Research › Browse › Judgment

Supreme Court of India · body

1998 DIGILAW 1257 (SC)

PRESIDENT OF INDIA v. SPECIAL REFERENCE No. 1 OF 1998

1998-10-28

B.N.KIRPAL, G.B.PATTANAIK, G.T.NANAVATI, K.VENKATASWAMI, M.K.MUKHERJEE, S.B.MAJMUDAR, S.P.BHARUCHA, S.SAGHIR AHMAD, SUJATA V.MANOHAR

body1998
Judgment S. P. BHARUCHA, J. ( 1 ) ARTICLE 143 of the Constitution of India confers upon the President of India the power to refer to this Court for its opinion questions of law or fact which have arisen or are likely to arise and which are of such a nature and of such public importance that is expedient to obtain such opinion. In exercise of this power, the President of India has on 23/07/1998 made the president reference, which is quoted in extenso :"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 Justice 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 Association v. Union of India, reported in AIR 1994 SC 268 ;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 to 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 if 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 or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles; (2) whether the transfer of Judges is 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 requires the Chief Justice of India to consult only the two senior-most 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 concerned High Court 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 light of the legitimate expectations of senior Judges of the High Court in regard to their appointment to the Supreme Court referred to in the said judgment, the strong cogent reason required to justify the depature 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?new Delhinarayanan K. R. DATED : 23-7-1998president of India" ( 2 ) THE decision mentioned in the Reference, in Supreme Court Advocates-on-Record Association v. Union of India, 1993 Supp (2) SCR 659 : ( AIR 1994 SC 268 ), (now referred to as "the second Judges Case") was rendered by a Bench of nine learned Judges. It examined these issues :" (1) 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 in regard to the transfers of High Court Judges/chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts. " ( 3 ) FIVE judgments were delivered in the second Judges case. Verma, J. spoke for himself and four learned Judges. Pandian, J. and Kuldip Singh, J. wrote individual judgments supporting the majority view. Ahmadi, J. dissented, adopting, broadly, the reasoning that had found favour in the Judges case. Punchhi, J. took the view that the Chief Justice of India had primacy and that he was entitled "to consult any number of Judges on the particular proposal. It is equally within his right not to consult anyone". ( 4 ) THE questions in the President reference relate, broadly, to three aspects : (1) consultation between the Chief Justice of India and his brothers Judges in the matter of appointments of Supreme Court and High Court Judges and transfers of the latter; question Nos. 1, 3, 4, 5, 7, 8 and 9; (2) judicial review of transfers of Judges : question No. 2; and (3) the relevance of seniority in making appointments to the Supreme Court : question No. 6. ( 5 ) BEFORE quoting what was said in the majority judgment in the second Judge case on these aspects, it is necessary to set out the provisions of Articles 124, 216, 217 and 222 of the Constitution, dealing, respectively, with the establishment and constitution of the Supreme Court, the constitution of the High Court, the appointment and conditions of the office of a Judge of a High Court and the transfer of a Judge from one High Court to another. "124. Establishment and Constitution of Supreme Court.- (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. "124. Establishment and Constitution of Supreme Court.- (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purposes and shall hold office until he attains the age of sixty-five years :provided that in the case of appointment of Judge other than the Chief Justice of India shall always be consulted:provided further that - (A) a Judge may, by writing under his hand addressed to the President, resign his office; (B) a Judge may be removed from his office in the manner provided in clause (4 ). ( (2a) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.) (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (A) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (B) has been for at least ten years an Advocate of a High Court or of two or more such Courts in succession; or (C) is, in the opinion of the President, a distinguished jurist. EXPLANATION I.- In this clause high Court means a High Court which exercises, or which at any time before the commence-menmt of this Constitution exercised, juris-diction in any part of the territory of India. EXPLANATION II.- In computing for the purpose of this clause the period during which a person has been an advocate any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included. EXPLANATION II.- In computing for the purpose of this clause the period during which a person has been an advocate any period during which a person has held judicial office not inferior to that of a district Judge after he became an advocate shall be included. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4 ). (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any Court or before any authority within the territory of India. 216. Constitution of High Courts.- 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. 217. Appointment and conditions of the office of a Judge of a High Court.- (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years. PROVIDED that - (A) a Judge may, by writing under his hand addressed to the President, resign his office; (B) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; (C) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and- (A) has for at least ten years held a judicial office in the territory of India; or (B) has for at least ten years been an Advocate of a High Court or of two or more such Courts in succession;explanation - For the purposes of this clause - (A) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law; (AA) in computing the period during which a person has been an Advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an Advocate; (B) in computing the period during which a person has held judicial office in the territory of India or been an Advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an Advocate of any High Court in any such area, as the case may be. (3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. 