N.Kannadasan Vs. Ajoy Khose & Ors. [2009] INSC 966 (6 May 2009)
Judgment
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7360 OF 2008 N. Kannadasan ..... Appellant Versus Ajoy Khose and others .... Respondents WITH CIVIL APPEAL NO. 7368 OF 2008 N. Kannadasan ..... Appellant Versus Anna Mathew and others .... Respondents WITH CIVIL APPEAL NO. 7371 OF 2008 Government of Tamil Nadu rep. by its Secretary ..... Appellant Versus Ajoy Khose and others .... Respondents AND CIVIL APPEAL NO. 7372 OF 2008 Government of Tamil Nadu rep. by its Secretary ..... Appellant Versus Anna Mathew and others .... Respondents
S.B. SINHA, J.
INTRODUCTION Justiciability of the recommendations of the Chief Justice of Madras High Court for appointment of Shri N. Kannadasan (the appellant) as the President of the State Consumer Disputes Redressal Commission (`the Commission') in terms of Section 16 of the Consumers Protection Act, 1986 (`the Act') is the question involved herein.
BACKGROUND FACTS :
The said question arises in the following factual matrix.
The appellant was an Advocate practicing in the Madras High Court.
He was appointed as an Additional Judge of the said Court for a period of two years on or about 6th November, 2003. During his tenure as an Additional Judge a representation was made from the Members of the Bar alleging lack of probity against him inter alia contending :
(A) (i) several orders had been passed by him granting bail in Narcotic Drugs and Psychotropic Substances 2 (NDPS) matters in contravention of the mandate laid down in Section 37 of the NDPS Act despite the refusal of bail on earlier occasions either by him or by other Judges ;
(ii) bail granted by him had subsequently been cancelled by other Judges ;
(iii) Abuse of office to work the judicial system to his own benefit through his former juniors (B) Adverse reports from intelligence agencies.
Indisputably he was not appointed as a Permanent Judge as a result whereof demitted his office on 5th November, 2005. He resumed practice in Madras High Court. On a query made by the High Court as to whether the appellant was entitled to pensionary and other benefits, the Government of India by its letter dated 29th March, 2007 replied that he be treated at par with the retired Judges of the High Court for the purposes of obtaining medical benefits but would not be entitled to any pensionary benefits.
In the meantime on or about 6th November, 2006 he was appointed as an Additional Advocate General of the State of Madras. Appellant intended to have his name included in the list of retired Judges wherefor he wrote a letter to the Registrar General of the Madras High Court on 24th May, 2008.
Indisputably his name was included in the said list by a Resolution adopted in that behalf by the Full Court on 11th July, 2008.
PROCEEDINGS FOR APPOINTEMNT Before the post of President of the Commission fell vacant, the Government of Tamil Nadu by a letter dated 30th May, 2008 requested the Registrar General of the High Court to forward names of eligible candidates for appointment as President of the Commission. The said post, however, fell vacant only on 5th July, 2008.
A note prepared by the Registry of the said Court as contained in Roc.341/2008 dated 14th July, 2008 refers to the letter of the Government dated 30th May, 2008.
Upon quoting Section 16 of the Act, it proceeds as follows:
"In view of the above, if your Lordship is so pleased, willingness may be called for from the Hon'ble judges retired in or after the year 2006, so that, if appointed they may have a tenure of not less than 2-1/2 years.
It is further submitted that the Hon'ble Thiru Justice N. KANNADASAN, Former Judge, who has completed 2 years of service as Additional Judge, High Court of Madras ceased to hold the Office on and from 06.11.2005. His Lordship's date of birth is 15.11.1955.
Further, it is submitted that the Hon'ble Thiru Justice N. KANNADASAN, Former Additional Judge, High Court, Madras and now Additional Advocate General has addressed a letter to the Registry in connection with the inclusion of His Lordship's name in the category of Retired/Former Judge etc.
As directed by your Lordship, the said matter was placed before the full court which was held on 11th July, 2008 and minuted as follows:
Considered the representation of Hon'ble Thiru Justice N. KANNADASAN, Former Judge of the High Court in the light of the communication of Ministry of Law and Justice, Government of India dated 29.03.2007.
Discussed the matter It is resolved that the name of Hon'ble Thiru Justice N. KANNADASAN be included as one of the Retired Judges of the High Court in the records of this Registry.
