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IN SUPREME COURT OF INDIA Page 1 of 15

CASE NO.:
Appeal (civil) 8248 of 2004

PETITIONER:
Shri Ashok Tanwar & Anr.

RESPONDENT:
State of H.P. & Ors.

DATE OF JUDGMENT: 17/12/2004

BENCH:
CJI, Shivaraj V. Patil, K.G. Balakrishnan, B.N. Srikrishna & G.P. Mathur.

JUDGMENT:
J U D G M E N T

(Arising out of Special Leave Petition (C) No.15706 of 2001)

Shivaraj V. Patil J.

Leave granted.
A Bench of three learned Judges of this Court made
the following order of reference on 7th March, 2002: -

"In the present case, under Section 16

of the Consumer Protection Act, the
President of the State Consumer Disputes
Redressal Commission has to be appointed
in consultation with the Chief Justice of the
State. The question which arises is
whether consultation with an Acting Chief
Justice is sufficient compliance or not. This
question involves interpretation of Articles
217 and 223 of the Constitution and as
there is no decision of this Court which can
be applied in the present case, then by
virtue of Article 145(3) of the Constitution
this case involving the said question of law
involving interpretation of the Constitution
should be heard by a Bench of not less
than five learned Judges.

Let the papers be placed before the

Hon’ble the Chief Justice of India for
appropriate orders for hearing of the case
as expeditiously as possible and within a
period of four months."

Articles 217 to the extent relevant and 223 of the

Constitution of India read: -
"217. Appointment and conditions of
the office of a Judge of a High Court. \026
(1) Every Judge of a High Court shall be
appointed by the President by warrant
under his hand and seal after consultation
with the Chief Justice of India, the
Governor of the State, and, in the case of
appointment of a Judge other than the
Chief Justice, the Chief Justice of the High
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court, and 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:

"223. Appointment of acting Chief

Justice. \026 When the office of Chief Justice
of a High Court is vacant or when any such
Chief Justice is by reason of absence or
otherwise, unable to perform the duties of
his office, the duties of the office shall be
performed by such one of the other Judges
of the court as the President may appoint
for the purposes."

