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 thatch in regard to the allegations against S.N. Kumar with the Chief Justice of India.
This petition has been filed by Bipudaman Prasad Sinha praying for a writ of the quo warranto against Justice K.B.N. Singh, Chief Justice, Patna High Court for 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.
The furore on the Circular seems to have infiltrated into the Bombay Bar Association which also held several meetings and similar resolutions were passed.
6 of 1981.
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.
The petitioners also prayed for an ad interim injunction pending hearing of the petition.
The petitioners, Advocates practising in the High Court of Bombay, filed a Writ Petition No.
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 3 4 81.
In order to establish their case, learned Counsel appearing for Shri V.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 in so far as the case of Shri S.N. Kumar was companycerned.
Miss Thomas, however, pressed the petition only on one ground, viz.,
Another petition was filed by Mr. Rajappa, Advocate in the Madras High Court being writ petition No.
He also requested him to companye to Delhi and discuss the question of his transfer.
The petitioner therefore, presented an application to this Court on 4th May 1981, for an order directing that the writ petition be heard and disposed of before 6th June, 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.
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.
The companysultation referred to by the CJI is obviously to the telephonic talk on 5 1 81 and the personal meeting between them on the evening of 8 1 1981.
In this petition Union of India represented by the Secretary, Ministry of Law, Justice and Company Affairs was impleaded as the sole respondent.
The same preliminary objection was 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.
If the proposal of the Chief Justice of India was implemented, a fairly junior Judge would become Chief Justice over his seniors, a thing which would be seriously resented as the imposition would be utterly unjustified, destroying ruthlessly the natural expectations of Judges who had accepted High Court judgeship between 1969 and 1973.
The third writ petition is that filed by J.L. Kalra and others in the High Court of Delhi.
House that even my predecessor Shri Shanti Bhushanji seems to be of the view that a Chief Justice should be from out side because of the various factOrs.
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 the arrears are mounting.
The petitioners impleaded the Law Minister as respondent No.
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.
A similar resolution appears to be adopted by the Bombay Bar Association at its Extraordinary General Meeting held on Apr. 7, 1981.
The average rate of disposals per Judge per year fixed at one of the Chief Justice 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.
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.
50/2/81 Jus.,
50/2/81 Jus May 21, 1981 My in his letter dated 19th February, 1981 the Chief Justice of the Delhi High Court companyy enclosed had recommended that Justice Kumar may number be given any extension.
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.
The strength of additional Judges was number fixed realistically and a much lesser number of additional Judges than required far 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 in crease and the need for additional Judges companytinued to subsist.
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.
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 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, The CJI further states that the petitioner had hinted that if his transfer was insisted upon he would prefer to resign.
The letter refers to the meeting of Mar., 26, 1961 between the Chief Justice of India and the Chief Justice of the Delhi High Court.
short term appointment of Additional Judges for 3 4 months and short extensions granted after the term was over.
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.
Your letter regarding Shri O. N. Vohra dated 22nd May, 1981 has since been received by us.
Shri K.B.N. Singh informed the Chief Justice of India on the telephone that his mother was bedridden and he was number in a position to go with his mother to Madras.
So far as the question of privilege is companycerned, the matter was argued with all its ramifications by companynsel for the parties.
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 6th June, 1981, but since the Court was closing for the summer vacation from 9th May, 1981, it was number possible to fix the hearing of the writ petition until the reopening of the companyrt after the summer vacation.
An advocate, Shri A. Rajappa, practising in the High Court of Madras, filed Transferred Case No.
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 from the Order passed by Brother Bhagwati J. and other Brother Judges directing disclosure of the companytents of the documents, I am clearly of the opinion, after inspecting the documents and companysidering the pros and companys, various shades and aspects of the matter with all its ramifications that it is number in public interest to disclose the companytents of the documents and I accordingly uphold the plea of privilege taken by the Union of India.
CMJC 2224/1981 in the Patna High Court against the Union of India, the Chief Justice of India, Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court and the Registrar, Patna High Court.
50/2/81 Jus.,
6 of 1981 was filed in the High Court of Madras by Shri P. Subramaniam, praying for the same reliefs as Shri Rajappa in Transferred Case No.
1408 of 1979 filed by Jain Sudh Vanaspati Ltd., and Jain Export Pvt.
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.
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.
With regard to the companyplaints about Justice Kumars integrity and general companyduct, the matter has already been discussed between us.
The entire object and purpose of the introduction of Clause 1 of Article 224 was perverted and additional Judges were appointed under this Article number as temporary Judges for a short period who would go back on the expiration of their term as soon as the arrears are cleared off, but as Judges whose tenure, though limited to a period number exceeding two years at the time of each appointment as an additional Judge, would be renewed from time to time until a berth was found for them in the cadre of permanent Judges.
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 Govt.
The Law Minister placed this companyversation on record in a numbere made by him on 19th May, 1981 as also in a letter dated 29th May, 1981 addressed by him to the Chief Justice of Delhi.
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 218 to maintain half the strength of the Delhi High Court as additional judges, This petition under an order made by this Court stood transferred to this Court under Article 139A and is registered as Transferred Case No.
I have already said that this is a view which will undermine the independence of the judiciary.
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 C. J. I. 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.
to June 5, 1981, were impleaded as respondents 4 and 5.
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.
In para.
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.
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.N. Singh was appointed as Judge of that High Court on Sep. 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, 1974 and he assumed charge of that office on July 19, 1976.
There is some divergence on the question as to the duration of time for which Shri Singh was with the Chief Justice of India.
Shri Vohra is senior to Shri S.N. Kumar and Shri S.B. Wad.
293 HCJ PPS, dated 28th March, 1981.
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.,
The fourth writ petition is that filed by S.P. Gupta in the High Court of Allahabad.
274 of 1981.
22 of 1981.
1, the Union of India as respondent No.
The Chief Justice had also written to me a letter dated 14th March, 1981 asking for details and companycrete facts in regard to the allegations against Justice Kumar.
2 of 1981 and in Transferred Case No.
50/2/81 Jus 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.
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 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.
19 of 1981 was filed under Article 226 of the Constitution before the High Court of Allahabad by Shri S.P. Gupta.
6 of 1981 was originally filed under Article 226 of the Constitution before the High Court of Madras by Shri P. Subramanian.
But, obviously, the Law Minister wanted to satisfy himself that them was material on the basis of which it companyld be said that the integrity of S.N. Kumar was doubtful, and that is why ha did number regard it as sufficient that tha Chief Justice of Delhi had discussed tha 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.
A Bench of the Madhya Pradesh High Court dismissed this writ petition.
These suits were Suit No.
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.
61/80 with C. Ms. Practically every week once from Jan., 81 till the end of May, 81, I was sitting in the Division Bench with Chawla, J. to finish part heard matters.
l in the original writ petition had issued a Circular Letter dated 18 3 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.
Transferred Case No.
1 and 2 being aggrieved by the order made by the Division Bench dismissing their appeal made an application to this Court on 8th May 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, Respondents Nos.
3 to Madras.
An appeal by certificate was preferred by the Union of India to this Court which was heard by a Constitution Bench of this Court.
With regards, Yours sincerely, Sd PRAKASH NARAIN Shri P. Shiv Shanker, Minister of Law, Justice And Company Affairs, Government of India, Shastri Bhavan, New Delhi.
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 a total number of additional Judges in the Country, quite a few additional Judges gave their companysent to be appointed outside their High Court.
Respondents Nos.
I have examined these companyplaints and find that some of the companyplaints are number without basis.
20 of 1981.
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.
527/81 before the Bombay High Court challenging the companystitutionality of Exhibit 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 .
This was a companyrect and proper approach to be adopted by a careful and responsible Chief Justice who had heard companyplaints against his companyleague some of which appeared to him number without basis but in respect of which he was number in a position to state definitely whether they were true or number.
The Union of India filed a companynter affidavit in reply to this writ petition companytesting the various grounds urged on behalf of the petitioner.
2 of 1981.
19 3 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 Chief Justice did number mention anything adverse in regard to Justice Kumars political leanings or affiliations By my request the Chief Justice promised to send a statement showing the disposals of Justice Kumar.
Initially by a Writ Petition No.
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, This petition stood transferred to this Court by the order dated May 1, 1981, and it, was registered as Transferred Case No.
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.
A petition exactly similar to the one filed by Mr. S.P. Gupta was also filed by Mr. J.L. Kalra, Advocate and others in the Delhi High Court which was also transferred to this Court by an order dated 1 5 1981 along with the case of Mr. S.P. Gupta.
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.
1509 of 1981.
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 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.
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 7 5 81 secret and number to place the same before the CJI.
Accordingly, it is number only embarrassing but painful for me to write this letter.
Then the Chief Justice of Delhi proceeded to state that there were threat points mentioned in his letter dated 19th Feb., 1981 and obviously there was numberreason for him to refer to these three points in his letter dated 28th March, 1981 unless he had discussed these three points with the Chief Justice of India.
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 Feb., 1980 there was numberproposal to transfer him anywhere.
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, 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.
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.
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.
24 of 1981 at his request by this Courts order dated Sep. 15, 1981 Shri K.B.N. Singh was transposed as companypetitioner and he has filed a self contained companyprehensive affidavit dated Sep. 16, 1981 making all the necessary averments and submissions in support of the challenge.
There were three points mentioned in my D. O. No.
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 Nos.
It appears that the first salvo was fired by Shri S.P. Gupta, Advocate practising in the Allahabad High Court who filed a writ petition in the Allahabad.
