1. Independence of Judiciary, scope and limitations of the concept-Basic structure of the Constitution Constitution of India, 1950, Preamble, Articles 124, 216, 217 222 and 224.

2. Public interest litigation-Right to challenge executive order action as affecting the independence of Judiciary by persons other than the aggrieved party- Locus standi of lawyers to raise issues like fixation of strength of Judges in each High Court, appointment and re-appointments, of additional Judges, short term appointments, transfer, etc. by means of petitions either under Article 226 or 32 of the Constitution of India, explained.

3. Public law-Protection against disclosure of documents claiming privilege-Evidence Act, sections 123 and 162, difference in Whether the Union of India could claim privilege in respect of the correspondence between the high dignitaries which formed the opinion regarding transfer of Judges grant of extension to the additional Judges-Constitution of India, Articles 19(1) (a), 74, 217 and 224.

4. Freedom of the press-Discussions based on the disclosed materials on the grounds on which recommendations were made to the President for not granting extension to the additional Judges, when the matter is sub-judice tantamount to trial by press, not authorised by law-Constitution of India, Articles 19(1) (a) and 32.

5. Consent to be appointed to any of the three preferred High Courts, as a Judge, by the proposed appointee and the sitting additional Judges-Validity of such a circular letter requiring consent, dated March 18, 1981, of the Law Minister-Constitution of India, 1950, Articles 217 and 222.

6. Constitution of India, Articles 216, 224, and 226-Appointment of High Court Judges-Difference between sitting additional Judges and proposed appointee for initial recruitment, explained.

7. Transfer of a Judge from one High Court to another-Constitution of India, 1950, Articles 222-Notification dated January 19, 1981 issued by the President of India transferring Mr. K.B.N. Singh, Chief Justice of Patna to Madras,validity of.

8. Constitution of India, Article 222(1)-Legal effect of an order of transfer of a Judge from one High Court to another.

9. High Courts-Inter se-status-All High Courts have same status- Constitution of India, Articles 224 (4), 1394(2), 214 (2) & (3) before deletion in 1956, 222, 366(14) 376, Schedule VII List I Entry 78, discussed.

10, Constitution of India, Article 222 (1)-Power to transfer a Judge, nature and extent of use, explained.

11. Constitution of India, Article 222, power to formulate general policy of transfers of Judges or Chief Justices from one High Court to another Article 222 vests such power.

12. Constitution of India, Article 222 (1)-The word "Chief Justice" is included in the expression "a Judge of the High Court"-Transfer of Chief Justice of High Court from one State to another, therefore, falls within the purview or Article 222(1) of the Constitution.

13. Constitution of India, Articles 215, 216 and Proviso (c) to Article 217 (1)-Whether Judges of the High Court constitute a single All India cadre for purpose of appointment and transfer.

14. Constitution of India, Article 222-Proposal for transfer of a Judge or Chief Justice of a High Court-The provisions of Article 222 must necessarily be complied with irrespective of the fact which authority initiates the proposal.

15. Constitution of India, Article 222 (2)-Transfer of a High Court Judge/ Chief Justice - Simultaneous fixation of compensatory allowance - Transfer order and an order fixing compensatory allowance need not be simultaneous.

16. Constitution of India, Article 217 (1) proviso (e) and Article 222- Distinction between "transfer" and "appointment"-Taking a fresh oath by a transferee Judge does not make a transfer a fresh appointment.

17. Onus probandi-Constitution of India, Article 222 (1) read with Evidence Act, sections 101 to 104-Onus of justifying transfer of a Judge is upon the State.

18. Constitution of India, Article 222 (1)-Transfer of a Judge-Advice tendered by the Chief Justice of India must, ordinarily, be accepted by the President of India.

19. Transfer of a Judge, on mare allegations of misbehaviour or incapacity which form subject matter of action under Article 218 read with Article 224-Transfer of a Judge under the guise of Article 222 is impermissible and liable to be quashed.

20. Transfer of a Judge, exercise of power under Article 222 of the Constitution, should be in public interest and not by way of punishment The word "consent" in Article 222 is a case of deliberate omission and not casus omissus.

21. Interpretation of statutes and/or constitutional provisions-Duty of the Supreme Court-Constitution of India, Article 141 and Preamble.

22. Interpretation of Constitution-Preamble to the Constitution Court must not bend language of Constitution according to its will.

23. Interpretation of statutes, when language is clear doctrine of casus omissus will cease to be applicable.

24. Interpretation of statutes-External aid, marginal note, reference to legislative debate, etc. as aid to interpretation of sections, admissibility of.

