DR.

SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERISTY

LUCKNOW

CASE DIARY ON

A CIVIL AND CRIMINAL CASE

(UNDER THE SUPERVISION OF Dr. GULAB RAI)

CASE DIARY ON ONE CIVIL AND CRIMINAL CASE

SUBMITTED TO: : SUBMITTED BY

Dr. GULAB RAI MONU

FACULTY OF LAW R. NO. 143070028

D.S.M.N.R.U B.COM.LLB (H)

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Equivalent Citation: AIR 1994 SC 868

Case No.:Writ Petition (civil)1303 of 1987

Petitioner:

Supreme Court Advocates-on-Record Association and another

Respondent:

Union of India

Date of Judgement: 06/10/1993

Bench: Ratnavel Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal,

G.N. Ray, Dr. A.S. Anand, S.P. Bharucha

Background

Supreme Court of India had earlier in Union of India v. Sakalchand Seth[1] defined the scope of the
word “consultation” which the President had to have to appoint Judges in Supreme Court & High
Courts. The court held that for an effective consultation all the constitutional functionaries must have
for its consideration full and identical facts on the basis of which they would be able to take a decision.
But the court added a rider that the president will have scope to differ from the CJI and take a contrary
view. The spirit of the judgment was that “Consultation” does not mean “Concurrence”. The effect of
this judgment was that judiciary gave the executive an upper hand in appointing judges thereby causing
a violation of Independence of Judiciary which in itself is a basic structure of the Constitution.
However, the court didn’t stop there and again in S.P. Gupta v. Union of India[2] affirmed the decision
of Sakalchand Seth sealing the fate of Independence of Judiciary in India.

The effect of these decisions was that the appointment of judges in higher judiciary was now on the
mercy of the executive branch of the government. This paved the way for a greater political influence

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and favoritism in the appointment process. The cost of this regressive and bad decision was less
independence for judiciary in deciding critical issues before them. By the virtue of Sakalchand &
S.P.Gupta the judges in higher judiciary were on total mercy of the executives which often resulted in
Conflict of Interest as it is the executive branch which has the power to appoint as well as a huge say
in removal process. The entire system of justice delivery system was vitiated with these judgments.

These two judgments were bound to have an adverse impact on the impartiality and independence of
Judiciary that is often the last hope of the citizens in this democratic nation of India. However,
Bhagwati J. in his judgment suggested establishment of a judicial committee for recommending names
of judges for appointment in higher judiciary. In his speculation it would be inappropriate to entrust
power in a branch however high the office may be.

The following case i.e 2nd Judges was filed as a writ in the apex court for filling up the vacancies in the
higher Judiciary. This writ petition brought into reconsideration the controversial judgment of S.P
Gupta also known asJudges Transfer case.

Issue

Scope of the word “Consultation” in Article 124(2) of Constitution of India.

Petitioner’s Arguments

1. Article 50 of the Constitution urges the institutions to separate the executive from the
functioning of Judiciary as maximum as possible. Therefore, such upper hand in
appointment procedure vested in the Executive is a clear violation of Article 50.
2. The upper hand that has been granted by the impugned 1982 decision has made the
executive “lord of the lords”and this great power has resulted in them becoming “overlord”.
The interference of executive in judiciary’s domain must be minimized therefore; CJI’s
recommendation shall not be ignored.
3. This power of defiance with the President has made the CJI a passive body instead of being
an active participant in the appointment procedure. This passive and uninvolved status of
CJI has proved to be counter-productive to the independence of judiciary.

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 4. The basic feature of Independence of Judiciary is strangulated in the clutches of this
executive superiority and this will result in erosion of a free and fair administration of
justice.
5. Therefore, to save the basic feature of Independence of Judiciary the court through its
decision must construe the word “Consultation” as equivalent to “Concurrence”.

Respondent’s Arguments

The president being the executive head of the nation is bestowed by the Constitution authority to
appoint judges in Supreme Court & High Court on the aid & advice of Cabinet Ministers as specifically
provided in Articles 124 & 214. The Chief Justice of India is a mere consulter in the process and it is
the executive which possesses greatest authority. The executive differing from the views of CJI is no
impairment of Independence of Judiciary. The Constitution itself has granted greater autonomy to the
President in the appointing process. The only role of CJI is that he has to make the President aware of
the facts unknown to him regarding the considered candidate. The CJI’s role ends at this stage and then
it is upon the President to finally appoint whoever he deems fit to hold the office.