5 1 1981.
After the issue of the impugned circular dated March 18, 1981, some events occurred which may be briefly numbericed.
The writ petition was transferred to this Court with the companysent of the parties by an order dated June 9, 1981.
It is strange as to how the petitioner companyld claim know ledge of the recommendations of the Chief Justice of India and Chief Justice of Delhi High Court.
20 of 1981.
The rest of the companytents are self explanatory.
It appears that a companyy of the Circular letter was sent by 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.
24 of 1981 was originally filed in the High Court of Patna under Article 226 of the Constitution by two advocates Shri D.N. Pandey and Shri Thakur Ramapati Sinha questioning the validity of the order of transfer of Mr. Justice M.M. Ismail.
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.
I have since had an opportunity to discuss the entire matter in detail with the Chief Justice of India.
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.
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.
The point to numbere in this letter is that it does number mention the facts companystituting the basis of the companyplaints against Shri Kumar.
Transferred Case No.
Normally extension of the tenure of an Additional Judge is recommended keeping in view the pendency in Court.
1 that serious companyplaints were received against Justice S.N. Kumar orally as well as in writing 2 that Justice Kumar was hot very helpful in disposing of cases 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 Delhi also addressed a letter dated 28th March, 1981 to the Law Minister pointing out that since receipt of the letter of the Chief Justice of India, he had an opportunity to discuss the entire matter in detail with the Chief Justice of India and that after this discussion he had addressed a letter dated 28th March, 1981 to the Chief Justice of India, a companyy of which was being enclosed by him.
The Law Minister if ha 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 tha Chief Justice of Delhi and after formally inviting the opinion of the Chief Justice of India, decided to discontinue S.N. Kumar.
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.
Denying the averment of Shri K.B. N. 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.
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.
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.
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.
After a telephone talk with the Law Minister, the Chief Justice of India wrote on December 20, 1980 proposing the transfer of Shri M.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.
Political links have also been mentioned in certain cases and various state authorities have expressed their reservations about companytinuance of some additional judges.
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 S.N. Kumar were impleaded as respondent Nos.
1 and 2 in the meanwhile filed Transfer Petition 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 Chief Justice of Delhi by his letter supplied to the Law Minister the material on which his opinion against the companytinuance of 8.
The Bombay Bar Association also passed similar resolutions at its Extraordinary General Meeting on April 7, 1981.
The other allegations in the petition more or less are similar to the allegations made in the petition of Bombay lawyers.
It is denied that there was any attempt to interfere with the independence of the judiciary.
I desired the details companysciously as 1 did so with the Chief Justice of Delhi High Court since, the C J. I. termed the letter of C. J. Delhi dated 19 2 81, addressed to me as too vague to accept that Shri Kumar lacks integrity.
In September 1963 a Study Team was appointed by the Administrative Reforms Commission hereinafter referred to as ARC Study Team to give its report on center State relations.
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.
293 HCJ PPS March 28, 1981 My dear Shiv Shankerji, I am in receipt of your D. O. No, 50/2/ 81 Jus, dated 19th March 1981.
For about 9 months, i.e. from January to Sep. 21, 1979 he functioned as an Acting Governor of State of Bihar whereafter he resumed work as the Chief Justice.
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.
He has impleaded Shri K.B. N. Singh, Union of India and the Chief Justice of India as respondents.
Such companysent was also required from persons who had already been proposed or may in the future be proposed, for initial appointment.
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.
She challenges the transfer of Shri M.M. Ismail, Chief Justice of the Kerala High Court, 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.
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.
6 of 1981.
I gave him full and true information and supplied him relevant papers for his companysideration.
The effect of granting the interim relief was that respondents Nos.
293 HCJ PPS, dated 28th March, 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.
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.
292 HCJ PPS dated March 28, 1981, a companyy of which was forwarded to you.
You had made a similar request about letter dated 7th May, 1981 regarding Justice S.N. Kumar.
The laid study Team in its Report at p. 190 paras 13 20 suggested that so far as practicable one third of the number of Judges of the High Court should be from outside.
The Bench was inclined to throughout the petition summarily on the ground that it did number sic 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 124A or by way of an appeal under Article 136.
These companyplaints have been received by me direct as well as through 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 term of office of Shri Kumar was to expire on March 7, 1981.
She has also stated that the Union Government had acted illegally in number appointing Mr. Justice Subramanian Poti, the senior most 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.
It is true that Shri K. B. N. Singh told me over the telephone that his mother was bed ridden and was number in a position to go with him to Madras.
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.
Respondents Nos.
What was discussed between the two would appear very clearly from the letter addressed by the Chief Justice of India to the Law Minister on May 22, 1981.
2 of 1981.
296 HCJ PPS dated May 7, 1981, bearing the caption SECRET For Personal Attention Only and reading as follow Dear Mr. Minister, I am in receipt of your D.O. No.
The Government of India had to take a decision as per the interim order of this Court on or before May 27, 1981.
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 the petitioner No.
Ultimately Shri Iqbal M. Chagla and three other advocates filed a Writ Petition No.
The petitioners prayed for several reliefs to which we shall refer hereafter.
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 3 Judges for a further period of 2 years is untrue and incorrect.
If 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.
Three statements are enclosed to this letter showing the number of cases disposed of by Shri S.B. Wad, Shri O.N. Vohra and Shri S.N. Kumar.
The allegations made by Shri S.N. Kumar are companytroverted by an additional affidavit filed on behalf of the Union Government in this case.
The petitioner thereupon preferred another application to this Court on 4th June, 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.N. Kumar shall companytinue to function as Judges of the Delhi High Court.
327/1979, Ex.
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.
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.
The allegations and prayers made in this petition and the companynter affidavit filed by the Union of India are substantially the same as those in Transferred Case No.
Finally, it was said, some responsible members of the Bar as well as some companyleagues expressed some doubts in regard to Shri S.N. Kumars integrity.
By reason of the expectation raised in his mind through a practice followed for almost over a quarter of a century, an additional Judge is entitled to be companysidered for appointment as an additional Judge for a further term on the expiration of his original term and if in the meanwhile, a vacancy in the post of a permanent Judge becomes available to him on the basis of seniority amongst additional Judges, he has a right to be companysidered for appointment as a permanent Judge in his high Court.
You felt that the companytents of your letter dated 7th May, 1981 might also get known to them and cause you further embarrassment.
the petitioners alleged that the Union Law Minister who was respondent No.
24 of 1981.
The Division Bench fixed the hearing of the writ petition before the learned single Judge hearing writ petitions on 25th June 1981 and also gave directions for tiling of affidavits by the parties.
A companyy of this letter was sent to Chief Justice of India.
The said companymittee companylected Rs.
The second writ petition is that filed by V.M. Tarkunde in the High Court of Delhi.
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.
After the petitioner was transferred to this Court, shri K. B.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 No.
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.
Hence he filed Special Leave petition Civil No.
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.
Shri Hari Nath Mishra Congress was of the following view Shri Hari Nath Mishra Congresa mentioned that it had been agreed at earlier meetings that one third of the judges and the Chief Justice should be from outside the State.
This case, therefore, raises substantially the same questions as are involved in Writ petition No.
When a question was put by the Court as to who gave the particulars of the cases referred to above the learned Counsel mentioned that they were given by the Chief Justice of India.
312/81 filed by Shri Ripudaman Prasad Singh has become infructuous and would stand disposed of accordingly with numberorder as to companyts throughout.
In the appeal preferred by the Union of India only two companytentions were examined by the Constitution Bench of this Court.
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.
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.
21 of 1981 Shri Kalras Writ Petn.
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, 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 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 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.
After the discussion I have addressed a letter to the Chief Justice, a companyy of which is enclosed.
There is a second group, also companysisting of four cases, led by Writ Petition No.
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.
3 to 12 are the additional Judges of the High Court of Bombay appointed under Article 224 1 of the Constitution.
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.
The averments made by Chief Justice K.B.N. Singh in his 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.
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.
50/2/81 Jus.,
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.
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 7th May, 1981.
The letters of the Delhi Chief Justice dated February 19, 1981 seem to be too vague to accept that Shri Kumar lacks integrity.
Transferred Case No.
Shortly before the expiry of that period, the Chief Justice of the High Court of Delhi addressed a letter dated February 19, 1981 to the Minister of Law, Justice and Company Affairs stating that while the pendency of cases in the High Court justified the appointment of additional Judges and numbermally the extension of the tenure of an additional Judge was recommended in the circumstances, he did number recommend the extension of Shri S.N. Kumar because, he said, serious companyplaints had been received, both oral and in writing, against him directly by the Minister as well as himself, that he had examined those companyplaints and found that some of them were number without basis, that responsible members of the Bar and some other companyleagues had also companyplained about Shri S.N. Kumar and that although he had numberinvestigating agency to enquire companyclusively into the genuineness of the companyplaints, the companyplaints had been persistent.
This petition has been filed by Mr. S.P. Gupta against the President, Union of India, Chief Justice of the Allahabad Court and the Governor of U.P. In view of similar petitions having been transferred to this Court, this petition was also transferred to this Court from the Allahabad High Court by an order dated 1 5 1981.
Shri K.B.N. Singh also observed that if his transfer was insisted on he would prefer to resign.
who have elaborately dealt with these points.
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.
Chance remarks came to my knowledge about his companyduct in Court as well as about his 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.
Shri Singh filed reply to the companynter affidavit on Oct., 16 1981.
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 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 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.
By an order made by this Court on May 1, 1981.
