Appointment & transfer of judges

APPOINTMENT OF JUDGES

By Pravin H. Parekh

Senior Advocate, Supreme Court of India

1. The independence of Judiciary is rightly held by the Supreme Court as the basic feature of our Constitution. It is essential for the citizens to enjoy and enforce their rights. Clause (4) of Article 124 of the Constitution provides that a Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting, has been presented to the President in the same session, for such removal on the ground of proved misbehaviour or incapacity. By virtue of Article 218, the said clause in Article 124 applies equally to the Judges of the High Courts. It is true that in other democratic Constitutions too, this appears to be the procedure. For example, under the U. S. Constitution, Judges of the Supreme Court are removable only by a process of impeachment. In England, Judges are removable by the Crown only on a joint address moved by both Houses of Parliament. This is also the procedure provided by the U. K. Supreme Court Act, 1981. The provisions of Canadian, Australian and Irish Constitutions are similar. Our Constitution also protects the judges by other safeguards. Apart from providing no removal except by impeachment of Judges of Supreme Court and High Courts, the Constitution does not provide for any other method to deal with Judges for their behaviour as ‘deviant Judges’ which expression has been used by Justice M N Venkatchaliah committee.

2. When I was enrolled as advocate in 1965, the general opinion amongst the people at large and particularly with the legal fraternity was that the Supreme Court, High Court and District Court Judges were hundred percent honest. People had boundless faith in the Judiciary. However today things are different. There are serious allegations of corruption against some of the Judges of all courts. In two decades, the consensus in the society in collegiums making judicial appointments has gone down and the voices which helped in creating the law in Second Judges Case reported in (1993) 4 SCC 441 and Third Judges Case reported in (1998) 7 SCC 739 have some reservation.

3. By and large the collegium appoint good Judges but there were many instances of appointments of those who should not have been appointed as Judges and many good judges who deserve to be appointed have not been appointed.

4. The collegium system has its genesis in a series of three judgments that is now known as the “Judges Cases”. S. P. Gupta v. Union of India reported in 1981 Supp SCC 87 (December 30, 1981) held that the “primacy” is of the executive authorities. This brought a paradigm shift in favour of the Executive having primacy over the Judiciary in judicial appointments for the next 12 years. In fact prior to SP Gupta judgment, the Government never asserted its primacy but by and large the Judiciary accommodated the views of the Government in some cases.

5. On October 6, 1993, came a nine-judge bench decision in the case of Supreme Court Advocates-on Record Association v. Union of India reported in (1993) 4 SCC 441  the “Second Judges Case”. This ushered in the collegium system. I had the opportunity of appearing in S P Gupta in writ petition which was filled by Justice V.M. Tarkunde challenging circulars issued by law minister. I had a leading role in decision to file a writ petition by the Supreme Court Advocates- on Record Association in the second Judge’s case. We found that S. P. Gupta judgment gave powers to Executive which they never claimed earlier. The majority overruled the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.” The majority judgment saw dissent within the bench itself on the individual role of the Chief Justice of India. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges and can consult any number of judges if he wants to, or none at all.

6. For the next five years, there was some confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues.

7. In 1998, President of India made a reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. The nine judge bench of Supreme Court unanimously laid down nine guidelines for the functioning of the collegium for appointments and transfers of Supreme Court and High Court Judges. This came to be the present form of the collegiums. Besides, the nine-judge bench judgment in In Re: Appointment & Transfer Of Judges reported in (1998) 7 SCC 739 dated October 28, 1998, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judge’s Case”. The Supreme Court in this judgment recommended that the collegiums making the appointments to Supreme Court should consist of the Chief Justice and four Senior Most Judges, the opinion of all the judges should be in writing, if majority of the collegiums is against the appointment of any person he should not be appointed.

8. On a personal note I had the opportunity to make my submissions in all the three judge’s cases.

9. The ratio in the “Third Judges Case” has been followed since then, for appointment of judges. However, the governments at the Centre and most of political parties for the last many years are of the opinion of changing this system and creating a Commission consisting of Judges and non Judges for the appointment of   Judges in the Higher Judiciary.