222. Transfer of a Judge from one High Court to another.- (1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. (2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix. " ( 6 ) THE following are extracts of what was said in the majority judgment in the second Judges case about the primacy of the Chief Justice of India in the matter of appointments of Judges to the Supreme Court and the High Courts and the need in this behalf of the desirability of consultation between the Chief Justice of India and his brother Judges (1993 Supp (2) SCR 659 : AIR 1994 SC 268 ) :. . . "a further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power to any one individual. Such a construction of the provisions and, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted. ". . . ( 7 ) THE majority judgment ends with a summary of its conclusions. Conclusion Nos. 1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. Such a construction of the provisions and, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted. ". . . ( 7 ) THE majority judgment ends with a summary of its conclusions. Conclusion Nos. 1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. They read thus (1993 Supp (2) SCR 659 : AIR 1994 SC 268 ) :" (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, subserving 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 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. (3) 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. (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, that 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. 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. (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. (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 any one. (11) Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. (14) 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 understood and implemented in the manner indicated herein by us. (EMPHASIS supplied) ( 8 ) WE have heard the learned Attorney General, learned counsel for the interveners and some of the High Courts and the Advocates General of some States. ( 9 ) WE record at the outset the statements of the Attorney General that - (1) the Union of India is not seeking a review or re-consideration of the judgment in the second Judges case, and (2) that the Union of India shall accept and treat as binding the answers of this Court to the questions set out in the Reference. ( 10 ) THE majority view in the second Judge case is that in the matter of appointments to the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy. ( 10 ) THE majority view in the second Judge case is that in the matter of appointments to the Supreme Court and the High Courts the opinion of the Chief Justice of India has primacy. The opinion of the Chief Justice of India is "reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation". It is to be formed "after taking into account the view of some other Judges who are traditionally associated with this function". The opinion of the Chief Justice of India "so given has primacy in the matter of all appointments". For an appointment to be made, it has to be "in conformity with the final opinion of the Chief Justice of India formed in the manner indicated". It must follow that an opinion formed by the Chief Justice of India in any manner other than that indicated has no primacy in the matter of appointments to the Supreme Court and the High Courts and the Government is not obliged to act thereon. ( 11 ) INSOFAR as appointments to the Supreme Court of India are concerned, the majority view in the second Judges case is that the opinion given by the Chief Justice of India in this behalf "has to be formed taking into account the views of the two senior-most 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 is 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 ascertained of the views of some other Judges of the Supreme Court is requisite". ( 12 ) IT was urged by the learned Attorney General as also by learned counsel that the Chief Justice of India needs to consult a larger number of Judges of the Supreme Court before he recommends an appointment to the Supreme Court. Attention was drawn to the fact that at the time of the latest selection of Judges appointed to the Supreme Court, the then Chief Justice of India had constituted a panel of himself and five of the then senior-most puisne Judges. Attention was drawn to the fact that at the time of the latest selection of Judges appointed to the Supreme Court, the then Chief Justice of India had constituted a panel of himself and five of the then senior-most puisne Judges. It was submitted that this precedent should be treated as a conviction and institutionalised. ( 13 ) WE think it necessary to make clear at the outset the distinction that follows. The opinion of the Chief Justice of India which has primacy in the matter of recommendations for appointment to the Supreme Court has to be formed in consultation with a collegium of Judges. Presently, and for a long time now, that collegium consists of the two senior-most puisne Judges of the Supreme Court. In making a decision as to whom that collegium should recommend, it takes into account the views that are elicited by the Chief Justice of India from the senior-most Judge of the Supreme Court who comes from the same High Court as the person proposed to be recommended. It also takes into account the views of other Judges of the Supreme Court or the Chief Justices or Judges of the High Courts or, indeed, members of the Bar who may also have been asked by the Chief Justice of India or on his behalf. The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court Bench. The Chief Justice of India and the senior-most puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective. They can assess the comparative worth of possible appointees by reason of the fact that their judgments would have