IN THE SUPREME COURT OF INDIA
VS
CIVIL ADVISORY JURISDICTION
Date of Opinion : October 28, 1998
Bench :
S.P.Bharucha, M.K.Mukherjee, S.B.Majmudar, Sujata V.Manohar,
G.T.Nanavati, S.Saghir Ahmad, K.Venkateswami, B.N.Kirpal,
G.B.Pattanaik
SPECIAL REFERENCE NO.1 OF 1998
UNDER ARTICLE 143(1) OF THE CONSTITUTION OF INDIA
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OPINION
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S.P.BHARUCHA, J.
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Article 143 of the Constitution of India confers
upon the President of India the power to refer to this Court
for its opinion questions of law or fact which have arisen
or are likely to arise and which are of such a nature and of
such public importance that is expedient to obtain such
opinion. In exercise of this power, the President of India
has on 23rd July, 1998 made the present reference, which is
quoted in extenso:
"WHEREAS the Supreme Court of India has laid down
principles and prescribed procedural norms in regard to the
appointment of Judges of the Supreme Court [article 124(2)
of the Constitution of India], Chief Justice and Judges of
the High Court [article 217(1)], and transfer of Judges from
one High Court to another [article 222(1)], in the case of
Supreme Court Advocates-on-Record Association and another
vs. Union of India reported in 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;
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 despondent to obtain the opinion of
the Supreme Court of India thereon;
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 within the meaning of the said
articles;
(2) whether the transfer of judges is judicially
reviewable in the light of the observation of the
Supreme Court in the aforesaid judgement that "such
transfer is not justiciable on any ground" and its
further observation that limited judicial review is
available in matters of transfer, and the extent and
scope of judicial review;
(3) whether article 124(2) as interpreted in the
said judgement requires the Chief Justice of India
to consult only the two seniormost Judges or whether
there should be wider consultation according to past
practice;
(4) whether the Chief Justice of India is entitled
to act solely in his individual capacity, without
consultation with other Judges of the Supreme Court
in respect of all materials and information conveyed
by the Government of India for non-appointment of a
judge recommended for appointment;
(5) whether 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 refers to only those Judges who
have that High Court as a parent High Court and
excludes Judges who had occupied the office of a
Judge or Chief Justice of that Court on transfer
from their parent or any other Court;
(6) whether in light of the legitimate expectations
os senior Judges of the High Court in regard to
their appointment to the Supreme Court referred to
in the said judgement, the 'strong cogent reason'
required to justify the departure from the order of
the seniority has to be recorded in respect of each
such senior Judge, who is overlooked, while making
recommendation of a Judge junior to him or her;
(7) whether the government is not entitled to
require that the opinions of the other consulted
Judges be in writing in accordance with the
aforesaid Supreme Court judgement and that the same
be transmitted to the Government of India by the
Chief Justice of India along with his views;
(8) whether the Chief Justice of India is not
obliged to comply with the norms and the requirement
of the consultation process in making his
recommendation to the Government of India;
(9) whether any recommendations made by the Chief
Justice of India without complying with the norms
and consultation process are binding upon the
Government of India?
New Delhi Narayanan K.R.
Dated: 23.7.1998 President of India.
The decision mentioned in the Reference, in Supreme
court Advocates-on-Record Association and Anr. vs. Union
of India, 1993 Supp (2) SCR 659, (now referred to as "the
second Judges Case") was rendered by a Bench of nine 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 & Ors. Vs. UNION OF
INDIA & Ors. 1982(2) SCR 365, ("the Judges case") required
reconsideration by a larger Bench.
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 that the Chief
Justice of India had primacy and that he was entitled "to
consult any number of Judges on the particular proposal. It
is equally within his right not to consult anyone".
The questions in the Presidential reference relate,
broadly, to three aspects:
(1) consultation between the Chief Justice of India and
his brothers Judges in the matter of appointments of Supreme
Court and high Court Judges and transfers of the latter;
question nos. 1,3,4,5,7,8 & 9;
(2) judicial review of transfers of Judges : question
no.2; and
(3) the relevance of seniority in making appointments to
the Supreme Court: question no.6.
Before quoting what was said in the majority
judgment in the second Judges case on these aspects, it is
necessary to set out the provisions of
Articles 124, 216, 217 and 222 of the Constitution, dealing,
respectively, with the establishment and constitution of the
Supreme Court, the constitution of the High Courts, the
appointment and conditions of the office of a Judge of a
high Court and the transfer of a Judge from one High Court
to another.
"124. establishment and Constitution of Supreme
Court. - (1) There shall be a Supreme Court of India
consisting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not
more than seven other Judges.
(2) Every Judge of the Supreme Court shall be
appointed by the President by warrant under his hand
and seal after consultation with such of the Judges
of the Supreme Court and of the High Courts in the
States as the President may deem necessary for thee
purpose and shall hold office until he attains the
age of sixty five years:
Provided that in the case of appointment of
a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted:
Provided further that-
(a) a Judge may, by writing under his hand addressed
to the President, resign his office;
(b) a Judge may be removed from his office in the
manner provided in clause (4).
[(2A) The age of a Judge of the Supreme Court shall
be determined by such authority and in such manner
as Parliament may by law provide.]
(3) A person shall not be qualified for appointment
as a Judge of the Supreme Court unless he is a
citizen of India and
(a) has been for at least five years a Judge of a
High Court or of two or more such Courts in
succession; or
(b) has been for at 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 misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for
the presentation of an address and for the
investigation and proof of the misbehavior or
incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the
Supreme Court shall, before he enters upon his
office, make and subscribe before the President, or
some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the
purpose in the Third Schedule.
