No Acts & Articles mentioned in this case
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 Court
Held, 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 Advocates-
C 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 Advocates
on-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
412
A
B
c
D
E
F
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
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 non
arbitrariness 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
414
A
B
SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
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
416
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
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
-·
=
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 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. There may be a
certain area, relating to suitability
of the candidate, such as his
antecedents and personal character, which, at times, consultees, other
B
than the Chief Justice of India, may be in a better position to know.
In that area, the opinion of the other consultees is entitled to due
weight, and pennits non-appointment
of the candidate recommended
by the Chief Justice oflndia, except in the situation indicated hereafter.
It is only to this limited extent of non-appointment of a
recommendee
of the Chief Justice of India, on the basis of positive
material indicating his appointment to be otherwise unsuitable, that
c
the Chief Justice of India does not have the primacy to persist for
appointment
of that recommendee except in the situation indicated
later. This will ensure composition
of the courts by appointment of D
only those who are approved of by the Chief Justice of India, which
is the real object of the primacy of his opinion and intended to secure
the independence
of the judiciary and the appointment of the best
men available with undoubted
credentials." ............. ..
(Page 770 B to 770 H) E
............... "(7) Non-appointment of anyone recommended, on the ground
of unsuitability must be for good reasons, disclosed to the Chief
Justice of India to enable him to reconsider and withdraw his
recommendation
on those considerations. If the Chief Justice of
India does not find it necessary to withdraw his recommendation F
even thereafter, but the other Justice 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.
If the non
appointment
in a rare case, on this ground, turns out to be a mistake, G
that mistake in the ultimate public interest is less harmful than a wrong
appointment.
However, if after due consideration of the reasons
disclosed to the Chief Justice
of India, that recommendation is
reiterated by the Chief Justice of India with the unanimous agreement
of the Judges of the
Supreme Court consulted in the matter, with
reasons
for not withdrawing the recommendation, then that H
418 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A appointment as a matter of healthy convention ought to be made.
B
c
D
E
F
(8)
Some instances when non-appointment is permitted and
justified may be given. Suppose the final opinion
of the Chief Justice
of India is contrary to the opinion of the senior. Judges consulted by
the Chief Justice
of India and the senior Judges are of the view that
the recommendee
is unsuitable for stated reasons, which are accepted
by the
President, then the non-appointment of the candidate
recommended by the Chief Justice of India would be
permissible." ............. ..
(Page 771 A to 771 E)
"(9) In order to ensure effective consultation between all the
constitutional functionaries involved
in the process, the reasons for
disagreement,
if any, must be disclosed to all others, to enable
reconsideration on that basis.
All consultations with everyone
involved, including all the Judges consulted, must be
in writing and
the Chief Justice of the High Court, in the case of appointment to
a High Court, and the Chief Justice
of India, in all cases, must
transmit with his opinion the opinion
of all Judges consulted by him,
as a part of the record.
Expression
of opinion in writing is an inbuilt check on exercise of
the power, and ensures due circumspection. Exclusion of justiciability,
as indicated hereafter, in this sphere should prevent any inhibition
against the expression
of a free and frank opinion. The final opinion
of the Chief Justice of India, given after such effective consultation
between the constitutional functionaries, has primacy
in the manner
indicated.
(Pages 771 G to 772 C)
On the aspect of transfers of Judges and the judicial review thereof,
the majority judgment stated :
G .............
"Transfers
(1) In the formation of his opinion, the Chief Justice of India, in the
case
of transfer of a Judge other than the Chief Justice, is expected
to take into account the views
of the Chief Justice of the High Court
from which the Judge
is to be transferred, any Judge of the Supreme
H Court whose opinion may be of significance in that case, as well as
·-
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 419
the views of at least one other senior Chief Justice of a High Court, A
or any other person whose views are considered relevant by the Chief
Justice
of India. The personal factors relating to the concerned Judge,
and his response
to the proposal, including his preference of places
of transfer, should be taken into account by the Chief Justice of India
before fonning his final opinion objectively,
on the available material, B
in the public interest for better administration of
justice." ............ .
(Page 774 A to 774 C)
............... "Justiciability
Appointments and Transfers
The primacy
of the judiciary in the matter of appointments and its
detenninative nature
in transfers introduces the judicial element in
the process, and is itself a sufficient justification for the absence of
c
the need for further judiciary review of those decisions, which is
ordinarily needed as check against possible executive excess or D
arbitrariness. Plurality of Judges in the formation of the opinion of
the Chief Justice of India, as indicated, is another inbuilt check against
the likelihood
of arbitrariness or bias, even subconsciously, of any
individual.
The judicial element being predominant in the case of
appointments, and decisive in transfers, as indicated, the need for E
further judicial review, as in other executive actions, is eliminated.
The reduction of the area of discretion to the minimum, the element
of plurality of Judges in formation of the opinion of the Chief Justice
of
India, effective consultation in writing, and prevailing nonns to
regulate the area
of discretion are sufficient checks against arbitrariness.
