214th Report - Law Commission of India

GOVERNMENT OF INDIALAW COMMISSION OF INDIAProposal for Reconsideration of Judges cases I, II and III - S. P. GuptaVs UOI reported in AIR 1982 SC 149, Supreme Court Advocates-on-Record Association Vs UOI reported in 1993 (4) SCC 441 and SpecialReference 1 of 1998 reported in 1998 (7) SCC 739Report No. 214November 2008

2THE LAW COMMISSION OF INDIA(REPORT NO. 214)Proposal for Reconsideration of Judges cases I, II and III - S. P. Gupta Vs UOIreported in AIR 1982 SC 149, Supreme Court Advocates-on-RecordAssociation Vs UOI reported in 1993 (4) SCC 441 and Special Reference 1 of1998 reported in 1998 (7) SCC 739Forwarded to the Union Minister for Law and Justice, Ministry of Law andJustice, Government of India by Dr. Justice AR. Lakshmanan, Chairman, LawCommission of India, on 21st day of November, 2008.

3The 18 th Law Commission was constituted for a period of threeyears from 1 st September, 2006 by Order No. A.45012/1/2006-Admn.III (LA) dated the 16 th October, 2006, issued by theGovernment of India, Ministry of Law and Justice, Department ofLegal Affairs, New Delhi.The Law Commission consists of the Chairman, the Member-Secretary, one full-time Member and seven part-time Members.ChairmanHon’ble Dr. Justice AR. LakshmananMember-SecretaryDr. Brahm A. AgrawalFull-time MemberProf. Dr. Tahir MahmoodPart-time MembersDr. (Mrs.) Devinder Kumari RahejaDr. K. N. Chandrasekharan PillaiProf. (Mrs.) Lakshmi JambholkarSmt. Kirti SinghShri Justice I. VenkatanarayanaShri O.P. SharmaDr. (Mrs.) Shyamlha Pappu

4The Law Commission is located in ILI Building,2 nd Floor, Bhagwan Das Road,New Delhi-110 001Law Commission StaffMember-SecretaryDr. Brahm A. AgrawalResearch StaffShri Sushil KumarMs. Pawan SharmaShri J. T. Sulaxan RaoShri A. K. UpadhyayDr. V. K. Singh:JointSecretary& Law Officer: Additional Law Officer: Additional Law Officer: Deputy Law Officer: Assistant Legal AdviserAdministrative StaffShri Sushil KumarShri D. ChoudhuryShri S. K. BasuSmt. Rajni Sharma:JointSecretary& Law Officer: Under Secretary: Section Officer: Assistant Library &Information Officer

5The text of this Report is available on the Internet at:http://www.lawcommissionofindia.nic.in© Government Copyright 2008Law Commission of IndiaGovernment of IndiaMinistry of Law and JusticeDepartment of Legal AffairsNew Delhi-110001IndiaThe text in this document (excluding the Government Logos) maybe reproduced free of charge in any format or medium providedthat it is reproduced accurately and not used in a misleadingcontext. The material must be acknowledged as Governmentcopyright and the title of the document specified.Any enquiries relating to this Report should be addressed to theMember- Secretary, the Law Commission of India, 2 nd Floor, ILIBuilding, Bhagwandas Road, New Delhi-110001, India. Fax:91-11-23388870 or E-Mail to lci-dla@nic.in

6Dr. Justice AR. Lakshmanan ILI Building (IInd Floor),(Former Judge, Supreme Court of India) Bhagwandas Road,Chairman, Law Commission of India New Delhi-110 001Tel.: 91-11-23384475Fax: 91-23383564Respected Shri Bhardwajji,21.11.208I am herewith enclosing our 214 th Report on “Proposal for Reconsideration ofJudges cases I, I and III – S.P. Gupta Vs UOI reported in AIR 1982 SC 149,Supreme Court Advocates on Record Association Vs UOI reported in 1993(4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SC 739”.The proposal was placed before the Members of the Commission at 3.30 p.m.today. The Members of the Commission after due discussion anddeliberations have unanimously approved the report of the Commission. TheCommission, as already stated, examined the law on the subject. Variousrecommendations of Parliamentary Standing Committees and law of foreignjurisdiction like America, Australia, Canada and Kenya, where the executiveis the sole authority to appoint Judges or the executive appoints inconsultation with the Chief Justice of the Country have also been considered.I request you to consider this report and do the needful at the earliest.Since the matter is of great importance, I am submitting this reporttoday itself.Yours sincerely,Shri H.R. Bhardwaj,Hon’ble Minister for Law & Justice,( AR. Lakshmanan )------------------------------------------------------------------------------------------------------------Residence: No.1,Janpath, New Delhi-110011. Tel.:91-11-23019465.23793488.23792745E-mail:ch.lc@sb.nic.in

7PROPOSAL FOR RECONSIDERATION OF JUDGES CASES I, II &III – S.P..Gupta Vs UOI reported in AIR 1982 SupremeCourt Advocates on Record Association Vs UOIreported in 1993(4) SCC 441 and Special Reference 1of 1998 reported in 1998 (7) SCC 739Preface : Part 11) Why reconsideration? The Supreme Court inSubhash Sharma Vs U.O.I. (reported in 1991(1)Supp. SCC 594) presided over by Ranganath MisraCJ, M.N. Venkatachaliah and M.M. Punchi JJ hadexpressed, doubts about the correctness of theinterpretation of the word “consultation” inregard to the appointment of judges in S.P.Gupta Vs U.O.I. (reported in 1982 SC 149) in thefollowing words (in paras 43 & 45 of the saidjudgment):-“The word ‘consultation’ is used in aconstitutional provision in recognition of thestatus of the High constitutional dignitary who