You will numberice that the Division Bench of which Justice Wad was a member heard and disposed of 11 Writ Petitions.
N. Kumar was based.
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.
The letter dated 7th May, 1981 addressed by the Chief Justice of Delhi to the Law Minister carried at the top the remark, Secret for personal attention only .
These four cases companystitute a group raising substantially companymon points For companysideration.
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.
Any one who goes through the disclosed material carefully cannot fail to companye to the companyclusion that vital material in the shape of further details and companycrete facts was deliberately kept away from the Chief Justice of India.
By a companynter affidavit filed by Shri K.C. Kankan, Deputy Secretary, Department of Justice.
The facts of the case were these There was a long standing practice in Fleet Street for casual employees on national newspapers to receive their wages without deduction of tax and to supply fictitious names and addresses when drawing their pay in order to avoid tax Their true identities were known only to their unions which operated a closed shop and companytrolled all casual employment on the newspapers.
20/81 arising from the writ petition filed by Shri V.M. Tarkunde in the Delhi High Court are dismissed There will be numberorder as to companyts in all the matters.
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 felt that the Chief Justice of India had already started wrongfully denigrating him for his letter of February 81 as some of his friends companyvey ed to him the feelings of the CJI.
I have quoted above relevant extracts from this letter.
The High Court of Delhi by its order dated 23rd April, 1981, admitted the writ petition and issued rule upon it.
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.
19 of 1981.
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.,
11/1978, C. C. P. No.
The petitioner also filed CMP.
No other personal difficulty was disclosed.
Advocate, practising at Allahabad.
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.
Could there be any special reason for this?
4845/81 in the Allahabad High Court , Transferred Case No.
The other reliefs asked for in this writ petition are substantially the same as the reliefs prayed for in the writ petition filed by V.M. Tarkunde.
In fact, I recall that before issuance of the letter dated 7th May, 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.
With regards, Yours Sd Shiv Shanker Shri Y. V. Chandrachud, Chief Justice of India, Supreme Court, New Delhi.
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.
So far as the circular letter was companycerned, though numberprayer 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 respond 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.
The CJI however assured him that certain persons were exploiting their proximity to him which had created needless misunderstanding and dissatisfaction.
Shri Singh was proposed to be transferred first to Jodhpur and then he was shifted to Madras.
The applicant, a federation of self employed persons and small businessmen which claimed to represent a body of taxpayers, applied for judicial review under RSC Order 53 seeking i a declaration that the Revenue had acted unlawfully in making the arrangement and ii an order of mandamus directing the Revenue to assess and companylect tax on the newspaper employees as required by law.
These pertain to his companyduct with companynsel in Court.
The Chief Justice of India companyveyed to Shri K.B.N. Singh that his transfer was pro posed 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.
The request of Shri K.B. N. Singh for disclosure of documents bearing upon his transfer was resisted by Shri T. N. Chaturvedi Secretary Department of Justice.
Mr. K.C. Kankan filed his companynter affidavit in Transferred Case No.
As I wrote to you in my D.O. No.
As these petitions more or less involve companymon and overlapping points, we shall dispose them bf by one companymon judgment but deal with individual cases separately wherever necessary.
In this case, the following reliefs were sought a issue a writ of mandamus or any ether 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, 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 .
Both these applications came up for hearing before the learned Vacation Judge and by an order dated 6th June, 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.
On reaching patna, the CJI met the members of the Bar individually on 24 2 81 and on the next day in the evening he met the members of the Advocates Association in the High Court premises, He also admitted his visits to Nalanda and Rajgir.
One additional ground is that the impugned order of transfer is punitive in character.
The reasons as appearing from the Law Ministers letter are as follows 1.
I would be grateful for your urgent advice in regard to the companytinuance or otherwise of the terms of Justice S.N. Kumar There is numberreference here to the letter of May 7 from the Chief Justice of the High Court.
He asked him if he had anything to say in the matter.
Transferred Case No.
A similar Writ Petition 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.
4 and 5, to the writ petition.
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.
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.
275 HCJ PPS New Delhi, the 19th February, 1981 My dear Shiv Shankerji, Mr. Justice S.N. Kumar was appointed an Additional Judge of this Court for a period of two years , vide Notification No.
The Law Minister stated that since the term of S.N. Kumar as an Additional Judge was expiring on 6th June, 1981, he would be grateful if the Chief Justice of Delhi companyld send his companyments so as to reach him latest by 15th April, 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 15 4 81.
3 in the writ petition, applied for being transposed, as petitioner 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 Locus Standi When these writ petitions reached hearing before us, a preliminary objection was raised by Mr. Mridul, appearing on behalf of the Law Minister, challenging the locus standi of the petitioners in Iqbal Chaglas writ petition.
By the impugned Notification dated Jan. 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.
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 19 3 1981 about the observations of the Chief Justice of India which you have quoted in your 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 19 2 1981 addressed to the Law Minister repeating that he had numberinvestigating agency to companyclusively find out whether the companyplaints are genuine or number.
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 S.N. Kumar had already been discussed between them, Now, a stated in the letter of the Chief Justice of Delhi dated 19th February, 1981, companyplaints against the Integrity of S.N. Kumar were received by the Chief Justice of Delhi direct as also through the Law Minister and doubtgainst the integrity of S.N. Kumar had Men 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 facto must have been disclosed by the Chief Justice of Delhi to the Chief Justice of India.
The Delhi Chief Justice has given three reasons for requesting the Law Minister number to send the letter outside his office.
referred to above.
Reverting to the letter dated March 28, 1981.
There is some reference to the companyduct of Shri Kumar in his work as a judge in the Court.
As I wrote to you in my D. O. No.
An oral prayer for a certificate to appeal to the Supreme Court was also rejected.
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.
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.
Pursuant to this request made by the Chief Justice of Delhi, the Law Minister did number place the letter dated 7th May 1981 before the Chief Justice of India.
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 No.
You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of February 19, 1981, The letter of May 29 companycludes by saying that in view of the fact that the Chief Justice of the High Court was keen on keeping the letter companyfidential from the Chief Justice of India, the letter was number shown to him, 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.
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.
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.
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.
In terms thereof if you were pleased to make any inquiries, I shall be grateful to have the details.
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.
553/81 was filed by Mr. P. Subramanian before the Madras High Court praying that the order of the President transferring Justice Ismail from the Madras High Court to Kerala High Court be quashed.
79 Letters Patent Appeals, 11 Sales Tax References, 1 Civil Misc.
On March 28, 1981, the Chief Justice of Delhi High Court replied to the letter dated March 19, 1981, of the Law Minister.
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.
To dispose of the appears of cases as on 31 12 1980 they heed approximately four years since many of them are bound to be heavy Division Bench matters which companysume a lot of time of them it mer be numbered that 2,59,627 cases were mohan two years old as on 31 12 1980.
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.
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 had 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.
With regards, Yours sincerely.
He assumed the charge of his office in the afternoon of March 7, 1979.
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.
This petition was admitted and rule nisi was issued and ad interim in Junction was granted.
Chief Justice of the Madras High Court, as the Chief Justice of the Kerala High Court and the order of transfer of Mr. Justice K.B.N. Singh, Chief Justice of the Patna High Court as the Chief Justice of the Madras High Court.
Since then I have also had an opportunity to discuss this delicate matter with you.
This action on the part of the Law Minister clearly establishes his bona fides in the matter of discontinuance of S.N. Kumar.
On April 14.
Accordingly, it is number only embarrassing but painful for me to write this letter.
The petitioners in this case are Shriyuts Iqbal M. Chagla, C.R. Dalvi, M.A. Rane and Sorab K.J. Mody.
In the companynter affidavit filed by shri K.C. Kankan, Deputy Secretary to the Government of India, the petition is opposed.
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.
It was further alleged that two more Additional Judges, viz.,
b in the alternative, issue a writ, direction or order in the nature of Mandamus directing the President to appoint Judges of the High Court according, to the submissions made in this petition c issue a writ, direction or order in the nature of Mandamus directing the President of India to appoint permanent judges of the High Court on the vacancies in the office of the permanent Judges, whenever such vacancies occur, in accordance with the companystitutional scheme and provisions, as submitted in this petition and found by this companyrt 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.
20 of 1981, 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.
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 7th May, 1981.
He proceeds to state that in January, 1981, he looked into the matter a little more deeply and made further inquiries and even though some lawyers were numbercommittal, others however asserted with some force that Shri Kumars reputation was number above beard.
1 and 2 in this case are the Union Law Minister and the Union of India.
That is to say, Shri O. N. Vohra, Shri S.N. Kumar and Shri S.B. Wad should all be extended by six months.
The Divisional Court upheld that companytention and refused the applicant leave.
This expectation which was generated in the minds of additional Judges by reason of the peculiar manner in which Clause 1 of Article 224 was operated, cannot number be ignored by the Government and the Government cannot be permitted to say that when the term of an additional Judge expires, the Government can drop him at its sweet will.
He was directed to file a detailed affidavit which was filed on 16 9 81 and he was transposed as petitioner No 3.
Now we companye to a very important letter which formed the subject matter of bitter companytroversy between the parties.
The objection was overruled by the Disciplinary Committee of the Bar Council of India and the appellant was found guilty of professional misconduct.
The sixth writ petition is that filed by A. Rajappa an advocate practising in the High Court of Madras.
268 HCJ PPS dated 12th November, 1980 on the companyplaints of Shri Sabir Hussain.
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.
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 presumption is raised on the basis of the letters from the Chief Justice, Delhi.
