April 16, 2021

Judicial Review of Chief Justice of India’s Power to Appoint and Transfer

Constitution

Introduction

An honest, efficient and independent judiciary is indispensable for the survival and functioning of our democratic system, for the protection of the fundamental rights and liberties of the people and for the unity and integrity of the country with moderate protection of the rights of the minorities.[1] For the appointment of judges, India has seen a long way from executive primacy to judicial primacy since the internal emergency period of the history of our country which reached is culmination in 2015 and 2016.

The constitution was amended in the year 1976 by 42nd amendment.  The power of Judicial Review was put to an end and 2/3rd majority was mandated for striking down any legislation. Although it was later annulled by the Constitution (44th Amendment) Act, 1978. In 1981 the political executives again attempted to regain the power of the transfer of the High Court judges leading to the famous 1st Judge’s Case.[2]

In S.P. Gupta v. Union of India[3] the apex court laid down that the recommendation for appointment made by the Chief Justice of India is not pre-eminent and his recommendations can be turned down by the ruling politicians at the Center but only for ‘Cogent’ reasons. [First Judge’s Case]

Later in the year 1993 in Advocate on Record Association v. Union of India[4] the Supreme Court rescinded the ruling laid down in S.P. Gupta Case and created the Collegium system under which appointments and transfers of the judges are decided by a forum of Chief Justice of India and two senior most judges of the Supreme Court. [Second Judge’s Case]

But in many cases, Chief Justice of India took unilateral decision without consulting the other two judges and the President became only an approver.[5]

It would be pertinent to mention that earlier too when the Constitution was being drafted the Hon’ble member of Drafting Committee Mr. Mahboob Ali Baig Sahib had moved an amendment exactly on the same issue “That in the first proviso to clause (2) of Article 103, for the words ‘the Chief Justice of India shall always be consulted’ the words ‘it shall be made with the concurrence of the Chief Justice of India’ be substituted.” But the proposed amendment was rejected by the Constituent Assembly.[6]

To deal with this inadequacy, in 1998, President K.R. Narayan issued a reference to the Supreme Court as to what the term “consultation” means in Article 124, 217 and 222 of the Constitution related to appointment and transfer of Supreme Court and High Court judges.
In answer to this Supreme Court laid down various guidelines for the transfer and appointment of judges and strongly reinforced the concept “primacy” of highest judiciary over the executive.[7] [Third Judge’s Case]

The first judge’s case gave primacy to executive, whereas second judge’s case gave primacy to judiciary. This was followed by third judge’s case and then system of National Judicial Appointment Commission came up, which was subsequently scrapped. This revived the collegiums system which was in place. This project will try to cover all of these areas in detail.

Problem

The President has been given power to appoint and transfer judges in consultation with Chief Justice of India in the Constitution of India. But for a long period of time battle continued between executive supremacy and judicial supremacy. The question arises whether judicial review of the Chief Justice’s power to appoint and transfer judges should be done; and if yes, then to what extent.

Objectives

Nature of the study and sources of the data

This project work is analytical as well as doctrinal in approach. Both original and secondary sources have been largely used to gather information and data. Books and other reference as guided by the faculty of have been primarily helpful in giving this project a firm structure.

Limitations of the study

The study is limited to understanding of appointment and transfer of judges in India. Primary focus has been three judges’ case and National Judicial Appointment Committee system. The research is also limited in scope to the books available in the library and to the access provided by the university to the online law libraries.

Contribution of the study

There has always been a tussle between executive and judicial supremacy when appointment or transfer of judges come into light. This project tries to list all the judges’ transfer cases NJAC system and revival of collegiums system. Along with independence of judiciary, efficiency of judiciary is also given importance.

Power of Chief Justice of India to Appoint and Transfer

Judges of the Supreme Court and High Courts are appointed by the President under Articles 124(2) and 217 of the Constitution. The President is required to hold consultations with such of the judges of the Supreme Court and of the High Courts as he may deem necessary.[8]

Article 124(2) says: “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.”

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 of 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 hold 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.[9]

Intent of the Makers of the Constitution

Dr. Ambedkar summed down the three issues which prevailed with regards to appointment of judges. Firstly, the Judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. Secondly, the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament; and thirdly, that they should be appointed in consultation with the Council of States. He sought to pave out a middle way solution to this problem and it is hence that we find out the original intentions of the fathers of our Constitution. He points out[10]:

It seems to me in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the United State, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision.

He was also not in favour of subjecting the appointment of judges to the concurrence of the Chief Justice of India. He opined that the Chief Justice of India is also a human being after all, liable to err, and vesting such a power singularly on him would not be desirable.

The conclusion of all the discussions made and done which should be inferred in the present provision of Article 124(1) is that no absolute power can be transferred to any constitutional functionary. It is against the very basic tenets of the rule of law. Hence it is the consultative process between the Constitutional functionaries which effects and finally brings about the appointment of judges, thus ensuring the independence of judiciary in a democratic nation.

