- (1.) Article 143 of the Constitution of India confers upon the President of India the power to refer to this Court for its opinion questions of law or fact which have arisen or are likely to arise and which are of such a nature and of such public importance that is expedient to obtain such opinion. In exercise of this power, the President of India has on 23rd July, 1998 made the president reference, which is quoted in extenso : "WHEREAS the Supreme Court of India has laid down principles and prescribed procedural norms in regard to the appointment of Judges of the Supreme Court (Article 124(2) of the Constitution of India), Chief Justice and Judges of the High Court (Article 217(1)), and transfer of Judges from one High Court to another (Article 222(1)), in the case of Supreme Court Advocates-on-Record Association v. Union of India, reported in AIR 1994 SC 268; AND WHEREAS doubts have arisen about the interpretation of the law laid down by the Supreme Court and it is in public interest that the said doubts relating to the appointment and transfer of Judges be resolved; AND WHEREAS, in view of what is hereinbefore stated, it appears to me that the following questions of law have arisen and are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court of India thereon; NOW, THEREFORE, in exercise of the powers conferred upon me by clause (1) of Article 143 if the Constitution of India, I, K. R. Narayanan, President of India, hereby refer the following questions to the Supreme Court of India for consideration and to report its opinion thereon, namely, :- (1) whether the expression "consultation with the Chief Justice of India" in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said articles; (2) whether the transfer of Judges is judicially reviewable in the light of the observation of the Supreme Court in the aforesaid judgment that "such transfer is not justiciable on any ground" and its further observation that limited judicial review is available in matters of transfer, and the extent and scope of judicial review; (3) 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 according to past practice; (4) whether the Chief Justice of India is entitled to act solely in his individual capacity, without consultation with 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; (5) 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 a 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 Court; (6) whether in light of the legitimate expectations of senior Judges of the High Court in regard to their appointment to the Supreme Court referred to in the said judgment, the 'strong cogent reason' required to justify the depature from the order of the seniority has to be recorded in respect of each such senior Judge, who is overlooked, while making recommendation of a Judge junior to him or her; (7) whether the Government is not entitled to require that the opinions of the other consulted Judges be in writing in accordance with the aforesaid Supreme Court judgment and that the same be transmitted to the Government of India by the Chief Justice of India along with his views; (8) whether the Chief Justice of India is not obliged to comply with the norms and the requirement of the consultation process in making his recommendation to the Government of India; (9) whether any recommendations made by the Chief Justice of India without complying with the norms and consultation process are binding upon the Government of India New Delhi Narayanan K.R. Dated : 23-7-1998 President of India"
(2.) The decision mentioned in the Reference, in Supreme Court Advocates-on-Record Association v. Union of India, 1993 Supp (2) SCR 659 : (AIR 1994 SC 268), (now referred to as "the second Judges Case") was rendered by a Bench of nine learned Judges. It examined these issues : "(1) Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices; and (2) Justiciability of these matters, including the matter of fixation of the Judge-strength in the High Courts." (Page 739) (of Supp SCR) : (at P. 420 of AIR) The issues were required to be examined because a smaller Bench was of the opinion that the correctness of the majority view in the case of S. P. Gupta v. Union of India, (1982) 2 SCR 365 : (AIR 1982 SC 149), ("the Judges case") required consideration by a larger Bench.
(3.) Five judgments were delivered in the second Judges case. Verma, J. spoke for himself and four learned Judges. Pandian, J. and Kuldip Singh, J. wrote individual judgments supporting the majority view. Ahmadi, J. dissented, adopting, broadly, the reasoning that had found favour in the Judges' case. Punchhi, J. took the view that the Chief Justice of India had primacy and that he was entitled "to consult any number of Judges on the particular proposal. It is equally within his right not to consult anyone".;