Court: Supreme Court of India.
Citation: (1993) 4 SCC 441.
Case No.: 1303 0f 1987.
Case Type: Writ Petition (Civil).
Date of Judgement: 06/10/1993.
Petitioner: Supreme Court Advocates on-record Association & another.
Respondent: Union of India.
- Justice S. Ratnavel Pandian.
- Justice A.M. Ahmadi
- Justice Kuldip Singh.
- Justice J.S. Verma.
- Justice M.M. Punchi.
- Justice Yogeshwar Dayal.
- Justice G.N. Ray.
- Justice Dr A.S. Anand.
- Justice S.P. Bharucha.
- S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. (1982) 2 SCR 365 : (AIR1982 SC 149).
- Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. (1985) 4 SCC 417: AIR 1987 SC 454.
- Union of India v. Sankal Chand Himatlal Sheth and Anr. (1978) 1 SCR 423 : AIR 1977 SC 2328
- Constitution of India
- In S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc.(1982) 2 SCR 365 : (AIR1982 SC 149), the majority view was that the Executive had primacy in matters relating to the appointment of judges to the Supreme Court and the High Courts.
- The following writ petition was placed in front of a nine-judge bench that reconsidered the decision in the S.P Gupta Case (supra).
- 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 regard to the transfers of High Court Judges/Chief Justices; Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts.
The contention by Respondent:
- In the actual working of the process of appointment of judges to the Supreme Court and the High Court and the transfer of High Court Judges/Chief Justices, the Executive attaches primacy to the opinion of the Chief Justice of India.
- The Executive has never made an appointment to the superior Judiciary without the name being cleared by the Chief Justice of India.
· The constitutional scheme excludes the scope of absolute power in any one individual.
· 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, subserving the constitutional purpose, so that the occasion of primary does not arise.
- While performing their constitutional obligation of appointing suitable candidates to posts of high significance, the functionaries from the Executive and Judiciary compare all the candidates on their merit and appoint the best possible candidate. However, if there is a difference of opinion among the functionaries, then the question of primacy would arise to avoid a stalemate.
- In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India, has primacy.
- 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.
- In exceptional cases alone, for stated strong, cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made.
- 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.
- The independence of the Judiciary must be safeguarded by preventing the influence of political considerations while making the appointment of judges.
- Under the Governments of India Acts, the appointments were made in the absolute discretion of the Crown. However, the departure made in the Constitution of India from the earlier pattern was a clear indication that the Constitutional provisions cannot be construed to read therein the absolute discretion of the Government of India while making appointments.
- The Chief Justices ( of India and respective High Courts) are best equipped to know and assess a candidate’s worth to be appointed as a superior judge. The opinion of the Chief Justice should have the greatest weight. During the participatory consultative process, the Executive must act as a mere check on the power of the Chief Justices. The Executive’s role is thus reduced to a minimum, and political influence is eliminated.
- Therefore, the word ‘consultation’ was used in the Constitution and not ‘concurrence’ to not give absolute power to any one entity, not even the Chief Justices.
- The Chief Justice of India and the Chief Justices of High Courts are responsible for the functioning of the courts and are thus accountable for the judicial appointments.
- In making all appointments and transfers, the norms established must be followed. However, the same do not confer any justiciable right in anyone.
- The reduction of the area of discretion to the minimum, the element of plurality of Judges information of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness.
- The fixation of Judge strength in a High Court is justiciable; and if it is shown that the existing strength is inadequate to provide speedy justice to the people – speedy trial being a requirement of Article 21 – in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation of providing speedy justice and to thereby ‘secure that the operation of the legal system promotes justice’ – a solemn resolve declared also in the preamble of the Constitution. In making the review of the Judge strength in a High Court, the President must attach great weight to the opinion of the Chief Justice of that High Court and the Chief Justice of India, and if the Chief Justice of India so recommends, the exercise must be performed with due despatch.
- The majority opinion in S.P. Gupta v. Union of India (1982) 2 SCR 365: AIR 1982 SC 149, 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 the constitutional scheme, must now be construed, understood and implemented in the manner indicated herein by us.
- In matters of appointment of judges to the Supreme Court or High Court and the transfer of High Court Judges/Chief Justices, the primacy lies with the Chief Justice of India.
- Minimal judicial review is available in matters related to the matters of appointment and transfer of judges.
- Fixation of the strength of judges in High Courts is justiciable.
- The hue of the word ‘consultation’, when the consultation is with the Chief Justice of India as the head of the Indian Judiciary, for the purpose of composition of higher Judiciary, has to be distinguished from the colour the same word ‘consultation’ may take in the context of the Executive associated in that process to assist in the selection of the best available material.
- The word ‘concurrence’ more appropriately describes the consultation process followed by the constitutional functionaries while making appointments to the Supreme Court and the High Courts. The appointments made by the Executive must be in concurrence with the opinion of the Chief Justice of India.
- The Executive does not have any accountability to the people in the matters of judicial appointment.
- The advice given by the Council of Ministers according to the Constitution binds the President. Therefore, the advice must be in accordance with the concept of the primacy of the Chief Justice of India.
- The opinions formed by the Chief Justice of India and the Chief Justice of High Courts are not merely their individual opinions but the collective opinion of the Judiciary.
- 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 not justiciable on any other ground, including the reasons for the transfer or their sufficiency.
- The Chief Justice of India represents the Judiciary of India. The Judiciary of India was envisioned to be independent of any political aspirations and pressures.
Prepared by Mihir Poojary.