8formally expresses the result of theinstitutional process leading to the appointmentof judges.To limit that expression to itsliteral limitation shorn of its constitutionalbackground and purpose is to borrow JusticeFrankfurter’s phrase “to stick in the bark ofwords.”The judges in that case had opined that“Judicial Review is a part of the basicconstitutional structure and one of the basicfeatures of the essential Indian constitutionalpolicy.The essential constitutional doctrinedoes not by itself justify or necessitate anyprimacy of the executive wing on the ground ofits political accountability to the electorate.On the contrary what is necessary is aninterpretation sustaining the strength andvitality of Judicial Review.It might undercertain circumstances be said that government isnot bound to appoint a Judge so recommended by

9the judicial wing.But to contemplate a powerfor the executive to appoint a person despitehis being disapproved or not recommended by theChief Justice of the State and the Chief Justiceof India would be wholly inappropriate and wouldconstitute an arbitrary exercise of power. Thenagain, whenever there might be difference ofopinion between the Chief Justice of a state andthe Chief Justice of India – Some of the weightyreasons in this behalf are set out by the otherthree Judges in their opinion – the opinion ofthe Chief Justice of India should have thepreponderant role. We are of the view that theprimacy of the Chief Justice of India in theprocess of selection would improve the qualityof selection. The purpose of the ‘consultation’is to safeguard the independence of thejudiciary and to ensure selection of properpersons.The matter is not, therefore, to beconsidered that the final say is the exclusive

10prerogative of the executive government.Therecommendations of the appropriateconstitutional functionaries from the judicialorgan of the State has an equally importantrole.“Consultation should have sinews toachieve the constitutional purpose and shouldnot be rendered sterile by a literalinterpretation.Who is able to decide thequalities of lawyers proposed to be elevated tothe bench more than the judges of the SuperiorCourts before whom they practice?There arepreponderant and compelling considerations whythe views of the Chief Justices of the Statesand that of the Chief Justice of India should beafforded a decisive import unless the executivehas some material in its possession which mayindicate that the appointment is otherwiseundesirable.(Para 44)The View which the four learned judges shared inGupta’s case, in our opinion, does not recognize

11the special and pivotal position of theinstitution of the Chief Justice of India.(Para45) The correctness of the opinion of themajority in S.P. Gupta case relating to thestatus and importance of consultation, theprimacy of the position of the Chief Justice ofIndia and the view that the fixation of Judgestrength is not justiciable should bereconsidered by a larger bench. (Para 45)Emphasis SuppliedThe operative part of the order of reference iscontained in para 49 “as in our opinion thecorrectness of the majority view in S.P. Guptacase should be considered by a larger bench wedirect the papers of W.P. No. 1303 of 1987 to beplaced before the learned Chief Justice forconstituting a bench of nine Judges to examinethe two questions we have referred to above,namely, the position of the Chief Justice ofIndia with reference to primacy and, secondly,

12justiciability of fixation of judge strength”.In para 51 the Hon’ble Bench has clarified:-We clarify that apart from the two questionswhich we have indicated, all other aspects dealtwith by us are intended to be final by ourpresent order. (Emphasis supplied)Therefore, only two questions were referred tothe bench of nine judges namely (1) The positionof the Chief Justice of India with reference toprimacy and (2) The justiciability of thefixation of the judge strength. It is importantto note that no other question was referred tothe larger bench.2. The first judges case S.P. Gupta Vs Union ofIndia and Ors.At this point it may berelevant to know as to what was decided by themajority judgment in the bench presided overby P.N. Bhagwati, A.C. Gupta, S.M. Fazal Ali,V.D. Tulzapurkar, D.A. Desai, R.S. Pathak and

13E.S. Venkataramaiah JJ, in S.P. Gupta’s casethe correctness of which was doubted inSubhash Sharma’s case.The relevant portion of the majority judgmentdelivered by Justice P.N.Bhagwati speaking forhimself in regard to the expression“consultation” occurring in 217 of theconstitution is extracted herebelow:“Each of the three constitutionalfunctionaries occupies a high constitutionaloffice and Cl. (1) of Art. 217 provides thatthe appointment of a High Court Judge shall bemade after consultation with the functionarieswithout assigning superiority to the opinionof one over that of another. It is true thatthe Chief Justice of India is the head of theIndian judiciary and may be figurativelydescribed as paterfamilias of the brotherhoodof Judges but the Chief Justice of a HighCourt is also an equally important

14constitutional functionary and it is notpossible to say that so far as theconsultative process is concerned, he is inany way less important than the Chief Justiceof India.In fact, under the constitutionalscheme, the Chief Justice of a High Court isnot subject to the administrativesuperintendence of the Chief Justice of Indianor is under the control of supervision of theChief Justice of India………..If primacy were to be given to the opinion ofthe Chief Justice of India, it would, ineffect and substance amount to concurrence,because giving primacy would mean that hisopinion must prevail over that of the ChiefJustice of the High Court and the Governor ofthe State, which means that the CentralGovernment must accept his opinion. But it isonly consultation and not concurrence of the