(7) No person who has held office as a Judge
of the Supreme Court shall plead or act in any court
or before any authority within the territory of
India.
216. Constitution of High Courts. - Every
high Court shall consist of a Chief Justice and such
other Judges as the President may from time to time
deem it necessary to appoint.
217. Appointment and conditions of the office of a
Judge of a High Court. - (1) Every Judge of a High
Court shall be appointed by the President by warrant
under his hand and seal after consultation with the
Chief Justice of India, the Governor of the State,
and, in the case of appointment of a Judge other
than the Chief Justice, the Chief Justice of the
High Court and shall hold office, in the case of an
additional or acting Judge, as provided in article
224, and in any other case, until he attains the age
of sixty-two years.
Provided that -
(a) a Judge may, by writing under his hand
addressed to the President, resign his office;
(b) a Judge may be removed from his office by
the President in the manner provided in clause (4)
of article 124 for the removal of a Judge of the
Supreme Court.
(c) the office of a Judge shall be vacated by his
being appointed by the President to be a Judge of
the Supreme Court or by his being transfered by the
President to any other High Court within the
territory of India.
(2) A person shall not be qualified for
appointment as a Judge of a High Court unless he is
a citizen of India and -
(a) has for at least ten years held a
judicial office in the territory of India; or
(b) has for at least ten years been an
advocate of a High Court or of two or more such
courts in succession;
Explanation - For the purposes of this
clause -
(a) in computing the period during which a
person has held judicial office in the territory of
India, there shall be included any period, after he
has held any judicial office, during which the
person has been an advocate of a High Court or has
held the office of a member of a tribunal or any
post, under 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 durring 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 Justice of India, transfer a Judge
from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he
shall, during the period he serves, after the
commencement of the Constitution (Fifteenth
Amendment) Act, 1963, as a Judge of the other High
Court, be entitled to receive in addition to his
salary such compensatory allowance as may be
determined by Parliament by law and, until so
determined, such compensatory allowance as the
President may by order fix."
The following are extracts of what was said in the
majority judgment in the second Judges case about the
primacy of the Chief Justice of India in the matter of
appointments of Judges to the Supreme Court and the High
Courts and the need in this behalf of the desirability of
consultation between the Chief Justice of India and his
brother Judges:
"A further check in that limited sphere is provided
by the conferment of the discretionary authority not
to one individual but to a body of men, requiring
the final decision to be taken after full
interaction and effective consultation between them,
to ensure projection of all likely points of view
and procuring the element of plurality in the final
decision with the benefit of the collective wisdom
of all those involved in the process. The
conferment of this discretionary authority in the
highest functionaries is a further check in the same
direction. The constitutional scheme excludes the
scope of absolute power in any one individual. Such
a construction of the provisions also, therefor,
matches the constitutional scheme and the
constitutional purpose for which these provision
were enacted.".....
(Page 745 F to 746 A)
"Attention has to be focussed on the purpose, to
enable better appreciation of the significance of
the role of each participant with the consciousness
that each of them has some inherent limitation, and
it is only collectively that they constitute the
selector.
The discharge of the assigned role by each
functionary, viewed in the context of the obligation
of each to achieve the common constitutional purpose
in the joint venture will help to transcend the
concept of primacy between them. however, if there
be any disagreement even then between them which
cannot be ironed out by joint effort, the question
of primacy would arise to avoid stalemate."..
"It is obvious, that the provision for consultation
with the Chief justice of India and, in the case of
the High Courts, with thee 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 climinate 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 constitutional
purpose. Thus, the executive element in the
appointment process is reduced to the minimum and
any political influence is eliminated. It was for
this reason that the word 'constitution' instead
that absolute discretion was not given to any one,
not even to the Chief Justice of India as
individual, much less to the executive, which
earlier had absolute discretion under the Government
of India Acts.
The primary aim must be to reach an agreed
decision taking into account the views of all the
consultees, giving the greatest weight to the
opinion of the Chief Justice of India who, as
earlier stated, is best suited to know the worth of
the appointee. No question of primacy would arise
when the decision is reached in this manner by
consensus, without any difference of opinion."...
(pages 757 A to 758 C)
"The primacy must, therefore, lie in the
final opinion of the Chief Justice of India, unless
for very good reasons known to the executive and
disclosed to the Chief Justice of India, that
appointment is not considered to be suitable."
(page 758 E)
"On the other hand, in actual practice, the
Chief Justice of India and the Chief Justice of the
high Court, being responsible for the functioning of
the courts, have to face the consequence of any
unsuitable appointment which gives rise to criticism
levelled by the ever vigilant Bar. That controversy
is raised primarily in the courts. Similarly, the
Judges of the Supreme Court and High Courts, whose
participation is involved with the Chief Justice in
the functioning of the courts, and whose opinion is
taken into account in the selection process, bear
the consequences and become accountable. Thus, in
actual practice, the real accountability in the
matter of appointments of Superior Judges is of the
Chief Justice of India and the Chief Justices of the
High Courts, and not of the executive which has
always held out, as it did even at the hearing
before us that, except for rare instances, the
executive is guided in the matter of appointments by
the opinion of the Chief Justice of India."
(Page 759 G to 760 A)
"If that is the position in actual practice
of the constitutional provisions relating to the
appointments of the superior Judges, wherein the
executive itself holds out that it gives primacy to
the opinion of the Chief Justice of India, and in
the matter of accountability 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.".........