Further, it is submitted that the list of Hon'ble Judges, retired during 2006 and 2007 is submitted below 2006:
1. Hon'ble Thiru Justice T.V. MASILAMANI (Chairman DRAT) - 29.05.2006 Chairman, DRAT
2. Hon'ble Thiru Justice A.R. RAMALINGAM - 12.11.2006 - 2007 1.Hon'ble Thiru Justice M. HANIKACHALAM, (Admission Committee) - 07.03.07
2. Hon'ble Thiru Justice J.A.K. SAMPATHKUMAR (Chairman, Human Rights Commission, Puducherry) - 05.05.2007 5 3.Hon'ble Thiru Justice R. BALASUBRAMANIAN (Advisor, State Legal Services Authority) - 15.08.2007
4. Hon'ble Thiru Justice N. KANNADASAN (D.O.B. - 15.11.1955) - 05.11.2005 The term of Office of the President of the State Consumer Dispute Redresssal Commission will be 5 years or up to the age of 67 years.
In this connection, it is respectfully submitted for consideration and orders.
Whether:- the list of retired Hon'ble Judges except Hon'ble Thiru Justice T.V. MASILAMANI (Chairman DRAT) and including N.
Kannadasdan, Former Additional Judge may be forwarded to the Government, for consideration for the post of President of State Consumer Dispute Redressal Commission.
Sd/- SO J Sd/- 14.07.2008 15.06.2008 Regr A I send the panel of three retired Judges of this Hon'ble Court
1. Justice A.R. Ramalingam
2. Justice M. Thanikachalam
3. Justice N. KANNADASAN Sd/- CJ 16.06.2008"
The Government of Tamil Nadu appointed Shri Kannadasan as the president of the Commission by issuing G.O. Ms. No.144 on 26th July, 2008.
WRIT PROCEEDINGS Three writ petitions were filed by some Legal Practioners before the Madras High Court.
Writ Petition No.18731 of 2008 was filed by one Anna Mathew and ten others for issuance of writ of Quo Warranto against Shri Kannadasan requiring him to show the authority to hold the office of President of the Commission and consequently declaring G.O. Ms. No. 144 of 26th July, 2008 as illegal and unconstitutional.
Writ Petition No.21495 was filed by one R. Jaikumar and seven others for issuance of writ of declaration to declare that the decision taken by the Full Court of the Madras High Court in July, 2008 to treat Sh. Kannadasan as a retired judge is unconstitutional and non-est in law.
Writ Petition No.21504 of 2008 was filed by Ajoy Khose and three others for issuance of a writ of declaration declaring G.O. Ms. No.144 dated 26th July, 2008 issued by the Government of Taml Nadu as illegal and ultra vires of the Constitution of India.
The Chief Justice of the High Court initially was impleaded as a party in the said proceedings but later on his name was deleted.
7 By reason of the impugned judgment dated December 12, 2008 Writ Petition Nos. 18731 of 2008 and 21504 of 2008 have been allowed while Writ Petition No. 21495 of 2008 has been dismissed.
Before the High Court averments touching upon the lack of integrity and honesty on the part of the appellant were made by the writ petitioners.
The High Court, however, did not think it necessary to consider them in detail.
QUESTIONS BEFORE THE HIGH COURT :
Before the High Court, the writ petitioners-respondents raised the following questions :- "i) Whether the earlier recommendations of the Constitutional functionaries under Article 217, viz. the Chief Justice of the High Court and the Chief Justice of India and the Collegium of the Supreme Court and of the Central Government that a person should not be considered as a Judge on grounds of unsuitability and as being public interest, are not vital and decisive considerations that should weigh with the Chief Justice of the High Court in considering the same person for appointment to any judicial office under the Consumer Protection Act, 1986 or any other similar offices in other Tribunals & Commissions ? 8 ii) Since an independent and fair judiciary is part of the basic structure of the Constitution of India, can a person found wanting in the necessary intellectual and moral requirements to be a Judge, be considered again for any other judicial office ? iii) If the Government considers and appoints such a person to any judicial office, would it not amount to interfering with the independence of the judiciary contrary to Article 50 of the Constitution of India ? iv) Whether the expression "is or has been a Judge of the High Court" in Section 16 would include even a Judge, who had demitted office on account of impeachment or unsuitability to hold a judicial office ? v) Whether an Additional Judge can be considered as a retired Judge to be eligible for appointment to judicial offices in various Tribunals and Commissions ?"
