LexSPECIAL REFERENCE NO. I OF 1998 versus -----
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SPECIAL REFERENCE NO. I OF 1998
OCTOBER 28, 1998
[S.P. BHARUCHA, M.K. MUKHERJEE, S.B. MAJMUDAR,
SUJATA V. MANOHAR, G.T. NANAVATI, S. SAGHIRAHMAD,
K. VENKATASWAMI, B.N. KIRPAL AND G. B. PATTANAIK, JJ.]
Constitution of India, 1950-Articles 143 and 124 (2), 217 (1) and
222(1)-Presidential reference re-consultation between the Chief Justice of
India and his brother judges regarding appointments of Supreme Court and
C High Court judges and transfer of latter-Answering the reference held, Chief
Justice of India must make a recommendation to appoint a judge of the
Supreme Court and to transfer a Chief Justice or puisne Judge of a High
Court in consultation with the four senior most puisne Judges of the Supreme
Court-In so far as an appointment to the High Court is concerned, the
D recommendation must be made in consultation with the two senior most
puisne Judges of the Supreme Court.
Article 222(1)-Judicial review of transfer of judges-Held, permissible
only to the extent that the recommendation by the Chief Justice of India has
E not been made in consultation with the four senior most puisne Judges of the
Supreme Court and/or that the views of the Chief Justice of the High Court
from which the transfer is to be effected and of the Chief Justice of the High
Court to which the transfer is to be effected have not been obtained.
Articles 217 (1) and 222(1)-Expression "consultation with the Chief
F Justice of lndia"-Held, requires consultation with a plurality of judges in
the formation of the opinion-Consultation is not to be confined to those
Judges who have that High Court as a parent High Court but also Judges
who have occupied the office of a judge or Chief Justice of that High Court
on transfer-Words and Phrases.
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Article 124(/)-Relevance of seniority in making appointments to the
Supreme Court-Held, "strong cogent reasons" do not have to be recorded
as justification for a departure from the order of seniority, in respect of each
senior Judge who has been passed over-What has to be recorded is the
positive reason for the recommendation.
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SPECIAL REFERENCE NO. I OF 1998
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Articles 124 (2), 217 (1) and 222(1)-Appointments of Judges of the A
Supreme Court and the High Courts and transfer of judges of High Court-
Held, Chief Justice of India obliged to comply with the norms and the
requirements of the consultation process, in making his recommendations to
the Government of India-Recommendations made by the Chief Justice of
India without complying with the norms and requirements of the consultation B
process, as aforesaid, are not binding upon the Government of India.
In its decision in Supreme Court Advocates-On-Record Association v.
Union of India (1993) Supp 2 SCR 659 ("the second Judges case') this court
laid down principles and prescribed procedural norms in regard to the
appointment of Judges of this Court and the Chief Justices and Judges of C
the High Court and transfer of Judges from one High Court to another.
Doubts having arisen about the interpretation of the law laid down by this
Court in the aforesaid decision, the President of India, on July 23, 1998, in
exercise of his powers under Article 143 (1) of the Constitution of India,
referred nice questions to this court for its consideration and opinion.
The questions in the Presidential reference related broadly, to three
aspects:
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(1) Consultation between the Chief Justice of India and his brothers
Judges in the matter of appointments of Supreme Court and High Court
Judges and transfers of the latter [questions No. 1, 3, 4, 5, 7, 8 and 9];
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(2) Judicial review of transfers of Judges [question No. 2); and
(3) the relevance ofseniority in making appointments to the Supreme
Court [question No. 6).
The Court recorded at the outset the statements of the Attorney General
for India that-(1) the Union of India is not seeking a review or reconsideration
of the Judgment in the second Judges case, and (2) that the Union oflndia
shall accept and treat as binding the answers of the Court to the questions
set out in the Reference.
Rendering its Opinion, this Court
HELD : 1.1. The Chief Justice oflndia must make a recommendation
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to appoint a judge of the Supreme Court and to transfer a Chief Justice or
puisne Judge of a High Court in consultation with the four senior most
puisne Judges of the Supreme Court. In so far as an appointment to the High H
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