# SUJATA v. MANOHAR, G.T. NANAVATI, S. SAGHIRAHMAD

- **Citation:** [1998] Supp. 2 S.C.R. 400
- **Court:** Supreme Court of India
- **Decided:** 1998-10-28
- **Case number:** SPECIAL REFERENCE NO. I OF 1998
- **Bench:** S.P. Bharucha, M.K. Mukherjee, S.B. Majmudar, Sujata V. Manohar, G.T. Nanavati, S. Saghirahmad, K. Venkataswami, B.N. Kirpal, G. B. Pattanaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sujata-v-manohar-g-t-nanavati-s-saghirahmad-16480
- **Pages:** 36

## Headnote

Constitution of India, 1950-Articles 143 and 124 (2), 217 (1) and
222(1)-Presidential reference re-consultation between the Chief Justice of
India and his brother judges regarding appointments of Supreme Court and
C High Court judges and transfer of latter-Answering the reference held, 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-In so far as an appointment to the High Court is concerned, the
D recommendation must be made in consultation with the two senior most
puisne Judges of the Supreme Court.
Article 222(1)-Judicial review of transfer of judges-Held, permissible
only to the extent that the recommendation by the Chief Justice of India has
E not been made in consultation with the four senior most puisne Judges of the
Supreme Court and/or that the views of the Chief Justice of the High Court
from which the transfer is to be effected and of the Chief Justice of the High
Court to which the transfer is to be effected have not been obtained.
Articles 217 (1) and 222(1)-Expression "consultation with the Chief
F Justice of lndia"-Held, requires consultation with a plurality of judges in
the formation of the opinion-Consultation is not to be confined to those
Judges who have that High Court as a parent High Court but also Judges
who have occupied the office of a judge or Chief Justice of that High Court
on transfer-Words and Phrases.
G
H
Article 124(/)-Relevance of seniority in making appointments to the
Supreme Court-Held, "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.
400
...
SPECIAL REFERENCE NO. I OF 1998
401
Articles 124 (2), 217 (1) and 222(1)-Appointments of Judges of the A
Supreme Court and the High Courts and transfer of judges of High CourtHeld, Chief Justice of India obliged to comply with the norms and the
requirements of the consultation process, in making his recommendations to
the Government of India-Recommendations made by the Chief Justice of
India without complying with the norms and requirements of the consultation B
process, as aforesaid, are not binding upon the Government of India.
In its decision in Supreme Court Advocates-On-Record Association v.
Union of India (1993) Supp 2 SCR 659 ("the second Judges case') this court
laid down principles and prescribed procedural norms in regard to the
appointment of Judges of this Court and the Chief Justices and Judges of C
the High Court and transfer of Judges from one High Court to another.
Doubts having arisen about the interpretation of the law laid down by this
Court in the aforesaid decision, the President of India, on July 23, 1998, in
exercise of his powers under Article 143 (1) of the Constitution of India,
referred nice questions to this court for its consideration and opinion.
The questions in the Presidential reference related broadly, to three
aspects:
D
(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 [questions No. 1, 3, 4, 5, 7, 8 and 9];
E
(2) Judicial review of transfers of Judges [question No. 2); and
(3) the relevance ofseniority in making appointments to the Supreme
Court [question No. 6).
The Court recorded at the outset the statements of the Attorney General
for India that-(1) the Union of India is not seeking a review or reconsideration
of the Judgment in the second Judges case, and (2) that the Union oflndia
shall accept and treat as binding the answers of the Court to the questions
set out in the Reference.