The High Court inter alia formulated the following three questions for its consideration :- "(1) Whether Respondent No. 1 was ineligible to be appointed as the President of the State Consumer Disputes Redressal Commission? (2) Whether the requirement of consultation with the Honourable the Chief Justice had been fulfilled ? (3) Whether the appointment of Respondent No. 1 can be declared illegal and invalid on the ground that such appointment was against public interest? FINDINGS OF THE HIGH COURT Re : Question No.1 Upon considering a few decisions of this Court as also the provisions of the Constitution of India vis-`-vis Section 16 of the Act, the High Court held that having regard to the fact that an additional judge appointed for a period of two years can revert back to practice and would be entitled to appear before any court of law including the lower courts, there existed a distinction between a Permanent Judge and an Additional Judge. Section 16 of the Act requires that the President of the Commission, be a person `who is or has been a judge' and accordingly an additional judge who has demitted office being not a retired judge, could not have been appointed. Although a literal interpretation having regard to the decision of this Court S.P. Gupta v. Union of India, [(1981) Supp. SCC 87] may lead to the conclusion that an additional judge would be deemed to be a judge of the High Court for all purposes, in a case of the nature before it, the principle of purposive interpretation should be applied as it would indeed be a travesty of all canons of principles of jurisprudence if it is held, by adopting a cussedly narrow literal interpretation, that a person who was found by the appropriate Constitutional functionaries, which includes the Chief Justice of the High Court and the Collegium of the Supreme Court, unsuitable to be continued as an additional Judge yesterday, is eligible today for being appointed as ad- hoc Judge, for which only a retired Judge is eligible, on the specious plea, that the person "has held the office of a Judge".
Re :- Question No.2 The High Court noticed that no affidavit has been filed by the Chief Justice of the High Court or on his behalf. Upon taking into consideration the correspondences entered into by and between the State and the Registry leading to the sending of the panel by the Chief Justice, it was held :- "78. Judged in the light of the discussion made earlier, the inevitable conclusion is that there has not been any effective consultation mainly on account of the fact that the Consultee, namely, the Honourable the Chief Justice has recommended the name of Respondent No. 1 without at all considering the background as available in the High Court records regarding the circumstances under which there was no extension of the term of Respondent No. 1. It is no doubt true that this Court is neither required nor expected to consider the desirability of a person to be appointed for a particular post as that is a matter for the authorities concerned; (in this case the State Government and the Honourable the Chief Justice) to consider. But, where a decision itself is thickly clouded by non- consideration of the most relevant and vital aspect, the ultimate appointment is vitiated not because the appointee is not desirable or otherwise, but because mandatory statutory requirement of consultation has not been rendered effectively and meaningfully. Therefore, even assuming that Respondent No. 1 was theoretically eligible for 11 being considered, the process of consultation having been vitiated, the ultimate order is also vulnerable."
Re : Question No.3 The records produced by the Additional Solicitor General appearing for the Central Government and the learned counsel for the High Court, despite the fact that no privilege had been claimed, the High Court did not think it fit to permit the counsel for the contesting parties to peruse the same as in its opinion it would open a collateral battle on the question relating to confirmation of Shri Kannadasan which was not and could not be an issue.
It was opined :
(A) Indisputably the allegations made in the said writ petitions that Shri Kannadasan is not entitled to be considered for the post of the chairman of the commission would have to be accepted; his tenure as additional judge and/or appointed as a permanent judge, having not been confirmed, on the basis of the allegations touching upon his integrity and honestly.
(B) An additional judge who had demitted the office on the expiry of the term being not a permanent judge was ineligible for appointment in terms of Section 16 of the Act.
(C) The recommendations. made by the Chief Justice of the High Court is vitiated in law as before him all the relevant records relating to his non- appointment as permanent judge and demission of office were not placed and thus the decision making process became vitiated.
On the basis of the said findings, Writ Petition No.18731 of 2008 and Writ Petition No.21504 of 2008 were allowed.
Writ Petition No.l2149 of 2008 for a declaration that the Full Court Reference dated 11.07.2008 was unconstitutional was, however, dismissed.
Government of Tamil Nadu and Shri Kannadasan are before us in these four appeals.
SUBMISSIONS Mr. K.K. Venugopal and Mr. U.U. Lalit, learned senior counsel appearing for the appellants, inter alia, would contend :-
1. Having regard to the constitutional scheme contained in Articles 216 to 224A of the Constitution of India, a permanent judge as also an additional judge would be a judge for all purposes including power;
salary; remuneration; judicial functions; control over the subordinate judiciary etc.
2. An Additional Judge does not cease to be a judge of the High Court only because he was not re-appointed as a Permanent Judge thereof.
