This article is an excerpt from the judgment
Every power vested in a public authority is to subserve a public purpose, and must invariably be exercised to promote interest. This guideline is inherent in every such provision, and so also in Article 222. The provision requiring exercise of this power by the President only after consultation with the Chief Justice of India, and the absence of the requirement of consultation with any other functionary, is clearly indicative of the determinative nature, not mere primacy, of the Chief Justice of India’s opinion in this matter.
The entire gamut in respect of the transfer of Judges is covered by Union of India v. Sankal Chand Himatlal Sheth and Anr. (1978) 1 SCR 423: AIR 1977 SC 2328 and S.P. Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc. (1982) 2 SCR 365: (AIR 1982 SC 149). It was held by majority in both the decisions that there is no requirement of prior consent of the Judge before his transfer under Article 222.
Initiation of Proposal
The initiation of the proposal for the transfer of a Judge/Chief Justice should be by the Chief Justice of India alone. This requirement in the case of a transfer is greater, since consultation with the Chief Justice of India alone is prescribed.
The power of transfer can be exercised only in ‘public interest’ i.e. for promoting better administration of justice throughout the country. After adoption of the transfer policy, and with the clear provision for transfer in Article 222, any transfer in accordance with the recommendation of the Chief Justice of India cannot be treated as punitive or an erosion in the independence of judiciary. Such Judges as may be transferred hereafter will have been, for the most part, initially appointed after the transfer policy was adopted and judicially upheld by this Court.
There will be no reason for any of them to even think that his transfer is punitive, when it is made in accordance with the recommendation of the Chief Justice of India. In his case, transfer was an obvious incident of this tenure. This applies equally to all Judges appointed after the adoption of the transfer policy, irrespective of whether they gave an undertaking to go on transfer or not.
The Constituent Assembly Debates indicate that the High Court Judges were intended to constitute and All India Cadre. This position cannot now be doubted after adoption of the policy of appointing Chief Justices from outside and the maintenance of an All India seniority based on the date of initial appointment, treating all High Courts as equal. If the transfer of a Judge on appointment as Chief Justice is not punitive, there is no occasion to treat the transfer of any other Judge as punitive.
Consent of the Transferred Judge
There is nothing in Article 222 to require the consent of a Judge/Chief Justice for his first or even a subsequent transfer. Since his consent is not read as a requirement for the first transfer, there is no reason to require his consent for any subsequent transfer, according to the same provision. The power under Article 222 is available throughout the tenure of a High Court Judge/Chief Justice, and it is not exhausted after the first transfer is made. The contrary view in S.P. Gupta has no basis in the Constitution.
It is reasonable to assume that the Chief Justice of India will recommend a subsequent transfer only in public interest, for promoting better administration of justice throughout the country, or at the request of the concerned Judge. As indicated, at least now, after the lapse of more than a decade since the decision in S.P. Gupta, there is no reason to treat any transfer as punitive; and, therefore, the observation in S.P. Gupta that a punitive transfer is impermissible has to application any more. As indicated by us later, a transfer made in accordance with the recommendation of the Chief Justice of India, is not justiciable.
Promotion of public interest by proper functioning of the High Courts and, for that reason, the transfer of any Judge/Chief Justice from one High Court to another must be the lodestar for the performance of this duty enjoined on the Chief Justice of India, as the head of the India judiciary.
Suitable norms, including those indicated hereafter, must be followed by the Chief Justice of India, for his guidance, while dealing with individual cases.
Norms
The hereinafter mentioned norms emerging from the actual practice and crystallised into conventions – not exhaustive – are expected to be observed by the functionaries to regulate the exercise of their discretionary power in the matters of appointments and transfers.
APPOINTMENTS
Opinion of the Senior Most Judges and High Court chief Judge
(1) What is the meaning of the opinion of the judiciary ‘symbolised by the view of the Chief Justice of India’?
This opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process 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 ascertainment of the views of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.
In matters relating to appointments in the High Courts, 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 whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion.
The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court.
The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity.
(2) The Chief Justice of India can recommend the initial appointment of a person to a High Court other than that for which the proposal was initiated, provided that the constitutional requirements are satisfied.
Seniority of the Judge
(3) Inter se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects. Inter se seniority amongst Judges in the Supreme Court, based on the date of appointment, is of similar significance. It is, therefore, reasonable that this aspect is 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. Apart from recognising the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court according to their seniority, this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.
The likelihood of the Supreme Court being deprived of the benefit of the services of some who are considered suitable for appointment, but decline a belated offer, would also be prevented.
Other Legitimate Expectation
(4) Due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court. 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. Just as a High Court Judge at the time of his initial appointment has the legitimate expectation to become Chief Justice of a High Court in his turn in the ordinary course, he has the legitimate expectation to be considered for appointment to the Supreme Court in his turn, according to his seniority.
This legitimate expectation has relevance on the ground of longer experience on the Bench, and is a factor material for determining the suitability of the appointee. Along with other factors, such as, proper representation of all sections of the people from all parts of the country, legitimate expectation of the suitable and equally meritorious Judges to be considered in their turn is a relevant factor for due consideration while making the choice of the most suitable and meritorious amongst them, the outweighing consideration being merit, to select the best available for the apex court.