On 3rd March, 2000 The Financial Commissioner-cum-

Secretary (F&S), Government of Himachal Pradesh,
addressed a letter to Registrar General, Himachal Pradesh
High Court stating that Justice P.N. Nag (retired Judge of
the High Court) shall cease to hold the post of President of
H.P. State Consumer Disputes Redressal Commission,
Shimla (for short ’the State Commission) on 4.3.2000, after
attaining the age of 67 years. In accordance with the
provisions contained in The Consumer Protection Act, 1986
(for short ’the Act’), a person who is or has been a Judge of
High Court can be appointed as President of the State
Commission, after consultation with the Chief Justice of the
High Court. After consideration the State Government
decided to take the services of Justice Surinder Swaroop, a
sitting Judge of the High Court of Himachal Pradesh for
appointment as President of the State Commission.
Therefore, he requested that the proposal of the State
Government may kindly be placed before the Hon’ble Chief
Justice, High Court for consideration and recommending the
name of Justice Surinder Swaroop for appointment as
President of the State Commission on part-time basis.
On the same day the High Court addressed a letter to
the State Government indicating that there was defect in
the process adopted by the State Government and that the
reference made by the State Government was not in
conformity with the provisions of law as the executive is
expected to approach the Hon’ble Chief Justice when the
appointment was to be made, to initiate the proposal as per
the procedure to be followed for appointment of High Court
Judge.
The State Government wrote the second letter to the
Registrar General of the High Court requesting the Hon’ble
Chief Justice to initiate the process for filling up the vacancy
to the post of President of the State Commission in
accordance with the provisions of the Act and the law laid
down by this Court in Ashish Handa, Advocate vs.
Hon’ble the Chief Justice of High Court of Punjab &
Haryana and others .
On 7th March 2000 the Registrar General of the High
Court addressed a letter to the Financial Commissioner-
cum-Secretary (F&S) of the State Government conveying
recommendation of the Chief Justice for appointment of Mr.
Justice Surinder Swaroop, a sitting Judge of the High Court,
as President of the State Commission holding additional
charge of the post. In the said letter it was also stated that
the steps may be taken for appointment of Mr. Justice
Surinder Swaroop (respondent No. 3 herein) as President of
the State Commission in accordance with law and rules.
Thereafter, a notification dated 13th March, 2000 was issued
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by the Governor, Himachal Pradesh, appointing Justice
Surinder Swaroop as President of the State Commission.
Appellant No. 1, a permanent resident of Namol and a
practicing advocate at Solan and appellant No. 2, a retired
Research Officer resident of Shimla, filed Civil Writ Petition
No. 647 of 2000 in the High Court claiming to espouse
public interest stating that they were interested in proper
functioning of the State Commission. According to them
the appointment of respondent No. 3 \026 Justice Surinder
Swaroop \026 as President of the State Commission was not in
accordance with law and was contrary to the decisions of
this Court. They sought for writ of quo warranto to the
respondent No. 1 to quash the appointment of respondent
No. 3 mainly contending that there was a defect in the
initiation process for appointment to the post of President of
the State Commission on the ground that the process was
initiated by the State Government instead of Chief Justice
and that the Acting Chief Justice did not consult the two
senior most Judges of the High Court before recommending
the name of respondent No. 3 for appointment as the
President of the State Commission. In support of these
contentions they placed reliance on the decisions of this
Court in Ashish Handa, Advocate vs. Hon’ble the Chief
Justice of High Court of Punjab & Haryana and others
(supra) and Supreme Court Advocates-on-Record
Association and others vs. Union of India .
Respondent Nos. 1 and 3 resisted the writ petition and
respondent No. 2, the High Court, made the position clear
having regard to the records.
The High Court, after consideration of the respective
contentions advanced on behalf of the parties and in the
light of the decisions of this Court, held that the case of
Ashish Handa (supra) related to the initiation of ’process’,
which was required to be followed in making appointment
of President of the State Commission, and that such
process should not have been initiated by the Government
but it ought to have been initiated by the Chief Justice. On
facts the High Court found that although initially the
process was started by the Government proposing the name
of respondent No. 3, respondent No. 2, however, was aware
of the legal position and it immediately drew the attention
of respondent No. 1 that the procedure adopted by
respondent No. 1 was not in accordance with law.
Therefore, second letter was addressed by respondent No.
1 to respondent No. 2. Respondent No. 2 on receipt of the
second letter made the recommendation to appoint
respondent No. 3 as President of the State Commission. On
that issue the High Court held that the action taken either
by respondent No. 1 or by respondent No. 2 could not be
said to be contrary to law or the directions issued by this
Court in the case of Ashish Handa (supra). Consequently
the writ petition was dismissed. Hence, this appeal.
The High Court, in the impugned judgment, dealing
with initiation of the process and consultation for
appointment of respondent No. 3 as President of the State
Commission, has observed, thus: -
"The counsel for the petitioners contended
that appointment of a person as President
to the State Commission, as ruled by the
Supreme Court in Ashish Handa, has to be
made in accordance with the provisions of
Article 217 of the Constitution. In other
words, before an appointment of a sitting
or retired Judge of a High Court is made as
the President of the State Commission,
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there should be consultation at three
levels; firstly, consultation with the Chief
Justice of India, secondly, consultation with
the Governor of the State and thirdly,
consultation with the Chief Justice of the
High Court concerned.
xxx xxx xxx xxx
Hence, if the submission of the learned
counsel is upheld, the result would be as
under:
Before the appointment of respondent
No. 3 by respondent No. 1 as the President
of the State Commission, respondent No. 1
ought to have consulted the Governor of
the State (the State Government), (which
is the appointing authority in the instant
case), the Chief Justice of India (not the
Chief Justice of India in his individual
capacity but collectively, along with the
collegium), the Chief Justice of this Court
(not the Chief Justice in his individual
capacity, but with the collegium, that is, his
two senior most colleagues) and also a
Judge or Judges, who is/are in the
Supreme Court who is/are likely to be
conversant with the affairs of this High
Court. Unless the above procedure is
strictly adhered to, the appointment of
respondent No. 3 as the President of the
State Commission cannot be held legal and
lawful."