3. As an Additional Judge of a High Court is not appointed on probation, the High Court committed a serious error in applying in the theory of `confirmation in service' which is foreign to the concept of appointment and status of a High Court judge.
4. A writ of Quo Warranto could be issued only when a candidate does not specify the requisite eligibility criterion specified in the statute.
5. Suitability or otherwise of a candidate appointed by the State in exercise of its statutory power cannot be a subject matter of judicial review, far less for the purpose of issuance of a writ of quo warraanto.
6. The consultative process having been initiated by the Chief Justice of the High Court by recommending a panel of 3 names, the State was within its right to select any one of them as President of the Commission. Recommendations of the Chief Justice of the High Court for appointment to a statutory post being discretionary and based on his subjective satisfaction, the High Court committed a serious error in opining that the Chief Justice should have called for the records/files leading to Shri Kannadasan's non-appointment as a permanent judge.
7. The High Court itself having held that the records produced by the High Court and/or the State could not have been shown to the writ petitioners as the suitability of Shri Kannadasan was not justiciable, committed a serious error in arriving at a different conclusion in regard to his eligibility in terms of the Constitution of India as also the 1984 Act relying on or on the basis of the purported records of his suitability.
Mr. Anil Diwan, learned senior counsel appearing on behalf of the writ petitioners-respondents, on the other hand, urged :- i) The constitutional provisions make a distinction between a permanent judge and an additional judge who had not been made permanent for one reason or the other.
ii) Section 16 of the Act while using the terms "is" or "has been a judge" could not have included within is purview an advocate who has been appointed only for two years and was not found fit for appointment as a permanent judge in view of the fact that independence and impartiality of the judiciary plays an important role in the matter of discharge of judicial functions.
iii) The State Commission being a judicial body and the eligibility criteria having been laid down in the Act, the Chief Justice of the 15 High Court was obligated to take into consideration the past conduct, as also general reputation of the recommendee.
iv) Only because a name of a judge has been included in the capacity as a retired judge and is entitled to medical benefits the same by itself would not be sufficient to answer the description of `has been a judge' within the meaning of the provisions of Section 16 of the Act.
v) While taking an important decision like recommending the name of a retired judge who was not found fit to occupy the post of a permanent Judge, the Chief Justice was bound to take into consideration all relevant factors including the question of honesty and integrity of a judge; which being a relevant statutory requirement, would determine the eligibility criteria, and thus a writ of quo warranto could be issued.
CONSTITUTIONAL PROVISIONS :
Chapter V of the Constitution deals with the High Courts in the States.
Article 216 of the Constitution of India provides that every High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem it necessary. Article 217 states that every judge of a High Court shall be appointed by the President in consultation with the Chief Justice of India and other authorities specified therein who shall hold office in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years.
Indisputably in terms of the proviso, an additional judge, like a permanent judge, may also resign his office, or be removed therefrom by the President in the manner as provided in clause (4) of Article 124 of the Constitution of India for the removal of the Supreme Court Judge. Clause (2) of Article 217 of the Constitution of India prescribes the eligibility criterion. Clause (3) thereof provides for resolution of disputes if any question arises as to the age of a Judge of the High Court by the President after consultation with the Chief Justice of India. Article 219 provides for oath of affirmation by Judges of the High Courts which is to be affirmed according to form set out for the purpose in the Third Schedule.
Article 220 restricts practice by a judge after being appointed as a Permanent Judge. However, no such restriction is imposed in regard to an Additional Judge. Article 221 provides for salaries and other emoluments, which, indisputably, are the same for a permanent judge or an additional judge.
Article 222 provides for a transfer of a judge. Indisputably again an additional judge can also be transferred from one High Court to another High Court. Article 223 provides for appointment of acting Chief Justice.
Article 224 provides for appointment as additional and acting judges commonly known as ad hoc judges.
Part `D' of the Second Schedule of the Constitution of India provides for the provision as to the quantity of payment of salary to the Judges of the Supreme Court and the High Court. Clause 11 thereof refers to the definitions of `Chief Justice', `Judge' and `actual service'. Definitions have also been referred to in the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short "the 1954 Act"). The 1954 Act also provides for qualification for payment of pension for Judges. An Additional Judge who holds a tenure post indisputably would not get any pensionary benefit.
THE ACT
The Act was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith.
Section 2 thereof defines `State Commission' to mean a Consumer Disputes Redressal Commission established in a State under clause (b) of Section 9. Section 3 provides that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law.
