Reply To: Despite RAW objections SC Collegium recommended a gay advocate to be appointed as Delhi High Court Judge (18/01/2023)

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advtanmoy
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Supreme Court Advocates-on-Record Association and others v. Union of India (1993)

Consultation with a plurality of Judges

Apex Court in Supreme Court Advocates-on-Record Association and others v. Union of India, [ (1993) 4 SCC 441 ] adopted a new approach opining that keeping in view the fact that independence of judiciary is one of the cardinal principles of constitution, the primacy of appointment shall be with the Chief Justice of India as also the Chief Justice of the High Court. However, before making recommendations in terms of Articles 124(2) and 217(1) of the Constitution, they would have to consult two other senior most Judges who would be the members of the Collegium.

It was opined that S.P. Gupta (supra) should be read with Ashok Kumar Yadav v. State of Haryana, [ (1985) 4 SCC 417 ]. As regards justiciability of appointment and transfer it was laid down :-

“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 of bias, which in any case is excluded by the element of plurality in the process of decision-making.”

SPECIAL REFERENCE In Re – Special Reference No. 1 of 1998, [(1998) 7 SCC 739], in regard to justiciability of such power this Court held that having a plurality of judges in the formation of opinion provides sufficient safeguards and that they are sufficient checks against arbitrariness in the decision making process relating to Appointment and Transfers, stating :-

“9. The majority judgment ends with a summary of its conclusions. Conclusions 1, 2, 3, 4, 5, 7, 9, 10, 11 and 14 are relevant for our purposes. They read thus:

“(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.

 * * (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.

 * * (10) In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in anyone.

(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 insofar 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.”

It was furthermore held :-

“44. 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.
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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.
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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.”