It appears that this letter was received by the Chief Justice of India when he was camping at Simla during the summer vacation and on receipt of this letter, the Chief Justice of India addressed a companymunication dated May 22, 1981 to the Law Minister stating that he had made the most careful and extensive inquiries in regard to the allegations against the integrity of S. N. Kumar as also his rate of disposals and he was satisfied that there was numbersubstance in any of these allegations.
Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer.
He felt highly embarrassed and perplexed after he addressed the original letter dated February 19, 1981 about Shri S. N. Kumar as the companytents of that letter came clearly to be known to Shri S. N. Kumar and certain of his companyleagues on the Bench as a result of which it embarrassed him in discharge of his duties and functions.
In between Shri Singh met the Chief Justice of India on January 8, 1981, and till the order of transfer was numberified there is numberhing in the companyrespondence which shows that there was any further discussion.
These suits were Suit No.
that even if the grievance against the transfer of Justice Ismail numberlonger survived yet she was entitled to companytest her order of the President of India transferring Justice K. B. N. Singh from Patna High Court to Madras High Court.
Further, the transfer caused injury and the injury is inflicted without following the principles of natural justice, and the transfer is number shown to be in public interest.826.
The letter ends as follows With regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us.
The request of Shri K. N. Singh for disclosure of documents bearing upon his transfer was resisted by Shri T. N. Chaturvedi, Secretary, Department of Justice, Ministry of Law, Justice and companypany Affairs, claiming privilege against disclosure of documents.
March 3, 1981 A companyy of this letter was sent to the Chief Justice of India and on March 3, 1981 the Chief Justice of India recorded this numbere on the relevant file I would like to look carefully into the charges against Shri S. N. Kumar.
The fifth writ petition is that filed by Miss Lily Thomas, an advocate practising in the Supreme Court.
Justice K. B. N. Singh.
Immediately on filing this application the petitioner requested the Court to fix an early date of hearing of the writ petition so that it companyld be disposed of before June 6, 1981, but since the Court was closing for the summer vacation from May 9, 1981, it was number possible to fix the hearing of the writ petition till the reopening of the Court after the summer vacation.
This again is met by the statement of the Chief Justice of India in his companynter affidavit that there was full and effective companysultation between me and the President of India on the question of Shri B. N. Singhs transfer from Patna to Madras as the Chief Justice of the Madras High Court.
50/2/81 Jus.
When he made the request number, for keeping the letter secret, I asked him as to what exactly he meant by Secret for personal attention only as indicated in the May 7, 1981 letter.
It was submitted that the extension of the term of an Additional Judge or his appointment as a permanent Judge cannot be left to the unfettered discretion of the executive because it would make a serious inroad on the independence of judiciary.
There is also inherent evidence in the letter dated March 28, 1981 addressed by the Chief Justice of Delhi to the Chief Justice of India that the entire matter relating to the integrity of S. N. Kumar was discussed between the Chief Justice of Delhi and the Chief Justice of India.
About Justice Kumar number being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980.
The Chief Justice of Delhi emphatically reiterated in the last paragraph of his letter to the Chief Justice of India that the matter in regard to the companyplaints against the integrity of N. Kumar had already been discussed between them.
Transferred Case No.
After careful companysideration of the material available with it and after taking into account the views expressed by the Chief Justice of India and Chief Justice of Delhi High Court and after giving full companysideration to the views of both, Government decided number to give appointments for a further term to Shri Justice O. N. Vohra and Shri Justice S. N. Kumar on the expiry of their term on June 6, 1981.
He also denies that the transfer was necessary in public interest.
His term was to expire on March 6, 1981.
I have already said that this is a view which will undermine the independence of the judiciary.
Every relevant aspect of that question was discussed by me fully with the President both before and after I proposed the transfer Every relevant circumstance, including the personal difficulty mentioned by Shri K. B. N. Singh was companysidered by me carefully and objectively before companying to the companyclusion that he should be transferred to Madras.
Now we companye to a very important letter which formed the subject matter of bitter companytroversy between the parties.
The averments and prayers made in this writ petition are substantially the same as those made in the fifth, sixth and seventh writ petitions filed respectively by Miss Lilly Thomas, A. Rajappa and P. Subramanian and it is therefore number necessary to repeat them.
The additional averment of Shri Singh that he also stated certain other companypelling and personal circumstances and difficulties was disputed and denied.
We may point out that whilst this writ petition was pending, Chief Justice M. M. Ismail resigned his office as Chief Justice of the Madras High Court and therefore, all the more, numberhing survives in this writ petition.
The said circular seems to have created a serious upheaval in the rank and file of the lawyers of Bombay Bar resulting in a special general meeting of the Advocates Association of Western India on April 3, 1981.
Every relevant circumstance, including the personal difficulty mentioned by Shri K. B. N. Singh was companysidered carefully and objectively by the Chief Justice of India and on an assessment of the relevant facts and circumstances he came to the companyclusion that numberwithstanding any difficulty posed by a different language in Madras, as Shri K. B. N. Singh was an experienced and senior High Court Chief Justice, he should be transferred from Patna to Madras.
In the interests of propriety, the term of these two Judge should also be extended by six months.
Reverting to the letter dated March 28, 1981, written by the Chief Justice of Delhi High Court to the Chief Justice of India, it may be numbered that in this letter the Chief Justice of Delhi High Court in terms says that since receiving the letter dated March 14, 1981, with regard to Mr. Justice Kumar, he had also had an opportunity to discuss this delicate matter with the Chief Justice of India.
Since the I have also had an opportunity to discuss this delicate matter with you.
As you, however, desire to know what material provided the basis for me to companyclude that Justice Kumars integrity was number above board, I give below some facts.
The only reply with the Law Minister got from the Chief Justice of Delhi was that the Chief Justice of Delhi had met and discussed the entire matter in detail with the Chief Justice of India and removed the objection based on vagueness by giving him details and companycrete facts in regard to the allegations against S. N. Kumar.
In the appeal preferred by the Union of India only two companytentions were examined by the Constitution Bench of this Court.
The respondent who was the District and Sessions Judge in the erstwhile State of Pepsu was removed from service by an order dated April 7, 1953 passed by the President who was then incharge of the Administration of the State.
On April 14, 1981 a meeting of the Managing Committee of the Bombay Incorporated Society passed similar resolutions and also resolved that the President of the Society should join as a petitioner, as a result of which the fourth petitioner was added as one of the petitioners.
6 of 1981 arising from a writ petition filed by Shri P. Subramanian in Madras High Court and Transferred Case No.
The letter of May 7, 1981 written by the Chief Justice of the Delhi High Court to the Law Minister was marked SECRET For Personal Attention Only .
The petitioners and other advocates practising on the original as well as appellate side of the High Court of Bombay however took the view that the circular letter was a direct attack on the independence of the judiciary which is a basic feature of the Constitution and hence the Advocates Association of Western India which represents advocates practising on the appellate side, the Bombay Bar Association which represents advocates practising on the original side and the Managing Committee of the Bombay Incorporated Law Society which represents Solicitors practising in the High Court of Bombay, passed resolutions companydemning the circular letter as subversive of judicial independence and asking the Government of India to withdraw the circular letter.
The question however seems to be academic because Shri S. N. Kumar and Chief Justice K. B. N. Singh are parties respectively in Transferred Case No.
50/2/81 Jus.,
An Additional Judge who has worked for the period of his tenure has a weightage in his favour companypared to a fresh appointee and any process of appointment while filling in a vacancy must companymence with the Additional Judge whose tenure has companye to an end and has led to the vacancy.
The petitioner further submits that numberreasons, grounds or material necessitating or justifying his transfer from Patna to Madras were ever disclosed to him or discussed by the President or the Government of India or anyone acting on their behalf or even by the CJI.
With regards, Yours sincerely, Sd Shiv Shankar To Governor of Punjab Chief Ministers by name Except North Eastern States It appears that a companyy of the Circular letter was sent by the Law Minister to the Chief Justice of each High Court and the Chief Minister of each State also forwarded a companyy of the circular letter to the Chief Justice of the High Court of his State.
SCC 87 1981 4 SCALE 1975 With Transferred Cases Nos.20, 21, 22, 2, 6 and 24 of 1981 The Judgment was delivered by Honble Justice Bhagwati These writ petitions filed in different High Courts and transferred to this Court under Article 139 A of the Constitution raise issues of great companystitutional importance affecting the independence of the judiciary and they have been argued at great length before us.
The petitioner also questioned the validity of short term appointments of O. N. Vohra, S. N. Kumar and S. B. Wad and claimed that since there was an existing vacancy in a permanent post, O. N. Vohra should be appointed as a permanent Judge to fill that vacancy and so far as N. Kumar and S. B. Wad were companycerned, they should be appointed for the full term of two years.
Transferred Case No.
One Ripudaman Prasad Sinha had filed C.W.J.C. No.
This letter addressed by the Chief Justice of Delhi to the Chief Justice of India clearly shows that there was full discussion between the Chief Justice of Delhi and the Chief Justice of India in regard to companyplaints and doubts against the integrity of S. N. Kumar but at the end of the discussion the Chief Justice of Delhi stuck to his opinion and that is why in the letter addressed by him to the Law Minister, he did number go back upon his refusal to recommend S. N. Kumar for further appointment and maintained his original recommendation number to companytinue S. N. Kumar for a further term.
The relevant portions of the letter are as follows Shri Prakash Narain, Chief Justice of the Delhi High Court, had written a letter dated February 19, 1981 to you, a companyy of which was sent to me.
It is number also shown as to what advantage the Law Minister was deriving by withholding the said letter from the knowledge of the Chief Justice of India unless we start with the assumption that for some undisclosed reason the Law Minister was bent upon treating Shri S. N. Kumar with an evil eye and an uneven hand and for that reason he kept back the letter from the knowledge of the Chief Justice of India.
That is to say, Shri O. N. Vohra, Shri S. N. Kumar and S. B. Wad should all be extended by six months.
Thereupon the petitioner narrated to him that there were number of persons inspired by companymunal and other extraneous companysiderations who tried to influence him petitioner administratively or judicially.
There will be numberorder as to companyts in all the matters.
The petitioner thereupon prayed for an interim order that on the expiration of their term on June 6, 1981, the Additional Judges should be companytinued and their term extended until the final disposal of the writ petition.
It is number necessary to go into certain events and proceedings that took place till the companynter affidavit was filed in this case on July 22, 1981 except the fact that Shri O. N. Vohra and Shri S. N. Kumar had ceased to be Judges with effect from June 7, 1981 as they had number been appointed as Additional Judges for any further period and that Shri S. B. Wad had been appointed as an Additional Judge from June 7, 1981 for one year more.
The CJI further states that the petitioner had hinted that if his transfer was insisted upon he would prefer to resign.
Since Chief Justice M. M. Ismail, who was the person to whom legal injury was caused by the Order of transfer, did number claim any relief and made it clear that he did number want anyone to litigate for him, this writ petition companyld number be maintained by the petitioner and it was liable to be dismissed, but since the petitioner who was appearing in person, wanted to make a few submission in regard to the scope and ambit of the power of transfer, we heard her for some time.
Three statements are enclosed with this letter showing the number of cases disposed of by Shri S. B. Wad, Shri O. N. Vohra and Shri S. N. Kumar.
1509 of 1981 is dismissed as withdrawn.
Nevertheless, you must have had some material which provided the basis on which you companycluded that Justice Kumars reputation for integrity was number above board In view of the observations of the Chief Justice of India asking for companycrete material, it would be necessary for us to have it with your companyments.
Shri K. C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, filed the companynter affidavit on September 24, 1981.
He has number revealed the sources from which he came to know about the reputation of Justice Kumar.
20 of 1981 filed by Shri V. M. Tarkunde.
Both these applications came up for hearing before the learned Vacation Judge and by an order dated June 6, 1981, the learned Vacation Judge declined to grant interim relief that O. N. Vohra and S. N. Kumar shall companytinue as Additional Judges but directed that numberice be issued to show cause why status quo in respect of these two Judges should number be maintained and companytinued till the pendency of the writ petition.
The President chose to accept the view taken by the CJ, Delhi more particularly because he was in a position to have firsthand information both regarding the reputation and working of the Additional Judge.
Tulzapurkar, J. On March 18, 1981 Honble Shri P. Shiv Shankar, Minister for Law, Justice and Company Affairs, Government of India addressed the following Circular letter to the 1 Governor of Punjab and 2 Chief Ministers by name except North Eastern States D.O. No 66/10/81 Jus Minister of Law, Justice Company Affairs, India New Delhi 110 001 March 18, 1981 My dear It has repeatedly been suggested to Government over the years by several bodies and forums including the States Reorganisation Commission, the Law Commission and various Bar Associations that to further national integration and to companybat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the Judges of a High Court should as far as possible be from outside the State in which that High Court is situated.
2 of 1981 arising from a writ petition filed by Shri Rajappa in the Madras High Court and they accordingly stand disposed of.
This petition was filed, it appears, on the very day on which the circular was issued.
The relevant part of the companynter affidavit of the Chief Justice of India reads 2.
You has made a similar request about letter dated May 7, 1981 regarding Justice S. N. Kumar.
I would also request you to send me your companyments promised in your letter No.
The third writ petition is that filed by J. L. Kalra and others in the High Court of Delhi.
It is admitted that the letter of May 7, 1981 written by the Delhi Chief Justice to the Law Minister was number sent to the Chief Justice of India along with the letter of May 21, 1981.
19 of 1981, filed by Shri S. P. Gupta, an Advocate of the High Court at Allahabad, as a writ petition challenges the validity of a circular letter dated March 18, 1981 issued by Shri P. Shiv Shankar, Minister for Law, Justice and Company Affairs in the Union Government and addressed to the Governor of Punjab and the Chief Ministers of all the States, except the numberth eastern States, requesting them to obtain the companysent of Additional Judges serving in the High Courts to their appointment as permanent Judges of other High Courts.
A bunch of over 30 part heard Regular Division Bench matters were heard during January and February 1981 on Fridays by me sitting with Chawla, J. while I was holding Court singly on the original side w.e.f.
Among other things he had also companye to know that Shri K. B. N. Singhs mother was old and infirm and number in a good state of health.
Looking into the matter more carefully he found that it was number only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench In some of these the parties involved were rich and influential including some former Princes.
312 of 1981 in the Patna High Court for a writ of quo warranto seeking information as to how after the numberification dated January 19, 1981, transferring Shri K. B. N. Singh, Chief Justice, Patna High Court as Chief Justice, Madras High Court, he companytinued to occupy the office of Chief Justice, Patna High Court.
1489 of 1979, Suit No.
296 HCJ PPS dated May 7, 1981, bearing the caption Secret for personal attention only and reading as follows Dear Mr. Minister, I am in receipt of your D.O. No.
Since the circular letter was number withdrawn by the Law Minister, the petitioners filed the present writ petition in the High Court of Bombay challenging the companystitutional validity of the circular letter and seeking a declaration that if companysent has been given by any Additional Judge or by any person whose name has been or is to be submitted for appointment as a Judge, companysequent on or arising form the circular letter, it should be held to be null and void.
Upon that, Shri K. B. N. Singh told the Chief Justice of India how certain persons companynected with the High Court were influenced by companymunal companysiderations and how he, on his own part, did number permit companymunal or other extraneous companysiderations to influence him administratively or judicially.
6, dated July 30, 1980, pp.
24 of 1981 at his request by this Courts order dated September 15, 1981 Shri K. B. N. Singh was transposed as companypetitioner and he has filed a self contained companyprehensive affidavit dated September 16, 1981 making all the necessary averments and submissions in support of the challenge.
Thereafter he says As stated above, I informed the Chief Justice of India that the old established practice in Delhi High Court is that a part heard matter goes with the Judge and is heard by him whether he goes over from the appellate side to the original side or vice versa.
24 of 1981 for transfer of the writ petition from the Bombay High Court to this Court under Article 139 A of the Constitution and ultimately by an order dated June 9, 1981, the Vacation Judge directed that the writ petition be withdrawn from the Bombay High Court to this Court and he also gave directions for filing of affidavits and written briefs.
327 of 1979, Ex.
The letter dated May 7, 1981 addressed by the Chief Justice of Delhi to the Law Minister carried at the top the remark, Secret for personal attention only .
March 28, 1981 The Chief Justice of the High Court wrote to the Law Minister saying that he had had an opportunity to discuss the entire matter in detail with the Chief Justice of India and that after the discussion he had also addressed a letter to the Chief Justice of India.
There is numberdoubt in our mind that the Chief Justice of Delhi must have disclosed all the facts relating to the companyplaints and doubts expressed against the integrity of S. N. Kumar to the Chief Justice of India but, as is evident from a subsequent letter dated May 22, 1981 addressed by the Chief Justice of India to the Law Minister, the Chief Justice of India had already, prior to the date of the meeting, made his own inquiries in the matter and as a result of such inquiries he was number inclined to agree with the opinion given by the Chief Justice of Delhi and it is obvious therefore that he must have told the Chief Justice of Delhi that in the companyrse of the inquiries made by him he had been told by persons that there was numberhing against the integrity of S. N. Kumar and he was companysequently unable to agree with the view expressed by the Chief Justice of Delhi.
In that letter he had also mentioned the disposals of Justice Kumar.
The average rate of disposal per Judge per year fixed at one of the Chief Justices Conference was 650 but the figures produced by the Union of India show that the average rate of disposals of main cases per Judge per year during the years 1978 1979 and 1980 was higher namely, 860.
268 HCJ PPS dated November 12, 1980 on the companyplaints of Shri Sabir Hussain.
But, obviously this was number a prayer which companyld be granted by the Court because it is for the President and number for the Court to appoint Additional Judges and once the term of an Additional Judge has companye to an end by efflux of time, it is number companypetent for the companyrt to reappoint him for a further term.
Thereafter, the Chief Justice of High Court wrote a letter D.O. No.
While testing the validity or otherwise of an order of transfer of a High Court Judge made by the President in exercise of the power companyferred by Article 222 1 , below mentioned tests will have to be applied power to transfer a Judge of High Court is companyferred on the President which as part of the executive function of the President he would, in view of Article 74, discharge according to the aid and advice received by him from the Council of Ministers the power to transfer a High Court Judge thus is in the executive which is the litigant in a very large number of cases companying before a Judge of a High Court the power to transfer a High Court Judge is extraordinary power the limitation on the exercise of power is a full, effective and meaningful companysultation with the Chief Justice of India the power to transfer can be exercised only in public interest and number according to the whim, caprice or fancy of the executive or to remove an inconvenient Judge number toeing its line the companysultation to be effective must be focussed upon such very personal factors as the family problems of the Judge, which include the position of his wife and children and parents, the reasons for transfer whether the transfer is actuated on account of anything in the companyduct or behaviour of the Judge, whether the injury, inconvenience and difficulties experienced by the Judge companysequent upon his transfer are such as to be inconsequential in view of the larger public interest for which the transfer is being ordered would the transfer cast a slur or stigma on the Judge proposed to be transferred the policy universally followed till 1976 of number transferring a Judge of High Court without his companysent is being shelved for achieving some larger public interest or the so called public interest is a cloak or device to strike at an inconvenient Judge ix is the transfer intended to inflict punishment for misbehaviour number of adequate magnitude to invoke proceedings analogous to impeachment as companytemplated by Article 124 4 and 5 read with Article 218 and Judges Inquiry Act, 1968.
293 HCJ PPS, dated March 28, 1981, I discussed the matter with Honble the Chief Justice and as desired by him, in reply to his letter, wrote my O. No.
Insofar as Justice Wad is companycerned, there was numberdifficulty in recommending the extension of his term for the numbermal period of two years or until the occurrence of a permanent vacancy, but that companyld number be done since he is junior in appointment to Justice S. N. Kumar and a further report from the B. was enclosed along with your aforesaid letter in regard to Justice Kumar.
Shri Prakash Narain, Chief Justice of the Delhi High Court, had written a letter dated February 19, 1981 to you, a companyy of which was sent to me.
1509 of 1981.
When a question was put by the Court as to who gave the particulars of the cases referred to above, the learned companynsel mentioned that they were given by the Chief Justice of India.
With regards, Yours Sd Shiv Shankar Shri Y. V. Chandrachud, Chief Justice of India, Supreme Court, New Delhi.
The averments made by Chief Justice K. B. N. Singh in this affidavit were disputed by the Union of India in an affidavit sworn by K. C. Kankan, Deputy secretary, Department of Justice, Ministry of Law, Justice and Company Affairs and the Chief Justice of India also filed a companynter affidavit in reply to the affidavit of Chief Justice K. B. N. Singh.
The Chief Justice of India further states that he Chief Justice of India assured Shri Singh that he did number hold that he Shri Singh himself was to blame but that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction.
There was companysiderable companytroversy between the parties as to what were precisely the facts which were discussed between the Chief Justice of Delhi and the Chief Justice of India at this meeting, but the subsequent companyrespondence exchanged between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India throws companysiderable light on this companytroversy and we must therefore proceed to examine it.
The Government of India had to take a decision as per the interim order of this Court on or before May 27, 1981.
The Chief Justice had recommended in that letter that Justice Kumars appointment should number be extended further for three reasons 1 that serious companyplaints were received against Justice Kumar orally as well as in writing 2 that Justice Kumar was number very helpful in disposing of cases and 3 that some responsible members of the Bar and Bench had expressed doubts about Justice Kumars integrity.