Section 16 provides that the State Commission shall consist of a person who is or has been a Judge of a High Court, appointed by the State Government, who shall be its President. A proviso was inserted threin by Act No.50 of 1993 which has come into force with effect from 18th June, 1993 providing that no appointment thereunder shall be made except after consultation with the Chief Justice of the High Court. Clause (b) of sub- section (1) of Section 16 provides for appointment of members from amongst the persons of ability, integrity and standing and have adequate knowledge and experience of at least ten years in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration.
Section 17 provides for the jurisdiction of the State Commission. It has original jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It entertains appeals against the orders of District Form within the State. The Commission has the power to transfer any complaint pending before any District Forum to another District Forum.
Appeal against the orders passed by the Commission shall lie only before the National Commission.
Section 20(1)(a) provides that the National Commission shall consist of a person who is or has been a Judge of the Supreme Court, to be appointed by the Central Government, who shall be its President, provided that no appointment under this clause shall be made except after consultation with the Chief Justice of India.
INTERPRETATION OF CONSTITUTIONAL PROVISIONS IN REGARD TO THE STATUS OF AN ADDITIONAL JUDGE The High Court has taken recourse to the rule of purposive construction whereas learned counsel appearing on behalf of the appellants want us to invoke the rule of literal meaning.
Interpretative tools of constitutional provisions and the statutory provisions may be different. Whatever interpretative tool is applied, the Court must not forget that its job is to find out the intention of the legislature. It can be gathered from the words used. However, if plain meaning assigned to the section results in absurdity or anomaly, literal meaning indisputably would not be applied.
It is also well settled that the Court may have to change the interpretative tool in the event it is necessary to give effective contextual meaning to the Act. It is one thing to say that an Additional Judge would be on the same pedestal as a Permanent Judge for all practical purposes, namely - judicial function; administrative function; pay and remuneration etc. but would it mean that the same interpretation would be applicable even in a case where an Additional Judge despite his legitimate expectation to become a Permanent Judge has not been conferred on the said stating allegations of lack of probity.
An Additional Judge on the expiry of his tenure has a right to be considered for re-appointment if he is not appointed as a Permanent Judge.
He may not, however, be reappointed if it is found that he is otherwise disqualified therefor, namely to satisfy the test of fitness and suitability, physical, intellectual and moral, before the Central Government can, consistently with its constitutional obligation and in public interest, decide to reappoint him as an Additional Judge or appoint him as a Permanent Judge.
SOME PRECEDENT S.P. GUPTA In the context of Central Government's refusal to re-appoint some additional judges as permanent judges, the Supreme Court in S.P. Gupta (supra) had the occasion to consider the said question. Bhagwati, J. (as His Lordship then was) traced the history of appointment of ad hoc or temporary judges, the provisions of the Government of India Act, 1915; Section 220 of the Government of India Act, 1935 and the speech of Sir Tej Bahadur Sapru expressing his firm opposition to the practice of appointing acting or Additional Judges to note that the drafting committee took the view that "it was possible to discontinue the system of appointment of temporary and Additional Judges in the High Courts altogether by increasing, if necessary, the total number of permanent Judges of such Courts.", to notice that the Constitution-makers did not assume that an acting or Additional Judge would necessarily be made permanent and he would have to go back to the Bar. The learned Judge furthermore noticed the enactment of the Constitution (Seventh Amendment) Act, 1956, in terms whereof existing Article 224 was substituted by a new Article and the existing Article 224 was added as new Article 224A thereafter. It was held that the object clearly was that Additional Judge should be appointed for a short period in order to dispose of the temporary increase in the business of the High Court and/or to clear off the arrears of pending cases. The underlying idea was that there should be an adequate strength of permanent Judges in each High Court to deal with its normal institutions and so far as the temporary increase in the work or the arrears of pending cases were concerned, Additional Judges appointed for a period not exceeding two years should assist in disposing of such work. Additional Judges while entering into the High Court judiciary had a legitimate expectation that they would not have to go back on the expiration of their term and that they would be either reappointed as Additional Judges for a further term or if in the meanwhile, a vacancy in the post of a permanent Judge became available, they would be confirmed as permanent Judges. The Government, in view of the constitutional scheme, could not drop an additional Judge at its sweet will. The expectation has been raised through a practice followed for almost over a quarter of a century. The expression "every Judge" occurring in Article 217 must include not only a permanent Judge but also an Additional Judge. The Additional Judge, on the expiry of his tenure, could not just be dropped without consideration (be of his re-appointment or made a permanent judge).