Rendering its Opinion, this Court
HELD : 1.1. The Chief Justice oflndia must make a recommendation
F
G
to appoint a judge of the Supreme Court a

## Text

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A
B
SPECIAL REFERENCE NO. I OF 1998
OCTOBER 28, 1998
[S.P. BHARUCHA, M.K. MUKHERJEE, S.B. MAJMUDAR,
SUJATA V. MANOHAR, G.T. NANAVATI, S. SAGHIRAHMAD,
K. VENKATASWAMI, B.N. KIRPAL AND G. B. PATTANAIK, JJ.]
Constitution of India, 1950-Articles 143 and 124 (2), 217 (1) and
222(1)-Presidential reference re-consultation between the Chief Justice of
India and his brother judges regarding appointments of Supreme Court and
C High Court judges and transfer of latter-Answering the reference held, 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-In so far as an appointment to the High Court is concerned, the
D recommendation must be made in consultation with the two senior most
puisne Judges of the Supreme Court.
Article 222(1)-Judicial review of transfer of judges-Held, permissible
only to the extent that the recommendation by the Chief Justice of India has
E not been made in consultation with the four senior most puisne Judges of the
Supreme Court and/or that the views of the Chief Justice of the High Court
from which the transfer is to be effected and of the Chief Justice of the High
Court to which the transfer is to be effected have not been obtained.
Articles 217 (1) and 222(1)-Expression "consultation with the Chief
F Justice of lndia"-Held, requires consultation with a plurality of judges in
the formation of the opinion-Consultation is not to be confined to those
Judges who have that High Court as a parent High Court but also Judges
who have occupied the office of a judge or Chief Justice of that High Court
on transfer-Words and Phrases.
G
H
Article 124(/)-Relevance of seniority in making appointments to the
Supreme Court-Held, "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.
400
...
SPECIAL REFERENCE NO. I OF 1998
401
Articles 124 (2), 217 (1) and 222(1)-Appointments of Judges of the A
Supreme Court and the High Courts and transfer of judges of High CourtHeld, Chief Justice of India obliged to comply with the norms and the
requirements of the consultation process, in making his recommendations to
the Government of India-Recommendations made by the Chief Justice of
India without complying with the norms and requirements of the consultation B
process, as aforesaid, are not binding upon the Government of India.
In its decision in Supreme Court Advocates-On-Record Association v.
Union of India (1993) Supp 2 SCR 659 ("the second Judges case') this court
laid down principles and prescribed procedural norms in regard to the
appointment of Judges of this Court and the Chief Justices and Judges of C
the High Court and transfer of Judges from one High Court to another.
Doubts having arisen about the interpretation of the law laid down by this
Court in the aforesaid decision, the President of India, on July 23, 1998, in
exercise of his powers under Article 143 (1) of the Constitution of India,
referred nice questions to this court for its consideration and opinion.
The questions in the Presidential reference related broadly, to three
aspects:
D
(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 [questions No. 1, 3, 4, 5, 7, 8 and 9];
E
(2) Judicial review of transfers of Judges [question No. 2); and
(3) the relevance ofseniority in making appointments to the Supreme
Court [question No. 6).
The Court recorded at the outset the statements of the Attorney General
for India that-(1) the Union of India is not seeking a review or reconsideration
of the Judgment in the second Judges case, and (2) that the Union oflndia
shall accept and treat as binding the answers of the Court to the questions
set out in the Reference.
Rendering its Opinion, this Court
HELD : 1.1. The Chief Justice oflndia must make a recommendation
F
G
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. In so far as an appointment to the High H
402
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A Court is concerned, the recommendation must be made in consultation with
the two senior most puisne Judges of the Supreme Court. [434-C-DI
1.2. The expression "consultation with the Chief Justice of India" in
Articles 217 (1) and 222 (1) of the Constitution oflndia requires consultation
with a plurality of Judges in the formation of the opinion of the Chief Justice
B oflndia. The sole, individual opinion of the Chief Justice oflndia does not
constitute "consultation" within the meaning of the said Articles. [434-A)
1.3. The Chief Justice of India is not entitled to act solely in his
individual capacity, without consultation with other Judges of the Supreme
C Court, in respect of materials and information conveyed by the Government
of India for non-appointment of a Judge recommended for appointment.
