Report No. 121
1.6. The supporters of the supersession relied upon the report of the Law Commission in which after noticing the practice till then followed that the senior-most puisne Judge is always promoted as the Chief Justice and such a promotion has become a matter of course, the Commission proceeded to specify what ought to be the qualifications of the person to be appointed as the Chief Justice of India, namely, that 'not only that he should be the Judge having experience but also a competent Administrator capable of handling complex matters that may arise from time to time, a shrewd judge of men and personalities and above all, a person of sturdy independence and towering personality who would, on the occasion arising, be a watch-dog of the independence of judiciary'1.
The Law Commission concluded that 'a convention be established that appointment to the office of the Chief Justice rests on special considerations and does not as a matter of course go to the seniormost puisne Judge'. It further proceeded to recommend that when such a convention is established, 'it would be the duty of those responsible for appointment, to choose a suitable person for that high office, if necessary, from among the persons outside the court'2.
1. LCI, 14th Report.
1.7. It may at once be noticed that the Law Commission did not recommend any change in the power structure for selecting personnel for manning the higher judiciary as it then existed and continues to exist in the Constitution till today.
1.8. One question on which there was unbridgeable difference between the protagonists of supersession and the opponents of the same was whether a Judge should have any 'philosophy' and whether his philosophy is a relevant consideration in determining whether he should be appointed or elevated to the Supreme Court of India. S. Mohankumaramanglam in unmistakable terms asserted that the power to appoint Judges of the superior court vests in the President who acts on the advice of the Government and the Government is perfectly justified in taking into account the 'philosophy' or the 'outlook on life' or 'the conception of social needs' of the proposed appointee to the court.1
1. S. Mohan Kumara Managalam Judicial Appointments: An Analysis of The Recent Controversy Over The Appointment of Chief Justice of India, 72 (1973)
1.9. There is a body of opinion that Indian Constitution has a philosophy of its own and incorporates scale of values. "The Indian Constitution is first and foremost a social document. The majority of its provisions are either directly aimed at furthering the goals of the social revolution or attempt to foster this revolution by establishing the conditions necessary for its achievement".1 The first Prime Minister of India Pt. Jawaharlal Nehru said:
"The first task of the Assembly is to free India through a new constitution to feed the starving people, and to clothe the naked masses and to give every Indian the fullest opportunity to develop himself according to his capacity."2
1. G. Austin The Indian Constitution: Cornerstone of A Nation, 50 (1966).
2. CAD II, 316.
1.10. In the face of this unquestionable evidence, can there be any one bold enough to assert that "there is no fixed 'philosophy', or no fixed 'values' in our Constitution because that can be achieved in a one-party State which will not tolerate dissent".1 The question is whether our Constitution is value fre, value neutral. Does not the Constitution require the three centres of power:
Legislature, Executive and Judiciary, to strive to achieve: abolition of untouchability (Article 17), eradication of poverty (Article 38), the removal of economic disparity [Article 38(2)], destroying the curse of illiteracy and ignorance (Article 45), elimination of exploitation of man by man (Articles 38 and 39), destroying feudal overlordship (Article 31A), commitment to ushering socio-economic justice (Articles 41, 42, 43 and 46), radicalising legal system to make it justice-oriented (Article 39A) and to set up egalitarian society? Are these not scales of values?
Can they not be comprehended in the generic expression 'social philosophy' of the Constitution? In the face of these directives given to the State by the Constitution, can it be said that our Constitution has no fixed philosophy or no fixed values? However, those who espoused these values were condemned as committed Judges.
The adjective 'committed' as a prefix to the term 'judiciary' has raised a bitter controversy. The 'question is whether there can be a human being who has no philosophy of his own. The status quoits can also claim to have his philosophy, namely, that he would stand-still or as best look to the past and ignore the future or shut his eyes to the change taking place in the society.
