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TMI Blog1998 (10) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... rt to another [article 222(1)], in the case of Supreme Court Advocates-on-Record Association and Anr. v. Union of India. 3. AND WHEREAS doubts have arisen about the interpretation of the law laid down by the Supreme Court and it is in public interest that the said doubts relating to the appointment and transfer of Judges be resolved; 4. AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon; 5. NOW, THEREFORE, in exercise of the powers conferred upon me by Clause (1) of article 143 if the Constitution of India, I, K.R. Narayanan, President of India, hereby refer the following questions to the Supreme Court of India for consideration and to report its opinion thereon, namely:- (1) whether the expression consultation with the Chief Justice of India in articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia . 6. The decision mentioned in the Reference, in Supreme Court Advocates-on-Record Association and Anr. v. Union of India, [1993] Supp 2 SCR 659, (now referred to as the second Judges Case ) was rendered by a Bench of nine learned Judges. It examined these issues : (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. (Page 739) The issues were required to be examined because a smaller Bench was of the opinion that the correctness of the majority view in the case of S.P. Gupta and Ors. v. Union of India and Ors., , ( the Judges case ) required reconsideration by a larger Bench. 7. Five judgments were delivered in the second Judges case. Verma, J. spoke for himself and four learned Judges. Pandian, J. and Kuldip Singh, J. wrote individual judgments supporting the majority view. Ahmadi, J. dissented, adopting, broadly, the reasoning that had found favour in the Judges' case. Punchhi, J. took the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least ten years an advocate of a High Court or of two or more such Courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. Explanation I. - In this clause 'High Court' means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India. Explanation II. - In computing for the purpose of this clause the period during which a person has been an advocate any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Union or a State, requiring special knowledge of law; (aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate; (b) in computing the period during which a person has held judicial office in the territory of India or been, an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be. (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. 222. Transfer of a Judge from one High Court to another. (1) The president may, after consultation with the Chief Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, in the case of the High Courts, with the Chief Justice of the High Court, was introduced because of the realisation that the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge; and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, since the provisions for securing his independence after appointment were alone not sufficient for an independent judiciary. At the same time, the phraseology used indicated that giving absolute discretion or the power of veto to the Chief Justice of India as an individual in the matter of appointments was not considered desirable, so that there should remain some power with the executive to be exercised as a check, whenever necessary. The indication is, that in the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight; the selection should be made as a result of a participatory consultative process in which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility also it indicates the primary responsibility of the Chief Justice of India, it stands to reason that the actual practice being in conformity with the constitutional scheme, should also be accorded legal sanction by permissible constitutional interpretation. This reason given by the majority in S.P. GUPTA for its view, that the executive has primacy, does not withstand scrutiny, and is also not in accord with the existing practice and perception even of the executive. However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion. Providing for the role of the judiciary as well as the executive in the integrated process of appointment merely indicated that it is a participatory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consulters the decision is reached by consensus, and no question arises of giving primacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the view of the Chief Justice of India' which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the view of some other judges who are traditionally associated with this function. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from the reference to the office of the Chief Justice of India, which has been named for achieving this object in a pragmatic manner. The opinion of the judiciary 'symbolised by the view of the Chief Justice of India', and it is this opinion which has primacy. The rule of law envisages the area of discretion to be the mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the senior most Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court or otherwise. Article 124(2) is an indication that ascertainment of the view of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary. In matters relating to appointments in the High Courts the Chief Justice of India is expected to take into accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imes, consulters, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consulters is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter. It is only to this limited extent of non-appointment of a recommended of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommended except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials. (7) Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jority judgment stated : Transfers (1) In the formation of his opinion, the Chief Justice of India, in the case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India. The personal factors relating to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice. Justiciability Appointments and Transfers The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decisions, which is ordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. it is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court. The likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented. (4) Due consideration of every legitimate expectation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' and formed in the manner indicated, has primacy. (4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended 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. (6) The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. (7) Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges case is that the opinion given by the Chief Justice of India in this behalf has to be formed taking into account the views of the two seniormost Judges of the Supreme Court. The Chief Justice of India is also expected to ascertain the views of the seniormost Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court, or otherwise. Article 124(2) is an indication that ascertainment of the views of some other Judges of the Supreme Court is requisite . 