Concurrence of Chief Justice of India
(5) The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.
When opinion of the Chief Justice of India may be discarded
(6) The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appointment recommended by the Chief Justice of India to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice of India, yet in an exceptional case, where the facts justify, a recommendee of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later.
Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter.
Non-Appointment of a recommendee
(7) Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, 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.
If the non-appointment in a rare case, on this ground, turns out to be a mistake that mistake in the ultimate public interest is less harmful than a wrong appointment. 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.
(8) Some instances when non-appointment is permitted and justified may be given. Suppose 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 reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible.
Similarly, when the recommendation is for appointment to a High Court, and the opinion of the Chief Justice of the High Court conflicts with that of the Chief Justice of India, the non- appointment, for valid reasons to be recorded and communicated to the Chief Justice of India, would be permissible. If the tenure as a Judge of the candidate is likely to be unduly short, the appointment may not be made. Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible. The condition of health or any such factor relating to the fitness of the candidate for the office may also justify non-appointment.
(9) In order to ensure effective consultation between all the constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involved, including all the Judges consulted, must be in writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinion of all Judges consulted by him, as a part of the record.
Expression of opinion in writing is an in built check on exercise of the power, and ensures due circumspection. Exclusion of justiciability, as indicated hereafter, in this sphere should prevent any inhibition against the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the constitutional functionaries, as primacy in the manner indicated.
(10) To achieve this purpose, and to give legitimacy and greater credibility to the process of appointment, the process must be initiated by the Chief Justice of India in the case of the Supreme court, and the Chief Justice of the High Court in the case of the High Courts. This is the general practice prevailing, by convention, followed over the years, and continues to be the general rule even now, after S.P. Gupta. The executive itself has so understood the correct procedure, notwithstanding S.P. Gupta, and there is no reason to depart from it when it is in consonance with the concept of the independence of the judiciary.
(11) The constitutional functionary meant by the expression ‘Governor’ in Article 217(1), is the Governor acting on the ‘aid and advice’ of his Council of Ministers in accordance with Article 163(1) read with Articles 166(3) and 167.
No undue Delay in Appointments
(12) Adherence to a time bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process. On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, failure of any other constitutional functionary to express its opinion within the specified period should be construed to mean the deemed agreement of that functionary with the recommendation, and the President is expected to make the appointment in accordance with the final opinion of the Chief Justice of India.
In such a situation, after expiry of the specified time within which all the constitutional functionaries are to give their opinion, the Chief Justice of India is expected to request the President to make the appointment without any further delay, the process of consultation being complete.
Copies of Proposal to Constitutional Functionaries
(13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others.
The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modifications, if any, suggested by the Chief Justice of India to effectuate the purpose.
Timing of Process of Appointment
(14) The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty. This schedule should be followed strictly and invariably in the appointment of the Chief Justices of the High Courts and the Chief Justice of India, to avoid the institution being rendered needless for any significant period. In the case of appointment of the Chief Justice of a High Court to the Supreme Court, the appointment of the successor Chief Justice in that High court should be made ordinarily within one month of the vacancy.
(15) Apart from the two well-known departures, appointments to the office of Chief Justice of India have, by convention, been of the senior most Judge of the Supreme Court considered fit to hold the office; and the proposal is initiated in advance by the outgoing Chief Justice of India. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation, if there be any doubt about the fitness of the senior most Judge to hold the office, which alone may permit and justify a departure from the long standing convention. For this reason, no other substantive consultative process is involved.
There is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.
TRANSFERS
(1) In the formation of his opinion, the Chief Justice 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.
The 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.
(2) Care must be taken to ensure that no Chief Justice is transferred without simultaneous appointment of his successor-in-office, and ordinarily the acting arrangement should not exceed one month, the maximum period needed usually for the movement of the Chief Justice to their new positions. This is essential for proper functioning of the High Courts, and to avoid rendering headless any High Court for a significant period which adversely affects the functioning of the judiciary of that State.
(3) The continuing practice of having Acting Chief Justice for long periods; transferring permanent Chief Justices and replacing them with out of turn Acting Chief Justices for long periods; appointing more than one Chief Justice from the same High Court resulting in frustration of the legitimate expectation of Judges of some other High Court in their turn, except in an extraordinary situation, must be deprecated and avoided. Application of the policy has been quite often selective and it is essential to make it uniform to prevent any injustice.
(4) It may be desirable to transfer in advance the senior most judge due for appointment as Chief Justice to the High Court where he is likely to be appointed Chief Justice, to enable him to take over as Chief Justice as soon as the vacancy arises and, in the meantime, acquaint himself with the new High Court. This would ensure a smooth transition without any gap in filling the office of Chief Justice. In transfer of puisne Judges, parity in proportion of transferred Judges must be maintained between the High Courts, as far as possible.
(5) The recommendations in the Report of the Arrears Committee (1989- 90) mention certain factors to be kept in view while making transfers to avoid any hardship to the transferred Judges. These must be taken into account.
Reference
Supreme Court Advocate on Record Association v. Union of India (1993)