may find in a given case that a Judge of a High Court is promoting the interest of his son or brother in practice or by passive inaction allowing his son or brother to exploit his relationship with the Judge for the purpose of advancing his professional interest and in such a case, the Chief Justice of India may recommend that the Judge should be transferred to another High Court and the Government may accept such recommendation, Would the transfer in such a case not clearly be by way of punishment? There may also be cases where the recommendation of the Chief Justice of India for transfer of a Judge may proceed from his disagreement with the social philosophy of the Judge or his unhappiness with the manner in which he is deciding cases and the Government may unquestioningly accept such recommendation, This would also, in my opinion, be nothing short of punishment, I take the view that whenever transfer of a Judge is effected for a reason bearing upon the conduct or behaviour of the Judge, it would be by way of punishment and therefore, not permissible under Clause (1) of Article 222. When I say this, I may make if clear that I do not regard transfer pet se as a punishment, It is the reason for which the transfer is made, which makes it penal and if that reason is related to the conduct of behaviour of the Judge the transfer would clearly be a penal transfer not in public interest and hence outside the scope and ambit of Article 222 Clause (1).
109. That takes me to a consideration if the question whether in the present case where there was full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K.B.N. Singh to the Madras High Court and whether such transfer was effected in public interest and not by way of punishment. While considering this question, I would like to emphasise at the outset, and the point I am making here is one of great importance, that when a transfer of a Judge of a High Court is challenged in a Court of Law, the burden must lie upon the Government to sustain the validity of the transfer. The power of transfer even according to the majority decision in Sankalchand Sheth's case , is a drastic power to be exercised only in rare
cases as it has the effect of destroying the right o! the Judge who is transferred, to continue as a Judge in the High Court to which he was appointed until he reaches the age of 62 years and removing him to another High Court where possibly ha would not have agreed to go if he had been asked at the tome of his original appointment. When an order of transfer is made, the Judge has a difficult choice, either to go to the High Court where he is transferred or to resign and having burnt his boats and given up his profession long back, he would be in great difficulty if he chose to resign and therefore, from a practical point of view, he would have no option but to go to the other High Court, howsoever inconvenient it may be to him. Moreover, it would be almost impossible for the Judge to successfully challenge the order of transfer if the burden of showing its invalidity were cast upon him. Even as it is, the Judge would have to wage a lone and unequal battle against the Government when he challenges the Order of transfer and if the onus of establishing facts invalidating the order of transfer were thrown upon him, the battle would be rendered still more unequal and the scales would be weighted heavily against him. The result would be that even an invalid order of transfer would pass muster on account of the inability of the Judge to discharge the burden of showing the invalidity of the order of transfer and the virtual immunity thus granted to the order of transfer would seriously impair the independence of the judiciary. Furthermore, having regard to the high status and dignity of a Judge of a High Court, it is but fair that when the Government is displacing the right of the Judge to continue in his High Court, up to the age of 62 years, he should be told what are the reasons which have weighed with the Government in transferring him. He must, be assured that all the constitutional equipments have been compiled with, Besides, the facts showing that there was full and effective consultation between the Government and the Chief Justice of India and the reasons for making the transfer would toe within the special knowledge of the Government and the onus must therefore be upon the Government to prove them. Thus the burden of sustaining the validity of the order of transfer must rest on the Government and this burden, it may be pointed out, is a heavy burden, which must be satisfactorily discharged by the Government. This is the same principle which has been applied by this Court when the legality of detention of a person is challenged by filing an application for a writ of habeas corpus, This Court has consistently taken the view in such cases, unlike the House of Lords in Zamihr's case, that the burden if sustaining the validity of the detention must lie on the detaining authority.
110. I may observe that this is a remarkably unusual case in which there is substantially a contest between the Chief Justice of a High Court on one hand and the Chief Justice of India on the other. The Government is, of course, a party to this contest since it is ultimately the order of transfer made by the Government which is called in question by Chief Justice K.B.N. Singh, but since the order of transfer was made by the Government on the recommendation of the Chief Justice of India, it is the Chief Justice of India who has accepted the gauntlet and joined the contest against Chief Justice K.B.N, Singh. The Chief Justice of India has filed a counter-affidavit in reply to the writ petition of Chief Justice K.B.N. Singh and others, but having filed such counter-affidavit, he has chosen not to appear before us through counsel, The result is that we have been deprived of the opportunity of asking for clarification of some of the averments made in the counter-affidavit, which appeared at least to some of us to be vague and indefinite. When we asked the learned Solicitor General in the course of the hearing to give us particulars of one statement made in the counter-affidavit of the Chief Justice of India, namely, "Every relevant "aspect of that question was discussed by me fully with the President both before and after I proposed the transfer," the learned Solicitor General rightly rejoined by saying that he was not appearing for the Chief Justice of India and he could not therefore give the particulars asked for by the Court. We have therefore to proceed on the basis of the counter-affidavit of the Chief Justice of India as it stands without any further clarification or elucidation, We must also remind ourselves when we are deciding this contest between Chief Justice K.B.N. Singh on the one hand and the Chief Justice of India and the Government on the other, that we are sitting as Judges, who have taken an oath to perform the duties of our office without fear or favour, affection or ill-will and it is our solemn and sacred duty to do justice, irrespective of who is the litigant before us. We have the highest regard for the Chief Justice of India as we have for Chief Justice K.B.N. Singh, but they are both litigants before us and while deciding the contest between them, we must be blind to their status or position and we must adjudicate the controversy between them as we might do in the case of any other litigants before us. We roust apply the same standards in assessment of the affidavits and Counter-affidavits filed by Chief Justice K.B.N. Singh and Chief Justice of India as we would do in any other case, The scales of justice cannot tilt one way or another merely because a litigant before us happens to be the Chief Justice of a High Court or the highest amongst the Indian Judiciary. They are all equal before us when we sit on the seat of Justice and we shall do justice, without fear or favour, affection or ill" will and decide the issues arising in the case objectively and dispassionately, forgetful of the high status and dignity enjoyed by the two litigants before us.
111. With these preliminary observations I may now proceed to consider the facts. But on facts, I do not wish to say much because I agree with the Judgment prepared by my learned brother D.A. Desai on this point. He has Carefully analysed the correspondence as well as the affidavits and reached the conclusion that there was no full and effective consultation between the Central Government and the Chief Justice of India before the decision was taken to transfer Chief Justice K.B.N. Singh to the Madras High Court and the transfer was made by way of punishment and not in public interest I wholly endorse this view taken by him as also the reasons given by him in support of that view, but having regard to the importance of the matter Effecting as it does the fate of the Chief Justice of a High Court, I would add a few words in support of what my learned brother D.A. Desai, has stated in his judgment.
