Rediff Logo find
News

HOME | NEWS | REPORT
July 27, 1998

ELECTIONS '98
COMMENTARY
SPECIALS
INTERVIEWS
CAPITAL BUZZ
REDIFF POLL
DEAR REDIFF
THE STATES
YEH HAI INDIA!
ARCHIVES

Infac Banner Ad

E-Mail this report to a friend

Supremacy of Chief Justice of India doubted

A confrontation appears to have built up between the executive and the judiciary over the primacy of the Chief Justice of India in the appointment of judges of the Supreme Court and the high courts.

The standoff between the two surfaced in the form of a five-page Presidential reference made on Monday under Article 143 of the Constitution regarding the apex court verdict on the primacy of the Chief Justice of India in such appointments and transfers of high court judges.

The implication is that no new judges can be appointed either in the Supreme Court or the high courts during the pendency of the reference which also might mean during the tenure of Chief Justice M M Punchhi who retires in October.

The reference was brought before a division bench comprising Justices S Shagir Ahmad and K T Thomas by Attorney General Soli J Sorabjee during the hearing of two public interest petitions on the same issue.

The first petition filed by R K Singh urged the court to issue directions to the Union of India to fill all high court vacancies where the consultation process was complete, and where there was no difference of opinion in the perception among the constitutional authority.

The second petition by Mohan Lal Gupta sought direction to the Union of India to appoint judges in Supreme Court, and high courts as recommended by the Chief Justice of India in view of the direction issued in the Constitution bench judgment.

In regard to the Presidential reference, the court directed that papers should be placed before the Chief Justice of India for issuing appropriate orders and directions.

However, the court issued notices to the Union of India, the law minister and the attorney general on the two petitions. The notices were made returnable by September 14. Till then the hearing in the two writ petitions pending before it has been deferred.

The Presidential reference has raised the following questions in regard to the procedural norms on the issue of appointment of judges of the Supreme Court, Chief Justice and the judges of the high courts as also transfer of judges from one high court to another: Whether the expression, ''consultation with Chief Justice of India in Articles 217 (1) and 222 (1) of the Constitution'' requires consultation with a plurality of judges in the formation of opinion of the Chief Justice of India or thus the sole individual opinion of the Chief Justice of India constitutes consultation within the meaning of the said articles.

Whether the transfer of judges is judicially reviewable in the light of observations of the Supreme Court in the Constitution bench judgement that ''such transfer is not not justiciable on any ground" and its further observations that ''limited judicial review is available in the matter of transfer and the scope of judicial review.''

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 in accordance with the past practice.

Whether the Chief Justice of India is entitled to act solely in his individual capacity without consulting 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.

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 their 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 high court court.

Whether in the light of legitimate expectations of the senior judges of the high court, in regard to their appointment to the Supreme Court referred to in the said judgement the ''strong cogent reason'' required to justify the departure from the order of the seniority, has to be recorded in respect of each such senior judge who is overlooked while making recommendations of a judge junior to him or her.

Whether the government is not not entitled to require that the opinions of other consulting judges be in writing, in accordance with the aforesaid Supreme Court judgement and that the same be transmitted to the Government of India by the Chief Justice of India along with his views.

Whether the Chief Justice of India is not obliged to comply with the norms, and requirements of the consultation process in making his recommendations to the Government of India.

Whether any recommendations made by the Chief Justice of India without complying norms and consultation process are binding upon the Government of India.

UNI

Tell us what you think of this report

HOME | NEWS | BUSINESS | SPORTS | MOVIES | CHAT
INFOTECH | TRAVEL | LIFE/STYLE | FREEDOM | FEEDBACK