effective consultation--- constitution bench

please delate the words ---for appointment of high court and supreme court .

delate the words -for appointment of supreme court and high court judges

Are you referring to the judgment in Special Reference No. 1 of 1998 case reported in

1999 AIR(SC) 1, 1998 (4) CLT 241, 1998 (7) JT 304, 1998 (4) LLN 596, 2000 (1) SLJ 1, 1998 (5) SLR 601, 1998 (8) Supreme 140, 1998 (5) Scale 629, 1998 (7) SCC 739, 1998 (8) SLT 409, 1998 (5) ALT 234

Judgment rendered by 

HON'BLE JUSTICE B. N. KIRPAL, HON'BLE JUSTICE G. B. PATTANAIK, HON'BLE JUSTICE G. T. NANAVATI, HON'BLE JUSTICE K. VENKATASWAMI, HON'BLE JUSTICE M. K. MUKHERJEE, HON'BLE JUSTICE S. B. MAJMUDAR, HON'BLE JUSTICE S. P. BHARUCHA, HON'BLE JUSTICE S. SAGHIR AHMED AND HON'BLE JUSTICE (MRS.) SUJATA V. MANOHAR

The Reference:

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 expendient to obtain such opinion. In exercise of this power, the President of India has on 23rd July, 1998 made the present 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 Justices 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 & Anr. v. Union of India, reported in;





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 tome 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) wheather the transfer of Judge is judicially reviewable in the light of the observation of the Supreme Court in the aforesaid judgement that "such transfer is not justicable on any ground" and its further observation that limited judicial review is available in matters of transfer, and 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 seniormost 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 departure 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"

dear mr y prakash,

                                 this is exactly   what i was searching  .this judgment  as i wrote a far reaching consequences so far the present query before all of us regarding appointment of supreme court judges.  by the way thanks a lot.

Dear prof, you are talking about S.P.Gupta & Others etc Vs Union of India and Ors etc, decided by CORAM :P.N.BHAGWATI; A.C.GUPTA;S.MURTAZA FAZAL ALI;V.D.TULZAPURKAR;D.A.DESAI;R.S.PATHAK AND E.S.VENKATARAMIAH,JJ.

1981 (4) SCALE 1974A.

The court held: The word consultation in Art 217(1) has the same meaning as under Art 222(1) as interpreted in Sankalchand Seth Case 1978) 1 SCR 423, to mean full and effective consultation after placing full and identical material before such functionary. It does not mean concurrence. The word consult implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable therm to evolve a correct or at least a satisfactory solution.

BOTH CITATIONS ARE LAND MARK JUDGMENT SO FAR REF OR CONSULTATION IS CONCERNED.THERE IS IMPLIED PROVISION SO AS TO RESTRICT THE INTERFERENCE OF POLITICAL PERSONS IN APPOINTMENT OF JUDGES. WITH THE PRESENT SCENERIO POWER VESTED ON JUDICIARY ONLY. COLLEGIUM RECOMMENDS ,SENT TO MINISTRY IF LAW AND JUSTICE ,THEN TO PRESEDENT WHO ISSUES WARRENT FIRST.SO FAR I HAVE SEEN ,KNOWN ANDERSTOOD.EVEN THEN IT IS NOT COMPLETELY FREE FROM POLITICAL INTERFERENCE.