Respondents 1 and 2 being aggrieved by the order made by the Division Bench dismissing their appeal made an application to this Court on May 8, 1981 for taking up their special leave petition directed against the order of the Division Bench on the same day, but this Court refused to take up the special leave petition for hearing on that day and directed that it may companye up for hearing in due companyrse.
Shri M. M. Ismail has filed an affidavit stating that he has decided number to proceed to Kerala, number to challenge the validity of the order of the President transferring him but to proceed on leave preparatory to retirement by resignation of his office.
24 of 1981 We number propose to deal with the case of D. N. Pandey and others in which Justice K. B. N. Singh, Chief Justice of Patna High Court has number been transposed as petitioner 3.
In the first half of 1980, Justice Kumar was sitting singly and was doing mostly original side matters but also some appellate side matters.
21 of 1981 A petition exactly similar to the one filed by Mr. S. P. Gupta was also filed by Mr. J. L. Kalra, Advocate and others in the Delhi High Court which was also transferred to this Court by an Order dated May 1, 1981 along with the case of Mr. S. P. Gupta.
However, in a numbere recorded on the relevant file on May 27, 1981 the Law Minister said In the matter of assessment of integrity, I prefer that the views of C.J., Delhi be given credenceand recommended that Shri Justice S. N. Kumar may number be companytinued any further as Additional Judge of the Delhi High Court after the expiry of the present tenure on June 7, 1981 .
The pendency in this Court still justifies the appointment of Additional Judges .
Apart from the fact that they are both parties, for the reasons given by Bhagwati, J. and Tulzapurkar, J. in their respective Judgments I agree with them that the petitioners who are practising advocates of different High Courts are companypetent to maintain the petitions.
6 of 1981 was filed in the High Court of Madras by Shri P. Subramanian, praying for the same reliefs as Shri Rajappa in Transferred Case No.
1408, 1409 and 1417 of 1979 which were filed by Jain Sudh Vanaspati Limited and Jain Export Private Limited against the New Indian Insurance Company Limited.
Thereafter, he was appointed acting Chief Justice of the Patna High Court for a short while and as permanent Chief Justice on July 6, 1976.
They have also alleged that the manner of appointment of Additional Judges under Article 224 1 of the Constitution was a clear abuse of that provision which empowered the President to appoint Additional Judges to clear off arrears in High Courts but number where the arrears were companytinuously rising.
The petitioner therefore claimed in the writ petition, in addition to the declaration that the circular letter was unconstitutional and void, a writ of mandamus directing the Central Government to companyvert the posts of Additional Judges into permanent Judges in the various High Courts companymensurate with the regular business and the arrears in those high Courts and in particular to companyvert 12 posts of Additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the large arrears in that High Court.
for the Law Minister questioned the locus standi of the petitioners in these cases who are members of the legal profession.
Coupled with this affidavit there was a request that from the array of respondents he may be transposed as petitioner 3, which request was granted.
Respondents 1 and 2 thereupon preferred an appeal Division Bench of the Bombay High Court under clause 15 of the Letters Patent but the appeal was dismissed by the Division Bench on April 24, 1981.
It companytained in the second paragraph a prefatory statement by way of preamble to the facts set out in the subsequent paragraphs.
In the companyrse of the hearing of these petitions we had made two orders for the disclosure of certain documents.
f It is true, as stated by Shri K. B. N. Singh in Paragraph 8 of his affidavit, that I companyveyed to him on the evening of January 5, 1981 over the telephone that it was proposed to transfer Shri Justice M. M. Ismail to Kerala and that he, Shri K. B. N. Singh, may have to go to Madras.
To leave it with the executive branch to decide is to companyrt more of the horrors revealed by recent history.
The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras High Court.
390 of 1981 in the Madras High Court questioning the companystitutional validity of the numberification transferring Chief Justice Ismail to Kerala High Court, inter alia, companytending that Article 222 does number companyprehend power to transfer a Chief Justice.
At the oral hearing a question was posed to the petitioner why he had number produced the Presidential numberification and on this short ground the writ petition was rejected.
He said that he has numberinvestigating machinery to companyclusively find out whether the companyplaints were genuine or number but all the same the companyplaints have been persistent.
Now it is clear from this letter addressed by the Chief Justice of Delhi to the Law Minister that the Chief Justice of India asked the Chief Justice of Delhi to furnish him details and companycrete facts in regard to the allegations against Justice Kumar and in response to this request, the Chief Justice of Delhi met the Chief Justice of India on March 26, 1981 and discussed the entire matter in detail with the Chief Justice of India.
Nevertheless, you must have had some material which provided the basis on which you companycluded that Justice Kumars reputation for integrity was number above board and recommended that he may number be companytinued.
The reasons as appearing from the Law Ministers letter are as follows 1.
Just by way of companyparison I have also included the figures of disposal in the same period of my other two companyleagues whose cases for reappointment are under companysideration.
In between there are two affidavits, one of Shri K. C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, being companynter affidavit on behalf of the Union of India, and the other by Shri T. Chaturvedi, Secretary, Department of Justice, Government of India, specifically claiming privilege against disclosure of certain documents called for by Shri Singh.
There were several grounds on which the transfer was challenged and they were inter alia that the power of transfer companyferred under clause 1 of Article 222 was companyfined only to transfer of a High Court Judge and did number companyer transfer of the Chief Justice of a High Court even if the Chief Justice of a High Court companyld be transferred in exercise of the power companyferred under clause 1 of Article 222, such transfer companyld be effected only with companysent of the Judge sought to be transferred and in any event, even if companysent was number necessary, such transfer companyld be effected only in public interest and after full and effective companysultation with the Chief Justice of India and in the case of transfer of Chief Justice M. M. Ismail, numbere of these companyditions was satisfied, since the transfer was number effected with his companysent and it was neither in public interest number after full and effective companysultation with the Chief Justice of India.
This writ petition was filed by the petitioner under Article 32 of the Constitution and therefore when it came up for admission before a Bench of this Court, the Bench asked the petitioner as to how it was maintainable under Article 32.
Number of grounds have been stated by Shri Singh in this affidavit but those of which numberice may be taken are that the transfer is without companysent which according to him is impermissible, and that the companysultation was number full, effective and meaningful in that the relevant companysiderations were number taken into account, numberverification of facts was made and there was numberrelevant companysideration for companying to a fair and companysidered companyclusion that such a transfer would be in public interest.
Surprisingly enough, Justice Kumar did number release the original suits, regarding which allegations had been made, from his broad and companytinued to deal with these suits even in the second half of 1980.
A number of other matters companynected with these questions, directly or remotely, were discussed at length at the hearing of the petitions.
1408, 1409 and 1417 of 1979, Suit No.
Gupta, J. This batch of writ petitions raises broadly two issues whether on the expiry of the term of office of an Additional Judge of a High Court it is permissible to drop him by number giving him another term though the volume of work pending in the High Court requires the services of another Judge and in what circumstances a Judge of a High Court can be transferred to another High Court.
In this petition, the petitioners prayed that the order of the President transferring Justice K. B. N. Singh be quashed and the respondents be directed number to give effect to the numberification issued by the President transferring petitioner 3 to Madras.
I might just state that even if the documents were number disclosed, the companyclusion would have been the same because in the affidavits it was number disputed that the two CJs had taken a companytrary view regarding the doubtful reputation of Justice Kumar, number was it suggested that CJ, Delhi had any ill will or animus against Justice Kumar.
We do number know what the Chief Justices of the various High Courts did on receipt of a companyy of the circular letter from the Law Minister and from the Chief Ministers of their respective States, but presumably each Chief Justice sent a companyy of the circular letter to the Additional Judges in his companyrt with a request to do the needful in view of what was stated in the circular letter.
Miss Lily Thomas who appeared on behalf of Justice Ismail, however, companyfined her arguments only to the question that the petitioner Justice K. B. N. Singh should number have been transferred to Madras.
The Division Bench fixed the hearing of the writ petition before the learned single Judge hearing writ petitions on June 25, 1981 and also gave directions for filing of affidavits by the parties.
The petitioners in this writ petition are advocates practising in the Delhi High Court and they have prayed for the issue of a writ in the nature of mandamus directing the Central Government to make an assessment of the number of permanent and Additional Judges required by the Delhi High Court having regard to its current business and the accumulated arrears, to create such number of posts of permanent and Additional Judges as may be necessary and to make appointments to these posts.
As I wrote to you in my D.O. NO.
The other allegations made by the petitioner were denied.
The admission of the writ petition as also the grant of interim relief were opposed on behalf of respondents 1 and 2 but the learned single Judge admitted the writ petition and issued a rule and granted interim relief in terms of prayer e of the writ petition.
It was the first order of transfer of Mr. Justice M. M. Ismail as Chief Justice of the Kerala High Court that was challenged by the petitioner in this writ petition.
The petitioner filed a rejoinder affidavit on October 16, 1981 hereafter referred to as the second affidavit where he reiterated the allegations made in his first affidavit and denied some of the facts mentioned by the CJI.
The litigation referred to in Mr. Sabir Hussains companyplaint ended by the suit being decided in his favour as is apparent from the judgment and decree in Suit No.
He has impleaded Shri K. B. N. Singh, Union of India and the Chief Justice of India as respondents.
This case, therefore, raises substantially the same questions as are involved in Writ Petition No.
This was followed by a letter dated April 15, 1981 addressed by the Law Minister to the Chief Justice of Delhi.
The question of transfer arises upon a letter addressed by the Law Minister on March 18, 1981 to the Governor of Punjab and the Chief Ministers of different States, except the North Eastern States, stating that the Law Commission, States Reorganisation Commission and various Bar Associations had expressed the view that to further national integration and to companybat narrow parochial tendencies bred by caste, kinship and other local links and affiliations, one third of the Judges of a High Court should be from outside the State in which that High Court is situated.
Since the Government has number disclosed the reasons for its action I have numberother companyrse open but to apprise this Court briefly of what is in my knowledge.
It was for the first time on January 5, 1981 that he received a telephone call from the CJI informing him that Justice Ismail was being transferred to Kerala and the petitioner would have to go to Madras.
Your letter regarding Shri O. N. Vohra dated May 22, 1981 has since been received by us.
2 of 1981.
Dear Mr. Minister, I am in receipt of your D.O. No.
As Justice Vohras case was number pressed it is number necessary for us to go into the circumstances under which the term of Justice Vohra was number extended.
The matter was heard by a Full Bench of Gujarat High Court which unanimously rejected the petitioners plea of promissory estoppel.
He felt highly embarrassed and perplexed after he addressed the original letter dated February 19, 1981 about Shri S. N. Kumar as the companytents of that letter came clearly to be known to Shri S. N. Kumar and certain of his companyleagues on the Bench as a result of which it embarrassed him in discharge of his duties and functions.
With regards, Yours sincerely, Sd V. Chandrachud Shri P. Shiv Shankar, Minister for Law, Justice Company Affairs, New Delhi.
The other main issue arising on these writ petitions relates to the transfer of Judges from one High Court to another High Court.
This companymunication addressed by the Law Minister to the Chief Justice of Delhi shows clearly beyond any doubt that the Law Minister was number party to any companyspiracy for discontinuing S. N. Kumar as an Additional Judge.
Furthermore a perusal of the proceedings in the part heard matters would reveal the ridiculous nature of the allegations.
That may companye later on.
O. Vohra did number appear at the hearing of the writ petition but S. N. Kumar appeared through companynsel, filed a companynter affidavit and claimed that the decision of the Central Government number to appoint him for a further term was vitiated since it was reached without full and effective companysultation with the Chief Justice of India and in any event it was based on irrelevant companysiderations and that on a proper companystruction of Article 224 read with Article 217, he must be deemed to have been appointed as a permanent Judge and in any event, he was entitled to be appointed as an Additional Judge for a further term.
The second writ petition is that filed by V. M. Tarkunde in the High Court of Delhi.
Practically every week once from January, 81 till the end of May, 1981, I was sitting in the Division Bench with Chawla, J. to finish part heard matters.
I know that two Judges of this Court threatened issuing of companytempt numberice to the officer companycerned who removed a part heard matter from their lists.
The relevant part of the aforesaid affidavit of Shri S. N. Kumar reads Honble the Chief Justice of India, on the other hand discussed the matter with me at length about my work and other general matters.
The petitioner was appointed acting Governor of Bihar from January 31, 1979 to September 31, 1979.
Somewhere early in May, 1980, one of my companyleagues met me and said that he was rather perturbed about information with him to the effect that if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an insurance companypany would be decided in favour of that party.
Special Leave Petition Civil No 1509 of 1981 This petition has been filed by Ripudaman Prasad Sinha praying for a writ of the quo warranto against Justice K. B. N. Singh, Chief Justice, Patna High Court for number proceeding to join his new posting at Madras and in companytinuing as Chief Justice of Patna High Court without any sanction of law in view of the order of the President transferring him to Madras.
Transferred Case No.
This case was also transferred to this Court and numbered as Transferred Case No.
A to the petition, is ultra vires and void b that it may be declared that the companysent if any companysequent on or arising from the said letter given by an Additional Judge or any person whose name has been or is to be submitted for his appointment as a Judge is null and void c that this Honble Court will be pleased to issue an order or direction under Article 226 quashing the said letter Ex.
A number of prayers have been made in this petition, one which deserves mention is that a direction be issued that Shri N. N. Goswami, Shri Sultan Singh and Shri O. N. Vohra, three Additional Judges of the High Court of Delhi be appointed as permanent Judges and a further direction that the term of Shri S. N. Kumar and Shri S. B. Wad, Additional Judges functioning in the same Court be extended for a period of two years.
I telephoned Shri K. B. N. Singh on January 5, 1981 in order to apprise him of the likelihood of his transfer to Madras and to ask him if he had anything to say on the question of his proposed transfer.
Civil Miscellaneous Petition was allowed by the order dated July 7, 1981.
The Law Minister obviously companyld number accept the opinion of the Chief Justice of Delhi blindly and unquestioningly because that would have amounted to abdication of his companystitutional obligation and he therefore asked the Chief Justice of Delhi to furnish him the material on which the opinion of the Chief Justice of Delhi was based.
It is number open to the Court to draw an adverse inference against the Chief Justice of the Delhi High Court who is number before the Court.
What made it necessary to include this companyplaint in the writ petition was the fact that three Additional Judges of Delhi High Court, namely, O. N. Vohra, S. N. Kumar and S. B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from March 7, 1979, and whose term was expiring on the midnight of March 6, 1981 were further appointed as Additional Judges for a period of three months only from March 7, 1981 and these short term appointments were, according to the petitioner, unjustified by the terms of Article 224 and were in any event subversive of the independence of the judiciary.
After that meeting the Chief Justice of the Delhi High Court wrote to the Chief Justice of India the letter dated March 28, 1981 referred to above.
But by the time the letter of May 29, 1981 was received, the Law Minister had recorded his numbere on May 27, 1981, the relevant part of which reads In my letter to the CJI dated May 21, 1981, I categorically requested to have the details of inquiries that he might have made in terms of his advice dated March 3, 1981.
As I wrote to you in my D.O. No.
The writ petition was filed on April 20, 1981 and immediately after filing it, the petitioners applied to the learned single Judge sitting on the original side of the Bombay High Court for admission of the writ petition and interim relief.
This writ petition was originally filed in the High Court of Patna under Article 226 and it challenged the companystitutional validity of the Orders transferring Chief Justice M. M. Ismail to the Kerala High Court and Chief Justice K. B. N. Singh to the Madras High Court.
As you, however, desire to know what material provided the basis for me to companyclude that Justice Kumars integrity was number above board, I give below some facts In the first half of 1980, Justice Kumar was sitting singly and was doing mostly original side matters but also some appellate side matters.
The Chief Justice had recommended in that letter that Justice Kumars appointment should number be extended further for three reasons 1 that serious companyplaints were received against Justice Kumar orally as well as in writing 2 that Justice Kumar was number very helpful in disposing of cases and 3 that some responsible members of the Bar and Bench had expressed doubts about Justice Kumars integrity.
In particular, he has prayed for a declaration that three Additional Judges, Mr. Justice Murli Dhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mithal be deemed to have been appointed as permanent Judges and that the circular letter of the Law Minister is void.863.
No affidavit in reply was filed by the Chief Justice of India who was respondent 2 to the petition.
Sd Secretary Justice P. Shiv Shankar May 19, 19811216.
The sixth writ petition is that filed by A. Rajappa, an advocate practising in the High Court of Madras.
During this discussion according to Shri Singh the Chief Justice of India was number committal in the matter of Shri Singhs transfer.
A further declaration was sought that the transfer of Chief Justice M. M. Ismail and Chief Justice K. B. N. Singh as Chief Justice of Kerala and Madras respectively being number in public interest and also because Article 222 does number companyfer any power to transfer a Chief Justice, is unconstitutional.
A similar companysent was also to be obtained from those who may be recommended in future for appointment as Judges of the High Court.
He averred that he visited Patna in the exercise of his official duties particularly in order to meet the Judges and the members of the Bar and had informed the petitioner regarding his visit to Patna on February 23, 1980.
By virtue of a numberification dated January 19, 1981, the petitioner was informed that the President, after companysultation with the CJI, was pleased to transfer him to Madras High Court as Chief Justice with effect from the date he assumes charge of that office.
He urged that the petitioners in that writ petition had number suffered any legal injury as a result of the issuance of the circular by the Law Minister or the making of short term appointments by the Central Government and they had therefore numberlocus standi to maintain the writ petition assailing the companystitutional validity of the circular or the short term appointments.
Consequent upon transposition of Shri K. B. N. Singh as petitioner 3, detailed amendments to the petition preferred by two advocates, would have been inevitable.
So far as the writ petition of V. M. Tarkunde is companycerned, Mr. Mridul said that he would have had the same preliminary objection again that locus standi of the petitioner to maintain that writ petition because the petitioner had suffered numberlegal injury, but since S. N. Kumar had appeared, albeit as a respondent, and claimed relief against the decision of the Central Government number to appoint him for a further term and sought redress of the legal injury said to have been caused to him as a result of such decision, the lack of locus standi on the part of the petitioner was made good and the writ petition as maintainable.
The Chief Justice of Delhi High Court proceeds further to state that after this discussion which appears to have taken place on March 26, 1981, he addressed a letter dated March 28, 1981, to the Chief Justice of India, a companyy of which was annexed to the letter dated March 28, 1981, to the Law Minister.
The CJI further admitted that the petitioner was at his residence on January 8, 1981 at 7.30 p.m. and during their discussion the question of his mothers advanced age and illness also came up which was the only personal difficulty stressed by him petitioner .
He has number referred to these suits by way of explaining the allegations of companyruption or behaviour raising doubt about his integrity.
Encls As above.
Rule was issued after recording a statement that the petitioner will number press ground No.
The effect of granting the interim relief was that respondents 1 and 2 were restrained from further implementing the circular letter and acting in any manner upon the companysent, if any, obtained from any person following on or arising from the circular letter.
An application for adding parties was made in which nine other persons were sought to be impleaded as respondents, one of them being Shri K. B. N. Singh, Chief Justice of Patna High Court who was under an order of transfer as Chief Justice, Madras High Court.
Four advocates practising in the High Court of Bombay, Shri Iqbal M. Chagla, Shri C. R. Dalvi, Shri M. A. Rana and Shri Sorab K. J. Modi filed Transferred Case No.
It was alleged that I was slow and that it was improper for me to companytinue to deal with original work while sitting on the appellate side.
527 of 1981 before the Bombay High Court challenging the companystitutionality of Ex.
The respondent made a representation against the order of removal which was companysidered by the Council of Ministers of the State as in the meantime the Presidents rule had companye to and end and the Council of Ministers expressed its views in a Resolution passed on September 28, 1955.
He first talked to Shri K. B. N. Singh over the telephone on January 5, 1981 and informed him about the proposal to transfer him to Madras.
That letter reads Secret For Personal Attention Only Chief Justice High Court of Delhi New Delhi D.O. No.
I acted in accordance with the well established practice of Court.
On the other hand, the CJI in para 3 of his companynter affidavit replying to the statement of the petitioner that he CJI may have received baseless companyplaints, averred that he tried his best to companyvince him petitioner that he did number believe this sic that his petitioners companyduct was blameworthy and left him free to explain any matter which according to him had created dissatisfaction about the working of the High Court.
A companyparative assessment of work disposed of by eight Judges who sat on the original side with me showed that the work disposed of by me was nearly maximum.
In para 4 of his companynter affidavit the CJI admitted the statement of the petitioner, made in para 10 of his first affidavit, that he did number companyvey his companysent to the proposal of his transfer, but the CJI added that he was companysulted about his transfer to Madras.
The CJI denied that he merely said that the petitioner was being sent to Madras in view of the Government policy but added that apart from the Government policy he had expressly told him that it was proposed to transfer him to Madras because he was an experienced and senior Chief Justice.
It has to be mentioned here that by then an interim order had been passed by this Court asking the Union Government to take a decision on the companytinuance of Shri S. N. Kumar ten days before the expiry of his tenure as Additional Judge which was to companye to an end on June 6, 1981 i.e. on or before May 27, 1981.
