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Special President Reference Under Article 143 (1) Versus Relating to Judges Transfer & Appointment

1998 (10) TMI 537 - SUPREME COURT

Special Reference 1 of 1998 - Dated:- 28-10-1998 - S Bharucha, M Mukherjee, S Majmudar, S V Manohar, G Nanavati, SS Ahmad, K Venkataswami, B Kirpal And G Pattanaik. JUDGMENT S.P. Bharucha, J. 1. 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 exercis .....

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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 C .....

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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 judgment that "such transfer is not justiciable on any ground" and its further observation mat limited judicial review is available in matters of transfer, and the extent and scope of judicia .....

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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 of senior Judges of the High Court in rega .....

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e 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 Presid .....

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tices; 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 .....

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ee 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. 9. Before quoting what was said in the majority judgment in the second Judges case on these aspects, it is necessary to se .....

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y 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 the 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 .....

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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. Explanat .....

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ess 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 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 befo .....

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t 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 si .....

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(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, afte .....

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dge 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 t .....

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od 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." 10. 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 .....

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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 provisions were enacted. .....

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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 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 appoin .....

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main 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 ele .....

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aking into account the views of all the consulters, 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." "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 Chi .....

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s 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 gui .....

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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 .....

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sulters 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 is made by consensus without the need of giving primacy to any one of the consulters on account of any difference remaining between them. The question of primacy of the opinion of any one of the constitutional functionaries qua the others would .....

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stice of the High Court who get such information from various sources. There may however, be some personal trait of an individual lawyer or 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 consulters in the process of appointment. The object of selecting the best men .....

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nct 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 'symbolis .....

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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 .....

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ther 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 fo .....

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loped 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." "Norms The absence of 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 Const .....

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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 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 .....

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his 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 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 se .....

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or most 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." "(5) The opinion of the C .....

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nded 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 of India, yet in an exceptional case, where the facts justify, 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, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, whe .....

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ter. 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 prim .....

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Justice of the Supreme Court who have been consulted in the matter are pf 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 .....

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Judges are of the view that the recommended 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."... "(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 inv .....

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n against 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. 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 accoun .....

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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 .....

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of the area of discretion to the minimum, the element of plurality of Judges information of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of 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 Chi .....

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edibility 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."... "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 th .....

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dia 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 appoint .....

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decline a belated offer, would also be prevented. (4) Due consideration of every legitimate expectation in the decision making process is requirement of the rule of non arbitrariness 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 Supreme Court. Just as a High Co .....

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ntation 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 amongst them, the outweighing consideration being merit, to select the best available for the apex court. " 12. The majority judgment ends with a summary of its conclusions. Conclusion nos.1,2,3,4,5,7,9,10,11 and 14 are r .....

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f the proposal for appointment in the case of the Supreme 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 Justices of the High Courts must invariably be made, (3) In th .....

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mmended 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 matt .....

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ity opinion in S.P Gupta v. Union of India, in so far as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution including the constitutional scheme must now be understood and implemented in the manner indicated herein by us." (Emphasis .....

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iew 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 India has primacy. The opinion of the Chief Justice of India is "reflective of the opinion of the judiciary, which means that it must necessarily 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 .....

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. In so far as appointments to the Supreme Court of India are concerned, the majority view in the second Judges 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 reas .....

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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 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 wit .....

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Justices or Judges of the High Court or, indeed, members of the Bar who may also have been asked by the Chief Justice of India or on his behalf. The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench. The Chief Justice of India and the senior most 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 o .....

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, who should 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 a possible nominee for such appointment. 19. 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 judgment in the second Judges case, as also the precedent set by the then .....

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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 ha .....

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s 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 Supreme Court, if any, as are senior to the Judges required to be consulted. Lastl .....

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reme Court Judges who hail from the High Courts 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 memorandum thereof, and the sub .....

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ective appointee, it is of no consequence that a Judge in the Supreme Court from the prospective appointee's High Court had been transferred to that High Court either as a puisne Judge or as its Chief Justice. 25. 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 Justic .....

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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 li .....

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er 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 recomm .....

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on. 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 Suprem .....

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s 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 .....

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he predominant consideration for the purposes of appointment to the supreme Court. 30. 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, n .....

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reme 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 passed 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 n .....

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s 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. 32. The majority judgment in the second Judges case requires the Chief Justice of a High Court to consult his two senior most 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 t .....

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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 wer .....

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ion 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 senior most puisne Judges of the Supreme Court. 34. In the context of the judicial review of appointments, the ma .....

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l functionaries or lack of any condition of eligibility in the case of an appointment, these matters are not justiciable on any other ground...". 35. 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 senior most colleagues, which is constitutionally requisite. They number four in the case of a recommendation for appo .....

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ted, 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 senior most puisne Judges, judicial 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 opinio .....

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iability 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 Justi .....

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y." 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." 37. 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 p .....

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ia and Ors., 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 senior most puisne Judges of Supreme Court and two Chief Justices of High Courts to make suggestions .....

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ndence 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 restri .....

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as 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 than the Supreme Court was called upon to decide a matter rel .....

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e 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 senior most 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 Commit .....

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urt. The Chief 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 senior most puisne Judges of the Supreme Court. These views and those of each of the four senior most puisne Judges should be conveyed to t .....

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ner 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 o .....

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account by them before reaching a final conclusion on the proposal. 44. 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 shall henceforth act in accordance with the second Judges case and this opinion. 45. 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. 46. It remain .....

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questions posed by the Reference are now answered, but we should emphasise 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) and 222(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 India does not constitute "consultation&qu .....

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