These guidelines in the form of norms are not to be construed as
conferring any justiciable right in the transferred
Judge. Apart from
the constitutional requirement
of a transfer being made only on the
recommendation
of the Chief Justice of India, the issue of transfer is
F
not justiciable on any other ground, including the reasons for the G
transfer or their sufficiency. The opinion of the Chief Justice of India
fonned in the manner indicated
is sufficient safeguard and protection
against any arbitrariness
or bias, as well as
any erosion of the
independence
of the judiciary.
This
is
abi in accord with the public interest of excluding these H
420 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A appointments and transfers from litigative debate, to avoid any erosion
in the credibility of the decisions, and to ensure a free and frank
expression
of honest opinion by all the constitutional functionaries,
which
is essential for effective consultation and for taking the right
B
c
D
E
F
G
H
decision." ................. .
(Page 775 B
to 775 G)
............
"It is therefore, necessary to spell out clearly the limited scope
of judicial review in such matters, to avoid similar situations in future.
Except on the ground of want of consultation with the named
constitutional functionaries or lack
of any condition of eligibility in
the case of an appointment, or of a transfer being made without the
recommendation
of the Chief Justice of India, these matters are not
justiciable on any other ground, including that
of bias, which in any
case
is excluded by the element of plurality in the process of decision
making." .............. .
(Page 776 B
to 776 C)
On the aspect of the relevance of seniority in the matter of Supreme
Court appointments, this was stated :
(3) Inter se seniority amongst Judges in their High Court and
their combined seniority on all India basis
is of admitted significance
in the matter of future prospects. Inter se seniority amongst Judges in
the Supreme Court, based on the date of appointment, is of similar
significance.
It is, therefore, reasonable that this aspect is kept in
view and given due weight while making appointments from amongst
High Court Judges to the
Supreme Court. Unless there be any strong
cogent reason to justify a departure, that order
of
seniority must be
maintained between them while making their appointment to the
Supreme Court.
Apart from recognising the legitimate expectation of
the High Court Judges to be considered for appointment to the Supreme
Court according to their seniority, this would also lend greater credence
to the process
of appointment and would avoid any distortion in the
seniority between the appointees drawn even from the same High
Court. The likelihood
of the Supreme Court being deprived of the
benefit
of the services of some who are considered suitable for
appointment, but decline a belated offer, would also be prevented.
(4) Due consideration of every legitimate expectation in the
decision making process
is requirement of the rule of non arbitrariness
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 421
and, therefore, this also
is a norm to be observed by the Chief Justice A
of India in recommending appointments to the Supreme Court.
Obviously, this factor applies only
to those considered suitable and
at least equally meritorious by the
Chief Justice of India, for
appointment
to the Supreme Court. Just as a High Court Judge at the
time
of his initial appointment has the legitimate expectation to become B
Chief Justice of a High Court in his turn in the ordinary course, he
has the legitimate expectation to be considered for appointment to the
Supreme Court
in his turn, according to his seniority.
This legitimate expectation has relevance on the ground
of longer
experience on the Bench, and
is a factor material for determining the C
suitability of the appointee. Along with other factors, such as, proper
representation
of all sections of the people from all parts of the
country, legitimate expectation
of the suitable and equally meritorious
Judges
to be considered in their tum is a relevant factor for due
consideration while making the choice
of the most suitable and
D
meritorious amongst them, the outweighing consideration being merit,
to select the best available for the apex
court." ............. .
(Pages 769 B to 770 B)
The majority judgment ends with a summary
of its conclusions.
Conclusion nos.l,2,3,4,5,7,9,10,11and14 are relevant for our purposes. They
E
read thus :
"( 1) The process of appointment of Judges to the Supreme Court
and the High Courts
is an integrated 'participatory consultative process'
for selecting the best and most suitable persons available for
appointment; and all the constitutional functionaries must perform
F
this duty collectively with a view primarily to reach an agreed decision,
subserving the constitutional purpose, so that the occasion
of primacy
does not arise.
(2) Initiation
of the proposal for appointment in the case of the G
Supreme Court must be by the Chief Justice of India, and in the case
of a High Court by the Chief Justice of that High Court; and for
transfer
of Judge/Chief Justice of a High Court, the proposal had to
be initiated by the Chief Justice of India. This is the manner in which
proposals for appointments to the Supreme Court and the High Courts
as well as for the transfers of Judges/Chief Justices of the High Courts H
422 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A must invariably be made.
B
c
D
E
F
G
H
(3) In the event of conflicting opm1ons by the constitutional
functionaries,
the opinion of the judiciary 'symbolised by the view of
the Chief Justice of India' and formed in the manner indicated, has
primacy.
(4) No appointment of any Judge to the
Supreme Court or any
High Court can be made, unless it
is in conformity with the opinion
of the Chief Justice of India.
( 5) In exceptional cases alone, for stated strong cogent reasons,
disclosed to the
Chief Justice of India, indicating that the recommendee
is not suitable for appointment, that appointment recommended by
the Chief Justice of India may not be made. However, if the stated
reasons are not accepted by the Chief Justice of India and the other
Judges
of the Supreme
Court who have been consulted in the matter,
on reiteration
of the recommendation by the
Chief Justice of India,
the appointment should be made
as a healthy convention.
