Aapka Consultant Judgment Series- In this series, we are providing case analysis of Landmark Judgments of Hon’ble Supreme Court of India.
Supreme Court Advocates-on-Record Association and Anr. V. Union of India
AIR1994SC268, (1993)4SCC441
Hon’ble Judges/Coram: S.R. Pandian, A.M. Ahmadi, Kuldip Singh, J.S. Verma, M.M. Punchhi, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ.
Date of Decision: 06/10/1993
FACTS:-
The Supreme Court by and order dated October 26, 1990 passed in Subhash Sharma and Ors. and Anr. Union of India (1990) 2 S.C.R. 433 was of the opinion that the correctness of the majority view in S.P. Gupta and Ors. v. Union of India and Ors. (AIR 1982 SC 149), required reconsideration by a larger Bench, and thus, directed the matter to be placed before the learned Chief Justice of India for constituting a Bench of nine Judges to examine the two question referred therein, namely, the position of the Chief Justice of India with reference to primacy, and justiciability of fixation of Judge strength. This is how these questions arise for decision by this Bench.
ISSUES:-
(1) Whether primacy can be given to 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) Whether these matters, including the matter of fixation of the Judge-strength in the High Courts, are justifiable?
JUDGMENT:-
In light of all the issues raised in this case, the Supreme Court observed that these should be considered in the context of the independence of the judiciary and to secure ‘rule of law’, which forms basic structure of the Constitution and is essential for the preservation of the democratic system, together with the directive principle of ‘separation of judiciary from executive’ even at the lowest strata.
Firstly, in order to decide the issue, whether primacy should be given to the decision of Chief Justice of India in matters of appointment and transfer of the Supreme Court and High Court Judges, the Supreme court observed that when the Constitution was being drafted, there was general agreement that the appointments of Judges in the superior judiciary should not be left to the absolute discretion of the executive, and this was the reason for the provision made in the Constitution imposing the obligation to consult the Chief Justice of India and the Chief Justice of the High Court. The debate on primacy is intended to determine, who amongst the constitutional functionaries involved in the integrated process of appointments is best equipped to discharge the greater burden attached to the role of primacy, of making the proper choice; and this debate is not to determine who between them is entitled to greater importance or is to take the winner’s prize at the end of the debate.
Court observes that this question arises for the purposes of appointments of Judges in the Supreme Court in accordance with Article 124(2), and in the High Courts in accordance with Article 217(1); and transfer of a Judge/Chief Justice from on High Court to another in accordance with Article 222 of the Constitution. The constitutional purpose to be served by these provisions is 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. It is obvious that only those persons should be considered fit for appointment as Judges of the superior judiciary who combine the attributes essential for making an able, independent and fearless judge. Several attributes together combine to constitute such a personality. Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge. The initial appointment of Judges in the High Courts is made from the Bar and the subordinate judiciary. Appointment to the Supreme Court is mainly from amongst High Court Judges, and on occasion directly from the Bar. The arena of performance of those men are the courts, it is, therefore, obvious that the maximum opportunity for adjudging their ability and traits, is in the courts and, therefore, the Judges are best suited to assess their true worth and fitness for appointment as judges.
In line with it, Court further observes that 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 taking into account the views of some of his colleagues; and the executive being permitted to prevent and 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 purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister. Therefore, court held that though in matters of appointments and transfer of the judges, the opinion of the Chief Justice 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.
Secondly, in respect of the justiciability of decisions relating to appointments and/or transfers is concerned, Court opined that the primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decision, which is ordinarily needed as a check against possible executive excess or arbitrariness. The Court further observed that 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 norms to regulate the area of discretion are sufficient checks against arbitrariness, and thus there is a sufficient justification for the absence of the need for further judiciary review of these decisions. That apart, 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 or bias, which in any case is excluded by the element of plurality in the process of decision making.
And, as far as justiciability of fixation of the Judge-strength in the High Courts, the Court was of the view that it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filing. The Court observes that Article 216 deals with Constitution of High Courts. It provides that 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’. To enable proper exercise of this function of appointment of ‘other Judges’, it is necessary to make a periodical review of the Judge strength of every High Court with reference to the felt need for disposal of cases, taking into account the backlog and expected future filing. This is essential to ensure speedy disposal of cases, to ‘secure that the operation of the legal system promotes justice’ – directive principle ’fundamental in the governance of the country’ which, it is the duty of the State to observe in all its action; and to make meaningful the guarantee of fundamental rights in Part III of the Constitution. Accordingly, the failure to perform this obligation, resulting in negation of the rule of law by the law’ delay must be justiciable, to compel performance of that duty.
Accordingly, it must be held that 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. Moreover, the Court held that in making such review 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.
HELD:-
For reason indicated earlier, following are the principles held in this case:
- The process of appointment of Judges to the SupremeCourt 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.
- Initiation of the proposal for appointment in the case of the SupremeCourt 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 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 must invariably be made.
- 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’and formed in the manner indicated, has primacy.
- No appointment of any Judge to the SupremeCourt 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 Indiamay 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.
- Appointment to the office of the Chief Justice of Indiashould be of the senior most Judge of the Supreme Court considered fit to hold the office.
- The opinion of the Chief Justice of Indiahas not mere primacy, but is determinative in the matter of transfers of HighCourt judges/Chief Justices.
- Consent of the transferred Judge/Chief Justice is not required for either the first of any subsequent transfer from one High Courtto another.
- Any transfer made on the recommendation of the Chief Justice of Indiais not to be deemed to be punitive, and such transfer is not justiciable on any ground.
- In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one.
- Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers.
- The initial appointment of Judge can be made to a High Courtother than that for which the proposal was initiated.
- Fixation of Judge-strength in the High Courtsis justiciable, but only to the extent and in the manner indicated.
- The majority opinion in P. Gupta v. Unionof India [1982]2SCR365, 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 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.To Get Legal Opinion from Advocates/ Legal Experts, Please click here
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