Independence of Judiciary is not violated due to the following:

1. The power to appoint the respective judges has been given by the Constitution to the
President and during appointment the judge owes his faith & allegiance to the constitution
and not to the appointing authority.
2. The tenure of the office of these judges are fixed by the Constitution and no branch either
Parliament or Executive has the competence to remove the judge from his office[3] except
in case of impeachment.[4]
3. The perks, allowances and salary of these judges are fixed by the Constitution and the
Parliament cannot even by a unanimous bill reduce the quantum of such salary, perks &
allowances.[5]
4. The conduct of a judge of SC or HC can never be discussed in a session of Parliament due
to the privileges granted by the Constitution.[6]
5. Both of the higher judicial courts are Courts of Record i.e. they have the power to punish
the ones who disrespect their decision.[7]

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 6. Both the higher judicial courts are given the power to decide the constitutionality of actions
of the governments of the state as well as union government.[8]

Therefore, by virtue of these Constitutional provisions the Parliament or Executive can neither impair
Independence of Judiciary which is basic structure of Constitution nor can they make an amendment
in these constitutional provisions since they constitute to be components of Independence of Judiciary.

Judgment

The 9 judge bench delivered the much awaited judgment on October 6, 1993. The judgment was
delivered with 7:2 majority overruled its earlier decision in S.P. Gupta and held that in issues regarding
the appointment of judges in higher judiciary the opinion of CJI must be given primacy in order to
minimize the executive influence in the Judicial functions. The majority judgment was delivered by
Justice Verma on behalf of Ray, Anand, Dayal & Bharucjajj. while Kuldeep Singh and S.R. Pandian
jj. delivered separate but concurring opinion and Ahmadi & Punchhijj. giving the minority opinion.

The court overruling its decision of S.P. Gupta held that the largest importance must be given to the
recommendation of the Chief Justice of India formed after taking into consideration the opinion of 2
senior most judges of the Supreme Court. Therefore, this judgment saving the spirit of article 50 of the
Constitution minimized the executive influence in judicial appointments. Further, the judgment thereby
reduced the political influence and personal favoritism from the appointment procedure.

The court ruled that the appointment shall be made by giving primacy to the opinion of Chief Justice
of India and the executive branch of the government shall only play the role of checks and balances on
the judges’ exercise of power. Thus through this judgment the court corrected the mistakes committed
in the past by reducing executive influence in the appointment process and the elimination of the
political influence, biasness and favoritism. The court also expanded the scope of the word
“Consultation” by construing it in equivalent terms with “Concurrence”.

The minority opinion by Ahmadi & Punchhi JJ. was that if as per majority’s view the primacy is to be
given to the CJI then as a result of this upper hand the role of other constitutional functionaries
discussed in the relevant provision of appointment procedure would become minimal and close to
negligible. This erosion of power will result in an injury irreversible to the basic facet of Constitution

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i.e. Separation of Power. In their opinion if this would be the case then there is way too much levy on
the part of the Judiciary and this inequality in the panel would often result in biasness, conflict and
finally to chaos.

The majority along with delivering this landmark judgment also provided guidelines which must be
followed in future in the procedure of appointment of judges in higher judiciary. The majority bench
provided that in case there is a need of appointment of judge of apex court the initiation of proposal
has to be from CJI and in matters of High Court through CJ of the respective High Court. The same
way must be adopted for the transfer however, transfer of CJ of HC must be on the initiation of CJI.
Reiterating the ratio of the case the court held that no appointment shall be made unless it is in
conformity with the opinion of CJI. For the appointment of CJI the senior most judge of the apex court
must be appointed as the next CJI.

The guidelines framed by the court are as follows:

1. The CJI’s opinion must be given primacy but he must consult with his two senior-most
colleagues.
2. All the constitutional functionaries involved in the appointment process must participate
harmoniously.
3. Transfer of Judges cannot be challenged in the courts.

