The role of the Chief Justice of India and the extent of his powers in respect of making recommendations for appointment of Judges to the Supreme Court of India and the High Court as also transfer of Judges is being debated in the light of certain recent recommendations and appointments. This article is confined only to the Constitutional question
Media reports have quoted "sources" which seem to suggest that there is a view that the Chief Justice of India, acting by himself, can reconsider the decisions taken by the collegium for good reasons and decides to hold back the recommendations or recall a recommendation even if it has been signed by other members of the collegium.
Such a view does not seem to be supported by the two Judgements of nine Hon'ble Judges of the Supreme Court of India namely the Judgment in Supreme Court Advocates on Record Associations case reported in 1993 4 SCC 441 and the opinion in Special Reference 1 of 1998 reported in 1998 7 SCC 739.
Article 124 (2) and Article 217 (1) of the Constitution of India mandates consultation with the Chief Justice of India in respect of appointment of a Judge of the Supreme Court other than the Chief Justice and in respect of appointment of every Judge of a High Court.
Such consultation has been construed by the Supreme Court as consultation with the Chief Justice of India as head of the Judiciary. The opinion of the Chief Justice of India is not his individual opinion but formed collectively by a body of men at the apex level of the judiciary Para 411 (4) of SCAORA.
Primacy has been given to the opinion of a Chief Justice of India formed collectively (para 456 of SCAORA)
The Supreme Court was at pains to emphasise the absence of absolute power in one individual in any sphere of constitutional activity. Justice Verma delivering the majority Judgment on behalf of 5 Hon'ble Judges (with whom two other Judges concurred) stated :-
Para 466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence of absolute power in one individual in any sphere of constitutional activity. The possibility of intrusion of arbitrariness has to be kept in view, and eschewed, in constitutional interpretation and, therefore, the meaning of the opinion of the Chief Justice of India, in the context of primacy, must be ascertained. A homogenous mixture, which accords with the constitutional purpose and its ethos, indicates that it is the opinion of the judiciary symolised by the view of the Chief Justice of India which is given greater significance or primacy in the matter of appointments. In other words, the view of the Chief Justice of India is to be expressed in the consultative process as truly reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation. In actual practice, this is how the Chief Justice of India does, and is expected to function so that the final opinion expressed by him is not merely his individual opinion, but the collective opinion formed after taking into account the view of some other Judges who are traditionally associated with this function.
Para 468. The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness. This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner. Entrustment of the task of appointment of superior judges to high constitutional functionaries; the greatest significance attached to the view of the Chief Justice of India, who is best equipped to assess the true worth of the candidates for adjudging their suitability; the opinion of the Chief Justice of India being the collective opinion formed after taking into account the views of some of his colleagues; and the executive being permitted to prevent an appointment considered to be unsuitable, for strong reasons disclosed to the Chief Justice of India, provide the best method, in the constitutional scheme, to achieve the constitutional purpose without conferring absolute discretion or veto upon either the judiciary or the executive, much less in any individual, be he the Chief Justice of India or the Prime Minister.
When the Supreme Court therefore said [in para 486(2) of SCAORA] of that the initiation of the proposal for appointment in the case of a Supreme Court must be by the Chief Justice of India, it is not his individual opinion but the opinion of the Chief Justice of India formed collectively by a body of men at the apex level in the judiciary.
In a democratic system governed by rule of law where non-arbitrariness is an essential attribute, no single individual in the constitutional scheme of this country, whether the Chief Justice of India or the Prime Minister has absolute discretion. In fact Justice Punchhi expressed dis-agreement with the majority in respect of this concept of assigning a role to the Chief Justice of India as symbolic in character and to his being a mere spokesmen representing the views of the entire judiciary (para 510)
Justice Punchhi, after he became the Chief Justice of India made certain recommendations which did not reflect the views of the collectivity and the Government of India was confronted with the question as to whether such recommendations should be acted upon and this gave rise to the special reference No.1 of 1998. Justice Barucha speaking for the bench of 9 Hon'ble Judges, in an unanimous opinion set at rest the various doubts. Some relevant extracts will bear out the view expressed herein :-
Para 12. 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.
Para 15. 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.
Even in respect of material which are adverse, if they are brought to the notice of the Chief Justice of India, he is not entitled to act solely in his individual capacity without consultation with other members of the collegiums. This is also amply clarified in the following words :-
Para 44(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.
If a decision was taken by the collegium on December 12, 2018 it is my considered view that the Chief Justice of India, acting singly could not have reconsidered the same or held back or recalled such a recommendation. He was obliged, as the symbolic head of the judiciary, to act pursuant to the decision taken as per the Constitutional process of collegial decision making to act forthwith on the same.
CS Vaidhyanathan is a Senior Advocate and Former Additional Solicitor General of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]