Report No. 121
A New Forum for Judicial Appointments
1.1. With a slight variation to suit the context, Julius Stone can be recalled by saying that: "it is not given to any generation of men to complete the task of restructuring legal justice system to make it effective, easily accessible, deprofessionalised and cheap, but no generation is free either to desist from it". Criticism galore, occasionally pungent, is voiced from different platforms and numerous fora against the present day justice system and personnel manning the same.
System is variously described as colonial, unsuited to our needs and contrary to our culture, foreign in origin, imposed by the foreign rulers to serve their imperial ends. Personnel manning the system are labelled conservative, elitist, status quoist, precedent oriented, living in ivory towers, far removed from injustice ridden toiling, teeming, poverty ridden masses of republican India. Law Commission has submitted some reports for restructuring the system.
Any proposal for reform is incomplete unless it turns its attention on the manpower inputs of the system. That is the raison d'etre for this report. No social institution is value free, value neutral. Every system devised to regulate the behaviour of man must aim at bettering the lot of human beings. Every such system with all the technological advances is manned by human beings. Therefore, the quality, capacity, efficiency, integrity, character and value system of human beings, manning the system would manifest its strength, weakness, utility, adaptability and resilience to change.
In short, guarantee of its success or failure. Even the most technically sound and effective system may fail for the reason of the manpower inputs. Therefore, the Law Commission, while devising way and means to revitalise and rejuvenate the stratified, worn out and wholly irrelevant to the present day situation, justice delivery system, devotes the present report to manpower planning for effectively manning the restructured system.
1.2. A comprehensive programme for judicial reforms necessarily takes within its sweep a critical examination of the system of selecting personnel for manning justice delivery system. Manpower input is vital to the effective functioning of the system. Human resources constitute amongst others a critical element of any organisation. The quality and quantity of human resources significantly influence the level of effectiveness as well as efficiency of an organisation.
The criticality of human resources is reflected in the oft-repeated adage that any organisation (its structures and systems included) is only as good as the people who operate it. The nature and degree of knowledge, skills and ethics of the people on the one hand and clarity in the appreciation of and 'commitment' to the objectives on the other, are critical to the internal efficiencies and external effectiveness of organisations.1
1. G.S.S. Rao, A Note Submitted to the Law Commission.
1.3. The Indian judicial system being pyramidic in character is an integrated one as understood in contradistinction to the American and Australian models. Undoubtedly, while our judicial system is vertically structured with the Supreme Court of India at the apex, the intervening layers consist of subordinate judiciary at the grass-root level, district judge at middle level and High Court at State level. Constitution incorporates separate provisions for manpower planning, selection and induction in the different layers of judicial service.
The power to appoint the Chief Justice of India and a Judge of the Supreme Court of India vests in the President of India1 to be exercised in consultation with such of the Judges of the Supreme Court and High Courts as the President may deem necessary for the purpose. Similarly, the power to appoint the Chief Justice of a High Court and a Judge of the High Court vests in the President to be exercised in consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court.2
The power to appoint or promote a person to the post of a district judge vests in the Governor of the State to be exercised in consultation with the High Court exercising jurisdiction in relation to such State.3 Similarly, the power to recruit and appoint persons other than district judges to the judicial service of a State vests in the Governor to be exercised in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.4
1. Article 124, The Constitution of India.
2. Ibid., Article 217.
3. Ibid., Article 233.
4. Ibid., Article 234.
1.4. Over the last four decades, recruitment to superior judiciary is made according to the procedure prescribed in Articles 124 and 217 of the Constitution. A mounting dissatisfaction is voiced with the method and strategy of selection and the selectees to man superior judiciary. This dissatisfaction stems from what is the idolised view of the members of the superior judiciary and what is available. In order to appreciate the fairness and reasonableness of this strident criticism, it is first necessary to determine what is expected of the superior judiciary individually and institutionally.
1.5. Since the supersession of the three senior-most Judges of the Supreme Court by elevating the fourth in the line of seniority as Chief Justice of India, in April, 1973, vociferous debate is criss-crossing the country as to who must have the final voice in the matter of selection of members of the superior judiciary as also what should be the criterion and yardstick for selecting such persons.
After the decision of the full court in His Holiness Keshvananda Bharti Sripadgalyaru v. State of Kerala, (1973) 4 SCC 225, popularly known as Fundamental Rights case, on April 24, 1973, the then Chief Justice of India, Shri S.M. Sikri retired on April 25, 1973. Mr. Justice J.M. Shelat was next in the line of succession, followed by Justice K.S. Hegde and Justice A.N. Grover.
All the three were passed over and Justice A.N. Ray was appointed as the Chief Justice of India. A countrywide debate started, presumably for the first time, as to what should be the criterion in appointing Chief Justice of India and who should have the last word in the matter. The debate not unnaturally covered wide ground and took within its sweep as to what should be the yardstick and governing considerations for selecting personnel for manning superior judiciary.
Those who condemned the suppression perceived a massive threat to the independence of judiciary. According to them, in a federal polity with a written Constitution and an ingrained Bill of Rights, judiciary is the sentinel on the qui vive and it must be fully insulated against erosion of this independence especially from the executive. In the last analysis, according to them the final guarantee of the citizens' rights is not the Constitution but personality and intellectual integrity of the Supreme Court Judges.1
1. N.A. Palkhiwala A Judiciary Made to Measure, 55 (1973).