Presidential reference on judges' appointment
Supreme Court reserves judgement

NEW DELHI, Oct 13 (PTI) — The Supreme Court today reserved its verdict on the presidential reference raising nine questions regarding the consultation process to be adopted by the Chief Justice of India (CJI) for the appointment of judges to the apex court and high courts after hearing three-day-long marathon arguments.

Concluding the arguments, Attorney-General Soli Sorabjee submitted before a Constitution Bench headed by Mr Justice S P Bharucha that any recommendations made by the CJI regarding the appointment or transfer of a judge recommended without following the norms and guidelines laid down by an earlier judgement would not be binding on the executive.

Advocating wider consultation, Mr Sorabjee said ideally it should be the CJI and four seniormost judges of the apex court and added that a proposal on the transfer or appointment sent by the CJI after consulting two seniormost judges of the apex court would also not be regarded as proper consultation.

The Attorney-General’s view was widely adopted by the states, various advocate bodies and the high courts, all of which advanced their submissions.

The Bench, comprising Mr Justice Bharucha, Mr Justice M K Mukherjee, Mr Justice S B Majumdar, Ms Justice Sujata V Manohar, Mr Justice G T Nanavati, Mr Justice S Saghir Ahmed, Mr Justice K Venkataswami and Justice G B Pattanaik, ordered that the original files pertaining to the correspondence between the CJI and the Ministry of Law and the Prime Minister be returned to the government.

The Bench discouraged advocates from widening the scope of the reference by saying: "We do not wish to go one inch beyond the scope of the reference."

When various high courts through their counsel raised certain problems faced by them, the Bench said: "We are not sitting here as a grievance committee."

Mr Sorabjee suggested that the CJI, in the event of an adverse Intelligence Bureau (IB) report against a person considered for appointment, should confront him with the report and seek explanation as the reports were not always reliable.

"IB reports, in certain cases, have to be taken with a pinch of salt," the Attorney-General said citing an example where the IB had given a report mistaking the identity of a person who was to be appointed as a judge.

However, the Bench said that "it should be left to the discretion of the CJI (whether or not to confront the person against whom an adverse report is given) depending on the content of the report."

On wider consultation, Mr Sorabjee said it should be applicable to both appointments and transfers and argued that "there was no convention, precedent or law which bars wider consultation to be resorted to by the CJI."

Submitting for Gujarat, senior advocate Arun Jaitley supported the view of wider consultation but said if the judges failed to arrive at a consensus, the CJI should not send the proposal for the appointment or transfer to the executive.

Mr Jaitley said the consensus view taken by the judges in regard to appointments and transfers should be binding on the executive but said the proposals on which the consensus eluded the judges should be dropped.

He, however, said: "In no case, the executive should be allowed to exercise any discretion on recommendations given by the CJI."

Appearing for Himachal Pradesh, senior advocate Harish Salve said that during the consultation process, the majority view should prevail even if the CJI did not subscribe to that view.

While supporting the views expressed by many regarding wider consultation among judges, Mr Salve suggested that the whole consultation process and the recommendations should be made public as transparency would strengthen the apex court as an institution.

The Supreme Court had laid down norms and guidelines regarding the appointment of judges to the apex court and the appointment and transfer of chief justices and judges of high courts in 1993 while delivering a judgement on a petition by the Supreme Court Advocates-On-Record Association.

The Constitution Bench had made it clear that while clarifying the doubts raised by the president in his reference, it would neither review nor reconsider the 1993 judgement which had become the law of the land.