25. Interpretation of Constitution, rules regarding-Power conferred by Constitution upon authority cannot be denied on grounds of its misuse-Constitution of India, 1950.

26. Interpretation of Constitution-Constitutional conventions scope and its use as an aid to interpretation-Constitution of India.

27. Precedence-Judicial precedence-Value of Ratio and not the conclusion which binds-Constitution of India, Article 141.

28. Constitution of High Courts Strength of Judges-Whether a writ of mandamus can be issued against Union of India for fixing the strength of Judges in each High Court-Constitution of India, Articles 216, 32, 74 and 226, scope of Advice under Article 74 in the master of appointment of Judges is binding.

29. Constitution of India, Articles 224 (2), 227 (2) and 274 (2)-Additional Judges, their status and functions, explained.

30. Appointment of Additional Judges-Conditions precedent-Power of President when can be exercised-Constitution of India, Articles 217 and 224.

31. Appointment of Judges Appointment must be made by the Central Government only after effective consultation as required by Articles 124 and 227 read with 74-Whether the opinion of the Chief Justice of India has a primacy.

32. Appointment of additional Judges-Procedure regarding extension of tenure-Initiation well in time and in advance of proposals of recommendations or otherwise is a must-Constitution of India, Article 217 and 224.

Transfer of a Judge under the guise of Article 222 is impermissible and liable to be quashed.

33. Words and phrases "Consultation" Meaning of-Consultation should be meaningful, purposeful and result-oriented-Constitution, Articles, 217, 222 and 224.

34. Additional Judges Extension of term-Matters to be considered- Appointment of Judges to High Court being purely an executive function of President, Court cannot declare a sitting additional Judge to be deemed so have become permanent or direct the President to make him permanent.

35. Non-extension of the term of office of Mr. S.N. Kumar as an additional Judge of the Delhi High Court, validity of.

36. Constitution of India, Articles 217 and 224-Additional Judges, a right to be considered for fresh appointment-Short term extensions, propriety of justiciability of denial to grant extension.

37. Additional Judge-Non-extension of his term-Principle of natural Justice-There is no necessity to give him opportunity of hearing

38. Additional Judge of a High Court-Non-extension of the term of the Judge as additional Judge of the High Court-Integrity of the Judge doubted by the Chief Justice of High Court as disclosed before the Court Judge ready to establish his innocence and seeking opportunity from Supreme Court to do so-Supreme Court cannot grant such opportunity in view of its restricted jurisdiction in such cases-Constitution of India, Articles 32, 226 and 1394 jurisdiction of the Supreme Court, explained

39. Appointment of High Court Judges-Initial recruitment-Non-appointment of a person-Non-appointee aggrieved person has no standing and no writ of mandamus will issue at this instance.

40. Constitution of India, Articles 226 and 32-Courts have no powers to decide questions of pure academic Interest.

41. Constitution of India, Article 136-Powers of the Supreme Court to grant Special Leave Petition-High Court rejecting petition under Article 226 in limine on the ground that the petitioner was unable to produce documents beyond his reach on which he wanted to place reliance-Rejection of the petition if invalid S.L.P. could be granted.

42. Constitution of India, Article 226-Writ proceedings-Pleadings in the form of affidavits, counter-affidavits, rejoinder-affidavits, etc. filed by the parties to a writ petition also partakes of the character of the evidence in the case.

On March 18, 1981. Honorable Sri P. Shivshankar, Minister for Law, Justice and Company Affairs, Government of India addressed a circular letter to the Governor of Punjab and the Chief Ministers of all the States, except the North-Eastern States, requesting them to obtain the consent of additional Judges serving in the High Courts to their appointment as permanent Judges of other High Courts. Such consent was also required from persons who had already been proposed or may in the future to be proposed for initial appointment. The additional Judges, the proposed and the would-be-proposed for initial appointment were requested to indicate three High Courts, in order of preference, to which they would prefer to be appointed. It was made clear by the said circular letter that the furnishing of the consent or the indication of a preference would not imply any commitment on the part of Government either in regard to their appointment or in regard to accommodation in accordance with the preferences given.

