Rediff On The NeT: CJI's recommendation is invalid without consultation, rules SC


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October 28, 1998

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CJI's recommendation is invalid without consultation, rules SC

Holding that the recommendations of the Chief Justice of India for appointment and transfer of higher judiciary were not binding on the executive if the consultation process was ignored, the Supreme Court today prescribed a multi-judge collegium for the purpose.

A nine-judge Constitutional Bench of the SC unanimously opined that the CJI must consult four of his senior-most colleagues, constituting the collegium, for appointment of judges to the apex court and transfer of chief justices and judges of the high courts.

As regards the appointment of HC judges, the bench said the consultation by the CJI for the purpose should be made with two senior-most judges of the apex court besides the CJ of the HC from where the transfer is to be made and the CJ of the HC where the transferee judge has to go.

''The sole individual opinion of the CJI does not constitute consultation and hence the recommendation by the CJI without complying with the norms and requirements of the consultation process are not binding on the Union government,'' the bench headed by Justice S P Bharucha said in its 43-page verdict on the nine-point presidential reference on the issue.

The reference, made on July 23 this year under Article 143(1) of the Constitution, raised nine questions of law in regard to the consultation process to be followed by the CJI while making recommendations for appointment and transfer as laid down in an earlier decision by a Constitution Bench in the case of the Supreme Court Advocates on Record Association in 1993.

The bench, which included Justices M K Mukherjee, S B Mazumdar, Sujatha V Manohar, G T Nanavati, S Saghir Ahmad, K Venkataswami, B N Kirpal and G B Pattanaik, also answered all the nine questions raised in the reference.

The verdict, which has vindicated the stand of the government on the issue, paves the way for early filling up of seven vacancies in the Supreme Court and nearly 150 vacancies in various high courts besides transfer of HC judges.

The appointments and transfers of judges had come to a standstill when the government, a few months ago, declined to clear the names recommended by former CJI M M Punchhi alleging that the consultation process had not been followed as laid down in the 1993 judgment in the SCORA case.

The bench said the majority view in the SCORA case was that in the matter of appointments to the SC and HCs, the opinion of the CJI had primacy. ''The opinion of the CJI is reflective of the opinion of the judiciary, which means that it must necessarily have the elements of plurality,'' the court observed.

The bench further said the opinion is to formed after taking into account the view of some other judges who are traditionally associated with this function. The opinion of the CJI, so given, has primacy in the matter of appointments. For an appointment to be made it has to be in conformity with the final opinion of the CJI formed in the manner indicated. It must follow that an opinion formed by the CJI in any manner other than that indicated has no primacy in the matter of appointment to the SC and the HCs and the government is not obliged to act thereon, the bench observed.

Ordinarily, the judges said, one of the four senior-most puisne judges of the SC would succeed the CJI but if the situation should be such that the successor CJI 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.

The following were the court's views on the nine questions:

The expression ''consultation with the CJI'' in Articles 217(1) and 222(1) of the Constitution requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute ''consultation'' within the meaning of the said Articles.

The transfer of the puisne judges is judicially reviewable only to this extent that the recommendation that has been made by the CJI in this behalf has not been made in consultation with the four senior-most judges of the SC and that the views of the chief justice of the HC from which the transfer is to be effected and of the chief justice of the HC to which the transfer is to be effected have not been obtained.

The CJI must make a recommendation to appoint a judge of the SC and transfer a chief justice or puisne judge of a HC in consultation with the four senior-most puisne judges of the sc. Insofar as an appointment to the HC is concerned, the recommendation must be made in consultation with the two senior-most puisne judges of the SC.

The CJI is not entitled to act solely in his individual capacity, without consulting other judges of the SC, in respect of materials and information conveyed by the government for non-appointment of a judge recommended for appointment.

The requirement of consultation by the CJI with his colleagues who are likely to be conversant with the affairs of the concerned HC does not refer only to those judges who have that HC as a parent HC. It does not exclude judges who have occupied the office of a judge or chief justice of that HC on transfer.

''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.

The views of the other judges consulted should be in writing and should be conveyed to the government by the CJI along with his views to the extent set out in the body of his opinion.

The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations to the government.

Recommendations made by the CJI without complying with the norms and requirements of the consultation process are not binding on the government.

UNI

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