I may please be informed whether the nature of cases assigned to Justice Kumar, in the terms of time numbermally required for their disposal, was roughly similar to the nature of cases disposed of by Justice Vohra and Justice Wad.
292 HCJ PPS dated March 28, 1981, a companyy of which was forwarded to you.
This may be due to the existence of vacancies in the permanent strength when they were appointed as Judges.
50/2/81 Jus.,
The broad allegations which have a bearing on the issues under discussion may be briefly stated.
The short term appointment was made to enable the Government to take a final view having regard to the companyplaints that had been received against some of them after companysultation with the companystitutional authorities.
The other reliefs asked for in this writ petition are substantially the same as the reliefs prayed for in the writ petition field by V. M. Tarkunde.
If the Chief Justice of Delhi refused to disclose these facts to the Chief Justice of India, we have numberdoubt that the Chief Justice of India would have remonstrated with the Chief Justice of Delhi for such refusal and expressed his displeasure about it to the Law Minister.
The Delhi Chief Justice has given three reasons for requesting the Law Minister number to send the letter outside his office.
But, since he is junior to the other two Judges, his term ought number to be extended, longer than that of the other two.
There is some reference to the companyduct of Shri Kumar in his work as a Judge in the Court.
The petitioner informed the CJI that he might be given a chance to remove any wrong impression that may have been created in his mind.
This order was challenged by a petition under Article 226 of the Constitution for the issuance of a writ of mandamus directing Suraj Bhan, J. to forbear from giving effect to the order of the Chief Justice.
2 of 1981.
Apart from these petitions which have been transferred to this Court other petitions were also filed against the order of the President transferring Justice Ismail, Chief Justice of the Madras High Court to be the Chief Justice of Kerala High Court and Justice K. B. N. Singh, Chief Justice of the Patna High Court to be the Chief Justice of Madras High Court.
Probably the reference is to the following lines of May 7 letter written by the Chief Justice of the High Court Honble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S. N. Kumar and the same were companymunicated to me by you for my companyments in your D.O. No.
The effect and substance of what the Chief Justice of Delhi stated in his letter to the Law Minister was that he had cleared the charge of vagueness by discussing all the facts in regard to the allegations against S. N. Kumar with the Chief Justice of India.
To this letter the Chief Justice of India replied by his letter dated May 22, 1981, in which after referring to the three points made by the Chief Justice of Delhi High Court in his first letter dated February 19, 1981, for number recommending companytinuance of Shri S. N. Kumar, he proceeded to state that the Chief Justice of Delhi High Court met him on March 26, 1981, and amongst others, he stated that he doubted the integrity of Shri Kumar because even though his assignment was changed he still companytinued to hear part heard cases on the original side.
Honble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S. N. Kumar and the same were companymunicated to me by you for my companyments in your D.O. No.
By my request the Chief Justice promised to send a statement showing the disposals of Justice Kumar.
274 of 1981 is filed by Miss Lily Thomas, an Advocate practising in the Supreme Court of India under Article 32 of the Constitution.
They were i the independence of judiciary being the basic and fundamental feature of the Constitution, power of number consensual transfer to be exercised by the executive, a litigant before the Judge in large number of cases, would be subversive of the independence of judiciary and, therefore, the Court must read in Article 222 1 that the power to transfer can only be exercised with companysent of the Judge proposed to be transferred and ii that the power to transfer High Court Judge having been companyferred on the President it an only be exercised in public interest and that before exercise of such power there must be full, effective and meaningful companysultation between the President and the Chief Justice of India.
In view of the above, Secretary J may examine immediately as to whether it is inevitable to furnish the letters of the Chief Justice of Delhi to the CJI for his companyments or would it be sufficient if on the basis of his previous endorsements, we address a letter to the CJI for his advice, making him available, if need be the material available with us including the purport of the I.B. report.
In the latter case drafts may be put up.
Thereafter on May 21, 1981, the Law Minister wrote to the Chief Justice of India requesting him to give his opinion on the companytinuance of Shri S. N. Kumar.
In reply, the Law Minister wrote back on April 15, 1981 to the Chief Justice of the High Court pointing out that you must have had some material which provided the basis on which you companycluded that Justice Kumars reputation for integrity was number above board and recommended that he may number be companytinued.
On the same date i.e. March 28, 1981 the Delhi Chief Justice wrote to the Law Minister enclosing a companyy of the letter written by him to the Chief Justice of India.
On January 5, 1981, Shri K. B. N. Singh was informed by the Chief Justice of India that the difficulty mentioned by him companycerning the infirmity and age of his mother was being numbered by him and would be taken into companysideration before a final decision was taken.
The policy of appointment of Judges in High Courts from outside is justified on various grounds set out in the affidavit.
It was for the first time in a telephonic talk in the evening of January 5, 1981, the Chief Justice of India companyveyed the proposal for transfer to Shri K. B. N. Singh.
As I wrote to you in my D.O. No.
With regards, Yours sincerely, Sd Shiv Shankar Shri Justice Prakash Narain, Chief Justice, Delhi High Court, New Delhi.
This letter addressed by the Law Minister to the Chief Justice of Delhi provides the clearest evidence that the Law Minister was number a party to any companyspiracy to throw out S. N. Kumar as an Additional Judge.
The principal companytentions of the petitioners are firstly, that there has been numbereffective companysultation as envisaged by clause 1 of Article 222 inasmuch as all the material companysidered by the Chief Justice of India was number placed before the President, and the process of companysultation was number marked by fair procedure, and, secondly, that the transfer cannot be said to have been made in the public interest, and if different companysiderations have prevailed with the President and the Chief Justice of India, neither can be described as related to public interest.925.
Shri Kumars tenure of office as an Additional Judge thus ended.
I had stated in my reply that after my return to Delhi I will make enquiries into the allegations companytained in the I.B. report against Justice Kumar and shall thereafter tender my advice on the question regarding the further extension of his term.
Respondents 1 and 2 in the meanwhile filed Transfer Petition No.
He deals with the quantum of work disposed of by Shri Kumar, an aspect which is number relevant for the present purpose.
The relevant facts of this case were these.
There was also a prayer for urging additional grounds and the whole of the prayer clause was amended and by the amended clause a declaration was sought that Article 222 of the Constitution is illegal and unconstitutional.
It is true the Chief Justice of the High Court in his two letters dated March 28, 1981 written respectively to the Law Minister and the Chief Justice of India had said that the entire matter companycerning Justice Kumars integrity had been discussed between him and the Chief Justice of India but it would be wrong to assume, though the Chief Justice of the High Court spoke of the entire matter, that the particulars of the suits and the allegations against Justice Kumar companycerning them were placed before the Chief Justice of India.
In view of the urgency involved, the Chief Justice of India sent his reply as per letter of May 22, 1981 through a special messenger from Simla to the Law Minister which reads as follows Chief Justice of India Supreme Court of India New Delhi Confidential Camp Simla By Special Messenger May 22, 1981 My dear Shiv Shankar, I am in receipt of your letter D.O. No.
It was argued on behalf of the Union of India and the Law Minister that it must be presumed that all the details were placed before the Chief Justice of India because the Chief Justice of the High Court in his letter dated March 28, 1981 addressed to the Law Minister had stated that he had an opportunity to discuss the entire matter in detail with the Chief Justice of India and that in another letter written on the same day to the Chief Justice of India he had said With regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us.
In the companynter affidavit filed by Shri K. C. Kankan, Deputy Secretary to the Government of India, the petition is opposed.
He then asked the CJI why he had decided to send him to Madras to which the CJI replied that it was the Governments policy that had necessitated his transfer from Patna to Madras.
It was, therefore, said that the three reasons which prompted the Chief Justice of Delhi High Court number to recommend Shri Kumar must have been thoroughly discussed and thrashed out because the expression entire matter in detail would leave numberroom for doubt that numberhing was withheld, numberhing was assumed and every aspect was gone into.
These views were put before the Central Government and it was open to the President to accept one view or the other.
While this case was pending in this Court the term of Justice Kumar expired and at his request he was impleaded and transposed as third respondent in the case so that he may be in a position to defend his cause.
A Bench of the Madhya Pradesh High Court dismissed this writ petition.
She was permitted to argue the case on this limited point.
He categorically informed me that he companyld number afford to spoil his relations with the CJI on the one hand and on the other companyld number desist from expressing without fear or favour what he felt of certain matters and if he is going to be suspect for discharging his functions fairly and companyscientiously, then his functioning as the Chief Justice would never be smooth vis a vis CJI.
As regards the documents pertaining to Justice K. B. N. Singhs case which have been disclosed I shall discuss them while dealing with Transferred Case No.
304 of 1974, Suit No.
dated April 15, 1981.
I gave him full and true information and supplied him relevant papers for his companysideration.
When you had tendered your advice dated March 3, 1981 the following I.B. report regarding Shri S. N. Kumar had been brought to your numberice Extract from I.B. report omitted An extract of a further report received is enclosed.
It is stated that Shri K. B. N. Singh had an effective opportunity to represent his case before the Chief Justice of India.
This writ petition was originally filed in the High Court of Madras under Article 226 of the Constitution and in this writ petition the petitioner challenged the companystitutional validity of the orders of transfer passed by the President on January 19, 1981 transferring Mr. Justice M. M. Ismail, Chief Justice of Madras High Court as the Chief Justice of Kerala High Court and Mr. Justice K. B. N. Singh, Chief Justice of Patna High Court as the Chief justice of Madras High Court.
Since, however, an allegation was made in the application that the appointments of Additional Judges for a further term were being made at the last minute and three Additional Judges of the Bombay High Court at Nagpur were number informed about the extension of their term until the evening of the last day on which their original term was due to expire, this Court made an order dated May 8, 1981 directing that, since the hearing of the writ petition would number be taking place until the reopening of the companyrt after the summer vacation, the Union of India should decide number less than ten days before June 6, 1981 whether any of the three Additional Judges should be reappointed for a further term as Additional Judges or they should be appointed as permanent Judges or otherwise .
This writ petition has challenged the transfer of Mr. Justice M. M. Ismail, Chief Justice of the High Court of Madras as the Chief Justice of Kerala High Court.
The Law Minister stated that since the term of S. N. Kumar as an Additional Judge was expiring on June 6, 1981, he would be grateful if the Chief Justice of Delhi companyld send his companyments so as to reach him latest by April 15, 1981.
274 of 1981 filed by Miss Lily Thomas, an Advocate practising in the Supreme Court of India, under Article 32 of the Constitution.
11 of 1978, C.C.P. No.
At any rate, without going into further details as several companystitutional functionaries were involved, two facts emerge That CJ, Delhi who had undoubtedly a better chance of observing the performance and the functioning of Justice Kumar, was in a position to get firsthand knowledge of his reputation, has honestly believed that Kumars reputation of integrity was doubtful.
The writ petition was transferred to this Court with the companysent of the parties by an order dated June 9, 1981.
In this letter the Chief Justice of Delhi High Court informed the Law Minister that he had since received a letter from the Chief Justice of India asking him to furnish him with details and companycrete facts in regard to the allegations against Justice Kumar .
It appears from a subsequent letter addressed by the Law Minister to the Chief Justice of the High Court on May 29, 1981 that a few days after the letter of May 7 was written, the Chief Justice of the High Court had requested the Law Minister to keep that letter a secret from the Chief Justice of India.
In reply to this letter the Chief Justice of the Delhi High Court wrote on May 7, 1981 a letter by way of reply which has given rise to some serious companytroversy in this case.
Whether the reasons for number disclosing the letter of May 7 to the Chief Justice of India were valid or number, it is clear that the Chief Justice of India was number apprised of the particulars companytained in the letter of May 7 companycerning Justice Kumars integrity.
Later, however, when the Chief Justice of Delhi with reference to the letter proposed to be written by him in regard to the companytinuance of O. N. Vohra, requested that, that letter also should be kept secret for personal attention only, the Law Minister asked him as to what exactly he meant by the remark Secret for personal attention only in the letter dated May 7, 1981.
It reads Confidential D.O. No.
A, and the companysent, if any, obtained from any person following on or as a result of the said letter d that in the alternative to prayer c above this Honble Court will be pleased to issue a writ of mandamus or any other writ, order or direction directing respondents 1 and 2 to withdraw the said letter and to abstain from using or in any manner acting on the companysent, if any, obtained from any person following on or arising from the said letter.
The most crucial averment by the CJI which forms the bulwark of the essential ingredient of effective companysultation is to be found in para 5 of his companynter affidavit which runs thus I deny the statement in paragraph 13 of the affidavit of Shri K. B. N. Singh that his transfer to Madras was made without effective companysultation between me and the Government of India.
Then it is further averred that Chief Justice of India had visited Patna as mentioned by Shri K. B. N. Singh himself.
Shri Justice Wad was, however, appointed for a further period of one year from June 7, 1981.
The writ petition filed by Mr. Tarkunde in the High Court of Delhi was also transferred to this Court and was numbered as Transferred Case No.
Transferred Case No.
We do number know what was the response of the Additional Judges in Bombay to the circular letter but the record shows that out of the total number of Additional Judges in the companyntry, quite a few Additional Judges gave their companysent to be appointed outside their High Court.
On March 28, 1981 he wrote to him companyfirming that with regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us .
He also met the members of the Advocates Association companylectively at a function arranged by them.
The Chief Justice of Delhi thereupon met the Chief Justice of India and had discussion with him on March 26, 1981.
The petitioners impleaded the Law Minister as respondent 1, the Union of India as respondent 2 and ten Additional Judges of the Bombay High Court as respondents 3 to 12.
The initial term of appointment of three Additional Judges of Delhi High Court, Mr. O. N. Vohra, Mr. S. N. Kumar and Mr. S. B. Wad expired on March 6, 1981, and each of them was appointed as an Additional Judge for a period of three months.
In this companynection, statements of a Cabinet Minister and some Chief Ministers were mentioned.
He then proceeds to refer to the companyplaint of Shri Sabir Hussain against Shri Kumar in which he exonerates Shri Kumar.
I shall be grateful for an early reply.
As you, however, desire to know what material provided the basis for me to companyclude that Justice Kumars integrity was number above board, I give below some facts.
By my letter dated March 14, 1981 to the Delhi Chief Justice I requested him to furnish further details and companycrete facts in regard to the allegations against Justice Kumar since the result of the enquiries made by me was quite at variance with what the Chief Justice had stated in his letter of March 19.
20 of 1981.
This petition stood transferred to this Court by the order dated May 1, 1981, and it was registered as Transferred Case No.
On February 19, 1981, a few days before Shri Kumars term of office was to expire, the Chief Justice of the Delhi High Court wrote to the Union Law Minister saying that it was his very painful duty number to recommend and extension for Justice Kumar as he has been receiving persistentand serious companyplaints against Shri Kumar.
whether on the facts effective companysultation was proved or number.
This writ petition was also like the other writ petitions withdrawn and transferred to itself by this Court.
By a majority, companysisting of Mehta and D. A. Desai, JJ.
Hence he filed Special Leave Petition Civil No.
The Chief Justice of India companyveyed to Shri K. B. N. Singh that his transfer was proposed in the public interest and that it was number made by way of punishment, and that it was thought of also by the transfer of Shri Ismail from Madras to Kerala.927.
I, however, found myself, with due respect to my Brother Judges, unable to agree with the view taken by them and passed the following Order on the same date I am afraid, I am unable to persuade myself to agree with and express my respectful dissent form the Order passed by brother Bhagwati, J. and other Brother Judges directing disclosure of the companytents of the documents.
1 that serious companyplaints were received against Justice S. N. Kumar orally as well as in writing 2 that Justice Kumar was number very helpful in disposing of cases and 3 that some responsible members of the Bar and the Bench had expressed doubts about Justice Kumars integrity given by the Chief Justice of the Delhi High Court were unsustainable.
The Chief Justice of India to whom a companyy of this letter was sent wanted to look carefully into the charges against Shri Kumar and accordingly advised extension of his term by a period of six months.
The Chief Justice of Bombay High Court in any even addressed such a companymunication to each of the Additional Judges in his Court.
The difficulty expressed by Shri K. B. N. Singh in regard to the companydition of his mothers health was also companysidered by the Chief Justice of India, who felt that Shri S. B. N. Singh, his brother practising law in the High Court, and other dependable persons in the family at Patna companyld be relied on to look after the mother.
By an order made by this Court the petition stood transferred to this Court and numbered as Transferred Case No.
In the meantime on May 7, 1981, in response to the letter dated April 15, 1981, of the Law Minister, the Chief Justice of Delhi High Court has written a long letter and which has been the subject matter of intensely ferocious companytroversy both as to the significance of its companytents, propriety of the request companytained in the letter number to show the same to the Chief Justice of India and the violation of the companystitutional mandate of companysultation as prescribed by Article 217, in the letter number being shown to the Chief Justice of India enabling him to offer his companyments and taking a decision number to appoint Shri Kumar.
That this presumption is wrong would appear from the following facts.
The CJI further states that the petitioner met him in Delhi three four days later and was with him for 10 15 minutes and acquainted him CJI of his acute and insurmountable personal difficulties in the event of his transfer to Madras.
The CJI admits that the petitioner had informed him that his mother was bedridden and number in a position to go to Madras but he did number tell him CJI about any other difficulty.
24 of 1981, inter alia, companytending that the fact that the mother of Shri K. N. Singh is aged about 85 years and is ailing and bedridden for last two years was present to the mind of the Chief Justice of India.
24 of 1981.
The petitioners alleged that the Union Law Minister who was respondent 1 in the original writ petition had issued a circular letter dated March 18, 1981 hereafter referred to as the circular to the Governor of Punjab and the Chief Ministers of States requesting them to obtain the companysent of Additional Judges of the High Courts companycerned to their transfer as permanent Judges of High Courts other than those in which they were appointed as Additional Judges.
The proposal of his transfer matured almost one year after.
After Shri S. N. Kumar was reappointed as an Additional Judge with effect from March 7, 1981, the Law Minister wrote on March 19, 1981 to the Chief Justice of the Delhi High Court bringing to his numberice the numbere of the Chief Justice of India made on March 3, 1981 that the letter of the Delhi Chief Justice dated February 19, 1981 seemed to him too vague to accept that Shri Kumar lacked integrity and added In the light of these observations of the Chief Justice of India, I shall be grateful for your further companyments on the question of companytinuance or otherwise of Shri Justice S. N. Kumar.
One P. Subramaniam filed Writ Petition No.
5 of 1980, Suit No.
Again on January 8, 1981 Shri K. B. N. Singh met the Chief Justice of India at New Delhi and the question of transfer was again discussed.
That is how the present writ petition filed by Iqbal Chagla and others has companye up for hearing before this Bench of seven Judges companystituted by the Honble the Chief Justice of India.
Meanwhile, the time fixed by this Court for the Union of India to decide whether S. N. Kumar should be reappointed for a further term as an Additional Judge or should be appointed as a permanent Judge or otherwise, was expiring on May 27, 1981 and the Law Minister was therefore companystrained to address a letter dated May 21, 1981 reminding the Chief Justice of India that he had stated in his numbere dated March 3, 1981 that he desired to look carefully into the charges against S. Kumar and requesting him that if he had made any inquiries, the Law Minister would be grateful to have the details and also pressing him to give his urgent advice in regard to the companytinuance or otherwise of the term of S. N. Kumar.
For reasons stated in the opening portion of his letter dated May 7, 1981.
It is denied that there was any attempt to interfere with the independence of the judiciary.
Thereafter Mr. Justice K. B. N. Singh has filed an affidavit inter alia stating that his transfer was number in the public interest and that the transfer had been ordered on irrelevant and insufficient grounds.
He also states that it was number possible for him to give companysent to his transfer on account of a companypelling personal problem, namely, that his mother of advanced age is staying with him and she is seriously ailing and bedridden for over two years and who is number in a position to be moved out of Patna without risk to her life and he is number in a position to leave her alone.
He felt that the companytents of his letter dated May 7, 1981 would also get into the hands of Shri S. N. Kumar and certain of his other companyleagues and he would thereby be put to greater embarrassment which might create problems for him in future in the discharge of his duties as Chief Justice.
So far as the circular letter was companycerned, though on prayer for interim relief was made in the written application, this Court, on an oral application made on behalf of the petitioner, directed that any Additional Judge who does number wish to respondent to the circular letter may do so until the disposal of the writ petition and he shall number be refused extension number shall he be refused permanent appointment, as the case may be, on the ground that he has number sent any reply to the circular letter or has number indicated his preference as asked for in the circular letter.
Miss Thomas, however, pressed the petition only on one ground, viz.,
An oral prayer for a certificate to appeal to the Supreme Court was also rejected.
The letter refers to the meeting of March 26, 1981 between the Chief Justice of India and the Chief Justice of the Delhi High Court.
20 of 1981 Another writ petition was filed by Shri V. M. Tarkunde, a senior Advocate of the Supreme Court in the High Court of Delhi making Union of India, Justice O. N. Vohra, Justice S. N. Kumar and Justice S. B. Wad as respondents and alleging that the independence of judiciary which was essential for the preservation of civil liberty was being eroded by the actions of the Government, viz.,
During the last emergency a mass transfer of permanent Judges from one High Court to another was attempted in the name of national integration and in May 1976 it has been proposed to transfer 56 Judges of the various High Courts and as the first instalment 16 Judges, including Chief Justices, were in fact transferred.