As Additional Judge is entitled to be appointed without anything more, the process of selection in regard to his appointment need not be gone any further. An Additional Judge is as much a Judge as a permanent Judge with the same jurisdiction and the same powers and to treat him as he were on probation, would not only detract from his status and dignity but also affect his independence by making his continuance as a Judge dependent on the good opinion of the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India. Although factors relevant for consideration of his appointment as permanent Judge have not been laid down having regard to the object and purpose of Article 217(1), it is obvious that fitness and suitability, physical, intellectual and moral, would be the governing considerations to be taken into account in deciding the question of appointment.
The Central Government, however, in view of the constitutional obligations, was, therefore, required to consider whether the Additional Judge is fit and suitable to be reappointed as an Additional Judge or appointed as a permanent Judge, as the case may be, must consider as to whether he is physically, intellectually or morall unfit or unsuitable to be appointed as such.
Justice Fazal Ali, J. in his concurring judgment opined :- "533. Thus, the position is that even if an Additional Judge is not appointed afresh and somebody else is appointed, there is no question of judicial review nor is there any question of the non-appointment of an Additional Judge afresh casting any reflection or aspersion on the reputation or character of an Additional Judge because he was appointed only for a particular period and for a particular purpose and is not on probation. Both Brother Desai and Brother Venkataramiah, JJ. have stressed this aspect of the matter in their own way and I agree with their views."
SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION 24 This Court in Supreme Court Advocates-on-Record Association and others v. Union of India, [ (1993) 4 SCC 441 ] adopted a new approach opining that keeping in view the fact that independence of judiciary is one of the cardinal principles of constitution, the primacy of appointment shall be with the Chief Justice of India as also the Chief Justice of the High Court.
However, before making recommendations in terms of Articles 124(2) and 217(1) of the Constitution, they would have to consult two other senior most Judges who would be the members of the Collegium. It was opined that S.P.
Gupta (supra) should be read with Ashok Kumar Yadav v. State of Haryana, [ (1985) 4 SCC 417 ]. As regards justiciability of appointment and transfer it was laid down :- "Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making."
SPECIAL REFERENCE 25 In Re - Special Reference No. 1 of 1998, [(1998) 7 SCC 739], in regard to justiciability of such power this Court held that having a plurality of judges in the formation of opinion provides sufficient safeguards and that they are sufficient checks against arbitrariness in the decision making process relating to Appointment and Transfers, stating :- "9. The majority judgment ends with a summary of its conclusions. Conclusions 1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. They read thus:
"(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated `participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.
* * * * (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.
* * * (10) In making all appointments and transfers, the norms indicated must be followed.
26 However, the same do not confer any justiciable right in anyone.
(11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.
* * * (14) The majority opinion in S.P. Gupta v. Union of India insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view.
The relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us."
(emphasis supplied) It was furthermore held :- "44. The questions posed by the Reference are now answered, but we should emphasise that the answers should be read in conjunction with the body of this opinion:
1. The expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute "consultation" within the meaning of the said articles.
* * *
4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the 27 Government of India for non-appointment of a Judge recommended for appointment.
* * *
8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India."
INTERPRETATION OF SECTION 16 OF THE ACT
For this purpose, we will proceed on the basis that save and except for certain purposes an additional judge and a permanent judge enjoy equal status. It could be said that for the purpose of appointment as Chairperson of some Tribunal, the name of an additional judge may also be taken into consideration but would that mean that an additional judge whose services were tainted or having regard to his general reputation or lack of integrity, wherefor he had not been made permanent as opposed to a situation where having regard to the policy decision of the Central Government or the purpose for which the additional judges are appointed to clear the back log is the question which falls for consideration. This Court in T. Fenn Walter [(2002) 6 SCC 184] laid down some broad guidelines as to the manner in which the appointment of a sitting Judge of a High Court to a Commission should be made. In view of the said decision, it is expected that a sitting judge may not be recommended by the Chief Justice of the High Court for such appointment.
28 The words "is or has been" refer to the person holding the office of a Judge or who has held the said office. It may be said to have the same meaning so far as eligibility is concerned.
Suitability of a person to be considered for appointment as a Chairman of a State Commission having regard to the provisions contained in Article 217 of the Constitution of India has been assumed by this Court to be available for the eligible persons who are retired Judges which would mean that those Judges who had retired from service without any blemish whatsoever and not merely a person who "has been a judge". [See Ashish Handa v. The Hon'ble the Chief Justice of High Court of Punjab and Haryana and others, (1996) 3 SCC 145].