(7) The opinion
of the
Chief Justice oflndia has not mere primacy,
but
is determinative in the matter of transfers of High
Court Judges/
Chief Justices.
(9) Any transfer made on the recommendation
of the
Chief Justice
of India is not to be deemed to be punitive, and such transfer is not
justiciable on any ground.
( 10) In making all appointments and transfers, the norms indicated
must
be followed. However, the same do not confer any justiciable
right
in any one.
( 11)
Only limited judicial review on the grounds specified earlier
is available in matters of appointments and transfers.
(14) The majority opinion
in
S.P Gupta v. Union of India, [1982]
2 S.C.R. 365, in so far as it takes the contrary view relating to primacy
of the role of the Chief Justice of India in matters of appointments
and transfers, and the justiciability
of these matters as well as in
relation to Judge strength, does not commend itself to us as being the
correct view. The relevant provisions
of the Constitution including
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 423
the constitutional scheme must now be understood and implemented
A
in the manner indicated herein by
us."
(Pages 778 to 779)
(Emphasis supplied)
We have heard the learned Attorney General , learned counsel for the B
interveners and some of the High
Courts and the Advocates General of some
States.
We record at the outset the statements of the Attorney General that -
(
l) the
Union of India is not seking a review or re-consideration of the
judgment
in the second Judges case, and (2) that the
Union of India shall C
accept and treat as binding the answers of this Court to the questions set out
in the Reference.
The majority view
in the second Judges case is that in the matter of
appointments to the
Supreme Court and the High Court the opinion of the
Chief Justice of India has primacy. The opinion of the Chief Justice of India D
is "reflective of the opinion of the judiciary, which means that it must
necessarily have the element
of plurality in its
formation". It is to be formed
"after taking into account the view of some other Judges who are traditionally
associated with this function". The opinion of the Chief Justice of India "so
given has primacy in the matter of all appointments". For an appointment to E
be made, it has to be "in conformity with the final opinion of the Chief
Justice of India formed in the manner indicated". It must follow that an
opinion formed by the Chief Justice of India in any manner other than that
indicated has
no primacy in the matter of appointments to the
Supreme Court
and the High Courts and the Government is not obliged to act thereon.
In so far as appointments to the Supreme Court of India are concerned, F
the majority view in the second Judges case is that the opinion given by the
Chief Justice of India in this behalf "has to be formed taking into account the
views
of the two seniormost Judges of the
Supreme Court. The Chief Justice
oflndia 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 G
suitability of the candidate, by reason of the fact that he has come from the
same High Court, or otherwise. Article 124(2) is an indication that
ascertainment
of the views of some other Judges of the
Supreme Court is
requisite".
It was urged by the learned Attorney General as also by learned counsel H
424 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
A that the Chief Justice of India needs to consult a larger number of Judges of
the Supreme Court before he recommends an appointment to the Supreme
Court. Attention was drawn to the fact that at the time of the latest selection
of Judges appointed to the Supreme Court, the then Chief Justice of India had
constituted a panel
of himself and five of the then senionnost puisne Judges.
B It was submitted that this precedent should be treated as convention and
institutionalised.
We think it necessary to make clear at the outset the distinction that
follows. The opinion
of the Chief Justice of India which has primacy in the
matter
of recommendations for appointment to the
Supreme Court has to be
C fonned in consultation with a collegium of Judges. Presently, and for a long
time now, that collegium consists
of the two senionnost puisne Judges of the Supreme Court. In making a decision as to whom that collegium should
recommend,
it takes into account the view that are elicited by the Chief
Justice
of India from the senionnost Judge of the
Supreme Court who comes
from the same High Court as the person proposed
to be recommended. It also
D takes into account the views of other Judges of the
Supreme Court or the
Chief Justices or Judges
of the High Court or, indeed, members of the Bar
who may also have been asked by the Chief Justice
of India or on his behalf.
The principal objective
of the collegium is to ensure that the best available
talent
is brought to the
Supreme .Court bench. The Chief Justice of India and
E the senionnost puisne Judges, by reason of their long tenures on the Supreme
Court, are best fitted to achieve this objective. They can assess the comparative
worth
of possible appointees by reason of the fact that their judgments would
have been the subject matter
of petitions for special leave to appeal and
appeals. Even where the person under consideration
is a member of the Bar,
he would have frequently appeared before them.
In assessing comparative
F worth as aforestated, the collegium would have the benefit of the inputs
provided by those whose views have been sought. The distinction, therefore,
is between the Judges of the
Supreme Court who decide, along with the Chief
Justice oflndia, who should
be recommended for appointment to the
Supreme
Court and the judges of the Supreme Court and others who are asked to
G express their views about the suitability of a possible nominee for such
appointment.
With
th is in mind, what has to be considered is whether the size of the
collegium that makes the recommendation should
be increased. Having regard
to the tenns of Article 124(2), as analysed in the majority judgment in the
H second Judges case, as also the precedent set by the then Chief Justice of
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.) 425
India, as set out earlier, and having regard to the objective aforestated, we A
think it is desirable that the collegium should consist of the Chief Justice
of India and the four seniormost puisne Judges of the Supreme Court.