17. It was urged by the learned Attorney General as also by learned counsel that the Chief Justice of India needs to consult a larger number of Judges of the Supreme Court before he recommends an appointment to the Supreme Court. Attention was drawn to the fact that at the time of the latest selection of Judges appointed to the Supreme Court, the then Chief Justice of India had constituted a panel of himself and five of the then senior most puisne Judges. It was submitted that this precedent should be treated as convention and institutionalised. 18. We think it necessary to make clear at the outset the dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sne Judges of the Supreme Court. 20. Ordinarily, one of the four senior most puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four senior most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection. 21. It is not practicable to include in the collegiums the senior most Judge of the Supreme Court who comes from the same High Court as the person to be recommended, unless, of course he is a part of the collegium by virtue of being one of the four senior most puisne Judges, because, as experience shows, it is normally not one vacancy that has to be filled up but a number thereof. The prospective candidates to fill such multiple vacancies would come from a number of High Courts. It would, therefore, be necessary to consult the senior most Judge's from all those High Courts. All these judges cannot conveniently be included in the collegium. Secondly, the composition of the collegium cannot vary depending upon where the prospective app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the second Judges case has said that if the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible . This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have lit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation. 28. The majority judgment in the second Judges case said that inter se, seniority amongst Judges in their High Court and their combined seniority on all India basis should be kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court . It also said that the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority must be duly considered. The statement made thereafter is very important; it is : Obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India for appointment to the Supreme Court. 29. Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the supreme Court. 30. Where, therefore, there is outstanding merit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court . The Chief Justice of India should, therefore, form his opinion in regard to a person to be recommended for appointment to a High Court in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his senior most puisne Judges. They would in making their decision take into account the opinion of the Chief Justice of the High Court, which would be entitled to the greatest weight , the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court bench who are conversant with the affairs of the concerned High Court . Into that last category would fall Judges of the Supreme Court who were puisne Judges of that High Court or Chief Justices thereof, and it is of no consequence that the High Court is not their parent High Court and they were transferred there. The objective being to gain reliable information about the proposed appointee, such Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review is available. Judicial review is also available when the appointee is found to lack eligibility. 36. The majority judgment in the second Judges case dealt with the question of the transfer of a puisne Judge of one High Court as a puisne Judge of another High Court. It said, In the formation of his opinion, the Chief Justice of India, in the case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief justice of India. In regard to the justiciability of such transfers, it said, Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias....The judicial element being decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. In the same context there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no doubt that the Chief Justice of India, acting on the institutional advice available to him, was the surest and safest bet for preservation of the independence of judiciary. The second Judges case did not exclude judicial review but limited the area of justiciability to the constitutional requirement of the recommendation of the Chief Justice of India for exercise of power under Article 222 by the President of India. The power of transfer was to be exercised by the highest constitutional functionaries in the country in the manner indicated, which provided several inbuilt checks against the likelihood of arbitrariness or bias. The need for restricting the standing to sue in such a matter to the affected Judge alone had been reiterated in the second Judges case. The transfer of a High Court Judge was justiciable only on the ground indicated in the second Judges case and only at the instance of the transferred Judge himself and no one else. This was necessary to prevent any transferred Judge being exposed to any litigation involving him except when he chose to resort to it himself in the available limited area of justiciability. When it was said in the second Judges case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each of the four senior most puisne Judges should be conveyed to the Government of India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner aforestated, it is not decisive and does not bind the Government of India. 41. Wide based decision making such as this eliminates the possibility of bias or arbitrariness. By reason of such elimination the remedy of judicial review can legitimately be confined to a case where the transfer has been made or recommended without obtaining views and reaching the decision in the manner aforestated. 42. What applies to the transfer of a puisne Judge of a High Court applies a well to the transfer of the Chief Justice of a High Court as Chief Justice of another High Court except that, in this case, only the views of one or more knowledgeable Supreme Court Judges need to be taken into account. 43. The majority judgment in the second Judges case requires that the personal factors relating to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court. 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. 5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer. 6. Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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