A bare reading of the Constituent Assembly debates will be enough for anyone to get a feel of the worries and anxieties faced by the founding fathers of our constitution while discussing the issues relating to appointment of judges. Mr. TT Krishnamachari was right in raising the concern that the motive is not to make an Imperium in Imperio.[1] He stressed on the fact that Judiciary should be competent in exercising its functions without any kind of fear or apprehension in mind and at the same time it must not think itself above the other establishments of democracy.[2] At this point, the reply of Dr. BR Ambedkar is worth noticing where he accepts this as a valid concern and assures the constituent assembly that the draft article relating to the appointment of judges will aim for securing a perfect balance between the two major concerns.[3] The debate relating to the appointment of judges is very necessary because the faith of the common man rests upon the judiciary and therefore the persons holding the office and the criteria of their appointment must be carefully examined. This article will analyse the constitutional journey of the cases involved and the issues raised in those debates and then arrive at a conclusion.
The Background, Journey and the Issues Involved
The process of appointment of judges of the Supreme Court and the High Court is laid down in article 124 and article 217 of the constitution respectively. The word ‘consultation’ which is used in these articles has somewhat proved to be a contentious issue from the inception years itself. Issue is whether the word ‘consultation’[4] means a mere seeking of the opinion of the Chief Justice of India or it shall be read as ‘concurrence’. Now the major problem is that both these words are very different in their meaning and spirit. If interpreted ‘concurrence’, it will give the word of the CJI a mandating effect which will tend to override the Presidential view regarding the appointments. The concern with consultation is that there will hardly be a solution, in a situation where the government decides not to pay any heed to the advice of the CJI and make the appointments on their own whims and fancies. Dr. Ambedkar especially cautioned about the usage of the word ‘concurrence’ because he did not want that the final yes/no authority shall exclusively lie with the CJI, whereas at the same time he wanted that the opinion of the CJI must be respected and a decision relating to the appointment must be reached harmoniously.[5]
This was a standard practice of appointing judges that the senior most judge would be appointed as the Chief Justice and the opinion of the CJI was always given due honour until an amazing political phenomenon happened. In the year 1973 Justice SN Ray was made the Chief Justice of the Supreme Court and this was done by surpassing three judges who were senior to him. Thus, we see that this aberration from the generally accepted practice planted a seed of power struggle between the executive and the judiciary which in future gave a series of judgements concerning the above issue. Four years after this incident, again the same thing happened and this time the target was Justice HR Khanna. He suffered from a clear-cut case of a political grudge due to his dissent in the famous ADM Jabalpur case[6]. This was the time when it was felt that the independence of the office of the judiciary is at stake.
However, this was not the first time this concern was raised. The Law commission in its 14th report in the year 1958 recommended that all the appointment of judges in the Supreme court or whether in the High Court should be made only after concurring with the viewpoints of CJI.[7] These observations were made in the light of the commission feeling that some of the appointments were being made where certain political links, regional and other social factors were coming into play. They felt that this might hamper the independent working of the judiciary. This was the first time when the word concurrence was used that is to say that the considerations of the CJI would enjoy primacy over the view of executive. In 79th report of the Law Commission also this issue was raised where it was felt that the CJI should also consult the three senior most judges in the matter of the appointment of judges[8] and the 80th provided for formation of a commission for the judicial appointments[9]. It was not just a view of the law commission but the interesting thing is that in 1990 an Amendment Bill was also introduced in the Parliament (67th)[10]. This was an attempt to amend Article 124 of the constitution so that the word ‘consultation’ would be replaced by ‘concurrence’[11]. This amendment could not succeed but we get a realisation indicating that the value of the opinion of the CJI cannot be undermined. It can be at this juncture inferred that the CJI being the head will speak for his other brother colleagues and so we find that even legislature is calling out for the adage and wisdom of the learned judges in the matters of appointment. Now the most major concern is that whether it will end up becoming the exclusive domain of the judges that is to say that a scenario being created where judges end up appointing judges. Corollary is that executive will not get any say in this regard as the final authority rests with the judges.
