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
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