Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023)

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    Rig Moore

    Shri Saurabh Kirpal possesses competence, integrity and intellect. His appointment will add value to the Bench of the Delhi High Court and provide inclusion and diversity. His conduct and behaviour have been above board. It may have been advisable for the candidate not to speak to the Press in regard to the reasons which may have weighed in the recommendations of the Collegium being sent back for reconsideration.

    [See the full post at: Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023)]


    Supreme Court Advocates-on-Record Association and others v. Union of India (1993)

    Consultation with a plurality of Judges

    Apex Court in Supreme Court Advocates-on-Record Association and others v. Union of India, [ (1993) 4 SCC 441 ] adopted a new approach opining that keeping in view the fact that independence of judiciary is one of the cardinal principles of constitution, the primacy of appointment shall be with the Chief Justice of India as also the Chief Justice of the High Court. However, before making recommendations in terms of Articles 124(2) and 217(1) of the Constitution, they would have to consult two other senior most Judges who would be the members of the Collegium.

    It was opined that S.P. Gupta (supra) should be read with Ashok Kumar Yadav v. State of Haryana, [ (1985) 4 SCC 417 ]. As regards justiciability of appointment and transfer it was laid down :-

    “Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision-making.”

    SPECIAL REFERENCE In Re – Special Reference No. 1 of 1998, [(1998) 7 SCC 739], in regard to justiciability of such power this Court held that having a plurality of judges in the formation of opinion provides sufficient safeguards and that they are sufficient checks against arbitrariness in the decision making process relating to Appointment and Transfers, stating :-

    “9. The majority judgment ends with a summary of its conclusions. Conclusions 1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. They read thus:

    “(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated `participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.

     * * (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.

     * * (10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in anyone.

    (11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.

    * * * (14) The majority opinion in S.P. Gupta v. Union of India insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.”

    It was furthermore held :-

    “44. The questions posed by the Reference are now answered, but we should emphasise that the answers should be read in conjunction with the body of this opinion:

    1. The expression “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.
    * *
    4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of India for non-appointment of a Judge recommended for appointment.
    * *
    8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of India.”


    The task of interpretation of a statutory enactment is not a mechanical task—the meaning of a sentence may be more than that of the separate words

    K.P. Varghese v. Income Tax Officer, Ernakulam and Another [(1981) 4 SCC 173], the strict literal reading of a statute was avoided as by reason thereof several vital considerations, which must always be borne in mind, would be ignored, stating:

    “…The task of interpretation of a statutory enactment is not a mechanical task. It is more than a mere reading of mathematical formulae because few words possess the precision of mathematical symbols. It is an attempt to discover the intent of the legislature from the language used by it and it must always be remembered that language is at best an imperfect instrument for the expression of human thought and as pointed out by Lord Denning, it would be idle to expect every statutory provision to be “drafted with divine prescience and perfect clarity”. We can do no better than repeat the famous words of Judge Learned Hand when he laid:

    “… it is true that the words used, even in their literal sense, are the primary and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

    “… the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which all appear, and which all collectively create.”


    Justice and reason constitute the great general legislative intent in every peace of legislation

    In Bhudan Singh and Another v. Nabi Bux and Another [(1969) 2 SCC 481], this Court held:

    “The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on “Statutory Constructions” that the entire legislative process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every peace of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instance, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent.”


    Will of the people

    Apex Court Atma Ram Mittal v. Ishwar Singh Punia, [ (1988) 4 SCC 284]:

    “9. Judicial time and energy is more often than not consumed in finding what is the intention of Parliament or in other words, the will of the people. Blackstone tells us that the fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by signs most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. (emphasis by the court) See Commentaries on the Laws of England (facsimile of 1st Edn. Of 1765, University of Chicago Press, 1979, Vol. 1, p. 59).”


    Principles of purposive construction

    In High Court of Gujarat and Another v. Gujarat Kishan Mazdoor Panchayat and Others [ (2003) 4 SCC 712 ], this Court noticed:

    “33. In United Bank of India v. Abhijit Tea Co. (P) Ltd. this Court noticed: (SCC p. 366, paras 25-26)  “25. In regard to purposive interpretation, Justice Frankfurter observed as follows:

    `Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of Government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose [Some Reflections on the Reading of Statutes, 47 Columbia LR 527, at p. 538 (1947)].’ xxx xxx xxx

    38. In The Interpretation and Application of Statutes by Reed Dickerson, the author at p. 135 has discussed the subject while dealing with the importance of context of the statute in the following terms:

    “… The essence of the language is to reflect, express, and perhaps even affect the conceptual matrix of established ideas and values that identifies the culture to which it belongs. For this reason, language has been called `conceptual map of human experience’.”

    In New India Assurance Company Ltd. v. Nusli Neville Wadia and Another [(2008) 3 SCC 279], this Court held:

    “52. Barak in his exhaustive work on “Purposive Construction” explains various meanings attributed to the term “purpose”. It would be in the fitness of discussion to refer to Purposive Construction in Barak’s words:

    “Hart and Sachs also appear to treat purpose' as a subjective concept. I sayappear’ because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator’s shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfil their constitutional duties in good faith. This formulation allows the interpreter to inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

    (Aharon Barak, Purposive Interpretation in Law, (2007) at p.87.)”

    In Union of India v. Ranbaxy Laboratories Limited and Others [(2008) 7 SCC 502], this Court held that the principles of purposive construction may be employed for making an exemption notification a workable one.

    We may notice that in Regina v. Secretary of State for Health ex parate Quintavalle [2003] UKHL 13], the House of Lords stated the law as under:

    ”8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

     *** The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt.”

    Yet again, the Australian High Court in Australian Finance Direct Limited v. Director of Consumer Affairs Victoria [2007] HCA 57], held :

    “40. This explanation of the approach to be taken to a problem of construction has been cited, restated and applied in this Court so many times that it should be uncontroversial. Some judges have not been sympathetic to the purposive approach[39]. Some have clearly yearned for a return to the perceived simplicities of literalism, either generally or in particular fields of law. On the whole, however, this Court has adhered to the doctrinal shift with a fair degree of consistency. In my view, there is a need for such consistency. We should avoid opportunistic reversions to the old approach of literalism which the legal mind sometimes finds congenial.

    41. Obviously, a balance must be struck between, on the one hand, an exclusive focus on the text of legislation and, on the other, reference to extrinsic information that assists to explain its purpose. Those bound by the law will often have no access to such information. Cases do arise where the legal prescription is relatively clear on the face of the written law. To the extent that external inquiries are necessary, they obviously add to marginal costs and can sometimes occasion disputes and uncertainty which the words of the law alone would not have produced.”



    The golden rule is that the words of statute must be prima facie given their ordinary meaning

    Harbhajan Singh v. Press Council of India and others [(2002) 3 SCC 722] to emphasise that the golden rule is that the words of statute must be prima facie given their ordinary meaning. In that case, itself, this Court has referred to the `Principles of Statutory Interpretation’ by Justice G.P. Singh wherein it has been stated that the Judges can adopt a purposive interpretation if they can find in a statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament’s purpose or policy. Although ordinarily, an ordinary meaning cannot be departed from by the Judges in the light of their own views as to policy.

    Eligibility of a Judge of a High Court should not be construed in a pedantic manner. It in the context of a large number of decisions of this court including S.P. Gupta (supra) must also be held to include suitability of a person concerned. For the aforementioned purpose, the principles of purposive interpretation is required to be resorted to.

    Even in Sangeeta Singh v. Union of India and Others [(2005) 7 SCC 484] wherein also while dealing to principles of construction, it was clearly stated:

    “5. It is a well-settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements.”

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