The Judicial Attitude

For the first twenty three years of the constitution the judicial appointments were made through the process provided under Article 124 and the spirit of Dr Ambedkar was followed by the governments in the appointments. The appointments of judges were made with the consultative process and the opinion of CJI was hardly avoided. The senior most judge of the Supreme Court was made the CJI and the executive (president) respected the constitutional convention of appointing the senior most judge a CJI till 1973. In 1973 this convention was deliberately violated and Justice A.N. Ray was made CJI superseding three senior most judges. This was beginning of the application of ‘committed judges theory’. The same was repeated in 1977 when Justice H.R. Khanna (the senior most judge) was not the CJI because of his dissenting remark against the government in ADM Jabalpur case[11]. This was the worst attempt of neutralizing the ‘independent judges theory’.[12]

Pre-NJAC Era

The word “consultation” used for CJI is a neutral term that the framers of the Constitution believed would enable the judiciary and executive to form a consensus on the merits of each appointment. The process of appointment was uncontroversial until three Judges who had pronounced judgments in the Kesavananda Bharti Case[13], which were not looked upon favourably by the Government of the day, were superseded by Justice A.N Ray in 1973 for the post of the Chief Justice of India. This marked the commencement of a struggle for primacy between the executive and the judiciary which has barely abated over the years.[14]

The appointment of Justice A.N. Ray as the Chief Justice of India over three of the most senior Judges of the Supreme Court, was followed in quick succession by what can only be described as steps to curtail the independence of the judiciary. This included using transfers as a stick to come down heavily on Judges who did not conform to the populist polices of the Government, as well as the practice of appointing additional Judges in an effort to place their decisions under the scanner before they were confirmed.[15]

Matters came to a head when the Union Minister of Law and Justice, in a circular dated March 18, 1981, issued directions which were seen to be executive interference in the appointment and transfer of Judges. The constitutional validity of the circular was challenged by a series of writ petitions, which also challenged the practice of appointing additional Judges and the transfer of Judges from one state High Court to another. The Supreme Court finally heard these as a batch matter, which came to be known as the First Judges Case[16].

In the S.P. Gupta case, the Supreme Court held by a majority that among the opinion of the three constitutional functionaries, the opinion of the Chief Justice of India did not enjoy primacy over those of the other two in the matter of appointment of judges. This view paid due regard to plain language; ‘consultation’ was not an ambiguous word at all. It is also remarkable that this view was taken by the court just eight years after Kesavananda Bharati. It was a restrained judiciary. It needs to be noted that the judgment was delivered in December 1981 after Indira Gandhi had returned to power with a decisive majority, after two short lived and weak governments.[17]

The Second Judges’ Case[18], i.e. Supreme Court Advocates on Record, was decided in October 1993, in far less authoritarian times. It was the minority government of Narasimha Rao which was in power. Now again by a majority, the court rewrote the Constitution. ‘Consultation’ acquired a meaning which those who gave us the English language and the tenets of constitutionalism could not have contemplated – all in the name of independence of the judiciary.[19]

‘The question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the High Courts must be considered to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.’ And so, ‘The hue of the word “consultation”, when the consultation is with the Chief Justice of India as the head of the Indian judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word “consultation” may take in the context of the executive associated in that process to assist in the selection of the best available material.’[20]

And, ‘The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reasons indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable.’ That little issue of democratic accountability did not pose too much of a problem for the majority.[21]

The majority felt that the earlier majority view in the First Judges’ Case to the effect that the executive should have primacy (since it is accountable to people while the judiciary has no such accountability), ‘is an easily exploded myth, a bubble which vanishes on a mere touch.’ Why? Because according to the majority, there is no occasion to discuss the merit of any individual appointment in the legislature on account of the restriction imposed by Article 121 and 211 of the Constitution (these provisions prohibit discussion in legislatures on the conduct of a judge, in the discharge of his duties. Their relevance to the question of democratic accountability is far from clear).

‘On the other hand, in actual practice the Chief Justice of India and the Chief Justice of the High Courts, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant bar.’ And, of course, it is the judges who are best equipped to assess the suitability of lawyers to be on the bench because it is the courts which are the arenas where they perform.In other words, the technical competence of lawyers could best be appraised by judges.[22]

To soften the effects of the rewrite came another rewrite. The opinion of the Chief Justice of India did not mean the individual opinion of Chief Justice of India, it meant his opinion formed collectively, that is to say, after taking into account the views of his senior colleagues, ‘who are required to be consulted by him for the formation of his opinion.’ This was the court’s gift to the Constitution of India; the ‘collegium’.[23]

 In 1998, during the second of the three Vajpayee governments, a presidential reference was made to the Supreme Court on issues arising out of the Second Judges’ Case (this was the Third Judges’ Case). Significantly, the court recorded at the outset the statement of the Attorney General that the Union of India was not seeking a review or reconsideration of the judgment of the Second Judges’ Case. The reference was mainly on the nitty-gritty of the collegium system and how it was to be worked. Here was a respectful government not wanting in any way to be seen as questioning the independence of the judiciary. Among other things, the court decided to increase the size of one of the collegia (for the appointment of the judges of the Supreme Court and for transfer of the High Court chief justice or the High Court judges) from three to five. A judicially created constitutional institution was redefined, this time in the course of an advisory opinion to the President!