Ordinarily, one
of the four seniormost puisne Judges of the Supreme
Court would succeed the
Chief Justice of India, but if the situation should be
such that the successor
Chief Justice is not one of the four seniormost puisne B
Judges, he must invariably be made part of the collegium. The Judges to be
appointed will function during his term and it is but right that he should have
a hand
in their selection.
It is not practicable to include in the colegilum the seniormost Judge of
the Supreme
Court who comes from the same High Court as the person to C
be recommended, unless, of course he is a part of the collegium by virtue of
being one of the four seniormost puisne Judges, because, as experience shows,
it is normally not one vacancy that has to be filled up but a number thereof.
The prospective candidates to fill such multiple vacancies would come from
a number ot High Courts. It would, therefore, be necessary to consult the D
seniormost Judges frqm all those High Courts. All these judges cannot
conveniently be included in the collegium. Secondly, the composition
of the
collegium cannot vary depending upon where the prospective appointees hail
from.
To put it differeutly, for a particular set of vacancies the seniormost
Judges
from the High Courts at, let us say, Allahabad and Bombay may have
to be consulted.
It would neither be proper nor desirable, if they have been E
part of the collegium for that particular selection, to leave them out of the
next collegium
altho1Jgh no prospective appointee at that time hails from the
High Courts at Allahabad or Bombay. Thirdly,
it would not be proper to
exclude from the collegium such Judges
of the Supreme Court, if
any, as are
senior
to the Judges required to be consulted. Lastly, the seniormost Judge of F
the Supreme Court who comes from the same High Court as the person to
be recommended may be, in terms
of over all seniority in the Supreme
Court,
very junior, with little experience of work in the Supreme Court, and, therefore,
unable
to assess the comparative merit of a number of possible appointees.
Necessarily, the opinion
of all
members of the collegium in respect of G
each recommendation should be in writing. The ascertainment of the views
of the seniormost Supreme Court Judges who hail from the High Courts from
where the persons to be recommended come must also be
in writing. These
must
be conveyed by the Chief Justice of India to the Government of India
along with the recommendation. The other views that the
Chief Justice of
India or the other members of the collegium may elicit, particularly if they H
426 SUPREME COURT REPORTS (1998] SUPP. 2 S.C.R.
A are from non-Judges, need not be in writing, but it seems to us advisable that
he who elicits the opinion should make a memorandum thereof, and the
substance thereof,
in general terms, should be conveyed to the Government
of India.
The seniormost Judge in the Supreme
Court from the High Court from
B which a prospective candidate comes would ordinarily know his merits and
demerits, but if per chance he does not, the next seniormost Judge
in the
Supreme Court from that High Court should
be consulted and his views
obtained
in writing.
We should add that the
obje~tive being to procure the best information
C that can be obtained about a prospective appointee, it is of no consequence
that a Judge in the Supreme Court from the prospective appointee's High
Court had been transferred to that High Court either
as a puisne Judge or as
its Chief Justice.
D It is, we think, reasonable to expect that the collegium would make its
recommendations based on a consensus.
Should that not happen, it must be
remembered that
no one can be appointed to the Supreme Court unless his
appointment
is in conformity with the opinion of the Chief Justice of India.
The question that remains
is: what is the position when the Chief Justice of
India is in a minority and the majority of the collegium disfavour the
E appointment of a particular person? The majority judgment in the second
Judges case has said that
if
"the final opinion of the Chief Justice of India
is contrary to the opinion of the senior Judges consulted by the Chief Justice
of India and the senior Judges are of the view that the recommendee is
unsuitable for stated reason, which are accepted by the President, then the
non-appointment
of the candidate recommended by the Chief Justice of India
F would be
permissible". This is delicately put, having regard to the high status
of the President, and implies that if the majority of the collegium is against
the appointment
of a particular person, that person shall not be appointed,
and we think that this
is what must invariably happen. We hasten to
ac.!d that
we cannot easily visualise a contingency of this nature; we have little doubt
G that if even two of the Judges forming the collegium express strong views,
for good reasons, that are adverse to the appointment
of a particular person
the Chief Justice
of India would not press for such appointment.
The majority judgment
in the second Judges case contemplates the
non-appointment
of a person recommended on the ground of unsuitability. It
H says that such non-appointment
"must be for good reasons, disclosed to the
SPECIAL REFERENCE NO. I OF I 998 [S.P. BHARUCHA, J.) 427
Chief Justice of India to enable him to reconsider and withdraw his A
recommendation on those considerations. If the Chief Justice of India does
not find
it necessary to withdraw his recommendation even thereafter, 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.......... B
However, if after due consideration of the reasons disclosed to the Chief
Justice
of India, that recommendation is reiterated by the Chief Justice of
India with the unanimous agreement of the Judges of the Supreme Court
consulted
in the matter, with reasons for not withdrawing the recommendation,
then that appointment
as a matter of healthy convention ought to be
made".