112. So far as the first question is concerned whether there was full and effective consultation between the Central Government and the Chief Justice of India, I have already pointed out, while discussing the scope and effect of Clause (1) of Article 217 as to what is the meaning and content of 'consultation', It requires that the Central Government must make available to the Chief Justice of India relevant data in regard to the Judge proposed to be transferred and the Chief Justice of India must also elicit and ascertain all relevant material relating to the Judge either directly from him or from other reliable resources and place such material before the Central Govt. Each of the two constitutional authorities, the Central Govt. and the Chief Justice of India, must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision. There must be careful and intelligent deliberation on the part of each of them on full and identical facts. Each must make known to the other its point of view and they must discuss and examine the relevant merits of the views. It is only after this process is gone through that a decision can be taken by the Central Government to transfer a Judge from one High Court to another. Now here, in the present case, the initiative for transferring Chief Justice K.B.N. Singh was taken by the Chief Justice of India, He proposed by his letter dated 7th Dec., 1980, that Chief Justice K.B.N. Singh may be transferred to the High Court of Rajasthan. This means that on his part he had made up his mind prior to 7th December, 1980 that Chief Justice K.B.N. Singh should be moved but of Patna. Now admittedly, the Chief Justice of India had not mentioned anything about the proposed transfer to Chief Justice K.B.N. Singh prior to making his proposal of 7th Dec., 1960. This was rather strange -- I might say almost inexplicable -- because the judgments of the Chief Justice of India and Krishna lyer, J. in Sankalchand Sheth's case have clearly laid down that it is the duty of the Chief Justice of India to elicit and ascertain, if necessary by asking directly the Judge concerned all relevant material relating to the Judge and such material would include, for example, the health of the Judge, the availability of medical facilities in and the climate of the place to which he is to be transferred, the business or occupation of his wife or daughter, the position of his parents and the education of his children etc. as a part of the process of consultation, The Chief Justice of India should have therefore, before making his proposal for transfer by his letter dated 7th Dec. 1980, informed Chief Justice K.B.N. Singh about his proposed transfer to Rajasthan High Court and enquired from him whether he would have any particular problems or difficulties, if he was transferred to the Rajasthan High Court. But unfortunately, no such enquiry was made by the Chief Justice of India before he made his proposal for transfer of Chief Justice K.B.N. Singh to the Rajasthan High Court, which proposal might well have been accepted by the Central Government immediately, but for the fact that there was some difficulty in regard to another proposal simultaneously put forward by the Chief Justice of India for transfer of Chief Justice K.D. Sharma from the Rajasthan High Court to the Kerala High Court. The Chief Justice of India however, changed his proposal in regard to the transfer of Chief Justice K.B.N. Singh and asked the Central Government by his letter dated 20th Dec., 1980, addressed to the Law Minister to transfer Chief Justice K.B.N. Singh to the Madras High Court. There was thus a change in the proposal for transfer of Chief Justice K.B.N. Singh within a period of less than 14 days. But even then, the Chief Justice of India did not inform Chief Justice K.B.N. Singh that he was being transferred to the Madras High Court nor did he enquire to gather from him any relevant material bearing upon the proposal for" transfer. Now it is significant to note that neither of the two letters dated 7th Dec., 1980 and 20th Dec., 1980 sets out any facts showing why the Chief Justice of India desired that Chief Justice K.B.N. Singh should be transferred from the Patna High Court. Neither of these two letters throws any light as to what were the facts on the basis of which the Chief Justice of India recommended transfer Chief Justice K.B.N. Singh from the Patna High Court and there is also nothing in these two letters to show that these facts were communicated by the Chief Justice of India to the Law Minister or to any other high level functionary of the Central Government. The letter dated 7th Dec, 1980 merely states that he was recommending the transfer of Chief Justice K.B.N. Singh on the basis of the data which he had collected as a result of personal inquiries made from several lawyers and many other Judges of the High Court and which he had considered with the greatest objectivity, What were the data collected by him on the basis of which he was recommending the transfer of Chief Justice K.B.N. Singh was not disclosed by the Chief Justice of India in his letter dated 7th Dec., 1980 and from the tenor of this letter it appears though it cannot be said with certainty that no such data must have been communicated to the Law Minister prior to 7th December, 1980, for otherwise the Chief Justice of India would have stated in this letter that he was recommending the transfer on the basis of the data which he had already pointed out to the Law Minister, It is a little surprising that if any facts bearing upon the transfer of Chief Justice K, B, N, Singh were to be communicated by the Chief Justice of India to the Law Minister, it should not have been done in writing particularly when the letter dated 7th Dec,, 1980, recommending the transfer was addressed by the Chief Justice of India to the Law Minister, and this was followed , by another letter dated 20th Dec., 1980, addressed to the Law Minister. It was quite some time after the revised proposal for transfer of Chief Justice K.B.N. Singh was made in the letter dated 20th Dec., 1980 that on 5th Jan., 1981, the Chief Justice of India telephoned to Chief Justice K.B.N. Singh and informed him that Chief Justice M.M. Ismail was proposed to be transferred to the Kerala High Court and that he may therefore have to go to the Madras High Court and enquired him "if he had anything to say on the question of his proposed transfer". Chief Justice K.B.N. Singh thereupon enquired from the Chief Justice of India as to why "he may be transferred to Madras" on which, according to the counter-affidavit of the Chief Justice of India, he gave two reasons, one that it was Government policy and the other that it was proposed to transfer Chief Justice M.M. Ismail from Madras and "it was necessary to appoint an experience and senior Chief Justice in his place." Chief Justice K.B.N. Singh, however, informed the Chief Justice of India that his mother was bedridden and was not in a position to go with him to Madras and that if his transfer was insisted upon, he would prefer to resign, The Chief Justice of India requested him not to act in haste and to give the matter a close thought, Chief Justice K.B.N. Singh thereafter met the Chief Justice of India in New Delhi in the evening of 8th Jan., 1981 and discussed the question of his proposed transfer with him for some time. When Chief Justice K.B.N. Singh mentioned his difficulty in regard to his mother's advanced age and illness, the Chief Justice of India told him that he was unable to agree with him "since there were available persons in his family who could look after his mother and in any case, his brother S.B.N. Singh who was practising in the High Court was quite capable of looking after the mother. "Chief Justice K.B.N. Singh, however, informed the Chief Justice of India that his mother has a special attachment to him and he could not leave her to the care of his brother or other members of his family. Chief Justice K.B.N. Singh then told the Chief Justice of India that certain persons connected with the High Court who were influenced by communal considerations, had made some baseless complaints against him and that he on his part did not permit communal or any other extraneous considerations to influence him administratively or judicially. The Chief Justice of India, however, assured Chief Justice K.B.N. Singh that he did not hold that Chief Justice K.B.N. Singh himself was to blaim, but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction. Chief Justice K.B.N. Singh thereafter left and on the next day that is, 9th Jan., 1981, the Prime Minister endorsed her decision on the file in regard to transfer of Chief Justice K.B.N. Singh to the Madras High Court and the formal order effecting such transfer was made on 19th Jan., 1981.
113. It is extremely difficult on these facts to hold that there was full and effective consultation between the Central Government and the Chief Justice of India. The burden of showing that there was full and effective consultation rests heavily on the Government and it is not possible to say that this burden has been discharged by the Government. I have already referred to the correspondence exchanged between the Chief Justice of India and the Law Minister and there is nothing in it which shows that any facts bearing upon the transfer of Chief Justice K.B.N. Singh were communicated by the Chief Justice of India to the Law Minister, We were informed by the learned Solicitor General on an enquiry made by us that there is also nothing in the notings which' might indicate even remotely that any such facts were communicated by the Chief Justice of India to the Law Minister or to the Prime Minister or to any other high level constitutional functionary of the Central Government. The only statement which we have on this point is the one made by the Chief Justice of India in his counter-affidavit, namely, that "every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer." This statement, even B it be accepted as wholly correct, is, in my opinion, not sufficient to discharge the burden which lies upon the Government to show that there was full and effective consultation, In the first place, it does not say who was the constitutional functionary on behalf of the President with whom "every relevant aspect of that question was discussed." Did the Chief Justice of India discuss the matter with the President personally, though, of course, a statement was made to us on behalf of the President that he had no discussion with the Chief Justice of India in this respect or did he discuss with the Prime Minister or did he discuss with the Law Minister? We are not informed as to who was the person with whom the discussion took place and unless the name of the person is mentioned, I do not see how the correctness of the statement can be verified or challenged by the other side. It is not enough merely to repeat the constitutional formula that every aspect of the question was discussed with the President, It is an affidavit which is made by the Chief Justice and the affidavit must contain not merely the constitutional incantation but facts giving particulars stating with whom the Chief Justice of India had discussion. The affidavit also does not give the date or dates when the discussion took place between the Chief Justice of India and the President, ' The statement made in the affidavit is delightfully vague, ACCording to this statement, the discussion look place "both before and after I proposed the transfer". This would mean that the discussion could have taken place at any time before 20th Dec., 1980 or at any time alter 20th Dec. 1980 up to 9th Jan., 1981. How can Chief Justice K.B.N. Singh possibly meet such a vague allegation? I personally fail to see why if the Chief Justice of India had discussion with the Law Minister or the Prime Minister in regard to the proposed transfer of Chief Justice K.B.N. Singh, the Chief Justice of India could not give us the data or dates when such discussion took place, because surely he must be having some record in regard to his meetings with the Law Minister or the Prime Minister. Then again, the statement in the affidavit merely says that every relevant aspect of the question was discussed, but does not indicate what aspects were discussed. It is for the Court to decide whether all relevant facts were discussed between the Chief Justice of India and the Central Government so as to constitute full and effective consultation and this enquiry cannot be pre-empted by the Chief Justice of India by asserting in his affidavit that every relevant aspect of the question was discussed by him with the Central Government. It is not for the Chief Justice of India to decide, but it is for the Court to be satisfied, that all relevant aspects of the question were discussed by him with the Central Government. It is possible that the Chief Justice of India might have considered some facts as irrelevant and not discussed them with the Central Government, but the Court may find that such facts were relevant and should have formed the subject matter of discussion and it is equally possible that some facts might have been discussed which the Chief Justice of India considered relevant but the Court might find them to be irrelevant. We are not told by the Chief Justice of India as to what were the facts discussed by him with the Central Government and in the absence of this information, it is not possible for us to conclude that there was full and effective consultation between the Chief Justice of India and the Central Government.