been the subject-matter of petitions for special leave to appeal and appeals. Even where the person under consideration is a member of the Bar, he would have frequently appeared before them. In assessing comparative worth as aforestated, the collegium would have the benefit of the inputs provided by those whose views have been sought. The distinction, therefore, is between the Judges of the Supreme Court who decide, along with the Chief Justice of India, who should be recommended for appointment to the Supreme Court and the Judges of the Supreme Court and others who are asked to express their views about the suitability of a possible nominee for such appointment. The distinction, therefore, is between the Judges of the Supreme Court who decide, along with the Chief Justice of India, who should be recommended for appointment to the Supreme Court and the Judges of the Supreme Court and others who are asked to express their views about the suitability of a possible nominee for such appointment. ( 14 ) WITH this in mind, what has to be considered is whether the size of the collegium that makes the recommendation should be increased. Having regard to the terms of Article 124 (2), as analysed in the majority judgment in the second Judges case, as also the precedent set by the then Chief Justice of India, as set out earlier, and having regard to the objective aforestated, we think it is desirable that the collegium should consists of the Chief Justice of India and the four senior-most puisne Judge of the Supreme Court. ( 15 ) ORDINARILY, one of the four senior-most puisne Judge of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four senior-most puisne Judges, he must invariably be made part of the collegium. The Judges to be appointed will function during his term and it is but right that he should have a hand in their selection. ( 16 ) IT is not practicable to include in the collegium the senior-most Judge of the Supreme Court who comes from the same High Court as the person to be recommended, unless, of course, he is a part of the collegium by virtue of being one of the four senior-most puisne Judges, because, as experience shows, it is normally not one vacancy that has to be filled up but a number thereof. The prospective candidates to fill such multiple vacancies would come from a number of High Courts. It would, therefore be necessary to consult the senior-most Judges from all those High Courts. All these Judges cannot conveniently be included in the collegium. Secondly, the composition of the collegium cannot vary depending upon where the prospective appointees hail from. To put it differently, for a particular set of vacancies the senior-most Judges from the High Courts at, let us say, Allahabad and Bombay may have to be consulted. All these Judges cannot conveniently be included in the collegium. Secondly, the composition of the collegium cannot vary depending upon where the prospective appointees hail from. To put it differently, for a particular set of vacancies the senior-most Judges from the High Courts at, let us say, Allahabad and Bombay may have to be consulted. It would neither be proper nor desirable, if they have been part of the collegium for that particular selection, to leave them out of the next collegium although no prospective appointee at that time hails from the High Court at Allahabad or Bombay. Thirdly, it would not be proper to exclude from the collegium such Judges of the Supreme Court, if any, as are senior to the Judges required to be consulted. Lastly, the senior-most Judge of the Supreme Court who comes from the same High Court as the person to be recommended may be, in terms of over-all seniority in the Supreme Court, very junior, with little experience of work in the Supreme Court, and, therefore, unable to assess the comparative merit of a number of possible appointees. ( 17 ) NECESSARILY, the opinion of all members of the collegium in respect of each recom-mendation should be in writing. The ascertain-ment of the views of the senior-most Supreme Court Judges who hail from the High Courts from where the persons to be recommended come must also be in writing. These must be conveyed by the Chief Justice of India to the Government of India along with the recommendation. The other views that the Chief Justice of India or the other members of the collegium may elicit, particularly if they are from non-Judges, need not be in writing, but it seems to us advisable that he who elicits the opinion should make a memorandum thereof, and the substance thereof, in general terms, should be conveyed to the Government of India. 17-A. The senior-most Judges in the Supreme Court from the High Court from which a prospective candidate comes would ordinarily know his merits and demerits, but if per chance he does not, the next senior-most Judge in the Supreme Court from that High Court should be consulted and his views obtained in writing. 17-A. The senior-most Judges in the Supreme Court from the High Court from which a prospective candidate comes would ordinarily know his merits and demerits, but if per chance he does not, the next senior-most Judge in the Supreme Court from that High Court should be consulted and his views obtained in writing. ( 18 ) WE should add that the objective being to procure the best information that can be obtained about a prospective appointee, it is of no consequence that a Judge in the Supreme Court from the prospective appointees High Court had been transferred to that High Court either as a puisne Judge or as its Chief Justice. ( 19 ) IT is, we think reasonable to expect that the collegium would make its recommen-dations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is : what is the position when the Chief Justice of India is in a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment in the second Judges case has said that if "the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the Judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the Chief Justice of India would not press for such appointment. ( 20 ) THE majority judgment in the second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability. ( 20 ) THE majority judgment in the second Judges case contemplates the non-appointment of a