In relation to the law laid down by this Court in Ashish

Handa the High Court noted that it was not the case before
the High Court that the Chief Justice had consulted his two
senior most colleagues before approving the name of
Justice Agnihotri and yet the appointment was not
interfered with. The High Court also expressed that in
Ashish Handa this Court has laid down that under Section
16 of the Act process for appointment of a sitting or retired
Judge as President of the State Commission should be
initiated by the Chief Justice as is done in the case of
appointment of a Judge to a High Court under Article 217 of
the Constitution and that such process should not be
initiated by the Government.
Before us, learned counsel for the appellants urged
that: -
1. since the recommendation to appoint respondent No.
3 was made by the Acting Chief Justice without
consulting two senior most Judges as required in the
light of decisions of this Court in Supreme Court
Advocates-on-Record Association (supra) and
Ashish Handa (supra), the High Court ought to have
allowed the writ petition and quashed the appointment
of respondent No. 3.
2. The Acting Chief Justice could not initiate the process
for appointment of respondent No. 3 under Section 16
of the Act as it is only the Chief Justice, who is to be
consulted; the Acting Chief Justice is not appointed to
the Office of Chief Justice, he is only to discharge the
duties of the Chief Justice. Reliance was placed on the
decision of High Court of Allahabad in Bishal Chand
Jain vs. Chattur Sen and others .
In opposition learned counsel for the respondents in
their arguments reiterated the submissions that were made
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before the High Court and supported the impugned
judgment for the very reasons stated therein.
The learned counsel for the Union of India and for
Attorney General submitted that consultation should be as
stated in two decisions of this Court in Ashish Handa and
Supreme Advocates-on-Record Association (supra),
i.e., the Chief Justice of a High Court has to consult two
senior most Judges in the case of appointment of a sitting
or retired Judge of the High Court as President of the State
Commission. As regards the discharge of duties of the
Chief Justice by the Acting Chief Justice, the submission
was that the Acting Chief Justice could perform all the
functions of the Chief Justice by virtue of Article 223 of the
Constitution, otherwise there will be practical difficulty
leading to anomalous situation in cases where the Chief
Justices are not appointed for some reasons and Acting
Chief Justices continue for longer period.

Section 16 of the Act, to the extent relevant, reads: -

"16. Composition of the State

Commission. - (1) Each State Commission
shall consist of, -
(a) a person who is or has been a Judge of
a High Court, appointed by the State
Government, who shall be its President :
Provided that no appointment under this
clause shall be made except after
consultation with the Chief Justice of the
High Court."