84. We have given our most anxious thought to this argument urged by the learned Solicitor General, but we do not think we can accept it. We do not see any reason why, if the correspondence between the Law Minister, the Chief Justice of the High Court and the Chief Justice of India and the relevant notes made by them, in regard to discontinuance of an additional Judge are relevant to the issues arising in a judicial proceeding, they should not be disclosed. There might be difference of views between the Chief Justice of the High Court and the Chief Justice of India but so long as the views are held bona fide by the two Chief Justices, we do not see why they should be worried about the disclosure of their views? Why should they feel embarrassed by public discussion or debate of the views expressed by them when they have acted bona fide with the greatest care and circumspection and after mature deliberation. Dr. Judges sitting in a Division Bench not differ from each other in assessment of evidence and reach directly contrary conclusions on questions of fact? Do they not express their judicial opinions boldly and fearlessly leaving it to the jurists to decide which of the two differing opinions is correct? If two Judges do not feel any embarrassment in coming to different findings of fact which may be contrary to each other, why should two Chief Justices feel embarrassed if the opinions given by them in regard to the suitability of an additional Judge for further appointment differ and such differing opinions are made known to the public. Not only tolerance but acceptance of bona fide difference of opinion is a part of judicial discipline and we find it difficult to believe that the disclosure of their differing opinions might create a strain in the relationship between the Chief Justice of the High Court and the Chief Justice of India. We have no doubt that, the Chief Justice of the High Court would come is own independent opinion on the material before him and he would not surrender his judgment to the Chief Justice of India, merely because the Chief Justice of India happens to be head of the judiciary having a large voice in the appointment of Judges on the Supreme Court Bench. Equally we are confident that merely because the Chief Justice of the High Court has come to a different opinion and is not prepared to change that opinion despite the suitability of the Chief Justice of India, no offence would be taken by the Chief Justice of India and he would not harbour any feeling of resentment against the Chief Justice of the High Court, Both the Chief Justices have trained judicial minds and both of them would have the humility to recognise that they can be mistaken in their opinions. We do not therefore see any real possibility of estrangement or even embarrassment for the two Chief Justices, if their differing views in regard to the suitability of an additional Judge for further appointment are disclosed. We also find it difficult to agree that if the differing views of the two Chief Justices become known to the outside world, the public discussion and debate that might ensue might have the effect of lowering the dignity and prestige of one or the other of the two Chief Justices. When the differing views of the two Chief Justices are made public as a result of disclosure, there would certainly be public discussion and debate in regard to those views with some criticizing one view and some criticizing the other, but that cannot be helped in a democracy where the right of free speech and expression is a guaranteed right and if the views have been expressed by the two Chief Justices with proper care and deliberation and a full sense of responsibility in discharge of a constitutional duty, there is no reason why the two Chief Justices should worry about public criticism. We fail to see how such public criticism could have the effect of undermining the prestige and dignity of one or the other Chief Justice. So long as the two Chief Justices have acted honestly and bona fide with full consciousness of the heavy responsibility that rests upon them in matters of this kind, we do not think that any amount of public criticism can affect their prestige and dignity. But if either of the two Chief Justices has acted carelessly or improperly or irresponsibly or out of oblique motive, his view would certainly toe subjected public criticism and censure and that might show him in poor light and bring him down in the esteem of the people, but that will be the price which he will have to pay for his remissness in discharge of his constitutional duty, No Chief Justice or Judge should be allowed to hide his improper or irresponsible action under the cloak of secrecy. If any Chief Justice or Judge has behaved improperly or irresponsibly or in a manner not befitting the high office he holds, there is no reason why his action should not be exposed to public gaze. We believe in an open Government and openness in Government does not mean openness merely in the functioning of the executive arm of the State. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers. Today the process of judicial appointments and transfers is shrouded in mystery. The public does not know how Judges are selected and appointed or transferred and whether any and if so what, principles and norms govern this process. The exercise of the power of appointment and transfer remains a sacred ritual whose mystery is confined only to a handful of high priests, namely, the Chief Justice of the High Court, the Chief Minister of the State, the Law Minister of the Central Government and tha Chief Justice of India in case of appointment or non-appointment of a High Court Judge and the Law Minister of the Central Government and the Chief Justice of India in case of appointment of a Supreme Court Judge or transfer of a High Court Judge. The mystique of this process is kept secret and confidential between just a few individuals, not more than two or four as the case may be, and the possibility cannot therefore be ruled cut that howsoever highly placed may be these individuals, the process may on occasions result in making of wrong appointments and transfers and may also at times, though fortunately very rare, lend itself to nepotism, political as well as personal and even trade-off. We do not see any reason why this process of appointment and transfer of Judges should be regarded as so sacrosanct that no one should be able to pry into it and it should be protected against disclosure at all events and in all circumstances. Where it becomes relevant in a judicial proceeding, why should the Court and tha opposite party and through them the people not know what are the reasons for which a particular appointment is made or a particular additional Judge is discontinued or a particular transfer is effected. We fail to see what harm can be caused by the disclosure of true facts when they become relevant in a judicial proceeding, In fact, the possibility of subsequent disclosure would act a an effective check against carelessness, impetuosity, arbitrariness or mala fides on the part of the Central Government, the Chief Justice of the High Court and the Chief Justice of India and ensure bona fide and correct approach, objective and dispassionate consideration, mature thought and deliberation and proper application of mind on their part in discharging their constitutional duty in regard to appointments and transfers of Judges. It is true that if the views ex-pressed by the Chief Justice of the High Court and the Chief Justice of India in regard to the suitability of an additional Judge for further appointment become known to the public, they might reflect adversely on the competence, character or integrity of the additional Judge, but the additional Judge cannot legitimately complain about it, because it would be at his instance that the disclosure would be ordered and the views of the two Chief Justices made public. If the additional Judge is appointed for a further term either accepting the opinion expressed by the Chief Justice of the High Court in preference to that of the Chief Justice of India or vice versa, the question of disclosure of differing opinions of the two Chief Justices would not arise, because no one would know that the two Chief Justices were not agreed on continuing the additional Judge for further term and therefore, ordinarily, there would be no challenge to the appointment of the additional Judge, It is only if the additional Judge is not continued for a further term that he or some one on his behalf may challenge the decision of the Central Government not to continue him and in that event, if he asks for disclosure of the relevant correspondence embodying the views of the two Chief Justices, and if such disclosure is ordered, he has only himself to thank for it and in any event, in such a case, there would be no harm done to public Interest if the views expressed by the two Chief Justices become known to the public.
85. We are therefore of the view that (in the two groups of writ petitions which before us, the injury which would be caused to the public interest in administration of justice by non-disclosure of the correspondence between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India and the relevant nothings made by them in regard to non-appointment of S.N. Kumar and the correspondence between the Law Minister and the Government of India and the relevant nothings made by them in regard to transfer of the Chief Justice of Patna, far outweighs the injury which may, if at all, be caused to the public interest by their disclosure and hence these documents were liable to be disclosed in response to the demand of the learned Counsel appearing on behalf of the petitioners and S.N. Kumar. These were the reasons for which we directed by our Order dated 16th Oct., 81 that these documents be disclosed to the petitioners and S.N. Kumar, Facts of S.N. Kumar's Case I Whether full & Effective consultation.
86. That takes us to the next question as to whether there was full and effective consultation between the President which means the Central Government on the one hand and the Chief Justice of India on the other, Article 217 provides that every Judge of the High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court, We have already rejected the contention urged on behalf of the respondents that the requirement of consultation is necessary only where a person is being appointed a Judge of the High Court and not where a decision is taken not to appoint him. We have, of course, made it clear that where the name of a person is proposed for appointment as a Judge of the High Court for the first time, he. having no right to be considered for such appointment, is not entitled to insist that the proposal for his appointment, whether initiated by the Chief Justice of the High Court or the State Government or the Chief Justice of India, should be subjected to the process of consultation set out in Article 217 and his name can be dropped without any such consultation. But, as pointed out by us in an earlier portion of the Judgment, the position is different in case of sin additional Judge, for though an additional Judge has no right, on the expiration of his term, to be appointee additional Judge for a further term or to be appointed a permanent Judge, he has still a right to be considered for such appointment and the Central Government has to decide whether or not to appoint him after consultation with the three constitutional functionaries mentioned in Article 217. Here, in the present case, Shri S.N. Kumar was an additional Judge whose term expired on 6th June, 1981 and he was entitled to be considered for appointment as an additional Judge for a further term and the Central Government certainly could after considering his name, decide in the bona fide exercise of its power, not to appoint him, but that could be done only after consultation with the three constitutional functionaries specified in Article 217 which included the Chief Justice of India. It therefore becomes necessary to consider whether the Central Government arrived at its decision not to appoint Shri S.N. Kumar as an additional Judge for a further term after consultation with the Chief Justice of India. We have already discussed the true nature and scope of consultation required under Article 217 and pointed out that the consultation contemplated by that Article is full and effective consultation where the relevant facts bearing upon appointment or non-appointment are brought to the notice of the Central Government and the three constitutional functionaries required to be consulted and the opinion of each of the three constitutional functionaries is taken on identical material and then a decision is reached by the Central Government whether or not to appoint the person concerned as a Judge, whether additional or permanent. Now Article 217 does not require that any particular procedure should be followed for full and effective consultation nor does it insist that the relevant facts on which the final decision of the Central Government is based should be conveyed to the other three constitutional functionaries in any particular manner or by the Central Government itself. What is necessary to ensure full and effective consultation within the meaning of Article 217 is that the Central Government as well as each of the three constitutional functionaries required to be consulted "must have for its consideration full and identical facts which can at once constitute both the source and foundation of the final decision" and it is immaterial as to how such "full and identical facts" are conveyed by one authority to thither. It is sufficient compliance with the constitutional requirement of Article 217 if the self-same facts on which the final decision is taken by the Central Government are placed before each of the three constitutional functionaries required to be consulted and their opinion is taken on the basis of such facts. Whatever be the manner in which those facts are brought to their notice. Let us examine whether in the present case this constitutional requirement was satisfied before the decision was taken by the Central Government not to appoint S.N. Kumar as an additional Judge for a further term or to paraphrase it in the context of the controversy raised on behalf of the petitioners, whether the full and identical facts on which the decision was taken by the Central Government were placed be-fore the Chief Justice of India.