person recommended on the ground of unsuitability. It says that such non-appointment "must be for good reason, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest. . . However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made". It may be that one or more members of the collegium that made a particular recommendation have retired or are otherwise unavailable when reasons are disclosed to the Chief Justice of India for the non-appointment of that person. In such a situation the reasons must be placed before the remaining members of the original collegium plus another Judge or Judges who have reached the required seniority and become one of the first four puisne Judges. It is for this collegium, so re-constituted, to consider whether the recommendation should be withdrawn or reiterated. It is only if it is unanimously reitarated that the appointment must be made. Having regard to the objective of securing the best available men for the Supreme Court, it is imperative that the number of Judges of the Supreme Court who consider the reasons for non-appointment should be as large as the number that had made the particular recommendation. ( 21 ) THE Chief Justice of India may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto. The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation. ( 21 ) THE Chief Justice of India may, in his discretion, bring to the knowledge of the person recommended the reasons disclosed by the Government of India for his non-appointment and ask for his response thereto. The response, if asked for and made, should be considered by the collegium before it withdraws or reiterates the recommendation. ( 22 ) THE majority judgment in the second Judges cases said that "inter se seniority amongst Judge in their High Court and their combined seniority on all India basis" should be "kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court". It also said that "the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority" must be duly considered. The statement made thereafter is very important; it is : "obviously, this factor applies only to those considered suitable and at least equally meritorious by the Chief Justice of India for appointment to the Supreme Court. " ( 23 ) MERIT, therefore, as we have already noted, is the predominant consideration for the purposes of appointment to the Supreme Court. ( 24 ) WHERE, therefore, there is outstanding merit the possessor thereof deserves to be appointed regardless of the fact that he may not stand high in the all India seniority list or in his own High Court. All that then needs to be recorded when recommending him for appointment is that he has outstanding merit. When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have, nevertheless, the required merit in more or less equal degree, there may be reason to recommend one among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court Bench. All that then needs to be recorded when making the recommendation for appointment is this factor. The "strong cogent reasons" that the majority judgment in the second Judges case speaks of are good reasons for appointing to the Supreme Court a particular High Court Judge, not for not appointing other High Court Judges senior to him. All that then needs to be recorded when making the recommendation for appointment is this factor. The "strong cogent reasons" that the majority judgment in the second Judges case speaks of are good reasons for appointing to the Supreme Court a particular High Court Judge, not for not appointing other High Court Judges senior to him. It is not unusual that a Judge who has once been passed over for appointment to the Supreme Court might still find favour on the occasion of another selection and there is no reason to blot his copy book by recording what might be construed to be an adverse comment about him. It is only when, for very strong reasons, a collegium finds that, whatever his seniority, some High Court Judge should never be appointed to the Supreme Court that it should so record. This would then be justified and would afford guidance on subsequent occasions of considering who to recommend. ( 25 ) MR. Parasaran, learned counsel for the intervener, the Advocates-on-Record Association, submitted that the words legitimate expectation were not apposite when the reference was to High Court Judges. We make it clear that no disparagement of High Court Judges was meant; all that was intended to be conveyed was that it was very natural that senior High Court Judges should entertain hopes of elevation to the Supreme Court and that the Chief Justice of India and the collegium should bear this in mind. ( 26 ) THE majority judgment in the second Judges case requires the Chief Justice of a High Court to consult his two senior-most puisne Judges before recommending a name for appointment to the High Court. In forming his opinion in relation to such appointment 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. . . . . . . ". The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court. . . . . . . ". The Chief Justice of India should, therefore, form his opinion in regard to a person to be recommended for appointment to a High Court in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his senior-most puisne Judges. They would in making their decision take into account the opinion of the Chief Justice of the High Court, which "would be entitled to greatest weight", the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court Bench "who are conversant with the affairs of the concerned High Court". Into that last category would fall Judges of the Supreme Court who were puisne Judges of that High Court or Chief Justices thereof, and it is of no consequence that the High Court is not their parent High Court and they were transferred there. The objective being to gain reliable information about the proposed appointee, such Supreme Court Judge as may be in position to give it should be asked to do so. All these views should be expressed in writing and conveyed to the Government of India along with the recommendation. ( 27 ) HAVING regard to the fact that information about a proposed appointee to a High Court would best come from the Chief Justice and Judges of that High