Report No. 121

Chapter VI

Search for Solution

6.1. A period of four decades clearly provides a watershed for taking stock of the situation and to draw a balance sheet. The scheme for appointment of Judges of the superior judiciary has been in vogue, to be precise, for a period of 37 years. The way in which the model works clearly leaves much to be desired. An effectively functioning model, operational in character, must be able to achieve two things:

(1) quick and expeditious filling in of vacancies and putting Judges into position; and

(2) Selecting first rate brilliant, efficient, honest and independent Judges. Selecting manpower for manning judiciary is an integral part of the functions assigned to judiciary.

When the Government felt a need for setting up a Judicial Reforms Commission for recommending comprehensive judicial reforms, it would take within its sweep not only the restructuring of the judicial system but, as integral thereto and inseparable therefrom, the manpower planning or what can be said to be human input which is the backbone of the system. If the present scheme meets the needs and demands of the society, nothing more is required to be done.

But, as pointed out herein earlier, the model is stratified and the scheme has become disfunctional in that both the expectations from it are not at all fulfilled, a new model has to be devised for selection and appointment of Judges and this model in its operational performance, must satisfy the above set out targets.

In short, the scheme or model must enable those operating the scheme to fill in vacancies the moment they occur by putting Judges in position on the day on which the vacancy occurs and be able to select Judges-efficient, capable and having a scale of constitutional values. A search for human inputs presages a mechanism for search. If the mechanism is defective or imperfect, search through it would not yield the right sort of persons to man the judiciary.

To start with, an analysis may be made why the present scheme has failed to achieve the objects for which it was devised. The next question is whether it is reparable as was attempted by the Law Commission on an earlier occasion.1 If the answer is in the negative, the next question is whether a new model should be devised and what ought to be the basic features of such a model.

1. LCI, 80th Report.

6.2. The Constituent Assembly had appointed a high powered ad hoc Committee consisting of outstanding jurists of the country for recommending the best method of selecting Judges for the Supreme Court. This Committee produced a unanimous report which in terms opined that it would not be expedient to leave the power of appointing Judges of the Supreme Court to the unfettered discretion of the President of the Union. The Committee recommended two alternative methods with a suggestion that either may be adopted. The two alternative models were:

(1) The President should in consultation with the Chief Justice of the Supreme Court (so far as the appointment of a puisne Judge is concerned) nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least seven out of a panel of eleven composed of some of the Chief Justices of the High Courts, some members of both the Houses of Central Legislature and some of the law officers of the Union; or

(2) the panel of eleven should recommend three names out of which the President, in consultation with the Chief Justice, may select, a Judge for the appointment.

The same procedure should be followed in the appointment of Chief Justice except, of course, that in this case there will be no consultation with the Chief Justice. The Committee had before it the existing model as set out in the Government of India Act, 1935.1

1. B. Shiva Rao The framing of India's Constitution: Select Documents, Vol. II, 59.

6.3. The Law Commission having reviewed the functioning of this mechanism from 1950 to 1987 concluded:

"The almost universal chorus of comment is that the selections are unsatisfactory and that they have been induced by executive influence. It has been said that these selections appear to have proceeded on no recognisable principle and seem to have been made out of considerations of political expediency or regional or communal sentiments.

Some of the members of the Bar appointed to the Bench did not occupy the front rank in the profession, either in the matter of legal equipment or of the volume of their practice at the Bar. A number of more capable and deserving persons appear to have been ignored for reasons that can stem only from political, or communal or similar grounds. Equally forceful or even more unfavorable comments have been made in respect of persons selected from the services.

We are convinced that the views expressed to us show a well founded and acute public dissatisfaction at these appointments. The observations made by Chief Justice Kania referred to by us elsewhere that merit alone should be the basis for selection to the High Court judiciary seems to have been completely overlooked1.

It is widely felt that communal and regional considerations have prevailed in making the selection of the judges. The idea seems to have gained ground that the component States of India should have, as it were, representation on the Court. Though we "call ourselves a secular State, ideas of communal representation, which were viciously planted in our body politic by the British, have not entirely lost their influence.

What perhaps is still more to be regretted is the general, impression, that now and again executive influence exerted from the highest quarters has been responsible for some appointments to the Bench. It is undoubtedly true, that the best talent among the Judges of the High Courts has not always found its way to the Supreme Court."2

To improve the situation, it recommended an amendment of Article 217 incorporating what was rejected by the Constituent Assembly, namely, that every appointment to the High Court shall be made with the concurrence of Chief Justice of India on the recommendation of the Chief Justice of the High Court. This was in terms described as judicial veto over executive power.

It also recommended that while it should be open to the State executive to express its own view and forward it to the Centre, the role of the State Executive should be confined to making its remarks about the nominee proposed by the Chief Justice and, if necessary, asking the Chief Justice to make fresh recommendation.3 Obviously, the recommendation has not been implemented.

1. LCI, 14th Report, Vol. I.

2. LCI, 14th Report, Vol. I.

3. LCI, 14th Report, Vol. I.

6.4. The procedure for appointment of Judges was reviewed by the Study Team on Centre-State Relations of the Administrative Reforms Commission. The Team extended its support to the recommendations set out in the earlier paragraph with a view to restricting the role of the executive in the matter of appointment of Judges of the High Court and the Supreme Court. It opined that this approach would strengthen the independence of judiciary. The recommendations of the Study team were considered by the Administrative Reforms Commission. It was, however, of the opinion that no alteration in the existing procedure is desirable1.

1. LCI, 80th Report, Vol. I.

6.5. This very topic again came in for examination by the High Court Arrears Committee. It did not deal with the format of the mechanism for appointment but merely suggested that the exercise for filling in a vacancy must start well in advance so that the selection can be finalised by the time the vacancy occurs. In order to defeat any vacillation on the part of the executive by not processing the proposal, the Committee recommended that if the recommendation made by the Chief Justice is not dealt within one month from the date of its receipt, the Government must be deemed to have accepted the recommendation and the matter may be taken up by the Central Government for expeditious disposal of the same1.