1408, 1409 and 1417/1979, Suit No.
4 to join as a petitioner in this petition.
This writ petition was also like the other writ petitions withdrawn and transferred to itself by this Court.
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 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 treaded by the first writ petition.
That may companye later on.
553 of 1981 in the Madras High Court challenging the companystitutional validity of Notification dated January 10, 1381, by which Shri M.M. Ismail, Chief Justice, Madras High Court Was transferred as Chief Justice.
87/1975, Suit Nos.
Shri Kumars tenure of office as an Additional Judge thus ended, In the aforesaid letter dated Feb. 19, 1961 written by the Chief Justice of the 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.
Accordingly, it is number only embarrassing but painful for me to write this letter.
50/2/81 Jus.,
With regards, Yours sincerely, Sd Shiv Shanker Shri Justice Prakash Narain, Chief Justice, Delhi High Court, New Delhi.
Suraj Bhan, J, rejected his application upholding the order of allocation of the petition to him.
Nevertheless, you must have had some material which provided the basis on which you companycluded that Justice Kumars reputation for integrity was number above boardIn 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.
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.
The matter was beard by a Full Bench of Gujarat High Court which unanimously rejected the petitioners plea of promissory estoppel.
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.
3 and since the original petitioners had numberobjection to Chief Justice K.B.N. Singh joining them as companypetitioner, this Court made an Order on 17th Sept., 1981 transposing Chief Justice K.B.N. Singh as petitioner No.
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.
in appointing additional Judges in various High Courts.
In the body of the petition it was averred that the President of India in exercise of the power companyferred by Article 222 1 of the Constitution has made an order transferring Mr. Justice M.M. Ismail, the then Chief Justice of the Madras High Court as Chief Justice, Kerala High Court.
The seventh writ petition is that filed by P. Subramanian, an advocate practising in the Madras 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.
This is for favour of your information.
Of twenty advocates of the High Court whom he met, there were fifteen senior advocates suggested by Shri K.B.N. Singh.
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.
As a sequel to the issuance of the impugned circular dated Mar, 18, 1981 a special general meeting of the Advocates Association of Western India was held at Bombay on Apr. 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 Chief Justice of Bombay High Court in any event addressed such a companymunication to each of the additional Judges in his 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, Of the three additional Judges specifically named, Shri S.N. Kumar has entered appearance and has supported the case pleaded by the petitioner.
Suit No.
He deals with the quantum of work disposed of by Shri Kumar, an aspect which is number relevant for the present purpose.
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 case and make a few enquiries.
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.
2224/81 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.
Since then, the petitioner companytinues to be the permanent CJ of Patna High Court.
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.
The petitioner was appointed acting Governor of Bihar from 31st January, 1979 to 31st September, 1979, The CJI, who is respondent No.
292 HCJ PPS March 28, 1981 My dear Chief Justice, I am in receipt of your letter dated 14th March, 1981 with regard to Mr. Justice S.N. Kumar.
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 26th March, 1981, There is numberreason to believe 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 him with the Chief Justice of India.
The averments and prayers made in the writ petition are substantially the same as those made in the fifth, sixth and seventh writ petitions filed respectively by Miss Lily Thomas, A. Rajappa and P. Subramanian and it is therefore number necessary to repeat them.
The issues arising out of this petition are the same as those arising in Transferred Case No.
Immediately following the ARC Study Team Report, a meeting of the Committee of Zonal Council for National Integration was held on 31st August 1964 and in its Report on item 1 viii b the said Committee made the following recommendations.
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 deed 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.
A rejoinder affidavit was also filed by Thakur Rampati Sinha on behalf of petitioners 1 and 2 on October 16.
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 from the circular letter, it should be held to be null and void.
This may be due to the existence of vacancies in the permanent strength when they were appointed as Judges.
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 practicing law in the High Court, and other dependable persons in the family at Patna companyld be relied on to look after the mother.
You felt highly embarrassed as the companytents of your letter dated 19th February, 1981 about Shri Kumar came clearly to be known to Shri S.N. Kumar and some of his companyleagues on the Bench.
Hence on March 18.
Shri K.B. N. Singh filed a rejoinder affidavit on September 28, 1981.
He felt highly embarrassed and perplexed after he addressed the original letter dated 19 2 1081 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.
No 13425/81 requesting this Court to direct that Mr. Justice O.N. Vohra and Mr. Justice S.N. Kumar be impleaded as respondents.
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 Oct., 1981.
Even if subsequently gathered facts were companymunicated to the President, one companyld have overlooked this apparent defect but the written record does number bear out that the President was informed of all the relevant facts.
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.
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.
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.
274 of 1981.
The letter dated May 7, 1981, is a long epistle.
2 of 1981 filed by Shri A. Rajappa.
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.
The Chief justice of India filed his companynter affidavit on September 29, 1981, to which a reminder affidavit was filed by Shri K.B. N. Singh on October 16, 1981.
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.
1981 in alt there were 320 Judges perrnanent and additional in all the High Courts.
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.
You felt that the Chief Justice of India had already started wrongfully denigrating you for your letter of Feb, 19, 1981.
2/81 arising from a writ petition filed by Shri A. Rajappa in the Madras High Court and they accordingly stand disposed of There would be numberorder as to companyts.
It was said that the suggestion was made to further national integration and to companybat narrow parochial tendencies bred by caste, kinship and other local links and affiliations.
50/2/ 81 Jus.,
11 and 12 answered thus Question Answer 11.
dated 19th March, 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.
That this presumption is wrong would appear from the following facts.
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.
Since the various writ petitions and intervener 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 relinked.
On Feb. 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 an extension for Justice Kumar as he had been receiving persistent and serious companyplaints against Shri Kumar.
1 and 2.
I had number paid much attention to the earlier reports but when this was brought to my numberice, and I was at that time number the Chief Justice.
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.
The Chief Justice of India did number recommend the transfer of Chief Justice K.B.N. Singh pursuant to the Government policy because he was firmly opposed to that policy, but he recommended the transfer because he thought that for strictly objective reasons, it was necessary to transfer Chief Justice K.B.N. Singh.
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 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.
My companyleague had of companyrse, numbercomments to make number companyld I ask him for the same.
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.
Various companytentions have been raised in this petition and they will be dealt with at the sic place.
2 and ten additional Judges of the Bombay High Court as respondents Nos.
Bhagwati, J. upheld both the companytentions of the original petitioner, namely that as 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.
He was administered the oath of office on July 19, 1976.
The reliefs prayed for by the petitioner more or less are identical with the reliefs in Transferred Case No.
292 HCJ dated 28th March, 1981, to you, a companyy of which he had sent to me.
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.
Petitions.
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 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.
The particulars of the suits and the names of the parties were mentioned in the letter.
In the interests of propriety, the term of these two Judges should also be extended by six months.
The numbere of the Law Minister D 19 5 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.
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 No.
dated 19th March, 1981.
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.
With regards, Yours sincerely, Sd V. Chandrachud Shri P. Shiv Shanker, Minister for Law, Justice and Company Affairs, New Delhi.
The Chief Justice of India wrote to the Law Minister on December 20, 1980, that is, two days after the letter to the Prime Minister that having given the matter his most anxious companysideration, he proposed, in supersession of the previous proposals made by him, that Shri M.M. Ismail, Chief Justice of Madras High Court should be appointed as the Chief Justice of the Kerala High Court and in the companysequential vacancy caused in the office of Chief Justice of Madras High Court Shri K.B.N. Singh, Chief Justice of Patna be transferred as Chief Justice of Madras.
The Chief Justice of Delhi stated at the companymencement of this letter that he had an opportunity to discuss this delicate matter with the Chief Justice of India.
Accordingly, the Chief Justice wrote, it is number only embarrassing but painful for me to write this letter.
In that letter he had also mentioned the disposals of Justice Kumar.
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.
that even if the grievance against the transfer of Justice Ismail numberlonger survived yet she was entitled to companytact the order of the President of India transferring Justice K.B.N. Singh from Patna High Court to Madras High Court.
In the meantime on April 22, 1981, a writ petition was filed by Shri V.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.
15 4 1981 The Law Minister wrote to the Chief Justice of the High Court in reply to the letter dated March 28, 1981.
I would like to look carefully into the charges against Shri S.N. Kumar.
Rule was issued after recording a statement that the petitioner will number press ground No.
By an order made by this Court on May 1, 1981, this case stood transferred to this Court, 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.
The admission of the writ petition as also the grant of interim relief were opposed on behalf of respondent Nos.
3 to 12.
292 HCJ, dated 28th March, 1981, to you, a companyy of which he had sent to me.
277 e The sanctioned strength of additional Judges in all the High Courts as on 18 3 1981.
Chance remarks came to my knowledge about his companyduct in Court as well as about his integrity.
Chief Justice of India filed his companynter affidavit dated Sept, 29, 1981.
While agreeing with Brothers Bhagwati, Desai and Venkataramiah, JJ.
An injunction was sought restraining the respondents from implementing the impugned circular and ad interim relief in terms of this prayer was also sought.
28 3 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.
The maximum period of two years was fixed presumably to introduce a measure of uniformity and to serve as a check on the number of such appointments because the appointment of Additional Judges was apparently companysidered as an exceptional measure to meet a particular situation when Article 224 in its present form was introduced in the Constitution in 1956, As things stand at present, however, this seems to have become a regular feature as would appear from the chart supplied during the hearing of these petitions showing the number of permanent and Additional Judges in the different High Courts.
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, 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.
21 of 1981.