In a recent public interest litigation, the collegium system was questioned. Refreshingly, the Attorney General (and presumably with the consent of the present government) supported the petitioner, saying that the Second and Third Judges’ Cases require reconsideration. However, the petition was ultimately dismissed with the Supreme Court holding that the present system merited no change.[24]

Thus, there was a need felt for a body like NJAC.

Analysis of the term “Opinion” of the Chief Justice of India

The opinion has to be formed in a pragmatic manner and past practice based on convention is a safe guide. In matters relating to appointments in the Supreme Court, the opinion given by the Chief Justice of India in the consultative process has to be formed taking into account the views of the two seniormost Judges of the Supreme Court.[25] The Chief Justice of India is also expected to ascertain the views of the seniormost Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come form the same High Court or otherwise. Article 124(2) is an indication that ascertainement of the view of some other Judges of the Supreme Court is requisite. The object underlying Article 124(2) is achieved in this manner as the Chief Justice of India consults them for the formation of his opinion. This provision in Article 124(2) is the basis for the existing convention which requires the Chief Justice of India to consult some Judges of the Supreme Court before making his recommendation. This ensures that the opinion of the Chief Justice of India is not merely his individual opinion, but an opinion formed collectively by a body of men at the apex level in the judiciary.

In matters relating to appointments in the High Courts the Chief Justice of India is expected to take into account the view of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion according to the Chief Justice of India, is likely to be significant in the formation of his opinion. The opinion of the Chief Justice of the High Court would be entitled to the greatest weight, and the opinion of the other functionaries involved must be given due weight, in the formation of the opinion of the Chief Justice of India. The opinion of the Chief Justice of the High Court must be formed after ascertaining the views of at least the two senior most Judges of the High Court.

The Chief Justice of India, for the formation of his opinion, has to adopt a course which would enable him to discharge duty objectively to select the best available persons as Judges of the Supreme Court and the High Courts. The ascertainment of the opinion of the other Judges by the Chief Justice of India and the Chief Justice of the High Court, and the expression of their opinion, must be in writing to avoid any ambiguity.”

The opinion of the Chief Justice of India, for the purpose of Articles 124(2) and 217(1), so given has primacy in the matter of all appointments; and no appointment can be made by the President under these provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the Chief Justice of India, formed in the manner indicated.[26]

The distinction between making an appointment in conformity with the opinion of the Chief Justice of India, and not making an appointment recommended by the Chief Justice of India to be borne in mind. Even though no appointment can be made unless it is in conformity with the opinion of the Chief Justice, a recommended of the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, if considered unsuitable on the basis of positive material available on record and placed before the Chief Justice of India, may not be appointed except in the situation indicated later. Primacy is in making an appointment; and, when the appointment is not made, the question of primacy does not arise. There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India, except in the situation indicated hereafter.[27]

It is only to this limited extent of a recommendee of the Chief Justice of India, on the basis of positive material indicating his appointment to be otherwise unsuitable, that the Chief Justice of India does not have the primacy to persist for appointment of that recommendee except in the situation indicated later. This will ensure composition of the courts by appointment of only those who are approved of by the Chief Justice of India, which is the real object of the primacy of his opinion and intended to secure the independence of the judiciary and the appointment of the best men available with undoubted credentials.”

Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Justice of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, may be permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake that mistake in the ultimate public interest is less harmful than a wrong appointment.[28] However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation then that appointment as a matter of healthy convention ought to be made. In order to ensure effective consultation between all the constitutional functionaries involved in the process, the reasons for disagreement, if any, must be disclosed to all others, to enable reconsideration on that basis. All consultations with everyone involve, including all the Judges consulted, must be writing and the Chief Justice of the High Court, in the case of appointment to a High Court, and the Chief Justice of India, in all cases, must transmit with his opinion the opinion of all Judges consulted by him, as part of the record.

Expression of opinion in writing is an in built check on exercise of the power, and ensures due circumspection. Exclusion of justifiability, as indicated hereafter, in this sphere would prevent any inhibition again the expression of a free and frank opinion. The final opinion of the Chief Justice of India, given after such effective consultation between the constitutional functionaries, has primacy in the manner indicated.[29]

Transfers of Judges and the judicial review

In the formation of his opinion, the Chief Justice of India, in the case of transfer of a Judge other than the Chief Justice, is expected to take into account the views of the Chief Justice of the High Court from which the Judge is to be transferred, any Judge of the Supreme Court whose opinion may be of significance in that case, as well as the views of at least one other senior Chief Justice of a High Court, or any other person whose views are considered relevant by the Chief Justice of India. The personal factors relating to the concerned Judge, and his response to the proposal, including his preference of places of transfer, should be taken into account.  