1. Report of High Courts Arrears Committee, 1912-80.

6.6. During the raging controversy following the 1973 supersession, a Convention of the Bar of the whole country held on August 11 and 12, 1973, unanimously adopted a resolution on the criteria, machinery and procedure for appointment of Chief Justice and Judges. The resolution inter alia recommended that the appointment of High Court Judges should be made on the recommendation of a Committee of three seniormost Judges of the High Court (including the Chief Justice) and two senior advocates nominated for the purpose by the Association of the High Court Bar.

The initiative in making a recommendation should always be with this Committee and not with any executive authority1. For the first time, intervention and association of the Bar of India in the matter of selection of Judges for the superior judiciary was mooted.

1. R. Dhavan and A. Jacob Selection and Appointment of Supreme Court Judges: A Case Study, 111-112, (1978).

6.7. In the year 1977, at the instance of the then Prime Minister of India, the Secretary, Ministry of Law and Justice and Company Affairs requested the Law Commission to examine the question of appointment of Judges of High Court and Supreme Court. Law Commission undertook the task. The Commission observed that:

"The impression, nevertheless, has prevailed that the appointment of the Judges to the High Court has not been always made on merit and that has affected the image of the High Court. This impression was strengthened by fourteenth Report of the Law Commission. The Commission, while noting that most of the appointments had been made with the concurrence of all concerned, including the Chief Justices of the High Courts and the Chief Justice of India observed that in the prevailing procedure, the Chief Justices of the High Courts gave their concurrence to prevent awkward situations arising from the appointment of persons not recommended by them".1

The Commission did not specifically suggest amendment of Article 217, as was done in the earlier report, but recommended that while making a recommendation for appointment of a Judge of a High Court, the Chief Justice should consult his two senior most colleagues and while forwarding the recommendation should incorporate therein the fact of such consultation and indicate the views of the two colleagues. A unanimous recommendation of this body should normally be accepted by the executive.

It also recommended that a high level panel consisting of persons known for their integrity, independence and judicial background be set up to ensure dispassionate scrutiny and eliminate extraneous considerations in the matter of appointments to supreme judiciary. The panel was to consist of Chief Justice of India, Minister for Law and Justice and three persons each of whom has been the Chief Justice or a Judge of the Supreme Court. Again, this was a model by which participation of other than those set out in Article 217 was envisaged. During 1977-79, there was an informal acceptance of a part of this recommendation2.

1. LCI, 80th Report.

2. Ibid.

6.8. On the eve of retirement of the then Chief Justice of India in February 1978 when the question of the successor was engaging the attention of the Government, a group of people from Bombay, 52 in number, including lawyers, politicians, retired Judges and several others, some of whom had unequivocally supported the principle of seniority in the matter of selection of the Chief Justice of India at the time of 1973 supersession, took a complete somersault and vehemently urged that 'to restore the convention of seniority blindly now would be to perpetuate a hierarchy built on commitment; a hierarchy so arranged that the two seniormost sitting Judges would outlive all other sitting judges of the Supreme Court, many of whom have unexceptional records1'.

As an alternative, they recommended that: 'a judicial appointments commission should at once be constituted of five or seven persons, say, three former distinguished Judges of the Supreme Court, the President of the Supreme Court Bar Association, a distinguished and eminent member of the Bar (whether actively practising or not) and the President of the Bar Council of India (if elected and not otherwise).

This Commission may have the power to co-opt two other members who are not officers of the Government.2' The then Government left no one in doubt that the power to appoint Judges cannot be abdicated in favour of anyone and that it is the Government and not lawyers who make judicial appointments.

1. Bombay Memorandum.

2. Bombay Memorandum.

6.9. Responding to the strident criticism made at the Bar in the course of hearing of the case S.P. Gupta v. Union of India that the executive interference in the matter of selection and appointment of Judges to the superior judiciary has, apart from eroding the independence of judiciary, given rise to a feeling amongst large segments of the society that membership of the superior judiciary is available as a matter of political

"There must be a collegium to make recommendations to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests.

If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and have qualities required for appointment and this last requirement is absolutely essential-it would go a long way towards securing the right kind 'of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited sections of society.

We may point out that even countries like Australia and New Zealand have veered round to the view that there should be a Judicial Commission for appointment of the higher judiciary1."

1. 1981 Suppl SCC 87 (233).

6.10. Bar Council of India organised a national seminar of lawyers at Ahmedabad to examine in all its ramifications the question of judicial appointments and transfers. The Seminar was of the opinion that the role of executive in appointments, as provided in the Constitution, should be formal and minimal. The initiative in the matter of selection and appointment of Judges of the superior judiciary must invariably rest with the Chief Justice of India. It recommended a collegium for appointments to the Supreme Court consisting of: (1) the Chief Justice of India, (2) five senior Judges of the Supreme Court, and (3) two representatives of the Bar representing the Bar Council of India and the Supreme Court Bar Association.

It was of the view that the recommendation of the collegium shall be binding on the Government, though it would be open to the Government to ask for reconsideration of specific cases on grounds which per se may indicate that the choice requires to be reconsidered. Similarly, for appointment of Judges of the High Court, the Seminar recommended a collegium consisting of: (1) the Chief Justice of the High Court, (2) two seniormost Judges of the High Court, and (3) two leading advocates to be nominated by the Bar Association of the High Court as its representatives.1

1. Summary of the proceedings of the National Seminar on Judicial Appointments and Transfers held in Ahmedabad on 17th October, 1981, 8 JBCI 157.