An Additional Judge holding a tenure post stricto sensu does not retire. It is one thing to say that having regard to the constitutional embargo, he would not hold office after he attains the age of 62 years but it is another thing to say that for all other purposes, he can be equated with a sitting Judge.
There cannot be any doubt whatsoever that ordinarily a literal meaning should be given to the provisions of the Constitution as also a statute. However, while applying the golden rules of literal interpretation one must be clear in his mind that same should not defeat the object and purpose for which the Act was enacted. We could advert to this question a little later.
The jurisdiction of the consumer courts and particularly that of the State Commission and the National Commission is of great importance.
Various complicated questions of law and facts arise for their consideration.
It must, save and except for very cogent reasons refuse to entertain a claim application and ask the parties to agitate their grievances before a Civil Court. Indisputably, the functions of the Commission are judicial. The State Commission, as noticed hereinbefore, not only exercises original jurisdiction but also appellate jurisdiction. The guidelines clearly point out as to why, considering the basic feature of the Constitution, namely the independence of the judiciary, a sitting Judge must maintain the high traditions. While a sitting Judge may be appointed to a statutory post or Tribunal, this Court as pointed out in T. Fenn Walter (supra) that he would not discharge the duties both as the Presiding Officer of a Judicial Tribunal and as a sitting Judge of the High Court.
An Additional Judge who has not been confirmed, may for the purpose of giving effect to the constitutional provisions be considered to be a former Judge but when it comes to the question of his appointment in the said capacity, in our opinion, it is possible to take somewhat different view having regard to his present status, viz., an advocate or a district judge, as the case may be. He despite being a former Judge is entitled to practice in the same High Court, which other Judges are not permitted to do so. He may appear before the Tribunal and subordinate courts. A person for the aforementioned purpose must answer the test of his being qualified to be a Judge. For the purpose of Section 16 of the Act, he must be equated with a sitting Judge of a High Court. In other words, he could, but for the reasons like reaching the age of superannuation, continue as a Judge.
In S.P. Gupta (supra), this Court has categorically held that a person who has not been confirmed would not be recommended for reappointment.
If that be so, he could not continue to hold the High office of a Judge, although he was otherwise eligible therefor.
In Supreme Court Advocates-on-Record Association (supra), this Court laid down the qualities of a Judge :- "Under our constitutional scheme, the judiciary has been assigned the onerous task of safeguarding the fundamental rights of our citizens and of upholding the rule of law. Since the Courts are entrusted the duty to uphold the Constitution and the laws, it very often comes in conflict with the State when it tries to enforce its orders by exacting obedience from recalcitrant or indifferent State agencies. Therefore, the need for an independent and impartial judiciary manned by persons of sterling quality and character, undaunting courage and determination and resolute impartiality and independence who would dispense justice without fear or favour, ill will or affection. Justice without fear or favour, ill will or affection, is the cardinal 31 creed of our Constitution and a solemn assurance of every Judge to the people of this great country.
There can be no two opinions at the Bar that an independent and impartial judiciary is the most essential characteristic of a free society. "
A Judge must have these basic qualities and, thus, must be found to possess the same. A person found to be lacking these qualities would not be recommended for appointment of a permanent judge.
The system of governance established by the Constitution is based on distribution of powers and functions amongst the three organs of the State.
It is the prerogative of the Legislature to enact laws; responsibility of the Executive to enforce the laws and administer the country; and the duty of the Judiciary to adjudicate upon the disputes that arise between individuals, between an individual & the State or between different States. In this scheme of things, Supreme Court has been assigned the duty of being the final arbiter, including on the question of interpretation of the Constitution &
the laws. It is the majesty of the institution that has to be maintained and preserved in the larger interest of the rule of law by which we are governed.
It is the obligation of each organ of the State to support this important institution. Judiciary holds a central stage in promoting and strengthening democracy, human rights and rule of law. People's faith is the very foundation of any judiciary. Injustice anywhere is a threat to justice everywhere and therefore the People's faith in the Judiciary cannot be afforded to be eroded.
Independence of judiciary is a much wider concept. Key note is judiciary and not the Judge. If a person does not have qualification for continuing to hold the office of the Judge of a High Court, it is difficult to conceive as to how despite such deficiency in qualification, he could be recommended for appointment to a statutory post, the eligibility criteria wherefor is inter alia a former Judge. A Chief Justice of a High Court, thus, before making recommendations for his appointment in terms of Section 16 of the Act must satisfy himself that the recommendee has/had those basic qualities.