The primacy of the judiciary in the matter of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judiciary review of those decisions, which is ordinarily needed as check against possible executive excess or arbitrariness. Plurality of Judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in the executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of Judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area discretion are sufficient checks against arbitrariness. These guidelines in the form of norms are not to be construed as conferring any justiciable right in the transferred Judge. Apart from the constitutional requirement of a transfer being made only on the recommendation of the Chief Justice of India, the issue of transfer is not justiciable on any other ground, including the reasons for the transfer or their sufficiency. The opinion of the Chief Justice of India formed in the manner indicated is sufficient safeguard and protection again any arbitrariness or bias, as well as any erosion of the independence of the judiciary.

The is also in accord with the public interest of excluding these appointments and transfers from litigative debate, to avoid any erosion in the credibility of the decisions, and to ensure a free and frank expression of honest opinion by all the constitutional functionaries, which is essential for effective consultation and for taking the right decision.[30]

The judgment in the case of K. Ashok Reddy v. Government of India and Ors.[31] dealt with the justiciability of transfers of High Court Judges from one High Court to another. The judgment, rendered by a Bench of three learned Judges, records that it was a “sequel to the decision” in the second Judges case. It refers to the fact that after the second Judges case the then Chief Justice of India had constituted a Peer Committee comprised of the then two seniormost puisne Judges of Supreme court and two Chief Justices of High Courts to make suggestions for transfers and the Chief Justice of India was to make his recommendations on that basis and in accordance with the broad guidelines indicated in the second Judges case. There was, therefore, the judgment said, no room left for any apprehension of arbitrariness or bias in the transfer of any Judge or Chief Justice of a High Court. There was no doubt that the Chief Justice of India, acting on the institutional advice available to him, was the surest and safest bet for preservation of the independence of judiciary. The second Judges case did not exclude judicial review but limited the area of justiciability to the constitutional requirement of the recommendation of the Chief Justice of India for exercise of power under Article 222 by the President of India. The power of transfer was to be exercised by the highest constitutional functionaries in the country in the manner indicated, which provided several inbuilt checks against the likelihood of arbitrariness or bias. The need for restricting the standing to sue in such a matter to the affected Judge alone had been reiterated in the second Judges case.[32]

“It is therefore, necessary to spell out clearly the limited scope of judicial review in such matters to avoid similar situations in future. Except on the ground of want of consultation with the named constitutional functionaries or lack of any condition of eligibility in the case of an appointment, or of a transfer being made without the recommendation of the Chief Justice of India, these matters are not justiciable on any other ground, including that of bias, which in any case is excluded by the element of plurality in the process of decision making.”

NJAC Era

National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the appointment and transfer of judges to the higher judiciary in India. The Commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014.[33] The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme Court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission.[34]

The Constituent assembly had appointed an ad hoc committee to recommend the best method of the appointment of judges. The purpose of this committee was to ensure an independent yet committed judiciary. It unanimously laid down that there should be a panel of 11 members which would comprise of the some Chief Justices of High Courts and few members of both the houses. The nomination would be confirmed by at least 7 of those members and then shall be presented to the President for confirmation.[35] A very nascent form of this judicial commission may be observed here.

Ad Hoc Committee Report (1949)

An ad hoc committee was constituted by the constituent assembly to suggest the method for the appointment of judges. It unanimously recommended a panel of judicial and parliamentary members to nominate future judges. The President had to confirm these nominations.[36] The constituent assembly did not consider these suggestions and discussed more democratic methods of appointment of judges.

121st Law Commission Report (1987)

The Commission makes elaborate references to Missouri Plan of United States of America, which was not followed in the U.S. Constitutional setup.[37] It desired the Chief Justice of India with three senior most judges, the predecessor to the office of Chief Justice of India, i.e., who has retired from the post of Chief Justice of India to whom the Chairman has succeeded, three Chief Justices of High Courts according to their seniority, Union Law Minister and Attorney General of India and an outstanding law academic as member.

Venkatchalaiah Committee Report (2003)

On the basis of the Law Commission of India report of 1987 National Judicial Commission was proposed in the Constitutional (67th Amendment) Bill, 1990. The 1998 opinion indeed enlarges the ‘collegium’. In this sense, the purpose of the said Amendment Bill is served.[38] In 2003 the National Judicial Commission Bill had been introduced through Constitution (98th Amendment) Bill. The Bill lapsed due to the dissolution of the Lok Sabha. After the formation of the 14th Lok Sabha (2004-2009) National Advisory Council (NAC) prepared a concept paper on a National Judicial Commission. The Constitution (120th Amendment) Bill, 2013 and the Judicial Appointments Commission (JAC) Bill, 2013 were introduced in the Rajya Sabha in August 2013. The Standing Committee submitted its report on the JAC Bill, 2013 in December 2013. This was passed by the Rajya Sabha but lapsed with the dissolution of the 15th Lok Sabha. The JAC Bill, 2013 was withdrawn on August 11, 2014.

