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1998 (10) TMI 537 - SUPREME COURT

1998 (10) TMI 537 - SUPREME COURT - 1999 AIR 1, 1998 (2) Suppl. SCR 400, 1998 (7) SCC 739, 1998 (7) JT 304, 1998 (5) SCALE 629 - 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 .....

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[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 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 l .....

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ef 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 judgment that "such transfer is not justiciable on any ground" .....

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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 fro .....

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that the opinions of the other consulted Judges be in writing in accordance with the aforesaid Supreme Court judgment 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 w .....

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the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts." (Page 739) The issues were required to be examined because a smaller Bench was of the opinion that the correctness of the majority view in the case of S.P. Gupta and Ors. v. Union of India and Ors., , ("the Judges case") required re .....

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t is equally within his right not to consult anyone". 8. 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 .....

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of Supreme Court.-(1) (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 the purpose and shall hold office until he attains .....

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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 .....

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r an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under Clause (4 .....

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ist 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 .....

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a Judge of the Supreme Court or by his being transferred 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 comput .....

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as 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, 194 .....

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er 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." 10. The following are extracts .....

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o 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 pro .....

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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 the Chief Justice of the High Court, was introduced because of the .....

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o 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 .....

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e, which earlier had absolute discretion under the Government of India Act. The primary aim must be to reach an agreed decision taking 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 .....

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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 e .....

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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, i .....

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atory consultative process, and the purpose is best served if at the end of an effective consultative process between all the consulters the decision is reached by consensus, and no question arises of giving primacy 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 re .....

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rsonal 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 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 .....

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f 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 mixt .....

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actual practice, this is how the Chief Justice of India does, and is expected to function, so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the view of some other judges who are traditionally associated with this function. In view of the primacy of judiciary in this process, the question next, is of the modality for achieving this purpose. The indication in the constitutional provisions is found from the .....

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on 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 w .....

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e 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." "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 th .....

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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 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 .....

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vention 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 views of his colleagues in the Supreme Court who are likely to be c .....

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of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior 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 .....

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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 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 Ch .....

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and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter. It is only to this limited extent of non-appointment of a recommended of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommended except in the situation indicated later. This will ensure composition o .....

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erations. 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 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 w .....

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the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommended is unsuitable for stated 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 di .....

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and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition 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 opin .....

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ng to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice." "Justiciability Appointments and Transfers The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the proc .....

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ve in transfers, as indicated, the need for further judicial review, as in. other executive actions, is eliminated. The reduction 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 i .....

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ord 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."... "It is therefore, necessary to spell out clearly the limited scope of judicial review in such matters, to avoid similar situations in future. Excep .....

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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 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 an .....

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ihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented. (4) Due consideration of every legitimate expectation 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 .....

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nch, 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 amongst them, the outweighing consideration being merit, to select the best available for the ape .....

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reach an agreed-decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. (2) Initiation of 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 Cour .....

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) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be m .....

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ly limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (10) The majority 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 .....

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f India shall accept and treat as binding the answers of this Court to the questions set out in the Reference. 15. 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 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 &qu .....

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imacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon. 16. 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 senio .....

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efore he recommends an appointment to the Supreme Court. Attention was drawn to the fact that at the time of the latest selection of Judges appointed to the Supreme Court, the then Chief Justice of India had constituted a panel of himself and five of the then senior most puisne Judges. It was submitted that this precedent should be treated as convention and institutionalised. 18. We think it necessary to make clear at the outset the distinction that follows. The opinion of the Chief Justice of I .....

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as the person proposed to be recommended. It also takes into account the views of other Judges of the Supreme Court or the Chief 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 S .....

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sought. The distinction, therefore, is between the Judges of the Supreme Court who decide, along with the Chief Justice of India, 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 th .....

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he situation should be such that the successor Chief Justice is not one of the four senior most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection. 21. It is not practicable to include in the collegiums the senior most Judge of the Supreme Court who comes from the same High Court as the person to be recommended, unless, of course he is a part of the collegium b .....

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g upon where the prospective appointees hail from. To put it differently, for a particular set of vacancies the senior most 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 .....

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rs of the collegium in respect of each recommendation should be in writing. The ascertainment of the views of the senior most Supreme 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, n .....

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btained in writing. 24. 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 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 remember .....

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d by the Chief Justice of India and the senior Judges are of the view that the recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think th .....

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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 permissib .....

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etired 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 unanimous .....

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t 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. 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 co .....

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us by the Chief Justice of India for appointment to the Supreme Court." 29. Merit, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the supreme Court. 30. Where, therefore, there is outstanding merit the 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 .....

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ng cogent reasons" that the majority judgment in the second Judges case speaks of are good 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 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 ab .....

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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. 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 appoin .....

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nt to a High Court in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his senior most puisne Judges. They would in making their decision take into account the opinion of the Chief Justice of the High Court, which "would be entitled to the greatest weight", the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court bench "who are conv .....

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sed in writing and conveyed to the Government of India along with the recommendation. 33. 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 In .....

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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...". 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 Ind .....

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t, 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 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 tr .....

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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." I .....

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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." 37. The same thoughts were expressed in the concurring .....

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ring any Judge/Chief Justice from one State to another." 38. The judgment in the case of K. Ashok Reddy v. Government of India 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 Committe .....

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stice 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 .....

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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 absen .....

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ndia 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 senior most puisne Judges of t .....

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cord with the majority judgment in the second Judges case which postulates consultation with the Chief Justice of another High Court. 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 mos .....

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e confined to a case where the transfer has been made or recommended without obtaining views and reaching the decision in the manner aforestated. 42. What applies to the transfer of a puisne Judge of a High Court applies a well to the transfer of the Chief Justice of a High Court as Chief Justice of another High Court except that, in this case, only the views of one or more knowledgeable Supreme Court Judges need to be taken into account. 43. The majority judgment in the second Judges case requi .....

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r 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. 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 deal .....

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submissions and insights have much assisted us. We should note that there was no great divergence in what they advocated. 47. The 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 .....

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m 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 senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the .....

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