Report No. 121
7.11. As this body would exclusively deal with the question of selection and appointment of Judges of High Courts the question is what role should be assigned to the Chief Justice of the High Court in which the vacancy has occurred and the Chief Minister of the State in which the High Court is situated. Today, as the situation stands, both have a vital say in the matter. Should they be wholly excluded? That would be rather too radical. The Chief Justice of the High Court, who has also to deal with the administrative side of the High Court, must have some say in the selection of an individual who is to be his colleague.
This would foreclose any dispute and ensure harmonious working of the High Court. The next important interest, which at present has a consultative status, is the Governor of the State who acts on the advice of the Chief Minister. In the effective working of the High Court, the Chief Minister of the State has an interest and it cannot be ignored. And once he is given an opportunity to react to any proposal that is under consideration, one can dispense with the consultation with the Governor.
Therefore, to make the new scheme operationally effective, the National Judicial Service Commission while, deliberating over selection and appointment of Judges of the High Court, must co-opt the Chief Justice of the High Court in which the vacancy has occurred and which is under the process of being filled in as well as the Chief Minister of the State in which the High Court is situated. This will accord an opportunity both to the Chief Justice of the State and the executive of the State to express their opinion on the merits or otherwise of the persons under consideration both from the Bar as well as from Indian Judicial Service.
7.12. The Functions of the Commission would cover a large area. Therefore, depending upon the task undertaken, the Commission can co-opt experts from various different segments of the society in order to effectively discharge its functions. The power to appoint the Commission must obviously vest in the President of India.
7.13. The functions or duties or tasks assigned to National Judicial Service Commission must include the following:-
(1) Selecting and recommending persons for being appointed to the superior judiciary, that is, to Supreme Court and High Courts. In accomplishing this task, it can devise criteria and yardstick for selecting persons from amongst numerous available for appointment. Broadly stated, the criteria must include:
(i) deep and abiding faith in constitutional process and constitutional philosophy;
(ii) legal acumen and ability to deal with complex questions of law;
(iii) a man of stature, personality, reputation and unquestioned integrity and good character and sturdy independence;
(iv) scale of values and awareness of the perceived needs of the society These are illustrative and not exhaustive.
(2) In order to set up Indian Judicial Service, the Commission should be charged with a duty to devise ways and means and to set up machinery for holding examinations for granting promotions and for adjusting persons coining from different sources into the unified service.1
(3) The Commission must devise methods for recruitment to the subordinate judiciary specifying the eligibility qualifications, including the age, etc.
(4) There is a move in the direction of tribunalisation of justice, such as Administrative Tribunal and, in the near future, a possibility of setting up of National Labour Commission, Central Educational Tribunal, et al. Whenever a tribunal is set up, it shall be the duty of this Commission to provide for manpower planning by selecting qualified personnel to man the same.
It shall be one of the functions of the Commission to select personnel for Central Tax Court.
It shall also be one of the functions of the Commission to set up a Central Academy for imparting training to judicial officers as also Regional Training Centres as recommended by the Law Commission.2
By numerous decisions of the Supreme Court of India, the control over the subordinate judiciary vests in the High Court. As has been oft-repeated the provisions of the Constitution relating to judiciary were devised to insulate judiciary against executive interference. As, a sequel, a disciplinary proceeding against a member of the subordinate judiciary, though formally held in the name of the Governor, is, substantially and for all practical purposes, held by the High Court or by an officer nominated by the High Court3.
In the event the individual is found guilty of misconduct, it is the High Court which decides the quantum of punishment and the Governor has to act according to the recommendation of the High Court. Now if a member of the subordinate judiciary wants to question the correctness of the decision of the High Court, he has to file a petition on the judicial side of the High Court.
A grievance is voiced that when the High Court, as a full court, on its administrative side decides whether the charge is held proved and also determines the quantum of punishment, it becomes embarrassing for the delinquent judicial officer to challenge this finding on the judicial side of the High Court. A feeling is often entertained that this is an appeal from Ceaser to Ceaser's wife. This grievance is not without justification, though no disrespect is meant to any High Court.
This grievance can be adequately remedied if the National Judicial Service Commission sets up a small body from amongst members of the judiciary, to be styled as Judicial Disciplinary Committee, before which decisions of the High Court in disciplinary matters on its administrative side can be questioned. The Commission will thus be fulfilling the felt needs of the time. It must, therefore, be one of its functions to set up such a Committee.
National Judicial Service Commission shall have a nucleus of office, a permanent secretariat and requisite staff for discharging its functions adequately and efficiently.