Prior to, as well as after the issuance of the aforesaid circular letter by the Union Law Minister on March 18, 1981, in several High Courts, including High Courts of Allahabad, Bombay and Delhi, the President of India acting under Article 224 granted short-term extensions for three months, six months or a year to sitting additional Judges whose initial terms were about to expire. Relying on the letter dated May 7, 1981 of the Chief Justice of Delhi High Court, Mr. Justice S.N. Kumar, Additional Judge of the Delhi High Court was finally not given further appointment. Similarly, Mr. Justice O.N. Vohra. Additional Judge of the same High Court was also not re-appointed after the expiry of his tenure of appointment.

Earlier, in exercise of the power conferred by Article 222 (1) of the Constitution the President of India by his order dated January 19, 1981 transferred Mr. Justice M.M. Ismail, the then Chief Justice of the Madras High Court as Chief Justice of the Kerala High Court and also Mr. Justice K.B.N. Singh, Chief Justice of Patna High Court as Chief Justice of the Madras High Court with effect from the date they assumed charges of their respective offices.

Since such short-term extensions became a frequent phenomenon, particularly after the issuance of the circular letter dated March 18, 1981, it created great consternation in the legal and judicial circles in the country. These two actions of the Union Government, namely, the issuance of the circular letter dated March 18, 1981 and the grant of short-term extensions led to legal action being taken challenging their constitutional validity by individual lawyers, by Bar Associations in a representative capacity. Having regard to their high positions as a constitutional functionary all the sitting Additional Judges in various High Courts, though agitated by these two actions of the Union Government understandably felt reluctant to adopt legal steps against said circular letter as well as the short-term extensions. Mr. Justice O.N. Vohra, Additional Judge of the Delhi High Court, did not join issue when he was dropped outright, while Mr. Justice S.N. Kumar as a party-respondent to the Writ Petition filed in Delhi High Court actively supported the challenge to these actions and also the further action of dropping him outright during the pendency of the petition.

Though the transfer order dated January 19, 1981 in respect of the two Chief Justices was also challenged, Mr. Justice M.M. Ismail refused to take part as a party-respondent and chose to resign his high office, while Mr. Justice K.B.N. Singh actively opposed the orders of transfer by tramposing himself as petitioner No. 3 to the petition.

Details of the several cases filed were:

(i) Transferred case No. 19 of 1981 was filed by Sri S.P. Gupta, an Advocate of the High Court at Allahabad. While challenging the validity of the circular letter of March 18, 1981 it was contended (a) that the President has failed to appoint the necessary number of permanent and additional Judges of the High Court of Allahabad in accordance with Article 216 and clause (1) of Article 224 of the Constitution; (b) the appointments of some of the additional Judges of the High Court for short-terms of six months only was bad and they should have been appointed as permanent Judges, and (c) a declaration should be issued to the effect that three Additional Judges, Mr. Justice Murali Dhar, Mr. Justice A.N. Verma, Mr. Justice N. N. Mittal be deemed to have been appointed as permanent Judges.

(ii) Transferred case No. 20 of 1981 was filed by Sri V.M. Tarkunde, a senior Advocate of the Supreme Court, as a Writ Petition in the High Court of Delhi assailing the circular and the appointments of three Additional Judges, Sri O.N. Vohra, Sri S.N. Kumar and Sri S.B. Wad for a further period of three months only. It was prayed that the posts of additional Judges in the several High Courts be converted into permanent posts.

(iii) In Transfer Case No. 21 of 1981, Shri J. L. Kaira and a few other advocates filed as a Writ Petition in the High Court of Delhi, it was prayed that a mandamus be issued to the Union Government to create an adequate number of posts of permanent and additional Judges and to make appointments to those posts.

(iv) Transferred Case No. 22 of 1981, was filed as a Writ Petition in the High Court of Bombay by four advocates, Sri Iqbal M. Chagla, Sri C.R. Dalvi, Sri M.A. Rana and Sri Sarab K.G. Modi questioning the validity of the circular dated March 18, 1981 and have prayed inter alia for a declaration that the circular letter is ultra vires and void and that the Union Government should be directed not to act on the consent conveyed by the additional Judges.

These four cases constitute a group raising substantially common points of consideration arising out of interpretation of Articles 124, 216, 217 and 224 of the Constitution

(v) The Second group also constituted of four cases led by Writ Petition No. 274 of 1981 filed by Miss Lily Thomas an Advocate practising in the Supreme Court of India, under Article 32 of the Constitution. She challenged the transfer of Sri M.M. Ismail, Chief Justice of the Madras High Court, to Kerala High Court as Chief Justice, Sri M.M. Ismail filed an affidavit stating that he has decided not to proceed to Kerala, nor to challenge the validity of the order of the President transferring him but to proceed on leave preparatory to retirement. Shri M.M. Ismail has resigned since.

vi) Transfer Case No. 2 of 1981 was filed as a Writ Petition in the High Court of Madras by one Mr. A Rajappa, an Advocate, praying for a declaration that the order of the President transferring Sri M.M. Ismail from the High Court of Madras and Sri K.B.N. Singh, Chief Justice of the Patna High Court to Madras High Court was void.