[434-D-E)
1.4. 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
D High Court does not refer only to those Judges who have that High Court
as a parent High Court. It does not exclude Judges who have occupied the
office of a judge or Chief Justice of that High Court on transfer.[434-E-F)
1.5. The views of the other Judges consulted should be in writing and
should be conveyed to the Government of India by the Chief Justice of India
E along with his views to the extent set out in the body of this opinion.
[434-GJ
F
1.6. The Chief Justice oflndia is obliged to comply with the norms and
the requirement of the consultation process, as aforesaid, in making his
recommendations to the Government oflndia. [434-H; 435-A]
1.7. Recommendations made by the Chief Justice of India without
complying with the norms and requirements of the consultation process, as
aforesaid, are not binding upon the Government oflndia. [435-A-B)
Supreme Court Advocates - on Record Association v. Union of India,
G (1993) Supp. 2 SCR 659, followed and explained.
S.P. Gupta v. Union of India, [1982) 2 SCR 365, referred to.
2. The transfer of puisne Judges is judicially reviewable only to this
extent; that the recommendation that has been made by the Chief Justice of
H India in this behalf has not been made in consultation with the four seniormost
-.
SPECIAL REFERENCE NO. I OF 1998 (S.P. BHARUCHA, J.]
403
puisne Judges of the Supreme Court and/or that the views of the Chief A
Justice of the High Court from which the transfer is to be effected and of
the Chief Justice of the High Court to which the transfer is to be effected
have not been obtained. [434-B-C]
K. Ashok Reddy v. Government of India, [1994) 2 SCC 303, referred
3. "Strong congent 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. (434-F-G)
B
c
CIVIL ADVISORY JURISDICTION : Special Reference No. 1 of
1998.
Under Article 143(1) of the Constitution of India.
Soli J. Sorabjee, Attorney General, N. Santosh Hegde, Solicitor General,
C.S. Vaidyanathan, Additional Solicitor General, R.K. Jain, Dr. A.M. Singhvi, D
Arun Jaitley, B.R. Bhattacharya, P.S. Poti, Harish N.Salve, K.K. Venugopal,
Anil B.Divan, Hardev Singh Gopal Subrarnanium, K. Parasaran, M.C. Bhandare,
T.R. Andhyarujina, R.P. Bhat, Sr. Advs., A. Subba Rao, Ms. Devika Bezboruah,
Sanjay Hegde, Manoj Goel, Surya Kant, Ms. H. Wahi, Ms. Neithona Rhetso,
R.P. Goyal, R.B. Misra, Kamlendra Misra, R.C. Verma, Ajay Kumar Aggarwal, E
K. Venkatapathy, A. Mariarputham, Ms. Aruna Mathur, T. Nandakumar Singh,
K.H. Nobin Singh, Gopal Singh, Anis Ahmed, Ms. Radha Rangaswamy, V.N.
Dwivedi, S.L. Saxena, Sakesh Kumar, S.K. Agnihotri, A.R. Barthakur, Kailash
Vasdev, R.S. Sodhi, Lokesh Kumar, Rajiv Mehta, S. Vijaya Shankar, K. R.
Nagaraja, Y.K. Tyagi, Ms. Madhu Sweta, Ms. Shardha, Ramanna, K. Ramkumar,
Ms. Asha Nair, Y. Subba Rao, Ms. Bina Prakash, Govind Das, R.K. Mehta, F
A.K. Gupta , Ms. A. Subhashini, B.A. Ranganadhan, Sanjay Kasol, N.K.
Sharma, Ajay Siwach, Prem Malhotra, P.H. Parekh, Amit Dhingra, Ms. Bina
Madhavan, Mrs. Madhu Moolchandani, G. Prakash, M. K. Damodaran, Naveen
Kr. Singh, Uma Nath Singh, V. G. Pragasam, Sunil Kumar Jain, Vijay Hansaria,
A.S. Pundir, Viswajit Singh, D.K. Garg, R.K. Singh, P.G. Baruah, Mahabir G
Singh, M.L. Sarin, Manoj Swarup, Ms. Indu Malhotra, Shashi Anugrah Narain,
Saket Singh, B.B. Singh, Ranjan Mukherjee, D.M. Nargolkar, Vimal Dave, N.