It may be that one or more members of the collegium that made a particular C
recommendation have retired or are otherwise unavailable when reasons are
disclosed to the Chief Justice
oflndia for the non-appointment of that person.
In such a situation the reasons must be placed before the remaining members
of the original collegium plus another Judge or Judges who have reached the
required seniority and become one
of the first four puisne Judges. It is for D
this collegium, so re-constituted, to consider whether the recommendation
should be withdrawn or reiterated.
It is only if it is unanimously reiterated
that the appointment must be made. Having regard to the objective
of securing
the best available men for the Supreme Court,
it is imperative that the number
of Judges of the
Supreme Court who consider the reasons for non-appointment
should be
as large as the number that had made the particular recommendation. E
The Chief Justice oflndia may, in his discretion, bring to the knowledge
of the person recommended the reasons disclosed by the Government of
India for his non-appointment and ask for his response thereto. The response,
if asked for and made, should be considered by the collegium before it
withdraws or reiterates the recommendation. F
The majority judgment in the second Judges case said that
"inter se,
seniority amongst Judges in their High Court and their combined seniority on
all India basis" should be "kept in view and given due weight while making
appointments from amongst High Court Judges to the Supreme Court. Unless
G
there be any strong cogent reason to justify a departure, that order of seniority
must be maintained between them while making their appointment
to the
Supreme
Court". It also said that "the legitimate expectation of the High
Court Judges to be considered for appointment to the Supreme Court, according
to their seniority" must be duly considered. The statement made thereafter is
very important; it is : "Obviously, this factor applies only to those considered H
428 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A suitable and at least equally meritorious by the Chief Justice of India for
appointment to the Supreme Court."
Merit, therefore, as we have already noted, is the predominant
consideration for the purposes
of appointment to the supreme
Court.
Where, therefore, there is outstanding merit the possessor thereof
B deserves to be appointed regardless of the fact that he may not stand high in
the all India seniority list or in his own High Court. All that then needs to
be recorded when recommending him for appointment is that he has
outstanding merit. When the contenders for appointment
to the Supreme
Court do not possess such outstanding merit but have, nevertheless, the required
C merit in more or less equal degree, there may be reason to recomniend one
among them because, for example, the particular region
of the country in
which his parent High
Court is situated is not represented on the Supreme
Court bench. All that then needs to be recorded when making the
recommendation for appointment
is this factor. The
"strong cogent reasons"
that the majority judgment in the second Judges case speaks of are good
D reasons for appointing to the Supreme Court a particular High Court Judge,
not for not appointing other High Court Judges senior to him. It is not
unusual that a Judge who has once been passed over for appointment to the
Supreme Court might still find favour on the occasion of another selection
and there
is no reason to blot his copybook by recording what might be
E construed to be an adverse comment about him. It is only when, for very
strong reasons, a collegium finds that, whatever his seniority, some High Court Judge should never be appointed to the Supreme Court that it should
so record. This would then be justified and would afford guidance on
subsequent occasions
of considering who to recommend.
p Mr.
Parasaran, learned counsel for the intervener, the Advocates-on-
Record Association, submitted that the words 'legitimate expectation' were
not apposite when the reference was
to High
Court Judges. We make it clear
that no disparagement
of High
Court Judges was meant; all that was intended
to be conveyed was that it was very natural that senior High Court Judges
should entertain hopes
of elevation to the Supreme
Court and that the Chief
G Justice of India and the collegium should bear this in mind.
The majority judgment
in the second Judges case requires the
Chief
Justice of a High Court to consult his two seniormost puisne Judges before
recommending a name for appointment to the High Court. In forming his
opinion
in relation to such appointment the
Chief Justice of India is expected
H "to take into account the views of his colleagues in the Supreme Court who
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 429
are likely to be conversant with the affairs of the concerned High Court. The A
Chief Justice of India may also ascertain the views of one or more senior
Judges
of that High Court ......
". The Chief Justice of India should, therefore,
form his opinion
in regard to a person to be recommended for appointment
to a High Court in the same
manner as he forms it in regard to a
recommendation for appointment to the Supreme Court, that
is to say, in
consultation with his seniormost puisne Judges. They would in making their B
decision take into account the opinion of the Chief Justice of the High Court,
which
"would be entitled to the greatest weight'', the views of other Judges
of the High Court who may have been consulted and the views of colleagues
on the Supreme Court bench "who are conversant with the affairs of the
concerned High Court". Into that last category would fall Judges of the C
Supreme Court who were puisne Judges of that High Court or Chief Justices
thereof, and it
is of no consequence that the High Court is not their parent
High Court and they were transferred there. The objective being to gain
reliable information about the proposed appointee, such Supreme Court Judge
as may be in a position to give it should be asked
to do so. All these views
should be expressed
in writing and conveyed to the Government of India D
along with the recommendation.
Having regard to the fact that information about a proposed appointee
to a High Court would best come from the Chief Justice and Judges
of that
High Court and from Supreme Court Judges conversant with it, we are not
E
persuaded to alter the strength of the decision making collegium's size; where
appointments to the High Courts are concerned, it should remain as it
is
constituted of the Chief Justice of India and the two seniormost puisne Judges
of the Supreme Court.