15Chief Justice of India that is provided in Cl.(1) of Art. 217.(Para 29). (emphasis supplied)There must be a collegium to makerecommendation to the President in regard toappointment of a Supreme Court or High CourtJudge.The recommending authority should bein consultation with wider interests. If thecollegium is composed of persons who areexpected to have knowledge of the persons whomay be fit for appointment on the Bench and ofqualities required for appointment and thislast requirement is absolutely essential – itwould go a long way towards securing the rightkind of Judges, who would be truly independentand who would invest the judicial process withsignificance and meaning for the deprived andexploited sections of humanity.” (para 30)Regarding fixation of judge strength themajority judgment was of the view that thiswas not justiciable and no Mandamus could

16issue. This aspect however has lost itssignificance because in the case of SubhashGupta the Attorney General made a statementthat the government had no objection to theHon’ble Court going into the question.3. The second Judges case Supreme Court Advocateson Record Association and others vs U.O.I.(reported in 1993(4) SCC 441It is in this backdrop that the nine judgesbench was constituted and judgment wasdelivered on 06/10/1993. The judgment runsinto 306 pages and travels far beyond theorder of reference.Noted jurist Late H.M.Seervai in his Constitutional Law of Indiafourth edition Silver Jubilee Edition (Volume1) has criticized this judgment and called it“null and void” for not following themandatory provisions of article 145(4) and (5)– (which is clear from the dissenting judgmentof Justice M.M. Punchi, the relevant portion

17of which is reproduced in the succeeding para)– which are not a matter of form ortechnicality but a matter of substance aspointed out in Mohhammad Akill vs Azad-unnisaaBibi’s case by Sir Barrnes Peacock C.J.,speaking on this point for a bench of ninejudges. “It is not a mere technical objectionbut is upon a fundamental principle essentialto the due administration of justice thatevery judicial act which is done by theseveral judges ought to be completed in thepresence of the whole of them…If afterdiscussion, and after deliberately weighingthe arguments of each other, the judges cannotagree, their several judgments ought to bedelivered in open court in the presence of theothers.” (Wyman’s Report Vol.5, p.69 quoted inRohilkhand Kumaon Bank Ltd. vs Row (1884) 6All. 468 at 474. (taken from Seervai’sConstitutional Law of India fourth edition

18vol.3).The noted jurist calls the judgment “null andvoid” (please see page 2936 Constitutional Lawof India by H M Seervai volume 3 fourthedition)At this stage it is essential to note thelament contained in the opening paragraph ofJustice M M Punchi’s dissenting judgment atpara 488 of 1993 (4) SCC 441 referred to inthe preceding paras.“Para 488 – M.M. Punchi J. (dissenting) – Thisopinion is in the nature of epilogue, thoughnot in stricto sensu.Much has already beenwritten on the two topics under reference tothis Bench, and on others as well withoutreference.I on my part would have liked toavoid making any addition thereto but it seemsthe turn of events leave me no choice. I feelit would be dereliction to withhold

19contributing and leave unsaid what needs to besaid (emphasis supplied)Para 490 – “This nine judge bench sat fromApril 7, 1993, to hear this momentous matterconcluding its hearing on May 11, 1993 closeto the onset of the summer vacation.Ientertained the belief that we all, after July12, 1993, on the reopening of the Court, ifnot earlier, would sit together and hold somemeaningful meetings, having a free and frankdiscussion on each and every topic which hadengaged our attention, striving for aunanimous decision in this historic matterconcerning mainly the institution of the ChiefJustice of India, relatable to this Court. Iwas indeed overtaken when I received the draftopinion dated June 14, 1993 authored by mylearned brother J.S. Verma, J. for himself andon behalf of my learned Brethren YogeshwarDayal, G.N. Ray, Dr. A.S. Anand and S.P.

20Bharucha, JJ.The fait accompli appeared astark reality; the majority opinion anaccomplishment. The hopes I entertained of afree and frank discussion vanished. But thencame the opinion dated August 24, 1993 of mylearned brother Ahmadi, J. like a pebble ofhope hewn out of a mountain of despair,followed by the opinions of my learnedBrethern Kuldip Singh and Pandian, JJ. datedSeptember 7, 1993 and September 9, 1993respectively. No meaningful meeting thereafterwas possible as the views by that time seemedto have been polarized. So now the firmopinions of the eight Brethren, ascommunicated, are known to me.Loaded withthese opinions, I set out to express my own,more as a duty to the venture embarked upon,for I owe it immeasurably, for being party tothe referral.”

21Para 491 – “At the outset, I must remove amisgiving pertaining to the contents andthrust of the order of referral re correctnessof S.P. Gupta vs Union of India, the opinionof which was authored by the then ChiefJustice of India, Shri Ranganath Misra, andconcurred to by the present Chief Justice ofIndia Shri M.N. Venkatachaliah (then as apuisne judge) and by me. We had referred onlytwo questions to a Bench of nine Judges,namely, to test the correctness of the opinionof the majority in S.P. Gupta case relating tothe status and importance of consultation andthe primacy of the position of the ChiefJustice of India, and whether fixation ofJudge strength was not justiciable, clarifyingin the ultimate paragraph that apart from thetwo questions aforeindicated all other aspectsdealt with were intended to be final by thesaid order. As I view it, due to the rigidity