The Drawbacks of National Judicial Appointment Commission

A detailed reading of both the 99th Amendment and the NJAC Act of 2014 brings forth many factors that can be said to undermine the primacy of the judiciary in appointment and transfer matters.

Predominance to the Executive

The first which can be pointed out is the insertion of Article 124C in the Constitution by the 99th Amendment. The very wordings of the article give an impression of the predominance of executive in the appointment matters. Article 124C states that Parliament shall be the one to regulate the process of appointment of the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts by enacting statutory provisions and it shall empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it. For the furtherance of this article the Parliament indeed enacted the National Judicial Appointment Commission Act, 2014 and empowered the Commission to make rules and regulations with regards to the procedure of appointment of judges.

Initiation of the Process of Appointment

A major departure from the pre-established norm was seen through the Section 4 of the National Judicial Appointment Commission Act[39] where the Commission was made the initiator of the proceedings of the appointment of judges which since the times of the Constituent Assembly Debates was the prerogative of the Chief Justice of India along with the consultation of other judges. In the most recent 4th Judges case[40]Goel J. in his concurring judgment clearly points out to this anomaly. He states[41]: Convention of initiation of proposal by Chief Justice for the High Courts and CJI for the Supreme Court and other scheme as reflected in the memoranda earlier mentioned and as laid down in decisions of this Court has been replaced. The Memorandum on the Appointment of Judges, 1999 had clearly laid down that the Chief Justice of India would be the initiator in the proceedings of appointment of judges.[42]

Composition of the Commission

This brings us to the vital question of the composition of the Commission. Article 124A of the Constitution lays down the composition of the Commission. The precedent which was set by the 2nd Judges case and then re-affirmed by the Presidential reference of 1998 had laid down the formation of a collegium of 5 senior most puisne judges of the Supreme Court including the Chief Justice of India. The infiltration of the executive is evident from the fact that the present Commission consists of only 3 judges representing the judiciary including the Chief Justice of India out of the total 6 members. The number has been brought down from 5 to 3. Not only that the committee that would nominate the two eminent members to the collegium has only one representative from the judiciary and that is the Chief Justice of India. The paradigm shift in the balance of power between the executive and the judiciary is imminent.

Position of Chief Justice of India

But this is not the only reason why the advocates of judicial independence are arguing against the setting up of the Commission. Second proviso to Section 5[43] and Section 6(6)[44] of the National Judicial Appointment Commission Act, 2014 state that the recommendation shall not be made if any two members of the Commission do not conform to it. It conveniently left the question open as to the position of the Chief Justice of India with regards to the appointment or non appointment of the recommended. In other words if the three members of the collegium and the law minister recommends on the suitability of a prospective judge, the two eminent members (who may be from a non law background) may neutralize the recommendation. Extra legal or non judicial factors have all potential to dominate through this veto in the judicial process of appointment of judges. In 4th JudgesCase (NJACjudgment) this was one of the most objectionable rationale of the majority.

Federal element of the Appointment of Judges

The federal characteristic of the appointment of High Court judges has also been watered down to a very great extent. The constitutional amendment has upgraded the presence of central executive and downgraded the presence of State executive.

Revival of Collegium System

Declaring that the judiciary cannot risk being caught in a “web of indebtedness” towards the government, the Supreme Court on Friday rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts.[45]

Independence of the judiciary is a basic feature or an essential and inviolable part of basic structure of the Constitution and a judiciary which discharges its functions independently without fear or favour, is a fundamental constitutional ideal and goal. Ultimately, it is the faith of the people in the impartiality, independence and competence of the judiciary which sustains democracy. Process for appointment of Judges (involving manner of selection and actual appointment), is an integral part of independence of the judiciary, which is part of the basic structure of the Constitution. Primacy of the judiciary in the matters of appointment and transfer of Judges, is also part of the basic structure of the Constitution. Constitution (99th Amendment) Act, 2014 violates the basic structure of Constitution, hence, it is struck down as void. National Judicial Appointments Commission Act, 2014 is also ultra vires the Constitution.[46]

“It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” Justice J.S. Khehar, the presiding judge on the five-judge Constitution Bench, explained in his individual judgment.[47]

The Bench sealed the fate of the proposed system with a 4:1 majority verdict that held that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”. “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” said the majority opinion. Justice J Chelameswar wrote a dissenting verdict, criticising the collegium system by holding that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.[48]

What is the collegium system?

It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution. The Supreme Court collegium is headed by the Chief Justice of India and comprises four other seniormost judges of the court. A High Court collegium is led by its Chief Justice and four other seniormost judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium. Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium. The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.[49] It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.[50]

How did the collegium system evolve when the Constitution is silent on it?