In the context
of the judicial review of appointments, the majority F
judgment in the second Judges' case said,
"Plurality of Judges in the formation
of the opinion of the Chief Justice of India, as indicated, is another in-built
check against the likelihood
of arbitrariness or bias ...... The judicial element
being predominant
in the case of appointments ...... ., as indicated, the need
for further judicial review, as in other executive actions,
is
eliminated." The G
judgment added, "Except on the ground of want of consultation with the
named constitutional functionaries or lack
of any condition of eligibility in
the case of an appointment, these matters are not justiciable on any other
ground ....
".
Judicial review m the case of an appointment, or a recommended H
430 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A appointment, to the Supreme Court or a High Court is, therefore, available
if the recommendation concerned
is not a decision of the
Chief Justice of
India and his seniormost colleagues, which is constitutionally requisite. They
number four in the case
of a recommendation for appointment to the
Supreme
Court and two in the case of a recommendation for appointment to a High
B Court. Judicial review is also available if, in making the decision, the views
of the seniormost Supreme Court Judge who comes from the High Court of
the proposed appointee to the Supreme Court have not been taken into account.
Similarly, if, in connection with an appointment, or a recommended
appointment, to a High Court, the views of the Chief Justice and senior
Judges
of the High
Court, as aforestated, and of Supreme Court Judges
C knowledgeable about that High Court have not been sought or considered by
the Chief Justice of India and his two seniormost puisne Judges, judicial
review
is available. Judicial review is also available when the appointee is
found to lack eligibility.
The majority judgment
in the second Judges case dealt with the question
D of the transfer of a puisne Judge of one High
Court as a puisne Judge of
another High Court. It said, "In the formation of his opinion, the Chief
Justice of India, in the case of transfer of a Judge other than the Chief Justice,
is expected to take into account the views of the Chief Justice of the High
Court from which the Judge is to be transferred, any Judge of the Supreme
E Court whose opinion may be of significance in that case, as well as the views
of at least one other senior Chief Justice of a High Court, or any other person
whose views are considered relevant
by the
Chief justice of India." In regard
to the justiciability
of such transfers, it said,
"Plurality of Judges in the
formation
of the opinion of the
Chief Justice of India, as indicated, is another
inbuilt check against the likelihood
of arbitrariness or bias ...... The judicial
F element being ........ decisive in transfers, as indicated, the need for further
judicial review, as
in other executive actions, is
eliminated." In the same
context there was reference to "the element of plurality of Judges in formation
of the opinion of the Chief Justice of India." It was then said that "apart from
the constitutional requirement
of a transfer being made only on the
G recommendation of the
Chief Justice of India, the issue of transfer is not
justiciable on any other ground, including the reasons for the transfer or their
sufficiency. The opinion
of the
Chief Justice of India formed in the manner
indicated
is sufficient safeguard and protection against any arbitrariness or
bias, as well as any erosion
of the independence of the
judiciary." Again, it
was said "Except on the ground ........ of a transfer being made without the
H recommendation of the Chief Justice of India, these matters are not justiciable
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.) 431
on any other ground, including that of bias, which in any case is excluded A
by the element of plurality in the process of decision making."
The same thoughts were expressed in the concurring judgment of Kuldip
Singh, J., thus :
"We are, therefore, of the view that the opinion of the Chief Justice B
of India in the process of consultation for appointments to the superior
courts must be formed in consultation with two
of his seniormost
colleagues. Apart from that the Chief Justice
oflndia must also consult
the seniormost Judge who comes from the same State (the
State from
where the candidate
is being considered). This process of consultation
shall also be followed while transferring any Judge/Chief Justice
C
from one
State to another. "
The judgment in the case of K. Ashok Reddy v. Government of India
and
Ors., [1994] 2
SCC 303, dealt with the justiciability of transfers of High
Court Judges from one High Court to another. The judgment, rendered by a
Bench
of three learned Judges, records that ;t was a
"sequel to the decision" D
in the second Judges case. It refers \o th<:: fact that after the second Judges
case the then Chief Justice
of
India had constituted a Peer Committee
comprised
of the then two seniormost puisne Judges of
Supreme Court and
two Chief Justices
of High Courts to make suggestions for transfers and the
Chief Justice
of India was to make his recommendations on that basis and in E
accordance with the broad guidelines indicated in the second Judges case.