(Page 760 B to 760 E)
"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 consulates the
decision is reached by consensus, and no question
arises of giving primacy to any consultee.
Primarily, it is this indication which is given by
the constitutional provisions, and the
constitutional purpose would be best served if the
decision in made by consensus without the need of
giving primacy to any one of the consulates on
account of any difference remaining between them.
The question of primacy of the opinion of any one of
the constitutional functionaries qua the other would
arise only if the resultant of the consultative
process is not one opinion reached by consensus.
The constitutional purpose to be served by
these provisions in to select the best from amongst
those available for appointment as Judges of the
superior judiciary, after consultation with those
functionaries who are best suited to make the
selection.".......
(Page 761 G to 762 B)
"Even the personal traits of the members of the Bar
and the Judges are quite often fully known to the
Chief Justice of India and the Chief Justice of the
high Court who get such information from various
sources. There may however, be some personal trait
of an individual lawyer of Judge, which may be
better known to the executive and may be unknown to
the Chief Justice of India and the Chief justice of
the High Court, and which may be relevant for
assessing his potentiality to become a good Judge.
It is for this reason, that the executive is also
one of the consulates in the process of appointment.
The object of selecting the best men to constitute
the superior judiciary is achieved by requiring
consultation with not only the judiciary but also
the executive to ensure that every relevant
particular about the candidate is known and duly
weighed as a result of effective consultation
between all the consultee, before the appointment is
made."........
(Page 762 F to 762 H)
"It has to be borne in mind that the
principle of non-arbitrariness which is an essential
attribute of the rule of law is all pervasive
throughout the Constitution; and an adjunct of this
principle of the absence of absolute power in one
individual in any sphere of constitutional activity.
The possibility of intrusion of arbitrariness has to
be kept in view, and eschewed, in constitutional
interpretation and, therefore, the meaning of the
opinion of the Chief Justice of India, in the
context of primacy, must be ascertained. A
homogenous mixture, which accords with the
constitutional purpose and its ethos, indicates that
it is the opinion of the judiciary 'symbolised 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
In view of the primacy of judiciary in this
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 minimum requiring only the
application of known principles or guidelines to
ensure non-arbitrariness, but to that limited
extent, discretion is a pragmatic need Conferring
discretion upon high functionaries and, whenever
feasible, introducing the element of plurality by
requiring collective decision, are further checks
against arbitrariness. This is how idealism and
pragmatism are reconciled and integrated, to make
the system workable in a satisfactory manner.
Entrustment of the task of appointment of superior
Judges to high constitutional functionaries; the
greatest significance attached to the view of the
Chief Justice of India, who is best equipped to
assess the true worth of the candidates for
adjudging their suitability; the opinion of the
Chief Justice of India being the collective opinion
formed after taking into account the views of some
off his colleagues; and the executive being
permitted to prevent an appointment considered to be
unsuitable, for strong reasons disclosed to the
Chief Justice of India, provide the best method, in
the constitutional scheme, to achieve the
constitutional purpose without conferring absolute
discretion or veto upon either the judiciary or the
executive, much less in any individual, be he the
Chief Justice of India or the Prime Minister.
The norms developed in actual practice, which have
crystallised into conventions in this behalf, as
visualised in the speech of the President of the
Constituent Assembly, are mentioned later."
(Page 767 F to H)
The absence off specific guidelines in the
enacted provisions appears to be deliberate, since
the power is vested in high constitutional
functionaries and it was expected of them to develop
requisite norms by convention in actual working as
envisaged in the concluding speech of the President
of the Constituent Assembly. The hereinafter
mentioned norms emerging from the actual practice
and crystallised into conventions - not exhaustive
are expected to be observed by the functionaries to
regulate the exercise of their discretionary power
in the matters of appointments and transfers."
(Page 767 F to H)
"Appointments
(1) What is the meaning of the opinion of
the judiciary 'symbolised by the view of the Chief
Justice of India?
The opinion has to be formed in a pragmatic
manner and past practice based on convention is a
safe guide. In matters relating to appointments in
the Supreme Court, the opinion
given by the Chief Justice of India in the
consultative process 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 form the same High
Court or otherwise. Article 124(2) is an
indication that ascertainement 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 account the view of his
colleagues 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 whose opinion according to the
Chief Justice of India, is likely to be
significant in the formation of his opinion. The
opinion of the Chief Justice of the High Court
would be entitled to the greatest weight, and the
opinion of the other functionaries involved must
be given due weight, in the formation of the
opinion of the Chief Justice of India. The
opinion of the Chief Justice of the High Court
must be formed after ascertaining the views of at
least the two seniormost Judges of the High
Court.
The Chief Justice of India, for the
formation of his opinion, has to adopt a course
which would enable him to discharge duty
objectively to select the best available persons
as Judges of the Supreme Court and the High
Courts. The ascertainment of the opinion of the
other Judges by the Chief Justice of India and
the Chief Justice of the High Court, and the
expression of their opinion, must be in writing
to avoid any ambiguity."........
(Pages 768 to 769 A)
......"(5) The opinion of the Chief
Justice of India, for the purpose of Articles
124(2) and 217(1), so given has primacy in the
matter of all appointments; and no appointment
can be made by the President under these
provisions to the Supreme Court and the High
Courts, unless it is in conformity with the final
opinion of the Chief Justice of India, formed in
the manner indicated.