22of its terms, except for the two questionsspecifically referred, no other matter wasopen to canvass as has seemingly been done.(full text is not extracted for the sake ofbrevity. “Please see page 712 of thejudgment).In the penultimate para of his concurringjudgment Kuldip Singh J. whose judgment cameas late as September 7, 1993 (when theoriginal majority judgment was signed on 14 thJune, 1995) makes the following observations“Before parting with the judgment it would beappropriate to say that the opinion circulatedby Verma J. was based on elaborate discussionamongst the Brother Judges who were availableand participated in the discussion.AlthoughVerma, J. incorporated various suggestions inhis original draft but a feeling left lurkingin my mind that I have something more to say

23in support of the conclusions reached byVerma, J. and that is how I ventured to embarkupon writing a separate opinion”.It is therefore clear that there was nodiscussion, no meeting of minds and noconsensus among the 9 judges on 14 of June1993 when the final draft judgment was signedby Justice Verma who spoke for himself and onbehalf of Yogeshwar Dayal, G.N. Ray, Dr. A.S.Anand and S.P. Bharucha, JJ.The judgmenttherefore plainly is Per Incuriam.4. What was decided by the majority judgmentheaded by Justice Verma?Following the suggestion made by JusticeBhagwati in the SP Gupta case that thereshould be a ‘collegium’ which should beconsulted by the Chief Justice of India inevery appointment the nine judge bench,speaking through Justice Verma laid downfourteen conclusions which are as follows:-

241.The process of appointment of Judges to theSupreme Court and the High Courts is anintegrated ‘participatory consultativeprocess’ for selecting the best and mostsuitable persons available for appointment;and all the constitutional functionariesmust perform this duty collectively with aview primarily to reach an agreed decision,sub serving the constitutional purpose, sothat the occasion of primacy does notarise.2.Initiation of the proposal for appointmentin the case of the Supreme Court must be bythe Chief Justice of India, and in the caseof a High Court by the Chief Justice of thatHigh Court; and for transfer of aJudge/Chief Justice of a High Court, theproposal has to be initiated by the ChiefJustice of India.This is the manner inwhich proposals for appointments to the

25Supreme Court and the High Courts as well asfor the transfers of Judges/Chief Justicesof the High Courts must invariably be made.3.In the event of conflicting opinions by theconstitutional functionaries, the opinion ofthe judiciary sumbolised by the view of theChief Justice of India, and formed in themanner indicated, has primacy.4.No appointment of any Judge to the SupremeCourt or any High Court can be made, unlessit is in conformity with the opinion of theChief Justice of India.5. In exceptional cases alone for stated strongcogent reasons, disclosed to the ChiefJustice of India, indicating that therecommendee is not suitable for appointment,the appointment recommended by the ChiefJustice of India may not be made.However,if the stated reasons are not accepted bythe Chief Justice of India and the other

26Judges of the Supreme Court who have beenconsulted in the matter, on reiteration ofthe recommendation by the Chief Justice ofIndia, the appointment should be made as ahealthy convention. (Emphases Supplied).6. Appointment to the office of the ChiefJustice of India should be of theseniormost Judge of the Supreme Courtconsidered fit to hold the office.7. The opinion of the Chief Justice of Indiahas not mere primacy, but isdeterminative in the matter of transfersof High Court Judges/Chief Justices.8. Consent of the transferred Judge/ChiefJustice is not required for either thefirst or any subsequent transfer from oneHigh Court to another.9. Any transfer made on the recommendationof the Chief Justice of India is not to

27be deemed to be punitive, and suchtransfer is not justiciable on anyground.10.In making all appointments and transfers,the norms indicated must be followed.However, the same do not confer anyjusticiable right in anyone.11. Only limited judicial review on thegrounds specified earlier is available inmatters of appointments and transfers.12.The initial appointment of a Judge can bemade to a High Court other than that forwhich the proposal was initiated.13.Fixation of Judge strength in the HighCourt is justiciable, but only to theextent and in the manner indicated.14.The majority opinion in S.P. Gupta Vs Unionof India in so far as it takes the contraryview relating to primacy of the role of theChief Justice of India in matters of

28appointments and transfers, and thejusticiability of these matters as well asin relation of Judge strength, does notcommend itself to us as being the correctview.The relevant provisions of theConstitution, including the constitutionalscheme must now be construed, understood andimplemented in the manner indicated hereinby us. (para 486).Para 487 states that this summary has to be readalongwith the earlier part, where in theconclusions are elaborately stated with thereasons which in effect means that para 487 hasto be read and incorporated in to theconclusions enumerated above.The said paraprovides as follows:-“What is the meaning of the opinion of thejudiciary ‘symbolised by the view of the ChiefJustice of India?”

29“This opinion has to be formed in a pragmaticmanner and past practice based on convention isa safe guide.In matters relating toappointments in the Supreme Court, the opiniongiven by the Chief Justice of India in theconsultative process has to be formed takinginto account the views of the two seniormostJudges of the Supreme Court. The Chief Justiceof India is also expected to ascertain the viewsof the senior-most judge of the Supreme Courtwhose opinion it likely to be significant inadjudging the suitability of the candidate, byreason of the fact that he has come from thesame High Court, or otherwise. Article 124 (2)is an indication that ascertainment of the viewsof some other Judges of the Supreme Court isrequisite. The object underlying Article 124(2)is achieved in this manner as the Chief Justiceof India consults them for the formation of hisopinion.This provision in Article 124 (2) is