In the case of Ashish Handa the question that came

up for consideration was as to initiation of process in the
matter of appointment. A person, who is or has been a
Judge of a High Court, shall be appointed by the State
Government as President of the State Commission after
consultation with the Chief Justice of the High Court as per
Section 16 of the Act. This Court held that the executive is
expected to approach the Chief Justice when the
appointment is to be made for taking the steps to initiate
the proposal. Para 3 of the judgment reads: -
"3. The Consumer Protection Act, 1986 is
an Act 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". The National
Commission, the State Commission and the
District Forum are established as the
agencies for the redressal of consumer
disputes by Section 9 of the Act. Section l0
of the Act provides for composition of the
District Forum, Section 16 for the State
Commission and Section 20 for the
National Commission. The scheme is that
these three agencies constituted for
redressal of consumer disputes at different
levels have as its President a person who
is, or has been a Judge at the
corresponding level. This is so because the
function of these agencies is primarily the
adjudication of consumer disputes and,
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therefore, a person from the judicial branch
is considered to be suitable for the office of
the President. The appointment to the
office of the President of the State
Commission is to be made "only after
consultation with the Chief Justice of the
High Court" and to the office of the
President of the National Commission "after
consultation with the Chief Justice of
India". Such a provision requiring prior
consultation with the Chief Justice is
obviously for the reason that he is the most
suitable person to know about the
suitability of the person to be appointed as
the President of the Commission. The
provisions in Section 16(1)(a) for
appointment of the President of the State
Commission and in Section 20(1)(a) for
appointment of the President of the
National Commission are in pari materia
and have to be similarly construed. The
construction of the proviso in Section
16(1)(a) and that in Section 20(1)(a) must
be the same because of the identity of the
language. The expression "after
consultation with the Chief Justice of the
High Court" and "after consultation with the
Chief Justice of India" must be construed in
the same manner as the expression "after
consultation with the Chief Justice of
India,... the Chief Justice of the High Court"
in Article 217 of the Constitution of India
made in Supreme Court Advocates-on-
Record Assn. v. Union of India [(1993) 4
SCC 441]. Accordingly, the opinion of the
Chief Justice of the High Court and the
requirement of consultation with him
according to the proviso in Section 16(1)(a)
must have the same status as that of the
Chief Justice of the High Court in the
appointment of a High Court Judge under
Article 217 of the Constitution of India; and
the process of appointment to the office of
the President of the State Commission
must also be similar. It is unnecessary to
restate the same which is summarised in
the majority opinion in the Judges-II case
[(1993) 4 SCC 441]. This is necessary to
maintain independence of the judiciary and
to avoid any possibility of a sitting or a
retired Judge depending on the executive
for such an appointment. Our attention was
drawn to certain observations in Sarwan
Singh Lamba v. Union of India [(1995) 4
SCC 546 : 1995 SCC (L&S) 546 : (1995)
30 ATC 585], to suggest that the name for
appointment to the Administrative Tribunal
may be suggested even by the executive
which may have the effect of initiating the
proposal. In the facts of that case,
substantial compliance of the requirement
of approval by the Chief Justice of India
was found proved and, therefore, the
appointments were upheld. The
requirement of consultation with the Chief
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Justice in the proviso to Section 16(1)(a)
and Section 20(1)(a) of the Consumer
Protection Act being similar to that in
Article 217, the principles enunciated in the
majority opinion in the Judges-II case must
apply, as indicated earlier, even for
initiating the proposal. The executive is
expected to approach the Chief Justice
when the appointment is to be made for
taking the steps to initiate the proposal.
and the procedure followed should be the
same as for appointment of a High Court
Judge. That would give greater credibility
to the appointment made."
(emphasis supplied)
The aforementioned decision of this Court is to be read and
understood on the facts and in the context in relation to
initiation of the process for the appointment of a sitting or
retired Judge as the President of the State Commission.
The High Court in the impugned judgment also states that
the judgment of this Court in Ashish Handa should not be
understood or construed as insisting upon to follow the
same procedure, which has to be followed for appointment
of a Judge of a High Court under Article 217 of the
Constitution. If the judgment in Ashish Handa is to be
read in the way the appellants projected, it will lead to
anomalous situation and further it does not stand to reason.
The process of consultation envisaged under Section
16 of the Act can neither be equated to the constitutional
requirement of consultation under Article 217 of the
Constitution of India in relation to appointment of a Judge
of a High Court nor can it be placed on the same pedestal.
Consultation by the Chief Justice of the High Court with two
senior most Judges in selecting a suitable candidate for
appointment as a Judge is for the purpose of selecting the
best person to the high office of a Judge of the High Court
as a constitutional functionary. Consultation with the Chief
Justice of the High Court in terms of Section 16 of the Act is
a statutory requirement. This apart, the interpretation of a
provision of the Constitution having regard to various
aspects serving the purpose and mandate of the
Constitution by this Court stands on a separate footing. A
constitution unlike other statutes is meant to be a durable
instrument to serve through longer number of years, i.e.,
ages without frequent revision. It is intended to serve the
needs of the day when it was enacted and also to meet
needs of the changing conditions of the future. This Court
in R.C. Poudyal vs. Union of India and others , in
paragraph 124, observed thus: -
"124. In judicial review of the vires of the
exercise of a constitutional power such as
the one under Article 2, the significance
and importance of the political components
of the decision deemed fit by Parliament
cannot be put out of consideration as long
as the conditions do not violate the
constitutional fundamentals. In the
interpretation of a constitutional document,
"words are but the framework of concepts
and concepts may change more than words
themselves". The significance of the
change of the concepts themselves is vital
and the constitutional issues are not solved
by a mere appeal to the meaning of the
words without an acceptance of the line of
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their growth. It is aptly said that "the
intention of a Constitution is rather to
outline principles than to engrave details"."

In the first B.N. Rau Memorial Lecture on ’Judicial Methods’