(6) The distinction between making an
appointment in conformity with the opinion of the
Chief Justice of India, and not making an
appointment recommended by the Chief Justice of
India to be borne in mind. Even though no
appointment can be made unless it is in
conformity with the opinion of the Chief Justice,
a recommended of the Chief Justice of India, if
considered unsuitable on the basis of positive
material available on record and placed before
the Chief Justice of India, if considered
unsuitable on the basis of positive material
available on record and placed before the Chief
Justice of India, may not be appointed except in
the situation indicated later. Primacy is in
making an appointment; and, when the appointment
is not made, the question of primacy does not
arise. There may be a certain area, relating to
sutability of the candidate, such as his
antecedents and personal character, which, at
times, consultees, other than the Chief Justice
of India, may be in a better position to know.
In that area, the opinion of the other consultees
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 os only to this limited extent of a
recommendee 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 recommendee
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." ...........
(Page 770 B to 770 H)
......"(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 Justice of India
does not find it necessary to withdraw his
recommendation even thereafter, but the other
Justice of the Supreme Court who have been
consulted in the matter are of the view that it
ought to be withdrawn, the non-appointment of
that person for reasons to be recorded, may be
permissible in the public interest. If the
non-appointment in a rare case, on this ground,
turns out to be a mistake, that mistake in the
ultimate public interest is less harmful than a
wrong appointment. However, if after due
consideration of the reasons disclosed to the
Chief Justice of India, that recommendation is
reiterated by the Chief Justice of India with the
unanimous agreement of the Judges of the Supreme
Court consulted in the matter, with reasons for
not withdrawing the recommendation then that
appointment as a matter of healthy convention
ought to be made.
(8) Some instance then non-appointment is
permitted and justified may be given. Suppose
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
recommendee is unsuitable for stated reasons,
which are accepted by the President, then the
non-appointment of the candidate recommended by
the Chief Justice of India would be
permissible.".......
(Page 771 A to 771 E)
"(9) In order to ensure effective
consultation between all the constitutional
functionaries involved in the process, the
reasons for disagreement, if any, must be
disclosed to all others, to enable
reconsideration on that basis. All consultations
with everyone involve, including all the Judges
consulted, must be writing and the Chief Justice
of the High Court, in the case of appointment to
a High Court, and the Chief Justice of India, in
all cases, must transmit with his opinion the
opinion of all Judges consulted by him, as part
of the record.
Expression of opinion in writing is an in
built check on exercise of the power, and ensures
due circumspection. Exclusion of justiciability,
as indicated hereafter, in this sphere would
prevent any inhibition again the expression of a
free and frank opinion. The final opinion of the
Chief Justice of India, given after such
effective consultation between the constitutional
functionaries, has primacy in the manner
indicated.
(Page 771 G to 772 C)
On the aspect of transfers of Judges and the
judicial review thereof, the majority 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 ate
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
(Page 774 A to 77 C)
.......... "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
decision, which is ordinarily needed as check
against possible executive excess or
arbitrariness. Pluraliry 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,
even subconsciously, of any individual. The
judicial element being predominant in the case of
appointments, and decisive in transfers, as
indicated, the need for further judicial review,
as in the executive actions, is eliminated. The
reduction of the area of discretion to the
minimum, the element of plurality of Judges in
formation of the opinion of the Chief Justice of
India, effective consultation in writing, and
prevailing norms to regulate the area discretion
are sufficient checks against arbitrariness.
These guidelines in the form of norms are
not to be construed as conferring any justiciable
right in the transferred Judge. Apart from the
constitutional requirement of a transfer being
made only on the recommendation of the Chief
Justice of India, the issue of transfer is not
justiciable on any other ground, including the
reasons for the transfer or their sufficiency.
The opinion of the Chief Justice of India formed
in the manner indicated is sufficient safeguard
and protection again any arbitrariness or bias,
as well as any erosion of the independence of the
judiciary.
The is also in accord with the public
interest of excluding these appointments and
transfers from litigative debate, to avoid any
erosion in the credibility of the decisions, and
to ensure a free and frank expression of honest
opinion by all the constitutional functionaries,
which is essential for effective consultation and
for taking the right decision." ......
(Page 775 B to 775 G)
"It is therefore, necessary to spell out
clearly the limited scope of judicial review in
such matters to avoid similar situations in
future. Except on the ground of want of
consultation with the named constitutional
functionaries or lack of any condition of
eligibility in the case of an appointment, or of
a transfer being made without the recommendation
of the Chief Justice of India, these matters are
not justiciable on any other ground, including
that of bias, which in any case is excluded by
the element of plurality in the process of
decision making." .......
(Page 776 B to 776 C)
On the aspect of the relevance of seniority in
the matter of Supreme Court appointments, this
was stated :
(3) 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 further prospects. Inter se
seniority amongst Judges in the Supreme Court,
based on the date of 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 grater 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
expection in the decison making process is
requirement of the rule of non arbitrainess and,
therefore, this also is a norm to be observed by
the Chief Justice of India in recommending
appointments to the Supreme Court. Obviously,
this factor applies only to those considered
suitable and at least equally meritorious by the
Chief Justice of India, for appointment to the
Sypreme Court. Just as a High Court Judge at the
time of his intial appointment has the legitimate
expectation to become Chief Justice of a High
Court in his turn in the ordinary course, he has
the legitimate expection to tb considered for
appointment to the Supreme Court in his turn,
according to his seniority.