1. H.M. Seervai Constitutional law of India, Vol. II, 2492, (3rd Edn., 1984).
1.11. "There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognise and cannot name, have been tugging at them--inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense in James' phrase of 'the total push and pressure of the cosmos', which, when reasons are nicely balanced, must determine where choice shall fall".1
1. Benjamin Cardozo The Nature of Judicial Process, pp. 11, 12.
1.12. The controversy fizzled out. The debate did not yield any concrete suggestion which may help in future. The supporters of supersession relied upon the recommendations contained in the report of the Law Commission.1 The opponents went to the extreme length of saying that the Government's reliance on the report of the Law Commission "amounts to compounding the public wrong with public deception. That report totally destroys the Government's case".2 It was a bizarre controversy in the sense that nothing of lasting value emerged from it.
1. Law Commission of India, 14th Report.
2. N.A. Palkhiwala A Judiciary Made to Measure, (1973), p. 46.
1.13. A similar situation arose in January 1977. On the retirement of the then Chief Justice, the next in line of succession was passed over. He was not appointed to fill in the office of the Chief Justice of India but the Judge next to him was appointed. Charges, counter-charges, imputations of motives followed revealing the old pattern as in 1973. Threat to independence of judicia'by the executive was the battle cry. Again it died down an ignominious death.
1.14. On the death of the first Chief Justice of India, it was assumed that the next in line of succession would be promoted as the Chief Justice of India. There was no convention at that time. It was in the process of being formed. An impression gained ground that the Government of India was not in favour of him and it was of the opinion that another Judge from the Supreme Court should be promoted as Chief Justice of India.
Not merely the superseded Judge but all other Judges then adorning the Bench of the Supreme Court threatened to resign en bloc. The situation was saved when the Judge next to the Chief Justice of India was promoted as the Chief Justice of India.1 Now at the time of supersession in 1973, only the superseded Judges resigned but other Judges of the Supreme Court accepted the supersession.
Similarly in January 1977, only the superseded Judge resigned. If supersession of the seniormost Justice in the appointment of the Chief Justice of India is violative of judicial independence, the threat to independence emanates from the court itself. The problem of supersession should not be confined to superseded Judges; it has to be, as in the past, a problem of surviving Justices. This having not happened, it was said that there is a threat to independence of judiciary from the Supreme Court.2
1. J.R. Siwach Sinking Indian Judicial Pyramid, 42 (1986).
2. U. Baxi Courage, Craft and Contention: The Indian Supreme Court in the Eighties, 24 (1985).
1.15. In September 1977, two Judges, one from Bombay High Court and one from Gujarat High Court, were, elevated to the Supreme Court. The elevation of the latter raised a storm of controversy, the grievance being that 'the Judge elevated from the Gujarat High Court was not the seniormost Judge of the High Court and that senior Justices of High Court should not be passed over when their claims to elevation were at least as strong as the Judge who was elevated'.
The Supreme Court Bar Association supported the controversy by adopting a resolution, 29 to 5, disapproving of the elevation of the Judge of the Gujarat High Court to the Supreme Court on the ground that the claims of the seniors were not given due weight. The controversy, as in the past, did not reveal any ideological differences; neither did it yield any worthwhile information nor did it indicate a path following which such a situation could be avoided in future.
'At the end of the day, it was a clumsy controversy; none of the real issues about the appointment of Judges really emerged from the controversy. Most people accepted that the principle of seniority was not always the best principle.
There was no real explanation as to why the controversy took its own course'.1 However, one author is of the view that as no Judges of the Gujarat High Court, including the Chief Justice, made any public protest at the undignified tactics of the Bar and lowering of the public image of the judiciary by the reckless attack on the integrity of one of their own brethren, it is suggestive of factionalism in the High Court as well.2
This is another source of threat to independence of judiciary. There is no question of seniority and supersession on the elevation of a Judge from High Court to Supreme Court. This is generally accepted though the Gujarat Bar raised an issue to the contrary.
1. R. Dhavan, A. Jacob Selection and Appointment of Supreme Court Judges: A Case Study, 59 (1978).
2. U. Baxi The Indian Supreme Court and Politics, (1980), p. 191.