87. The unfortunate drama leading to the non-appointment of S.N. Kumar as an additional Judge for a further term begins with the letter dated 19th February, 1981 addressed by the Chief Justice of Delhi to the Law Minister. This letter was written by the Chief Justice of Delhi to the Law Minister, because the term for which S.N. Kumar was originally appointed as an additional Judge was due to expire on 6th March. 1981. The Chief Justice of Delhi pointed out in this letter that the arrears pending in the Delhi High Court undoubtedly justified the appointment of additional Judges but he was not in a position to recommend the "extension for Justice Kumar" for an additional term for three reasons, namely (1) There were serious complaints against S.N. Kumar both oral and in writing, These complaints had been received by him direct as well as through the Law Minister. He had examined these complaints and 'found that some of the complaints were not without basis (2) S.N. Kumar had not been very helpful in disposing of cases; and (3) some responsible members of the Bar and some of the colleagues of the Chief Justice (whom he did not think it proper to name) had also expressed doubts about S.N. Kumar's integrity. The Chief Justice frankly stated that he had no invest gating agency to conclusively find out whether the complaints against S.N. Kumar were genuine or not, but added that "all the same the complaints have been persistent." He pointed out that in the circumstances it was his painful duty, not to recommend an extension for S.N. Kumar but added that the Law Minister might examine the matter at his Mid and take such steps as he thought proper. Now a suggestion was made by Mr. R.K. Gag, learned advocate appearing on behalf of S.N. Kumar that this letter was addressed by the Chief Justice of Delhi to the Law Minister pursuant to a conspiracy between the two to discontinue S.N. Kumar as an additional Judge. The suggestion was that the Chief Justice of Delhi had played into the hands of the Law Minister and written this letter recommending non-appointment of S.N. Kumar in order to oblige the Law Minister. We are afraid we cannot term this suggestion as anything but unfounded. There is absolutely not a title of evidence in support of such a suggestion. The charge of conspiracy is at all times a very serious charge and it must not be lightly made more particularly when it is directed against persons holding high offices, Here it is difficult to see any justification at all for levelling a charge of conspiracy against the Chief Justice of Delhi and the Law Minister, The Chief Justice of Delhi was appointed acting Chief Justice on 27th June. 1980 and he was confirmed as permanent Chief Justice with effect from 8th January, 1981 and therefore on the date of the letter, his position as Chief Justice was not at all in jeopardy and he was not dependent on the Central Government or the Law Minister for his office. There were also no disputes or differences between the Chief Justice of Delhi and S.N. Kumar prior to the date of the letter and no suggestion has been made on behalf of S.N. Kumar that the Chief Justice of Delhi had any animus or prejudice against him. Nothing had transpired between the Chief Justice of Delhi and S.N. Kumar which might have induced the Chief Justice of Delhi, to make a false allegation or imputation against him. Nor was any reason suggested as to why the Law Minister should have gone out of his way to see that S.N. Kumar was not continued as an additional Judge, It would indeed be going too far to suggest without shred of evidence that the Chief Justice of Delhi was so depraved as to yield to the pressure of the Law Minister and make a deliberately false imputation of lack of integrity against his colleague merely in order to oblige the Law Minister. It is impossible to conceive of any, earthly reason why the Chief Justice of Delhi should have gone to the length of condemning his colleague unless he had received complaints against him and he bona fide believed that some of those complaints were not without basis. The letter dated 19th February, 1981 in fact, contains inherent evidence to show that the Chief Justice of Delhi was acting bona fide in addressing that letter to the Law Minister. He pointed out in the letter that he had received complaints against S.N. Kumar both oral and in writing and on examining these complaints he had found that same of them were not without basis but he frankly stated that he had no investigative machinery at his disposal and it was therefore not possible for him to find conclusively whether these complaints were genuine or not. This was a correct and proper approach to be adopted by a careful and responsible Chief Justice who had heard complaints against his colleague some of which appeared to him not without basis but in respect of which he was not in a position to state definitely whether they were true or not. Since some of the complaints appeared to him not without basis and responsible members of the Bar and some of his colleagues had also complained to him against S.N. Kumar, he naturally thought that it would not be right for him to recommend continuance of S.N. Kumar as an additional Judge, But, at the same time, he made it clear that the Law Minister might examine the matter at his end and take such action as he thought fit. It is impossible to conclude from this letter that the Chief Justice of Delhi acted improperly or irresponsibly in not recommending the continuance of S.N. Kumar as an additional Judge. If what was stated by the Chief Justice of Delhi in this letter were true -- and for the purpose of inquiry as to whether there was full and effective consultation, we must accept the facts as given in the letter as true for we are not concerned to inquire whether the facts on which the Chief Justice of Delhi based his opinion were true or not -- the Chief Justice of Delhi could not be said to be unjustified in taking the view that S.N. Kumar should not be recommended for continuance as an additional Judge. While making his recommendation whether S.N. Kumar should be continued as an additional Judge or not, the Chief Justice of Delhi had to consider the fitness and suitability of SN. Kumar the time and if there were complaints against S.N. Kumar, some of which he did not find to be without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar and some of his own colleagues, the Chief Justice of Delhi could not be said to have acted unreasonably in declining to recommend S.N. Kumar for an extension. It may be that on full and detailed investigation through an independent and efficient investigative machinery, the complaints and doubts against S.N. Kumar might have been found to be unjustified but such a course would have been neither practicable nor desirable. In the first place, as pointed by the Chief Justice of Delhi himself, he had no investigative machinery at his disposal and if he wanted the complaints and doubts against S.N. Kumar to be investigated, he would have had to ask the Central Government to carry out such investigation through the Central Bureau of Investigation or the Intelligence Bureau or some such investigating agency and that would have been clearly subversive of the independence of the judiciary. It would have been most improper for the Chief Justice of Delhi to ask the Central Government to investigate into complaints or doubts against a sitting Judge of his Court. This Court has in unhesitating terms condemned the adoption of such a course by the High Court in the case of subordinate judiciary and much more so would it be reprehensible in the case of a sitting Judge of a High Court. Moreover, leaving the investigation of complaints and doubts against a sitting Judge in the hands of an investigative agency under the Control of a Political Government would not be desirable because, apart from exposing the sitting Judge to unhealthy political pressures, it may not yield satisfactory result in all cases, because such an Investigation would not have the benefit of the guidance of a mature and experienced person like the Chief Justice who has lived a whole lifetime in the Courts and who is closely and intimately connected with lawyers and Judges in the Court over which he presides, It would Indeed be impossible for any one unfamiliar with the legal profession and the functioning of the Courts to judge the genuineness or veracity of the sources from which information might be obtained in regard to a sitting Judge. It must, therefore, necessarily bad left to the Chief Justice of the High Court to give his opinion in regard to the suitability of an additional Judge for further appointment on the basis of such information as he may gather by, making his own inquiries. The Chief Justice of the High Court would have sufficient opportunities for judging the suitability of an additional Judge for further appointment, because the additional Judge would be working with him in the same Court and he would be in close contact with the members of the Bar and his own colleagues and if there is anything wrong with the functioning of the Court or tha Judges, he would be best in a position to know about it If an additional Judge does not enjoy good reputation for integrity, the Chief Justice of the High Court would ordinarily come to know about it. Of course, the possibility cannot be ruled out that the information received by tha Chief Justice of the High Court may at times be motivated or prejudiced, because the additional Judge has offended some member of the Bar or decided some case against a litigant. These occupational hazards which beset the life of an additional Judge -- in fact, even of a permanent Judge whether in the High Court or in the Supreme Court have unfortunately increased in recent times, because there has been a steady erosion of values and not only some interested politicians but also a few -- and fortunately their tribe is still small -- lawyers and members of the public are prone to make wild and reckless allegations against Judges and impute motives for the decisions given by them. It is not realised by many that very often the judgments given by the High Courts and the Supreme Court are value judgments, because there are conflicting values competing for recognition by the Judge and the choice made by the Judge is largely dictated by his social philosophy and it a not possible to emphatically assert that a particular view taken by one Judge is wrong and a different view taken by and other Judge is right, The nature of the judicial process being what it is, it is inevitable that the view taken by a Judge, perfectly bona fide though it may be, may not accord with the expectations of a section or group of persons believing in a particular social or political philosophy, but that cannot be a ground affording Justification for making imputation against the Judge or accusing him of lack of been fides or charging him with surrender subservience to the executive or to any other interest. Those who indulge in such personal attacks against Judges for the decisions given by them do not realise what incalculable damage they are doing to the judicial institution by destroying the confidence of the public in the integrity and inviolability of administration of justice. Unfortunately, it is the easiest thing to make false, reckless and irresponsible allegations against Judges in regard to their honesty and integrity and in recent times the tendency has grown to make such allegations against Judges because they have decided the case in a particular manner either against a dissatisfied litigant or contrary to the view held by a group or, section of politicians or lawyers or members of the public. The Judge against whom such allegations are made is defenceless because, having regard to the peculiar nature of the office held by him, he cannot enter the arena of conflict and raise or join a public controversy, This pernicious tendency of attributing motives to Judges has to be curbed, if the judicial institution is to survive as an effective instrument for maintenance of the rule of law in the country and this can happen only if politicians, lawyers and members of the public accept the judgments rendered by the Judges as bona fide expressions of their views and do not impute motives to Judges for the judgments given by them, even though they be adverse to the views held by them. But unfortunately, the situation being what it is, we must emphasise with all the strength and earnestness at our command that the Chief Justice of the High Court should exercise the greatest care and circumspection in judging the veracity of the information which he may receive from time to time in regard to the conduct or behaviour or integrity of an additional Judge of his Court. The Constitution has entrusted to him the task of giving his opinion in regard to the suitability of an Addl. Judge for further appointment and on the basis of the information received by him or gathered as a result of inquiries made by him, he has to decide wisely and with responsibility whether or not he should recommend the appointment of an additional Judge for a further term.