This legitimate expectation has relevamce
on the ground of longer experience on the Bench,
and is a factor material for determining the
suitability of the appointee, Along with other
factors, such as, proper representation of all
sections of the people from all parts of the
country, legitimate expectation of the suitable
and equally meritorious Judges to be considered
in their turn is a relevant factor for due
consideration while making the choice of the most
suitable and meritorious ahaint them, the
outweighing consideration being merit, to select
the best available for the aper court." ....
(page 769 B to 770 B)
The mjaoriity ends with a summary of its
conclusions. Conclusion nos.1,2,3,4,5,7,9,10,11
and 14 are relevant for our purposes. They read
thus :"
"(1) The process of appointment of Judges
to the Supreme Court and the High Courts is an
integrated 'particuipatory consultaive process'
for selecting the best and most suitable persons
abailable for appointment; and all the
constitutional functionaries must perform this
duty collectively with a view primarily to reach
an agreed decision, sunbserving the
constitiutiuonal purpose, so that the occasion of
pritnacy does not arise.
(2) Initiation of the proposal for
appointment in the case of the Suprem Court must
be by the Chief Justice of India, and in the case
of a High Court by the Chief Justice of that High
Court; and for transfer of Judge Chief Justice of
a High Court, the proposal had to be initiated by
the Chief Justice of India. This is the manner in
which proposals for appointments to the Supreme
Court and the High Courts as well as for the
transfers of Judges/Chief Justice of the High
Courts must inveariably be made.
(3) In the event of conflicting opinion
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 exceptinal cases alone, for stated
strong cogent reasons, disciosed to theïChief
Justice of India, indicating that the recommendee
is not suitable for appointment, that appointment
recommended by the Chief Justice of India may not
be made. However, if the sated reasons are not
accepted by the Chief Jistice of India and the
other Judges of the Supreme Court who have been
cosulted in the matter, on reiteration of the
recommendation by the Chief Justice of India, the
appointment should be made as a heaithy
convention.
(7) The opinion of the Cheif Jistice of
India has not mere primacy, but is determinative
in the matter of transfers of high Court
Judges/Chief Justices.
(9) Any tranfer made on the
recommendation of the Chief Justice of India is
not be deemed to be punitive, and such tranfer is
not justiciable on any ground.
(10) In making all appointments and
trandfers, the norms indicated must be followed.
However, the same do not confer any justiciable
right in any one.
(11) Only limited judicial review on the
grounds specified earliar is available in matters
of appointments and transfers.
(14) The majority opinion in S.P Gupta
vs. Union of India, (1982)2 S.C.R. 365, in so far
as it takes the contrary view relatinf to primacy
of the role of the Chief Justice of India in
matters of appoinments and transfers, and the
justicialblilty of these matters as well as in
relation to Judgestrenght, does not commend
itself to us as being the correct constitutional
scheme must now be understood and impelememted in
the manner indicated herein by us."
(Page 778 to 779)
(Emphasis supplied)
We have heard the learned Attorney General , learned
counsel for the interveners and some the High Courts and the
Advocates General of some States.
We record at the outset the statements of the
Attorney Gentral that - (1) the Union of India is not
seeling a review or re-consideration of the judgment in the
second Judges case, and (2) that the Union of India shall
accept and treat as binding the answers of this Court to the
questions set out in the Reference.
The majority view in the second Judges case is that
in the matter of appointments to the Supreme Court and the
High Court the opinion of the Chief Justice of Indai has
primacy. The opuion of the Chief Justice of India is
"reflective of the opinion of the judgiciary, which means
that it must necessarlly have the element of plurality in
its formation". It is to be formed "after taking into
account the view of some other Judges who are traditionally
associated with this function". The opinion of the Chief
Justice of India "so given has priacy in the matter of all
appointments". For Chief Justice of India formed in the
manner indicated". It must follow that an opinion formed by
the Chief Justice of India in any manner other than that
indicated has no primacy in the matter of appointments to
the Supreme Court and the High Court and the Government is
not obliged to act thereon.
Insfofar as appointments to the Supreme Court of
Inda are concerned, the majority view in the second Judges
case is that the opinion given by the Chief Justice of Inda
in this behalf "has to be formed taking into account the
views of the two seniormost Judgges 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 form 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".
It was by the learned Attorncy 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.
Attenstion 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 Inda had constituted a panel of
himself and five of the then seniormost puisne Judges. It
was submitted that this precedent ashould be trated as
convention and institutionalised.
We think it necessary to make clear at the outset
the distinction that follows. The opinion of the Chief
Justice of India which has primacy in the matter of
recommendations for appointment to the Supreme Court has to
be formed in consultation with acollegium consists of the
two seniormost puisne Judge of the Supreme Court. In making
a decision as to whom that collegium shoulf recommend, it
takes into account the view that are elicited by the Chief
Justice of India from the seniormost Judge of the Supreme
Court who comes from the same High Court as the person
proposed to be recommended. It also takes into account the
views of other Judges of the Supreme Court or the Chief
Justice or Judges of the High Court or, indeed, members of
the Bar who may also have been asked by the Cheif Justice of
India or on his behalf. The principal objective of the
collegium is to ensure that the best availablle talent is
brought to the Supreme Court bench. The Chief Justice of
India and the seniormost puisne Judges, by reason of their
long tenures on the Supreme Court, are best fitted to
achieve this objective. They can assess the comparative
worth of possible appointees by reason of the fact that
their judgments would havce been the subject matter of
petitions for special leave to appeal and appeals. Even
where the person before them. In assessing comparative worth
as aforestated, the collegium would have the benefit of the
inputs provided by those view have been sought. The
distinction, therefore, is between the Judges of the Supreme
Court who decide, along with the Chief Justice of India, who
shold be recommended for appointment to the Supreme Court
and the judges of the Supreme Court and others who are asked
to express their views about the suitability of possible
nominee for such appointment.