Ganpathy, V. Krishna Murthy and Aruneshwar Gupta for the appearing parties.
The opinion of the Court was delivered by :
S.P. BHARUCHA, J. Article 143 of the Constitution of India confers H
404
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A upon the President of India the power to refer to this Court for its opinion
questions of law or fact which have arisen or are likely to arise and which
are of such a nature and of such public importance that is expedient to obtain
such opinion. In exercise of this power, the President of India has on 23rd
July, 1998 made the present reference, which is quoted in extenso:
B ·
"WHEREAS the Supreme Court of India has laid down principles and
prescribed procedural norms in regard to the appointment of Judges of the
Supreme Court [article 124(2) of the Constitution oflndia], Chief Justices and
Judges of the High Court [article 217(1)], and transfer of Judges from one
High Court to another [article 222(1)], in the case of Supreme Court AdvocatesC on-Record Association andAnr. v. Union of India, reported in AIR (1994) SC
268;
D
AND WHEREAS doubts have arisen about the interpretation of the law
laid down by the Supreme Court and it is in public interest that the said
doubts relating to the appointment and transfer of Judges be resolved;
AND WHEREAS, in view of what is hereinbefore stated, it appears to
me that the following questions of law have arisen and are of such a nature
and of such public importance that it is expedient to obtain the opinion of
the Supreme Court of India thereon;
E
NOW, THEREFORE, in exercise of the powers conferred upon me by
clause (!) of article 143 if the Constitution of India, I, K.R. Narayanan,
President of India, hereby refer the following questions to the Supreme Court
of India for consideration and to report its opinion thereon, namely,:-
(I) whether the expression "consultation with the Chief Justice of
F
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
G
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 that limited judicial review is available in matters of transfer,
and the extent and scope of judicial review;
(3) whether article 124(2) as interpreted in the said judgment
H
requires the Chief Justice of India to consult only the two seniormost
'
...
SPECIAL REFERENCE NO. I OF I 998 [S.P. BHARUCHA, J.]
405
Judges or whether there should be wider consultation according to A
past practice;
( 4) whether the Chief Justice of India is entitled to act solely in
his individual capacity, without consultation with other Judges of the
Supreme Court in respect of all materials and information conveyed by
the Government of India for non-appointment of a judge recommended B
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 C
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 regard to their appointment to the Supreme Court
referred to in the said judgment, the 'strong cogent reason' required D
to justify the departure from the order of the seniority has to be
recorded in respect of each such senior Judge, who is overlooked,
while making recommendation of a Judge junior to him or her;
(7) whether the government is not entitled to require that the
opinions of the other consulted Judges be in writing in accordance E
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 F
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
Dated: 23.7.1998
Narayanan K.R.
President of India".
G
The decision mentioned in the Reference, in Supreme Court Advocateson-Record Association and Anr. v. Union of India, [1993] Supp 2 SCR 659,
(now referred to as "the second Judges Case") was rendered by a Bench of H
406
SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
A nine learned Judges. It examined these issues :
B
"( 1) Primacy of the opinion of the Chief Justice of India in regard
to the appointments of Judges to the Supreme Court and the High
Court, and in regard to the transfers of High Court Judges/Chief
Justices; and
(2) Justiciability of these matters, including the matter of fixation
of the Judge-strength in the High Courts."
(Page 739)
The issues were required to be examined because a smaller Bench was of the
opinion that the correctness of the majority view in the case of S.P. Gupta &
C Ors. v. Union of India & Ors., (1982] 2 SCR 365, ("the Judges case") required
reconsideration by a larger Bench.
Five judgments were delivered in the second Judges case. Verma, J.
spoke for himself and four learned Judges. Pandian, J. and Kuldip Singh, J.
wrote individual judgments supporting the majority view. Ahmadi, J. dissented,
D adopting, broadly, the reasoning that had found favour in the Judges' case.