After the second judges transfer case[51], there was a lot of confusion for years. In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction). The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the functioning of the coram for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This opinion laid down that the recommendation should be made by the CJI and his four seniormost colleagues, instead of two. It also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.[52]

Collegium System: Critical Analysis

Critics argue that the system of collegium is non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. There is no public knowledge of how and when a collegium meets, and how it takes its decisions. Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.[53]

Even though the NJAC Judgment revives collegium system, Justice J Chelameswar raised his concern in the dissenting judgment. “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary, said the majority opinion. But Justice J Chelameswar wrote that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.[54] But interestingly, the Bench admitted that all is not well even with the collegium system of “judges appointing judges”, and that the time is ripe to improve the 21-year-old system of judicial appointments.[55] “Help us improve and better the system. You see the mind is a wonderful instrument. The variance of opinions when different minds and interests meet or collide is wonderful,” Justice Khehar told the government.

Judicial Primacy or Judicial Exclusivity?

Going beyond the letter of the law, in my view, primacy should imply that if the judges are united, the candidate they back must get appointed. However, the ideal of judicial primacy need not be equivalent to the demand of judicial exclusivity, which refers to the exclusive right of judges to be involved in the selection process as in the current system of the collegium. Taking into account the views and votes of entities outside the judiciary in the event the judges are disunited violates exclusivity but not primacy as defined above.

In the absence of exclusivity, it is possible for a candidate not preferred by the CJI to become a judge. When consulted by the president, as required by the Constitution, the CJI would have to convey its support for a candidate not of its choice.[56]

Thus, although collegium system is revived due to failure of NJAC, there is a lot to be done for the smooth procedure to be followed. Memorandum of Procedure was proposed in which all the details regarding appointment are mentioned so that more transparency can be brought.

Memorandum of Procedure: Critical Analysis

Recently, the collegium had recommended the elevation of Uttarakhand Chief Justice KM Joseph and Senior Advocate Indu Malhotra to the Supreme Court. In terms of the Memorandum of Procedure, if the Centre declines to grant its approval for the elevation of a particular person to the apex court, it may send the same back to the collegium for reconsideration. However, if the collegium decides to not reconsider, then the person is confirmed as an appointee. In this case however, the Centre was neither confirming nor rejecting the names proposed. In effect, it was exercising what is known as a pocket veto. The Memorandum of Procedure doesn’t call for a time limit within which names have to be approved. What this effectively means is that the Centre is free to sit on a recommendation as long as it wants and effectively stall the procedure.[57]

The Memorandum of Procedure, when finalised, did not contemplate such a pocket veto. However, in effect that is what is happening now.

When it comes to appointments to the judiciary, such pocket vetos cause significant problems. The High Courts of the country are woefully understaffed in terms of judges. Many are not operating at full strength.[58]

The MoP needs to be revisited to avoid this problem, or the Collegium must consider dropping names when the veto is being exercised and suggesting alternative names. While the Collegium system gives the Collegium the final say on judicial appointments, in order for a democracy to function, there must be a healthy working relationship between the Centre and the judiciary when it come to the elevation of judges. That working relationship is lacking and it is causing the country serious problems.

Conclusion

Everyone was taken by surprise when four senior judges of the Supreme Court recently mounted a virtual revolt against the then Chief Justice of India, Dipak Misra, raising questions on “selective” case allocation and certain judicial orders.[59] This is not the first time that the happenings inside the Apex Court of the country are questioned. Advocate Gautam Bhatia said that in the last 20 years, the office of the Chief Justice of India has received a lot of power without having any system of accountability to keep it in check. Any such cases have been seen in appointment and transfer of judges also, as discussed above. Thus, there is a need to have certain type of check on this power.

The Judicial review of appointment and transfer of judges by the Chief Justice of India is subjected to limited judicial review. There are guidelines and Memorandum of Procedure according to which appointments and transfer have to be done. The recommendations and reasons are to be recorded in writing.

Suggestions

  • The grounds of limited judicial review should be extensively laid down so that it brings clarity and if there arises any new ground it can be decided on the basis of ejus dem generis of the existing grounds.
  • Independence of judiciary is a basic and vital characteristic of the Indian Constitution and functionary and therefore it should be upheld. It must be seen that the power struggle between the legislature and judiciary to establish supremacy and control over each other should not lead to compromise in such independence.
  • The check should be laid on the judges so that they do not over step into judicial activism and entertain PILs or issue writs etc challenging the appointment of Chief Justice of India. The locus standi should be interpreted in such cases in a very narrow sense so that the faith and dignity in judicial system and judiciary as a body can be maintained.
  • A workable committee should be formed that should include representatives from both sides, judiciary and legislature. Like Supreme Court judges, high court judges, law minister etc which can reach to an amicable solution that can put an end to the power struggle between the judiciary and the legislature.
  • The judicial system should be made more transparent and nepotism should be removed.
  • The problems discussed in Memorandum of Procedure needs to be revisited.