(vii) Transferred Case No. 6 of 1981 was another Writ Petition filed by Sri P. Subramaniam praying for similar reliefs as Sri Rajappa in Transfer Case No. 2 of 1981.

(viii) Two Advocates Sri D.N. Pandey and Sri Thakur Ramapathi Sinha, filed Transferred Case No. 24 of 1981 in the High Court at Patna challenging the order of transfer of Sri M.M. Ismail from the High Court of Madras to the High Court of Kerala and of Sri K.B.N. Singh from the High Court at Patna to the High Court of Madras. During the pendency of this Writ Petition, Sri K.B.N. Singh, who has been impleaded as a respondent was transposed as a petitioner, and

(ix) Special Leave Petition No. 1509 of 1981 filed by Ripudaman Prasad Sinha is directed against an order passed by the High Court at Patna rejecting in limine the Writ Petition of the petitioner challenging the constitutional validity of the order of transfer of Chief Justice K.B.N. Singh, on the ground that he had not been able to produce the documents on which he wanted to place reliance.

Several contentions raised in these Writ Petitions are:

(1) The actions of the Union Government forming part of a scheme constitute a direct attack on the independence of judiciary, which is a basic feature of a constitution.

(ii) The circular dated March 18, 1981, seeks to effect, in substance and reality, a mass transfer of sitting Additional Judges as also the proposed appointees based on a policy decision unilaterally taken by the Law Minister/ Union Government and as such violates the requirements of Article 222(1) of the Constitution as laid down by the Supreme Court in Sankal Chand's case [1978] 1 S.C.R. 423 in as much as such mass transfers on alleged grounds of policy are outside its scope and further it reduces the efficacy of the consultation with the Chief Justice of India contemplated therein to a meaningless formality by presenting a transfer proposal to him as a fair accompli, the same being backed by the consent of the concerned judge or the proposed appointee to his transfer.

(iii) The circular letter was without the authority of law.

(iv) The circular letter, as far as the sitting of Additional Judges are concerned, contains by implication a threat to them (a) that if they do not give their consent they will not be either continued as Additional Judges or confirmed as Permanent Judges: (b) that the Government would watch their performance in matters to which the Government, Government bodies and Corporations are parties before them and would appoint them as Permanent Judges only if they were found to toe the Government line and as such it constitutes gross interference with administration of justice and is subversive of judicial independence.

(v) The circular letter seeks to obtain consent under threat, coercion and duress and also in advance and in abstract and the same would be no consent in law.

(vi) As regards the proposed appointees it introduces an additional qualification for being appointed as Additional or Permanent Judge not warranted by the Constitution.

(vii) The circular letter was written mala fide for a collateral purpose to by pass Article 222 and further to exercise the power of appointing additional judges not for the purpose for which that power has been confirmed but for the purpose of carrying out the so-called "policy" of the Government and is therefore mala fide in the sense that the power is being exercised for a collateral purpose foreign to the purpose indicated in Article 224.

(viia) The circular letter under which absolute power and discretion is claimed to the effect that there is no obligation on the part of the Union Government to continue the sitting additional Judges after the expiry of their initial term notwithstanding pendency of arrears of work or to make them permanent as and when permanent vacancies become available and to appoint different persons for different periods of additional Judges in the vacancies of sitting additional Judges after their initial terms have expired, is a clear abuse of the power conferred by Article 224 (1) of the Constitution, because the power, being purposive is coupled with a duty to exercise the same when the conditions precedent mentioned in provision exist and the circular letter which claims such absolute power is violative of the provisions of Article 224, in any case the course of action proposed in the said circular letter in exercise of such absolute power claimed thereunder is contrary to the established constitutional convention and practice that has grown over the years in the matter of appointment of Additional Judges and, therefore, bad in law inasmuch as Article 224 (1) has been interpreted and worked having regard to the said convention and practice.