With this in mind, what has to be considered is
whether the size of the collegium that makes the
recommendation should be increased. Having regard to the
terms of Article 124(2), as analysed in the majority
judgement in the second Judges case, as also the precedent
set by the then Chief Justice of India, as set out earlier,
and having regard to the objectove aforestated, we think it
is deirable that the colegium shold consit of the Chief
Justice of India and the four seniormost puirsne Judges of
the Supreme Court.
Ordinarlly, one of the four seniormost 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 seniormost
puisne Judges, he must invariably be made part of the
collegium. The Judges to be appointed will funciton during
his term and it is but right that he shoud have a hand in
their selection.
It is not practicable to include in the collium the
seniormost Judge of the Supreme Court who comes from the
same High Court as the person to be recommendad, unless, he
is part of the collegium by virtue of being one of the four
seniormost puisne Judges, because, as experience shows, ot
os normally not one vacancy that has to be filled up but a
mumber thereof. The prospective candidates to fill such
multiple vacancies would come form a number of High Courts.
It would, therefore, be necessary to consult the seniormost
Judges from all those High Courts. All these judges cannot
very depending upon where the prospective appointees hail
from. To put it differently, for a particular set of
vavancies the seniormost Judges from the High Courts at, let
us say, Allahabad and Bombay may have to be consulted. It
would neither be proper nor desirable, if they have been
part of the collegium for that particular selection, to
leave them out of the next collegium although no prospective
appointee at that time hails from the High COurts at
Allahabad or Bombay. Thirdly, it would not be proper to
exclude from the collegium such Judges of the Suprem Court,
if any, as are senior to the Judges.
required to be consulted. Lastly, the seniormost Judge of the
Supreme Court who comes from the same High Court as the
person to be recommended may be in terms of over all
seniority in the Supreme Court, very juniorr, with little
experience of work in the Supreme Court, and therefore,
unable to assess the comparative merit of a number of
possible appointees.
Necessarily, the opinion of all members of the
collegium in respect of each recommendation should be in
writing. The ascertainment of the views of the seniormost
Supreme Court Judges who hail from the High Court from where
the persons to be recommended come must also be in writing.
These must be conveyed by the Chief Justice of India to the
Government of India along with the recommendation. The other
views that the Chief Justice of india or the other members of
the collegium may elicit, particularly if they are from
non-Judges, need not be in writing, but it seems to us
advisable that he who elicits the opinion should make a
memeroandum thereof, and the substance thereof, in general
terms, should be conveyed to the Government of India.
The seniormost Judge in the Supreme Court from the
High COurt from which a prospective candidate comes would
ordinarily know his merits and demerits, but if percance he
does not, the next seniormost Judge in the Supreme Court from
that High Court should be consulted and his views obtained in
writing.
We should add that the objective being to procure the
best information that can be obtained about a prospective
appointee, it is of no consequence that a Judge in the
Supreme Court from the prospective appointee's High Court and
been transferred to that High Court either as a puisne Judge
or as its Chief Justice.
It is, we think, reasonable to expect that the
collegium would make its recommendations 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 monority 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 recommendee 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 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 little doubt that if even two of the Judges forming the
collegium express strong views, for good reasons, that are
adverse to the appointment of a particular person the Chief
Justice of India would not press for such appointment.
The majority judgment in the second Judges case
contemplates the non-appointment of a person recommended on
the ground of unsuitability. It says that such
non-appointment "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 Justice of India does not find it necessary to
withdraw his recommendation even thereafter, but the other
Judges of the Supreme Court who have been consulted in the
matter are of the view that it ought to be withdrawn, the
non-appointment of that person for reasons to be recorded,
may be permissible in the public interest..........
However, if after due consideration of the reasons disclosed
to the Chief Justice of India, that recommendation is
reiterated by the Chief Justice of India with the unanimous
agreement of the Judges of the Supreme Court consulted in
the matter, with reasons for not withdrawing the
recommendation, then that appointment as a matter of healthy
convention ought to be made". It may be that one or more
members of the collegium that made a particular
recommendation have retired or are otherwise unavailable
when reasons are disclosed to the Chief Justice of India for
the non-appointment of that person. In such a situation the
reasons must be placed before the remaining members of the
original collegium plus another Judge or Judges who have
reached the required seniority and become one of the first
four puisne Judges. It is for this collegium, so
re-constituted, to consider whether the recommendation
should be withdrawn or reiterated. It is only if it is
unanimously reiterated that the appointment must be made.
Having regard to the objective of securing the best
available men for the Supreme Court, it is imperative that
the number of Judges of the Supreme Court who consider the
reasons for non-appointment should be as large as the number
that had made the particular recommendation.
The Chief Justice of India may, in his discretion,
bring to the knowledge of the person recommended the reasons
disclosed by the Government of India for his non-appointment
and ask for his response thereto. The response, if asked
for and made, should be considered by the collegium before
it withdraws or reiterates the recommendation.
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."
Merit, therefore, as we have already noted, is the
predominat consideration for the purposes of appointment to
the supreme Court.
