JUDICIAL APPOINTMENTS - THE INDIAN PERSPECTIVE by Arvind P.Datar, Senior Advocate, Madras High Court, India.

** Articles 124 and 217 of the Constitution of India deal with the appointment of Supreme Court and High Court Judges respectively. Although the provisions are theoretically simple and clear, their practical implementation has been highly controversial. There has been an unfortunate power struggle on the question of supremacy or primacy in the matter of appointment of such Judges. The members of the Constituent Assembly who drafted the Constitution of India would have scarcely imagined that these simple provisions would have led to so much of acrimony and debate. Historical background: The history of judicial administration in India can start with the High Courts Act, 1860 whereby High Courts were set up in each province and a further appeal from these courts was to the Privy Council in England. Section 200 of the Government of India Act, 1935 created the Federal Court at New Delhi. The Federal Court had jurisdiction only in constitutional matters. A further appeal would lie to the Privy Council. After India attained independence, the jurisdiction of the Privy Council was abolished by the Abolition of the Privy Council Jurisdiction Act, 1949. All appeals pending before the Privy Council before 10th October 1949 were transferred to the Federal Court. On Republic day, 26th January 1950, the Supreme Court of India was formed and is now the highest court of appeal in India. Its jurisdiction today is wider than any known Federal Court or Supreme Court. At present, it has appellate jurisdiction in civil and criminal matters. An appeal can also be filed directly to the Supreme Court against any order passed by any authority under Article 136 although the Supreme Court usually frowns upon persons bypassing High Court. The only limitation to Article 136 is that it cannot directly deal with an appeal against an order of a Court or Tribunal constituted under any law related to the armed forces.

The interested reader will find a fascinating account of the Constituent Assembly Debates dealing with the formation of Supreme Court and its jurisdiction in Granville Austins Indian Constitution - Cornerstone of a Nation. Appointment of provisions: Supreme Court and High Court Judges - Constitutional

Article 124(2) deals with appointments of Supreme Court judges and reads as follows:Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that (a) (b) a Judge may, by writing under his hand addressed to the President, resign his office; a Judge may be removed from his office in the manner provided in clause (4).

Article 124(3) prescribes the qualification of a person who can be appointed as a Judge of the and reads as follows: A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and (a) (b) (c) has been for at least five years a Judge of a High Court or of two or more such Court in succession; or has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion of the President, a distinguished jurist

The appointment has to be made by the President who issues a warrant of appointment. In India, the President has to act according to the aid and advice of the Council of Ministers. Therefore, the appointment by the President is not an independent decision left entirely to the discretion of the President. Article follows:217 deals with the appointment of High Court Judges and reads as

(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor or the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and [shall h old office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of (sixty two years)]: Provided that -(a) (b) a Judge may, by writing under his hand addressed to the President, resign his office; a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court; the office of a Judge shall be vacated by his being appointed by the President of India to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

(c)

The qualification of a High Court Judge is set out in Article 217(2) which reads as under:A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and -(a) (b) has for at least ten years held a judicial office in the territory of India; or has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

It is ironical that a distinguished jurist can be appointed to the Supreme Court but not to the High Court. Judicial appointments - the earlier method: Under the Government of India Act, 1919 and the subsequent Government of India Act, 1935, appointments to the High Courts were the prerogative of the Crown with no specific provision for consulting the Chief Justice in the appointment process. After extensive debate, the Constituent Assembly ensured that no appointment could be made without consulting the Chief Justice of India. Subsequent decisions have ensured that the Supreme Court is now virtually the final decision maker in the appointment process. Until 1991, Judges were appointed to the High Court on the basis of a panel of advocates whose names were recommended by the Chief Justice of that High Court. These names were forwarded to the Chief Minister of the particular State and to the Home Ministry at New Delhi. If there was a serious objection of the executive to a particular name, it could be dropped. Over the years, there was an unfortunate tendency of trying to ensure some representation for different religions castes and community. The 14th Law Commission adversely commented on this tendency of appointments on a communal basis. The Law Commission also noted that the best possible talent had not reached the highest judiciary. This process worked fairly well although it did not always ensure that the best possible talent was always selected. As far as the appointment of Supreme Court Judges was concerned, this was usually done from amongst the Chief Justices of various High Courts. Over the years, there was a tradition of appointing judges of the Supreme Court largely on the basis of seniority. Serious fall in standards: One of the main reasons for the serious fall in standards was the deliberate refusal of the Government to increase the salary of High Court and Supreme Court Judges. High Court Judges earned Rs.4,000/- per month before independence. As a personal sacrifice, they all agreed to have this reduced to Rs.3,500/-. This figure continued for several years despite serious erosion in the value of the rupee. The failure to raise the salary made it impossible to attract the best talent from the Bar. Wisdom dawned on the Government rather belatedly and, in 1986, the payment of salaries and perquisites was removed from the Constitution and now forms part of an Act of Parliament. Earlier,

