Report No. 214

Proposal For Reconsideration of Judges Cases I, II and III - S.P. Gupta v. UOI reported in AIR 1982 SC 149, Supreme Court Advocates-On-Record Association v. UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739

Preface : Part 1

(1) Why reconsideration? The Supreme Court in Subhash Sharma v. U.O.I. (reported in 1991(1) Supp. SCC 594) presided over by Ranganath Misra CJ, M.N. Venkatachaliah and M.M. Punchi JJ had expressed, doubts about the correctness of the interpretation of the word "consultation" in regard to the appointment of judges in S.P. Gupta v. U.O.I. (reported in 1982 SC 149) in the following words (in paras 43 & 45 of the said judgment):-

"The word 'consultation' is used in a constitutional provision in recognition of the status of the High constitutional dignitary who formally expresses the result of the institutional process leading to the appointment of judges. To limit that expression to its literal limitation shorn of its constitutional background and purpose is to borrow Justice Frankfurter's phrase "to stick in the bark of words."

The judges in that case had opined that "Judicial Review is a part of the basic constitutional structure and one of the basic features of the essential Indian constitutional policy. The essential constitutional doctrine does not by itself justify or necessitate any primacy of the executive wing on the ground of its political accountability to the electorate. On the contrary what is necessary is an interpretation sustaining the strength and vitality of Judicial Review. It might under certain circumstances be said that government is not bound to appoint a Judge so recommended by the judicial wing.

But to contemplate a power for the executive to appoint a person despite his being disapproved or not recommended by the Chief Justice of the State and the Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise of power. Then again, whenever there might be difference of opinion between the Chief Justice of a state and the Chief Justice of India - Some of the weighty reasons in this behalf are set out by the other three Judges in their opinion - the opinion of the Chief Justice of India should have the preponderant role.

We are of the view that the primacy of the Chief Justice of India in the process of selection would improve the quality of selection. The purpose of the 'consultation' is to safeguard the independence of the judiciary and to ensure selection of proper persons. The matter is not, therefore, to be considered that the final say is the exclusive prerogative of the executive government. The recommendations of the appropriate constitutional functionaries from the judicial organ of the State has an equally important role.

"Consultation should have sinews to achieve the constitutional purpose and should not be rendered sterile by a literal interpretation. Who is able to decide the qualities of lawyers proposed to be elevated to the bench more than the judges of the Superior Courts before whom they practice? There are preponderant and compelling considerations why the views of the Chief Justices of the States and that of the Chief Justice of India should be afforded a decisive import unless the executive has some material in its possession which may indicate that the appointment is otherwise undesirable.(Para 44)

The View which the four learned judges shared in Gupta's case, in our opinion, does not recognize the special and pivotal position of the institution of the Chief Justice of India.(Para 45) The correctness of the opinion of the majority in S.P. Gupta case relating to the status and importance of consultation, the primacy of the position of the Chief Justice of India and the view that the fixation of Judge strength is not justiciable should be reconsidered by a larger bench. (Para 45)

Emphasis Supplied

The operative part of the order of reference is contained in para 49 "as in our opinion the correctness of the majority view in S.P. Gupta case should be considered by a larger bench we direct the papers of W.P. No. 1303 of 1987 to be placed before the learned Chief Justice for constituting a bench of nine Judges to examine the two questions we have referred to above, namely, the position of the Chief Justice of India with reference to primacy and, secondly, justiciability of fixation of judge strength". In para 51 the Hon'ble Bench has clarified:-

We clarify that apart from the two questions which we have indicated, all other aspects dealt with by us are intended to be final by our present order. (Emphasis supplied)

Therefore, only two questions were referred to the bench of nine judges namely (1) The position of the Chief Justice of India with reference to primacy and (2) The justiciability of the fixation of the judge strength. It is important to note that no other question was referred to the larger bench.

2. The first judges case S.P. Gupta v. Union of India and Ors. At this point it may be relevant to know as to what was decided by the majority judgment in the bench presided over by P.N. Bhagwati, A.C. Gupta, S.M. Fazal Ali, V.D. Tulzapurkar, D.A. Desai, R.S. Pathak and E.S. Venkataramaiah JJ, in S.P. Gupta's case the correctness of which was doubted in Subhash Sharma's case.

The relevant portion of the majority judgment delivered by Justice P.N.Bhagwati speaking for himself in regard to the expression "consultation" occurring in 217 of the constitution is extracted herebelow:

"Each of the three constitutional functionaries occupies a high constitutional office and Cl. (1) of Art. 217 provides that the appointment of a High Court Judge shall be made after consultation with the functionaries without assigning superiority to the opinion of one over that of another.