30the basis for the existing convention whichrequired the Chief Justice of India to consultsome Judges of the Supreme Court before makinghis recommendation.This ensures that theopinion of the Chief Justice of India is notmerely his individual opinion, but an opinionformed collectively by a body of men at the apexlevel in the judiciary.In matters relating to appointments in the HighCourts, the Chief Justice of India is expectedto take into account the views of his colleaguesin the Supreme Court who are likely to beconversant with the affairs of the concernedHigh Court. The Chief Justice of India may alsoascertain the views of one or more senior Judgesof that High Court whose opinion, according tothe Chief Justice of India, is likely to besignificant in the formation of his opinion.The opinion of the Chief Justice of High Courtwould be entitled to the greatest weight, and

31the opinion of the other functionaries involvedmust be given due weight, in the formation ofthe opinion of the Chief Justice of India. Theopinion of the Chief Justice of High court mustbe formed after ascertaining the views of atleast the two seniormost Judges of the HighCourt.The Chief Justice of India, for the formation ofhis opinion, has to adopt a course which wouldenable him to discharge his duty objectively toselect the best available persons as judges ofthe Supreme Court and the High Courts.Theascertainment of the opinion of the other Judgesby the Chief Justices of India and theChiefJustice of High Court, and the expression oftheir opinion, must be in writing to avoid anyambiguity.For a full coverage of all details and reasonswhich are summarized in the conclusionsaforementioned which are not being repeated for

32the sake of brevity, Please see page 702 to 706of the judgment (Supreme Court Advocates onRecord Assn. Vs Union of India reported in 1993(4) SCC 441).Clearly the court has transgressed far beyondthe order of reference and covered many aspectswhich were not in the contemplation of thereferring order.Instead of clarifying mattersthe judgment of nine judges has created moreambiguity than before.5. The third judges case : (special reference No.1of 1998) reported in (1998) (7) SCC 739.The President of India who requiredclarification and light on the second judgescase made a reference to the Supreme Court underarticle 143 of the Constitution which is asfollows:-“Whereas the Supreme Court of India has laiddown principles and prescribed procedural normsin regard to the appointment of Judges of the

33Supreme Court [Article 124 (2) of theConstitution of India], Chief Justices andJudges of the High Court [Article 217(1)], andtransfer of Judges from one High Court toanother {Article 222 (1)}, in the case ofSupreme Court Advocates-on-Record Assn. Vs.Union of India;And whereas doubts have arisen about theinterpretation of the law laid down by theSupreme Court and it is in public interest thatthe said doubts relating the appointment andtransfer of Judges be resolved.And whereas, in view of what is hereinbeforestated, it appears to me that the followingquestions of law have arisen and are of such anature and of such public importance that it isexpedient to obtain the opinion of the SupremeCourt of India thereon;Now, therefore, in exercise of the powersconferred upon me by clause (1) of Article 143

34of the Constitution of India, I, K.R. Narayanan,President of India, hereby refer the followingquestions to the Supreme Court of India forconsideration and to report its opinion thereon,namely:-1.Whether the expression ‘consultation with theChief Justice of India in Articles 217 (1) and222(1) requires consultation with a pluralityof Judges in the formation of the opinion ofthe Chief Justice of India constituteconsultation within the meaning of the saidarticles;2.Whether the transfer of Judges in judiciallyreviewable in the light of the observation ofthe Supreme Court in the aforesaid judgmentthat ‘such transfer is not justiciable on anyground’ and its further observation thatlimited judicial review is available inmatters of transfer, and the extent and scopeof judicial review;

353.Whether Article 124(2) as interpreted in thesaid judgment required the Chief Justice ofIndia to consult only the two seniormostJudges or whether there should be widerconsultation according to past practice;4.Whether the Chief Justice of India is entitledto act solely in his individual capacity,without consultation with other Judges of theSupreme Court in respect of all materials andinformation conveyed by the Government ofIndia for non-appointment of a Judgerecommended for appointment;5.Whether the requirement of consultation by theChief Justice of India with his colleagues,who are likely to be conversant with theaffairs of the High Court concerned refers toonly those Judges who have that High Court asa parent High Court and excludes Judges whohad occupied the office of a Judge or Chief

36Justice of that Court on transfer from theirparent or any other court;6.Whether in the light of the legitimateexpectations of senior Judges of the HighCourt in regard to their appointment to theSupreme Curt referred to in the said judgment,the ‘strong cogent reason’ required to justifythe departure from the order of the seniorityhas to be recorded in respect of each suchsenior Judge, who is overlooked, while makingrecommendation of a Judge junior to him orher;7.Whether the Government is not entitled torequire that the opinions of the otherconsulted Judges be in writing in accordancewith the aforesaid Supreme Court judgment andthat the same be transmitted to the Governmentof India by the Chief Justice of India alongwith his views;

378.Whether the Chief Justice of India is notobliged to comply with the norms and therequirement of the consultation process inmaking his recommendation to the Government ofIndia;9.Whether any recommendations made by the ChiefJustice of India without complying with thenorms and consultation process are bindingupon the Government of India?New DelhiNarayanan, K.R.Dated: 23-7-1998President of IndiaA bench of nine Judges was constitutedcomprising of S.P. Barucha, M.K. Mukherjee, S.B.Majumdar, Sujata V. Manohar, G.T. Nanavati, S.Saghir Ahmad, K. Venkataswami, B.N. Kirpal and G.B.Pattanaik, JJ and the court answered the saidreference unanimously in the following manner inpara 44 of the reference:“The questions posed by the reference are nowanswered but we should emphasize that the