M. Hidayatullah, J. observed, "More freedom exists in the
interpretation of the Constitution than in the interpretation
of ordinary laws. This is due to the fact that the ordinary
law is more often before courts, that there are always dicta
of judges readily available while in the domain of
constitutional law there is again and again novelty of
situation and approach. Chief Justice Marshall while
deciding the celeberated Mc. Culloch v. Maryland (4
Wheaton 316, 407) made the pregnant remark \026 "We must
never forget that it is the constitution we are expounding" \026
meaning thereby that it is a question of new meaning in
new circumstances. Cardozo in his lectures also said: "The
great generalities of the Constitution have a content and a
significance that vary from age to age." Chief Justice
Marshall in Mc. Culloch vs. Maryland declared that the
constitution was ’intended to endure for ages to come, and
consequently to be adapted to the various crises of human
affairs....’ In this regard it is worthwhile to see the
observations made in paragraphs 324 to 326 in Supreme
Court Advocates-on-Record Association: -
"324. The case before us must be
considered in the light of our entire
experience and not merely in that of what
was said by the Framers of the
Constitution. While deciding the questions
posed before us we must consider what is
the judiciary today and not what it was fifty
years back. The Constitution has not only
to be read in the light of contemporary
circumstances and values, it has to be read
in such a way that the circumstances and
values of the present generation are given
expression in its provisions. An eminent
jurist observed that "constitutional
interpretation is as much a process of
creation as one of discovery."
325. It would be useful to quote hereunder
a paragraph from the judgment of
Supreme Court of Canada in Hunter v.
Southam Inc. [(1984) 2 SCR 145, 156
(Can)] :
"It is clear that the meaning of
’unreasonable’ cannot be
determined by recourse to a
dictionary, nor for that matter,
by reference to the rules of
statutory construction. The task
of expounding a constitution is
crucially different from that of
construing a statute. A statute
defines present rights and
obligations. It is easily enacted
and as easily repealed. A
Constitution, by contrast, is
drafted with an eye to the
future. Its function is to provide
a continuing framework for the
legitimate exercise of
governmental power and, when
joined by a Bill or a Charter of
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Rights, for the unremitting
protection of individual rights
and liberties. Once enacted, its
provisions cannot easily be
repealed or amended. It must,
therefore, be capable of growth
and development over time to
meet new social, political and
historical realities often
unimagined by its framers. The
judiciary is the guardian of the
Constitution and must, in
interpreting its provisions, bear
these considerations in mind.
Professor Paul Freund expressed
this idea aptly when he
admonished the American
Courts ’not to read the
provisions of the Constitution
like a last will and testament
lest it become one’."
326. The constitutional provisions cannot
be cut down by technical construction
rather it has to be given liberal and
meaningful interpretation. The ordinary
rules and presumptions, brought in aid to
interpret the statutes, cannot be made
applicable while interpreting the provisions
of the Constitution. In Minister of Home
Affairs v. Fisher [(1979) 3 All ER 21 :
(1980) AC 319] dealing with Bermudian
Constitution, Lord Wilberforce reiterated
that a Constitution is a document "sui
generis, calling for principles of
interpretation of its own, suitable to its
character". "
(emphasis supplied)
This Court in Ms. Aruna Roy and others vs. Union of
India and others recalled the famous words of the Chief
Justice Holmes that "spirit of law is not logic but it has been
experience" and observed that these words apply with
greater force to constitutional law. In the same judgment
this Court expressed that Constitution is a permanent
document framed by the people and has been accepted by
the people to govern them for all times to come and that
the words and expressions used in the Constitution, in that
sense, have no fixed meaning and must receive
interpretation based on the experience of the people in the
course of working of the Constitution. The same thing
cannot be said in relation to interpreting the words and
expressions in a statute.
Verma, J. (as he then was) speaking for the majority
in the case of Supreme Court Advocates-on-Records
Association, in paragraph 433, has stated, thus: -
"433. It is with this perception that the
nature of primacy, if any, of the Chief
Justice of India, in the present context, has
to be examined in the constitutional
scheme. The hue of the word
’consultation’, when the consultation is with
the Chief Justice of India as the head of the
Indian Judiciary, for the purpose of
composition of higher judiciary, has to be
distinguished from the colour and the same
word ’consultation’ may take in the context
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of the executive associated in that process
to assist in the selection of the best
available material."

(emphasis supplied)

Pandian,J. in his concurring opinion in Supreme

Court Advocates-on-Records Association
aforementioned, with regard to meaning of the word
’consultation’ has observed that the derivative meaning of
the word in the context depended not merely on its
ordinary lexicon definition but greatly upon its contents
according to the circumstances and the time in which the
word or expression is used; therefore, in order to ascertain
its colour and content one must examine the context in
which that word is used. In this regard in paragraph 163 it
is stated that: -
"The word ’consultation’ is used in the
context of appointment of Judges to the
Supreme Court under Article 124(2) and to
the High Courts under Article 217(1).
Though such a consultation is not
constitutionally required in the case of
appointment of other constitutional
appointees, which we have indicated and
itemized in the proceeding part of this
judgment."
(emphasis supplied)