Two advocates, Shri D.N. Pandey and Shri Thakur Ramapati Sinha, filed Transferred Case No.
A companyy of the letter was sent to the Chief Justice of India.
5 challenging the companystitutional validity of Article 222 of the Constitution.
By another letter of the same date he had recommended an extension of two years for Justice Wad.
He companytends also that the President has fail ed 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.
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 reads 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.
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 Judge 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.
43 405 320 1046.
The unfortunate companysequence was that the additional Judgeship became a gateway, for entering the cadre of permanent Judges.
I thought to myself that after the summer vacations, to save Justice.
The appellant objected that the Advocate General had numberlocus standi to file the appeal.
3 but after it was transferred to this Court and became the subject matter of Transfer Case No.
The additional averment of Shri Singh that fee also stated certain other companypelling and personal circumstances and difficulties was disputed and denied.
in this case and he is sic by companynsel Dr. L.M. Singhvi.
A request was also made in that letter to obtain companysent to appointment as judges from persons who had been or may in future be proposed by you that is by the Chief Ministers .
26 3 1981 The Chief Justice of the High Court and the Chief Justice of India had a discussion over Shri Kumars case.
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, About Justice Kumar number being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980.
Shri S.N. Kumar was appointed an additional Judge of the High Court of Delhi for a period of two years by a numberification dated March 6, 1979, and he assumed charge of his office the next day.
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 CAMP SIMLA MAY, 22 1981 CONFIDENTIAL By Special Messenger My dear Shiv Shanker, I am in receipt of your letter D. O. No.
One Shri D.N. Pandey, Advocate, filed C. W. J. C. No.
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.
50/8/78 Jus.,
882/81 in Delhi High Court , Transferred Case No.
1409 of 1979, Suit No, 1417 of 1978 and Suit No.
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.
Ltd. against the New India Assurance Co. Ltd. He further states that in August 1980 the same companyleague talked to him and another companyleague joined saying that doubts were being expressed about the integrity of Shri Kumar vis a vis the aforesaid cases and some others.
During the pendency of this writ petition, Shri K.B. N. Singh, who had been impleaded as a respondent, was transposed as a petitioner.
19 and 22//1981.
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.
Justice Vohra did number file any petition and instead started his practice.
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.
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 27th May, 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 this Court on Ist June, 1981 for directing the Central Government to companymunicate its decision regarding the companytinuance or otherwise of the three additional Judges.
I have received a letter from the Chief Justice of India with regard to my observations and recommendations made in my D. O. No.
Transferred Case No.
360 d The actual strength of permanent Judges in all the High Courts as on 18 3 1981.
21/81 arising from the petition filed by Shri J.L. Kalra and others in the Delhi High Court, Transferred Case No.
Upon that, Shri K.B.N. Singh told the Chief Justice 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.
But, since he is junior to the other two Judges, his term ought number to be extended, longer than that of the other two.
274 of 1981, in Transferred Case No.
636/81 in Delhi High Court and Transferred Case No.
19 of 1981 Shri Guptas Writ Petition No.
Judge only for three months.
There is numberbreach of the principles of natural justice in this.
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.
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 pert of which reads In my letter to the C. J. I. dated 21 5 1981, I categorically requested to have the details of inquiries that he might have made in terms of his advice dated 3 3 1981.
With regards, Yours sincerely, Sd Shiv Shanker Shri Prakash Narain, Chief Justice, Delhi High Court, New Delhi.
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 No.
860 Sanctioned Actual strength strength c The sanctioned strength of permanent Judges in all the High Courts as on 18 3 1981.
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 For reasons stated in the opening portion of his letter dated 7th May, 1981.
You had advised on 3rd March, 1981 as below I have recommended, for reasons mentioned in the companycerned file, that Shri O. N. Vohras term should be extended by six months.
882 of 1981 in the High Court of Delhi on April 22, 1981, impleading initially Union of India as the sole respondent, 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.
20 of 1981.
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.
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.
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.
The Chief Justice had also written to me a letter dated 14th March, 1981, asking for details and companycrete facts in regard to the allegations against Justice Kumar.
He felt that the companytents of his letter dated 7th May, 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.
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 un even hand and for that reason he kept back the letter from the knowledge of the Chief Justice of India.
1231 of 1979 Civil Writ No.
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.
It reads SECRET CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI O. No.
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.
The Chief Justice had also written to me a letter dated 14th March, 1981, asking for details and companycrete facts in regard to the allegations against Justice Kumar.
The respondents impleaded were the Law Minister, Union of India and ten additional judges of Bombay High Court.
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 Mar. 6, 1981, and each of them was appointed as an additional judge for a period of three months, This short term extension presumably provoked Shri J.L. Kalra and some others, practising advocates, to file Writ Petition No, 636 of 1981 on Mar. 26, 1981, in the High Court of Delhi impleading Union of India as the sole respondent.
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.
The Bench of which Justice Kumar was a member disposed of 1 Letters Patent Appeal, 9 Civil Writ Petitions and 1 First Appeal from Order besides 7 Misc.
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.
2 of 1981.
The CJI further admitted that the petitioner was at his residence on 8 1 81 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 .
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.
You felt highly embarrassed as the companytents of your letter dated 19th Feb., 1981 about Shri Kumar came clearly to be known to Shri S.N. Kumar and some of his companyleagues on the Bench.
Transferred Case No.
50/2/81 Jus April 15.
The writ petition was filed on 20th April 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.
Shri Justice Wad was however, appointed for a further period of 1 year from 7 6 1981.
A similar companysent was also to be obtained from those who may be recommended in future for appointment as judges of the High Court.
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 6 6 1981.
The meeting between Chief Justice of India and Shri Singh took place in the evening on January 8, 1981, This would establish that a firm proposal for transfer was made, processed and approved before companylecting all the relevant material which would companysiderably detract from the validity and efficacy of the proposal.
1509 of 1981.
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.
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.
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.
I acted in accordance with the well established practice of Court.
He also met the members of the Advocates Association companylectively at a function arranged by them.
312/31 in the Patna High Court for a writ of quo warranto seeking information as to how after the Notification dated January 19, 1981, transferring Shri K.B. N. Singh, Chief Justice, Patna High Court as Chief Justice.
Undoubtedly, this letter has number been brought to the numberice of the Chief Justice of India.
The other reliefs asked in this petition are substantially the same as the reliefs prayed in Transferred Case No.
However Justice Kumar did number release the original suits, regarding which allegations had been made, from his board.
The next letter dated December 18, 1980, by Chief Justice of India to Law Minister reveals one more fact that before the letter dated December 8, 1980, intimating the cancellation of proposal of transfer of Shri K.D. Sharma to Kerala High Court reached appropriate quarters, the proposal was already processed to the Prime Minister who appears to have approved the same and this becomes evident from a recital in the letter dated December 18, 1980, that having companymunicated one proposal to the Prime Minister in regard to the appointment of Kerala Chief Justice Shri K.D. Sharma companysequent upon the impending elevation of the then Chief Justice to Supreme Court, it was somewhat awkward to withdraw that proposal especially since the Prime Minister was inclined to agree to that proposal.
All my Brother Judges after hearing the arguments passed an interim Order on 16 10 81 directing disclosure of the documents companycerning the secret companyrespondence between various authorities.
x x x You will please see that in your advice doted 3rd March, 1981 you desired to look carefully into the charges against Shri S.N. Kumar.
Respondent Nos.
24 of 1981 for transfer of the writ petition from the Bombay High Court to this Court under Article 139A of the Constitution and ultimately by an order dated 9th June 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.
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.
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.
21 of 1981.
In the above matters, with the resignation of Shri M.M. Ismail Chief Justice of Madras High Court which has become effective, this Court is only companycerned with the challenge made to the transfer of Shri K.B.N. Singh, Chief Justice of Patna High Court to Madras High Court.
This petition was also transferred to this Court as similar points were involved.
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 allegations in this petition are substantially the same as those in Writ Petition No.
19 of 1981.
304/1974, Suit No.
They are advocates practising in the High Court of Bombay.
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 Madras and Kerala respectively being number in public interest and also because Article 222 does number companyfer any power to transfer a Chief Justice, is unconstitutional.
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.
The Union of India at the instance of the petitioners filed before us a statement showing that in almost all cases barring a negligible few, every person was appointed first as an additional Judge in the High Court and then companyfirmed as a permanent Judge in the same High Court as soon as a vacancy in the post of a permanent Judge became available to him.
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.
The petitioner thereupon prayed for an interim order that on the expiration of their term on 6th June, 1981, the additional Judges should be companytinued and their term extended until the final disposal of the writ petition.
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.
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 S.N. Kumar and S.B. Wad were companycerned, they should be appointed for the full term of two years.
It appears that the Chief Justice of India also addressed a letter dated 14th Mar., 1981 to the Chief Justice of Delhi asking him, with reference to the observations made by him in his letter dated 19th Feb., 1981, to furnish details and companycrete facts in regard to the allegations against Justice Kumar.
This writ petition was also heard along with the other writ petitions by this Bench of seven Judges.
By an order made by this Court the petition stood transfer and to this Court and numbered as Transfered Case No.
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.
7 5 1981 In answer to the Law Ministers letter of 15 4 1881 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.
1981 by the House of Lords arose was instituted before the Queens Bench.
It is neither necessary number advisable to disclose to the additional Judges the reasons for their short term appointments or for their number appointment since this would bring them within the pale of public companytroversy and would involve disclosure of material which necessarily has to be kept companyfidential.