38answers should be read in conjunction with thebody of this references1. The expression “consultation with the ChiefJustice of India” in Articles 217(1) and222(1) of the Constitution of Indiarequired consultation with a plurality ofjudges in the formation of the opinion ofthe Chief Justice of India. The soleindividual opinion of the Chief Justice ofIndia does not constitute “consultation”within the meaning of the said articles.2. The transfer of puisne Judges is judiciallyreviewable only to this extent that therecommendation that has been made by theChief Justice of India in this behalf hasnot been made in consultation with the fourseniormost Judges of the Supreme Court and/or that the views of the Chief Justice ofHigh Court from which the transfer is to beeffected and of the Chief Justice of High

39Court to which the transfer is to beeffected have not been obtained.3. The Chief Justice of India must make arecommendation to appoint a Judge of theSupreme Court and to transfer a ChiefJustice or puisne Judge of a High Court inconsultation with the four seniormostpuisne Judges of the Supreme Court.Insofar as an appointment to the High Courtis concerned, the recommendation must bemade in consultation with the twoseniormost puisne Judges of the SupremeCourt.4. The Chief Justice of India is not entitledto act solely in his individual capacity,without consultation with other Judges ofthe Supreme Court, in respect of materialsand information conveyed by the Governmentof India for non-appointment of a Judgerecommended for appointment.

405. The requirement of consultation by theChief Justice of India with his colleagueswho are likely to be conversant with theaffairs of the High Court concerned doesnot refer only to those Judges who havethat High Court as a parent High Court. Itdoes not exclude Judges who have occupiedthe office of a Judge or Chief Justice ofthat High Court on transfer.6. “Strong cogent reasons” do not have to berecorded as justification for a departurefrom the order of seniority in respect ofeach senior Judge who has been passed over.What has to be recorded is the positivereason for the recommendation.7. The views of the other Judges consultedshould be in writing and should be conveyedto the Government of India by the ChiefJustice of India along with his views to

41the extent set out in the body of hisopinion.8. The Chief Justice of India is obliged tocomply with the norms and the requirementof the consultation process, asaforestated, in making his recommendationsto the Government of India.9. Recommendations made by the Chief Justiceof India without complying with the normsand requirements of the consultationprocess, as aforestated, are not bindingupon the Government of India (emphasissupplied)Part-IIAnalysis of the judges cases I, II & III – I, II &III – S.P. Gupta Vs. UOI reported in AIR 1982Supreme Court 149, Supreme Court Advocates on RecordAssociation Vs. UOI reported in 1993(4) SCC 441 and

42Special Reference 1 of 1998 reported in 1998 (7) SCC7391. In the three judges cases, I, II & III – S.P.Gupta Vs UOI reported in AIR 1982 Supreme Court149, Supreme Court Advocates on RecordAssociation Vs UOI reported in 1993(4) SCC 441and Special Reference 1 of 1998 reported in1998(7) SCC 739, the Supreme Court has virtuallyre-written Articles 124(2) and Articles 217which pertain to appointment of Supreme CourtJudges respectively. The text of Article 124(2)is as follows:-124(2) Every judge of the Supreme Court shall beappointed by the President by warrant under hishand and seal after consultation with such ofthe Judges of the Supreme Court and of the HighCourts in the States as the President may deemnecessary for the purpose and shall hold officeuntil he attains the age of sixty-five years:

43Provided that in the case of appointment of aJudge other than the Chief Justice, the ChiefJustice of India shall always be consulted:217(1) Every Judge of a High Court shall beappointed by the President by warrant under hishand and seal after consultation with the ChiefJustice of India, the Governor of the State,and, in the case of appointment of a Judge otherthan the Chief Justice, the Chief Justice of theHigh Court, and shall hold office, in the caseof an additional or acting judge, as provided inArticle 224, and in any other case, until heattains the age of sixty-two years.The word “collegium” is no where present in theconstitution.It was first used by Bhagwati Jin the majority judgement of S.P. Gutpa vs. UOI(4:3) In Para 29 “There must be a collegium tomake recommendations etc.” …… (already extractedin Para 2 of Part-1) Again in the Presidentialreference the expression “collegium” and

44“collegium of judges” has been freely used(Paras 15 and 22 to cite a few instances)It is submitted that any addition of words inthe constitution would not be permissible underthe interpretive jurisdiction of the SupremeCourt.The Supreme Court has to interpret theconstitution as it is.2. The advisory opinion in the guise of clarifyingdoubts raised regarding the norms laid down inthe Judges II case has virtually reviewed itsearlier decision.It is respectfully submitted that the opinionexpressed in an advisory opinion is contrary tothe plain language of article 124(2). What thearticle says is that the President shall consultthe Chief Justice of India and such of thejudges of the Supreme Court or the high court ashe deems necessary. The article does not placeany ceiling or limitation on the number ofjudges other than the Chief Justice of India to

45be consulted.The President should always acton the aid and advice of the Council ofMinisters (article 74).However, contrary towhat was said in the Constitution, both theJudges II and Judges III cases have laid downthat consultation with the Chief Justice ofIndia means a collegium consisting of the ChiefJustice of India and two or four judges as thecase may be. Further, in both the cases it wasstated that it is the Chief Justice of India whoshould consult with collegium of judges, whereasConstitution says that the President shouldconsult the Chief Justice of India and suchjudges as he deems necessary.3. The three judges cases, i.e. the two judgementsof the Supreme Court and one opinion on aSpecial Reference have all dealt with the scopeof “consultation” and it was in the SecondJudges Case that the Supreme Court evolved theconcept of ‘primacy’ for the opinion of the