Punchhi, .J. took the view that the Chief Justice of India had primacy and that
he was entitled "to consult any number of Judges on the particular proposal.
It is equally within his right not to consult anyone".
The questions in the Presidential reference relate, broadly, to three
E 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;
F (2) judicial review of transfers of Judges : question no.2; and
(3) the relevance of seniority in making appointments to the Supreme Court:
question no.6.
Before quoting what was said in the majority judgment in the second
G Judges case on these aspects, it is necessary to set out the provisions of
Articles 124, 216, 217 and 222 of the Constitution, dealing, respectively, with
the establishment and constitution of the Supreme Court, the constitution of
the High Courts, the appointment and conditions of the office of a Judge of
a High Court and the transfer of a Judge from one High Court to another.
H
"124. Establishment and Constitution of Supreme Court.-{!)
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.]
407
There shall be a Supreme Court of India consisting of a Chief Justice A
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 B
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 of India shall always be consulted:
Provided further that-
(a) a Judge may, by writing under his hand addressed to the President,
resign his office;
c
(b) a Judge may be removed from his office in the manner provided in D
clause (4).
[(2A) The age of a Judge of the Supreme Court shall be determined by
such authority and in such manner as Parliament may by law provide.]
(3) A person shall not be qualified for appointment as a Judge of the E
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 Comts in succession; or
(b) has been for at least ten years an advocate of a High Court or of p
two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation/. - In this clause 'High Court' means a High Court which
•
exercises, or which at any time before the commencement of this Constitution G
exercised, jurisdiction in any part of the territory of India.
Explanation II. - In computing for the purpose of this clause the period
during which a person has been an advocate any period during which a
person has held judicial office not inferior to that of a district judge after he
became an advocate shall be included.
H
408
A
B
c
D
E
F
G
SUPRF.ME COURT REPORTS [1998] SUPP. 2 S.C.R.
(4) A Judge of the Supreme Court shall not be removed from his
office except by an order of the President passed after an address by
each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two
thirds of the members of that House present and voting has been
presented to the President in the same session for such removal on
the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the
presentation of an address and for the investigation and proof of the
misbehavior or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court
shall, before he enters upon his office, make and subscribe before the
President, or some person appointed in that behalf by him, an oath
or affirmation according to the form set out for the purpose in the
Third Schedule.
(7) No person who has held office as a Judge of the Supreme
Court shall plead or act in any court or before any authority within
the territory of India.
216. Constitution of High Courts.-Every High Court shall consist
of a Chief Justice and such other Judges as the President may from
time to time deem it necessary to appoint.
217. Appointment and conditions of the office of a Judge of a
High Court.-(!) Every Judge of a High Court shall be appointed by
the President by warrant under his hand and seal after consultation
with the Chief Justice of India, the Governor of the State, and, in the
case of appointment of a Judge other than the Chief Justice, the Chief
Justice of the High Court and shall hold office, in the case of an
additional or acting Judge, as provided in article 224, and in any other
case, until he attains the age of sixty-two years.
Provided that -
(a) a Judge may, by writing under his hand addressed to the
President, resign his office;
(b) a Judge may be removed from his office by the President in
the manner provided in clause (4) of article 124 for the removal of a
H
Judge of the Supreme Court.
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.]
409
( c) the office of a Judge shall be vacated by his being appointed A
by the President to be 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 -
B
(a) has for at least ten years held a judicial office in the territory
of India; or
(b) has for at least ten years been an advocate of a High Court
or of two or more such courts in succession;
Explanation - For the purposes of this clause -
(a) in computing the period during which a person has held
judicial office in the territory of India, there shall be included any
period, after he has held any judicial office, during which the person
c
has been an advocate of a High Court or has held the office of a D
member of a tribunal or any μost, under the Union or a State, requiring
special knowledge of law;
(aa) in computing the period during which a person has been an
advocate of a High Court, there shall be included any period during
which the person has held judicial offic~ or the office of a member of E
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 F
of this Constitution during which he has held judicial office in any
area which was comprised before the fifteenth day of August, 1947,
within India as defined by the Government of India Act, 1935, or has
been an advocate of any High Court in any such area, as the case may
be.
