SUBHASH SHARMA AND OTHERS versus UNION OF INDIA

Citation: [1990] SUPP. 2 S.C.R. 433 · Decided: 26-10-1990 · Supreme Court of India · Bench: RANGANATH MISRA · Disposal: Disposed off
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Judgment (excerpt)

.. 
SUBHASH SHARMA AND OTHERS 
v. 
UNION OF INDIA 
OCTOBER 26, 1990 
[RANGANATH MISHRA, CJ., M.N. VENKATACHALIAH 
AND M.M. PUNCHHI, JJ.) 
Constitution of India: Articles 32, 124 and 217-Appointment of 
Judges of High Courts and Supreme Court-"Consultation" with Chief 
Justice of India-Primacy of-Fixation of Judges strength-Justiciabi-
lity-Referred to Nine Judge Bench. 
In these petitions in the nature of public interest litigation under 
Article 32 of the Constitution, the relief asked for is one for mandamus 
to the Union of India to fill the vacancies of Judges in the Supreme 
Conrt and the several High Conrts of the country and ancillary orders 
or directions in regard to the relief of filling up of vacancies. 
In response to the rule, the Union of India, relying upon S. P. 
Gupta v. Union of India, [1982) 2 SCR 365, raised a preliminary objec-
tion as to the justiciability of the issue. The objection, however, was later 
withdrawn by the succeeding Attorney General who made a statement 
that it was the constitutional obligation of the Union of India to provide 
the sanctioned Judge strength in the superior courts and default, if any, 
was a matter of public interest, and the writ petitions requiring a direc-
tion to the Union of India to fill up the vacancies were maintainable. 
Disposing of the petitions, this Court, 
HELD: (1) The ratio in S.P. Gupta's case left the matter offIXing 
up of the Judge strength to the President of India under the constitu-
tional scheme, and the choice of Judges to the prescribed procedure, 
but once the sanctioned strength was determined it was the obligation of 
the Union of India to maintain the sanctioned strength in the superior 
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8 
c 
D 
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Courts. [437H; 438A) 
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(2) It is too late in the day to dispute the position that justice has 
to be administered through the courts and such administration would 
relate to social, economic and political aspects of justice. The Judiciary 
therefore becomes the most prominent and outstanding wing of the 
Constitutional System for fulfilling the mandate of the Constitution. 
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433 
A 
B 
c 
434 
SUPREME COURT REPORTS 
[1990) Supp. 2 S.C.R. 
For its sound functioning, it is necessary that there must be an efficient 
judicial system and one of the factors for providing the requisite effi-
ciency is ensuring adequate strength. [440E-F] 
(3) For the availability of the appropriate atmosphere where a 
Judge would be free to act according to his conscience it is necessary 
that he should not be over burdened with pressure of work which he 
finds it physically impossible to undertake. This necessarily suggests 
that the judge strength should be adequate to the current requirement 
and must remain under constant review in order that commensurate 
Judge strength may be provided. [441F-G] 
Brqdley v. Fisher, 80 US 335 1871, ref~.rred to. 
( 4) It is a matter for immediate attention of all concerned-and of 
Government in particular-that the Administration of Justice is made a 
plan subject and given apfJropriate attention. [444C] 
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(S) Backlog in Courts has become a national problem. The ad-
judicatory process is being blamed for not equalling itself to the chal-
lenge of the times. There is a general complaint that· the judicial 
system is on the verge of collapse. It is, therefore, the obligation of 
the constitutional process to keep the system appropriately manned. 
There is no justification for the sluggish move in such an important 
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matter. [447C-D] 
(6) If in a given case the Chief Justice of the High Court has 
recommended and the name has been considered by the Chief Minister 
and duly processed through the Governor so as to reach the hands of the 
Chief Justice of India through the Ministry of Justice and the Chief 
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Justice of India as the highest judicial authority in the country, on due 
application of his mind, has given finality to the process at his level, 
there cannot ordinarily be any justification for reopening the matter 
merely because there has been a change in the personal of the Chief 
Justice or the Chief Minister of the State concerned. This has to be the 
role and the policy adopted by the Union of India should immediately be 
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given up. [4488-D] 
· 
(7) In the functioning of public offices there is and should be 
continuity of process and action and all objective decisions taken cannot 
be transformed into subjective issues. That being the position, recom-. 
mendations imalised by the Chief Justice of In
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