Critical Analysis

The decision of this case is a very important and sound decision in the sense that the majority overruled
its earlier decision which gave the power of final word to the government. The majority now gave up
a much more liberal and flexible interpretation of the word “Consultation” which earlier meant an
opinion with no binding value. This position was changed by the judgment as now “Consultation” was
meant as “Concurrence” and therefore granted it binding value. By the virtue of this decision the
government cannot ignore the opinion and recommendation of the Chief Justice of India thereby
reducing executive influence, political biasness, favoritism and influence. The decision upheld the
validity of Article 50 which demanded the state to minimize the executive influence from the judicial
works.

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The majority bench shifting its stance on the matter considered that in matters of selection of the best
suitable candidate for the office the CJI has the most extensive and thorough knowledge and that should
be respected. The decision sought to strengthen the foundational features and basic structure of the
constitution. The court has further to balance the powers of the panel had recommended that the process
should be treated as one with mutual participation by taking into consideration the opinion of each and
every consultee and giving the greatest weight to the CJI. In this way the powers of all the member
participants would be balanced and there would be no misuse of authority.

The law laid down in this decision is one of great importance and therefore must be cherished. This
decision minimized the political influence that the judiciary was suffering since independence. It also
checked the government’s practice to appoint a judge bypassing the opinion of CJI.

However, in 2008 Justice Verma in a speech said that judicial appointments have taken shape of
judicial disappointment. In an interview he was asked ti further elucidate his point. To this query he
said that his opinion in this case was seriously misunderstood as well as misused. He said that in his
judgment he meant that the process should be one where each member participates equally. What he
meant was that the appointment process must be joint and participatory which nowadays has become
redundant and one sided therefore, a rethink is required.[9]

Therefore, considering Justice Verma’s majority opinion in the judgment vis-à-vis his opinion in 2008
there seems a flaw in the judgment which must be resolved to reduce the friction between the
constitutional authorities.

Conclusion

The overall effect of the decision was great as in history quite a many times government in order to
influence a decision played with the appointments as they were playing a game of Chess. The decision
finally stored the power of appointment in the hands of CJI to minimize and control the executive
influence in judicial appointments. Therefore, due to this decision to a great extent the political
influence, biasness and favoritism was reduced in judicial matters which boosted the foundational and
basic structure of constitution i.e. Independence of Judiciary.

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The majority now gave up a much more liberal and flexible interpretation of the word “Consultation”
which earlier meant an opinion with no binding value. This position was changed by the judgment as
now “Consultation” was meant as “Concurrence” and therefore granted it binding value. Therefore,
now the government cannot bypass the opinion of CJI as it used to do in the past to satisfy their political
exigencies.

However, taking in regard Justice Verma’s recent comments on the interpretation of his decision gives
chills as there has been a lot of corruption in the higher judicial branch. Taking in regard his opinion
there is surely a need to rethink the matter and to come up with a stringent solution.

Aftermath of 2nd Judges Case

The same question was again brought into question in re Presidential Reference[10] where again a
nine – judges bench affirmed the decision laid down in 2nd judges case and further added that sole
opinion of CJI is not maintainable and he must consult with a collegium of four senior-most judges of
Supreme Court. The court increased the number of judges with who CJI must consult before arriving
at a conclusion. Such decision can only be challenged on the ground that the guidelines framed by the
1993 & 1999 judgment have not been followed.

Then in 2014 the newly elected BJP Government brought 99th Constitutional (Amendment) Act, 2014
amending the Articles 124(2), 127 & 128 and also inserted Article 124 A,B&C. The combined effect
of this amendment was the establishment of National Judicial Appointment Commission who would
have the sole power in matters of appointment of judges in higher judiciary. The commission was made
up of the following members

1. CJI (Chairperson ex-officio)

2. 2 senior-most judges of the supreme court (ex-officio members)
3. The Union Minister of Law & Justice
4. Two eminent personality (nominated by a committee consisting of PM, CJI &LoP )

This 99th constitutional amendment was further challenged before a five judge (Kehar, Lokur, Goel,
Joseph & Chelameshwar) bench in Supreme Court Advocate-on-Record Association v. Union of
India[11]on the grounds that the said amendment is violative of Independence of Judiciary which is a

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basic feature of Constitution. Therefore, the majority bench stuck down the 99 th Constitutional
Amendment as it was violative of Basic Structure. However, Justice Chelameshwar dissented with the
majority and upheld the validity of the impugned amendment.