(3) If any question arises as to the age of a Judge of a High Court,
the question shall be decided by the President after consultation with
the Chief Justice of India and the decision of the President shall be
final.
G
222. Transfer of a Judge from one High Court to another.(!) The H
410
SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
A
president may, after consultation with the Chief Justice oflndia, transfer
a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall, during
the period he serves, after the commencement of the Constitution
(Fifteenth Amendment) Act, 1963, as a Judge of the other High Court,
B
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."
C
The following are extracts of what was said in the majority judgment in
the second Judges case about tbe primacy of the Chief Justice of India in the
matter of appointments of Judges to the Supreme Court and the High Courts
and the need in this behalf of the desirability of consultation between the
Chief Justice of India and his brother Judges:
D
................... "A further check in that limited sphere is provided by the
conferment of the discretionary authority not to one individual but to
a body of men, requiring the final decision to be taken after full
interaction and effective consultation between them, to ensure
projection of all likely points of view and procuring the t,Jement of
plurality in the final decision with the benefit of the collective wisdom
E
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
p
constitutional purpose for which these provisions were enacted." .....
(Page 745 F to 746 A)
........... "Attention has to be focussed on the purpose, to enable better
appreciation of the significance of the role of each participant with the
consciousness that each of them has some inherent limitation, and it
G
is only collectively that they constitute the selector.
The discharge of the assigned role by each functionary, viewed
in the context of the obligation of each to achieve the common
constitutional purpose in the joint venture will help to transcend the
concept of primacy between them. However, ifthere be any disagreement
H
even then between them which cannot be ironed out by joint effort,
SPECIAL REFERENCE NO. l OF 1998 [S.P. BHARUCHA, J.]
411
the question of primacy would arise to avoid stalemate."...........
A
(Page 753 B to 753 C)
.............. "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 B
the worth of the candidate, and his suitability for appointment as a
superior judge; and it was also necessary to eliminate political influence
even at the stage of the initial appointment of a judge, since the
provisions for securing his independence after appointment were alone
not sufficient for an independent judiciary. At the same time, the C
phraseology used indicated that giving absolute discretion or the
power of veto to the Chief Justice of India as an individual in the
matter of appointments was not considered desirable, so that there
should remain some power with the executive to be exercised as a
check, whenever necessary. The indication is, that in the choice of a
candidate suitable for appointment, the opinion of the Chief Justice D
of India should have the greatest weight; the selection should be
made as a result of a participatory consultative process in which the
executive should have power to act as a mere check on the exercise
of power by the Chief Justice of India, to achieve the constitutional
purpose. Thus, the executive element in the appointment process is
reduced to the minimum and any political influence is eliminated. It E
was for this reason that the word 'consultation' instead of
'concurrence' was used, but that was done merely to indicate that
absolute discretion was not given to any one, not even to the Chief
Justice of India as individual, much less to the executive, whi~h earlier
had absolute discretion under the Government of India Act.
F
The primary aim must be to reach an agreed decision taking into
account the views of all the consultees, giving the greatest weight to
the opinion of the Chief Justice of India who, as earlier stated, is best
suited to know the worth of the appointee. No question of primacy
would arise when the decision is reached in this manner by consensus, G
without any difference of opinion." ............... .
(Pages 757 A to 758 C)
"The primacy must, therefore, lie in the final opinion of the Chief
Justice of India, unless for very good reasons known to the executive
and disclosed to the Chief Justice of India, that appointment is not H
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considered to be suitable." ................. .
(Page 758 E)
................... "On the other hand, in actual practice, the Chief Justice of
India and the Chief Justice of the High Court, being responsible for
the functioning of the courts, have to face the consequence of any
unsuitable appointment which gives rise to criticism levelled by the
ever vigilant Bar. That controversy is raised primarily in the courts.