the salaries and perquisites formed part of Schedule-II of the Constitution. Therefore, no change could be made in the salary unless the Constitution itself was amended. Things are much better now and not only have the salaries increased manifold, attractive perks in the nature of housing, transportation, domestic servant etc. are provided. Parliament Vs Judiciary a regrettable decade 1973 to 1983 was a deplorable decade that is of unseemly tussle between the ruling party and the judiciary. In 1973, three senior-most judges of the Supreme Court were superceded. The person appointed as the Chief Justice had held in favour of the Government in three important constitutional cases. Justice H.R. Khanna should have become the Chief Justice. However, he delivered a most courageous judgement during the emergency. The majority had held that a person who had been detained without trial need not approach either the Supreme Court or the High Court. He could be held in preventive custody and would have no remedy at all. Justice H.R.Khanna delivered a brave dissenting judgement. He paid the price and was superceded by a junior judge. During the emergency from 1975 to 1977, 16 High Court judges were transferred; all of them had shown remarkable independence which was not to the liking of the then Prime Minister of India - Mrs.Indira Gandhi and her Government. In 1980, there was a sinister proposal to transfer judges from one High Court to the other. This was challenged before the Supreme Court ( S.P. Gupta Vs Union of India AIR 1982 SC 149). The Supreme Court, in a self-inflicted blow, held that the opinion of the Chief Justice of India could be completely ignored in the matter of appointment of Supreme Court and the High Court judges. The views in this deplorable judgement were overruled in the Supreme Court Advocates-on-Record Association v Union of India 1994 SC 268, by a nine judge bench. Although this judgement is also highly unsatisfactory, it at least brought back some of the dignity that rightly belonged to the judiciary. It is now necessary to consider two important Supreme Court judgements dealing with the appointment to the Supreme Court and High Court. Appointment of Supreme Courrt and High Court Judges - two important cases: The method of appointment of High Court Judges was considered in detail in what is popularly called the Second Judges case - Supreme Court Advocates-onRecord Association v Union of India AIR 1994 SC 268. This was a bench of nine judges and the judgement is extremely lengthy. It has been severely criticized by the eminent Indian Jurist H.M.Seervai. Without going into its merits, it would suffice to summarise the conclusions made by the Supreme Court in this case:-

a. b. c.

The process of appointment of the High Court must be initiated by the Chief Justice of the respective High Court. The Chief Justices must adhere to a time bound schedule so that the posts of judges are not kept vacant for a long period. The proposal of the Chief Justice of the High Court must be sent to al other constitutional functionaries. The other functionaries, within 6 weeks from the receipt of the proposal, must convey their views to the Chief Justice of India. (It is not clear as to why the views cannot be conveyed to the Chief Justices of the High Courts). If the particular constitutional functionary does not express its opinion within the specified period, it would be considered as a deemed agreement with the recommendation made by the Chief Justice. The Chief Justice of India, after considering the recommendations and the views of the constitutional functionaries, should confirm his final opinion and convey to the President, within four weeks, of the final action taken. The Chief Justice of India should take into account the views of his colleagues in Supreme Court who are likely to be conversant with the affairs of the concerned High Court. It should be noted that these requirements do not change the procedures laid down. It must be considered by the collegium consisting of the Chief Justice of India and two senior-most Supreme Court judges. The process of appointment to the Supreme Court should be an integrated, participatory and consultative process of all constitutional functionaries who must perform their duty collectively so as to meet the required constitutional objectives. It is also open to the Chief Justice of India to recommend the initial appointment of a person to any High Court other than the High Court for which the proposal was initiated, provided the other constitutional requirements are satisfied. If there are any objections for the appointment of a particular person, it should be for good reasons, which must be disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendations on these conditions. In exceptional cases, even a candidate recommended by the Chief Justice need not be appointed, if there are valid objections for his appointment. The objections can relate to his character, conduct, health or other factors. Similarly, if his tenure is likely to be very short, the appointment need not be made. In rare cases, even if

d.

e.

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g.

h.

i.

j.

the opinion of the Chief Justice of High Court conflicts with that of the Chief Justice of India, the appointment need not be made. The judgement is highly confusing and it is very difficult to decipher clear propositions. The Supreme Court recommended that a Memorandum of Procedure should be prepared by the Government of India after consulting the Chief Justice of India, so that it could be followed for all future appointments. This memorandum was never prepared. The second case is the Presidential reference made on 23rd July, 1998. The President of India referred nine questions for consideration by the Supreme Court. These questions related to three aspects:(i) Consultation between the Chief Justice of India and his brothers judges in the matter of appointments of Supreme Court and High Court Judges and transfer of the latter; judicial review of transfers of Judges; and

