In Re Special Reference No. 1 of 1998 [1998 SC] | Current Affairs & General Knowledge - CLAT PDF Download

S.P. BHARUCHA, J.

Appointment of Supreme Court Judges

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 a collegium of Judges.

Having regard to the terms of Article 124(2), we think it is desirable that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court.

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 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.

In making a decision as to whom that collegium should recommend, it takes into account the views 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 Courts or, indeed, members of the Bar who may also have been asked by the Chief Justice of India or on his behalf.

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 minority and the majority of the collegium disfavour the appointment of a particular person? If the majority of the collegium is against the appointment of a particular person, that person shall not be appointed. 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.

Where 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. 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 one 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.

Appointment of High Court Judges

The Chief Justice of India should form his opinion 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 High Court concerned”. All these views should be expressed in writing 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.

Judicial review

Judicial review in case of an appointment to the Supreme Court or a High Court is available if the recommendation is not a decision of the Chief Justice of India and his seniormost colleagues, which is constitutionally requisite. Judicial review is also available if, in making the decision, 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 to a High Court, views of the Chief Justice and senior Judges of the High Court, 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.

Transfer of High Court Judges

Before recommending transfer of a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India should obtain 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.

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.

Answers to the Reference

• 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. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said articles.
• 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 the two seniormost puisne Judges of the Supreme Court.
• Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process are not binding upon the Government of India.