88. Now where the Chief Justice of the High Court is reasonably satisfied after the greatest care and circumspection exercised by him as the holder of a high constitutional office to whom the Constitution has assigned an important function and in whom it has reposed a sacred trust, that the additional Judge in regard to whose suitability he has to give opinion, does not enjoy good reputation for integrity, he obviously cannot recommend such additional Judge for further appointment. It is possible that the Chief Justice of the High Court may go wrong in a given case and arrive at an erroneous opinion in regard to the suitability of an additional Judge for appointment for a further term and that may result in injustice to the additional Judge who may suffer by reason of such erroneous opinion but that cannot be helped because ultimately some constitutional functionary has got to be entrusted with the task of assessing the suitability of the person to be appointed an additional Judge or a permanent Judge and no better person can be found for this purpose than the Chief Justice of the High Court. The Chief Justice of the High Court may err in his assessment as anyone else may, fallibility being the attribute of every human being. But that is a risk which has necessarily to be taken and it cannot be avoided howsoever perfect may be the mechanism which human ingenuity can evolve. It may happen that the Chief Justice of the High Court, not being aware that the additional Judge whose term is about to expire does not enjoy, good reputation for integrity may recommend his name for appointment for a further term though he is clearly unsuitable for such appointment and equally it may happen that on the basis of the information available with him which information may be incorrect, the Chief Justice of the High Court may come to the opinion that the additional Judge whose suitability he is called upon to consider does not possess good reputation for integrity though in fact he is a person of sterling character and possesses a high degree of honesty and integrity. These errors are inevitable in every process of assessment and the Constitution has sought to minimise them by entrusting the task of assessment to a high dignitary like the Chief Justice of the High Court who would be expected to act with a high sense of responsibility and, who by reason of training and experience, would be able to sift the grain from the chafed arrive at a correct opinion on the material before him.
89. We might also at this stage refer to one contention seriously pressed on behalf of the petitioners, namely, that what would be material to consider for the purpose of assessing the suitability of an additional Judge for further appointment would be not whether the additional Judge enjoys good reputation for honesty and integrity but whether in fact he possesses honesty and integrity. The argument of the petitioners was that if the additional Judge has the hall-mark of honesty and integrity "he cannot be removed or dropped because unconfirmed reports say that he is lacking in honesty and integrity", for otherwise "the reputation of every Judge would be at the mercy of rumours, gossips and unconfirmed reports". We do not think this argument is well founded. In the first place, it must be remembered that when the Chief Justice of the High Court is called upon to give his opinion in regard to the suitability of an additional Judge for further appointment, he is not required to adjudicate upon various matters bearing upon his suitability and to come to a definitive finding or conclusion in regard to such matters. Where the complaint against an additional Judge is in regard to his integrity, the Chief Justice of the High Court is not expected to hold a Judicial or quasi-judicial inquiry for the purpose of adjudicating whether the additional Judge is, in fact, lacking in honesty and integrity. Such an .inquiry against a Judge whether additional or permanent would not be permissible except in a proceeding for his removal. What the Chief Justice of the High Court has to do is merely to assess the suitability of the additional Judge for further appointment and where lack of integrity is alleged against him, the assessment can only be on the basis of his reputation for integrity. The point we are making will become abundantly clear if we take the case of a member of the Bar or the senior most District Judge who is for the first time considered for appointment as an additional or permanent Judge. The integrity of the person under consideration would undoubtedly be a relevant factor to be taken into account, but in assessing such factor the Chief Justice of the High Court would not be expected to hold a judicial OF quasi-judicial inquiry for the purpose of determining whether the person concerned does, in fact, possess honesty and integrity or is lacking in these qualities. The Chief Justice of the High Court would have to proceed on the basis of the reputation for honesty and integrity enjoyed by the person under consideration and if, on the basis of the information gathered by him, the Chief Justice of the High Court comes to the view that such person does not enjoy good reputation for integrity, the Chief Justice of the High Court would be justified in not recommending such person for appointment Where a question of honesty and integrity of a Judge is concerned, it is almost impossible to come to a conclusive determination whether he is lacking in integrity or not because experience shows that most persons are not willing to speak if they know that they may be quoted and that in any event they are not prepared to testify in any judicial or quasi-judicial inquiry. It is therefore not enough in order to be able to recommend a person for appointment as a Judge to say that there is no proof of lack of integrity against him, because, if such were the test to be applied, there would be grave danger of persons lacking in integrity being appointed as Judges. The test which must be applied for the purpose of assessing the suitability of a person for appointment as a Judge must be whether the Chief Justice of the High Court or for the matter of that, any other constitutional authority concerned in the appointment, is satisfied about the integrity of person under consideration; If the person under consideration does not enjoy reputation for honesty and integrity, it would not be possible for the Chief Justice of the High Court to say that he is satisfied about the integrity of such person and in such an event, the Chief Justice of the High Court would be justified in not recommending such person for appointment 9 in fact, it would be his duty not to recommend such person. The public injury which may be caused by appointment of a Judge lacking in integrity would be infinitely more than tha public injury which may result from non-appointment of a competent Judge possessing integrity. If therefore the Chief Justice of Delhi found on inquiries made by him that some of the complaints made against S.N. Kumar were not without basis and doubts about the integrity of S.N. Kumar were expressed by responsible members of the Bar as also by some of his own colleagues, the Chief Justice of Delhi could not be said to be unjustified in writing the letter dated 19th February, 1981 declining to recommend S.N. Kumar for appointment as an additional Judge for a further term. We may once again repeat that this assessment of S.N. Kumar by the Chief Justice of Delhi may have been erroneous and, as we shall point out a little later, the Chief Justice of India took the view that it was erroneous, but on no account can lack of bona fides be attributed to the Chief Justice of Delhi. On the bona fide view taken by him, the Chief Justice of Delhi did what it was his plainest duty in the circumstances to do.

The same view was expressed by Gibhs A.C.J. in Sankey v. Whitlam (supra) 1982 S. C./16 II G-8 where the learned acting Chief Justice said:
I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with special care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection -- the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned.
There is nothing sacrosanct about the immunity which is granted to documents because they belong to a certain class. Class immunity is not absolute or inviolable in all circumstances. It is not a rule of law to be applied mechanically in all cases. The principle upon which class immunity is founded is that it would be contrary to public interest to disclose documents belonging to that class, because such disclosure would impair the proper functioning of the public service and this aspect of public interest which requires that justice shall not be denied to any one by withholding relevant evidence. This is a balancing task which has to be performed by the Court in all cases.
73. What should be the technology and methodology of this balancing task is a matter which we shall presently examine. But, before we do so, it is necessary to point out that class immunity is not confined merely to that class of documents in respect of which nondisclosure is really necessary for the proper functioning of the public service, though mostly it is in respect of documents falling within this class that the claim for class immunity is usually made. There is also another class of documents which has always been recognised by the Court as entitled to the same immunitnd that class consists of documents evidencing the sources from which the police obtain information. Now we agree with the learned Counsel on behalf of the petitioners that this immunity should not be lightly extended to any other class of documents, but, at the same time, boundaries cannot be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document to be disclosed, then it is in law immune from discolsure. If a new class comes into existence to which this principle applies, then that class would enjoy the same immunity. This is the basis on which in Reg. v. Lewes, JJ. Ex parte Home Secy. 1973 AC 388 (supra) the House of Lords extended this immunity to a new class of documents, namely, all such documents as were supplied to the Gaming Board and related to the "character, reputation and financial standing... of the applicant". Lord Reid pointed out in that case that the claim for protection made on behalf of the Gaming Board was not based on the contents of the particular letter of which disclosure was sought by the appellant, but it was "based on the fact that the Board cannot adequately perform their statutory duty unless they can preserve the confidentiality of all communications to them regarding the character, reputation or antecedents of applicants for their consent". The learned Law Lord posited the question for consideration in the following words: "Here the question is whether the withholding of this class of documents is really necessary to enable the Board adequately to perform its statutory duties" and proceeded to hold that "if there is not to be very serious danger of the Board being deprived of information essential for the proper performance of their task, there must be a general rule that they are not bound to produce any document which gives information to them about any applicant". Lord Morris of Borth-Y-Gest also observed to the same effect at p. 405 of the Report:
However honourable and public spirited a person might be, he would undoubtedly feel somewhat inhibited in the future if he found that as a result of his last response to a request for information he had himself become a defendant or an accused. The test, however, is not in personal terms. It rests upon a consideration of the necessities of the public service arising out of the rather specialities and functions imposed and recognised by Parliament." The House of Lords accordingly held that "on balance the public interest clearly requires that documents of this kind should not be disclosed" and thus upheld the claim of immunity in respect of the letter which gave information to the Gaming Board about the character, reputation and antecedents of the appellant. The question is whether immunity of this kind -- what we have described as class immunity -- should be extended to the class of documents consisting of correspondence exchanged between the Law Minister or other high level functionary of the Central Government, the Chief Justice of the High Court and the Chief Justice of India in regard to appointment or non-appointment of a High Court or Supreme Court Judge.
