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Report No. 121

Chapter IV

Need and Justification for Change

4.1. The services rendered by Judges demand the highest qualities of learning, training and character. These qualities are not to be measured in terms of pounds, shillings and pence according to the quantity of work. A form of life and conduct far more severe and restricted than that of ordinary people is required from Judges and, though unwritten, has been most strictly observed. They are at once privileged and restricted.

They have to present a continuous aspect of dignity and conduct. The Bench must be the dominant attraction to the legal profession yet it rather hangs in the balance now, and heavily will our society pay if it cannot command the finest characters and the best legal brains which we can produce; and heavily will our country pay in an epoch where relative material power had diminished, we do not sustain those institutions for which we are renowned.1

When the provisions relating to superior judiciary in the draft Constitution were under discussion, alternative models were suggested for selecting manpower to man the superior judiciary. A number of alternatives were suggested in this behalf drawing sustenance from various models in existence in different parts of the globe. Dr. B.R. Ambedkar, in his summing up, laid bare the object behind the mechanism chosen for selecting members of the superior judiciary. It reads as under:

"There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent which we find in the United States, 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 executive wishes to make subject to the concurrence of Legislature is also not a very suitable provision. The draft article, therefore, steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment."2

Rejecting the amendments providing for concurrence of the Chief Justice of India, Dr. Ambedkar said that such a provision seems to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. Conceding that the Chief Justice is a very eminent person, he proceeded to state that after all 'the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day'.3

After referring to the relevant debates in the Constituent Assembly and keeping in view the language employed in Articles 124 and 217 and allied articles in the Constitution, the majority in Gupta's case4 rejected the contention that the opinion of the Chief Justice of India must enjoy primacy in the matter of selection of Judges to man the superior judiciary. Justice Bhagwati in his opinion clearly spelt-out the legal position with reference to the power of appointment of Judges to superior Judiciary as under:

"It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide.

Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Government in defiance of such unanimous opinion, it may prima facie be vulnerable to attack on the ground that it is mala fide or based on irrelevant grounds.

The same position would obtain if an appointment is made by the Central Government contrary to the unanimous opinion of the Chief Justice of the High Court and the Chief Justice of India. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it.

We may, however, make it clear that on a proper interpretation of clause (2) of Article 124 and clause (1) of Article 217, it is open to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.

Where there is a difference of opinion amongst the constitutional functionaries who are consulted, it is for the Central government to decide whose opinion should be accepted and whether appointment should be made or not."5

1. Winston Churchil, quoted in LCI, 14th report, Vol. I

2. CAD, Vol. VIII, 258.

3. CAD, Vol. VIII, 258.

4. S.P. Gupta v. Union of India, 1981 Supp SCC 87.

5. Ibid., p. 228.

4.2. There was a chorus of protest against the decision of the majority. After attaching due weight to the views of the critics the incontrovertible fact is that the majority accepted the interpretation which was clearly intended by the founding fathers, which intention could be unravelled by reference to the debates in the Constituent Assembly and especially by analysing not merely what is stated but what was proposed and specifically rejected. This model or mechanism for selection of members of the superior judiciary has been in vogue for the last forty years.

4.3. The twin objects to achieve which the existing model was devised were to attract the best talent enjoying unquestionable integrity and character to enter the judiciary and that the judiciary must both be independent of the executive and must also be competent in itself.

Intervening in the debate, Prime Minister Nehru said that "It is important that these Judges (of the superior judiciary) should be not only first rate, but should be acknowledged to be first rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive Government, and whoever may come in their way." But the High Court Judges and the Federal Court Judges should be outside political affairs of this type and outside party tactics and all the rest, and if they are fit, they should certainly, I think be allowed to carry on.1

1. CAD, Vol. VIII, pp. 276-247.

4.4. Having these objects in view, the founding fathers devised a mechanism for selecting persons to man superior judiciary and conferred power on the President, the highest executive of the country, to make the appointments. A period of forty years is sufficiently long enough to provide a watershed to assess and evaluate the performance of the model and the functioning of the mechanism.

If, on an overall view, it could have been concluded that by and large the mechanism has satisfactorily worked, nothing else would be required to be done. If, on the other hand, the situation has so grossly deteriorated that the mechanism has become almost disfunctional, it must be reactivated or an alternative model has to be devised so as to exclude the infirmities in the present model and the new model must effectively perform the task of finding out honest, efficient, independent and capable judges.

One cannot ignore the situation by merely expressing one's reverence for a model devised by the founding fathers of the Constitution. They did it with the best of intentions. It may be that the assumptions underlying the functioning of the mechanism may now be found wanting and the whole thing may, therefore, go out of gear.

4.5. Having become aware of what the founding fathers wanted to achieve by devising the present mechanism, can it be truthfully said that these objects have been or are being achieved? The matter can be viewed from two independent angles. Is the mechanism working satisfactorily? Is the power conferred on the President to make appointments being exercised for the purpose for which it was conferred?

4.6. Any organised society, and more so the developing society, being governed by a written Constitution incorporating the philosophy of rule of law and an entrenched Bill of Rights, had all the potentialities for generating numerous disputes in the society. The Constitution makers were not oblivious to this distinct possibility. Therefore, provisions were incorporated in the Constitution for setting up a pyramidical integrated court structure from grass-root to the apex court. Court system was devised to provide fora where disputes can be taken for their resolution.

Appellate, jurisdiction was devised as a corrective against human failings or errors of judgment. Having structured the court system, the next important step to be taken was to keep constantly under review the manpower position for manning these courts. A court system would be an empty structure unless judges, independent, efficient, competent intelligent and capable of discharging their duties are selected and appointed for manning these courts.

To achieve the second object, power was conferred on the highest executive, the President of India, to appoint persons as Judges of the High Courts and of the Supreme Court of India. It is a power coupled with duty. Power to appoint inheres the duty to appoint. If power is conferred on one authority and the authority fails to perform the duty, it would generate a vacuum. According to one view this power of appointment conferred on the President is coupled, with a duty, which if the President fails to perform, a writ of mandamus can be issued calling upon him to review the strength and make the appointments.1

Again, when power is conferred on a constitutional functionary, it has to be exercised for the purpose for which the power is conferred and such power has to be exercised in a reasonable manner, which in turn implies that it must be exercised within a reasonable time.

The situation, therefore, is that the President has the power to make appointments; he cannot act on his own; he has to act on the advice given by either the Cabinet or the concerned Minister under the Rules of Business; therefore, it becomes the obligatory duty of the Government to make necessary recommendations after consulting all the constitutional functionaries as provided in the various provisions and the appointment must be made within a reasonable time. The underlying assumption of the model and the mechanism is as analysed herein.

1. S.P. Gupta v. Union of India, 1981 Supp. SCC 915.

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