Similarly, the Judges of the Supreme Court and High Courts, whose
participation is involved with the Chief Justice in the functioning of
the courts, and whose opinion is taken into account in the selection
process, bear the consequen.ces and become accountable. Thus, in
actual practice, the real accountability in the matter of appointments
of Superior Judges is of the Chief Justice of India and the Chief
Justices of the High Courts, and not of the executive which has
always held out, as it did even at the hearing before us that, except
for rare instances, the executive is guided in the matter of appointments
by the opinion of the Chief Justice of India." (Page 759 G to 760 A)
.................... "If that is the position in actual practice of the constitutional
provisions relating to the appointments of the superior Judges, wherein
the executive itself holds out that it gives primacy to the opinion of
the Chief Justice of India, and in the matter of accountability also it
indicates the primary responsibility of the Chief Justice of India, it
stands to reason that the actual practice being in conformity with the
constitutional scheme, should also be accorded legal sanction by
permissible constitutional interpretation. This reason given by the
majority in S.P. GUPTA for its view, that the executive has primacy,
does not withstand scrutiny, and is also not in accord with the
existing practice and perception even of the executive.
However, it need hardly be stressed that the primacy of the opinion
of the Chief Justice of India in this context is, in effect, primacy of
the opinion of the Chief Justice of India formed collectively, that is
G
to say, after taking into account the views of his senior colleagues
who are required to be consulted by him for the formation of his
opinion." ....... ..
(Page 760 B to 760 E)
................ "Providing for the role of the judiciary as well as the executive
H
in the integrated process of appointment merely indicated that it is a
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.]
413
participatory consultative process, and the purpose is best served if A
at the end of an effective consultative process between all the
consultees 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 B
without the need of giving primacy to any one of the consultees 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 arise only if the resultant of the consultative
process is not one opinion reached by consensus.
The constitutional puri. JSe to be served by these provisions is C
to select the best from amongst those available for appointment as
Judges of the superior judiciary, after consultation with those
functionaries who are best suited to make the selection." ............. ..
(Pages 761 G to 762 B)
.................. "Even the personal traits of the members of the Bar and the
Judges are quite often fully known to the Chief Justice of India and
the Chief Justice of the High Court who get such information from
various sources. There may however, be some personal trait of an
individual lawyer or Judge, which may be better known to the executive
D
and may be unknown to the Chief Justice of India and the Chief E
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 consultees in the process of appointment.
The object of selecting the best men to constitute the superior judiciary
is achieved by requiring consultation with not only the judiciary but F
also the executive to ensure that every relevant particular about the
candidate is known and duly weighed as a result of effective
consultation between all the consultees, before the appointment is
made." ........... .
(Page 762 F to 762 H)
................... "It has to be borne in mind that the principle of nonarbitrariness 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
G
to be kept in view, and eschewed, in constitutional interpretation and, H
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therefore, the meaning of the opinion of the Chief Justice of India, in
the context of primacy, must be ascertained. A homogenous mixture,
which accords with the constitutional purpose and its ethos, indicates
that it is the opinion of the judiciary 'symbolised by the view of the
Chief Justice of India' which is given greater significance or primacy
in the matter of appointments. Jn other words, the view of the Chief
Justice of India is to be expressed in the consultative process as truly
reflective of the opinion of the judiciary, which means that ii must
necessarily have the element of plurality in its formation. Jn 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
C
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
D
constitutional provisions is found from the reference to the office of
the Chief Justice of India, which has been named for achieving this
object in a pragmatic manner. The opinion of the judiciary 'symbolised
by the view of the Chief Justice of India', and it is this opinion which
has primacy.