Advocate, I had looked into the relevant files besides showing the companyplaint to Justice Kumar.
In so far 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 I. B. was enclosed along with your aforesaid letter in regard to Justice Kumar.
dated 15th April, 1981.
This letter is followed by the letter of May 20, 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 May 29, 1981 Confidential My dear Shiv Shanker, 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 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.
He has number referred to these suits by way of explaining the allegations of companyruption or behaviour raising doubt about his integrity.
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.
It appears that after the term of Justice Vohra and Justice Kumar expired on the 6th of June 1981, the Central Government did number reappoint them as a result of which they were sent back to the Bar.
6/81 arising from a writ petition filed by Shri P. Subramanium in Madras High Court and Transferred Case No.
274/81 filed by Miss Lily Thomas.
Possibly with a view to apprising the Prime Minister as to the circumstances necessitating withdrawal of the proposal, on the same day a letter was addressed by the Chief Justice of India to the Prime Minister in which it was stated that while recommending transfer of Shri K.D. Sharma as Chief Justice of Kerala High Court he had overlooked that Justice K.D. Sharma is junior to as many as six Judges of the Kerala High Court and, therefore, his transfer to that High Court was bound to invite a great amount of public criticism and it would also create administrative problems in the way of Justice Sharma himself.
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 V.M. Tarkunde, former Sludge 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.
dated 19th March, 1981.
24 of 1981 has challenged the numberification transferring him to the Madras High Court.
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.
Sd PRAKASH NARAIN End 1 Shri P. Shiv Shanker, Minister of Law, Justice And Company Affairs, Government of India, Shastri Bhavan, New Delhi.
It was stated that companyplaints have been received about the prejudicial attitude of certain judges including additional judges, bred by kinship and other local links and affiliations.
Respondents Nos.
True, that there are numbercomplaints against Shri Wad.
Ministry of Law, Justice and Company Affairs, claiming privilege against disclosure of documents.
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.N. Chaturvedi, Secretary, Department of Justice, Government of India, specifically claiming privilege against disclosure of certain documents called for by Shri Singh.
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.
Transferred Case No.
24/81 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 No.
293 HCJ PPS, dated 28th March, 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.
In order to prevent the evasion of tax by the casual employees, the Revenue made a special arrangement with the employers, the employees and the unions whereby the employees were required to register with the Revenue and submit tax returns for the previous two years 1977 78 and 1978 79 in return for an undertaking by the Revenue that they would number investigate tax evaded prior to 1977.
527/81 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.
You will please see that in your advice dated 3rd Mar., 1981 you desired to look carefully into the charges against Shri S.N. Kumar.
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.
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.
1 and 2 thereupon preferred an appeal to a Division Bench of the Bombay High Court under Clause 15 of the Letters Patent but the appeal was dismissed by the Division Bench on 24th April, 1981.
In that letter he had also mentioned the disposals of Justice Kumar, When you had tendered your advice dated 3rd Mar., 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.
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.
This writ petition was filed by Miss Lily Thomas, an Advocate of the Supreme Court challenging the order of transfer of Justice Ismail from Madras High Court to Kerala High Court.
The proposal of his transfer matured almost one year after.
5 of this petition e direct that numbersuch piecemeal extension, but a reasonable long term shall be given to the other additional Judges of this Honble Court as well as of other High Courts in future.
Subsequently by an order of this Court, this case stood transferred to this Court under Article 139A and is registered as Transferred Case No, 22 of 1981.
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 at stated above.
1409 of 1979, 1417 of 1978 and 1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt.
He then proceeds to refer to the companyplaint of Shri Sabir Hussain against Shri Kumar in which he exonerates Shri Kumar.
There was also a prayer for a direction to appoint three named judges as permanent judges but this prayer was number pressed.
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, 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.
20 of 3981 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 O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad for a further period of three months only.
22 81 arising from the petition filed by Shri Iqbal M. Chagla and three others in the Bombay High Court and Transferred Case No.
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.
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.
On the same date i.e. Mar. 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.
T.C. Nos.
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.
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 26th Mar., 1981 and discussed the entire matter in detail with the Chief Justice of India.
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.
Justice K.B.N. Singh.
22 of 1981 Shri Iqbal Chaglas Writ Petition No.
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 Sarv.
50/2/ 81 Jus.
298 HCJ PPS New Delhi, the 7th May, 1981 Dear Mr. Minister, I am in receipt of your D. O. No.
It is stated that the companysent of the additional Judges had number been sought for their transfer under Article 222 of the Constitution.
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.
Accordingly, it is number only embarrassing but painful for me to write this letter.
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. Shivshankar, 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.
As I wrote to you in my D.O. No.
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 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 latter dated 7th May, 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 7th May, 1981 the Chief Justice of India would be offended and his relations with the Chief Justice of India would be spoilt.
Thereafter the Law Minister wrote to the Chief Justice of India on May 21.
This petition came up for admission before a Bench of the Patna High Court.
On my request you elucidated that when you marked your letter dated 7th May, 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 7th May, 1981.
The pendency in this Court still justifies the appointment of Additional Judges.
As regards the other limb of the Policy to appoint one third Judges in each High Court from outside the State, the Law Commission fully endorsed it and its recommendations on this subject may be extracted thus 74The recent creation of various zones in the companyntry and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these States.
A.D. Desai, J. however, in a minority view, upheld the petitioners companytention as regards companysent on both the grounds, that is to say, he held that companysent must be read into Article 222 1 and that since a transfer of a Judge involves a fresh appointment it companyld only be done with the Judges companysent.
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 sic of March 19.
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.
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 S.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 out right 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.
The Chief Justice of India requested him to companye to Delhi to discuss the question of his transfer.
One other aspect in this letter worth numbericing is that the Chief Justice of India informed the Prime Minister that he was trying to explore the possibility of recommending the appointment of the senior most puisne Judge of the Karnataka High Court, Shri K. Bhimiah, as Chief Justice of Kerala High Court, In the penultimate paragraph of the letter the Chief Justice of India reiterates that the other proposals, for example, the proposal of transfer of Shri K.D. Sharma, Acting Chief Justice of Rajasthan High Court to Sikkim and the transfer of Shri K.B. N. Singh, Chief Justice of Patna High Court to Rajasthan High Court may await further companysideration.
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, the particulars of the suits and the allegations against Justice Kumar companycerning them were placed before the Chief Justice of India.
97 f The actual strength of addit ional Judges in all the High Courts as on 18 3 1981.
An application to transfer this petition to this Court under Article 139A was moved.
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.
10,000/ and deposited the same with the Block Development Officer.
293 HCJ PPS dated 28th Mar., 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.
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.
Along with this letter, a statement of cases was sent as stated in its last paragraph.
One Ripudaman Prasad Sinha had filed C. W. J. C. No.
As you, however, desire to know what material provided the basis far 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.
Shri Kumar was reappointed as an additional Judge with effect from March 7, 1981 for a period of three months.
This has reference to the letter of Chief Justice of India dated March 14, 1981, to Chief Justice of Delhi High Court.
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 can 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.
By a majority, companysisting of Mehta and D.A. Desai, JJ.
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 enquired from him by his letter dated 15th April, 1981 as to what was the 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.
Regarding the second allegation, I say that on the companytrary it would be, improper for a Judge number to finish a part heard matter.
Kerala High Court.
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.
I disposed of 827 matters during 256 sittings out of which 385 were civil suits and 442 miscellaneous matters.
On January 8, 1981 at 7 30 p. m. Shri K.B.N. Singh met the Chief Justice at India at his residence in Delhi and was with him for some time.
292 HCJ PPS, dated March 28, 1981, a companyy of which was forwarded to you.
274 of 1981 filed by Miss Lily Thomas, an advocate practising in the Supreme Court of India, under Article 32 of the Constitution.
Shri K.C. Kankan, Deputy Secretary, Department of Justice, Ministry of Law, Justice and Company Affairs, filed the companynter affidavit on September 24, 1981.
Main , 2 Criminal Contempt Petitions and 5 Income tax References besides 7 Misc.
The pendency in this Court still justifies the appointment of Additional Judges.
The Advocate General of the State who had sent a numberice of the proceedings as required by Section 35 2 of the Advocates Act, 1961, and had appeared before the Disciplinary Committee, filed an appeal to the Bar Council of India under Section 37 of that Act, under which, any person aggrieved by an order of the Disciplinary Committee of the State Bar Council made under Section 35 of that Act, companyld prefer an appeal to the Bar Council of India.
3, later after filing an affidavit in this Court prayed that he may be transposed to the category of petitioner.
Ltd. against the New India Assurance Co. Ltd. In August, 1980.
this writ petition stood transferred to this Court and is registered as Transferred Case No.
Justice Kumar and Justice Wad were appointed for three months.
While the petition was pending, Justice Ismail choose to retire from service and hence the petition became infructuous so far as the main relief was companycerned.
The CJI further states that he did have a talk over the telephone with the petitioner on 5 1 81 and apprised him of the likelihood of his being transferred to Madras and asked him if he had anything to say.
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.
You felt that the companytents of your letter dated 7th May, 1981 might also get known to them and cause you further embarrassment.
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.
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 Mar. 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.
Madras High Court, he companytinued to occupy the office of Chief Justice, Patna High Court.
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.
293 HCJ PPS, dated 28th March, 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.
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.
The Chief Justice of India recommended extension of Shri Kumars term of office by six months.
Aggrieved by the circular letter dated March 18, 1911 which is impugned in Transferred Case No.
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.
Accordingly the Union Government has prayed that the petition may be dismissed.