46Chief Justice of India, which itself was to bebased on a consultative process amongst thesenior colleagues of the Chief Justice of India.At the hearing of the Special Reference for theopinion of the Court about the extent of the‘consultative’ process, it was conceded onbehalf of the Executive (and recorded in theCourt’s opinion) that the Government was notseeking a review or reconsideration of thejudgement in the Second Judges case and that itwould accept as binding (although an opinion andnot a decision) the answers of the Court to thequestions incorporated in the Special Reference.4. The Supreme Court’s opinion in the SpecialReference not only strongly reinforced theconcept of “primacy” of the Chief Justice ofIndia’s opinion but also increased the number ofjudges the Chief Justice of India must consultbefore providing his opinion and laid down adetailed set of guidelines on the procedure to

47be followed in arriving at the Chief Justice ofIndia’s opinion to which “primacy” was attached.The procedure in effect transferred the“primacy” from the Chief Justice of India to thegroup of Judges to be consulted.5. The collegium is now to consist of the ChiefJustice of India and four (instead of two)senior-most judges of the court in theappointment of a high court judge, the SupremeCourt judge acquainted with that particular highcourt should also be consulted raising thenumber to six. The increased size of the groupthat has to be a part of the consultationprocess with several interests being involvedhas made the consultation process cumbersome anddelays in filling up of vacancies is bound toarise. The Presidential Reference also providesthat every communication with the consultee hasto be in writing and the views should becommunicated to the Government.There is no

48indication as to what happens if there is noconsensus among the consultees or if themajority dis-agrees with the Chief Justice ofIndia. S.P. Gupta has laid down that the entirecorrespondence and communication between variousauthorities are open to public scrutiny (sincethe entire record was summoned, perused and madepublic in that case).Part-IIIRecommendations1. From what has been stated above it is clearthat an entire reconsideration I, II & IIIjudges cases – S.P. Gupta Vs UOI reported inAIR 1982 Supreme Court 149, Supreme CourtAdvocates on Record Association Vs UOIreported in 1993(4) SCC 441 and SpecialReference 1 of 1998 reported in 1998(7) SCC

49739, is urgently and immediately called for inorder to bring about clarity and consistencyin the process of Appointment of Supreme Courtand High Court Judges.2. The Eighty Fifth Report on Law’s Delays:Arrears in Courts has expressed the same view.The same is extracted here below:“The Committee is aware that for this state ofaffairs the Union Law Ministry is notblameworthy, as the entire process ofinitiation of proposal for appointment of newjudges is no longer the responsibility of theExecutive as a result of a decision of theSupreme Court. Though it was not contemplatedin the Constitution, responsibility forjudicial appointments now rests in the domainof the judiciary. The Union Law Minister isaccountable to Parliament for the delay infilling up of the vacancies of judges but hehas functionally no contribution to make. The

50Supreme Court read into the Constitution apower to appoint judges that was not conferredupon it by the text or the context. Theunderlying purpose of securing judicialindependence was salutary but the method ofacquiring for the Court the exclusive power toappoint judges by the process of judicialinterpretation is open to question. Againstthis backdrop the Committee recalls a recentdiscussion in the Rajya Sabha in which theGovernment was asked regarding alternatearrangements to fill up the vacancies andwhether there was any scope for having a freshreview of the Supreme Court’s judgment.The position as it exists in different countriesmay be noticed at this stage. On a scrutiny ofseveral constitutions of other countries it may beseen that in all other Constitutions either theexecutive is the sole authority to appoint judges orthe executive appoints in consultation with the

51Chief Justice of the country. The IndianConstitution has followed the latter method.However, the 2 nd judges case Advocates on RecordAssociation vs. U.O.I. (1993(4) SCC 441), as we haveseen in the discussion above, has completelyeliminated and excluded the executive and theopinion of the Hon’ble Supreme Court in thePresidential reference (Special Reference 1 of 1998)has reaffirmed this view with slight modifications.In America the State judges are elected. Whenthey are not elected their appointment is subject tolegislative concurrence. In the Supreme Court it isthe President who nominates the Judges but thenomination has to be confirmed by the Senate. InAustralia it is the executive that appoints judges.In Canada the Governor General makes the appointmentof judges.In New Zealand the Chief Justice is appointed onthe recommendations of the Prime Minister by thePresident. The Prime Minister in turn consults the

52Attorney General; the A.G. informally consults thePresident of Court of Appeal and other judges.As for High Court Judges, Chief Justicerecommends after consulting other Judges and givesthe list to the AG for scrutiny. AG scrutinizes thelist, consults New Zealand Law Society and thencandidate’s consent is sought. Thereafter theCabinet finally recommends the names to the GovernorGeneral who issues the appointment letter.Recently, the judges from the Apex Court and theHigh Court of Kenya came to the Supreme Court andthey addressed the Supreme Court Bar. They confirmedthat they have a National Judicial Commission whichundertakes the selection process. In this NationalJudicial Commission there is the Attorney Generaland the Chief Justice, two senior most judges of theApex Court and an expert.Thus it may be seen that in all theConstitutions, the executive has a role to play andin some countries a major and exclusive role. The