Bibliography

Books

  • M.P. Jain, Indian Constitutional Law (7th ed. 2016).

Articles

Ajay Thakur, Appointment of Supreme Court Judges in India & Necessary Judicial Reforms, https://blog.ipleaders.in/appointment-of-supreme-court-judges-in-india/.

Anuradha Mukherjee, Should the Judges Cases be Revisited?, https://corporate.cyrilamarchandblogs.com/2018/02/judges-cases-revisited/

Centre’s ‘pocket vetos’ to stall appointments of judges detrimental for co-operation between govt, judiciary, First Post, https://www.firstpost.com/india/centres-pocket-vetos-to-stall-appointments-of-judges-detrimental-for-co-operation-between-govt-judiciary-4430283.html

Constituent Assembly Debates (Proceedings), Volume VIII, Tuesday 24th May, 1949.

Dr. Anurag Deep, Shambhavi Mishra, Judicial Appointments in India and the NJAC judgment: Formal Victory or Real Defeat, Jamia Law Journal, Vol. 3, 2018.

Krishnadas Rajagopal, SC Bench strikes down NJAC Act as ‘unconstitutional and void’, https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece

Memorandum Showing the Procedure for the Appointment of the Chief Justice of India and Judges of the Supreme Court of India, June, 6, 1999, http://www.lawmin.nic.in/.

National Commission to Review the Working of Constitution, a Consultative Paper on Superior Judiciary.

National Judicial Appointment Commission Act, 2014.

National Judicial Appointments Commission Bill, 2014

Nick Robinson, Reflecting on the Powers of the CJI, Law and Other Things, https://lawandotherthings.com/2009/01/reflecting-on-powers-of-cji/.

Nizam A, Judges Appointment: Executive Primacy to Judicial Primacy and Road Ahead, https://www.livelaw.in/judges-appointment-executive-primacy-to-judicial-primacy-and-road-ahead/, (August 2, 2013).

Primacy of Opinion of Chief Justice of India in Making Appointments/Transfers of Supreme Court and High Court Judges, http://www.aapkaconsultant.com/blog/primacy-of-opinion-of-chief-justice-of-india-in-making-appointmentstransfers-of-supreme-court-and-high-court-judges/.

Raju Ramachandran, Judicial supremacy and the collegium, http://india-seminar.com/2013/642/642_raju_ramachandran.htm.

Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

S.P. Sathe, Appointment of Judges: The Issues, Economical and Political Weekly, (August 8, 1998).

Shruti Pandey, What every Indian should understand about how Judges are appointed in India, https://blog.ipleaders.in/what-every-indian-should-understand-how-judges-are-appointed-in-india/, (March 26, 2015).

Supreme Court judges’ rebellion: Absolute powers of Chief Justice of India need to be checked, says SC lawyer, First Post, https://www.firstpost.com/india/supreme-court-judges-rebellion-absolute-powers-of-chief-justice-of-india-need-to-be-checked-says-sc-lawyer-4300737.html

 The Constitution (121st Amendment) Bill, 2014.

The Constitutions (99th  Amendment) Bill, 2014.

Utkarsh Anand, How judges appoint judges, the debate around it, https://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-transferred-the-debate-around-it-4375719/.

Vakasha Sachdev, How Are Judges of the Supreme Court Appointed and Removed?, The Quint, https://www.thequint.com/explainers/explainer-appointment-and-removal-of-supreme-court-judges-controversy.

Volume X, Friday, Constituent Assembly Debates On 7 October, 1949, https://indiankanoon.org/doc/1847258/.         


[1] Shruti Pandey, What every Indian should understand about how Judges are appointed in India, https://blog.ipleaders.in/what-every-indian-should-understand-how-judges-are-appointed-in-india/, (March 26, 2015).

[2] Nizam A, Judges Appointment: Executive Primacy to Judicial Primacy and Road Ahead, https://www.livelaw.in/judges-appointment-executive-primacy-to-judicial-primacy-and-road-ahead/, (August 2, 2013).

[3] AIR 1982 SC 149.

[4] (1993) 4 SCC 441.

[5] Nizam A, Judges Appointment: Executive Primacy to Judicial Primacy and Road Ahead, https://www.livelaw.in/judges-appointment-executive-primacy-to-judicial-primacy-and-road-ahead/, (August 2, 2013).

[6] Volume X, Friday, Constituent Assembly Debates On 7 October, 1949, https://indiankanoon.org/doc/1847258/.

[7] In re: Appointment and Transfer of Judges, 1998.

[8] Utkarsh Anand, How judges appoint judges, the debate around it, https://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-transferred-the-debate-around-it-4375719/.

[9] Article 217, Constitution of India, 1950.

[10] Constituent Assembly Debates (Proceedings), Volume VIII, Tuesday 24th May, 1949.

[11] A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

[12] Dr. Anurag Deep, Shambhavi Mishra, Judicial Appointments in India and the NJAC judgment: Formal Victory or Real Defeat, Jamia Law Journal, Vol. 3, 2018.