Court and from Supreme Court Judges conversant with it, we are not persuaded to alter the strength of the decision making collegiums size; where appointments to the High Courts are concerned, it should remain as it is, constituted of the Chief Justice of India and the two senior-most puisne Judges of the Supreme Court. ( 28 ) IN the context of the judicial review of appointments, the majority judgment in the second Judges case said, "plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another in-built check against the likelihood of arbitrariness or bias. . . The judicial element being predominant in the case of appointments. . . . . , as indicated, the need for further judicial review, as in other executive actions, is eliminated. . . The judicial element being predominant in the case of appointments. . . . . , as indicated, the need for further judicial review, as in other executive actions, is eliminated. " The judgment added, "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, these matters are not justiciable on any other ground. . . . . . " ( 29 ) JUDICIAL review in the case of an appointment, or a recommended appointment, to the Supreme Court or a High Court is, therefore, available if the recommendation concerned is not a decision of the Chief Justice of India and his senior-most colleagues, which is constitutionally requisite. They number four in the case of a recommendation for appointment to the Supreme Court and two in the case of a recommendation for appointment to a High Court. Judicial review is also available if, in making the decision, the views of the senior-most Supreme Court Judge who comes from the High Court of the proposed appointee to the Supreme Court have not been taken into account. Similarly, if, in connection with an appointment, or a recommended appointment, to a High Court, the views of the Chief Justice and senior Judges of the High Court, as aforestated, and of Supreme Court Judges knowledge about that High Court have not been sought or considered by the Chief Justice of India and his two senior-most puisne Judges, judicial review is available. Judicial review is also available when the appointee is found to lack eligibility. ( 30 ) THE majority judgment in the second Judges case dealt with the question of the transfer of a puisne Judge of one High Court as a puisne Judge of another High Court. It said, "in the formation of his opinion, the Chief Justices of India, in the case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India. " In regard to the justiciability of such transfers, it said, "plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another in-built check against the likelihood or arbitrariness or bias. . . . . . The judicial element being. . . decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. " In the same context there was reference to "the element of plurality of Judges in formation of the opinion of the Chief Justice of India". It was then said that "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 opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection against any arbitrariness or bias, as well as any erosion of the independence of the judiciary. " Again, it was said, "except on the ground. . . . . . . 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 of bias, which in any case is excluded by the element of plurality in the process of decision making. " ( 31 ) THE same thoughts were expressed in the concurring judgment of Kuldip Singh, J. , thus ( AIR 1994 SC 268 , Para 411)"we are, therefore, of the view that the opinion of the Chief Justice of India in the process of consultation for appointments to the superior Courts must be formed in consultation with two of his senior-most colleagues. Apart from that the Chief Justice of India must also consult the senior-most Judge who comes from the same State (the State from where the candidate is being considered ). This process of consultation shall also be followed while transferring any Judge/chief Justice from one State to another. " ( 32 ) THE judgment in the case of K. Ashok Reddy v. Government of India, (1994) 2 SCC 303 : (1994 AIR SCW 1431), dealt with the justiciability of transfers of High Court Judges from one High Court to another. This process of consultation shall also be followed while transferring any Judge/chief Justice from one State to another. " ( 32 ) THE judgment in the case of K. Ashok Reddy v. Government of India, (1994) 2 SCC 303 : (1994 AIR SCW 1431), dealt with the justiciability of transfers of High Court Judges from one High Court to another. The judgment, rendered by a Bench of three learned Judges, records that it was a "sequel to the decision" in the second Judges case. It refers to the fact that after the second Judges case the then Chief Justice of India had constituted a Peer Committee comprised of the then two senior-most puisne Judges of Supreme Court and two Chief Justices of High Courts to make suggestions for transfers and the Chief Justice of India was to make his recommendations on that basis and in accordance with the broad guidelines indicated in the second Judges case. There was, therefore, the judgment said, no room left for any apprehension of arbitrariness or bias in the transfer of any Judge or Chief Justice of a High Court. There was no doubt that the Chief Justice of India, acting on the institutional advice available to him, was the surest and safest bet for preservation of the independence of judiciary. The second Judges case did not exclude judicial review but limited the area of justiciability to be constitutional requirement of the recommendation of the Chief Justice of India for exercise of power under Article 222 by the President of India. The power of transfer was to be exercised by the highest constitutional functionaries in the country in the manner indicated, which provided several in-built checks against the likelihood of arbitrariness or bias. The need for restricting the standing to sue in such a matter to the affected Judge alone had been reiterated in the second Judges case. The transfer of a High Court Judge was justiciable only on the ground indicated in the second Judges case and only at the instance of the transferred Judge himself and no one else. This was necessary to prevent any transferred Judge being exposed to any litigation involving him except when he chose to resort to it himself in the available limited area of justiciability. This was necessary to prevent any transferred Judge being exposed to any litigation involving him except when he chose to resort to it himself in the available limited area of justiciability. When it was said in the second Judges case 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 was based, was an in-built check against arbitrariness and bias indicating the absence of need for judicial review on those grounds. 