JUDGMENT :

J.S. Verma, J.

(for himself and on behalf of Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand & S.P. Bharucha, JJ.) :

1. By and Order dated October 26, 1990 passed in Subhash Sharma and Ors. and Anr. Union of India (1990) 2 S.C.R. 433 and the matters connected therewith, the papers of Writ petition No. 1303 of 1987 Supreme Court Advocates-on-Record Association and Anr. v. Union Of India were directed to be placed before the learned Chief Justice of India for constituting a Bench of nine Judges to examine the two question referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation of Judge strength. That Order was made since the referring Bench was of the opinion, that the correctness of the majority view in S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. (1982) 2 SCR 365 : ( AIR 1982 SC 149 ), required reconsideration by a larger Bench. This is how these questions arise for decision by this Bench.

2. The context in which the aforesaid two questions have been referred for decision by this Bench requires that they be considered in all the facts as were argued before us by all, to give a comprehensive answers to the problem. It is, therefore, appropriate to reformulate the two questions as under:

(1) Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts.

3. Able assistance was afforded to us by several eminent counsel who appeared to canvass the different viewpoints in order to focus attention on every aspect of these questions. Sarvashri F.S. Nariman, Kapil Sibal, Ram Jethmalani, P.P. Rao and Shanti Bhushan argued for reconsideration of the majority opinion in S.P. Gupta, contending that the role of the Chief Justice of India in the matter of appointments to the Supreme Court and the High Courts and transfers of the High Court Judges and Chief Justices has primacy, with the executive having the role of merely making the appointments and transfers in accordance with the opinion of the Chief Justice of India. This, in substance, was the common theme of their address. However, there were minor variations between them relating to the extent of exclusion of the executive's role. One point of view canvassed was that the primacy of the Chief Justice of India is in all matters; another point of view was that in an exceptional case the executive may not make an appointment recommended by the Chief Justice of India if, for strong reasons disclosed to the Chief Justice of India, that appointment was considered to be unsuitable. It was also contended by them that the matter of fixation of the Judge-strength under Article 216 is justiciable, there being some difference between them about the extent to which it is justiciable. Shri S.P. Gupta, petitioner-in-person in Writ Petition No. 156 of 1993, also argued that the majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365 : ( AIR 1982 SC 149 ), is incorrect.

4. Shri K. Parasaran by and large argued in favour of affirmance of the majority opinion in S.P. Gupta, contending that there is no occasion to take a different view, more so when, in spite of that decision, in the actual working, the Government of India gives the greatest weight to the opinion of the Chief Justice of India; and, except on rare occasions, appointments have been made only in accordance with the opinion of the Chief Justice of India. Shri Parasaran submitted that the Constituent Assembly Debates show that the plea for primacy of Chief Justice of India, or the requirement of his concurrence in making the appointment, was considered and expressly discarded while drafting