(ii) (iii)

the relevance of seniority in making appointments to the Supreme Court

The principles laid down by the Supreme Court can be summarised as follows:1. Consultation with the Chief Justice of India does not mean consultation only with the Chief Justice. It requires consultation with a plurality of judges. 2. The Chief Justice of India has to form a collegium of four senior most puisne judges of the Supreme Court . This is necessary for appointments for judges of the Supreme Court or to transfer a High Court Chief Justice or a High Court judge. 3. For appointment of the High Court judges, the Chief Justice has to consult two seniormost judges of the Supreme Court. This collegium can also take into account the views of a Supreme Court judge from the particular High Court to which appointments are to be made. For example, if appointment is to be made to the Madras High Court, collegium of the three judges can consult the senior-most judge of the Supreme Court from the Madras High Court. This will be necessary if he is not a part of the Collegium. They can also take into account the views of other Supreme Court judges or Chief Justices of the High Courts. This is to ensure that the best possible talent is brought to the Supreme Court Bench.

4.

Until 1998, the collegium consisted of the Chief Justice of India and two seniormost judges. Thereafter, it was changed to the Chief Justice and four Judges of the Supreme Court. The opinion of the collegium will have primacy in the matter of appointments. It is open to the Executive to inform the collegium of its objections. However, if the Chief Justice and his companion judges are still of the view that there is no reason to withdraw their recommendation, then that appointment should be made as a matter of healthy convention. However, even if two judges have serious reservations about a particular appointment, then it should not be made. The Supreme Court can also consult other judges of the Supreme Court, judges of the High Court or even the Members of the Bar with regard to a particular appointment. The views of the members of the collegium should be made in writing and should be forwarded to Government of India along with recommendations of the Chief Justice. However, when the Chief Justice consults other Supreme Court Judges or members of the Bar these views should be summarised in a memorandum and forwarded to the Government of India. If some members of the collegium have retired before a particular appointment is made and the Government of India has sent back adverse comments, then the Chief Justice has to constitute a new collegium by adding the requisite new judges to form the collegium. In such an event, there has to be unanimity in the appointment that is to be made. The Chief Justice may, in his discretion, inform the person of the objections raised by the Government of India. The collegium can call for the reply of the prospective appointee and take into account his explanation before either withdrawing the nomination or confirming it. Merit is the predominant consideration for appointment to the Supreme Court but seniority should be kept in mind. The Supreme Court has held that seniority can be overlooked in cases of outstanding merit. The collegium for approving the appointments of High Court judges is the Chief Justice and two senior-most puisne judges of the Supreme Court. The Chief Justice should take into account the views of the Supreme Court Judges who are likely to be conversant or familiar with the affairs of the concerned High Court. They must also taken into account the opinion of the Chief Justice of the particular High Court; this is entitled to the greatest weight.

5.

6.

7.

8.

9.

10. 11.

National Judicial Commission: The Constitution (67th amendment) Bill, 1990 proposed the formation of a National Judicial Commission for the appointment of Supreme Court and High Court Judges and for the transfer of Judges from the High Court. The object was to prevent any arbitrariness in appointments and. This Judicial Commission was based on the recommendations in the 121st Law Commission Report. It was to consist of the Chief Justice of India, two Senior Supreme Court Judges, Chief Justice and two Judges of the High Court wherein appointments were to be made. This Bill was never passed. The proposal for a National Judicial Commission has been resurrected by the Constitution (98th amendment) Bill, 2003 and once again contemplates the formation of a National Judicial Commission. It proposes to introduce a new Chapter consisting of just one Article in the Constitution and also proposes to make consequential amendments to other Article in the Constitution. The National Judicial Commission, if formed, will consist of the following persons:(i) (ii) (iii) (iv) the Chief Justice of India, who shall be the Chairperson of Commission. the

two other Judges of the Supreme Court next to the Chief Justice of India in seniority. the Union Minister in-charge of Law and Justice; and one eminent citizen to be nominated by the President of India in consultation with the Prime Minister for a period of three years.

The Commission is to draw up a Code of Ethics for the Judges of the Supreme Court, the Chief Justices and the Judges of the High Courts and can inquire into cases of their misconduct or deviant behaviour and advise the Chief Justice of India or the Chief Justice of the High Court concerned appropriately. The composition of the National Judicial Commission is seriously flawed. The Commission does not refer to consultation with the Chief Justices of the High Court or senior High Court Judges in cases where appointment has to be made to the respective Courts. This Bill may also not see the light of the day because of the lack of a majority in Parliament by the ruling Government. It is rumoured that the opposition does not accept the Bill in its present form. Therefore, the method of appointments to the Supreme Court and High Courts is likely to continue as per the two decisions referred to earlier.

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Conclusion: In the end, it must be mentioned that appointments by the executive before independence were reasonably fair and well received. If the Constitutional authorities and the executives have the interest of the judiciary at heart, there can be no difficulty in ensuring that the best possible persons are appointed to the high office of Supreme Court or High Court Judge.

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