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Amjad Khan vs The State on 20 March, 1952

Equivalent citations: 1952 AIR 165, 1952 SCR 567

Author: V Bose
Bench: Bose, Vivian

PETITIONER:
AMJAD KHAN

Vs.

RESPONDENT:
THE STATE

DATE OF JUDGMENT:
20/03/1952

BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID

HEADNOTE:
A communal riot broke out in a town between some Sindhi refugees and the local Muslims.
The trouble started in a locality where most of the shopkeepers were Sindhis. The goods in the
Muslim shops there were scattered and some Muslims lost their lives. Alarm spread to another
locality where the shops of appellant and his brother (both Muslims) were situated and the people
there, including the appellant, started closing their shops. The family of the appellant'sbrother
had taken shelter in the appellant's portion of the building through a hole in the wall between the
two portions of the building in which the two shops were situated. A mob collected there and
approached the appellant's locality and looted his brother's shop and began to beat the doors of his

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shop with lathis. The appellant fired two shots from his gun which caused the death of one
Sindhi and injured three other Sindhis. The question for determination was whether the appellant
acted in his right of private defence: Held, that the facts of the case afforded a right of private
defence to the appellant under the provisions of the Indian Penal Code. The circumstances in
which he was placed were amply sufficient to give him a right of private defence of the body even
to the extent of causing death as the appellant had no time to have recourse to the authorities
and has reasonable grounds for apprehending that either death or grievous hurt would be caused
either to himself or to his family. These things could not be weighed in too fine a set of
scales or "in golden scales."

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of 1951. Appeal by SpeciaI

Leave from the Judgment and Order dated the 26th September, 1950, of the High Court of
Judicature of Nagpur (Herneon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of
1950 arising out of Judg- ment dated the 2nd August, 1950, of the Court of Sessions Judge,
Jabalpur, in Sessions Trial No. 32 of 1950.

S.P. Sinha and M.Y. Sharif, Nuruddin Ahmad and (Shaukat Hussain, with them) for the appellant.

Gopal Singh for the respondent.

1952. March 20. The Judgment of the court was delivered by BOSE J.--The main question in this
case is whether there is a right of private defence. Most of the facts are not in dispute.

A communal' riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees
resident in the town and the local Muslims. The trouble started in the locality known as Zanda
Bazar or Zanda Chowk. Police Constable Bharat Singh, P.W. 17, who made the First Information
Re- port, said that most of the shopkeepers in Zanda Bazar are Sindhis. He stated that when he was
to1d that trouble had broken out there he proceeded to the spot and found that the goods in the
Muslim shops in that locality were scattered. It is also in evidence that some Muslims lost their
lives. From this place he went on to Subash Chowk, the locality in which the appellant's shop is
situate. It lies to the West of Zanda Bazar. He states that when he got there he found a "crowd"

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there but not a "mob". He admitted that he had said in the First Information Report that a gun was
fired a minute after he had reached the spot and he said that what he had stated in the First
Information Report was true. It is not disputed that this shot was fired by the appellant, as also a
second shot, and that that caused the death of one man (a Sindhi) and injured three others, also
Sindhis.

The map, Ex. D-4, shows that the shops of the appellant and his brother Zahid Khan run into each
other and form two sides of a rectangle, the appellant's house facing north and the brother's house
facing east. Each shop opens out on to a road.

It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant's
locality and the people there, including the appellant, started closing their shops.

The appellant's version is that the mob approached his locality and broke into the portion of the
building facing east in which his brother's shop is situate and looted it. The High Court holds that
this is proved and holds further that this preceded the firing by the appellant. There is a hole in the
wall between the two portions of the building in which these two shops are situate and the High
Court holds that Zahid's family got into the appel- lant's portion of the building through this hole
and took refuge there. The High Court also holds that the appel- lant's mother then told the
appellant that the crowd had burst into his (appellant's) shop and was looting it. The learned Judges
state that what he said was not quite true because all that the crowd did was to beat the door of the
appellant's shop with lathis as they were passing but had not broken into the shop. But they accept
the fact that the crowd was beating the doors of the appellant's shop with their lathis.