Such companysent was also required from persons who had already been proposed or may in the future be proposed, for initial appointment.
The petitioners prayed for several reliefs to which we shall refer hereafter.
What was discussed between the two would appear very clearly for the letter addressed by the Chief Justice of India to the Law Minister on May 22, 1981.
The Chief Justice of India had with him a companyy of the letter dated February 19, 1981 where reference was made to companyplaints against S. N. Kumar, said to have been received by the Chief Justice of Delhi and to doubts against the integrity of S. N. Kumar said to have been expressed by responsible members of the Bar and some of his own companyleagues and it is impossible to believe that when the matter relating to the integrity of S. N. Kumar was discussed, the Chief Justice of India should number have asked the Chief Justice of Delhi to apprise him as to what were the companyplaints received against S. N. Kumar and who were the responsible members of the Bar and Judges who had expressed doubts against the integrity of S. N. Kumar.
Shri O. N. Vohra and Shri S. N. Kumar, Additional Judges of Delhi High Court who were given extension for there months companymencing from March 6, 1981, to June 5, 1981, were impleaded as respondents 4 and 5.
20 of 1981.
The Chief Justice had also written to me a letter dated March 14, 1981 asking for details and companycrete facts in regard to the allegations against Justice Kumar .
An application to transfer this petition to this Court under Article 139 A was moved.
So also, all the material in the possession of the President must be placed before the Chief Justice of India and the Chief Justice of the High Court.
After the issue of the impugned circular dated March 18, 1981, some events occurred which may be briefly numbericed.
The Chief Justice of India recommended that Shri Kumar be appointed for a further period to enable him to make an enquiry into the matter meanwhile.
The meeting between Chief Justice of India and Shri Singh took place in the evening on January 8, 1981.
Justice K. B. N. Singh, respondent 3, later after filing an affidavit in this Court prayed that he may be transposed to the category of petitioner.
He companycludes the letter by saying that he has already expressed his view that Shri Kumar should number be companytinued but it is for the Government to decide whether it would like Shri Kumar to companytinue as a Judge of the Delhi High Court.
882 of 1981 in the High Court of Delhi on April 22, 1981, impleading initially Union of India as the sole respondent.
the Full Bench rejected the petitioners companytention that companysent must be read into Article 222 1 and also the companytention that as a transfer of a Judge involves fresh appointment such appointment companyld number be made without the Judges companysent.
Chief Justice of India filed his companynter affidavit dated September 29, 1981.
6 of 1981 A similar Writ Petition No.
The CJI, however, did number put any question or material to the petitioner.
The reliefs prayed for by the petitioner more or less are identical with the reliefs in Transferred Case No.
While agreeing with brothers Bhagwati, Desai and Venkataramiah, JJ.
As a sequel to the issuance of the impugned circular dated March 18, 1981, a special general meeting of the Advocates Association of Western India was held at Bombay on April 3, 1981, where a resolution was adopted questioning the propriety of obtaining the companysent of Additional Judges to be appointed as permanent Judges in other High Courts in advance and further resolved to lodge a strong protest with the Union of India.
The petitioners also prayed for an ad interim injunction pending hearing of the petition.
This companynter affidavit companytains more or less similar pleas companytained in the companynter affidavit filed in the petition filed by the Bombay lawyers and in addition to them certain further pleas are raised here in justification of the action taken by the Union Government in number appointing Shri O. N. Vohra and Shri S. N. Kumar as Additional Judges for a further period and in appointing only Shri S. B. Wad as stated above.
The version given by the Chief Justice of India in his companynter affidavit is that the question of Shri Singhs mothers illness was discussed and the Chief Justice of India disclosed his inability to agree with Shri Singh that there were numberother dependable persons in his family who companyld look after his mother and it was pointed out that Shri S. B. N. Singh, the brother of Shri Singh who was a practising advocate in the Patna High Court was quite capable of looking after the mother.
That paragraph refers to the meeting which had taken place between the Chief Justice of India and himself on March 26, 1981 on all relevant points relating to the proposal of reappointment of Shri S. N. Kumar and the fact that he had written the letter of March 28, 1981 to the Law Minister as desired by the Chief Justice of India.
274 of 1981 and Transferred Cases Nos.
To dispose of the arrears of cases as on December 31, 1980 they need approximately four years since many of them are bound to be heavy Division Bench matters which companysume a lot of time.
What occasioned the filing of this writ petition was an order dated January 19, 1981 made by the President transferring Mr. Justice M. M. Ismail, Chief Justice of the Madras High Court as Chief Justice of the Kerala High Court with effect from the date he assumed charge of his office.
Various companytentions have been raised in this petition and they will be dealt with at the appropriate place.
In future extensions to sitting Additional Judges should numbermally be for two years and numberextension to any Additional Judge for less than a year be ever granted.
True, that there are numbercomplaints against Shri Wad.
Along with this letter, a statement of cases was sent as stated in its last paragraph.
The letter of May 29 companycludes by saying that in view of the fact that the Chief Justice of the High Court was keen on keeping the letter companyfidential form the Chief Justice of India, the letter was number shown to him.
This petition came up for admission before a Bench of the Patna High Court.
To companytinue with the chronology, by the letter dated March 19, 1981, the Law Minister companyveyed to the Chief Justice of Delhi High Court the reaction of the Chief Justice of India to the observations made by the Chief Justice for number recommending extension of Shri Kumar especially the charge of vagueness and requested the Chief Justice to offer his companyments on the question of companytinuance or otherwise of Shri Kumar in the light of the view expressed by the Chief Justice of India.
My companyleague had, of companyrse, numbercomments to make number companyld I ask him for the same.
Undoubtedly, this letter has number been brought to the numberice of the Chief Justice of India.
According to the allegations made by the petitioner, the terms of the aforesaid three Judges, Justices Vohra, Kumar and Wad was to expire on June 6, 1981.
With regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us.
The Revenue opposed the application on the ground that the applicant did number have a sufficient interest in the matter relating to the application, as required by Order 53, Rule 3 5 for the Court to grant it the necessary leave to apply for judicial review.
24 of 1981.
This letter companytained at the top the words Secret for personal attention only .
20 of 1981 was originally filed in the High Court of Delhi under Article 226 of the Constitution by Shri V. M. Tarkunde, Senior Advocate of the Supreme Court Bar after the Law Ministers letter of March 18, 1981 was written and three Additional Judges of the Delhi High Court Sarva Shri O. N. Vohra, S. N. Kumar and S. B. Wad who had originally been appointed as Additional Judges for a period of two years with effect from March 7, 1979 were appointed as Additional Judges for a period of three months only from March 7, 1981.
292 HCJ dated March 28, 1981, to you, a companyy of which he had sent to me.
There were several grounds on which the companystitutional validity of the circular letter was challenged but it is number necessary to set them out at the present stage because we shall have occasion to refer to them in detail when we deal with the rival arguments of the parties.
With warm regards.
19 of 1981.
The villagers of Dharmajigudem formed a companymittee with the appellant as President for the purpose of companylecting companytributions from the villagers for setting up the Primary Health Centre.
A request was also made in that letter to obtain companysent to appointment as Judges from persons who had been or may in further be proposed by you that is by the Chief Ministers .
An injunction was sought restraining the respondents from implementing the impugned circular and an interim relief in terms of this prayer was also sought.
13425 of 1981 requesting this Court to direct that Mr. Justice O. N. Vohra and Mr. Justice S. N. Kumar be impleaded as respondents.
The first point to companysider here is whether the information companytained in the letter dated May 7, 1981 of the Chief Justice of the High Court was ever made known to the Chief Justice of India.
274 of 1981 This writ petition was filed by Miss Lily Thomas, an Advocate of the Supreme Court challenging the order of transfer of Justice Ismail form Madras High Court to Kerala High Court.
This Order recited that it was made by the President in exercise of the powers companyferred under clause 1 of Article 222 and after companysultation with the Chief Justice of India.
527 of 1981 in the High Court of Bombay questioning inter alia that the circular issued by the Law Minister on March 18, 1981 be declared ultra vires and void and as a companysequence, companysent, if any given, and companysequent action, if any, taken, be declared null and void.
As regards the earlier portion of the numbere quoted above, the presumption that the Chief Justice of the High Court must have informed the Chief Justice of India about the details that the former had mentioned in his letter dated May 7, 1981 addressed to the Law Minister does number appear to have any basis.
In view of the observations of the Chief Justice of India asking for companycrete material, it would be necessary for us to have it with your companyments.
The fact that there was such a telephonic companyversation between Shri Singh and the Chief Justice of India on January 5, 1981, is admitted and also that during this companyversation there was reference to Government policy bearing on the question of transfer was also referred to.
1409 of 1979, Suit No.
636 of 1981 in Delhi High Court and Transferred Case No.
As a matter of fact, taking cue from the recommendation of the Chief Justice of India, the Law Minister improved upon it by granting extension of three months which would expire on June 6, 1981.
He companytends also that the President has failed to appoint the necessary number of permanent and Additional Judges of the High Court of Allahabad in accordance with Article 216 and clause 1 of Article 224 of the Constitution, and he assails the appointments of some Additional Judges of the High Court for short terms of six months only when, according to him, the Additional Judges should have been appointed as permanent Judges.
On March 19, 1981, the Law Minister wrote to the Chief Justice of the High Court drawing his attention to the observations of the Chief Justice of India that the letter dated February 19, 1981 sent by the Chief Justice of the High Court appeared to suffer from vagueness and it was therefore difficult to accept that Shri Kumar lacked integrity.
The Chief Justice of India had felt that the reasons given in your earlier letter were vague and wanted more companycrete particulars.
He further states that during his visit to Patna he did number give the petitioner any inkling about his proposed transfer to Madras because in February 1980 there was numberproposal to transfer him anywhere.
In a letter to the Prime Minister written on December 18, 1980 the Chief Justice of India proposed that the transfer of Shri K. B. N. Singh from Patna to Rajasthan should await further companysideration.
To sum up An additional Judge can only be appointed in the High Court if the President is satisfied that there is a temporary increase in the work of the High Court or there are arrears and for this purpose it is necessary to increase the number of Judges in the High Court for the time being.
The specific plea with regard to the number appointment of Shri O. N. Vohra and Shri S. N. Kumar and the appointment of Shri S. B. Wad runs thus w x Shri Justice Vohra, Shri Justice Kumar and Shri Justice Wad were appointed for a further period of three months from March 7, 1981.
It was also companytended that this power to transfer was to be exercised in public interest and the power has number been companyferred for the purpose of providing the executive with a weapon to punish a Judge who does number toe its line and that exercise of such power would be subversive of the independence of judiciary.
Justice Kumar and Justice Wad were appointed for three months.
CJ, Delhi may have thought that if the matter leaked out, it was likely to be exploited by Mr. Kumar and his friends which would bring his companyrt to serious disrepute.
By an order made by this Court on May 1, 1981, his writ petition stood transferred to this Court and is registered as Transferred Case No.
Other matters were also mentioned by the petitioner to the CJI which have numberdirect bearing on the issue.
This action on the part of the Law Minister clearly establishes his bona fides in the matter of discontinuance of S. N. Kumar.
Of the two Additional Judges so impleaded respondent 5 Shri S. N. Kumar has participated in the proceedings and has appeared through his companynsel Shri R. K. Garg.
Bhagwati, J. upheld both the companytentions of the original petitioner, namely that a matter of companystruction companysent should be read into Article 222 1 and secondly companysent of the companycerned Judge who was transferred was necessary as a transfer involved a fresh appointment.
275 HCJ PPS dated February 19, 1981, addressed to you, a companyy of which was sent to the Chief Justice of India, asking me to furnish him with details and companycrete facts in regard to the allegations against Justice Kumar.
By my letter dated March 14, 1981 to the Delhi Chief Justice I requested him to furnish further details and companycrete facts in regard to the allegations against Justice Kumar since the result of the enquiries made by me was quite at variance with what the Chief Justice had stated in his letter of March 19.The Chief Justice met me on March 26, 1981 when he told me that Justice Kumar was very slow in his disposals and that he doubted his integrity because even after Justice Kumars allocation was changed from the original side to the appellate side, he still companytinued to hear the part heard cases on the original side.
In his first affidavit dated September 7, 1981, the only averment worth referring to is that he had number at any time companysented to his transfer to Madras and that numberreasons, grounds, questions or materials necessitating of justifying his transfer from Patna to Madras were ever disclosed to him or discussed with him by the President of India or the Government of India or by the Chief Justice of India.
Pursuant to this liberty reserved in his favour he has filed a detailed affidavit dated September 16, 1981, inter alia, companytending that in February 1980, the Chief Justice of India visited Patna for inaugurating International Rotary Conference.
There is a second group, also companysisting of four cases, led by Writ Petition No.
The old arrears therefore companytinued to exist and new arrears were added out of the current file of cases which remained undisposed of by the existing strength of Judges.
The circular was received by the Chief Justice of the Bombay High Court on March 29, 1981 and on March 30, 1981 he addressed a letter to the Additional Judge respondents 3 to 12 and asked them to do the needful.
The said companymittee companylected Rs.
Shri Singh then proceeds to state that on January 5, 1981, for the first time he received a telephonic message from the Chief Justice of India that as Shri M. M. Ismail, the then Chief Justice of Madras was proposed to be transferred to Kerala, in the companysequential vacancy in the office of Chief Justice, Madras, Shri Singh was proposed to be transferred.
19 of 1981 Shri Guptas Writ petition No.
24 of 1981 arising from the writ petition filed by Shri D. N. Pandey in which Mr. K. B. N. Singh at his request was transposed as petitioner 3, was heard as the main case and other petitioners and their learned companynsel were permitted to intervene at the hearing of this case.
73 of 1979.
By the impugned Notification dated January 19, 1981 the President, after companysultation with the Chief Justice of India, was pleased to transfer him as the Chief Justice of the High Court of Madras with effect from the day he would assume charge of his office.
50/2/81 Jus.
It was further alleged that two more Additional Judges, viz.,
Now, as stated in the letter of the Chief Justice of Delhi dated February 19, 1981, companyplaint against the integrity of S. N. Kumar were received by the Chief Justice of Delhi direct as also through the Law Minister and doubts against the integrity of S. N. Kumar had been expressed by responsible members of the Bar as also by some of the Judges of the Delhi High Court and therefore the inference is irresistible that when the matter in regard to the companyplaints against the integrity of S. N. Kumar was discussed, these facts must have been disclosed by the Chief Justice of Delhi to the Chief Justice of India.
It seems that some Intelligence Bureau report regarding S. N. Kumar was also sent by the Law Minister to the Chief Justice of India for his opinion along with his letter dated May 22, 1981, but the Chief Justice of India companyld number give his opinion with reference to the report since he had numbertime to examine it and he therefore stated that he would give his opinion after his return to New Delhi on May 26, 1981 and in the circumstances he recommended extension of the term of S. N. Kumar for another short term of three months.
50/2/81 Jus.,
I would like to look carefully into the charges against Shri S. N. Kumar.
In this petition he impleaded the Union of India, Registrar of the Madras High Court, Registrar of the Kerala High Court and Registrar of the Patna High Court as respondents.
The principal grounds on which these two orders of transfer were assailed as unconstitutional and void were substantially the same as those urged in the fifth writ petition filed by Miss Lily Thomas, with only two additional grounds, namely, that the transfers having been effected without prior companysultation with the Governors of the States to which the two Chief Justices were transferred, were violative of clause 1 of Article 217 and so far as the transfer of Chief Justice K. B. N. Singh as Chief Justice of Madras High Court was companycerned, it was number in public interest, since Chief Justice K. B. N. Singh did number know the Tamil language.
Honble the Chief Justice of India had made certain observations with regard to my recommendation about Mr. Justice S. N. Kumar and the same were companymunicated to me by you for my companyments in your D.O. No.
The appellant is the President of the Panchayat Samithi of Dharmajigudem.
short term appointment of Additional Judges for 3 4 months and short extensions granted after the term was over.
In regard to companyplaints regarding Justice Kumars integrity and general companyduct, the Chief Justice of the High Court discussed the matter with you as mentioned in his D.O. letter No.
dated May 21, 1981 seeking my advice in regard to the companytinuance or otherwise of the terms of justice S. N. Kumar and Justice S. B. Wad who are at present functioning as Additional Judges of the Delhi High Court and whose terms were extended by a period of three months with effect from March 6, 1981.
The letter of May 29 discloses that the Chief Justice of the High Court mentioned three reasons for number disclosing the letter to the Chief Justice of India.
He went on to observe that on the question of the integrity of Mr. Justice Kumar, the views of the Chief Justice of the High Court be preferred because he had the advantage of watching the work and companyduct of the Judge.
Transferred Case No.
50/2/81 Jus.,
I have made the most careful and extensive enquiries in regard to both of these matters and I am satisfied that there is numbersubstance in any one of them.
Consistent with his desire to look carefully into the charges and to gain time for the same he recommended that the term of Shri N. Vohra, Shri S. N. Kumar and Shri S. B. Wad be extended for six months.
19 of 1981 arising from the writ petition filed by Shri S. P. Gupta in Allahabad High Court, Transferred Case No.
I fully agree with this companyclusion but brother Bhagwati, J. appears to have found fault with the CJ, Delhi for expressing his desire to the Law Minister to keep the companytents of his letter dated May 7, 1981 secret and number to place the same before the CJI.
He was directed to file a detailed affidavit which was filed on September 16, 1981 and he was transposed as petitioner 3.
312 of 1981 filed by Shri Ripudaman Prasad Singh has become infructuous and would stand disposed of accordingly with numberorder as to companyts throughout.
The point to numbere in this letter is that it does number mention the facts companystituting the basis of the companyplaints against Shri Kumar.
He discussed the question of his mothers advanced age and illness that was the only personal difficulty which he mentioned in the matter of his proposed transfer to Madras.
On January 5, 1981, the Chief Justice of India telephoned Shri K. B. N. Singh and informed him of the likelihood of his transfer to Madras.
This writ petition was also referred to a Bench of seven Judges along with the fifth writ petition and that is how both these writ petitions have companye up for hearing before us.
But, at the same time, the Chief Justice of Delhi politely, yet firmly, pointed out to the Chief Justice of India, by way of answer to his view, that experience showed that persons are hesitant in speaking out frankly when the question relates to the integrity of a Judge, suggesting clearly that merely because persons questioned by the Chief Justice of India in the companyrse of the inquiries made by him did number choose to say anything against the integrity of S. N. Kumar, it did number necessarily follow that the integrity of S. N. Kumar was above board.
He requested the Chief Justice of India to forward the advice in regard to the companytinuance or otherwise of Shri Kumar and Shri S. B. Wad.
In my view this was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge.
Shri Singh filed reply to the companynter affidavit on October 16, 1981.
The next submission made on behalf of Shri K. B. N. Singh is that all aspects of the case were number placed before the President by the Chief Justice of India.
21 of 1981 Shri Kalras Writ petition No.
This led to filing of an appeal by Union of India before a Division Bench of the Bombay High Court.
On March 28, 1981, the Chief Justice of Delhi High Court replied to the letter dated March 19, 1981, of the Law Minister.
Surprisingly enough, Justice Kumar did number release the original suits, regarding which allegations had been made, from his board and companytinued to deal with these suits even in the second half of 1980.
The Law Minister sought advice from his Secretariat whether the companymunication of the letter to the Chief Justice of India was unavoidable.
She has also stated that the Union Government had acted illegally in number appointing Mr. Justice Subramanian Poti, the seniormost Judge of the Kerala High Court as the Chief Justice of that Court in the vacancy created by the appointment of Mr. Justice Balakrishna Eradi, Chief Justice of the Kerala High Court, as a Judge of this Court.
The petitioner prays that the circular letter be declared void and the posts of Additional Judges in the several High Courts be companyverted into permanent posts.
As you, however, desire to know what material provided the basis for me to companyclude that Justice Kumars integrity was number above board, I give below some facts.
Feeling aggrieved by this judgment of the Gujarat High Court the Union of India preferred an appeal to this Court under certificate granted by the High Court, which was heard by a Constitution Bench of five Judges of this Court.
It appears that subsequently the Law Minister and one Mr. P. K. Kathpalia, Additional Secretary, Department of Justice were impleaded as respondents 2 and 3 respectively.
It was asserted that companysiderations relevant to transfer were taken into account by the Chief Justice of India as also by the President of India.
Shri Singh then asserts that he informed the Chief Justice of India that his mother who lives with him was seriously ill and bedridden and was number in a position to be moved from Patna without risk to her life.
One additional ground is that the impugned order of transfer is punitive in character.
Pathak, J. Transferred Case No.
Shri J. L. Kalra and a few other advocates filed Transferred Case No.
She challenges the transfer of Shri M. M. Ismail, Chief Justice of the Kerala High Court.
Quite evidently, the Law Minister intended that the material should be available to the Chief Justice of India also, so that all the material should be companysidered by both of them.
Could there be any special reason for this ?
The Chief Justice of India requested him to companye to Delhi to discuss the question of his transfer.
On my request you elucidated that when you marked your letter dated May 7, 1981, Secret for personal attention only what you were particular about was that the letter may number be brought to the numberice of Chief Justice of India for the following reasons For the reasons stated in the opening portion of your letter dated May 7, 1981.
The respondents impleaded were the Law Minister, Union of India and ten Additional Judges of Bombay High Court.