In the current scenario the appointments are held by a collegium which comprises of the CJI and other four senior most judges of the supreme court.[12] This notion of collegium is not at all mentioned anywhere in the Constitution. It derives its roots from the ruling of the Supreme Court in the Second Judges case[13]. The Second Judges case reversed the decision in the case of SP Gupta[14] where it was held that the opinion of the CJI has no primacy over the view of the executive in the matters of the appointment of judges. The SP Gupta judgement was heavily criticised as it had put the independence of the judiciary in jeopardy. The second judges case restored the primacy with the judiciary. The Presidential Reference case of 1998 (Third judges case) also reiterated this view[15]. It is between all this background and tussle we see the emergence of the collegium which gives an edge to the judiciary in the matters of appointment. If a conflict arises then it is the view of the collegium which is to be accepted. Thus, clearly the judiciary has made its way to decide the appointments on their own terms.
Time and again this has been justified by the Supreme Court and some eminent jurists under the garb of the basic structure and the independence of the judiciary. Also, the 99th Constitutional Amendment which tried to bring a reform in the current system by replacing the collegium with the NJAC (National Judicial Appointments Commission) was struck down by the Supreme Court by a thumping 4:1 majority[16]. The collegium system still remains in place and the process has become very much confined to the closed doors where only the judges will have a say in determining who their successors will be. Any attempt for reform is looked by the judiciary as a deliberate attempt to encroach on their domain and a compromise with the independence of the institution.
Conclusion and the way forward
It is a normal phenomenon that once entrusted with power nobody would like to give it up. The same is true for our judiciary but we have to make this statement with a certain degree of care and respect for the institution. The importance of the opinion of the judiciary cannot be undermined when it comes to appointments and there are obvious reasons to it. A senior judge of the Supreme Court is more likely to be aware about a contender judge to be appointed, as he is in constant practice and touch of the bar and bench. He will certainly have more knowledge as to the credentials of the person than the executive. The accuracy of this reliance is a matter of concern. Collegium system has been an apple of discord for many as its working style and the opaqueness has been under question. Nevertheless, the Supreme Court without paying any heed to the allegations of nepotism and Zero transparency has been appointing by collegium. As much as the problem lies with the collegium the executive also at the same time should not be allowed to dominate in the matters of appointment. The government is itself a party in a myriad number of cases and if it has a dominance in the appointments then we can fathom the ugly chain of favours and rewards taking place mutually. What is important is that a middle ground should be adopted as was being espoused by Dr. Ambedkar and also, we have to admit that NJAC as proposed by the NDA government was not fit enough to settle this. The judgement of the apex court gives full reason to it and the author also feels that more thought should be given to this issue. The quality of our judges is also what is being questioned therefore I feel a solution must be arrived at so that the faith of our common man stays upon the Judiciary. Giving either the executive or the judiciary a final say will subject the whole process to an unwanted power imbalance; rather the spirit of the constitution makers must be kept in the mind for the sake of the sanctity of judicial office.
[1]Constitent Assembly Debates, (Available) https://www.constitutionofindia.net/constitution_assembly_debates.
[2] Supra.
[3] Supra.
[4] Article 124 of the Constitution of India.
[5] Supra 1
[6] ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521.
[7]14th Law commission Repot, (available at) http://lawcommissionofindia.nic.in/1-50/index1-50.htm.
[8] 79th Law Comission Report, (available at) http://lawcommissionofindia.nic.in/51-100/index51-100.htm.
[9] 80th Law Comission Repot, (available at) http://lawcommissionofindia.nic.in/51-100/index51-100.htm.
[10] The Constitution 67th Amendment Bill introduced on 18.5.1990.
[11] Supra 10.
[12]MANU/SC/1183/2015.
[13] Supreme Court Advocate on record Association vs. Union of India, MANU/SC/0073/1994.
[14] SP Gupta Vs. Union of India, MANU/SC/0080/1981.
[15] Re Presedential Reference MANU/SC/0891/2002.
[16] Supreme Court Advocate on record Association Vs. Union of India, MANU/SC/1183/2015.
This article is written by Anant Mishra of NUJS, Kolkata.
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