It is true that the Chief Justice of India is the head of the Indian judiciary and may be figuratively described as paterfamilias of the brotherhood of Judges but the Chief Justice of a High Court is also an equally important constitutional functionary and it is not possible to say that so far as the consultative process is concerned, he is in any way less important than the Chief Justice of India. In fact, under the constitutional scheme, the Chief Justice of a High Court is not subject to the administrative superintendence of the Chief Justice of India nor is under the control of supervision of the Chief Justice of India.

If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion. But it is only consultation and not concurrence of the Chief Justice of India that is provided in Cl. (1) of Art. 217.(Para 29). (emphasis supplied) There must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge.

The recommending authority should be in consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential - it would go a long way towards securing the right kind of Judges, who would be truly independent and who would invest the judicial process with significance and meaning for the deprived and exploited sections of humanity." (para 30)

Regarding fixation of judge strength the majority judgment was of the view that this was not justiciable and no Mandamus could issue. This aspect however has lost its significance because in the case of Subhash Gupta the Attorney General made a statement that the government had no objection to the Hon'ble Court going into the question.

3. The second Judges case Supreme Court Advocates on Record Association and others v. U.O.I. (reported in 1993(4) SCC 441

It is in this backdrop that the nine judges bench was constituted and judgment was delivered on 06/10/1993. The judgment runs into 306 pages and travels far beyond the order of reference. Noted jurist Late H.M. Seervai in his Constitutional Law of India fourth edition Silver Jubilee Edition (Volume 1) has criticized this judgment and called it "null and void" for not following the mandatory provisions of article 145(4) and (5) - (which is clear from the dissenting judgment of Justice M.M. Punchi, the relevant portion of which is reproduced in the succeeding para) - which are not a matter of form or technicality but a matter of substance as pointed out in Mohhammad Akill v. Azad-unnisaa Bibi's case by Sir Barrnes Peacock C.J., speaking on this point for a bench of nine judges.

"It is not a mere technical objection but is upon a fundamental principle essential to the due administration of justice that every judicial act which is done by the several judges ought to be completed in the presence of the whole of them. If after discussion, and after deliberately weighing the arguments of each other, the judges cannot agree, their several judgments ought to be delivered in open court in the presence of the others." (Wyman's Report Vol.5, p.69 quoted in Rohilkhand Kumaon Bank Ltd. v. Row (1884) 6 All. 468 at 474. (taken from Seervai's Constitutional Law of India fourth edition 17 vol.3). The noted jurist calls the judgment "null and void" (please see page 2936 Constitutional Law of India by H M Seervai volume 3 fourth edition)

At this stage it is essential to note the lament contained in the opening paragraph of Justice M M Punchi's dissenting judgment at para 488 of 1993 (4) SCC 441 referred to in the preceding paras.

"Para 488 - M.M. Punchi J. (dissenting) - This opinion is in the nature of epilogue, though not in stricto sensu. Much has already been written on the two topics under reference to this Bench, and on others as well without reference. I on my part would have liked to avoid making any addition thereto but it seems the turn of events leave me no choice. I feel it would be dereliction to withhold contributing and leave unsaid what needs to be said (emphasis supplied)

Para 490 - "This nine judge bench sat from April 7, 1993, to hear this momentous matter concluding its hearing on May 11, 1993 close to the onset of the summer vacation. I entertained the belief that we all, after July 12, 1993, on the reopening of the Court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court.

I was indeed overtaken when I received the draft opinion dated June 14, 1993 authored by my learned brother J.S. Verma, J. for himself and on behalf of my learned Brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ. The fait accompli appeared a stark reality; the majority opinion an accomplishment.

The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned brother Ahmadi, J. like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned Brethern Kuldip Singh and Pandian, JJ. dated September 7, 1993 and September 9, 1993 respectively.

No meaningful meeting thereafter was possible as the views by that time seemed to have been polarized. So now the firm opinions of the eight Brethren, as communicated, are known to me. Loaded with these 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 to the referral."

Para 491 - "At the outset, I must remove a misgiving pertaining to the contents and thrust of the order of referral re correctness of S.P. Gupta v. Union of India, the opinion of which was authored by the then Chief Justice of India, Shri Ranganath Misra, and concurred to by the present Chief Justice of India Shri M.N. Venkatachaliah (then as a puisne judge) and by me.

We had referred only two questions to a Bench of nine Judges, namely, to test the correctness of the opinion of the majority in S.P. Gupta case relating to the status and importance of consultation and the primacy of the position of the Chief Justice of India, and whether fixation of Judge strength was not justiciable, clarifying in the ultimate paragraph that apart from the two questions aforeindicated all other aspects dealt with were intended to be final by the said order.

As I view it, due to the rigidity of its terms, except for the two questions specifically referred, no other matter was open to canvass as has seemingly been done. (full text is not extracted for the sake of brevity. "Please see page 712 of the judgment).