1. LCI, 118th Report.
2. LCI, 117th Report.
3. Samsher Singh v. Union of India, (1977) 2 SCC 831.
7.14. In a detailed discussion with Chief Justice of a High Court a doubt was raised as to who would initiate the proposal before the Commission for recommendation. He elaborated relying on his own experience, that at present at any rate the Chief Justice initiates the proposal and he is best suited to do so in view of his intimate knowledge both of the practising advocates in the High Courts and the members of the district judiciary.
Therefore, according to him, Chief Justice was pre-eminently suited to initiate the proposal, and at any rate, by contrast neither the Chief Minister nor the Governor of the State would have adequate information about the capacity, efficiency and ability of a member of the bar or even of a member of the district judiciary to initiate the proposal. He voiced his apprehension that when a Commission is set up, it is distinctly possible that the members of the Commission may not be aware of the availability of talent from a particular State and, therefore, initiation of proposal for consideration for appointment will create a few problems.
Now it is undoubtedly true that the Chief Justice of a High Court has intimate knowledge of the availability of talent from the bar and the district judiciary. And if he acts fairly anti without bias, he can certainly be depended upon to initiate a reasonable, fair and generally acceptable proposal for appointment. Experience, however, shows, and it has been noticed way back during the debates in the Constituent Assembly as well that, Chief Justice being a human being suffers limitations to which flesh is heir to.
Cases are not unknown where on account of a certain kind of local bias or prejudice or invisible albeit irresistible caste considerations have tugged on and dictated choices excluding a segment on the bar as well also a segment of the district judiciary. To recall what Dr. Ambedkar has said1 in this context which has been pointed out earlier that though the Chief Justice is a very eminent person yet he is a man with all failings, all the sentiments which common people have and he declined to grant to the Chief Justice practically a veto over appointments.
Therefore, it is not possible to retain, as was the view of the Chief Justice that the initiation of the proposal must be within the exclusive domain of the Chief Justice of the High Court in which the vacancy has occurred. This aspect has also been examined in S.P. Gupta v. Union of India (supra). Leaving, that aside, the proposed Commission should not be hamstrung by such medieval ideas as right to initiate proposal. Anyone can write to the Commission proposing the name. The Commission may also call for proposals from the Chief Justice of the High Court.
The members of the Commission may have their own expert knowledge of the subject which can be put to use. Therefore, it must be left to the National Judicial Service Commission to devise its own procedure for initiation of proposal for recommending individuals for appointment as Judges of the High Court. The aspect presents no difficulty when it comes to dealing with the Supreme Court because the Chief Justice of India as the Chairman of the Commission would take care of the situation and he is going to be assisted by some of his colleagues.
1. CAD, Vol. VIII, 232.
7.15. Only two aspects remain to be dealt with. Undoubtedly, a minor amendment of the Constitution becomes inevitable to give effect to the recommendations herein made. The proposed amendments have been set out in the last Chapter. The new model would retain the present position of President of India as an appointing authority in respect of Judges of the Supreme Court and the High Courts.
Instead of the present position the President of India would appoint them on the recommendation of the National Judicial Service Commission. To give effect to this model, it must be made distinctly clear that the recommendation of the Commission would be binding on the President of India. Now it may be that one cannot guard against all possible errors. The President of India in view of the vast resources that he commands, may have extensive machinery for collecting information about any individual.
If after the President receives the recommendation and he thinks fit to initiate enquiry and comes across some information which may influence the decision of the Commission, he may refer back the recommendation to the Commission with, the information made available to the President of India.
7.16. If after reconsidering the recommendation in the light of the information the Commission thinks fit to reiterate its recommendation, the President shall appoint the person. It is this provision which will make the new model fully operational and effective.
7.17. The only aspect that remains to be examined in this connection is the time factor. Today there is inordinate delay in making appointments. Rarely if ever, a High Court or the Supreme Court functions with its full strength and the mandays lost in filling-in the vacancies deny consumers of justice the availability of forum and inevitably piles-up the backlog of cases. Therefore, the National Judicial Service Commission, shall initiate the proposal for filling in the vacancy occurring on account of retirement six months prior to the occurrence of vacancy and in other cases such as death or resignation, as soon as the vacancy occurs.
The object must be to guard against loss of a single man day on this account. When the strength of the court is augmented, the Commission should take immediate steps to recommend person so that the court may work with its full strength.
It must be made distinctly clear that if the Commission is of the opinion that there is reluctance on the part of eligible persons belonging to the Bar of a High Court in which vacancy has occurred to accept Judgeship, it would the be open to it to look around the whole country and select persons from any where in the country. This would bring about a healthy change in the outlook of each High Court and would be an answer to parochial, regional or narrow outlook which is becoming discernible in the judiciary recently.