By Lokendra Malik
Under the Indian constitutional scheme and practice relating to judicial appointments to the Supreme Court, the President of India appoints judges to the Supreme Court in consultation with a collegium headed by the chief justice of India (CJI) under Article 124(2) of the Constitution. The CJI initiates the proposal to appoint a judge to the Supreme Court and presents the same before a collegium consisting of himself and four of the senior-most judges of the Court for their consideration. If the collegium approves the proposal unanimously, the president is bound to appoint the recommended person as a judge to the apex court. However, on the advice of the central government, the president may return the recommendation to the collegium for its reconsideration by mentioning specific reasons justifying the non-appointment of a person as a judge. But if the collegium reiterates its decision for appointing a person as a judge, the president will have no choice but to implement the collegium’s decision accordingly.
Now, after the Second, Third, and Fourth Judges’ cases decided by the apex court, this is a well-settled position that reflects the primacy of the judiciary in making appointments of judges to the Supreme Court and High Courts. The existing system leaves limited space for the central government.
Clause (3) of Article 124 of the Constitution prescribes the qualifications of a person who is eligible to become a judge of the Supreme Court. There are three sources of appointments—(1) a person must have been for at least five years a judge of a High Court in India, or (2) an advocate of ten years’ standing, or (3) must be, in the opinion of the president, a distinguished jurist. However, the president has not made any appointment of a judge from the last category till date. Mostly, either the judges or the chief justices of High Courts reach the Supreme Court based on the seniority and merit norms. Although there is no hard and fast rule of seniority-based appointments, the Supreme Court collegium keeps it in mind while selecting the judges to the apex court.
In the Presidential Reference, 1999, this is what the Supreme Court said about this issue: “Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior judge who has been passed over. What has to be recorded is the positive reason for the recommendation.” These observations empower the Supreme Court collegium to relax the seniority norms in making recommendations for the appointment of judges to the apex court.
Notably, only nine lawyers have become judges of the Supreme Court directly ever since the establishment of the Supreme Court. In 1964, SM Sikri was appointed a judge to Supreme Court directly from the bar. Before his appointment, he had been the advocate general of Punjab for 13 years. He had presided over the 13-judge Constitution Bench in the famous Kesavananda Bharati case in 1973. In that case, he had delivered the majority judgment declaring the basic structure doctrine by a majority of 7 to 6. He was a courageous judge who never compromised with the dignity, independence and collective authority of the judiciary.
Just after his retirement, the then Prime Minister Indira Gandhi superseded the three senior-most judges, namely Justices Shelat, Grover, and Hegde who had delivered the Kesavananda Bharati judgment against the government and appointed Justice AN Ray to the office of the chief justice of India. Constitutional pundits call it the first judicial supersession. She also superseded Justice HR Khanna in 1977 for delivering a dissenting judgment in the infamous ADM Jabalpur case and appointed Justice MH Beg as the chief justice of India. This is the second judicial supersession. The legal community had criticised these vocally.
In 1971, SC Roy was the second lawyer who reached the Supreme Court directly from the Calcutta High Court bar. However, he served the Supreme Court just for four months. Justice Kuldip Singh was appointed as a judge to the Supreme Court directly from the bar of the High Court of Punjab and Haryana in 1988. Before his appointment to the apex court, he had been the advocate general of Punjab and also the additional solicitor general of India. He was the part of the bench that delivered the judgment in the Second Judges’ case in 1993. Because of his landmark judgments on environmental issues, he was popularly known as the “green judge”.
Santosh Hegde became the fourth advocate to become a judge of the Supreme Court in 1999. Before his elevation to the apex court, he had been advocate general of Karnataka and additional solicitor general of India. Since then, no lawyer was appointed as a judge directly to the apex court for 15 years.
In 2014, the then CJI RM Lodha led Supreme Court collegium recommended the names of two lawyers Gopal Subramaniam and Rohinton Fali Nariman for Supreme Court judgeship. Both had been solicitor generals of India. The centre cleared Nariman’s name but not Subramaniam. Justice Nariman retired from the Supreme Court, last month.
He is well-known for his courageous voice and a man of principles.
In 2014, UU Lalit was appointed to the Supreme Court directly from the bar. He was a leading criminal lawyer in the Supreme Court and appeared in several leading cases in the court. He is likely to become the CJI next year as per the seniority convention.
Justice L Nageswara Rao also came to the Supreme Court from the bar directly in 2016. Before his elevation, he had been the additional solicitor general of India for two terms. He had appeared in several leading cases in the Supreme Court.
In 2018, the president appointed Justice Indu Malhotra as a judge for the Supreme Court directly from the bar. She is the first woman lawyer who was elevated to the apex court directly. She retired from the top court in March this year. Before she was appointed as a judge, she used to practice in the Supreme Court.
Recently, the president appointed Justice PS Narasimha as a Supreme Court judge directly from the bar. Before his appointment, he had served as the additional solicitor general of India and appeared in many landmark cases in the Supreme Court. If the line of seniority of judges in the apex court remains undisturbed, he is likely to become the chief justice of India in 2027.
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Given the above discussion, the practice to appoint lawyers as judges to the Supreme Court is good and it should be continued in the future as well. It boosts the confidence of the bar in the judiciary and provides the lawyers a great opportunity to serve the nation on the apex court bench that decides the legal destiny of the people.
There should be an understanding in the collegium to always recommend the names of lawyers given the level of vacancies in the apex court. It is necessary to promote diversity on the bench.
The Supreme Court needs a diverse bench. The time has also come when the Supreme Court should also have a judge from the category of distinguished jurists.
Let me conclude with these thoughtful words of the eminent constitutional law scholar Professor MP Singh: “A heavy responsibility lies upon the judges to demonstrate that even though they are self-appointed, they represent their society and that they are not a closed group of people perpetuating their own rule. They must discharge that responsibility with broadmindedness, sagacity, and foresight and must encourage and invite suggestions for the appointment of judges from different sources, including the executive, the bar, and the legal luminaries. Now it primarily lies on them to create and establish a judiciary which is not only independent of the executive and the legislature but which is also competent to perform the unfinished task of social revolution-not merely reform-which the Constitution makers had envisaged for it.”
—The writer is advocate Supreme Court of India