74. Now we may conveniently at this stage consider the question as to how a claim for immunity against disclosure should be raised under Section 123. It is necessary to repeat and re-emphasize that this claim of immunity can be justifiably made only, if it is felt that the disclosure of the document would be injurious to public interest. Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence -- should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court. It has therefore been held since long before Conway v. Rimmer 1968 AC 910 (supra) was decided in England and since the decision in Sodhi Sukhdev Singh's case (supra) in India that a claim for immunity against disclosure should be made by the minister who is the political head of the department concerned or failing him, by the secretary of the department and the claim should always be made in the form of an affidavit. Where the affidavit is made by the secretary, the Court may in an appropriate case require an affidavit of the minister concerned. The affidavit should show that the document in question has been carefully read and considered and the person making the affidavit has formed the view that the document should not be disclosed either because of its actual contents or because of the class of documents to which it belong. If in a given case no affidavit is filed or the affidavit filed is defective, the Court may give an opportunity to the State to file a proper affidavit. The reason is that the immunity against disclosure claimed under Section 123 is not a privilege which can be waived by the State. It is an immunity which is granted in order to protect public interest and therefore even if the State has not filed an affidavit or the affidavit filed is not satisfactory, the court cannot abdicate its duty of deciding whether the disclosure of the document in question would be injurious to public interest and the document should not therefore be allowed to be disclosed. That is why in England this immunity is no longer described as "Crown Privilege" but is called "public interest immunity". This aspect of the immunity was emphasized by Lord Reid in Reg v. Lewes Ex parte Home Secretary (1973 AC 388) (supra) where the learned Law Lord observed that the expression 'Crown Privilege' is wrong and may be misleading and there is no question of any privilege in the ordinary sense of the word, as the real question is whether the public interest requires that the document shall not be produced. Lord Simon of Glaisdale also pointed out in the same case; "Crown privilege is a misnomer and apt to be misleading. It refers to the rule that certain evidence is inadmissible on the ground that its adduction would be contrary to the public interest... it is not a privilege which may be waived by the Crown or by anyone else", It is therefore clear that if a document is entitled to immunity against disclosure, it cannot be adduced in evidence by either party and even if neither of the parties claims such immunity, the Judge himself must take the objection for the rule that the public interest must not be put in jeopardy by the disclosure of a document which would injure it, is one upon which the courhould, if necessary, insist, even though no objection has been taken by any party or by any government department. In Conway v. Rimmer 1968 AC 910 (supra) Lord Reid said that it is the duty of the Court to prevent the disclosure of a document without the intervention of any minister, "if possible serious injury to the national interest is readily apparent". In Reg v. Lewes Ex parte Home Secy. 1973 AC 388 (supra) Lord Simon of Glaisdale pointed out that even a litigant or a witness may draw the attention of the Court to the nature of the document with a view to its being excluded Since the immunity is founded on public interest, it is necessary that the court should have the power and the duty to prevent the disclosure of a document when it would be injurious to public interest to disclose it, even if the proper procedure for objection by or on behalf of the minister or the secretary has not been followed. The Court must intervene proprio motu if it appears that the public interest requires the document to be protected from disclosure,
75. This being the correct legal position, it is immaterial whether in the present case appropriate affidavit claiming immunity was filed on behalf of the Union of India. The learned Attorney General sought to tender on an affidavit sworn by Burney, the then Secretary to the Home and Judiciary Department claiming immunity against disclosure in respect of the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India in regard to the non-appointment of S.N. Kumar but since the affidavit was sworn on 7-9-1981 and yet not tendered until 16-9-1981 even though the arguments had begun long back, we expressed our displeasure at the delay in filing the affidavit whereupon the learned Attorney General stated that he would not rely upon the affidavit. Thereafter when the learned Counsel for S.N. Kumar sought answers to certain querries in regard to this correspondence, the learned Attorney General filed an affidavit sworn by T.N. Chaturvedi, Secretary to the Home and Judiciary Department claiming protection against disclosure of this correspondence, strong objection was taken to the filing of this affidavit by the learn-ed counsel on behalf of the petitioners ana S.N. Kumar on the ground that the learned Attorney General having made a statement that he would not rely upon previous affidavit, it was not competent and in any event not proper (or the Union of India to file trie affidavit of T.N. Chaturvedi which was almost in the same terms as the previous affidavit. But we overruled this objection, because, as would be clear from what we have discussed above, even if no affidavit were filed earlier on behalf of the Union of India claiming immunity against disclosure, the Union of India could always file an affidavit claiming such immunity at any stage before the claim for immunity was considered and decided by the court -and once the claim for immunity was raised the court could also on its own direct the Union of India to file a proper affidavit, if no such affidavit were already filed. We therefore took the affidavit of T.N. Chaturvedi on file and allowed the Union of India to rely upon it. We may point out that even if this affidavit had not been filed, the Court would still have had to consider on the basis of the other material before it including the nature of the correspondence whether its disclosure would be injurious to public interest and hence it should not be allowed to be disclosed.
76. We may also point out that we were invited to inspect for ourselves the correspondence exchanged between the Law Minister, the Chief Justice of Delhi High Court and the Chief Justice of India for the purpose of deciding whether that correspondence was entitled to immunity against disclosure. Now the view taken in Sodhi Sukhdev Singh's case was that where an objection is raised
against the disclosure of a document under Section 123, the Court has no power to inspect the document under Section 162 for the purpose of deciding the ob-jectien. But with the greatest respect to the learned Judges who decided that case, we do not think this view is correct and in fact subsequent decisions of this Court seem to be against it. So far as English Law is concerned it is now well-settled as a result of the decision of the House of Lords in Conway v. Rimmer 1968 AC 910 (supra) that there is a residual power in the Court to inspect the document. If the Court finds it necessary to do so for the purpose of deciding whether on balance the disclosure ef the document would causa greater injury to public Interest than its non-disclosure. Vide Conway v. Rimmer (supra) at pages 953, 979, 981 and 993. This residual power of the Court to inspect the document has also be recognised in Australian Law by the decision of the High Court of Australia in Sankey v, Whitlam (21 Aus. L.R. 505). We do not see any reason why under Indian Law the Court should be denied this residual power to inspect the document. It 19 true that under Section 162 the Court cannot inspect the document if it relates to affairs of Stale, but this bar comes into operation only if the document is established to be one relating to affairs of State. If, however, there is any doubt whether the document does relate to affairs of State, the residual power which vests in the Court to inspect the document for the purpose of determining whether the disclosure of the document would be injurious to public interest and the document is therefore one relating to affairs of State, is not excluded by Section 162. This Court in fact held in no uncertain terms in Raj Narain's case
(supra) where an objection against the disclosure of the Blue Book was taken on behalf of the State under Section 123, that if the Court was not satisfied with the affidavit objecting to the disclosure of the document, the Court may inspect the document. Ray, C.J, observed at two places while dealing with the objection against the disclosure of the Blue Book under Section 123 that "If the Court would yet like to satisfy itself, the Court may see the document. This will be the inspection of the document by the Court," and "If the Court in spite of the affidavit wishes to inspect the document, the Court may do so." Mathew, J. also pointed out that in Amarchand Butail v. Union of India this Court inspected the document in order to see
whether it related to affairs of State, There can therefore, be no doubt that even where a claim for immunity against disclosure of a document is made under Section 123, the Court may in an appropriate case inspect the document in order to satisfy itself whether its disclosure would, in tha particular case before it, be injurious to public interest and the claim for immunity must therefore be upheld. Of course this power of inspection is a power to be sparingly exercised, only if the Court is in doubt, after considering the affidavit, if any, filed by the minister or the secretary, the issues in the case and the relevance of the document whose disclosure is sought. Since, in the present case, the affidavit of T.N. Chaturvedi claiming immunity against disclosure wade at a late stage of the proceedings and the claim for immunity was in respect of a new class of documents which has so far not come up for judicial consideration and we were in doubt, even after considering the affidavit, whether the correspondence whose disclosure was sought on behalf of the petitioners and S.N. Kumar was of such a character that its disclosure would, on an overall view after weighing the two aspects of public interest referred to above, be injurious to public interest, we inspected the correspondence for ourselves for tha purpose of deciding whether or not it should be ordered to be disclosed.
77. Now as we have already pointed out above, it is for the court to decide the claim for immunity against disclosure made under Section 123 by weighing the competing aspects of public interest and deciding which, in the particular casa before the court, predominates, Tha court is not bound by the affidavit made by the minister or the secretary be-cause the minister or the secretary would be concerned primarily and almost exclusively with the assertion of tha public interest which would be injured by the disclosure of the document and he would have very little concern, if at all, with the public interest in the fair administration of justice and in fact he would not be in a position to appreciate and assess the relative importance of the two competing public interest so as to be able to judge as to which in the particular case before the Court should be allowed to prevent. What should be tha relative weight to be attached to each aspect of public interest is a question which the court would be best qualified to decide and not the minister or the secretary. That is why in Conway v. Rimmer 1968 AC 910 (supra) Lord Reid, while rejecting the notion that a minister's claim of immunity was conclusive, pointed out at page 943 that the minister who withholds production of a document has no duty to consider the degree of public interest involved in a particular case in frustrating the due administration of justice, it not mattering to the minister at all whether the result of withholding the document would merely be to deprive a litigant of some evidence on a minor issue in a case of little importance or on the other hand, to make it impossible to do justice in a case of the greatest importance. The court would of course consider the affidavit made by the minister or the secretary and give it due weight and importance, but ultimately it is the court which will have to determine which aspect of public interest must prevail and whether the claim for immunity against disclosure should be upheld or not. This was most felicitously expressed by Lord Radcliffe in the Scottish appeal of Glasgow Corporation v. Central Land Board 1956 SC (HL) 1 (supra) where the learned Law Lord said:
The power reserved to the court is therefore a power to order production even though the public interest is to some extent affected prejudicially. This amounts to a recognition that more than one aspect of the public interest may have to be surveyed in .reviewing the question whether a document which would be available to a party in a civil suit between private parties is not to be available to the party engaged in a suit with the Crown. The interests of government, for which the Minister should speak with full authority, do not exhaust the public interest. Another aspect of that interest is seen in the need that impartial justice should be done in the Courts of law, not least between citizen and Crown, and that a litigant who has a case to maintain should not be deprived of the means of its proper presentation by anything less than a weighty public reason. It does not seem to me unreasonable to expect that the court would be better qualified than minister to measure the importance of such principles in application to the particular case that is before it.
