Appointment of judges
CJI's
recommendation not binding: SC
NEW DELHI, Oct 28 (PTI)
In a significant unanimous order, a nine-judge
Constitution Bench of the Supreme Court today held that
recommendations made by the Chief Justice of India (CJI)
on the appointment of judges to the apex court and high
courts without following the consultation process was not
binding on the government and widened the scope of CJI's
consultation.
Upholding the government
stand on the consultation process, the Bench headed by Mr
Justice S.P. Bharucha gave their opinion on the nine
queries raised by the President in his reference and said
'consultation process to be adopted by the CJI requires
consultation of plurality of judges. The sole opinion of
the CJI does not constitute consultation process'.
'Recommendations made by
the CJI without complying with the norms and guidelines
regarding the consultation process are not binding on the
government,' the court ruled.
Widening the scope of the
consultation process, it said with regard to appointment
of judges to the Supreme Court, the CJI should consult 'a
collegium of four senior-most judges of the Supreme
Court' and made it clear that even if 'two judges give an
adverse opinion, the CJI should not send the
recommendation to the government'.
However, giving primacy to
the CJI's opinion as laid down by the apex court in its
1993 judgement in the Supreme Court advocates-on-record
association case, the Constitution Bench said. 'The
collegium should make the decision in consensus and
unless the opinion of the collegium is in conformity with
that of the CJI, no recommendation is to be made'.
With regard to transfer of
high court judges, the Bench said in addition to the
collegium of four judges, the CJI was obliged to consult
chief justices of the two high courts concerned (one from
which the judge was transferred and other receiving him).
However, the Bench said,
with regard to appointment of high court Judges, the CJI
was required to consult only two senior-most judges of
the apex court.
The Bench, which included
Mr Justice M. K. Mukherjee, Mr Justice S.B. Majumdar, Mr
Justice Sujata V. Manohar, Mr Justice G.T. Nanavati, Mr
Justice S. Saghir Ahmed, Mr Justice K. Venkataswami and
Mr Justice G.B. Pattanaik, read out the consensus opinion
of the Bench on the presidential reference in a
jam-packed court room.
While meeting the nine
queries raised by the President one by one, the Bench
made it clear that henceforth the CJI should make
recommendations regarding appointments or transfers in
accordance with the guidelines laid down in the 1993
judgement and as per the opinion given today.
'Merit should be the
predominant factor while making any recommendation for
appointment as judges', the Bench said and added that
seniority alone was not the criteria.
However, the Bench said,
'All senior judges of the high court entertain hopes of
elevation to the Supreme Court, the CJI and the collegium
of judges should bear this in mind'.
When a person from the Bar
was being considered for appointment to the Supreme
Court, the Bar should also be consulted, the Bench said.
The 1993 judgement in the
advocates-on-record association case had said that the
CJI was to consult only two senior-most judges of the
Supreme Court regarding appointment and transfer of
judges.
The Bench held that the
transfers of high court judges were subject to judicial
review, but the same right could only be exercised by the
aggrieved judge in a limited manner and none else.
The transfer of a high
court judge was justiciable only on the ground that
proper consultation process was not followed but the
ground of bias was not available to the aggrieved judge
to challenge his transfer, the Bench said.
'When it was said that the
ground of bias was not available for challenging a
transfer, it was to emphasise 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 (CJI) was based, was an
inbuilt check against arbitrariness and bias', it said.
However, the Bench said,
in case any judge challenged his transfer in a court
other than the Supreme Court, the same should exercise
the option of requesting the apex court to take over the
matter to avoid embarrassment.
'If any court other than
the Supreme Court was called upon to decide a matter
relating to the transfer of a high court judge, it should
promptly consider the option of requesting the Supreme
Court to withdraw to itself the case for decision to
avoid any embarrassment'.
Immediately after the
opinion was read out by the court, Attorney-General Soli
Sorabjee said the government's stand on the consultation
process stood vindicated and added that with this
opinion, the process of filling of a large number of
vacancies in the Supreme Court and in high courts would
be expedited.
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