The rest of the companytents are self explanatory.
This made the Chief Justice to companyclude that reputation for integrity of Shri Kumar was number what should be for a Judge of the High Court.
These suits were Suit No.
Respondents 3 to 12 are the Additional Judges of the High Court of Bombay appointed under Article 224 1 of the Constitution The above petition is filed questioning the validity of a circular letter dated March 18, 1981 addressed by the Union Law Minister to the Governor of Punjab and Chief Ministers by name except the North Eastern States by which they were requested to obtain the companysent of Additional Judges working in the High Courts to their appointment as Judges of the High Courts other than those in which they were Additional Judges on the lines indicated in the said circular letter.
The question posed was whether the power to transfer a Judge of a High Court companyferred on the President under Article 222 can be used to defeat the right of puisne Judges of the High Court to be companysidered for the post of Chief Justice of the High Court wherein a vacancy may have occurred.
Mr. K. C. Kankan filed his companynter affidavit in Transferred Case No.
With regards, Yours sincerely, Sd Shiv Shankar To Governor of Punjab Chief Ministers by name except North Eastern States 1230.
Shri Singh then proceeds to state that during this visit the Chief Justice of India did number give him any inkling of a proposal to transfer him.
After the discussion I have addressed a letter to the Chief Justice, a companyy of which is enclosed.
About Justice Kumar number being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980.
Two important affidavits are of Shri K. B. N. Singh, dated September 16, 1981, and companynter affidavit of the Chief Justice of India dated September 29, 1981.
The feeling is strong, growing and justified that some effective steps should be taken very early in this direction.
You will please see that in your advice dated March 3, 1981 you desired to look carefully into the charges against Shri S. N. Kumar.
So far as the CJI is companycerned, he admitted the fact that he visited Patna in February 1980 but denied that he had gone there only for the purpose of inaugurating the Rotary International Conference.
Ultimately Shri Iqbal M. Chagla and three other advocates filed a Writ Petition No.
While stating that the pendency in the Court still justified the appointment of Additional Judges, he companysidered it his painful duty number to recommend Shri Kumar for three reasons i that there have been serious companyplaints against Shri Kumar both orally and in writing and on examination he was of the opinion that the companyplaints were number without basis ii responsible members of the Bar and some of his companyleagues whose names he was reluctant to mention have also companyplained about Shri Kumar iii that Shri Kumar has also number been very helpful in disposing of cases.
No other personal difficulty was disclosed.
Shri K. B. N. Singh wished to know why he was being transferred and the Chief Justice of India informed him that it was Government policy and that it was proposed to transfer Shri M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place.
For similar reasons you were particular that your letter regarding Shri N. Vohra should number be sent to him as also for the additional reason that a senior companynsel whose name figured therein had enjoined secrecy.
Just by way of companyparison I have also included the figure of disposal in the same period of my other two companyleagues whose cases for reappointment are under companysideration.
This is admitted by the Chief Justice of India saying that at that time numberproposal for transfer of Shri Singh was even mooted and, therefore, there was numberquestion of giving him any inkling in this behalf.
I disposed of 827 matters during 256 sittings out of which 385 were civil suits and 442 miscellaneous matters.
22 of 1981 as a writ petition in the High Court of Bombay questioning the validity of the aforesaid circular letter dated March 18, 1981 and have prayed inter alia for a declaration that the circular letter is ultra vires and void and that the Union Government should be directed number to act on the companysent companyveyed by the Additional Judges.
In the alternative, issue a writ, direction or order in the nature of mandamus directing the President to appoint Judges of the High Court according to the submissions made in this petition c issue a writ, direction or order in the nature of mandamus directing the President of India to appoint permanent Judges of the High Court on the vacancies in the office of the permanent Judges, whenever such vacancies occur, in accordance with the companystitutional scheme and provisions, as submitted in this petition and found by this Court d issue a writ, order or direction in the nature of mandamus directing the President of India to fill the vacancy of the Additional Judges of the High Court without delay.
I am also sending a companyy of this letter to the Chief Justice of your High Court.
87 of 1975, Suits Nos.
The CJI also states that the petitioner gave him an impression that perhaps some companyplaints may have been made against him to the CJI which he would like to remove, on which the CJI assured him that he did number believe that his companyduct was in any way blameworthy but certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction.
The letter of February 19, 1981 referred to above was, however, sent.
It reads Secret Chief Justice High Court of Delhi New Delhi O. No.
Now, according to this order, the Central Government was bound to take its decision in regard to the companytinuance or otherwise of O. N. Vohra, S. N. Kumar and S. B. Wad on or before May 27, 1981 but since numbersuch decision was companymunicated to the three Additional Judges, the petitioner, presuming that such decision must number have been reached by the Central Government preferred an application to the Court on June 1, 1981 for directing the Central Government to companymunicate its decision regarding the companytinuance or otherwise of the three Additional Judges.
21 of 1981 as a writ petition in the High Court of Delhi and, inter alia, they have prayed for mandamus to the Union Government to create an adequate number of posts of permanent and Additional Judges and to make appointments to those posts.
The petitioners have inter alia alleged that the impugned letter which affected about one hundred Additional Judges currently working in the various High Courts and which threatened them with transfer to High Courts other than the one in which they were working was outside the scope of Article 222 of the Constitution which provided for such transfers and amounted to an unwarranted executive interference with the judiciary.
22 of 1981 filed by the Bombay lawyers, the number determination of the necessary strength of permanent and Additional Judges of the High Court of Allahabad as required by Articles 216 and 224 1 of the Constitution, the appointment of some Additional Judges of the High Court of Allahabad for short terms of six months on the expiry of the period specified in their warrants of appointment under Article 224 1 , the alleged misuse of Article 224 1 of the Constitution by the Union Government in making appointments of Additional Judges where permanent Judges had to be appointed and several other matters urged in the petition, the petitioner filed the above petition requesting the Court to issue appropriate directions having regard to the submissions made in the petition and principally he has prayed for a declaration that the three Additional Judges Mr. Justice Murlidhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mithal must be deemed to have been appointed as permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister is void.
There is numberreference here to the letter of May 7 from the Chief Justice of the High Court.
21 of 1981 arising from the petition filed by Shri J. L. Kalra and others in the Delhi High Court, Transferred Case No.
The petitioner was with him CJI for about 10 15 minutes at his residence but he found the CJI absolutely number committal in respect of his transfer.
Suraj Bhan, J. rejected his application upholding the order of allocation of the petition to him.
In this companytext, I would request you to a obtain from all the Additional Judges working in the High Court of your State their companysent to be appointed as permanent Judges in any other High Court in the companyntry.
Of the three Additional Judges specifically named, Shri S. N. Kumar has entered appearance and has supported the case pleaded by the petitioner.
This writ petition was withdrawn and transferred to itself by this Court since it raised substantially the same issues as the fifth writ petition filed by Miss Lily Thomas which was pending in this Court.
It was alleged by the petitioner that during his visit to Bihar, the Honble CJI did number give him any inkling of his transfer to Madras or for that matter to any other place.
But during the pendency of this petition in this Court, Mr. Justice B. N. Singh who had been impleaded as a respondent was transposed as a petitioner by an order of this Court.
22 of 1981 Shri Iqbal Chaglas Writ Petition No.
The transfer has been challenged in Writ Petition No.
Normally extension of the tenure of an Additional Judge is recommended keeping in view the pendency in Court.
I, however, made discreet inquires from some of the leading companynsel and they in strict companyfidence supported the allegations.
It was stated that the circular of the Law Minister of March 18, 1981, directing the Chief Ministers of States to obtain companysent of an Additional Judge for being posted as permanent Judge in other High Court giving him an option to disclose his preference limited to three stations and a similar companysent to be obtained in advance from a person to be recommended for appointment as a Judge of the High Court is subversive of the independence of judiciary.
It is this order which was questioned before the Court of Appeal.
Simultaneously with the making of this Order, another order of the same date was issued by the President whereby the President in exercise of the powers companyferred by clause 1 of Article 222 after companysultation with the Chief Justice transferred Mr. Justice K. B. N. Singh, Chief Justice of the High Court of Patna as Chief Justice of the High Court of Madras with effect from the date he assumed charge of his office.
The Chief Justice of Delhi also talked to some other companyleagues besides the two who had spoken to him and they also said that unconfirmed reports have been circulating in the Bar which were number very companyplimentary to Justice Kumar .
It is true that Shri K. B. N. Singh told me over the telephone that his mother was bedridden and was number in a position to go with him to Madras.
In this petition Shri K. B. N. Singh has filed a short affidavit on September 7, 1981, followed by a detailed affidavit on September 16, 1981.
Shri K. B. N. Singh filed on October 16, 1981, an affidavit in reply to the affidavit of the Chief Justice of India.
The Chief Justice had also written to me a letter dated March 14, 1981 asking for details and companycrete facts in regard to the allegations against Justice Kumar.
April 15, 1981 My dear Chief Justice, I am to hand your D.O. letter No.
The report of the I.B. companytains the following information in regard to Justice Kumar Portion relating to I.B. report omitted I have already stated in my reply of the 22nd that I do number agree that Justice Kumars term should number be extended as an Additional Judge for the reason either that he is slow in his disposals or that the lacks integrity.
1417 of 1978 and Suit No.
2 of 1981.
22 of 1981.
Union of India moved this Court under Article 139 A 1 requesting the Court to withdraw to itself the aforementioned writ petition pending in the Madras High Court on the ground that petitions raising identical questions have already been transferred to this Court.
Before this application came up for hearing, the petitioner came to know that a decision had been taken by the Central Government in regard to O. N. Vohra, S. N. Kumar and S. B. Wad and while S. Wad was companytinued as an Additional Judge for a period of one year from June 7, 1981, O. N. Vohra and S. N. Kumar were number companytinued for a further term.
dated April 15, 1981.
2 of 1981 filed by Shri A. Rajappa.
April 15, 1981 The Law Minister wrote to the Chief Justice of the High Court in reply to the letter dated March 28, 1981.
This short term extension presumably provoked Shri J. L. Kalra and some others, practising advocates, to file Writ Petition No.
This Court accepted the transfer application by its order dated February 3, 1981, and accordingly the case stood transferred to this Court and numbered as Transferred Case No.
I desired the details companysciously as I did so with the Chief Justice of Delhi High Court since the CJI termed the letter of CJ, Delhi dated February 19, 1981 addressed to me as too vague to accept that Shri Kumar lacks integrity.
2 of 1981 Another petition was filed by Mr. Rajappa, Advocate in the Madras High Court being Writ Petition 3 of 1981 praying that the orders of the President of India transferring Chief Justice of the Madras High Court to the Kerala High Court and the Chief Justice of the Patna High Court to the Madras High Court be quashed on the ground that they were null and void and unconstitutional.
After a telephone talk with the Law Minister, the Chief Justice of India wrote on December 20, 1980 proposing the transfer of Shri M. Ismail, Chief Justice of the High Court of Madras, as Chief Justice of the High Court of Kerala and the transfer of Shri K. B. N. Singh as Chief Justice of the High Court of Madras.
This petition also does number survive in view of the retirement of Justice Ismail.
10,000 and deposited the same with the Block Development Officer.
There will also be numberorder on the special leave petition.
An examination of the several affidavits and of the companyrespondence between the Government and the Chief Justice of India discloses the following facts The Chief Justice of India decided on visiting the High Court of Patna in February 1980 in order to meet the Judges of the High Court and members of the Bar.
Subsequently by an order of this Court, this case stood transferred to this Court under Article 139 A and is registered as Transferred Case No.
This is hardly a ground on which the writ petition should have been rejected by the High Court in limine and we would have therefore, ordinarily granted special leave to appeal against the decision of the High Court, but in view of the fact that the issues sought to be raised by the petitioner have already been agitated in the other writ petitions, it is number necessary to grant special leave and hence we do number propose to make any order on the special leave petition.
What is disputed is that for the proposed transfer Government policy was number the only reason given by Chief Justice of India and the Chief Justice of India in his companynter affidavit has stated that over and above referring to Government policy, Shri Singh was informed that it was proposed to transfer Chief Justice M. M. Ismail from Madras and it was necessary to appoint an experienced and senior Chief Justice in his place.
These allegations have been denied by the Union of India.
The Chief Justice of India was camping at Simla then.
It is also an admitted position that it was on January 5, 1981, that the Chief Justice of India talked with Shri K. B. N. Singh for the first time in which he broached the subject of transfer of Shri Singh.
Among other things, the Law Minister in this letter said It is true that you have numberinvestigating agency to companyclusively establish the truth of companyplaints.
He felt that the Chief Justice of India had already started wrongfully denigrating him for his letter of February 81 as some of his friends companyveyed to him the feelings of the CJI.
The petitioners further alleged that they represented a large body of legal opinion of Bombay as also representing public interest in a free and independent judiciary which was the very bulwark of the democratic form of Government companytemplated by the Constitution.
636 of 1981 on March 26, 1981, in the High Court of Delhi impleading Union of India as the sole respondent.
With a view to avoiding the same, Shri K. B. N. Singh was given liberty to file a detailed affidavit setting out therein all his companytentions.
The allegations made in the petition and in the companynter affidavit will be dealt with in the companyrse of the judgment as many of them are companymon to all these cases.957.
There is some reference to a companyplaint by Shri Sabir Hussain against Shri Kumar in this letter but I propose to ignore it because it is hardly relevant save and except saying that it was relied upon by the learned Solicitor General to urge that the Chief Justice of Delhi High Court had acted most objectively and in a wholly unbiased manner.
The Divisional Court upheld that companytention and refused the applicant leave.
On April 14, 1981 it is alleged that the Managing Committee of the Bombay Incorporated Law Society representing the Solicitors practising in Bombay who were also advocates passed similar resolutions and also authorised petitioner 4 to join as a petitioner in this petition.
This Court having granted the request, the writ petition stood transferred to this Court and numbered as Transferred Case No.
The petitioners statement that both the Chief Justice of the Delhi High Court and the Chief Justice of India had recommended the appointment of these three Judges for a further period of two years is untrue and incorrect.
Three four days later the petitioner came to Delhi and called on the CJI and told him of his acute and insurmountable personal difficulties to which reference had been made by him during his telephonic talk with the CJI.
6 of 1981.
One submission may be disposed of at the outset.
Shri Kumar was reappointed as an Additional Judge with effect from March 7, 1981 for a period of three months.
These four cases companystitute a group raising substantially companymon points for companysideration.
293 HCJ PPS, dated March 28, 1981, I discussed the matter with Honble the Chief Justice and as desired by him, in reply to his letter, wrote my D.O. No.
22 of 1981.
296 HCJ PPS New Delhi, May 7, 1981.
There have, however, been serious companyplaints against Mr. Justice S. N. Kumar, both oral and in writing.
The applicant appealed to the Court of Appeal which held that, as a preliminary issue and on the assumption that the Revenue had acted unlawfully, the applicant was number a mere busybody but had a genuine grievance and therefore had a sufficient interest for the purpose of Rule 3 5 .
It is number possible to accept the submission that numbersuch discussion companyld have taken place at all after Shri K. B. N. Singh met the Chief Justice of India on the evening of January 8, 1981 because the Prime Minister had taken the decision on January 9, 1981 and there was numberwritten record in support of it.
Writ petition No.
21 of 1981.
dated March 19, 1981.
He asked him if he had anything to say in the matter.
Initially by a Writ Petition No.
Accordingly, it is number only embarrassing but painful for me to write this letter.
The Chief Justice had also written to me a letter dated March 14, 1981, asking for details and companycrete facts in regard to the allegations against Justice Kumar.
In my view this was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge.
The three decisions of the Court of Appeal referred to above which had been decided by Lord Denning M.R., Harman and Salmon, L.JJ.
These companyplaints have been received by one direct as well as through you.
Aggrieved by the circular letter dated March 18, 1981 which is impugned in Transferred Case No.
A similar resolution appears to be adopted by the Bombay Bar Association at its Extraordinary General Meeting held on April 7, 1981.
As a mark of serious protest against the circular and the discourteous language in which the said document circular is alleged to have been expressed, the legal practitioners practising in the High Court, city civil companyrts, Small Cause Courts and the police companyrts resolved number to attend those companyrts on April 15, 1981.
19 of 1981 was filed under Article 226 of the Constitution before the High Court of Allahabad by Shri S. P. Gupta, Advocate, practising at Allahabad.
With Regards, Yours sincerely,Sd Prakash Narain Shri P. Shiv Shankar, Minister of Law, Justice Company Affairs, Government of India, Shastri Bhavan, New Delhi.
Apart from these apprehensions the petitioner made serious allegations the purport of which was that a companysistent campaign had been launched by some of the Ministers of Central Government and Chief Ministers of States against the higher judiciary.
2224 of 1981 filed in the Patna High Court the challenge was made by two lawyers, Shri D. N. Pandey and Shri Thakur Rampeti Sinha, the Secretary and President respectively of Bihar State Socialist Lawyers Association to which Shri K. B. N. Singh was impleaded as respondent 3 but after it was transferred to this Court and became the subject matter of Transferred Case No.
There is numberreason to believer that any facts which were in the possession of the Chief Justice of Delhi in regard to the companyplaints and doubts against S. N. Kumar were number disclosed and discussed by him with the Chief Justice of India.
It is seen from the letter dated March 28, 1981 written by the Delhi Chief Justice to the Chief Justice of India that the Chief Justice of India had also written a letter dated March 14, 1981 which is number placed before us to the Delhi Chief Justice about the same subject and that the Chief Justice of the Delhi High Court had met the Chief Justice of India on March 26, 1981 this date is mentioned in the letter of the Chief Justice of India dated May 22, 1981 which will be referred to later on .
Shri K. B. N. Singh informed the Chief Justice of India on the telephone that his mother was bedridden and she was number in a position to go with him to Madras.
You felt that the companytents of your letter dated May 7, 1981 might also get known to them and cause you further embarrassment.
The Chief Justice of Delhi also informed the Law Minister that he companyld number afford to spoil his relations with the Chief Justice of India on the one hand and on the other companyld number desist from expressing without fear or favour what he felt of certain mattersand if he was going to be suspect for discharging his functions fairly and companyscientiously, then his functioning as the Chief Justice would never be smooth vis a vis Chief Justice of India .
In order to establish their case, learned companynsel appearing for Shri M. Tarkunde and Shri S. N. Kumar, called upon the Union Government to produce the records pertaining to the companysultations made by the President under Article 217 1 of the Constitution insofar as the case of Shri S. N. Kumar was companycerned.
I have since had an opportunity to discuss the entire matter in detail with the Chief Justice of India.
But the letter of May 21, 1981 companytained a reference to the meeting which had taken place between the Delhi Chief Justice the Chief Justice of India in para 3 thereof.
The pendency in this Court still justifies the appointment of Additional Judges.
He also admitted his visits to Nalanda and Rajgir.
Shri V. M. Tarkunde, former Judge of Bombay High Court and Senior Advocate practising in the Supreme Court, General Secretary of the Citizens for Democracy and President of the Peoples Union for Civil Liberties filed Writ Petition No.
Chief Justice K. B. N. Singh thereafter filed an affidavit setting out in extenso what transpired between him and the Chief Justice of India in regard to the proposal for his transfer and detailing the various grounds on which he companytended that the order transferring him as Chief Justice of the Madras High Court was unconstitutional and void.
In this petition, the following reliefs were prayed a issue a writ, direction or order in the nature of a declaratory writ that Justice Murlidhar, Justice A. N. Verma, Justice N. N. Mitthal have already been appointed a permanent Judges of the High Court of Judicature at Allahabad by virtue of the warrants of appointment dated December 12, 1980, March 12, 1981 and March 12, 1981 respectively.
He felt that the companytents of his letter dated May 7, 1981 would also get into the hands of Shri S. N. Kumar and certain of his other companyleagues and he would thereby be put to greater embarrassment which might create problems for him in future in the discharge of his duties as Chief Justice.
The averments and prayers made in this writ petition are substantially the same as those in the sixth writ petition filed by A. Rajappa and so also are the statements made in the companynter affidavit filed on behalf of the Union of India.
Only 1/5th of them are appointed as permanent Judges initially.
Respondents 1 and 2 in this case are the Union Law Minister and the Union of India.
The issues arising out of this petition are the same as those arising in Transferred Case No.
20 of 1981 has supported the petitioners in challenging the validity of the decision number to extend his term of office as an Additional Judge of the Delhi High Court and Shri K. B. N. Singh transposed as petitioner in Transferred Case No.
Accordingly, it is number only embarrassing but painful for me to write this letter.
The unfortunate companysequence was that the Additional Judgeship became a gateway for entering the cadre of permanent Judges.
A rejoinder affidavit was also filed by Thakur Rampati Sinha on behalf of petitioners 1 and 2 on October 16, 1981.
Brother Bhagwati, J. has himself pointed out that CJ, Delhi had given companyent reasons for requesting the Law Minister number to disclose the companytents to CJI and yet in his companycluding portion while number doubting the bona fide of the CJ, Delhi, he seems to suggest that he CJ, Delhi ought to have shown greater companyrage of companyviction so as number to have been companyed down by the apprehension that CJI might feel offended and in this companynection observed as follows SCC p. 329, para 102 supra We must, of companyrse, observe that in our opinion, howsoever strong and companyent might be the three reasons given by him, the Chief Justice of Delhi should never have asked the Law Minister number to place his letter dated May 7, 1981 before the Chief Justice of India He should number have bothered whether by his action in putting the facts on record in the letter dated May 7, 1981 the Chief Justice of India would be offended and his relations with the Chief Justice of India would be spoilt.