Mathew, J, also observed to the same effect in his concurring opinion in Raj Narain's case (supra):
The claim of the executive to exclude evidence is more likely to operate to subserve a partial interest, viewed exclusively from a narrow departmental angle. It is impossible for it to see or give equal weight to another matter, namely, that justice should be done and seen to be done. When there are more aspects of public interest to be considered, the court will, with reference to the pending litigation, be in a better position to decide where the weight of public interest predominates.
The court will therefore have to put in the scales against the injury to public interest which may be caused by this closure of the document, the likely injury to the cause of injustice by non-disclosure and both will have to be assessed and weighed and it will have to -be determined on which side the balance tilts.

67. We might begin by reproducing Section 123 which reads as follows:
Section 123 : Evidence as to affairs of State -- No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
It is also necessary for arriving at a proper interpretation of Section 123 to refer to Section 162 which says:
Section 162. Production of documents -- A witness summoned to produce a document shall, if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court.
The court, if sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

Translation of documents -- If for such a purpose it is necessary to causing document to be translated, the court may, if it thinks fit. direct the translator to keep the contents secret, unless the document is to be given in evidence and if the interpreter disobeys such directions, he shall be held to have committed an offence under Section 166 of the Indian Penal Code, 1860 (45 of 1860).

These two sections came up for consideration for the first time before this Court in State of Punjab v. Sodhi Sukhdev Singh (supra). Gajendragadkar, J. (as he then was), speaking on behalf of him-self, Sinha, C.J. and Wanchoo, J. pointed out that the principle behind the exclusionary rule enacted in Section 123 is that a document should not be allowed to be produced in court if such production would cause injury to public interest and where a conflict arises between public interest in non-disclosure and private interest in disclosure, the latter must yield to the former. The learned Judge emphasized that though Section 123 does not expressly refer to injury to public interest, that principle is obviously implicit in it and indeed it is the sole foundation and proceeded to add that even though administration of justice is a matter of very high public importance, if there is a real "conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be conceded that the interest of the individual cannot prevail over the public interest." Now we agree with the learned Judge that public interest lies at the foundation of the claim for protection against disclosure enacted in Section 123 and it seeks to prevent production of a document where such production would cause public injury but we do not think the learned Judge was right in observing that the interest which comes into conflict with the claim for non-disclosure is the private interest of the litigant in disclosure, It is rather the public interest in fair administration of justice that comes into dash with the public interest sought to be protected by nondisclosure and the court is called upon to balance these two aspects of public interest and decide which aspect predominates. We shall have to discuss this problem of balancing different aspect of public interest a little later, but in the meanwhile let us continue with the examination of the decision in Sukhdev Singh's case (supra). Gajendragadkar, J. (as he then v/as) after pointing out that public interest was the sole foundation for the claim for protection under Section 123 proceeded to consider when a document can be said to be relating to "affairs of State" within the meaning of that section. The learned Judge observed that three different views are possible on this question. The first view is that documents relating to affairs of State are broadly divisible into two classes, one the disclosure of which will cause no injury to public interest and which may therefore be described as innocuous documents and the other the disclosure of which may cause injury to public interest and may therefore be described as noxious documents; it is the head of the department who decides to which class the document in respect of which the claim for protection against disclosure is made, belongs; if he comes to the conclusion that the document is innocuous, he will give permission for its production; if, however, he comes to the conclusion that the document is noxious, he will withhold such permission; in any case the court does not materially come into the picture. The second view is that documents relating to affairs of State should be confined only to the class of noxious documents and when a question arises, it is for the court to deter mine the character of the document and if necessary, to enquire whether its disclosure would lead to injury to public interest, The third view which does not accept either of the two extreme positions would be that the court can determine the character of the document and if it comes to the conclusion that the document belongs to the noxious class, it may leave it to the head of the department to decide whether its production should be permitted or not, for it is not the policy of Section 123 that in the case of every noxious document, the head of the department must always withhold permission. The learned Judge then proceeded to consider which of the three views represents the correct legal position and for that purpose, turned to examine Section 162 and after discussing the true import of that section and holding that where an objection to the disclosure of a document is raised under Section 123 on the ground that it relates to affairs of State toil cannot (SIC)pect the (SIC)dreaming for the purpose of deciding the objection, the learned juge(SIC) accepted the third view as courses and sammarised his conclusion in the following words:

The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any Court.
The Court cannot, having regard to this constitutional provision, embark upon an inquiry as to whether any and if so what advice was tendered by the Council of Ministers to the President and since the reasons which have prevailed with the Council of Ministers in taking a particular decision not to continue an additional Judge for a further term would form part of the advice tendered to the President, they would be beyond the ken of judicial inquiry. But the Government may in a given case choose to disclose these reasons or it may be possible to gather them from other circumstances, in which event the Court would be entitled to examine whether they bear any reasonable nexus with the question of appointment of a High Court Judge or they are constitutionally or illegally prohibited or extraneous or irrelevant. But if these reasons are not disclosed by the Government and it is otherwise not possible to discover them, it would be impossible for the Court to decide whether the decision of the Central Government not to appoint an additional Judge for a further term is based on irrelevant grounds. There would however not be much difficulty by and large in cases of this kind to gather what are reasons which have prevailed with the Central Government in taking the decision not to continue an additional Judge. Article 217 requires that there must be full and effective consultation between the president, that is, the Central Government on the one hand and the Chief Justice of the High Court, the Governor, that is, the State Government and the Chief Justice of India on the other and the "full and identical facts" on which the decision of the Central Government is based must be placed before the Chief Justice the High Court, the State Government and the Chief Justice of India, The reasons which the Central Government is inclined to take into account for reaching a particular decision have therefore necessarily to be communicated to the Chief Justice of the High Court, the State Government and the Chief Justice of India and in the circumstances, it should ordinarily be possible for the Court to gather from such communication, the reasons which have persuaded the Central Government to take its decision. Of course there may be cases where there are several reasons discussed between the Central Government and the three constitutional authorities and some of these reasons' may be relevant, while some others may be irrelevant and without inquiring into the advice given by the Council of Ministers to President, it may not be possible to determine as to what are the reasons, relevant or irrelevant, which have weighed with the Central Government in taking its decision and in such a case, the Court may not be able to pronounce whether the decision of the Central Government is based on irrelevant grounds. But ordinarily the correspondence exchanged between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India would throw light on the question as to what are the reasons' which have impelled the Central Government to take any particular decision regarding the continuance of an additional Judge. This correspondence would also show whether the "full and detailed facts" on which the decision of the Central Government is based were placed before the Chief Justice of the High Court, the State Government and the Chief Justice of India before they gave their opinion in the course of the consultative process, Of course if the communication between the Central Government, the Chief Justice of the High Court, the State Government and the Chief Justice of India has not taken place by correspondence but. has been the subject matter of only oral talk or discussion, it would become impossible for the Court to discover the reasons which have weighed with the Central Government in taking the decision not to continue the additional Judge for a further term, unless of retires the Central Government chooses to disclose such reason and it would also become extremely difficult for the Court to decide whether the "full and detailed facts" on which the decision of the Central Government is based were placed before the other three constitutional authorities and there was full and effective consultation as required by Article 217. The Court would then have to depend only on such affidavits as may be filed before it and the task of the Court to as-certain the truth would be rendered extremely delicate and difficult, as it has been in the writ petitions challenging the transfer of Mr. Justice K.B.N. Singh, Chief Justice of patna High Court. It is not at all desirable that when the Chief Justice of the High Court or the Chief Justice of India has to communicate officially with the State Government or the Central Government in regard to a matter where he is discharging a constitutional function, such communication should be only by way of oral talk or discussion unrecorded in writing. We thank it absolutely essential that such communication must, as far as possible, be in writing, whether by way of a note or by way of correspondence. The process of consultation, whether under Article 217 or under Article

222. must be evidenced in writing so that if at any point of time a dispute arises as to whether consultation had in fact taken place or what was the nature and content of such consultation, there must be documentary evidence to resolve such dispute and an ugly situation should not arise where the word of one constitutional authority should be pitted against the word of another and the Court should be called upon to decide which of them is telling the truth. Oral talk or discussion may certainly take place between the Central Government and any other constitutional authority required to be consulted but if must be recorded immediately either in a note or in correspondence. Besides eliminating future dispute or controversy, the practice of having written communication or record of oral discussion ensures greater care and deliberation in expression of views and considerably reduces the possibility of improper or unjustified recommendations or unholy confabulations or conspiracies which might be hidden under the veil of seereey... there were no written record Moreover, such a practice would tend to promote openness in society which is the hall-mark of a democratic polity. It would indeed be highly regrettable if, instead of following this healthy practice of having a written record of consultation, the Central Government or the Chief Justice of the High Court or the Chief Justice of India were to carry on the consultation process either on the telephone or by personal discussion without rendering it. But we find that fortunately in the present case, unlike K.B.N. Singh's case which falls for determination in the second batch of writ petitions, there was correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India in regard to the continuance of S.N. Kumar and the question is whether this correspondence forms part of the advice tendered by the Council of Ministers to the President so to be protected against disclosure by reason of Clause (2) of Article 74.