[13] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[14] Anuradha Mukherjee, Should the Judges Cases be Revisited?, https://corporate.cyrilamarchandblogs.com/2018/02/judges-cases-revisited/

[15] Ibid.

[16] S.P. Gupta v. Union of India, AIR 1982 SC 149.

[17] Raju Ramachandran, Judicial supremacy and the collegium, http://india-seminar.com/2013/642/642_raju_ramachandran.htm.

[18] (1993) 4 SCC 441.

[19] Raju Ramachandran, Judicial supremacy and the collegium, http://india-seminar.com/2013/642/642_raju_ramachandran.htm.

[20] Ajay Thakur, Appointment of Supreme Court Judges in India & Necessary Judicial Reforms, https://blog.ipleaders.in/appointment-of-supreme-court-judges-in-india/.

[21] Ibid.

[22] Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

[23] Ibid.

[24] Primacy of Opinion of Chief Justice of India in Making Appointments/Transfers of Supreme Court and High Court Judges, http://www.aapkaconsultant.com/blog/primacy-of-opinion-of-chief-justice-of-india-in-making-appointmentstransfers-of-supreme-court-and-high-court-judges/.

[25] Advocate on Record Association v. Union of India, (1993) 4 SCC 441.

[26] Nick Robinson, Reflecting on the Powers of the CJI, Law and Other Things, https://lawandotherthings.com/2009/01/reflecting-on-powers-of-cji/.

[27] Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

[28] Ajay Thakur, Appointment of Supreme Court Judges in India & Necessary Judicial Reforms, https://blog.ipleaders.in/appointment-of-supreme-court-judges-in-india/.

[29] Vakasha Sachdev, How Are Judges of the Supreme Court Appointed and Removed?, The Quint, https://www.thequint.com/explainers/explainer-appointment-and-removal-of-supreme-court-judges-controversy.

[30] S.P. Sathe, Appointment of Judges: The Issues, Economical and Political Weekly, (August 8, 1998).

[31] (1994) 2 S.C.C. 303.

[32] Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

[33] The Constitutions (Ninety-ninth) Amendment) Bill, 2014.

[34] National Judicial Appointments Commission Bill, 2014, The Constitution (121st Amendment) Bill, 2014.

[35] Constituent Assembly Debates (Proceedings), Volume VIII, Tuesday 24th May, 1949.

[36] Ibid.

[37] National Commission to Review the Working of Constitution, a Consultative Paper on Superior Judiciary.

[38] Ibid.

[39] National Judicial Appointment Commission Act, 2014, section 4.

[40] Supreme Court Advocates on Record Association v. Union of India, 2015 SCC 1.

[41] Ibid.

[42] Memorandum Showing the Procedure for the Appointment of the Chief Justice of India and Judges of the Supreme Court of India, June, 6, 1999, http://www.lawmin.nic.in/.

[43] National Judicial Appointment Commission Act, 2014, sec. 5.

[44] National Judicial Appointment Commission Act, 2014, sec. 6(6).

[45] Krishnadas Rajagopal, SC Bench strikes down NJAC Act as ‘unconstitutional and void’, https://www.thehindu.com/news/national/supreme-court-verdict-on-njac-and-collegium-system/article7769266.ece

[46] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

[47] 2016 Scc Vol. 5 May 28, 2016 Part 1, https://blog.scconline.com/post/2016/06/06/2016-scc-vol-5-may-28-2016-part-1/

[48] Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.

[49] Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

[50] Utkarsh Anand, How judges appoint judges, the debate around it, https://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-transferred-the-debate-around-it-4375719/.

[51] Advocate on Record Association v. Union of India, (1993) 4 SCC 441.

[52] In re: Appointment and Transfer of Judges, 1998.

[53] Utkarsh Anand, How judges appoint judges, the debate around it, https://indianexpress.com/article/explained/collegium-system-supreme-court-how-judges-are-appointed-and-transferred-the-debate-around-it-4375719/.

[54] Ibid.         

[55] Ibid.

[56] Rohit Prasad, Judicial primacy is not the same as exclusivity, https://www.livemint.com/Opinion/fiIdgqyxO3IGfPkoxYCSZJ/Judicial-primacy-is-not-the-same-as-exclusivity.html.

[57] Centre’s ‘pocket vetos’ to stall appointments of judges detrimental for co-operation between govt, judiciary, First Post, https://www.firstpost.com/india/centres-pocket-vetos-to-stall-appointments-of-judges-detrimental-for-co-operation-between-govt-judiciary-4430283.html

[58] Ibid.

[59] Supreme Court judges’ rebellion: Absolute powers of Chief Justice of India need to be checked, says SC lawyer, First Post, https://www.firstpost.com/india/supreme-court-judges-rebellion-absolute-powers-of-chief-justice-of-india-need-to-be-checked-says-sc-lawyer-4300737.html

Author Details: Swati Bhargava (Advocate, MP High Court)

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