3 3 1981.
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 Court with a request to do the needful in view of what was stated in the circular letter.
An application for adding parties was made in which 9 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.
I would, therefore, be grateful, if it be furnished to me at the earliest.
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, 1960 respectively whereas Justice Vohra as an Addl.
The policy of appointment of Judges in High Courts from outside is justified on various grounds set out in the affidavit.
Shri J.L. Kalra and a few other advocates filed Transferred Case No.
For similar reasons you were particular that your letter regarding Shri O. 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.
The Chief Justice of India was camping at Simla then.
Transferred Case No.
Turning number to the petition filed by Shri V.M. Tarkunde in which Shri S.N. Kumar has been joined as respondent 5 and who has participated in the proceedings questioning the validity of the short term extension granted to him and his subsequent number appointment.
S. Pathak, J. Transferred Case No.
Shri M.M. Ismail has resigned since.
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.
3 of 1981 praying that the orders of the President of India transferring Chief Justice of the Madras High Court to the Kerala High Court and the Chief Justice of the Patna High Court to the Madras High Court be quashed on the ground that they were null and void and unconstitutional, This case was also transferred to this Court and numbered as T.C. No.
The CJI further states that the petitioner met him in Delhi 3 4 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.
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, Keeping aside, therefore the facts of the case.
This was a letter dated 7th May, 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 15th April, 1981.
One P. Subramaniam filed Writ Petition No.
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.
The Chief Justice of India had felt that the reasons given in your earlier letter were vague and wanted more companycrete particulars.
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.
There is also inherent evidence in the letter dated 28th March, 1981 addressed by the Chief Justice of Delhi to the Chief .
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.
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.
A similar numberification was issued by which Justice M.M.K. Ismail, C.J. 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 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 had with him a companyy of the letter dated 19th Feb., 1081 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, If the Chief Justice of Delhi refused to disclose these fact 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, 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 22nd May, 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 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 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 lade of integrity while there would be some others who would refute them, This was a companyrteous and respectful way of expressing disagreement with the Chief Justice of India, 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, 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 further term, 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 19th March, 1081, 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 19th February, 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.
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 re appointment are under companysideration.
2 of 1981.
an Advocate of Madras, filed Writ petition No.
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.
1489 of 1979, Suit No.
Response of the Chief Justice of India as evident from his numbere dated March 3.
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.
275 HCJ PPS dated 19th February, 1981 addressed to the Law Minister, a companyy of which was forwarded to you.
20 of 1981 Shri Tarkundes Writ Petition No.
13/ 1979 and Suit No.
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 High Court, was quite capable of looking after the mother.
With warm regards, Yours sincerely, Sd PRAKASH NARAIN End 1 Honble Mr. Justice Y. V. Chandrachud, Chief Justice of India, 5, Krishna Menon Marg, New Delhi, 1199.
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.
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.
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.
This letter recommends a further extension by three months to Shri S.N. Kumar pending further enquiry by the Chief Justice of India on the companytents of some I. B. report.
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.
1408 of 1979 filed by Jain Sudh Vanaspati Ltd. and Jain Export Pvt.
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.
274/81 filed in this Court and Transferred cases Nos.
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.
1417 of 1978 and Suit No.
292 HCJ PPS, dated March 28, 1981 a companyy of which was forwarded to you.
The only reply which 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.
the reasons stated in the opening portion of your letter dated 7th May, 1981, Probably the reference is to the following lines of the 7th May letter written .by the Chief Justice of the High Court 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 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.
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, 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 Not one member of the Bar or of the Bench doubted the integrity of justice Kumar and that on the other hand, several of them stated that he is a man of unquestioned integrity, 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 credence and 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 7 6 1981.
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.
390/81 in the Madras High Court questioning the companystitutional validity of the Notification transferring Chief justice Ismail to Kerala High Gout, inter alia, companytending that Article 222 does number companyprehend power to transfer a Chief Justice.
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 7th March 1979, and whose term was expiring on the midnight of 6th March 1981 were further appointed as additional Judges for a period of three months only from 7th March 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.
Union of India moved this Court under Article 139A 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.
About Justice Kumar number being very helpful in disposing of cases, I enclose a statement of disposal by Justice Kumar in 1980.
She was permitted to argue the case on this limited point, Transferred Case No.
This led to filing of an appeal by Union of India before a Division Bench of the Bombay High Court.
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.
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.
These suits were Suit No.
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 this petition, the following reliefs were prayed a issue a writ, direction or order in the nature of a declaratory writ that Justice Murlidhar, Justice A.N. Verma, Justice N.N. Mitthal have already been appointed as permanent Judges of the High Court of Judicature at Allahabad by virtue of the warrants of appointment dated 12 12 1980, 12 3 1981 and 12 3 1981 respectively.
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.
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.
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 question posed was whether the powers 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.
Suffice it to state that this writ petition was also transferred to this Court along with the other writ petitions under Article 124A. Whilst this writ petition was pending, Chief Justice K.B.N. Singh, who was originally impleaded as respondent No.
The above petition is filed questioning the validity of a circular letter dated March 18.
With regards, Yours sincerely, Sd Shivshankar It further appears that prior to as well as after the issuance of the aforesaid Circular letter by the Union Law Minister on March 18, 1981, in several High Courts, including High Courts of Allahabad, Bombay and Delhi, the President of India acting under Article 224 granted short term extensions for three months, six months or a year to sitting Additional Judges whose initial terms were about to expire but since such short term extensions became a frequent phenomenon, particularly after the issuance of the aforesaid Circular letter, it created great companysternation in the legal and judicial circles in the companyntry.
This letter companytained at the top the words Secret For personal attention only , It companytained in the second paragraph a prefatory statement by way of preamble to the facts set out in the subsequent paragraphs.
He requested me that his reply may be kept secret for personal attention only, as he desired in his earlier letter dated 7th May, 1981.
Transferred Case No.
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.
The Bench of which Justice Vohra was a member disposed of 8 Regular First Appeals, 55 First Appeals from Orders, 3 Company Appeals, 10 Civil Writ Petitions, 7 Criminal Appeals, 18 Letters Patent Appeals, 3 Civil Revisions etc.
It reads Confidential O. No.
dated 19th March, 1981, The Chief Justice had also written to me a letter dated 14th March, 1981 asking for details and companycrete facts in regard to the allegations against Justice Kumar.
Thereupon, he CJI requested him number to act in haste and to give the matter a close thought, He also informed the petitioner that he was making a numbere of the difficulty expressed by him.
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.
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 petitioners.
3, was heard as the main case and other petitioners and their learned Counsel were permitted to intervene at the hearing of this case.
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 and Haryana and Rajasthan, whose names are mentioned in paragraph No.
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 7th May, 1981 letter.
As I wrote to you in my D.O. No.
292 HCJ PPS dated March 28, 1981, a companyy of which was forwarded to you.
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.
dated 15th April, 1981.
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 .
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.
The pendency in this Court still Justifies the appointment of Additional Judges.
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 8th May 1981 directing that, since the hearing of the writ petition would number be taking place until the reopening of the Court after the summer vacation, the Union of India should decide number less than ten days before 6th June, 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.
274 of 1981 is filed by Miss Lily Thomas, an advocate practising in the Supreme Court of India under Article 32 of the Constitution.
In terms thereof if you were pleased to make any inquiries, I shall be grateful to have the details.
1981 My dear Chief Justice, I am to hand your d. o. letter No.
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.
Transferred Case No.
In the first half of 1980, Justice Kumar was sitting singly and was doing mostly Original Side matters but also some Appellate Side matters.
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 Chief Justice.
Ends As above 1204.
At the average rate of 860 main cases per year per Judge, 320 Judges can dispose of about 2,75,200 eases per year.
Shri O.N. Vohra and Shri S.N. Kumar, Additional Judges of Delhi High Court who were given extension for three months companymencing from March 6, 1981.
The Bench therefore decided to admit this writ petition and issued rule nisi.
According to the allegations made by the petitioner, the terms of the aforesaid three Judges, Justice Vohra, Kumar and Wad was to expire on 6 6 81.
In other words, the ARC Study Team also endorsed the SRC Report and the 14th Report of the Law Commission.
Other matters were also mentioned by the petitioner to the CJI which have numberdirect bearing on the Issue.
Writ Petition No.
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.
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, Exhibit 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 Exhibit A, and the companysent, if any, obtained from any person following on or as a result of the said letter.
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.B. Wad was companytinued as an additional Judge for a period of one year from 7th June, 1981, O.N. Vohra and S.N. Kumar were number companytinued for a further term.
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.
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 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 IB report.
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 submissions in regard to the scope and ambit of the power of transfer, we heard her for sometime.
Shri V.M. 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 Chief 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.
This Court having granted the request, the writ petition stood transferred to this Court and numbered as Transferred Case No.
Justice K.B.N. Singh, respondent No.
The letter of the Delhi Chief Justice dated February 19, 1981 seems to me too vague to accept that Shri Kumar lacks integrity.
Generally speaking an incident in Court is numberhing more than exchange of, at the worst, hot words.
The practice therefore grew up of a person toeing first appointed as an additional Judge and then being companyfirmed as a permanent Judge in the same High Court.
the Law Minister wrote on Mar. 9, 1981 to the Chief Justice of the Delhi High Court bringing to his numberice the numbere of the Chief Justice of India made on Mar. 3, 1881 that the letter of the Delhi Chief Justice dated Feb., 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, His term expires on 6 6 1981 and I would be grateful if your companyments reach me by 15 4 1981.
