- (1.) These are applications under Article 32 of the Constitution. The first petition is by an advocate practising in this Court; the second by the Supreme Court Advocates on Record Association and the last by the Honorary Secretary of the Bombay Bar Association. These applications are in the nature of public interest litigation. The relief asked for is one for mandamus to the Union of India to fill up the vacancies of Judges in the Supreme Court and the several High Courts of the country and ancillary orders or directions in regard to the same. The petition from Bombay is confined to the relief of filling up of vacancies in the Bombay High Court. Since common pleas were advanced and the relief sought was of similar nature, these applications have been clubbed together heard from time to time.
(2.) In response to the rule, the Union of India took the stand through the Attorney General that the petitions were not 'maintainable and the filling up of the vacancies in the superior courts was not a justiciable matter. Reliance was placed on the decision of this Court in the case of S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149). The objection raised by the learned Attorney General was overruled by the Court by drawing a distinction between fixing the Judges strength in the Courts or selection of Judges on one side and the filling up of vacaifcles on the basis of sanctioned strength on the other. This Court as an interim measure took the view that while the ratio in S. P. Gupta's case left the matter of fixing up of the Judge strength to the President of India under the constitutional scheme, and the choice of Judges to the prescribed procedure, once the sanctioned strength was determined it was the obligation of the Union of India to maintain the sanctioned strength in the superior Courts and these cases were allowed to proceed.
(3.) Mr. Soli Sorabjee, the succeeding Attorney General, withdrew the objection regarding this Court'sjurisdiction and made a statement that he was of the view that it was the constitutional obligation of the Union of India to provide the sanctioned Judge strength in the superior courts and the default, if any, was a matter of public interest and the writ petitions requiring a direction to the Union of India to fill up the vacancies were maintainable. I;