While making recommendations the Chief Justice performs a constitutional duty. If while discharging his duty, he finds a former judge to be ineligible, the question of his being considered for appointment would not arise. If such a person cannot be recommended being unfit or ineligible to hold the post, it would not be correct to contend that despite the same he fulfils the eligibility criteria.
Whether the condition `has been a judge' is not necessary to be construed for the purpose of Article 217 of the Constitution of India, it is required for the purpose of interpreting Section 16 of the Act as to whether he should be recommended for being appointed as a Chairman of the state commission.
In our constitutional scheme, the judge made law becomes a part of the Constitution. It has been so held in M. Nagaraj and Others v. Union of India and Others [(2006) 8 SCC 212] in the following terms:
"...The Constitution, according to the respondents, is not merely what it says. It is what the last interpretation of the relevant provision of the Constitution given by the Supreme Court which prevails as a law. The interpretation placed on the Constitution by the Court becomes part of the Constitution and, therefore, it is open to amendment under Article 368. An interpretation placed by the Court on any provision of the Constitution gets inbuilt in the provisions interpreted. Such articles are capable of amendment under Article 368."
If a person has made himself disqualified to hold the post of a judge, the Chief Justice should not consider his name at all. If a duty had been cast on the Chief Justice not to recommend, which is a constitutional duty for all intent and purpose - he must be held to be disqualified. If he stands disqualified following S.P. Gupta (supra) and other cases -question of his candidature being considered does not arise. It is in that sense - the principle of purposive construction is to be taken recourse to.
34 If the Collegium of the Supreme Court Judges including the Chief Justice of India, which is a constitutional authority in the matter of appointment of Judges and re-appointment of Additional Judges did not find him eligible, it would be beyond anybody's comprehension as to how Chief Justice of a High Court could find him eligible/suitable for holding a statutory post requiring possession of qualification of holder of a constitutional office. If no recommendation by the Chief Justice is constitutionally permissible, the question of the eligibility criteria being not satisfied certainly is relevant.
Question is not whether he is a former judge or not. Question is whether he was eligible for appointment, having not been found fit for re- appointment. If he was ineligible for being recommended, that is the end of the matter.
PURPOSIVE INTERPRETATION A case of this nature is a matter of moment. It concerns public interest. Public information about independence and impartiality of a judiciary would be in question. The duty of all organs of the State is that the public trust and confidence in the judiciary may not go in vain. Construction of a statute would not necessarily depend upon application of any known formalism. It must be done having regard to the text and context thereof.
For the aforementioned purpose, it is necessary to take into consideration the statutory scheme and the purpose and object it seeks to achieve. A construction of a statute, as is well known, must subserve the tests of justice and reason. It is a well-settled principle of law that in a given case with a view to give complete and effective meaning to a statutory provision, some words can be read into; some words can be subtracted.
Provisions of a statute can be read down (although sparingly and rarely).
In Carew and Company Ltd. v. Union of India [(1975) 2 SCC 791], Krishna Iyer, J. opined:
"21. The law is not "a brooding omnipotence in the sky" but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammar is a good guide to meaning but a bad master to dictate.
Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical widom when he observed4:
"There is no surer way to misread a document than to read it literally.""
Yet Again in K.P. Varghese v. Income Tax Officer, Ernakulam and Another [(1981) 4 SCC 173], the strict literal reading of a statute was avoided as by reason thereof several vital considerations, which must always be borne in mind, would be ignored, stating:
"...The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be "drafted with divine prescience and perfect clarity". We can do no better than repeat the famous words of Judge Learned Hand when he laid:
"... it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning."
"... the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create."
In the aforementioned case, therefore, some words were read into and the plain and natural construction was not given.
37 In Bhudan Singh and Another v. Nabi Bux and Another [(1969) 2 SCC 481], this Court held:
"The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on "Statutory Constructions"
that the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every peace of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instance, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent."
This Court Atma Ram Mittal v. Ishwar Singh Punia, [ (1988) 4 SCC 284]:
"9. Judicial time and energy is more often than not consumed in finding what is the intention of Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.
(emphasis by the court) See Commentaries on the Laws of England (facsimile of 1st Edn. Of 1765, University of Chicago Press, 1979, Vol. 1, p. 59)."
38 In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat and Others [ (2003) 4 SCC 712 ], this Court noticed:
"33. In United Bank of India v. Abhijit Tea Co. (P) Ltd. this Court noticed: (SCC p. 366, paras 25-26) "25. In regard to purposive interpretation, Justice Frankfurter observed as follows:
`Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose [Some Reflections on the Reading of Statutes, 47 Colu