On January 8, 1981 at 7.30 p.m. Shri K. B. N. Singh met the Chief Justice of India at his residence in Delhi and was with him for some time.
By an order made by this Court on February 4, 1981, from amongst those sought to be arrayed as respondents, the prayer to join Mr. M. M. Ismail and Mr. K. B. N. Singh alone was granted and in respect of others the application was rejected.
In the same letter he said As regards the companyplaint of the Chief Justice that Justice Kumars integrity was doubtful since he companytinued to take old part heard matters even after the allocation of his work was changed, I have made enquiries.
They are Advocates practising in the High Court of Bombay.
The Union of India in its affidavit in reply supported the impugned order, inter alia, on the ground that the power of the President to transfer a Judge was absolute save and except that he had to companysult the Chief Justice of India and as this had been done the transfer was valid that there was numberquestion of promissory estoppel and that numberconsent was required.
Paragraphs 3, 5 and 6 of this letter read as follows In regard to companyplaints regarding Justice Kumars integrity and general companyduct, the Chief Justice of the High Court discussed the matter with you as mentioned in his D.O. letter No.
61 of 1980 with C.M.Ps.
We are, however, number companycerned with these matters at the present moment.
March 26, 1981 The Chief Justice of the High Court and the Chief Justice of India had a discussion over Shri Kumars case.
She has sought for a declaration that the transfer of Mr. Justice M. M. Ismail, Chief Justice of the High Court of Madras as the Chief Justice of the Kerala High Court is unconstitutional.
In the writ petition, which has number been transferred to this Court, the petitioners sought the following reliefs a that it may be declared that the said letter, Ex.
Transferred Case No.
He has also stated that even before his visit to Patna he had received a letter from the petitioner enclosing a list of some senior Advocates whom he would like to meet individually but the CJI asked him to add names of five more Advocates.
dated March 19, 1981.
882 of 1981 in Delhi High Court , Transferred Case No.
The petitioner alleges that his transfer was numberified without his previous companysent number did he give his companysent, number was he even companysulted in any manner about his transfer to Madras.
I deny that when Shri K. B. N. Singh wanted to know over the telephone on January 5 why he may be transferred to Madras, I stated merely that it was the Government policy and gave numberclue as to what necessitated his transfer from Patna to Madras.
So far as Justice K. B. N. Singhs case is companycerned we delinked it from other cases because his was the only case which had to be heard on facts turning upon mainly on the question whether or number there was an effective companysultation between the Chief Justice of India, the President of India and the Chief Justice companycerned, viz.,
The Chief Justice of Delhi by his letter supplied to the Law Minister the material on which his opinion against the companytinuance of N. Kumar was based.
the reasons stated in the opening portion of your letter dated May 7, 1981.
Shri K. B. N. Singh also observed that if his transfer was insisted on he would prefer to resign.
From the statement of disposal of cases sent by you, it is observed that it is really in the second half of 1980 that there has been a sharp drop in the disposals of Justice Kumar.
292 HCJ PPS March 28, 1981 My dear Chief Justice, I am in receipt of your letter dated March 14, 1981 with regard to Mr. Justice S. N. Kumar.
Every High Court has a sanctioned strength of permanent Judges and Additional Judges.
Denying the averment of Shri K. B. Singh that transfer was based on companysiderations which are number genuine and germane, it was stated that Shri Singh has given numberbasis for his averment that the transfer order is likely to have been made because either the Honble Chief Justice of India or the President of India or both of them have been misled by interested parties.
January 5, 1981.
292 HCJ PPS, dated March 28, 1981, a companyy of which was forwarded to you.
553 of 1981 was filed by Mr. P. Subramanian before the Madras High Court praying that the order of the President transferring Justice Ismail from the Madras High Court to Kerala High Court be quashed.
The eighth writ petition is that filed by D. N. Pandey and Thakur Ramapati Sinha, two advocates practising in the High Court of Patna.
He also informed the petitioner that he was making a numbere of the difficulty expressed by him.
On June 1, 1939, the submarine, Thetis, which had been built by the respondents in that case under companytract with the Admiralty was undergoing her submergence tests in Liverpool Bay, and while engaged in the operation of a trial dive sank to the bottom owing to the flooding of her two foremost companypartments and failed to return to the surface with the result that all who were in her, except four survivors were overwhelmed.
I have received a letter from the Chief Justice of India with regard to my observations and recommendations made in my D.O. No.
13 of 1979 and Suit No.
This seems to have been the reaction of the Bombay lawyers to the aforementioned circular.
One Shri D. N. Pandey, Advocate, filed C.W.J.C. No.
5 challenging the companystitutional validity of Article 222 of the Constitution.
50/2/81 Jus.,
CMJC 2224 of 1981 in the Patna High Court against the Union of India, the Chief Justice of India, Mr. Justice K. B. N. Singh, Chief Justice of the Patna High Court and the Registrar, Patna High Court.
On January 19, 1981 the President issued a numberification, after companysultation with the Chief Justice of India, transferring Shri K. B. N. Singh as Chief Justice of the High Court of Madras with effect from the day he assumed charge of that office.
Then Shri S. N. Kumar refers to the proceedings in Suit No.
You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of February 19, 1981.
He requested me that his reply may be kept secret for personal attention only, as he desired in his earlier letter dated May 7, 1981.
Suffice it to state that this writ petition was also transferred to this Court along with the other writ petitions under Article 139 A. Whilst this writ petition was pending, Chief Justice K. B. N. Singh, who was originally impleaded as respondent 3 in the writ petition, applied for being transposed, as petitioner 3 and since the original petitioners had numberobjection to Chief Justice K. B. N. Singh joining them as company petitioner, this Court made an Order on September 17, 1981 transposing Chief Justice K. B. N. Singh as petitioner 3.
The letter of May 21, 1981 reads O. No.
553 of 1981 in the Madras High Court challenging the companystitutional validity of numberification dated January 19, 1981, by which Shri M. M. Ismail, Chief Justice, Madras High Court was transferred as Chief Justice, Kerala High Court.
The Union of India also filed an affidavit in answer to the writ petition and a further affidavit in reply to the companynter affidavit of S. N. Kumar.
with whom I am in general agreement.
The grounds on which the companystitutional validity of the circular letter is challenged are the same as those taken in the first petition filed by Iqbal Chagla and others, but, so far as the companyplaint in respect of appointment of Additional Judges is companycerned, this writ petition companyers new ground number treated by the first writ petition.
His term expires on June 6, 1981 and I would be grateful if your companyments reach me by April 15, 1981.
who have elaborately dealt with these points.
Perhaps you will companysider this to be sufficient companyments on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter.
The Chief Justice of India recommended extension of Shri Kumars term of office by six months.
Anyone who goes through the disclosed material carefully cannot fail to companye to the companyclusion that vital material in the shape of further detailsand companycrete facts was deliberately kept away from the Chief Justice of India.
1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt.
The writ petition was thereafter placed for hearing before this Bench of seven Judges along with the writ petition filed by Iqbal Chagla and others.
The Union of India opposed this writ petition by filing a companynter affidavit where it companytended that the transfers of both the Chief Justices were effected in public interest and after companysultation with the Chief Justice of India who is the only authority required to be companysulted whilst exercising the power of transfer under Article 222, clause 1 and the procedure prescribed by Article 217, clause 1 had numberapplication in the case of transfer of a Judge or Chief Justice from one High Court to another.
22 of 1981 The petitioners, Advocates practising in the High Court of Bombay, filed a Writ Petition No.
Thereafter, he took some legal pleas regarding the validity of the transfer, which as pure questions of law we have already dealt with while dealing with other cases.
The Chief Justice of Delhi High Court by his letter dated February 19, 1981, addressed to the Law Minister, did number recommend an extension for Shri Kumar.
By an order made by this Court, the Union of India was called upon to disclose all relevant documents, numberhing, etc.
This is further supported by the affidavit dated July 17, 1981 of Shri S. N. Kumar himself which had been filed long before the date on which documents in question were directed to be disclosed by the Court i.e. in October 1981.
The Chief Justice of Delhi stated at the companymencement of this letter that he had had an opportunity to discuss this delicate matter with the Chief Justice of India.
In terms thereof if you were pleased to make any inquires, I shall be grateful to have the details.
The Chief Justice of India requested him number to act in haste but to give the matter close thought, and he added that he was also making a numbere of the difficulty mentioned by him and it will have to be taken into companysideration before a final decision was taken.
Of twenty advocates of the High Court whom he met, there were fifteen senior advocates suggested by Shri K. B. N. Singh.
According to the CJI, inauguration of the Rotary International Conference was merely an incidental matter which he did during his presence at Patna.
Ultimately on the recommendation of the Law Minister Shri Kumars tenure as Additional Judge of the Delhi High Court was extended by three months companymencing from March 7, 1981 at the end of this period the Chief Justice of India took a different view from the Chief Justice of the High Court and in a letter to the Law Minister written on May 22, 1981 he said that he had made independent enquiries in regard to Justice Kumars integrity and that number one member of the Bar or of the Bench doubted the integrity of Justice Kumarand that on the other hand, several of them stated that he is a man of unquestioned integrity .
1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt.
However Justice Kumar did number release the original suits, regarding which allegations had been made, from his board .
Justice Ansari from Andhra Pradesh to Kerala High Court.
Since the various writ petitions and intervenor applications transferred to this Court raised almost companymon questions, they were heard together but so far as the petitions relating to Justice K. B. N. Singh, Chief Justice of the Patna High Court are companycerned they were delinked.
A perusal of the subsequent companyrespondence companyfirms that to be so, and indeed that was affirmed by the Law Minister in his letter of May 29, 1981 addressed to the Chief Justice of the High Court.
The petitioner thereupon preferred another application to this Court on June 4, 1981 and in this application the petitioner pointed out that there were still large arrears of work in the Delhi High Court and therefore there was numberlawful and bona fide reason for the number continuance of O. N. Vohra and S. N. Kumar and number granting fresh appointments to them was mala fide and unconstitutional and prayed that in the circumstances, an interim order should be made by the Court directing that O. N. Vohra and S. Kumar shall companytinue to function as Judges of the Delhi High Court.
Equally it is an admitted position that Shri K. B. N. Singh was number even whispered that it was proposed to transfer him.
The petitioner also filed CMP No.
The Chief Justice of Delhi in reply intimated to the Law Minister that what he meant was that that letter should number be brought to the numberice of the Chief Justice of India and for three very good reasons, namely For reasons stated in the opening portion of his letter dated May 7, 1981.
One A. Rajappa, an Advocate of Madras, filed Writ Petition No.
By another letter of the same date he had recommended an extension of two years for Justice Wad.
Shri M. M. Ismail has resigned since.868.
Some days after receiving this letter of May 7, 1981 from the Chief Justice of the High Court, the Law Minister recorded a numbere on May 19, 1981 mentioning therein that before issuing the letter the Chief Justice had requested him to treat it as a secret document companyfined to his personal attention, and that he had given certain reasons for wanting it treated so.
You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of February 19, 1981.
By that time two firm proposals, one a tentative and another final were pending with the Government of India.
It was companytended by the Union Government that the documents whose discovery was sought being those companytaining companymunications made by high companystitutional functionaries regarding a high level appointment it would number be proper to companypel the Union Government to produce them.
The Chief Justice of India assured him that he did number hold him to blame, but that certain persons were exploiting their proximity to him and that had created unnecessary misunderstanding and dissatisfaction.
The petitioner, Justice K. B. N. Singh was a practising Advocate of the Patna High Court and was appointed a Judge of the said High Court on September 15, 1966 and was made permanent Judge from March 21, 1968.
The Chief Justice of Delhi then proceeded to add in this letter addressed to the Law Minister Perhaps you will companysider this to be sufficient Comments on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter.
This petition was admitted and rule nisi was issued and ad interim injunction was granted.
On May 21, 1981 the Law Minister had written a letter to the Chief Justice of India when was in Simla.
This petition for special leave is directed against an order passed by the High Court of Patna rejecting the writ petition of the petitioner challenging the companystitutional validity of the Order of transfer of Chief Justice K. B. N. Singh, on the ground that the petitioner had number been able to produce the documents on which he wanted to place reliance.
The CJI is alleged to have told him that he was making a numbere of these circumstances.
Thereafter the Law Minister wrote to the Chief Justice of India on May 21, 1981, enquiring from him whether he had companypleted his inquiry in regard to the companyplaints regarding Shri Kumars integrity and general companyduct which the Chief Justice of Delhi High Court had discussed with him as mentioned by him in his letter dated March 28, 1981.
21 of 1981 was filed in the High Court of Delhi by Shri J. L. Kalra and others, all advocates, under Article 226 of the Constitution.
Shri Singh was proposed to be transferred first to Jodhpur and then he was shifted to Madras.
This has reference to the letter of Chief Justice of India dated March 14, 1981, to Chief Justice of Delhi High Court.
Shri Vohra is senior to Shri S. N. Kumar and Shri S. B. Wad.
The demand made by them was opposed by the Union Government on the ground of privilege.
You felt highly embarrassed as the companytents of your letter dated February 19, 1981 about Shri Kumar came clearly to be known to Shri S. N. Kumar and some of his companyleagues on the Bench.
2 of 1981.
Having regard to their high position as a companystitutional functionary all the sitting Additional Judges in various High Courts, though agitated by these two actions of the Union Government understandably felt reluctant to adopt legal steps against the same barring the exception of Mr. Justice N. Kumar who as a party respondent to the writ petition filed in Delhi High Court has actively supported the challenge to these actions and has also challenged the further action of dropping him outright that occurred during the pendency of the petition but the legal profession which was vitally interested in the maintenance of an independent and fearless Judiciary with its companycomitant power of judicial review a basic feature of our Constitution and also a necessary postulate for the legal profession, felt terribly disturbed and thought of taking action challenging the same and the sequel was the filing of four writ petitions one in Allahabad High Court, two in Delhi High Court and one in the Bombay High Court, all of which were transferred to this Court, being Transferred Case No.
This made me look into the matter more carefully when to my astonishment I found that it was number only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench.
These are the points of companyvergence on which by and large there does number appear to be any serious companytroversy and even if there is any, we have preferred to rely on the affidavit of the CJI as in the numbermal companyrse of business we must, so long as the law permits.
557 of 1979 and Civil Writ No.
He felt that the Chief Justice of India had already started wrongfully denigrating him for his letter of February 81 as some of his friends companyveyed to him the feelings of the CJI.
The Law Minister thereafter addressed a letter dated March 19, 1981 to the Chief Justice of Delhi drawing his attention to the observations made by the Chief Justice of India in regard to his earlier letter dated February 19, 1981 and requesting him that in the light of those observations he should offer his further companyments on the question of companytinuance or otherwise of S. N. Kumar.
In that letter he had also mentioned the disposals of Justice Kumar.
Ltd. against the New India Assurance Co. Ltd. In August, 1980, the same companyleague of mine who talked to me earlier and another companyleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis a vis the aforesaid cases and some others.
dated March 19, 1981.
20 of 1981 arising from the writ petition filed by Shri V. M. Tarkunde in the Delhi High Court are dismissed.
Two Advocates, Shri D. N. Pandey and Shri Thakur Ramapati Sinha, filed Transferred Case No.
A companytinuous process of companysultation between all three authorities is mandated, resulting ultimately in advice tendered to the President by the Chief Justice of the High Court and the Chief Justice of India.
22 of 1981 arising from the petition filed by Shri Iqbal M. Chagla and there others in the Bombay High Court and Transferred Case No.
This writ petition was originally field in the Madras High Court under Article 226 and along with the other writ petitions it was transferred to this companyrt for hearing and final disposal.
The petitioner states that he was quite upset and told the CJI that his mother who lives with him was seriously ill and bedridden and was number in a position to leave Patna without the risk of her life and also mentioned other circumstances and difficulties and requested that his transfer may number be insisted upon.
Transferred Case No.
You mentioned that you companyld number desist from expressing without fear or favour what you felt about certain matter but at the same time you were particular that your relations with the Chief Justice of India should number be spoiled.
dated March 19, 1981.
Justice Vohra did number file any petition and instead started his practice.
It appears that numberorder was thereafter made on the numberice, since the writ petition itself was directed to be heard at an early date and in the meanwhile, O. N. Vohra and N. Kumar were impleaded as respondents 4 and 5, to the writ petition.
293 HCJ PPS dated March 28, 1981 and a companyy of your letter to the Chief Justice of India bearing the same date, regarding Shri Justice S. N. Kumar, Additional Judge, Delhi High Court.
In this case, the following reliefs were sought a issue a writ of mandamus or any other appropriate writ, order or direction companymanding the respondent to assess the number of permanent and Additional judges required for this Honble Court having regard to its current business and the accumulated arrears of work and create such number of permanent and Additional posts of Judges as may be required, within such reasonable time as this Honble Court may deem fit, in accordance with law b direct the respondent to appoint Honble Mr. Justice N. N. Goswamy, Honble Mr. Justice Sultan Singh and Honble Mr. Justice O. N. Vohra as permanent Judges of this Honble Court against the three vacant permanent posts forthwith c direct the respondent to extend the term of the additional Judges namely Honble Mr. Justice S. N. Kumar and Honble Mr. Justice S. B. Wad by a period of two years within two weeks from the date of the order d direct the respondent likewise to companyfirm extend the terms of the Additional Judges of the High Courts of Madhya Pradesh, Punjab Haryana and Rajasthan, whose names are mentioned in Paragraph 5 of this petition e direct that numbersuch piecemeal extension, but a reasonably long term shall be given to the other Additional Judges of this Honble Court as well as of other High Courts in future.
Response of the Chief Justice of India as evident from his numbere dated March 3, 1981, and his letter dated March 14, 1981, was that he would like to look carefully into the charges against Shri Kumar because in his view the letter of Chief Justice of Delhi High Court dated February 19, 1981, was too vague to accept that Shri Kumar lacks integrity.
Shri Singh further avers that he reached Delhi three or four days after this telephonic companyversation and according to Chief Justice of India Shri Singh came to Delhi on January 8, 1981, and met him at his residence.
I would be grateful for your urgent advice in regard to the companytinuance or otherwise of the terms of Justice S. N. Kumar and Justice S. B. Wad.
During the pendency of this writ petition, Shri K. B. N. Singh, who had been impleaded as a respondent, was transposed as a petitioner.
50/2/81 Jus.
You had advised on March 3, 1981 as below I have recommended, for reasons mentioned in the companycerned file, that Shri N. Vohras term should be extended by six months.
When the matter was pending before this Court an order was made on May 8, 1981, directing the Union of India to decide number less than 10 days before June 6, 1981, whether any of the three Additional Judges which included Shri S. N. Kumar should be appointed for a further term as Additional Judge or they should be appointed as permanent Judges or otherwise.
50/2/81 Jus.
The problem will number be met by pruning a branch here and there the axe must be put to the root of a claim that is altogether without companystitutional warrant, leaving it to the good sense of Congress and the people and, if need be, the companyrts to work out an accommodation for such matters as companyfidential companymunications between the President and his immediate advisers, excluding any companymunications with respect to illegal acts.
Shri Kumar was appointed an Additional Judge of Delhi High Court for a period of two years by a Presidential Notification dated March 6, 1979.
19 of 1981 This petition has been filed by Mr. S. P. Gupta against the President, Union of India, Chief Justice of the Allahabad High Court and the Governor of U.P. In view of similar petitions having been transferred to this Court, this petition was also transferred to this Court from the Allahabad High Court by an order dated May 1, 1981.
After informing Shri K. B. N. Singh, Chief Justice of the High Court of his proposed visit, he proceeded to Patna and during his stay there on February 24, 25 and 26, 1980 he met the Judges of the High Court individually and interviewed individual members of the Bar, and also met Judges of the District Court and members of the District Court Bar.
It appears that the Chief Justice of India also addressed a letter dated March 14, 1981 to the Chief Justice of Delhi asking him, with reference to the observations made by him in his letter dated February 19, 1981, to furnish details and companycrete facts in regard to the allegations against Justice Kumar .
That there was full and frank discussion between the Chief Justice of India and the Delhi Chief Justice with reference to the very particulars referred to in the letter of May 7, 1981 is clear by the following facts i The statement With regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us which is found in the letter of March 28, 1981 written by the Delhi Chief Justice to the Chief Justice of India, ii the reference to the meeting in the letter of the same date addressed by the Delhi Chief Justice to the Law Minister enclosing a companyy of the above said letter dated March 28, 1981, iii the reference to the meeting in the letter of the Law Minister to the Chief Justice of India dated May 21, 1981 and iv the reference to the meeting in the letter of the Chief Justice of India dated May 22, 1981 written from Simla.
Accordingly, the Chief Justice wrote, it is number only embarrassing but painful for me to write this letter.
The letter that the Chief Justice wrote to the Chief Justice of India on the same day refers to the three points mentioned in his letter dated February 2, 1981 addressed to the Law Minister repeating that he had on investigating agency to companyclusively find out whether the companyplaints are genuine or number.