Where, therefore, there is outstanding merit the
possessor thereof deserves to be appointed regardless of the
fact that he may not stand high in the all India seniority
list or in his own High Court. All that then needs to be
recorded when recommending him for appointment is that he
has outstanding merit. When the contenders for appointment
to the Supreme Court do not possess such outstanding merit
but have, nevertheless, the required merit in more or less
equal degree, there may be reason to recommend on among them
because, for example, the particular region of the country
in which his parent High Court is situated is not
represented on the Supreme Court bench. All that then needs
to be recorded when making the recommendation for
appointment is this factor. The "strong cogent reasons" for
appointing to the Supreme Court a particular High Court
Judge, not for not appointing other High Court Judges senior
to him. It is not unusual that a Judge who has once been
palled over for appointment to the Supreme Court Might still
find favour on the occasion of another selection and there
is no reason to blot his copybook by recording what might be
construed to be an adverse comment about him. It is only
when, for very strong reasons, a collegium finds that,
whatever his seniority, some High Court Judge should never
be appointed to the Supreme Court that it should so record.
This would then be justified and would afford guidance on
subsequent occasions of considering who to recommend.
Mr. Parasaran, learned counsel for the intervener,
the Advocates-on-Record Association, submitted that the
words 'legitimate expectation' were not apposite when the
reference was to High Court Judges. We make it clear that
no disparagement of High Court Judges was meant; all that
was intended to be conveyed was that it was very natural
that senior High Court Judges should entertain hopes of
elevation to the Supreme Court and that the Chief Justice of
India and the collegium should bear this in mind.
The majority judgment in the second Judges case
requires the Chief Justice of a High Court to consult his
two seniormost puisne Judges before recommending a name for
appointment to the High Court. In forming his opinion in
relation to such appointment the Chief Justice of India is
expected "to take into account the views of his colleagues
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 seniormost 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 Court Judge as may be in a
position to give it should be asked to do so. All these
views should be expressed in writhing and conveyed to the
Government of India along with the recommendation.
Having regard to the fact that information about a
proposed appointee to a High Court Would best come from the
Chief Justice and Judges of that High Court and from Supreme
Court Judges conversant with it, we are not persuaded to
alter the strength of the decision making collegium's size;
where appointments to the High Courts are concerned, it
should remain as it is constituted of the Chief Justice of
India and the two seniormost puisne Judges of the Supreme
Court.
In the context of the judicial review of
appointments, the majority judgment in the second Judges'
case said, "Plurality of Judges in the formation of the
opinion of the Chief Justice of India, as indicated, is
another in-built check against the likelihood of
arbitrariness or bias...... The judicial element being
predominant in the case of appointments ......., as
indicated, the need for further judicial review, as in other
executive actions, is eliminated." The judgment added,
"Except on the ground of want of consultation with the named
constitutional functionaries or lack of any condition of
eligibility in the case of an appointment, these matters are
not justiciable on any other ground....".
Judicial review in the case of an appointment, or a
recommended appointment, to the Supreme Court or a High
Court is, therefore, available if the recommendation
concerned is not a decision of the Chief Justice of India
and his seniormost colleagues, which is constitutionally
requisite. They number four in the case of a recommendation
for appointment to the Supreme Court and two in the case of
a recommendation for appointment to a High Court. Judicial
review is also available if, in making the decision, the
views of the seniormost Supreme Court Judge who comes from
the High Court of the proposed appointee to the Supreme
Court have not been taken into account. Similarly, if in
connection with an appointment, or a recommended
appointment, to a High Court, the views of the Chief Justice
and senior Judges of the High Court, as aforestated, and of
Supreme Court Judges knowledgeable about that High Court
have not been sought or considered by the Chief Justice of
India and his two seniormost puisne Judges, judicial review
is available. Judicial review is also available when the
appointee is found to lack eligibility.
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 a 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 was
reference to "the element of plurality of Judges in
formation of the opinion of the Chief Justice of India." It
was then said that "apart from the constitutional
requirement of a transfer being made only on the
recommendation of the Chief Justice of India, the issue of
transfer is not justiciable on any other ground, including
the reasons for the transfer or their sufficiency. The
opinion of the Chief Justice of India formed in the manner
indicated is sufficient safeguard and protection against any
arbitrariness or bias, as well as any erosion of the
independence of the judiciary." Again, it was said "Except
on the ground ........of a transfer being made without the
recommendation of the Chief Justice of India, these matters
are not justiciable on any other ground, including that of
bias, which in any case is excluded by the element of
plurality in the process of decision making."
The same thoughts were expressed in the concurring
judgment of Kuldip Singh, J., thus :
"We are, therefore, of the view that the opinion of
the Chief Justice of India in the process of
consultation for appointments to the superior courts
must be formed in consultation with two of his
seniormost colleagues. Apart from that the Chief
Justice of India must also consult the seniormost
Judge who comes from the same State (the State from
where the candidate is being considered). This
process of consultation shall also be followed while
transferring any Judge/Chief Justice from one State
to another."
The judgment in the case of K. Ashok Reddy Vs.