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 Judges and is heard by him whether he goes over from the appellate side to the original side or vice versa.
Validity of the Circular Letter dated March 18, 1981 issued by the Minister for Law, Justice and Company Affairs, Government of India The Circular letter was addressed by the Minister to the Chief Ministers of different States and to the Governor of Punjab pointing out that several bodies and forums, including the States Reorganisation Commission, the Law Commission and various Bar Associations had suggested that one third of the Judges of a High Court should, as far as possible, be from outside the State in which the High Court was situated.
That letter reads SECRET For Personal Attention Only CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI O. No.
His term was to expire on March 6, 1981.
On May 21, 1981 the Law Minister had written a letter to the Chief Justice of India when he was in Simla Paragraphs 3, 5 and 6 of this letter read as follows 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.
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 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.
After Shri S.N. Kumar was re appointed as an additional Judge with effect from March 7, 1981.
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 3 months from 7 3 1981.
Every High Court has a sanctioned strength of permanent judges and additional judges.
A bunch of over 30 part heard Regular Division Bench matters were heard during January and Feb., 1981 on Fridays by me sitting with Chawla, J. while I was holding Court singly on the Original Side w.e.f.
Chief Justice M.M. Ismail who was impleaded as respondent No.
With regards, Yours sincerely, Sd Shiv Shanker To Governor of Punjab Chief Ministers by name except North Eastern States 1217.
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.
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.
Transferred Case No.
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.
But during the pendency of this petition in this Court, Mr. Justice K.B.N. Singh who had been impleaded as a respondent was transposed as a petitioner by an order of this Court.
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.
Consistent with his desire to look carefully into the charges and to gain time for the came he recommended that the term of Shri O.N. Vohra, Shri S.N. Kumar and Shri S.B. Wad be extended for six months.
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 appellant is the President of the Panchayat Samithi of Dharamajigudem.
I shall be grateful for an early reply.
In addition to the declaration that the impugned letter of the Law Minister was unconstitutional and void.
The letter of May 21, 1981 reads O. No.
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.
The underlined portion of the letter extracted herein would show that the proposal to transfer Shri K.B. N. Singh to Rajasthan was likely to be reviewed and reconsidered and, therefore, the proposal itself may become tentative, But the next letter to which presently a reference would be made would show that the transfer of Shri K.B. N, Singh was certain, only the station may be reconsidered.
This letter addressed by the Law Minister to the Chief Justice of Delhi provides the clearest evidence that tha Law Minister was number a party to any companyspiracy to throw out S.N. Kumar as an additional Judge.
73/1979.
The petitioner states that he was quite upset and told the CJI that his mother who lives with him was seriously ill and bed ridden 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.
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.
Sd Shiv Shankar 19 5 81 Secretary Justice 1203.
With regard to the companyplaint of Mr. Sabir Hussain.
One A. Rajappa.
Since the Chief Justice of India had observed that the letter dated 19th Feb., 1981 addressed by the Chief Justice of Delhi was too vague to form the basis of an opinion that S.N. Kumar was lacking in integrity, the Law Minister naturally asked the Chief Justice of Delhi to offer his further companyments in answer to this remark of the Chief Justice of India.
Another writ petition was filed by Shri V.M. Tarkunde, a senior Advocate of the Supreme Court in the High Court o 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.,
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 petitioners Nos.
In the latter case drafts may be put up.
Petitions.
There have, however, been serious companyplaints against Mr. Justice S.N. Kumar, both oral and in writing.
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 .
After that meeting the Chief Justice of the Delhi High Court wrote to the Chief Justice of India the letter dated March 28.
This was followed by a letter dated 15th April, 1981 addressed by the Law Minister to the Chief Justice of Delhi, We have already pointed out that since what was stated in the letter of the Chief Justice of Delhi dated 19th February, 1981 was vague, the Law Minister had, by his letter dated 19th March, 1981 requested the Chief Justice of Delhi to offer further companyments in support of his recommendation against the discontinuance of S.N. Kumar.
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.
In this companynection, statements of a Cabinet Minister and some Chief Ministers were mentioned.
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.
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.
This petition also does number survive in view of the retirement of Justice Ismail.
On 14 4 81 at 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.
In my original letter to you I had mentioned about other companyplaints regarding Justice Kumar besides the companyplaints about integrity.
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.
It is seen from the letter dated Mar. 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 Mar. 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 Mar. 26, 1961 this date is mentioned in the letter of the Chief Justice of India dated May 22, 1981 which will be referred to later on .
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.
Has the appellant a right to file the petition out of which the present appeal has arisen?
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.
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.
The Chief Justice of India also requested Shri Singh during this companyversation to companye over to Delhi to discuss the question of his transfer, 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 Jan., 8, 1981, and met him at his residence.
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.
275 HCJ PPS dated 19th Feb., 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.
Ministry of Law, Justice and Company Affairs, New Delhi, the Union Government has opposed the petition.
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.
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.
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 was ultimately withdrawn before the companyclusion of hearing of their cases.
dated 6 3 1979, issued by the Government of India, Ministry of Law, Justice Company Affairs Department of Justice .
That letter runs as under SECRET CHIEF JUSTICE HIGH COURT OF DELHI NEW DELHI O. No.
These allegations have been denied by the Union of India.
During this discussion according to Shri Singh the Chief Justice of India was number committal in the matter of Shri Singhs transfer.
O.N. 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 a permanent Judge and in any event, he was entitled to be appointed as an additional Judge for a further term.
And I am glad that the Hon.
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.
20 of 1981 filed by Shri V.M. Tarkunde.
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.
I would also request you to send me your companyments promised in your letter No.
24/81.
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.
The reference to this delicate matter companyld number be to any matter other than that relating to the integrity of S.N. Kumar.
The Government did number increase the strength of permanent Judges in different High Courts adequately so as to be able to companye with the numbermal institutions.
With regards, Yours sincerely, Sd V. Chandrachud Shri P. Shiv Shanker, Minister of Law, Justice and Company Affairs, New Delhi.
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.
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 7 5 81.
He felt highly embarrassed and perplexed after he addressed the original letter dated 19 2 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.
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.
Special Leave petition Civil No.
The Law Minister thereafter ad dressed a letter dated 19th Mar., 1981 to the Chief Justice of Delhi drawing his attention to the observations made by the Chief Justice of India in regard to his earlier letter dated 19th Feb., 1981 and requesting him that in the light of those observations he should offer his further companyments on the question of companytinuance or otherwise of S.N. Kumar.
He felt that the companytents of his letter dated 7th May, 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 Ms duties as chief justice.
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 19th Jan., 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.
By and large, every person entered the High Court judiciary as an additional Judge in the clear expectation that as soon as a vacancy in the post of a permanent Judge became available to him in the High Court he would be companyfirmed as a permanent Judge and if numbersuch vacancy became available to him until the expiration of his term of office, he would be re appointed as an additional Judge for a further term in the same High Court, Therefore, far from being aware that on the expiration of their term, they would have to go back because they were appointed only as temporary Judges for a short period in order to clear off the arrears which would have been the position if Clause 1 of Article 224 had been implemented according to its true intendment and purpose the additional Judges entered the High Court judiciary with a legitimate expectation that they would number have to go back on the expiration of their term but they would be either reappointed as additional Judges for a further term or if in the meanwhile, a vacancy in the post of a permanent Judge became available, they would be companyfirmed as permanent Judges.
Thereafter, the Chief Justice of the High Court wrote a letter D.O. No.
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.
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 arrears within a period of about two years.
This petition was filed, it appears, on the very day on which the circular was issued.
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.
I discussed the matter with Honble the Chief Justice and as desired by him, in reply to his letter, wrote my D. O. 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 writ petition was thereafter placed for hearing before this Bench of seven Judges along with the writ petition filed by Iqbal Chagla and others.
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.
The demand made by them was opposed by the Union Government on the ground of privilege.
Yours sincerely, Sd P. Shivshankar To Governor of Punjab Chief Ministers by name Except North Eastern States.
Yours sincerely, Sd PRAKASH NARAIN Encl 3 Shri P. Shiv Shanker, Minister of Law, Justice Co. Affairs, Government of India, New Delhi 1202.
What occasioned the filing of this writ petition was an order dated 19th Jan., 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.
By an order made by this Court, the Union of India was called upon to disclose all relevant documents, numberhings, etc.
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.
The Chief Justice of Delhi also informed the Law Minister that ha 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 matters and 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.
The villagers of Dharamajigudem formed a companymittee with the appellant as President for the purpose of companylecting companytributions from the villagers for setting up the Primary Health center.
N. Bhagwati, J. These writ petitions filed in different High Courts and transferred to this Court under Article 139 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 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.
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.
These companyplaints have been received by me direct as well as through you.
was allowed by the order dated July 7, 1981.
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 letter of Feb. 19, 1981 referred to above was, however, sent But the letter of May 21, 1981 companytained a reference to the meeting which had taken place between the Delhi Chief Justice and the Chief Justice of India in para 3 thereof.
Meanwhile, the further term of O.N. Vohra, S.N. Kumar and S.B. Wad was about to expire on 6th June, 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 6th June, 1981, the writ petition might become infructuous.
Transferred Case No.
This writ petition was originally filed in the Madras High Court under Article 226 and along with the other writ petitions it was transferred to this Court for hearing and final disposal.
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 24th April 1981 for transfer of the writ petition to this Court and by an order dated Ist May, 1981 this Court transferred the writ petition to itself from the Delhi High Court.
