Appointment of judges: SC reserves judgement on Presidential reference

Advocating wider consultation, Sorabjee said ideally it should be the CJI and four seniormost judges of the apex court and added that a proposal on transfer or appointment sent by CJI after consulting two seniormost judges of the apex court would also not be regarded as proper consultation.

The attorney general’s view was widely adopted by the states, variousadvocate bodies and the High Courts, all of which advanced their submissions.

The Bench, comprising Justices Bharucha, M K Mukherjee, S B Majmudar, Sujata V Manoharr, G T Nanavati, S Saghir Ahmed, K Venkataswami and G B Pattanaik, ordered the original files pertaining to the correspondence between the CJI and the Ministry of Law and prime minister be returned to the government.

The Bench discouraged advocates from widening the scope of the reference by saying “We do not wish to go one inch beyond the scope of the reference.”

When various High Court’s through their counsel raised certain problems faced by them, the Bench said, “We are not sitting here as a grievance committee.”

Sorabjee suggested that CJI, in the event of an adverse Intelligence Bureau (IB) report against a person considered for appointment, should confront him with the report and seek explanation as the reports were not always reliable.

“IB reports, in certain cases, have to be taken with a pinch of salt,” the attorney generalsaid citing an example where the IB had given a report mistaking the identity of a person who was to be appointed as a judge.

However, the Bench said that “it should be left to the discretion of the CJI (whether or not to confront the person against whom an adverse report is given) depending on the content of the report.”

On wider consultation, Sorabjee said it should be applicable in both appointments and transfers and argued that “there was no convention, precedent or law which bars wider consultation to be resorted by the CJI.”

Submitting for Gujarat, senior advocate Arun Jaitley supported the view of wider consultation but said if the judges failed to arrive at a consensus, CJI should not send the proposal for appointment or transfer to executive.

Jaitley said the consensus view taken by judges in regard to appointments and transfers should be binding on the executive but said proposals on which consensus eluded the judges should be dropped.

He, however, said “in no case, the executiveshould be allowed to exercise any discretion on recommendations given by CJI.”

Appearing for Himachal Pradesh, senior advocate Harish Salve said that during the consultation process, the majority view should prevail even if CJI did not subscribe to that view.

While supporting the views expressed by many regarding wider consultation among judges, Salve suggested that the whole consultation process and the recommendations should be made public as transparency would strengthen the apex court as an institution.

The Supreme Court had laid down norms and guidelines regarding appointment of judges to the apex court and appointment and transfer of chief justices and judges of High Courts in 1993 while delivering judgement on a petition by Supreme Court Advocates-On-Record Association (SCAORA).

The present nine-judge Constitution Bench had made it clear that while clarifying the doubts raised by the President in his reference, it would neither review nor reconsider the 1993 judgement which has become the lawof the land.