Appointment/Transfer of Judges

Appointment/Transfer of Judges

Supreme Court Advocates-on-Record Association v . Union of India , AIR 1994 SC 268: (1993) 4 SCC 441 ; S.P. Gupta v. President of India, AIR 1982 SC 149: (1981) Supp SCC 87 Overruled 1. The process of appointment of Judges to the Supreme Court and the High Courts is an integrated ‘participatory consultative process' for selecting the best and the most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise. 2. Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge /Chief Justice of a High Court, the proposal has to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges, Chief Justices of the High Courts must invariably be made. 3. In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary ‘symbolized by the view of the Chief Justice of India', and formed in the manner indicated has primacy. 4. No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. 5. In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention. 6. Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office. 7. The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. 8. Consent of the transferred Judge/ Chief Justice is not required for either the first or any subsequent transfer from one High Court to another. 9. Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground. 10. In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in any one. 11. Only limited judicial review on the grounds specified earlier is available in matters of appointments and transfers. 12. The initial appointment of a Judge can be made to a High Court other than that for which the proposal was initiated. 13. Fixation of Judge-strength in the High Courts is justiciable, but only to the extent and in the manner indicated. 14. The majority opinion in S.P. Gupta v. Union of India, (1982) 2 SCR 365: AIR 1982 SC 149, insofar as it takes the contrary view relating to primacy of the role of the Chief Justice of India in matters of appointments and transfers, and the justiciability of these matters as well as in relation to Judge-strength does not commend itself to us as being the correct view. The relevant provisions of the Constitu tion, including the constitutional scheme must now be construed, understood and implemented in the manner indicated herein by us.