There was, therefore, the judgment said, no room left for any apprehension
of arbitrariness or bias in the transfer of any Judge or Chief Justice of a High
Court. There was no doubt that the Chief Justice
of India, acting on the
institutional advice available to him, was the surest and safest bet for
preservation
of the independence of judiciary. The second Judges case did F
not exclude judicial review but limited the area of justiciability to the
constitutional requirement
of the recommendation of the Chief Justice of
India for exercise of power under Article 222 by the
President of India. The
power
of transfer was to be exercised by the highest constitutional functionaries
in the country in the manner indicated, which provided several inbuilt checks G
against the likelihood of arbitrariness or bias. The need for restricting the
standing to sue
in such a matter to the affected Judge alone had been reiterated
in the second Judges case. The transfer of a High Court Judge was justiciable
only on the ground indicated in the second Judges case and only at the
instance
of the transferred Judge himself and no one else. This was necessary
to prevent any transferred Judge being exposed to any litigation involving H
432 SUPREME COURT REPORTS [1998) SUPP. 2 S.C.R.
A him except when he chose to resort to it himself in the available limited area
of justiciability. When it was said in the second Judges case that the ground
of bias was not available for challenging a transfer, it was to emphasis 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
B India was based, was an inbuilt check against arbitrariness and bias indicating
the absence
of need for judicial review on those grounds. 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 the case to itself for decision to
avoid any embarrassment.
c
What emerges from the aforesaid is this: before recommending the
transfer
of a puisne Judge of one High Court to another High Court, also as
a puisne Judge, the Chief Justice
of India must consult a plurality of Judges.
He must take into account the views
of the Chief Justice of the High Court
from which the Judge
is to be transferred, any Judge of the Supreme Court
D whose opinion may have significance in the case and atleast one other senior
Chief Justice
of a High Court or any other person whose views he considers
relevant. The then Chief Justice
of India had constituted, as was noted in
Ashok Reddy 's case, a
Peer Committee of the two seniormost puisne Judges
of the Supreme Court and two Chief Justices of High Courts to advise him
in the matter
of transfers of High Court Judges. That Committee is no longer
E
in position.
It is to our mind imperative, given the gravity involved in transferring
High Courts Judges, that the Chief Justice
of India should obtain the views
of the Chief Justice of the High Court from which the proposed transfer is
to be effected as also the Chief Justice of the High Court to which the
F transfer is to be effected. This is in accord with the majority judgment in the
second Judges case which postulates consultation with the Chief Justice
of
another High Court. The Chief Justice of India should also take into account
the views
of one or more Supreme Court Judges who are in a position to
provide material which would assist
in the process of deciding whether or not
G a proposed transfer should take place. These views should be expressed in
writing and should be considered by the Chief Justice of India and
the four
seniormost puisne Judges
of the Supreme Court. These views and those of
each of the four seniormost puisne Judges should be conveyed to the
Government
of India along with the proposal of transfer. Unless the decision
to transfer has been taken in the manner aforestated, it is not decisive and
H does not bind the Government of India.
-
SPECIAL REFERENCE NO. I OF 1998 [S.P. BHARUCHA, J.] 433
Wide based decision making such as this eliminates the possibility of A
bias or arbitrariness. By reason of such elimination the remedy of judicial
review can legitimately
be confined to a case where the transfer has been
made or recommended without obtaining views and reaching the decision
in
the manner aforestated.
What applies to the transfer
of a puisne Judge of a High Court applies B
a well to the transfer of the Chief Justice of a High
Court as Chief Justice of
another High Court except that, in this case, only the views of one or more
knowledgable Supreme Court Judges need to be taken into account.
The majority judgment
in the second Judges case requires that
"the
personal factors relating to the concerned Judge, and his response to the C
proposal, including his preference of places of transfer, should be taken into
account by the Chief Justice
of India before forming his final opinion
objectively, on the available material, in the public interest for better
administration
of
justice" (page 774). These factors, including the response
of the High Court Chief Justice or puisne Judge proposed to be transferred D
to the proposal to transfer him, should now be placed before the collegium
of the Chief Justice of India and his first four puisne Judges to be taken into
account by them before reaching a final conclusion on the proposal.
We have heard with some dismay the dire apprehensions expressed by
some
of the counsel appearing before us. We do not share them. We take the E
optimistic view that successive Chief Justices of India shall henceforth act in
accordance with the second Judges case and this opinion.
We have not dealt with any aspect placed before us at the Bar that falls
outside the scope
of the questions posed in the Reference.
p
It remains only to express our gratitude to the Attorney General, Mr.
K. Parasaran, Mr. K.K. Venugopal, Mr. R.K. Jain, Mr. A.B. Divan, Mr.
Murlidhar Bhandare,
Mr. Arun Jaitley, Mr. Gopal Subramaniam, Mr. H.N.
Salve,
Mr. V.A.Mohta, Mr.
R.P. Goel, Mr. P.S Poti, Mr. Sarin, Mr. B.R.
Bhattacharya, Mr. A.R. Barthakur, Mr. P.G. Baruah, Mr. Govind Das and G
Ms. Radha Rangaswamy. Their submissions and insights have much assisted
us. We should note that there was no great divergence in what they advocated.
The questions posed
by the Reference are now answered, but we should
emphasise that the answers should
be read in conjunction with the body of
this opinion: H
434 SUPREME COURT REPORTS [1998] SUPP. 2 S.C.R.
A I. The expression "consultation with the Chief justice of India" in
Articles 217(1) and 222 (I) of the Constitution of India requires consultation
with a plurality
of Judges in the formation of the opinion of the
Chief Justice
of India. The sole, individual opinion of the Chief Justice of India does not
constitute "consultation" within the meaning of the said Articles.
B 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
India in this behalf has not been made in consultation with the four seniormost
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
C Justice of the High Court to which the transfer is to be effected have not been
obtained.