(viii) The circular letter is violative of Article 14 of the Constitution in as much as it makes invidious discrimination against those who would be refusing to furnish their consent as they will suffer a disadvantage, while those who would be furnishing their consent would stand to gain, it gives to the Government unfettered and unguided power or discretion to pick and choose i.e. select some for being shifted to High Courts other than their home-State High Courts and to retain and appoint other in their home-State High Courts which power can be exercised either by way of punishment or by way of favouritism.

(ix) In the appointment of Additional Judges of one High Court as Permanent Judges of another High Court or in the appointments of the members of the Bar practising in one High Court us Additional or Permanent Judges of another High Court pursuant to the consent obtained under the said circular letter, the consultation with the Governor of that other State and particularly with the Chief Justice of that other High Court would be illusory and an empty formality and as such circular letter is violative of Article 217 of the Constitution.

(x) The short-term extensions are directly subversive of the independence of Judiciary and not contemplated by the Constitution.

(xi) A member of the Bar who accepts the appointment of an Additional Judge has legitimate expectation that he will be confirmed as Permanent Judge of that High Court when a vacancy occurs and in the past he has been confirmed except in the rarest of cases. The power claimed under Article 224 (1) not to continue the Additional Judges, even if temporary increase in the Court's business persists or pendency of arrears justifies such continuance after the expiry of the initial term and not to make him permanent even if a vacancy of permanent post occurs and to appoint another person as Additional Judge by ignoring the legitimate expectancy of the sitting incumbent whose initial term has expired, apart from involving an unjustified departure. from the well recognised and established practice, amounts to breach of faith with the concerned Judge and further to ask such Additional Judge who has given such undertaking to agree in advance to a transfer (or even to accept fresh appointment) to other High Courts as a Permanent Judge also involves similar breach of faith amounts to a clear abuse of power and the purported exercise of the power in that manner would be illegal and void.

(xii) The claim made by the Government that Article 224 (1) only fixes the maximum period of two years at a time, that the Article does not limit the discretion of the Government in the matter of the period for which an Additional Judge can be appointed except in regard to the ceiling of two years and that the appointment can be for a shorter period and that period is not justiciable is untenable in law and clearly wrong because, apart from involving an unjustified departure from the well recognised and established practice, it introduces an element of insecurity of tenure having serious repercussions on the independence of Judiciary and also undermines people's confidence and faith in it.

(xiii) Article 216 of the Constitution casts a primary obligation upon the President mandatorily to provide adequate strength of Permanent Judges to cope with the normal business in every High Court so as to ensure its disposal within reasonable time and to review such strength from time to time so that arrears do not accumulate and justice to litigants is not unduly delayed. When the objective facts unmistakably demonstrate that the increase of business every year or that the arrears have increased and accumulated to an appreciably disturbing level with no reasonable prospects of substantially reducing the same over a period of years, the President cannot resort to Article 224 (1) but has to increase the permanent strength by making permanent appointments under Article 217. In any case Additional Judges cannot be appointed while keeping permanent posts vacant.

(xiv) To keep a large number of sitting Judges as Additional Judges would be arbitrary and unconstitutional and a clear case exists for declaring them to be deemed to have become permanent.

(xv) Article 222 (1) does not refer to a Chief Justice hence the order dated 19-1-1981 is outside its purview.

(xvi) Since Article 222 (1) properly construed, covers only consensual transfers, the transfer order dated 19-1-1981 which is admittedly non-consensual, is bad in law.

(xvii) The transfer dated 19-1-1981 was not effected in public interest.

(xviii) The transfer has been effected without full and effective consultation contemplated by Article 222 (1) and therefore the procedure followed in effecting the same did not ensure fairplay in relation to K.B.N. Singh and the transfer is punitive in character.

The contesting respondents raised a preliminary objection as to maintainability of the petitions inasmuch as the advocates had no locus standi and as to the request for disclosing certain correspondence in the case of S.N. Kumar, Additional Judge, of the Delhi High Court, the respondents claimed privilege under sections 123 and 162 of the Evidence Act.

Dismissing the petitions, the Court, while agreeing that (a) the petitioners being advocates had a 'standing' to challenge the validity of circulars; (b) independence of Judiciary is the founding faith of the Constitution and the power to appoint Judges is executive in the nature and the President is bound by the advice of the Cabinet by virtue of Article 74; (c) As to appointment and extension of Additional Judges, consultation with constitutional functionaries must be meaningful and result-oriented, none of them can exercise veto in the matter and the proposal can emanate from any of them and (d) transfer must be in public interest, not by way of punishment and personal inconvenience, language problem and other factors should be taken into consideration.