A judicial clarification

Print edition : November 07, 1998

A Constitution Bench of the Supreme Court sets down its opinion in respect of the presidential reference on the issue of appointments and transfers of judges.

A NINE-MEMBER Constitution Bench of the Supreme Court, which heard a presidential reference under Article 143(D), has given its advisory opinion on appointments to the higher judiciary. The opinion given has also cleared any doubts or misgivings created over the Supreme Court's judgment in 1993 on the Advocates-on-Record case. President K.R. Narayanan made the reference on July 23, 1998, after the Government returned the recommendations sent by former Chief Justice of India (CJI) M.M. Punchchi with respect to certain appointments of Judges of the Supreme Court and Chief Justices and Judges of High Courts and the transfer of High Court Judges for reconsideration. There were exchanges between Justice Punchchi and Union Law Minister M. Thambi Durai and the CJI had questioned the Minister's wisdom in returning his recommendation. It was at this juncture that the Union Government decided to take resort to the presidential reference to the Supreme Court.The Union Government had agreed to accept and treat as binding the court's answers to the nine questions set out in the reference.

After considering at length the questions, the Bench, headed by Justice S.P. Bharucha, unanimously expressed the opinion that the expression "consultation with the Chief Justice of India" in Articles 217 (1) and 222 (1) of the Constitution required consultation with a plurality of Judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI did not constitute "consultation" within the meaning of these Articles, the Bench said.

Recommendations made by the CJI that are not in compliance with the norms and requirements of the consultation process were not binding on the Government, the Bench reported to the President. The Bench made it clear that the opinion of the CJI, who had primacy in the matter of making recommendations for appointment to the Supreme Court, had to be formed in consultation with a collegium of Judges. The Bench found it desirable that the collegium consist of the CJI and the four seniormost puisne Judges. Ordinarily, one of the four senior-most puisne Judges of the Supr-eme Court would succeed the CJI, but if the situation should be such that the successor CJI was not one of the four seniormost puisne Judges, he had invariably to be made part of the collegium, the Bench said.

The Bench observed that the CJI's recommendation to appoint a Judge of the Supreme Court or to transfer a Chief Justice or puisne Judge of a High Court had to be made in consultation with the four seniormost puisne Judges of the Supreme Court. In so far as an appointment to a High Court Bench is concerned, the recommendation must be made in consultation with the two seniormost puisne Judges of the Supreme Court. The CJI is also bound to elicit 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.

The transfer of puisne Judges is judicially reviewable only on the question whether CJI has recommended it without going through the consultation process, according to the Bench. This has disappointed those who expected the Bench to make the process of selection of Judges more transparent than it is now. Why not let the entire process of appointment or transfer of a Judge be justiciable, asks Prashant Bhushan, Supreme Court advocate and member of the Committee on Judicial Accountability.

Justice M.M. Punchchi.-P.V. SHIVAKUMAR

BY laying emphasis on a collegium with plurality of Judges, the Bench has sought to ensure, to the extent possible, that the process of judicial appointments is broad-based and transparent. The Bench found it impractical to include in the collegium the seniormost Judge of the Supreme Court who comes from the same High Court as the person to be recommended, unless he or she is a part of the collegium by virtue of being one of the four seniormost puisne Judges.

However, the Bench made it obligatory on the part of the CJI to consult and elicit the views of the seniormost Judge in the Supreme Court who has come from a High Court to which a prospective candidate belongs; if the seniormost Judge does not know the candidate's merits and demerits the CJI has to consult the next seniormost Judge in the Supreme Court from that High Court and obtain his or her views in writing. The requirement of consultation by the CJI with colleagues who are likely to be conversant with the affairs of the High Court concerned refers to those Judges who have that High Court as the parent High Court and those who have occupied the office of a Judge of the High Court on transfer, the Bench explained.

The Bench sought to ensure transparency in the consultation process by insisting that the opinion of all members of the collegium in respect of each recommendation should be given in writing. The CJI must convey these views along with his recommendation to the Government, the Bench suggested. The CJI is also expected to prepare a memorandum of views elicited by him from non-Judges, and convey the same to the Government. The Bench expected that the collegium would make its recommendations based on consensus. If this does not become possible, the Bench made it clear that the appointment of Judges should be in conformity with the opinion of the CJI. The Bench agreed that if the majority of the collegium was against the appointment of a particular person, that person shall not be appointed. The Bench was clear that even if two of the Judges forming the collegium expressed strong views, for good reasons, that were adverse to the appointment of a particular person, the CJI should not press for that person's appointment.

The majority judgment in the Advocates-on-Record case disfavours the appointment of a person recommended as unsuitable. It says that such non-appointment "must be for good reasons, disclosed to the CJI to enable him to reconsider and withdraw his recommendation on those considerations." If the CJI does not find it necessary to withdraw his recommendation even then, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person, for reasons to be recorded, may be permissible in the public interest.

The Supreme Court.-V. SUDERSHAN

However, if after due consideration of the reasons the recommendation is reiterated by the CJI, with the unanimous agreement of the Judges of the Supreme Court consulted in the matter and with the reasons for not withdrawing the recommendation duly recorded, then that appointment ought to be made as a matter of healthy convention, the latest judgment said.

The Constitution Bench considered situations in which one or more members of the collegium that made a particular recommendation retires or are otherwise unavailable when the reasons for the non-appointment of a person are disclosed to the CJI. In that context, the reasons must be placed before the remaining members of the original collegium and another Judge (or Judges) who has reached the required seniority and becomes one of the first four puisne Judges, the Bench said. Only if the reconstituted collegium unanimously reiterated it should the appointment be made, the Bench said. The Bench urged that the number of Judges of the Supreme Court who considered the reasons for non-appointment of a person should be as large as the number that made the particular recommendation.

The Bench held that "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 had to be recorded was the positive reason for the recommendation, the Bench believed. In effect, the Bench overruled the principle of legitimate expectations, which was spelt out in an earlier judgment to mean that the principle of seniority should be adhered to, only subject to the rejection of unfit candidates. Under this principle, the CJI was expected to record reasons why a particular candidate was unfit. The Bench's advice to the President can be interpreted to mean that it will be selection purely on the basis of fitness. Seniority now is only one of the considerations, suggested Prashant Bhushan.

THE Constitution Bench's opinion renders invalid each one of the recommendations for appointment or transfer of Judges sent to the Government by the former CJI, Justice Punchchi. It is now open to the present CJI, Justice A.S. Anand, to reopen the selection process, in the light of the Bench's opinion. While the scope of consultations to select a Judge has certainly been widened, legal experts feel that only a National Judicial Commission can ensure democratic accountability in the matter of appointments to the higher judiciary.

Raju Ramachandran, senior advocate in the Supreme Court, who shares this view, pointed out that there was no scope for any general talk on the subject by the members of the Bench, although it could be said that it is remarkable that a Bench of nine Judges could deliver a unanimous judgment. Prashant Bhushan argues that only a National Judicial Commission with representatives of the judiciary, the Government and the Opposition can ensure that no one institution has complete control over the Judges.

The court's latest advisory opinion, which leaves no scope for ambiguity, is binding not only on the Government, but also on the CJI. While the Bharatiya Janata Party-led Government has shown statesmanship in accepting the opinion as binding, CJIs in future will have no option but to abide by it.

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