E
F
G
H
The rule of law envisages the area of discretion to be the minimum
requiring only the application of known principles or guidelines to
ensure non-arbitrariness, but to that limited extent, discretion is a
pragmatic need. Conferring discretion upon high functionaries and,
whenever feasible, introducing the element of plurality by requiring
collective decision, are further checks against arbitrariness. This is
how idealism and pragmatism are reconciled and integrated, to make
the system workable in a satisfactory manner. Entrustment of the task
of appointment of superior Judges to high constitutional functionaries;
the greatest significance attached to the view of the Chief Justice of
India, who is best equipped to assess the true worth of the candidates
for adjudging their suitability; the opinion of the Chief Justice of
India being the collective opinion formed after laking into account
the views of some of his colleagues; and the executive being permitted
to prevent an appointment considered to be unsuitable, for strong
reasons disclosed to the Chief Justice of India, provide the best
method, in the constitutional scheme, to achieve the constitutional
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.]
415
purpose without conferring absolute discretion or veto upon either A
the judiciary or the executive, much less in any individual, be he the
Chief Justice of India or the Prime Minister.
The norms developed in actual practice, which have crystallised into
conventions in this behalf, as visualised in the speech of the President
of the Constituent Assembly, are mentioned later."
B
(Pages 765 D to 765 E)
"Norms
The absence of specific guidelines in the enacted provisions
appears to be deliberate, since the power is vested in high constitutional C
functionaries and it was expected of them to develop requisite norms
by convention in actual working as envisaged in the concluding
speech of the President of the Constituent Assembly. The hereinafter
mentioned norms emerging from the actual practice and crystallised
into conventions - not exhaustive - are expected to be observed by
the functionaries to regulate the exercise of their discretionary power D
in the matters of appointments and transfers."
(Page 767 F to H)
............... "Appointments
(1) What is the meaning of the opinion of the judiciary 'symbolised E
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. Jn 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 F
into account the views of the two seniormost Judges of the Supreme
Court. The Chief Justice of India is also expected to ascertain the
views of the seniormost Judge of the Supreme Court whose opinion
is likely to be significant in adjudging the suitability of the candidate,
by reason of the fact that he has come from the same High Court or G
otherwise. Article 124(2) is an indication that ascertainment of the
view of some other Judges of the Supreme Court is requisite. The
object underlying Article 124(2) is achieved in this manner as the
Chief Justice of India consults them for the formation of his opinion.
This provision in Article 124(2) is the basis for the existing convention
which requires the Chief Justice of India to consult some Judges of H
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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 conversant
with the affairs of the concerned High Court. The Chief Justice of
India may also ascertain the views of one or more senior Judges of
that High Court whose opinion according to the Chief Justice of
India, is likely to be significant in the formation of his opinion. The
opinion of the Chief Justice of the High Court would be entitled to
the greatest weight, and the opinion of the other functionaries involved
must be given due weight, in the formation of the opinion of the Chief
Justice of India. The opinion of the Chief Justice of the High Court
must be formed after ascertaining the views of at least the two
seniormost Judges of the High Court.
The Chief Justice of India, for the formation of his opinion, has to
adopt a course which would enable him to discharge duty objectively
to select the best available persons as Judges of the Supreme Court
and the High Courts. The ascertainment of the opinion of the other
Judges by the Chief Justice of India and the Chief Justice of the High
Court, and the expression of their opinion, must be in writing to
avoid any ambiguity." ............. ..
(Pages 768 A to 769 A)
............... "(5) The opinion of the Chief Justice of lndia,for the purpose
of Articles 124(2) and 217(1), so given has primacy in the matter
of all appointments; and no appointment can be made by the President
under these provisions to the Supreme Court and the High Courts,
unless it is in conformity with the final opinion of the Chief Justice
of India, formed in the manner indicated.
(6) The distinction between making an appointment in conformity
with the opinion of the Chief Justice of India, and not making an
appointment recommended by the Chief Justice of India to be borne
in mind. Even though no appointment can be made unless it is in
conformity with the opinion of the Chief Justice of India, yet in an
exceptional case, where the facts justify, a recommendee of the Chief
-·
=
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417
Justice of India, if considered unsuitable on the basis of pos!tive A
material available on record and placed before the Chief Justice of
India, may not be appointed except in the situation indicated later.
Primacy is in making an appointment; and, when the appointment is
not made, the ·question of primacy does not arise.