In the penultimate para of his concurring judgment Kuldip Singh J. whose judgment came as late as September 7, 1993 (when the original majority judgment was signed on 14th June, 1995) makes the following observations "Before parting with the judgment it would be appropriate to say that the opinion circulated by Verma J. was based on elaborate discussion amongst the Brother Judges who were available and participated in the discussion.

Although Verma, J. incorporated various suggestions in his original draft but a feeling left lurking in my mind that I have something more to say in support of the conclusions reached by Verma, J. and that is how I ventured to embark upon writing a separate opinion".

It is therefore clear that there was no discussion, no meeting of minds and no consensus among the 9 judges on 14 of June 1993 when the final draft judgment was signed by Justice Verma who spoke for himself and on behalf of Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ. The judgment therefore plainly is Per Incuriam.

4. What was decided by the majority judgment headed by Justice Verma?

Following the suggestion made by Justice Bhagwati in the SP Gupta case that there should be a 'collegium' which should be consulted by the Chief Justice of India in every appointment the nine judge bench, speaking through Justice Verma laid down fourteen conclusions which are as follows:-

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 this duty collectively with a view primarily to reach an agreed decision, sub serving the constitutional purpose, so that the occasion of primacy does not arise.

2. Initiation of the proposal for appointment in the case of the 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 a Judge/Chief Justice of a High Court, the proposal has 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 must invariably be made.

3. In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary sumbolised 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, the 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. (Emphases Supplied).

6. Appointment to the office of the Chief Justice of India should be of the seniormost Judge of the Supreme Court considered fit to hold the office.

7. The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices.

8. Consent of the transferred Judge/Chief Justice is not required for either the first or any subsequent transfer from one High Court to another.

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 anyone.

11. Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.

12. The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated.

13. Fixation of Judge strength in the High Court is justiciable, but only to the extent and in the manner indicated.

14. The majority opinion in S.P. Gupta v. Union of India 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 of Judge strength, does not commend itself to us as being the correct view. The relevant provisions of the Constitution, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us. (para 486).

Para 487 states that this summary has to be read alongwith the earlier part, where in the conclusions are elaborately stated with the reasons which in effect means that para 487 has to be read and incorporated in to the conclusions enumerated above. The said para provides as follows:-

"What is the meaning of the opinion of the judiciary 'symbolised by the view of the Chief Justice of India?"

"This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In 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 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 senior-most judge of the Supreme Court whose opinion it 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 otherwise. Article 124 (2) is an indication that ascertainment of the views 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 required the Chief Justice of India to consult some Judges of 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 High Court would be entitled to the greatest weight, and 30the 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 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 his 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 Justices of India and the Chief Justice of High Court, and the expression of their opinion, must be in writing to avoid any ambiguity.

For a full coverage of all details and reasons which are summarized in the conclusions aforementioned which are not being repeated for the sake of brevity, Please see page 702 to 706 of the judgment (Supreme Court Advocates on Record Assn. v. Union of India reported in 1993 (4) SCC 441).

Clearly the court has transgressed far beyond the order of reference and covered many aspects which were not in the contemplation of the referring order. Instead of clarifying matters the judgment of nine judges has created more ambiguity than before.

5. The third judges case : (special reference No.1 of 1998) reported in (1998) (7) SCC 739.

The President of India who required clarification and light on the second judges case made a reference to the Supreme Court under article 143 of the Constitution which is as follows:-

"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 of India], 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-on-Record Assn. v. Union of India;

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 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;

Now, therefore, in exercise of the powers conferred upon me by clause (1) of Article 143 of 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:-

1. Whether the expression 'consultation with the Chief Justice of 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 constitute consultation within the meaning of the said articles;

2. Whether the transfer of Judges in judicially reviewable in the 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 required the Chief Justice of India to consult only the two seniormost Judges or whether there should be wider consultation according to 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 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 High Court concerned refers to only those Judges who have that High Court as a parent High Court and excludes Judges who 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 the light of the legitimate expectations of senior Judges of the High Court in regard to their appointment to the Supreme Curt referred to in the said judgment, the 'strong cogent reason' required 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 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 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?

Narayanan, K.R.
President of India

New Delhi
Dated: 23-7-1998

A bench of nine Judges was constituted comprising 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 said reference unanimously in the following manner in para 44 of the reference:

"The questions posed by the reference are now answered but we should emphasize that the answers should be read in conjunction with the body of this references

1. The expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) of the Constitution of India required 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.

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 Judges of the Supreme Court and/ or that the views of the Chief Justice of High Court from which the transfer is to be effected and of the Chief Justice of 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 Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation 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 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 High Court concerned 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.

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 the recommendation.

7. 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 along with his views to the extent set out in the body of his opinion.

8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his 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 (emphasis supplied)