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 the case to itself for decision to avoid any embarrassment. ( 33 ) WHAT emerges from the aforesaid is this : Before recommending the transfer of a puisne Judge of one High Court to another High Court, also as a puisne Judge, the Chief Justice of India must consult a plurality of Judges. He must take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may have significance in the case and atleast one other senior Chief Justice of a High Court or any other person whose views he considers relevant. The then Chief Justice of India had constituted, as was noted in Ashok Reddys case, a Peer Committee of the two senior-most puisne Judges of the Supreme Court and two Chief Justices of High Courts to advise him in the matter of transfers of High Court Judges. That Committee is no longer in position. ( 34 ) IT is to our mind imperative, given the gravity involved in transferring High Courts Judges, that the Chief Justice of India should obtain the views of the Chief Justice of the High Court from which the proposed transfer is to be effected as also the Chief Justice of the High Court to which the transfer is to be effected. This is in accord with the majority judgment in the second Judges case which postulates consultation with the Chief Justice of another High Court. This is in accord with the majority judgment in the second Judges case which postulates consultation with the Chief Justice of another High Court. The Chief Justice of India should also take into account the views of one or more Supreme Court Judges who are in a position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place. These views should be expressed in writing and should be considered by the Chief Justice of India and the four senior-most puisne Judges of the Supreme Court. These views and those of each of the four senior-most puisne Judges should be conveyed to the Government of India along with the proposal of transfer. Unless the decision to transfer has been taken in the manner aforestated, it is not decisive and does not bind the Government of India. ( 35 ) WIDE based decision making such as this eliminates the possibility of bias or arbitrariness. By reason of such elimination the remedy of judicial review can legitimately be confined to a case where the transfer has been made or recommended without obtaining views and reaching the decision in the manner aforestated. ( 36 ) WHAT applies to the transfer of a puisne Judge of a High Court applies a (as) well to the transfer of the Chief Justice of a High Court as Chief Justice of another High Court except that, in this case, only the views of one or more knowledgeable Supreme Court Judges need to be taken into account. ( 37 ) THE majority judgment in the second Judges case requires that " (t)he personal factors relating to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account by the Chief Justice of India before forming his final opinion objectively, on the available material, in the public interest for better administration of justice". These factors, including the response of the High Court Chief Justice or puisne Judge proposed to be transferred to the proposal to transfer him, should now be placed before the collegium of the Chief Justice of India and his first four puisne Judges to be taken into account by them before reaching a final conclusion on the proposal. These factors, including the response of the High Court Chief Justice or puisne Judge proposed to be transferred to the proposal to transfer him, should now be placed before the collegium of the Chief Justice of India and his first four puisne Judges to be taken into account by them before reaching a final conclusion on the proposal. ( 38 ) WE have heard with some dismay the dire apprehension expressed by some of the counsel appearing before us. We do not share them. We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the second Judges case and this opinion. ( 39 ) WE have not dealt with any aspect placed before us at the Bar that falls outside the scope of the questions posed in the Reference. ( 40 ) IT remains only to express our gratitude to the Attorney General, Mr. K. Parasaran, Mr. K. K. Venugopal, Mr. R. K. Jain, Mr. A. B. Divan, Mr. Murlidhar Bhandare, Mr. Arun Jaitley, Mr. Gopal Subramaniam, Mr. H. N. Salve, Mr. V. A. Mohta, Mr. R. P. Goel, Mr. P. S. Poti, Mr. Sarin, Mr. B. R. Bhattacharya, Mr. A. R. Barthakur, Mr. P. G. Baruah, Mr. Govind Das and Ms. Radha Rangaswamy. Their submission and insights have much assisted us. We should note that there was no great divergence in what they Advocated. ( 41 ) THE questions posed by the Reference are now answered, but we should emphasise that the answers should be read in conjunction with the body of this opinion :1. The expression "consultation with the Chief Justice of India" in Articles 217 (1) and 222 (1) of the Constitution of India requires 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 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 senior-most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the 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 senior-most 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 senior-most 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 concerned High Court 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 view 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 this opinion. 8. What has to be recorded is the positive reason for the recommendation. 7. The view 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 this 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. OPINION given accordingly.