Government of India and Ors., (1994) 2 S.C.C. 303, dealt
with the justiciability of transfers of High Court Judges
from one High Court to another. The judgment, rendered by a
Bench of three learned Judges, records that it was a "sequel
to the decision" in the second Judges case. It refers to
the fact that after the second Judges case the then Chief
Justice of India had constituted a Peer Committee comprised
of the then two seniormost puisne Judges of Supreme court
and two Chief Justices of High Courts to make suggestions
for transfers and the Chief Justice of India was to make his
recommendations on that basis and in accordance with the
broad guidelines indicated in the second Judges case. There
was, therefore, the judgment said, no room left for any
apprehension of arbitrariness or bias in the transfer of any
Judge or Chief Justice of a High Court. There 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 bee 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 on
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 the ground of bias was not available
for challenging a transfer, it was to emphasis that the
decision by the collective exercise of several Judges at the
highest level on objective criteria, on which the
recommendation of the Chief Justice of India was based, was
an inbuilt check against arbitrariness and bias indicating
the absence of need for judicial review on those grounds.
If any court other that the Supreme Court was called upon to
decide a matter relating to the transfer of a High Court
Judge, it should promptly consider the option of requesting
the Supreme Court to withdraw the case to itself for
decision to avoid any embarrassment.
What emerges from the aforesaid is this: before
recommending the transfer of a puisne Judge of one High
Court to another High Court, also as a puisne Judge, the
Chief Justice of India must consult a plurality of Judges.
He must 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 have
significance in the case and atleast one other senior Chief
Justice of a High Court or any other person whose views he
considers relevant. The then Chief Justice of India had
constituted as was noted in Ashok reddy's case, a Peer
Committee of the two seniormost puisne Judges of the Supreme
Court and two Chief Justices of High Courts to advise him
in the matter of transfers of High Court Judges. That
Committee is no longer in position.
It is to our mind imperative, given the gravity
involved in transferring High Courts Judges, that the Chief
Justice of India should obtain the views of the Chief
Justice of the High Court from which the proposed transfer
is to be effected as also the Chief Justice of the High
Court to which the transfer is to be effected. This is in
accord with the majority judgment in the second Judges case
which postulates consultation with the Chief Justice of
another High Court. The Chef Justice of India should also
take into account the views of one or more Supreme Court
Judges who are in a position to provide material which would
assist in the process of deciding whether or not a proposed
transfer should take place. These views should be expressed
in writing and should be considered by the Chief Justice of
India and the four seniormost puisne Judges of the Supreme
Court. These views and those of each of the four seniormost
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.
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.
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 knowledgable Supreme Court Judges need to be taken into
account.
The majority judgment in the second Judges case
requires that "(t)he 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"
(page 774). These factors, including the response of the
High Court Chief Justice or puisne Judge proposed to be
transferred to the proposal to transfer him, should now be
placed before the collegium of the Chief Justice of India
and his first four puisne Judges to be taken into account by
them before reaching a final conclusion on the proposal.
We have heard with some dismay the dire
apprehensions expressed by some of the counsel appearing
before us. We do not share them. We take the optimistic
view that successive Chief Justices of India shali
henceforth act in accordance with the second Judges case and
this opinion.
We have not dealt with any aspect placed before us
at the Bar that falls outside the scope of the questions
posed in the Reference.
It remains only to express our gratitude to the
Attorney General Mr. K.Parasaran, Mr. K.K.Venlugopal, Mr.
R.K.Jain, Mr. A.B.Divan, Mr. Murlidhar Bhandare, Mr. Arun
Jaitley, Mr. Gopal Subramaniam, Mr.H.N.Salve, Mr.
V.A.Mohta, Mr.R.P.Goel, Mr. P.S Poti, Mr. Sarin, Mr.
B.R.Bhattacharya, Mr. A.R.Barthakur, Mr. P.G. Baruah, Mr.
Govind Das and Ms. Radha Rangaswamy. Their submissions and
insights have much assisted us. We should note that there
was no great divergence in what they advocated.
The questions posed by the Reference are now
answered, but we should emphasis that the answers should be
read in conjunction with the body of this opinion:
1. The expression "consultation with the Chief justice of
India" in Articles 217(1) of the Constitution of India
requires consultation with a plurality of Judges in the
formation of the opinion of the Chief Justice of India. The
sole, individual opinion of the Chief Justice of Indian does
not constitute "consultation" within the meaning of the said
Articles.
2. The transfer of puisne Judges is judicially
reviewable only to this extent: that the recommendation
that has been made by the Chief Justice of India in this
behalf has bot been made in consultation with the four
seniormost puisne Judges of the Supreme Court and/or that
the views of the Chief Justice of the High Court from which
the transfer is to be effected and of the Chief Justice of
the High Court to which the transfer is to be effected have
not been obtained.
3. The Chief Justice 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 seniormost puisne Judges of
the Supreme Court. Insofar as an appointment to the High
Court is concerned, the recommendation must be made in
consultation with two seniormost 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 has been
passed over. What has to be recorded is the positive reason
for the recommendation.
7. The views of the Judges consulted should be in
writing and should be conveyed to the Government of India by
the Chief Justice of India along with his views to the
extent set out in the body of this opinion.
8. The Chief Justice of India is obliged to comply with
the norms and the requirement of the consultation process,
as aforestated, in making his recommendations to the
Government of India.
9. Recommendations made by the Chief Justice of India
without complying with the norms and requirements of the
consultation process, as aforestated, are not binding upon
the Government of India.
.....................J
[ S P Bharucha ]
....................J
[ M.K.Mukherjee ]
....................J
[ S.B.Majmudar ]
....................J
[ Sujata V. Manohar ]
....................J
[ G.T.Nanavati ]
....................J
[ S. Saghir Ahmad ]
....................J
[ K. Venkataswami ]
....................J
[ B.N.Kirpal ]
....................J
[ G.B. Pattanalk]
New Delhi
October 28, 1998.