Appointment of judges
CJI's recommendation not binding: SC

NEW DELHI, Oct 28 (PTI) — In a significant unanimous order, a nine-judge Constitution Bench of the Supreme Court today held that recommendations made by the Chief Justice of India (CJI) on the appointment of judges to the apex court and high courts without following the consultation process was not binding on the government and widened the scope of CJI's consultation.

Upholding the government stand on the consultation process, the Bench headed by Mr Justice S.P. Bharucha gave their opinion on the nine queries raised by the President in his reference and said 'consultation process to be adopted by the CJI requires consultation of plurality of judges. The sole opinion of the CJI does not constitute consultation process'.

'Recommendations made by the CJI without complying with the norms and guidelines regarding the consultation process are not binding on the government,' the court ruled.

Widening the scope of the consultation process, it said with regard to appointment of judges to the Supreme Court, the CJI should consult 'a collegium of four senior-most judges of the Supreme Court' and made it clear that even if 'two judges give an adverse opinion, the CJI should not send the recommendation to the government'.

However, giving primacy to the CJI's opinion as laid down by the apex court in its 1993 judgement in the Supreme Court advocates-on-record association case, the Constitution Bench said. 'The collegium should make the decision in consensus and unless the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be made'.

With regard to transfer of high court judges, the Bench said in addition to the collegium of four judges, the CJI was obliged to consult chief justices of the two high courts concerned (one from which the judge was transferred and other receiving him).

However, the Bench said, with regard to appointment of high court Judges, the CJI was required to consult only two senior-most judges of the apex court.

The Bench, which included Mr Justice M. K. Mukherjee, Mr Justice S.B. Majumdar, Mr Justice Sujata V. Manohar, Mr Justice G.T. Nanavati, Mr Justice S. Saghir Ahmed, Mr Justice K. Venkataswami and Mr Justice G.B. Pattanaik, read out the consensus opinion of the Bench on the presidential reference in a jam-packed court room.

While meeting the nine queries raised by the President one by one, the Bench made it clear that henceforth the CJI should make recommendations regarding appointments or transfers in accordance with the guidelines laid down in the 1993 judgement and as per the opinion given today.

'Merit should be the predominant factor while making any recommendation for appointment as judges', the Bench said and added that seniority alone was not the criteria.

However, the Bench said, 'All senior judges of the high court entertain hopes of elevation to the Supreme Court, the CJI and the collegium of judges should bear this in mind'.

When a person from the Bar was being considered for appointment to the Supreme Court, the Bar should also be consulted, the Bench said.

The 1993 judgement in the advocates-on-record association case had said that the CJI was to consult only two senior-most judges of the Supreme Court regarding appointment and transfer of judges.

The Bench held that the transfers of high court judges were subject to judicial review, but the same right could only be exercised by the aggrieved judge in a limited manner and none else.

The transfer of a high court judge was justiciable only on the ground that proper consultation process was not followed but the ground of bias was not available to the aggrieved judge to challenge his transfer, the Bench said.

'When it was said that the ground of bias was not available for challenging a transfer, it was to emphasise that the decision by the collective exercise of several judges at the highest level on objective criteria, on which the recommendation of the Chief Justice of India (CJI) was based, was an inbuilt check against arbitrariness and bias', it said.

However, the Bench said, in case any judge challenged his transfer in a court other than the Supreme Court, the same should exercise the option of requesting the apex court to take over the matter to avoid embarrassment.

'If any court other than the Supreme Court was called upon to decide a matter relating to the transfer of a high court judge, it should promptly consider the option of requesting the Supreme Court to withdraw to itself the case for decision to avoid any embarrassment'.

Immediately after the opinion was read out by the court, Attorney-General Soli Sorabjee said the government's stand on the consultation process stood vindicated and added that with this opinion, the process of filling of a large number of vacancies in the Supreme Court and in high courts would be expedited.