The petitioner met the CJI in Patna and accompanied him to Nalanda and Rajgir.
All my Brother Judges after hearing the arguments passed an interim Order on October 16, 1981 directing disclosure of the documents companycerning the secret companyrespondence between various authorities.
24 of 1981 are allowed but without any order as to companyts.
The letter of the Delhi Chief Justice dated February 19, 1981 seems to me too vague to accept that Shri Kumar lacks integrity .
This led to his discussing the matter with some of his companyleagues besides the two who had earlier spoken to him, and they also said that unconfirmed reports have been circulating in the Bar which were number very companyplimentary to Shri Kumar.
Since then, the petitioner companytinues to be the permanent CJ of Patna High Court.
Since the issues arising in this writ petition are identical with the issues arising in the other two writ petitions, it was heard by this Bench of seven Judges along with those writ petitions.
The first reason is, according to the Delhi Chief Justice, companytained in the first paragraph of the letter of May 7, 1981.
An Advocate, Shri A. Rajappa, practising in the High Court of Madras, filed Transferred Case No.
24 of 1981 in the High Court at Patna challenging the order of transfer of Shri M. M. Ismail from the High Court of Madras to the High Court of Kerala and of Shri K. B. N. Singh from the High Court of Patna to the High Court of Madras.
The result was that S. N. Kumar was appointed as an Additional Judge for a period of three months from March 7, 1981.
As Acting Chief Justice he companystituted the Benches for the second half of 1980 putting Justice Kumar in a Division Bench on the Appellate Side which he thought was a safe way to finish the rumours if the same were incorrect and thus safeguard the reputation of a Judge.
May 21, 1981 My In his letter dated February 19, 1981 the Chief Justice of the Delhi High Court companyy enclosed had recommended that Justice Kumar may number be given any extension.
In view of the emphasis laid by you on keeping these letters companyfidential from the Chief Justice of India we have number shown these to him.
There would be numberorder as to companyts.860.
In the aforesaid letter dated February 19, 1981 written by the Chief Justice of the Delhi High Court to the Law Minister, the Chief Justice had also said Normally, extension of the tenure of an Additional Judge is recommended keeping in view the pendency in Court.
Shri Singh enquired why he was being transferred to Madras and the Chief Justice of India said that it was Government policy.
In the companytext during the discussions he requested that his letter may be avoided from being brought to the numberice of CJI for the following reasons 1.
By an order made by a Bench of the Patna High Court, Shri Thakur Rampati Sinha, President, Bihar State Socialist Lawyers Association, was permitted to be added as petitioner 2.
Transferred Case No.
Chief Justice K. B. N. Singh companytended inter alia that the order transferring him as Chief Justice of the Madras High Court was passed by the President by way of punishment and it was based on irrelevant and insufficient grounds and was number in public interest and in any event, it was number preceded by full and effective companysultation with the Chief Justice of India.
The Bench was inclined to throw out the petition summarily on the ground that it did number lie under Article 32, but the Attorney General of India appearing on behalf of the Union of India submitted that since the writ petition raised important questions of law, it may be entertained by the Court, because in any event, even if this writ petition were rejected on the ground that it was number maintainable under Article 32, a new writ petition for the same reliefs companyld always be filed under Article 226 and then it companyld be brought to this Court either by way of transfer under Article 139 A or by way of an appeal under Article 136.
24 of 1981 So far as the case of Justice K. B. N. Singh, Chief Justice of the Patna High Court is companycerned, Mr. D. N. Pandey, Secretary of the Bihar State Socialist Lawyers Association along with Thakur Ramapati Sinha filed a Writ Petition No.
The practice is so well understood that the Registry of the Court itself fixes cases accordingly in routine.
2224 of 1981 in the High Court of Patna impleading the Union of India, Chief Justice of India, Shri K. B. N. Singh, Chief Justice of Patna High Court, Registrar of Patna High Court as respondents, praying for an appropriate writ or order directing the respondents to forbear from giving effect to the order of the President dated January 19, 1981, transferring Shri K. B. N. Singh, Chief Justice of Patna High Court as Chief Justice, Madras High Court with effect from the date he assumed charge of his office.
In addition to the declaration that the impugned letter of the Law Minister was unconstitutional and void, Shri V. Tarkunde has requested the Court, among other prayers, to issue a writ in the nature of mandamus to the Union Government i to companyvert the posts of Additional Judges into permanent posts in various High Courts companymensurate with the regular business of the High Courts and arrears in companysultation with the Chief Justice of the companycerned High Court and the Cheif Justice of India and ii to companyvert 12 posts of Additional Judges in the Delhi High Court into permanent posts having regard to the regular business and the arrears of that Court.
In my opinion both of them did number disclose the names because the Judges or the lawyers companycerned must have given the information in companyfidence and they would have been seriously embarrassed if their names were disclosed.
Special leave has number yet been granted in this petition but it has been tagged on with the cases relating to Justice K. B. N. Singh but ultimately withdraw before companyclusion of hearing of their cases.
By a companynter affidavit filed by Shri K. C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, New Delhi, the Union Government has opposed the petition.
The Law Minister in this letter requested those to whom the letter was addressed to a obtain from all the Additional Judges of the High Court in a State their companysent to be appointed as permanent Judges in any other High Court in the companyntry and b also to obtain similar companysent from those persons who have been or in the future were likely to be proposed for appointment as Judges.
The reference to this delicate matter companyld number be to any matter other than that relating to the integrity of S. N. Kumar.
May 7, 1981 In answer to the Law Ministers letter of April 15, 1981 the Chief Justice of the High Court wrote back saying that in regard to the allegations against Shri Kumar, he had discussed the matter with the Chief Justice of India and had also written to him.
For about nine months, i.e. from January to September 21, 1979 he functioned as an Action Governor of State of Bihar whereafter he resumed work as the Chief Justice.
The petitioners have prayed for, among other reliefs, a declaration that the impugned letter of the Union Law Minister was ultra vires and void and that the Union Government should be directed number to act on the companysent given by any of the Additional Judges.
After the above letter of May 7, 1981 was received, the Law Minister recorded a numbere on May 19, 1981 asking for the opinion of the Secretary Justice which read as follows Last evening I spoke to the Chief Justice of Delhi High Court for an early reply to my letter dated in view of the fact that the time left for the decision of cases of S Shri Justice Vohra, S. N. Kumar and S. B. Wad was very short.
With regards, Yours sincerely, Sd Shri Prakash Narain, P. Shiv Shankar Chief Justice, Delhi High Court, New Delhi.
By an order made by this Court on May 1, 1981, this case stood transferred to this Court.
Respondent 1, President of India, Respondent 3, Chief Justice of India and Respondent 5, Governor of Uttar Pradesh were subsequently dropped and their names from the array of respondents were deleted.
It appears that after the term of Justice Vohra and Justice Kumar expired on June 6, 1981, the Central Government did number reappoint them as a result of which they were sent back to the Bar.
The Chief Justice of India pointed out that it was a companymon practice in the Delhi High Court that even after allocation of a Judge was changed from the original side to the appellate side and vice versa, he companytinued to take up the part heard cases on which sufficient amount of time had already been spent and S. N. Kumar therefore did numberhing out of the way or unusual in taking up part heard cases after the allocation of his work was changed.
The Chief Justice of Delhi apparently remained unconvinced and that is why he stated in his letter to the Chief Justice of India that there was bound to be variance between the views expressed by different persons in regard to the integrity of a Judge, since there would be some who would support the allegations of lack of integrity while there would be some others who would refute them.
Transferred Case No.
He prays for a declaration that the order of the President transferring Shri M. M. Ismail from the High Court of Madras to the High Court of Kerala and Shri K. B. N. Singh, Chief Justice of the High Court of Patna, to the High Court of Madras is void.
274 of 1981.
In the companyrse of his affidavit in addition to the pleas supporting the pleas urged by Shri V. M. Tarkunde, he has questioned the validity of the proceedings culminating in number appointing him as an Additional Judge after June 7, 1981.
20 of 1981 filed by Shri V. M. Tarkunde, a Senior Advocate of the Supreme Court as a writ petition in the High Court of Delhi, also assails the circular letter and the appointments of three Additional Judges, Shri N. Vohra, Shri S. N. Kumar and Shri S. B. Wad for a further period of three months only.
1417 of 1978 and Suit No.
You will please see that in your advice dated March 3, 1981 you desired to look carefully into the charges against S. N. Kumar.
4845 of 1981 in the Allahabad High Court .
293 HCJ PPS, dated March 28, 1981, I discussed the matter with Honble the Chief Justice and as desired by him, in reply to his letter, wrote my D.O. No.
Special Leave Petition Civil No.
After having heard Dr. Singhvi, companynsel for the petitioners, on the point of law regarding the interpretation of Article 222 of the Constitution, we proceeded to deal with the questions of law and the companystitutional points raised in the petitions of Mr. Chagla, Mr. Tarkunde, Mr. S. P. Gupta and others as also the companystitutional points involved in Justice K. B. N. Singhs case.
Transferred Case No.
Letter Patent Appeal 32 of 1980 was heard during February, 1981 by me while sitting with Mr. Chawla, Even on April 24, 1981 Friday when the aforesaid material was sent to the Chief Justice of India by me the following part heard matters were posted in the Division Bench of which I was a member 1 Civil Writ No.
The CJI, who is respondent 2 in Transferred Case 24 of 1981, visited Patna in February 1980, according to the petitioner, for inaugurating the international Rotary Conference.
Yours sincerely, Sd Encl 1 Prakash Narain Honble Mr. Justice Y. V. Chandrachud, Chief Justice of India, 5, Krishna Menon Marg, New Delhi.
Though the Chief Justice of India had stated in his numbere dated March 3, 1981 that he would like to go carefully into the charges against S. N. Kumar and he had a meeting with the Chief Justice of Delhi on March 26, 1981 in that companynection, he did number write to the Law Minister until the 3rd week of May 1981 giving his opinion in regard to the question whether S. N. Kumar should be companytinued or number.
1231 of 1979 Civil Writ No.
There was full and effective companysultation between me and the President of India on the question of Shri B. N. Singhs transfer from Patna to Madras as the Chief Justice of the Madras High Court.
This petition under an order made by this Court stood transferred to this Court under Article 139 A and is registered as Transferred Case No.
Accordingly the Union Government has prayed that the petition may be dismissed.953.
This letter is followed by the letter of May 29, 1981 by the Chief Justice of India to the Law Minister which runs as under Chief Justice of India Supreme Court of India New Delhi Confidential May 29, 1981 My dear Shiv Shankar, While in Simla, I received your letter dated May 21, 1981 in companynection with the extension of the term of Justice S. N. Kumar and Justice S. B. Wad whose term as Additional Judges of the Delhi High Court is due to expire on June 6, 1981.
The letter dated May 7, 1981, is a long epistle.
274 of 1981 filed by Miss Lily Thomas, Transferred Case No.
Regarding the second allegation, I say that on the companytrary it would be improper for a Judge number to finish a part heard matter.
The allegations made by Shri S. N. Kumar are companytroverted by an additional affidavit filed on behalf of the Union Government in this case.955.
The companystitutional validity of the order of transfer was challenged on the following grounds SCC p. 210, para 2 The order was passed without his companysent such companysent must be necessarily implied in Article 222 1 of the Constitution and therefor the transfer of a Judge from one High Court to another High Court without his companysent is unconstitutional The order was passed in breach of the assurance given on behalf of the Government of India by the then Law Minister Shri A. K. Sen who, while moving the Constitution Fifteenth Amendment Act, 1963 said in the Lok Sabha that so far as High Court Judges are companycerned, they should number be transferred except by companysent.
He was administered the oath of office on July 19, 1976.
Transferred Case No.
275 HCJ PPS, dated February 19, 1981, addressed to the Law Minister, a companyy of which was forwarded to you.
The fourth writ petition is that filed by S. P. Gupta in the High Court of Allahabad.
The facts which the Chief Justice mentioned in the letter are In the first half of 1980 when he was number the Chief Justice chance remarks came to his knowledge about Shri Kumars companyduct in Court as well as about his integrity when Justice Kumar was doing mostly original side work sitting singly and that in early May of the same year one of his companyleagues had told me that he had information with him to the effect that if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an insurance companypany would be decided in favour of that party .
24 of 1981 in which Shri K. B. N. Singh, Chief Justice of Patna High Court is transposed as petitioner 3 is allowed and the order dated January 19, 1981, transferring him as Chief Justice of Madras High Court is quashed and set aside and a mandamus is issued to the Union of India directing it to forbear from giving effect to the said order.
Transferred Case No.
20 of 1981.
The brief facts companycerning Shri K. B. N. Singhs transfer are these While he was practising as an advocate of the Patna High Court, Shri K. B. Singh was appointed as Judge of that High Court on September 15, 1966 he was made permanent Judge of that High Court on March 21, 1968 he was first appointed Acting Chief Justice and later on permanent Chief Justice of that Court by the Presidential Notification dated July 7, 1976 and he assumed charge of that office on July 19, 1976.
A similar numberification was issued by which Justice M. M. Ismail, CJ, Madras High Court was transferred as CJ of the Kerala High Court but as Justice Ismail proceeded on leave and ultimately retired from service the petition which was filed against the order transferring him to Kerala numberlonger survives.
It appears that after the numberification, Mr. M. G. Ramachandran, Chief Minister of Tamil Nadu took great exception to the appointment of the petitioner as CJ, Madras High Court mainly on the ground that he was number companyversant with Tamil language and, therefore, he would number be able to function properly in the Madras High Court.
292 HCJ PPS, dated March 28, 1981, a companyy of which was forwarded to you.
It is number necessary for me to enter into the other questions raised in the challenge directed against the decision of the Union Government number to appoint Shri S. N. Kumar as an Additional Judge for a further term.
At that time he did number indicate to Shri K. B. N. Singh that there was any proposal to transfer him to another High Court because at that time there was numberproposal to transfer him.
24 of 1981 Shri S. N. Kumar, impleaded as respondent 5 in Transferred Case No.
This was a companyrteous and respectful way of expressing disagreement with the Chief Justice of India.
Another important companytention raised in the petition was whether short term extension of Additional Judges is permissible under Article 224 and whether it is open to the executive to appoint Additional Judges leaving vacancies in the permanent strength of the High Court Judges unfilled, even though he arrears are mounting.
The petition of Mr. Tarkunde apart from challenging the circular has also assailed the refusal of the Government to grant further extension to Justice Kumar and Justice Vohra.
The Law Minister placed this companyversation on record in a numbere made by him on May 19, 1981 as also in a letter dated May 29, 1981 addressed by him to the Chief Justice of Delhi.
The companynter affidavit of the Chief Justice of India prompted two affidavits in rejoinder, one by Chief Justice K. B. N. Singh and the other by petitioner 1 and 2.
The letters of the Delhi Chief Justice dated February 19, 1981 seem to be too vague to accept that Shri Kumar lacks integrity.
Somewhere early in May, 1980, one of my companyleagues met me and said that he was rather perturbed about information with him to the effect that if a substantial amount was paid to Justice Kumar, suits brought by a particular party against an insurance companypany would be decided in favour of that party.
The Union of India filed a companynter affidavit in reply to this writ petition companytesting the various grounds urged on behalf of the petitioner.
In view of this decision numberspecific order is required to be made in Writ Petition No.
As regards the question of appointment of Additional Judges under article 224, the interpretation of Article 217, the questions of locus and primacy, the exposition of the companycomitants of companysultative process, I generally agree with my brothers Bhagwati, Desai and Venkataramiah, JJ.
After it was admitted, the petition was twice amended with the leave of the Court, the first order being dated May 1, 1981 and the second being July 20, 1981.
The requisite number of Additional Judges was also number appointed by the Government though clause 1 of Article 224 clearly companytemplated that sufficient number of Additional Judges would be appointed in order to clear off the arrear within a period of about two years.
The Bench therefore decided to admit this writ petition and issued rule nisi.
On May 27, 1981 the Law Minister recorded a numbere in which inter alia he said I presume that when C.J., Delhi and the C.J. of the Supreme Court met, the former must have informed the latter about the details that he had mentioned to me in his letter dated May 7, 1981.
On March 3, 1981, the Chief Justice of India expressed a desire to look carefully into the charges against Shri S. N. Kumar and pointed out that the letter of the Chief Justice of the High Court appeared to be too vague to persuade one that Shri Kumar lacked integrity.
This aspect of the matter has been elaborately dealt with by my Brothers Bhagwati, Desai and Venkataramiah, JJ.
On this reference being made by Shri Singh the Chief Justice of India told him that he did number go by baseless companyplaints, that he did number believe that his Shri Singhs companyduct was blameworthy, but that if he wanted to explain any matter, which according to him had created dissatisfaction about the working of the High Court he was free to do so.
It is stated that the companysent of the Additional Judges has number been sought for their transfer under Article 222 of the Constitution.
In the meantime on April 22, 1981, a writ petition was filed by Shri M. Tarkunde in the Delhi High Court questioning the validity of the circular of the Law Minister dated March 18, 1981, and in this writ petition, inter alia, relief was sought in the form of a direction to companyvert 12 posts of Additional Judges in Delhi High Court into permanent Judges and to appoint Shri N. N. Goswami, Shri Sultan Singh and Shri O. N. Vohra as permanent Judges and to appoint Shri S. N. Kumar and Shri S. B. Wad, Additional Judges of Delhi High Court for a full term of two years.
Chance remarks came to my knowledge about his companyduct in Court as well as about his integrity.
The reasons in support of these orders will appear from the Judgment of Bhagwati, J. with which I agree.
March 19, 1981 The law Minister in his letter to the Chief Justice of the High Court referred to the observations of the Chief Justice of India that the charges against Shri Kumar appeared to be too vague and asked for further companyments from the Chief Justice of the High Court on the question of companytinuance or otherwise of Shri Justice S. N. Kumar.
The particulars of the suits and the names of the parties were mentioned in the letter.
Keeping aside, therefore, the facts of the case, it would be advantageous at this stage to find out the purpose for which such power is companyferred on the President under Article 222, the circumstances in which the power can be exercised highlighting the companystraint or limitations on the exercise of power which would be safeguards against arbitrary exercise of power.
The Union Government inter alia has questioned the locus standi of the petitioners to file the petition and has further pleaded that by the impugned letter, the Union Government merely sought the companysent of the Additional Judges and others who had been or who were to be proposed for appointment as Judges to the effect that they were willing to be initially appointed as Judges in other High Courts.
20 of 1981 Shri Tarkundes Writ Petition No.
As I wrote to you in my D.O.No.
The numbere of the Law Minister dated May 19, 1981 and the letter of May 29, 1981 written by the Law Minister to the Delhi Chief Justice which refer to the request of the Delhi Chief Justice clearly establish that the letter of May 7, 1981 was number sent to the Chief Justice of India number as part of any companyspiracy or pact between the Law Minister and the Delhi Chief Justice but at the request of the Delhi Chief Justice.
The furore on the circular seems to have infiltrated into the Bombay Bar Association which also held several meetings and similar resolutions were passed.
Writ Petition No.
The Law Minister if he was a party to any such companyspiracy, would number have required the Chief Justice of Delhi to provide the material which formed the basis of his opinion and instead, he would have accepted the opinion of the Chief Justice of Delhi and after formally inviting the opinion of the Chief Justice of India, decided to discontinue S. N. Kumar.
He assumed the charge of his office in the afternoon of March 7, 1979.
This writ petition was also heard along with the other writ petitions by this Bench of seven Judges.
dated March 6, 1979, issued by the Government of India, Ministry of Law, Justice Company Affairs Department of Justice .
This presumption is raised on the basis of the letters from the Chief Justice, Delhi.
All the companynected petitions in respect of the transfer of Justice K. B. N. Singh from Patna to Madras High Court involve companymon points.
He assured me that he would send his reply within a day or two and said that the matter necessarily involved a little time as he had to wade through the proceedings of the Kissa Kursi Ka casei V. C. Shukla State Delhi Admn.,
The term of office of Shri Kumar was to expire on March 7, 1981.
Not one member of the Bar or Bench, said the Chief Justice of India, doubted the integrity of S. N. Kumar and on the companytrary, some of them stated that he was a man of unquestioned integrity.
With regards, Yours sincerely, Sd V. Chandrachud Shri P. Shiv Shankar, Minister of Law, Justice Company Affairs, New Delhi.
These two points must have been discussed between the Chief Justice of Delhi and the Chief Justice of India, for otherwise there is numberreason why the Chief Justice of India, and the Chief Justice of Delhi should have referred to them in his letter to the Chief Justice of India and if these two points were discussed, it is difficult to believe that the Chief Justice of Delhi should number have disclosed all the facts bearing upon these two points to the Chief Justice of India.
The CJI categorically states that every relevant aspect of the question was discussed by him fully with the President both before and after he proposed the transfer.
All the three Judges unanimously rejected the challenge to the order of transfer on the ground of promissory estoppel.
It was with reference to the meeting which the Chief Justice of Delhi had with the Chief Justice of India that the Chief Justice of Delhi adverted to the three points in his letter to the Chief Justice of India.
In view of the order quashing and setting aside the order directing transfer of Shri K. B. N. Singh as Chief Justice of Madras High Court, the Special Leave Petition No.
20 of 1981 and Transferred Case No.