Further, in paragraph 196 it is observed that in the

background of the factual and legal position, meaning of the
word ’consultation’ cannot be confined to its ordinary
lexicon definition; its contents greatly vary according to the
circumstances and the context in which the word is used as
in our Constitution. In paragraph 195 it is stated that the
consultation with the Chief Justice of India by the President
is relatable to the judiciary and not to any other service; in
the process of various constitutional appointments,
’consultation’ is required only to the judicial office in
contrast to the other high ranking constitutional offices.
It is thus clear that the expression ’consultation’ used
in Article 217 of the Constitution of India in relation to
appointment of High Court Judges cannot be read in the
same way into ’consultation’ as contemplated under Section
16 of the Act in the light of what is stated above in the
Supreme Court Advocates-on-Record Association.
The meaning of the word ’consultation’ must be given in the
context of an enactment. If the argument that the
consultation process in regard to appointment of a Judge or
retired Judge of High Court to the State Commission under
Section 16 must be in the same manner as required under
Article 217 of the Constitution, it will lead to anomalous
situation. Under Article 217(1) of the Constitution,
consultation contemplated with constitutional functionaries
mentioned therein is for the purpose of appointment of a
Judge of a High Court and not for appointment of a person
as the President of the State Commission under Section 16
of the Act. If the consultation to be made for appointment
of a person as President of the State Commission, as
required under Section 16 of the Act, is to be similar as
under Article 217 of the Constitution, then, even in case of
appointment of a retired Judge as President of the State
Commission, such consultation has to be made with all
constitutional functionaries, which does not stand to reason.
Hence, obviously for appointment of a person as President
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of the State Commission consultation as required under
Article 217 of the Constitution as against the requirement
stated in Section 16 of the Act is not necessary. If that be
so not only opinion of two senior most Judges of the High
Court should be obtained but also the consultation should
be made with other constitutional functionaries as
contemplated under Article 217 of the Constitution including
the Chief Justice of India. Hence insistence on
’consultation’ by the Chief Justice of a High Court with his
two senior most colleagues in the High Court for the
purpose of Section 16 of the Act, in our view, is
unwarranted.
While dealing with the question of primacy of the
opinion of the Chief Justice of India in that context this
Court held that such opinion of Chief Justice is to be formed
collectively after taking into account the views of his senior
colleagues, who are required to be consulted by him for the
formation of his opinion. As is evident from paragraph 450
of the same judgment consultation with the Chief Justice of
India was introduced because of the realization that the
Chief Justice is best equipped to know and assess the worth
of the candidate and his suitability for appointment as a
superior judge; and it was also necessary to eliminate
political influence even at the stage of the initial
appointment of a judge. In order to select the best
candidate and to give primacy to the opinion of the Chief
Justice this Court held that consultation with two senior
most Judges of the High Court was needed in the matter of
recommending a candidate for appointment as Judge of the
High Court. Under Section 16 of the Act only a person, who
is or has been a Judge of a High Court, is eligible to be
appointed as President of the State Commission.
In the matter of appointment of Judges of the High
Court, in paragraph 478 of the same judgment, it is stated,
thus: -
"In matters relating to appointments in
the High Courts, the Chief Justice of India
is expected to take into account the views
of his colleagues in the Supreme Court who
are likely to be conversant with the affairs
of the concerned High Court. The Chief
Justice of India may also ascertain the
views of one or more senior Judges of that
High Court whose opinion, according to the
Chief Justice of India, is likely to be
significant in the formation of his opinion.
The opinion of the Chief Justice of the High
Court would be entitled to the greatest
weight, and the opinion of the other
functionaries involved must be given due
weight, in the formation of the opinion of
the Chief Justice of India. The opinion of
the Chief Justice of the High Court must be
formed after ascertaining the views of at
least the two seniormost Judges of the High
Court."

In regard to initiation of the process for appointment, in

paragraph 478(10) it is stated: -
"(10) To achieve this purpose, and to
give legitimacy and greater credibility to
the process of appointment, the process
must be initiated by the Chief Justice of
India in the case of the Supreme Court,
and the Chief Justice of the High Court in
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the case of the High Courts. This is the
general practice prevailing, by convention,
followed over the years, and continues to
be the general rule even now, after S.P.
Gupta vs. Union of India [1981 Supp. SCC
87]. The executive itself has so understood
the correct procedure, notwithstanding S.P.
Gupta and there is no reason to depart
from it when it is in consonance with the
concept of the independence of the
judiciary."

