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'Chief justice recommendation not binding on executive if it doesn't conform to Supreme Court norms'

The recommendations of the Chief Justice of India on the appointment of Supreme Court and high court judges and transfer of the high court judges, not conforming to norms laid down by the apex court itself, would not be binding on the executive.

This assertion was made by Attorney General Soli J Sorabjee before the Supreme Court today.

He was initiating arguments on the questions of law, referred to the court by President K R Narayanan in regard to the 'consultative process' to be followed by the CJI in the appointments of Supreme Court and high court judges.

The reference, made under Article 143 (1) of the Constitution is assigned to a nine-judge Constitution Bench, headed by Justice S P Bharucha for its opinion. The other judges on the bench are Justicrd M K Mukherjee, S B Majmudar, Sujata V Manohar, G T Nanavati, S Saghir Ahmad, K Venkataswami, B N Kirpal and G B Pattanaik.

Relying heavily on the norms and guidelines laid down by a nine-judge Constitution Bench in the case of Supreme Court Advocates on Record Association, the attorney general contented that no unfettered and absolute power was conferred on any individual to ensure that there was no arbitrariness and to guarantee against bias.

So long the judgment in the SCAORA's case stands, the government is not concerned with the merits of the individual judges except in the area of non-compliance of the consultation process, Sorabjee pointed out.

He said the requirement of due consultation became all the more important in view of the awesome powers of transfer, the consequence of which might reflect on the judges and the judiciary. Thus, the consultation process should not only apply in the cases of appointments but also for transfers.

In his observation, Justice Bharucha said, ''Whether the CJI's recommendation for transfer has been made after following or not following the consultation process, is known only to the government, but not the judge concerned. Hence, the ball lies in the court of the government.''

Morever, Justice Bharucha said, ''When a transfer is sought to be effected, it may not be in the public interest to debate in the open court. It is almost impossible to set down what is to be done and what is not to be done in regard to transfers and appointments. The CJI would consult only those who in his view can constructively add to his opinion formation.''

The attorney general contended that there could not be any individual who could be conferred with absolute power in any sphere of constitutional functions, be it the CJI or the prime minister, and the rule of discretion was to be exercised in the minimum.

UNI

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