In our opinion, the facts found by the High Court are sufficient to afford a right of private defence.
Under section 97 of the indian Penal Code the right extends not only to the defence of one's own
body against any offence affecting the human body but also to defending the body of any other
person. The right also embraces the protection of property, whether one's own or another person's,
against certain specified offences, namely theft, robbery, mischief and criminal trespass. The
limitations on this right and its scope are set out in the sections which follow. For one thing, the
right does not arise if there is time to have recourse to the protection of the public authorities, and
for another, it does not extend to the infliction of more harm than is necessary for the purpose of

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defence. Another limitation is that when death is caused the person exercising the right must be
under reason- able apprehension of death, or grievous hurt, to himself or to those whom he is
protecting; and in the case of property, the danger to it must be of the kinds specified in section

103. The scope of the right is further explained in sec- tions 102 and 105 of the Indian Penal Code.
Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions. Both
Courts appear to be under the impression that actual looting of the appel- lant's shop was necessary
before the right could arise. In that they are wrong. Under section 102 the right of private defence
of the body commences--

"As soon as a reasonable apprehension of the danger to the body arises from an attempt or threat
to commit the offence though the offence may not have been committed."

Examining the provisions we have set out above, it is evident that the appellant had no time to
have recourse to the authorities. The mob or crowd had already broken into one part of the building
and was actually beating on the doors of the other part. It is also evident that the appel- lant had
reasonable grounds for apprehending that either death or grievous hurt would be caused either to
himself or his family learned Sessions Judge has eloquently drawn attention to the lamentable
consequences of communal frenzy in India and in Katni in particular, and he refers to the
indiscriminate looting of Muslim shops in that town. So also the High Court holds that-

" Looking to the circumstances which had existed in the country before and the fact that the trouble
was between the refugees and the local Muslims it cannot be said that there would be no danger to
the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented
it. The apprehension would undoubtedly be reason- able."

And we know that Muslim shops had already been broken into and looted and Muslims killed in
therioting at Zanda Chowk which preceded this, in our opinion, the High Court was wrong in
thinking that the appellant had to wait until the mob actually broke into his shop and entered it.
They have emphasised this in another part of their judgment also where they say that the shot was
fired- " when there was no looting at the shop and thus no right of private defence."

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It was enough that the mob had actually broken into another part of the house and looted it, that
the woman and children of his family fled to the appellant for protection in terror of their lives and
that the mob was actually beating at his own doors with their lathis and that Muslim shops had
already been looted and Muslims killed in the adjoining locality. It was impossible for him to know
whether his shop would or would not suffer the same fate if he waited, and on the findings it was
reasonable for him to apprehend death or grievous hurt to himself and his family once they broke
in, for he would then have had the right to protest and indeed would have been bound to do what
he could to protect his family. The threat to break in was implicit in the conduct of the mob and
with it the threat to kill or cause grievous hurt to the inmates; indeed the High Court Judges
themselves hold that his own shop was menaced. The circumstances in which he was placed were
amply sufficient to give him a right of private defence of the body even to the extent of causing
death. These things cannot be weighed in too fine a set of scales or, as some learned Judges have
expressed it, in golden scales.

We have next to see whether the appellant used more force than was necessary, and here also we
cannot use golden scales. He was entitled to cause death and he did not kill more than one man.
He fired only two shots and, as the learned High Court Judges observe, he obviously aimed low.
The High Court holds the mob had moved up to his locality When he fired the shots, so the looting
and the beating on the doors were not the isolated acts of a few scattered individuals. It was the
mob that was doing it and in the High Court's words, "The very fact that in the town of Katni two
shots should have struck four Sindhis and none else shows that the rival community was on the
move in that area."

In our opinion, the appellant did not use more force than was necessary. Indeed, the firing, far from
acting as a deterrent, spurred them on and they ransacked and looted the place.

We have confined our attention to the right of private defence of the person though in this case the
question about the defence of property happens to be bound up with it. The appeal is allowed. The
convictions and sentences are set aside and the appellant will be released.

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