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SC reserves verdict on presidential reference on judges' appointment

The Supreme Court today reserved its verdict on the presidential reference raising nine questions of law in regard to the ''consultative process'' to be followed by the Chief Justice of India in the appointment and transfer of the judiciary.

The verdict was reserved by a nine-judge Constitution Bench headed by Justice S P Bharucha on the conclusion of arguments spread over three days as against five days allotted to the parties concerned.

The other judges on the bench were Justice M K Mukherjee, Justice S P Majumdar, Justice Sujata V Manohar, Justice G T Nanavati, Justice S Saghir Ahmad, Justice K Venkatasami, Justice B N Kirpal and Justice G B Pattnaik.

The court had, at the very outset, made it clear that it would not review the 1993 judgment in the Supreme Court advocates on record association case, which gave rise to the reference. However, if there were any grey areas in the judgment, the court would try to clarify them.

Summing up the submissions, attorney general Soli J Sorabjee reiterated that the opinion expressed by the CJI alone in a case of transfer would not be binding on the executive and in case action followed on such an opinion, it would be open to judicial review.

He contended that certain grey areas having been discovered in the 1993 judgment by the executive, prompted the reference which had to be clarified by the apex court alone.

The attorney general said consultation only with two or three judges would be no consultation. In such a case the executive was not bound to go by the opinion of the CJI.

Referring to the intelligence report on the judges to be appointed to the high court, the attorney general said such reports should be taken with a pinch of salt. It would be better if the question of integrity or character of the judge to be appointed was left to the wisdom of the CJI.

Earlier, senior counsel Arun Jetley, appearing for the advocate general of Gujarat, submitted that in the consultation process for the appointment of judges to the apex court the CJI should involve four other senior judges of the court besides the chief justice of the high court concerned.

The collective view in this regard should be binding on the executive and in case consensus eludes the consultation process, such proposal for appointment should be dropped and in no case should the executive be allowed to exercise any discretion in regard to the recommendations sent to it by the CJI.

Senior counsel Gopal Subramaniam, appearing for the Punjab and Haryana high court, submitted that for appointments there should be consensus among the judges involved in the consultation process and the same should apply to cases of transfer. Nothing should be left to the discretion of the executive, he added.

Senior counsel Harish Salve, appearing for advocate general of the Himachal Pradesh high court, said making public the recommendations of the CJI would be making the process all the more transparent and would strengthen the apex court as an institution. The entire effort in this process should be directed to restore the fate of the public in the institution.

When a counsel tried to raise certain questions which according to the court were not within the scope of the reference, Justice Bharucha observed, ''We do not wish to go one inch beyond the scope of the reference and would endeavour only to clarify the grey areas in the 1993 judgment.''

The judge also observed that the court was not sitting as a grievance committee, when a counsel appearing for the Kerala high court cited particular problem faced by the high court.

UNI

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