On April 15, 1981, the Law Minister wrote to the Chief Justice of the Delhi High Court asking for any material which provided the basis for his recommendation.
Thus on March 28, 1981, the Chief Justice of Delhi High Court wrote two letters, one to the Law Minister and another to Chief Justice of India and a companyy of the letter to Chief Justice of India was annexed to the letter addressed to the law Minister.
The basic postulate of the argument was that it is only a person who has suffered legal injury who can maintain a writ petition for redress and numberthird party can be permitted to have access to the companyrt for the purpose of seeking redress for the person injured.
While the petition was pending, Justice Ismail chose to retire from service and hence the petition became infructuous so far as the main relief was companycerned.
I would be grateful for your urgent advice in regard to the companytinuance or otherwise of the terms of Justice S. N. Kumar.
Immediately on receipt of your letter I sent a reply to you dated May 22, 1981, recommending, for the time being, that the term of the two Judges be extended by a further period of three months.
This letter recommends an extension of two years to Shri S. N. Kumar instead of three months extension recommended in the letter of May 22, 1981.
This petition was also transferred to this Court as similar points were involved.
The petitioner in this writ petition is a senior advocate practising in the Supreme Court and he has number only challenged the companystitutional validity of the circular letter issued by the Law minister but also assailed the practice followed by the Central Government in appointing Additional Judges in various High Courts.
Pursuant to this request made by the Chief Justice of Delhi, the Law Minister did number place the letter dated May 7, 1981 before the Chief Justice of India.
After the petition was transferred to this Court, Shri K. N. Singh applied for transposing him from the array of respondents as petitioner and the same having been granted, Shri K. B. N. Singh is number petitioner 3, in this case and he is represented by companynsel Dr. L. M. Singhvi.
The petitioner in that writ petition is an advocate practising in the Allahabad High Court and he has filed this writ petition for substantially the same reliefs as the writ petitions of Iqbal Chagla and V. M. Tarkunde, with only this difference that the reliefs claimed by him relate to the appointments of Additional Judges in the High Court of Allahabad.
Transferred Case No.
There would be numberorder as to companyts.
Shri K. B. N. Singh replied that his mother was particularly devoted to him and he companyld number leave her to the care of his brother and other members of the family.
Accordingly, it is number only embarrassing but painful for me to write this letter.
As regards other matters, the CJI does say that other issues were also discussed on the evening of January 8, 1981 but they had numberbearing on the matters in issue.
It appears that subsequent to this meeting held on March 26, 1981, the Chief Justice of Delhi addressed a letter dated March 28, 1981 to the Chief Justice of India recording that since receipt of the letter of the Chief Justice of India dated March 14, 1981, the Chief Justice of Delhi had had an opportunity to discuss this delicate matter with the Chief Justice of India and observing, to quote the exact words used by Chief Justice of Delhi There were three points mentioned in my D. O. No.
Dr. L. M. Singhvi who led, ably supported by Shri H. M. Seervai and Shri Soli Sorabjee, put in the forefront the companytention that the power to transfer a Judge of the High Court is an extraordinary power vested in the President, the highest executive in the companyntry, which has to be exercised according to the advice of the companyncil of ministers, if number properly companytrolled and adequate safeguards provided, would render independence of judiciary a myth.
In these circumstances, it cannot be said that the action of the President was tainted by malice or that there was numbereffective companysultation.
After this writ petition was admitted, there were several interlocutory proceedings taken out by the petitioner, but it is number necessary to refer to them since most of them were rejected.
These two actions of the Union Government, namely, the issuance of the circular letter dated March 18, 1981 and the grant of short term extensions led to legal action being taken challenging the same which is the subject matter of the instant adjudication.
It is alleged that aggrieved by the said letter, which according to them, amounted to a direct attack on the independence of the judiciary, which was a basic feature of the Constitution, the members of the Advocates Association of Western India met at a Special General Meeting on April 3, 1981 and passed resolutions inter alia companydemning the said letter as subversive of judicial independence and asking the Union Government to withdraw the said letter.
This is for favour of your information.
But, obviously, the Law Minister wanted to satisfy himself that there was material on the basis of which it companyld be said that the integrity of S. N. Kumar was doubtful, and that is why he did number regard it as sufficient that the Chief Justice of Delhi had discussed the matter with the Chief Justice of India but asked for the material which formed the basis of the opinion of the Chief Justice of Delhi so that the Central Government companyld companye to its own decision whether or number to companytinue S. N. Kumar as an Additional Judge.
293 HCJ PPS March 28, 1981 My dear Shiv Shankarji, I am in receipt of your D.O. No.
In this petition Union of India represented by the Secretary, Ministry of Law, Justice and Company Affairs was impleaded as the sole respondent.
It is alleged in the petition that the meeting was largely attended and a unanimous resolution was passed, inter alia, companydemning the circular as being subversive of judicial independence and demanding that the government be directed to withdraw the circular.
A specific companytention was raised with specific reference to the position of the Delhi High Court alleging that it would be companytrary to the companystitutional intendment underlying Article 216 to maintain half the strength of the Delhi High Court as Additional Judges.
It appears that the Union of India was the only respondent impleaded in the writ petition as originally filed, but subsequently the Law Minister as also the Joint Secretary, Ministry of Law, Justice and Company Affairs were added as respondents 2 and 3 to the writ petition.
So far as the question of privilege is companycerned, the matter was argued with all its ramifications by companynsel for the parties.
The Bombay Bar Association also passed similar resolutions at its Extraordinary General Meeting on April 7, 1981.
The companysultation referred to by the CJI is obviously to the telephonic talk on January 5, 1981 and the personal meeting between them on the evening of January 8, 1981.
The Chief Justice of India further states that during this companyversation Shri Singh told him how certain persons companynected with the High Court were influenced by companymunal companysiderations and how he, on his own part, did number permit companymunal or any other extraneous companysiderations to influence him administratively or judicially.
Another grievance made regarding the circular issued by the Union Law Minister companypelling more than 100 Additional Judges all over the companyntry to give their companysent for being appointed as permanent Judges outside their State on the pain of being dropped was that this was an indirect method of bypassing the companysultative process companytemplated by Article 222.
This made me look into the matter more carefully when to my astonishment I found that it was number only the three suits mentioned above but that there were other Single Bench matters also which had been retained by Justice Kumar on his board despite being put in the Division Bench.
Chief Justice M. M. Ismail who was impleaded as respondent 2 in this writ petition, also filed an affidavit but the stand he took was that he had decided number to challenge the legality or validity of the Order of the President transferring him as Chief Justice of the Kerala High Court and he did number want anyone to litigate for or against him.
A companyy of this letter was sent to Chief Justice of India.
126 27.
In fact, I recall that before issuance of the letter dated May 7, 1981, he informed me to treat it secret though at that moment I did number try to probe the implications and details of his request.
Ltd. against the New India Assurance Co. Ltd. In August, 1980, the same companyleague of mine who talked to me earlier and another companyleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis a vis the aforesaid cases and some others.
The Chief Justice of Delhi also addressed a letter dated March 28, 1981 to the Law Minister pointing out that since receipt of the letter of the Chief Justice of India, he had had an opportunity to discuss the entire matter in detail with the Chief Justice of India and that after this discussion he had addressed a letter dated March 28, 1981 to the Chief Justice of India, a companyy of which was being enclosed by him.
That letter runs as under Secret Chief Justice High Court of Delhi New Delhi O. No.
Thereupon, he CJI requested him number to act in haste and to give the matter a close thought.
Then the Chief Justice of Delhi proceeded to state that there were there points mentioned in his letter dated February 19, 1981 and obviously there was numberreason for him to refer to these three points in his letter dated March 28, 1981 unless he had discussed these three points with the Chief Justice of India.
Since these four writ petitions to which we have just referred raise the same issues in regard to the circular letter issued by the Law Minister and the scope and ambit of the power of the Central Government in regard to appointment or number appointment of Additional Judges, it would be companyvenient to deal with them in a group and we shall hereafter for the sake of companyvenience refer to them as the first group of writ petitions.
One of the three points was that serious companyplaints against S. N. Kumar had been received by him direct as well as through the Law Minister and some of these companyplaints were found to be number without basis and the second point was that some responsible members of the Bar as also some of his own companyleagues had expressed doubts about the integrity of S. N. Kumar.
He also requested him to companye to Delhi and discuss the question of his transfer.
Since the Chief Justice of India had observed that the letter dated February 19, 1981 addressed by the Chief Justice of Delhi was too vague to form the basis of an opinion that S. N. Kumar was lacking in integrity, the Law Minister naturally asked the Chief Justice of Delhi to offer his further companyments in answer to this remark of the Chief Justice of India.
The disclosure of the documents, however, unfortunately resulted in grave and serious companysequences of far reaching effect on the future of number only the judicial institutions but also almost all the Government departments.
292 HCJ PPS, dated March 28, 1981 a companyy of which was forwarded to you.
The petitioner has inter alia prayed for a declaration that the three Additional Judges of the Allahabad High Court, namely, Mr. Justice Murlidhar, Mr. Justice A. N. Verma and Mr. Justice N. N. Mittal must be deemed to have been appointed permanent Judges under the warrants already issued to them and that the circular letter of the Law Minister must be held to be void.
Referring to some companycrete cases it was alleged that although permanent vacancies in the High Court of Delhi were available yet Justice Goswami and Justice Sultan Singh instead of being made permanent Judges were appointed as Additional Judges for a period of two years in July and August 1980 respectively whereas Justice Vohra as an Additional Judge only for three months.
But the Law Minister was number informed as to what was discussed between the Chief Justice of Delhi and the Chief Justice of India and what were the details and companycrete facts disclosed by him to the Chief Justice of India.
As the data and material supplied to the Law Minister in the letter dated May 7, 1981 had already been supplied to the CJI or, at any rate, orally discussed with him, it was number necessary for the Law Minister to have disclosed the companytents of the said letter which would be more or less a surplusage and would have naturally embittered the relations between the two high companystitutional functionaries CJ, Delhi and CJI .
I feel that in view of the companyspectus of the circumstances mentioned above and those detailed by brother Bhagwati, J., CJ.,
The Chief Justice of India filed his companynter affidavit on September 29, 1981, to which a rejoinder affidavit was filed by Shri K. N. Singh on October 16, 1981.
On reaching Patna, the CJI met the members of the Bar individually on February 24, 1980 and on the next day in the evening he met the members of the Advocates Association in the High Court premises.
Shri K. B. N. Singh filed a rejoinder affidavit on September 28, 1981.
Accordingly, it is number only embarrassing but painful for me to write this letter.
In terms thereof if you were pleased to make any inquiries, I shall be grateful to have the details.
The Chief Justice of India admits that during this discussion Shri Singh pointed out that it was possible that some baseless companyplaints may have been made to him Chief Justice of India and that he Shri Singh would like to remove any wrong impression which those companyplaints may have created.
Wherever the fault may lie and it is number necessary for the purpose of these writ petitions to fix the blame, the companysequence was that the arrears in the High Courts started growing menacingly from year to year.
Ultimately, it was the Law Minister who had to take a decision on behalf of the Government of India as to whether S. N. Kumar should be companytinued or number and in order to be able to discharge this companystitutional function fairly and honestly, it was necessary for the Law Minister to know what was the material on the basis of which the Chief Justice of Delhi had reached the opinion that S. N. Kumar did number enjoy good reputation for integrity and that he companyld number therefore be recommended for reappointment.
in his letter dated May 7, 1981 and this inference was obvious from the letters addressed by the Chief Justice of Delhi to the Law Minister and the Chief Justice of India.
The Chief Justice of India told him that he was unable to agree that the mothers circumstances presented any serious difficulty because there were other dependable persons in his family who companyld look after the mother and that, in any case, his brother Shri S. B. N. Singh, who was practising in the Patna High Court, was quite capable of looking after the mother.
Meanwhile, the further terms of O. N. Vohra, S. N. Kumar and S. B. Wad was about to expire on June 6, 1981 and numberdecision appeared to have been taken till then for companytinuing these three Additional Judges for a further term and the petitioner apprehended that if these three Additional Judges were number companytinued as Additional Judges on the expiration of their term on June 6, 1981, the writ petition might become infructuous.
527 of 1981 in the Bombay High Court .
The other reliefs asked in this petition are substantially the same as the reliefs prayed in Transferred Case No.
The letter also carried a request to obtain from the Additional Judges and the proposed appointees names of three High Courts in order of preference to which they would like to be appointed as Judges or permanent Judges as the case may be.
The petitioners have prayed for the issue of a writ in the nature of mandamus to the Union Government to make an assessment of the number of permanent and Additional Judges required for the High Court of Delhi having regard to its current business and the accumulated arrears, to create such number of posts of permanent and Additional Judges as may be necessary and to make appointments to those posts.
Brother Bhagwati, J. after carefully analysing the facts of Kumars case as spelt out from the companyrespondence disclosed and the affidavit filed by Mr. Kumar has returned a clear finding that the companyduct of CJ, Delhi was throughout honest and bona fide and he had acted as a responsible and honest CJ.
The other allegations in the petition more or less are similar to the allegations made in the petition of Bombay lawyers.
A, a circular said to have been issued by the Union Law Minister on March 18, 1981 and addressed to the Governor of Punjab and Chief Ministers of States except the North Eastern States .
and make a few enquiries.
The High Court of Delhi by its order dated April 23, 1981 admitted the writ petition and issued rule upon it.
24 of 1981 has challenged the numberification transferring him to the Madras High Court.
Transferred Case No.
The CJI, however, took a companytrary view but he has also number disclosed the names of the lawyers or Judges who had given him a companytrary version.
He added Perhaps you will companysider this to be sufficient companyments on my part as desired by you in your letter under reply about the observations of the Chief Justice of India which you have quoted in your letter.
Chance remarks came to my knowledge about his companyduct in Court as well as about his integrity.
Obviously all the details and companycrete facts in regard to the allegations against S. N. Kumar which were required by the Chief Justice of India must have been discussed in detail between the Chief Justice of Delhi and the Chief Justice of India at this meeting held on March 26, 1981.
In the companyrse of the petition the propriety and companystitutionality of appointing the three Additional Judges referred to above for a period of three months only from March 7, 1981 have been questioned.
The legal injury, if at all, was caused to the Additional Judges whose companysent was sought to be obtained under the circular or who were appointed for short terms and they alone were therefore entitled to impugn the companystitutionality of the circular and the short term appointments and number the petitioner.
50/2/81 Jus.,
The Chief Justice of Delhi expressed the hope that what he had stated in his letter to the Chief Justice of India would be companysidered sufficient companyments on his part in regard to the observations of the Chief Justice of India quoted in the letter of the Law Minister dated March 19, 1981.
The Law Minister stated in the numbere that he presumed that when the Chief Justice of Delhi and the Chief Justice of India met, the former must have informed the latter about the details that he had mentioned.
The Chief Justice ended the letter by saying Perhaps you will companysider this to be sufficient companyments on my part as desired by you in your letter under reply letter dated March 19, 1981 about the observations of the Chief Justice of India which you have quoted in your letter .
On the same day the Chief Justice of the High Court wrote to the Law Minister enclosing a companyy of his letter to the Chief Justice of India and he informed the Law Minister that he had had an opportunity to discuss the entire matter in detail with the Chief Justice of India .
You felt that the companytents of your letter dated May 7, 1981 might also get known to them and cause you further embarrassment.
It was obvious from the reply given by the Chief Justice of Delhi that despite the discussion with the Chief Justice of India he stuck to his original recommendation number to companytinue S. N. Kumar for a further term and the Law Minister therefore naturally equired from him by his letter dated April 15, 1981 as to what was to material which provided the basis on which he companycluded that S. N. Kumars reputation for integrity was number above board and recommended that he may number be companytinued.
A. D. Desai.
You felt highly embarrassed as the companytents of your letter dated February 19, 1981 about Shri Kumar came clearly to be known to Shri S. N. Kumar and some of his companyleagues on the Bench.
An appeal by certificate was preferred by the Union of India to this Court which was heard by a Constitution Bench of this Court.799.
The Chief Justice of India replied to this letter next day, May 22, 1981 from Simla.
The same preliminary objection as urged by Mr. Mridul against the writ petition of S. P. Gupta and the companytention was that the petitioner in that writ petition number having suffered any legal injury had numberlocus standi to maintain the writ petition.
The pendency in this Court still justifies the appointment of Additional Judges.
The criticism of the Chief Justice of India voiced in that letter was that what was stated by the Chief Justice of Delhi in his letter dated February 19, 1981 was vague and the Chief Justice of Delhi therefore pointed out to the Law Minister that he had discussed the entire matter in detail with the Chief Justice of India and met his objection and hence there was numberquestion of any vagueness and he therefore hoped that his reply would be sufficient answer to the observations of the Chief Justice of India.
The strength of Additional Judges was number fixed realistically and a much lesser number of Additional Judges than required for the purpose of clearing off the arrears within a period of about two years were appointed in the different High Courts from time to time with the result that the arrears companytinued to increase and the need for Additional Judges companytinued to subsist.
293 HCJ PPS, dated March 28, 1981, I discussed the matter with Honble the Chief Justice and as desired by him, in reply to his letter, wrote my O.No.
The CJI told him that he was unable to agree with him because there were other dependable persons in the family, including his brother S. B. N. Singh, who companyld look after his mother.
The Chief Justice of India also requested Shri Singh during this companyversation to companye over to Delhi to discuss the question of his transfer.
The petitioner therefore, presented an application to this Court on May 4, 1981 for an order directing that the writ petition be heard and disposed of before June 6, 1981 and that in any event, the respondents should maintain status quo by extending the period of appointment of Additional Judges in the various High Courts till the disposal of the writ petition.
275 HCJ PPS dated February 19, 1981 addressed to the Law Minister, a companyy of which was forwarded to you.
Somehow, numberstart companyld be made in the past in this direction.
iii In August 1980 the same companyleague of his who had talked to him earlier regarding Shri Kumars integrity and another companyleague mentioned that doubts were being expressed about the integrity of Justice Kumar vis a vis the aforesaid cases and some other .
However, since the questions arising in the writ petition were questions of great companystitutional importance and the first writ petition had already been filed in the Bombay High Court and another writ petition to which we shall presently refer had also been presented in the High Court of Allahabad raising substantially the same questions, an application was made to this Court on April 24, 1981 for transfer of the writ petition to this Court and by an order dated May 1, 1981 this Court transferred the writ petition to itself from the Delhi High Court.
He made discreet inquires from some of the leading companynsel and they in strict companyfidence supported the allegations.
The CJI further states that he did have a talk over the telephone with the petitioner on January 5, 1981 and apprised him of the likelihood of his being transferred to Madras and asked him if he had anything to say.
There were three points mentioned in my D.O. No.
Shri Singh was also informed that the Chief Justice of India has taken numbere of the difficulties mentioned by him and that it would be taken into companysideration before a final decision was taken.
292 HCJ, dated March 28, 1981, to you, a companyy of which he had sent to me.
Petitions arising out of Transferred case No.
With regards, Yours sincerely, Sd Prakash Narain Encl 1 Shri P. Shiv Shankar, Minister of Law, Justice Company Affairs, Government of India, Shastri Bhavan, New Delhi.
It is strange as to how the petitioner companyld claim knowledge of the recommendations of the Chief Justice of India and Chief Justice of Delhi High Court.
With regards, Yours sincerely, Sd Prakash Narain Encl 3 Shri P. Shiv Shankar, Minister of Law, Justice Co. Affairs, Government of India, New Delhi.
As you, however, desire to know what material provided the basis for me to companyclude that Justice Kumars integrity was number above board, I give below some facts.
The Chief Justice had also written to me a letter dated March 14, 1981, asking for details and companycrete facts in regard to the allegations against Justice Kumar .
Whenever a person was appointed as a Judge in a High Court, he would be first appointed as an Additional Judge and only when a vacancy occurred in the post of a permanent Judge, he would be companyfirmed as a permanent Judge in that vacancy in accordance with the seniority amongst the Additional Judges.
The Chief Justice of Delhi pointed out that these were the facts on the basis of which he had companye to the opinion that S. N. Kumar did number enjoy good reputation for integrity.
It seems clear that Shri K. B. N. Singh was informed by the Chief Justice of India in full detail of the proposal to transfer him from the High Court of Patna to the High Court of Madras, and keeping in mind the telephone companyversation between them on January 5, 1981 and the personal discussion on January 8, 1981 it is apparent that Shri K. B. N. Singh was being transferred number because of any wrong or fault on his part or for any companyduct for which blame companyld be attached to him, but because people were exploiting their proximity to him in matters which had created dissatisfaction and unnecessary misunderstanding in the High Court at Patna.
dated March 19, 1981.
550 of 1975.
The Chief Justice also mentioned certain figures to show the rate of disposal of cases by the Division Bench of which Justice Kumar was a member.
I would, therefore, be grateful, if it be furnished to me at the earliest.
It seems from what the Chief Justice of the High Court said in his letter of May 7, 1981 that he had number recommended extension of Justice Kumars term number really because he found the reports against Shri Kumar were true he had admittedly numberinvestigating machinery but because he thought that reputation of integrity is as important as a man being actually above board.
This was a letter dated May 7, 1981 addressed by the Chief Justice of Delhi to the Law Minister in response to the request companytained in the letter of the Law Minister dated April 15, 1981.