1. The inherent presumption and expectation of the Second and Third Judges Case were that the collegiums will select the best talents to occupy the position of Supreme Court and High Court Judges and that appointments will be purely on merits and not on any irrelevant and extraneous considerations.  The collegium has to be much more sensitive to the fact that this power has been taken away by the judiciary by purposive interpretation by the Supreme Court for a good and pious purpose.  The Bar also helped the judiciary by filing Writ Petitions and making very useful and strong submissions. It is believed that there are many appointments made which could have been avoided and many Judges should have been appointed who have been ignored. I can quote views of some retired judges of Supreme Court:

1. Justice VR Krishna Iyer, former Supreme Court Judge said, “The Supreme Court has interpreted the method of choosing the higher judiciary in a judgment that sets down that with a majority of one it could create the collegium. The senior most three or five judges of the High Court or the Supreme Court comprise the collegiums. Ideology, class character, antecedents, performance or position in the social milieu is hardly considered. The whole process is arbitrary, and naturally the perfunctory selection has come up for criticism.”
2. Late Justice J S Verma, former CJI and author of majority judgment in Second Judges case (1993) said, “My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.”
3. Justice Ruma Pal, former Judge Supreme Court in the fifth V.M. Tarkunde Memorial Lecture said “I will conclude with the most important facet of judicial independence. Judicial independence cannot exist without accountability. At present the only disciplinary power over judges is vested in Parliament which provides for the extreme punishment of removal for acts of proven misbehaviour by or incapacity of a judge. Disciplinary methods include the Chief Justice advising a dishonest judge to resign or recommending a judge’s name to the Chief Justice of India for transfer to another High Court.

Deprivation of jurisdiction or the non-allocation of work to a dishonest judge was resorted to by Chief Justice Sabyasachi Mukharji-when the impeachment of Justice V. Ramaswamy failed for political reasons. Sometimes Chief Justices control a recalcitrant judge by ensuring that the judge concerned sits with the Chief Justice or with a ‘strong’ judge until he or she retires.”

1. With this view the Constitution (One Hundred and Twentieth Amendment) Bill, 2013 (hereinafter, “Constitution Amendment Bill”), was passed by the upper house of India’s Parliament, the Rajya Sabha, on September 5, 2013. The Constitution Amendment Bill sought to replace the collegium with a “Judicial Appointments Commission”. However, this bill lapsed and the Constitution (One Hundred and Twenty first Amendment) Bill, 2014 has been introduced for which voting in Lok Sabha is to be held today.

2. The Judicial Appointments Commission bill 2013 which provided for establishing a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of Judges in the Higher Judiciary has been withdrawn on 11^th August, 2014 by the present government.

3. The National Judicial Appointments Commission bill 2014 has been introduced by the present government for which voting in Lok Sabha is to be held today. Even for the consultation on the present bill it is very essential that the present government consults the representatives of the Bar.

4. Of course, when I interact with some of the Judges and members of the bar abroad they are all surprised, at the exclusive power with the Senior Judges excluding the government, the other judges, members of the bar, representatives of the civil society and so on and so forth.

5. In my opinion if this power is exercised by the Judges of the Supreme Court and High Courts, after having effective and meaningful consultation with the Minister of Law & Justice  and with the elected representatives of the Bar Council of India and Supreme Court Bar Association in case of Supreme Court appointments and concerned State Bar Councils and concerned High Court Bar Associations representatives and if the mindset is changed that the appointment is not a power but a pious duty, it will work.

6. The question is not capable of easy solution but one thing on which there is almost unanimity amongst members of the Bar, Bench and Civil Society is that the present system requires modification. According to me the modification should be better than what exists today.

Pravin H. Parekh

Senior Advocate

Dated: 13^th August, 2014

The author is the President of Supreme Court Bar Association.