In Ashish Handa this Court, having regard to what is

stated above, held that it is the Chief Justice of the High
Court, who should initiate the process in the matter of
appointment of a Judge, sitting or retired, as President of
the State Commission.
In that case, as already noticed above, this Court was
dealing with initiation of the process for appointment of a
sitting or retired Judge as President of the State
Commission. It is in that context this Court held that the
process must be initiated by the Chief Justice of the High
Court and not by the executive of the State. The reading of
the judgment gives an impression that the consultation
process must be the same in respect of appointment of a
sitting or retired Judge to State Commission as is required
for appointment of a High Court Judge in terms of Article
217 of the Constitution. Firstly, the said judgment should
be read and understood in the context of that case, the
question that arose for consideration and what was really
decided, i.e., initiation of process by the Chief Justice of the
High Court. To remove doubt, if any, we make it clear that
the consultation for the purpose of Section 16 of the Act in
relation to the appointment of a Judge or a retired Judge of
a High Court as President of the State Commission cannot
be taken or equated to consultation process as required
under Article 217 of the Constitution, which, in our view, is
the correct position. Certain statements made by this Court
in Ashish Handa, in para 3, give an impression that Chief
Justice of a High Court has to consult his two senior most
colleagues before recommending a sitting or retired Judge
for appointment as President of a State Commission as per
Section 16 of the Act. In our view that is not the correct
position and we do not approve the same. To put it
positively, we state that for the purpose of Section 16 of
the Act a Chief Justice of a High Court need not consult his
two senior most colleagues in the High Court for
recommending a sitting or retired Judge of a High Court for
appointment as President of a State Commission.
We must also keep in mind one more aspect. Under
Article 217 of the Constitution for the purpose of
appointment of a Judge to a High Court in view of decision
in Supreme Court Advocates-on-Records Association
and that too interpreting the constitutional provisions to
maintain the independence of judiciary and to select the
best of the persons as judges such a procedure is adopted.
A person to be appointed as President of the State
Commission has to be necessarily a sitting or a retired
Judge of a High Court and not that any person can be
appointed as President of the State Commission. This being
the position, it does not stand to the reason as to why
again in respect of a sitting or retired Judge of a High Court
the whole process contemplated under Article 217 of the
Constitution must be resorted to. To put in clear terms so
as to remove any doubt we state that in the matter of
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appointment of a sitting or retired Judge of a High Court as
President of the State Commission process must be initiated
by the Chief Justice under Section 16 of the Act and
’consultation’ contemplated in the said Section is
’consultation’ only with the Chief Justice of the High Court
and not with the collegium.
Argument that the ’consultation’ under Section 16 of
the Act should be with the Chief Justice of the High Court
and not with the Acting Chief Justice is not acceptable and
this argument does not pose any serious problem having
regard to the clear constitutional provision. The decision in
Bishal Chand Jain vs. Chattur Sen and others (supra),
cited on behalf of the appellants does not help them for the
reasons more than one. That decision was on the facts of
that case and the question that has arisen for consideration
in the present case did not arise there even remotely. In
that case plaintiff filed first appeal against the judgment
and decree of Civil Judge made in the original suit. In the
first appeal a preliminary objection was raised on behalf of
the appellant himself to the effect that the High Court was
not properly constituted and that appeal could not be heard
on the ground that the office of the Chief Justice of the High
Court fell vacant as a result of the elevation of Mr. Justice
V. Bhargava, Chief Justice of that High Court to the Bench
of this Court; Nasirullah Beg, J., a senior most Judge of the
Court was appointed as Acting Chief Justice of the High
Court, but as oath of office had not been taken by him, the
High Court could not be deemed to be properly constituted.
Alternatively, there was no Chief Justice at that time and
thus the Court was not properly constituted. It was in that
context the Division Bench of the Allahabad High Court, in
paragraph 7, has stated thus: -
"(7) We are, however, of the view that
Article 223 of the Constitution does not
contemplate the appointment of a Chief
Justice of a High Court or an appointment
to the office of Chief Justice of a High
Court. In spite of such appointment being
made under Article 223, the office of the
Chief Justice remains vacant till a fresh
appointment is made to that office. It is on
account of the existence of a vacancy in
the office of Chief Justice that one or the
other Judges of the High Court is appointed
by the President for the purpose of
performing the duties of the office of Chief
Justice. If such appointment is to be held
to put an end to the vacancy, then the
exigency of such an appointment ceases to
exist. It, therefore, follows that exercise of
powers under Article 223 of the
Constitution by the President does not
result in an appointment to the office of
Chief Justice and in spite of such
appointment, the office of the Chief Justice
remains vacant. All that happens is that
during the continuance of that vacancy, the
duties of that office are to be performed by
one or the other Judges of the High Court
as the President may appoint for the
purpose. The word "temporarily" used in
Article 224 clause (2) governs the words
"to act". The language of clause (2) of
Article 224, therefore, does not mean that
an appointment of a Judge of a High Court
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to perform the duties of the office of the