59. The argument of the learned Solicitor General was this correspondence did not form part of the advice tendered by the Council of Ministers to the President and he sought to support this argument by adopting the following process of reasoning. He said that the Council of Ministers cannot advice the President to appoint or not to appoint an additional Judge for a further term without consulting the Chief Justice of the High Court and the Chief Justice of India. It is only after consulting them that appropriate advice can be tendered by the Council of Ministers to the President. When advice is tendered by the Council of Ministers to the President, it is open to the President under the Proviso to Clause (1) of Article 74 not to immediately accept such advice butte require the Council of Ministers to reconsider the advice generally or otherwise. If in a given case the President finds that advice has been given by the Council of Ministers without consulting either the Chief Justice of the High Court or the Chief Justice of India or both or that there has been no full and effective consultation with them as required by the Constitution, he may and indeed he must, send the case back to the Council of Ministers and requite them to consider the advice after carrying out full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India. Now how can the President satisfy himself in regard to the fulfilment of the constitutional requirement of consultation with the Chief Justice of the High Court and the Chief Justice of India, unless the views expressed by the two Chief Justices are placed before him along with the advice tendered by the Council of Ministers. The exercise of the power of the President to appoint or not to appoint an additional Judge is so integrally connected with the constitutional requirement of full and effective consultation with the Chief Justice of the High Court and the Chief Justice of India that at no stage can it be delinked from the views expressed by them on consultation and it would not be possible for the President to exercise this executive power in accordance with the Constitution unless the views of the two Chief Justices are placed before him. On the basis of this reasoning and as a logical consequence of it, argued the learned Solicitor General, the views of the Chief Justice of Delhi and the Chief Justice of India obtained on consultation must be regarded as forming part of the advice tendered by the Council of Ministers to the President. The learned Solicitor General sought to draw support for his argument from the decision of a Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev Singh . We shall Presently refer to this decision but before we do so, let 115 examine the argument of the learned Solicitor General on principle.

60. There can be no doubt that the advice tendered by the Council of Ministers to the President is protected against judicial scrutiny by reason of Clause (2) of Article 74. But can it be said that the views expressed by the Chief Justice of the High Court and the Chief Justice of India on consultation form part of the advice. The advice is given by the Council of Ministers after consultation with the Chief Justice of the High Court and the Chief Justice of India. The two Chief Justices are consulted on "full and identical facts" and their views are obtained and it is after considering those views that the Council of Ministers arrives at its decision and tenders its advice to the President. The views expressed by the two Chief Justices precede the formation of the advice and merely because they are referred to in the advice which is ultimately tendered by the Counsel of Ministers, they do not necessarily become part of the advice. What is protected against disclosure under Clause (2) of Article 74 is only the advice tendered by the Council of Ministers. The reasons which have weighed with the Council of Ministers in giving the advice would certainly form part of the advice, as held by this Court in State of Rajasthan v. Union of India . Vide the observations of Beg C.J. at; p. 46 (of SCR): (at p, 1392 of AIR). Chandrachud J. (as he then was) at page 91 (of SCR): (at p. 1420 of AIR) Fazal Ali, J. at pp. 120 and 121 (of SCR) : (at pp. 1440, 1441 of AIR) where all the three learned Judges took the view that by reason Clause (2) of Article 74 the Court would be barred from inquiring into the grounds which might weigh with the Council of Ministers in advising the President to issue a proclamation under Article 356, because the grounds would form part of the advice" tendered by the Council of Ministers. But the material on which the reasoning of the Council of Ministers is based and the advice is given cannot he sad to form the part of advice, The point we are making may be illustrated by taking the analogy of a judgment given by a Court of Law, The judgment would undoubtedly be based on the evidence led before the Court and it would refer to such evidence and discuss it but on that account can it be said that the evidence forms part of the Judgment? The judgment would consist only of the decision and the reasons in support of it and the evidence On which the reasoning and the decision are based would not be part of the judgment Similarly the material on which the advice tendered by the Council of Ministers is based cannot be said to be part of the advice and the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India which constituted the material forming the basis of the decision of the Central Government must accordingly he held to be outside the exclusionary rule enacted in Clause (2) of Article 74.

61. We may now refer to the decision of the Constitution Bench of this Court in the State of Punjab v. Sodhi Sukhdev Singh
(supra) on which the greatest reliance was placed by the learned Solicitor General in support of his plea based on Clause (2) of Article
74. The respondent who was the District and Sessions Judge in the erstwhile state of Pepsu was removed from service by an order dated 7th April 1953 passed by the President who was then in charge of the Administration of the State. The respondent made a representation against the Order of removal which was considered by the Council of Ministers of the State as in the meantime the President's rule had come to an end and the Council of Ministers expressed its views in a Resolution passed on 28th Sept. 1955, But before taking any action it invited the Report of the Public Service Commission. On receipt of the Report of the Public Service Commission the Council of Ministers considered the matter again and ultimately on 11th Aug. 1956 it reached the final conclusion against the respondent and in accordance with the conclusion, the order was passed to the effect that the respondent must be re-employed on some suitable post. The respondent thereupon instituted a suit against the successor State of Punjab for a declaration that his removal from service was illegal and in that suit he filed an application for the production of certain documents which included inter alia the proceedings of the Council of Ministers dated 28th Sept. 1055 and 11th Aug. 1956 and the Report of the Public Service Commission. The State objected to the production of these documents and ultimately the matter came before this Court. C(SIC)ajen-dragadkar, J. (as he then was) speaking on behalf of the majority of the Court upheld the claim of privilege put-forward on behalf of the State and so far as the Report of the Public Service Commission was concerned, the learned Judge held that it was protected against disclosure both under Clause (3) of Article 163 and Section 123 of the Indian Evidence Act, We are at present concerned only with the claim for protection under Clause (3) of Article 183 because that is an Article which corresponds to Clause (2) of Article 74 in so far as advice by the Council of Ministers to the Governor is concerned. The learned Judge speaking on behalf of the majority, accorded protection to the report of the Public Service Commission under Clause (3) of Article 163 on the ground that it formed part of the advice , tendered by the Council of Ministers to the Rajpramukh. This view taken by the majority does appear prima facie to support the contention of the learned Solicitor General, but we do not think we can uphold the claim for protection Put. forward by the learned Solicitor General by adopting a process of analogical reasoning from the majority view in this decision. In the first place, we do not know what were the circumstances in which the majority Judges came to regard the report of the Public Service Commission, as forming part of the advice tendered to the Rajpramukh. There is no reasoning in the judgment of the learned Judge showing as to why the majority held that the report of the Public Service Commission fell within the terms of Clause (3) of Article 163. The learned Judge has merely set out his ipse dixit, without any reasons at all, saying in just one sentence, "The same observation falls to be made in regard to the advice tendered by the Public Service Commission to the Council of Ministers." It is elementary that what is binding on the court in a subsequent case it not the conclusion arrived at in a previous decision but the ratio of that decision, for it is the ratio which binds as a precedent and not the conclusion. Secondly, we may point out that we find it (SIC)lfrcult to accept the view taken by the majority in this case. We are unable to appreciate how the report of the Public Service Commission which merely formed the material on the basis of which the Council of Ministers came to its decision as recorded in the proceedings dated 11th Aug. 1956 could be said to form part of the advice tendered by the Council of Ministers to the Rajpramukh, We do not think the learned Solicitor General can invoke the aid of this decision in support of his claim for protection under Clause (2) of Article 74.
62. That takes us to the next question whether the correspondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India is protected from disclosure under any other provision of law. We do not have in India any common law protection under the label of "Crown Privilege as it was known a decade ago and now castled "Public interest immunity" as there is in Eng-land and the only provision of law under which such immunity can be claimed is Section 123 of the Indian Evidence Act and. therefore, it is this provision which we must now turn to consider. But, before we do so, we would like to indicate the socio-political background in the context of which this section has to be interpreted. It is true that this section was enacted in the second half of the 1ast century but its meaning and content cannot remain static. The interpretation of every statutory provision must keep pace with changing concepts and values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing (SIC)octety which is undergoing rapid special and economic transformation. The language of a statutory provision is not a static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in a country like ours with the establishment of a democratic structure based on egalitarian values and aggressive developmental strategies, so must the meaning and content of the statutory provision undergo a change. It is elementary that law does not operate in a vacuum. It is not an antique to be taken dawn, dusted admired and put back on the shelf, but rather it is a powerful instrument fashioned by society for the purpose of adjusting conflicts and tensions which arise by reason of clash between conflicting interests. It is therefore intended to serve a social purpose and it cannot be interpreted without taking into account the social, economic and political setting in which it is intended to operate. It is here that the Judge is called upon to perform, a creative function. He has to inject flesh and blood in the dry skeleton provided by the legislature and by a process of dynamic interpretation, invest it with a meaning which will harmonies, the law with the prevailing concepts and values and make it an effective, instrument for delivery of justice. We need not therefore be obsessed with the fact, that Section 123 is a statutory provision of old vintage or that it has been interpreted in a particular manner some two decades ago. It is not as if it has once spoken and then turned into muted silence. It is an instrument which can speak again and in a different voice in the content of a different milieu. Let us therefore try to understand what voice this statutory provision speaks today in a democratic society wedded to the basic values enshrined in the Constitution.