53Indian Constitution provides a beautiful system ofchecks and balances under Articles 124(2) and 217(1)for the appointment of Judges of the Supreme Courtand High Courts where both the executive andjudiciary have been given a balanced role. Asalready stated this delicate balance has been upsetby the 2 ndJudges case (Advocate on RecordAssociation Vs Union of India 1993(4) SCC 4412 andthe opinion of the Supreme Court in the PresidentialReference (Special Reference No.1 of 1998). It istime the original balance of power is restored.The above recommendation for the need for anurgent and immediate review of the present procedurefor appointment of judges is further fortified bythe views expressed by Justice J.S. Verma, who wrotethe lead judgment in Advocates on Record vs. Unionof India 1993(4) SCC 441, by his fortright viewsexpressed in an interview in the Front Line Magazinedated 10.10.1998.The relevant portion isreproduced below:

54When asked “you said in one of your speechesthat judicial appointments have become judicialdisappointments. Do you now regret your 1993judgement? Justice Verma stated “My 1993 judgement,which holds the field, was very much misunderstoodand misused. It was in that context I said theworking of the judgment now for some time is raisingserious questions, which cannot be calledunreasonable. Therefore, some kind of rethink isrequired. My judgement says the appointment processof High Court and Supreme Court Judges is basicallya joint or participatory exercise between theexecutive and the judiciary, both taking part in it.Broadly, there are two distinct areas. One isthe area of legal acumen of the candidates toadjudge their suitability and the other is theirantecedents. It is the judiciary, that is, the ChiefJustice of India and his colleagues or, in the caseof the High Courts, the Chief Justice of the HighCourt and his colleagues (who) are the best persons

55to adjudge the legal acumen. Their voice should bepredominant. So far as the antecedents areconcerned, the executive is better placed than thejudiciary to know the antecedents of candidates.Therefore, my judgement said that in the area oflegal acumen the judiciary’s opinion should bedominant and in the area of antecedents theexecutive’s opinion should be dominant. Together,the two should function to find out the mostsuitable (candidates) available for appointment.”The views of the Parliamentary StandingCommittee on Law & Justice recommended the scrappingof the present procedure for appointments andtransfers by Supreme Court and High Court Judges areof great relevance in this context. As reported inthe Hindustan Times of 20.10.2008 “the Law Ministryhas agreed to review the 15-year-old system afterthe Parliamentary Standing Committee on Law &Justice recommended doing away with the committee of

56judges (collegium). Presently, the collegium decidesthe appointments and transfer of judges.Interestingly, the recommendations come close on theheels of recent cases of corruption against judgesof the top courts in the country. Law Minister H.R.Bhardwaj told Hindustan Times that the HouseCommittee’s recommendation had been accepted, and anaction-taken report prepared by the Ministry wouldnow be placed before Parliament. “Collegium systemhas failed. Its decisions on appointments andtransfers lack transparency and we feel courts arenot getting judges on merit.(……) The governmentcannot be a silent spectator on such a seriousissue”, Bhardwaj said. The House Committee had said:“Through a Supreme Court judgement in 1993, thejudiciary wrested the control of judges appointmentsand transfers. The collegium system has been adisaster and needs to be done away with”. H.R.Bhardwaj, Minister for Law & Justice, said “It isthe right time to review this important matter”.

57“There was no problem till 1993 when the judiciarytried to re-write the Article of the Constitutiondealing with appointments. They created a new law ofcollegium which was wrong. In a democracy, theprimacy of Parliament cannot be challenged”, hesaid.The Chairman of the Departmental RelatedParliament Standing Committee of Personnel, PublicGrievances Law and Justice in its 28 th Reportpresented to the Hon’ble Chairman of Rajya Sabha onAugust 2008 has stated thus:-“I would like to conclude by saying that theGovernment should expeditiously see to it thatappointment of Judges in High Courts and SupremeCourt are done in a transparent way. We haverecommended in two ways: One is, we have to see toit that the collegium system has to be done awaywith, since appointments will be delayed, we have

58said that from the very beginning of identifying theeligible persons, the various places ofrecommendations, be it at the level of the HighCourts, or, at the Governor’s level or at the levelof the Departments, and finally be the SupremeCourt, should be transparent, and this should be putup in the web site then and there so that theperson, who is going to occupy the Constitutionalplace, is known to the public, and their backgroundshould be allowed to be discussed by the public and,finally, it has to go through the process of issuingwarrant by the President of India. But, what ishappening presently is that from the day one ofidentifying the person till the issuance of thewarrant, nothing is known to anybody except to thepersons who are involved in it. Even the persons,who are identified and who are going to be made asjudges of the High Court or of the Supreme Court,may not know about it. This type of secrecy is notgood for democracy”.

59It may be noted in this context that in everyHigh Court the Chief Justice is from outside theState as per the policy of the Government. Thesenior most Judges who form the collegium are alsofrom outside the State. The resultant position isthat the judges constituting the collegium are notconversant with the names and antecedents of thecandidates and more often than not, appointmentssuffer from lack of adequate information.

60Two alternatives are available to the Governmentof the day. One is to seek a reconsideration of thethree judgments aforesaid before the Hon’ble SupremeCourt. Otherwise a law may be passed restoring theprimacy of the Chief Justice of India and the powerof the executive to make the appointments.(Dr. Justice AR. Lakshmanan)Chairman(Prof. Dr. Tahir Mahmood) (Dr.Brahm A.Agrawal)MemberMember-SecretaryDated: 21.11.2008