Chief Justice under Article 223, is the
appointment of a temporary Chief Justice.
It is true that both in its marginal note
and Article 223 the words "appoint" or
"appointment" has been used. But from
this it does not necessarily follow that the
appointment is an appointment to the
office of the Chief Justice. In the marginal
note, it is clear that the appointment is not
of a ’Chief Justice’ but of ’an acting Chief
Justice’. In the Article itself the word
"appoint" relates to the appointment of
such of the other Judges of that Court as
the President may choose for the purpose
of performance of the duties of the office of
Chief Justice. It is only when the
appointment is not an appointment to the
office of Chief Justice, that it could be said
to be an appointment of one or the other
Judges of that Court for the purpose of
performing the duties of the office of Chief
Justice. We have, therefore, no hesitation
in coming to the conclusion that an
appointment of one or the other Judges of
the High Court to perform the duties of the
office of Chief Justice when that office is
vacant, is not the appointment of a Chief
Justice to that office. It really results in an
arrangement for the performance of the
duties of the vacant office of the Chief
Justice pending a fresh appointment to the
office of Chief Justice."
A careful reading of the paragraph extracted above
shows that an appointment of one or the other Judges of
the High Court to perform the duties of the office of Chief
Justice really results in an arrangement for the performance
of the duties of the vacant office of the Chief Justice
pending fresh appointment to the office of the Chief Justice.
In that case the view was that even if an acting Chief
Justice is appointed under Article 223 of the Constitution for
performance of the duties of the Chief Justice, the office of
Chief Justice still remains vacant. This also shows that one
or the other Judges of the High Court can perform the
duties of the Chief Justice.
In the case on hand we have to consider whether
acting Chief Justice could be consulted under Section 16 of
the Act or the process initiated and opinion given by the
acting Chief Justice could be valid to satisfy the requirement
of the said Section.
In the very terms of Article 223 of the Constitution,
when the office of Chief Justice of a High Court is vacant or
when any such Chief Justice is by reason of absence or
otherwise, unable to perform the duties of the office of the
Chief Justice, duties of the office of Chief Justice shall be
performed by such one or the other Judges of the Court as
the President may appoint for the purposes. Plain reading
of this Article shows that one or the other Judges of the
High Court appointed in the vacancy of Chief Justice of a
High Court for the time being can perform the duties of the
office of Chief Justice. No restriction or limitation in
performance of duties by acting Chief Justice can be read
into the said Article. The Article also does not indicate as to
which of the duties of the Chief Justice can be performed or
which of the duties cannot be performed by the acting Chief
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Justice. Appointment of one or the other Judges of a High
Court as acting Chief Justice is meant to carry on the work
of the High Court and the judiciary in the State. May be
sometimes appointment of Chief Justice to a High Court
may take some time for various reasons and consequently
acting Chief Justice continues to work for longer period, but
that itself does not take away the powers conferred by the
Constitution on a Judge to act as Chief Justice to perform
the duties of the Chief Justice. Normally the senior most
puisne Judge is appointed as acting Chief Justice. Such
puisne Judge is expected to act appropriately in discharging
the duties of the office of Chief Justice. It is rule of
prudence that the acting Chief Justice may not take major
decisions which otherwise could have been taken by the
Chief Justice or which decisions could wait for a Chief
Justice. Assuming that some decisions taken by an acting
Chief Justice are required to be modified or corrected, that
can be done either on administrative side or on the judicial
side by the High Court or by this Court including the Chief
Justice of India, as the case may be. In some cases if
appointment of Chief Justice of a High Court takes longer
time and the acting Chief Justices cannot discharge the
duties of the office of the Chief Justice the work of the High
Court or the State judiciary or for the matter wherever the
opinion of Chief Justice is required like the one under
Section 16 of the Act, it will result in anomalous position
leading to paralyzing the working or may be sometimes
creating a deadlock. When Article 223 of the Constitution
in specific terms confers powers on acting Chief Justice to
discharge the functions of the office of Chief Justice without
any limitation or rider, it cannot be accepted that an acting
Chief Justice cannot perform the duties expected to be
performed by him under Section 16 of the Act.
Consultation with acting Chief Justice under Section 16 of
the Act is to be taken as consultation with the Chief Justice
of a High Court. Powers conferred under Article 223 of
the Constitution on an acting Chief Justice to perform
the duties of the Chief Justice is available for the
purpose of Section 16 of the Act. We may hasten to add
that it is not the case of the petitioner in High Court that
the Chief Justice of the High Court was going to be
appointed shortly or the matter of appointment of President
of the State Commission was such, which on the facts and
in the circumstances of the case, did not call for an
immediate decision by Acting Chief Justice and could have
waited for the appointment of the Chief Justice of the High
Court. In other words, no statutory provision can stand in
the way of constitutional provision in case of conflict
between them.
Thus, having examined all aspects and in the light of
what is stated above we are of the view that the High Court
was right in dismissing the writ petition. We do not find
any good ground or valid reason to disturb the judgment
under challenge. Consequently the appeal is dismissed
leaving the parties to bear their own costs.