3. The
Chief Justice of India must make a recommendation to appoint
a Judge
of the Supreme
Court and to transfer a Chief Justice or puisne Judge
of a High Court in consultation with the four seniormost puisne Judges of the
D Supreme Court. Insofar as an appointment to the High Court is concerned,
the recommendation must be made
in consul'tation with the two seniormost
puisne Judges
of the Supreme
Court.
4. The Chief Justice of India is not entitled to act solely in his individual
capacity, without consultation with other Judges
of the Supreme
Court, in
E respect of materials and information conveyed by the Government of India
for non-appointment
of a judge recommended for appointment.
5. 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 does not refer only to those Judges who have that High Court as
F 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.
6. "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
G the recommendation.
7. The views of the Judges consulted should be in writing and should
be conveyed to the Government
of India by the
Chief Justice of India along
with his views to the extent set out
in the body of this opinion.
H 8. The
Chief Justice of India is obliged to comply with the norms and
...
•
"
SPECIAL REFERENCE NO. I OF 1998 (S.P. BHARUCHA, J.] 435
the requirement of the consultation process, as aforestated, in making his A
recommendations to the Government of India.
9. Recommendations made by the Chief Justice of India without
complying with the norms and requirements
of the consultation process, as
aforestated, are not binding upon the Government of India.
S.M. Opinion rendered.
•
B
The landmark opinion in Special Reference No. 1 of 1998, famously known as the Third Judges Case, remains a cornerstone of Indian constitutional law, providing a definitive framework for Judicial Appointments and solidifying the operational mechanics of the Collegium System. This pivotal ruling, available for in-depth study on CaseOn, arose from a Presidential Reference seeking clarity on the principles established in the Second Judges Case. The Supreme Court’s nine-judge bench meticulously answered critical questions, institutionalizing the process of appointing and transferring judges to the higher judiciary, thereby shaping the contours of judicial independence in India for decades to come.
Following the Second Judges Case (1993), which established the primacy of the Chief Justice of India's (CJI) opinion in judicial appointments, several procedural and interpretative doubts emerged. To resolve these ambiguities, the President of India, exercising powers under Article 143(1) of the Constitution, referred nine questions to the Supreme Court for its opinion. The central issues revolved around:
The legal basis for the reference is rooted in the following constitutional provisions:
The Second Judges Case had previously interpreted "consultation" to mean "concurrence," giving primacy to the CJI’s opinion. However, it also stressed that this opinion must be formed collectively, representing the judiciary as an institution.
The Supreme Court, in its advisory opinion, provided a comprehensive and structured framework, transforming the abstract principle of collective consultation into a concrete, workable mechanism.
The Court's most significant finding was that the expression “consultation with the Chief Justice of India” requires consultation with a plurality of judges. The sole, individual opinion of the CJI does not constitute valid consultation. This holding formally institutionalized the Collegium System by defining its composition:
This structure was designed to ensure that the CJI's recommendation is a collective, institutional opinion, thereby promoting transparency and minimizing arbitrariness.
The Court addressed the sensitive issue of superseding senior judges. It clarified that while seniority is a significant factor and legitimate expectation, merit is the predominant consideration. The judgment explained that the “strong cogent reasons” mentioned in the Second Judges Case need not be a negative reflection on the superseded judges. Instead, the focus should be on recording the positive reasons for the recommendation, such as the outstanding merit of the chosen candidate, which would justify the departure from the seniority rule.
Navigating the complex interplay of seniority, merit, and collegium opinions in rulings like the Third Judges Case can be challenging. For legal professionals pressed for time, CaseOn.in offers a powerful tool: 2-minute audio briefs that summarize key judgments. This feature allows lawyers and students to quickly grasp the essential holdings and analysis of this specific ruling, ensuring they stay informed without disrupting their workflow.
The judgment affirmed that while the merits of a particular candidate are not subject to judicial review, the appointment process itself is. Judicial review is permissible on the limited ground that the mandatory consultation process was not followed. For instance, a recommendation would be challengeable if:
This provides a crucial check on the procedural integrity of the appointment and transfer process.
Crucially, the Court held that any recommendation made by the Chief Justice of India without complying with the norms and requirements of the consultation process is not binding on the Government of India. This reinforces the idea that the primacy granted to the CJI is not personal but institutional, and its legitimacy is derived from a fair, collective, and transparent procedure.
The nine-judge bench provided clear, numbered answers to the President's questions, effectively creating a guidebook for judicial appointments and transfers. The Court concluded that the process must be participatory and consultative, with the CJI’s opinion being formed collectively with the collegium. This opinion, when formed correctly, has primacy. Any deviation from this established procedure renders the recommendation non-binding and opens the door to limited judicial review.
The Third Judges Case institutionalized the Collegium System by specifying its composition and mandating a collective, written decision-making process for judicial appointments and transfers. It balanced seniority with merit, clarified the non-binding nature of procedurally flawed recommendations, and established that the consultation process is subject to limited judicial review, thereby strengthening the independence and accountability of the higher judiciary.
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