Report No. 121

1.16. When the term of the sitting Chief Justice was about to expire in February 1978, a group of Bombay lawyers submitted a memorandum completely taking a somersault on their stand in the earlier controversy. On earlier occasions in April 1973, January 1977 and September 1977, some of these very persons who were signatories to 1978 memorandum vociferously advocated the principle of seniority in making appointment to the office of the Chief Justice or for elevation from the High Court to the Supreme Court of India.

Some of these worthies were members of the first Law Commission which recommended against the principle of seniority. In February 1978, they strongly advocated and insisted upon, the supersession of the next two judges in the line of succession and insisted upon their supersession. The charges against them was that the next two in line of succession were not upholders of individual's liberties and "that they were 'committed' Justices, a part of a 'hierarchy' so arranged that the seniormost sitting Judges would outlive all other sitting Judges of the Supreme Court, many of whom have unexceptionable records".1

Despite all the sophistry, the demand of the memorandumists amounted to a call for supersession because, according to them, the appointment of any of the two might be considered a national disgrace. In short, as members of the Law Commission, they expressed an opinion against automatic promotion on the basis of seniority only.

In a later controversy, supersession itself was perceived by them as a threat to independence of judiciary. At another stage with regard to the same institution, they said that if supersession is not resorted to, the committed Judges would destroy the independence of the judiciary. Can any principle emerge from this jumble of contradictions? And none emerged, and the situation has become more confounded.

1. U. Baxi The Indian Supreme Court and Politics, (1980), p. 192.

1.17. A successful working of Parliamentary democracy under a written Constitution with an entrenched bill of rights presupposes the presence of an independent judiciary. By independent judiciary, it is meant that the judiciary is independent of any external influences emanating from any source, including the political executive. To state that Judges manning the judiciary should be wholly insulated from any extraneous influences, pressures and incursions is to state the obvious.

The votaries of judicial independence have gone to the extreme length of asserting that it is the basic postulate of our Constitution and any interpretation of the articles in the fasciculus of articles relating to judiciary must keep it inviolate. There is a sort of passionate attachment to this vague concept of independence of the judiciary. It has raised a pathological paranoia in those outside the realm of political power to apprehend a threat to independence of the judiciary in any and every action of the executive in relation to the judiciary.

The founding fathers of our Constitution, in order to insulate the judiciary from any outside influence, have guaranteed tenure (Article 124), pay (Second Schedule), pension and conditions of service (by a statute with a guarantee that the same shall not be altered to the disadvantage of a Judge after he has entered the office). As if these provisions are not sufficient to guarantee the independence of the judiciary, it is passionately urged that there are insidious incursions corroding the vitals of the judiciary.

One such provision to which reference is repeatedly made is the power vested in the President to appoint Judges of the superior judiciary, i.e., the Judges of the Supreme Court of India (Article 124) and Judges of the High Court (Article 217) and the transfer of the Judges of the High Court (Article 222). As for the subordinate judiciary, numerous decisions of the Supreme Court of India and the High Courts have insulated the subordinate judiciary from any incursion into its portals by the executive. It is not necessary to recapitulate those judgments here.

They have been fully discussed in the earlier reports.1 It is not intended to discuss all sources from where the threat to judiciary emerges. It is generally assumed that the threat emanates from the political executive of the country. Is that the only source? In a seminar held in Delhi some time back, a legal academe perceived the threat to judiciary from the Bar. There are numerous incidents of strike by members of the bar in various States complaining of appointment or non-appointment of certain persons to the Bench.

1. LCI, 16th Report.

1.18. In the course of discussion with various interested groups, it transpired that there is a body of opinion that threat to independence of judiciary arises from the action of some of the Judges themselves. It was pointed out that a Judge resigns to contest Presidency or overnight resigns to become a Member of Parliament next day. It would certainly pose a threat to the non-political nature of judiciary. It was also clearly brought out in the discussion that criticising a colleague on the Bench in a language which lacks decorum, bringing into open the internal feuds amongst Judges, certainly poses a more poignant threat to the independence of the judiciary than any other.1

1. U. Baxi Judicial Terrorism: Some Thoughts on Justice Tulzapurkar's Pune Speech, Mainstream, Jan. 1, 1983, p. 1.

1.19. Attention was also focussed, in the course of discussion, on a recently revealed tendency to accept briefs while still functioning as Judges. Ignoring individual cases, it was sought to be pointed out that a Judge retires as a High Court Judge and on the very next day, he appears before the Supreme Court. When did he accept the brief? It was said that if a Judge resigns and next day contests election for a political office, it is considered objectionable, the same would apply mutatis mutandis to acceptance of the brief while still a judgeship is subsisting. These are rare cases but, in course of time, if not nipped in bud, the situation might worsen.

1.20. It is beyond question that independence of the judiciary is one of the foremost concerns of our Constitution.1 If the beacon of the judiciary was to remain bright, the courts must be above reproach, free from coercion and from political influence.2 The unique functions which judiciary performs in the Government make it imperative that the Judges should be given a position quite different from that of the great majority of Government officials.3 The judicial independence is thus prized as a basic value and so naturally and inevitably it has come to be regarded and so ingrained in the life and thought of the people that it is now almost taken for granted and it would be regarded as an act of insanity for anyone to think otherwise.

1. Union of India v. S.H. Sheth, AIR 1977 SC 2398.

2. G. Austin The Indian Constitution: Cornerstone of a Nation, (1956), p. 50.

3. R.M. Dawson The Government of Canada, 433-434 (2nd Edn, 1954).

1.21. In 1976, sixteen Judges were transferred from the respective High Courts in which they were functioning to another High Court. For the first time since the Constitution, a Judge of a High Court was transferred from the High Court to which he was appointed to another High Court without his consent. Sankalchand Himatlal Sheth,1 a Judge of the High Court of Gujarat who was transferred to the Andhra Pradesh High Court, challenged his transfer on diverse grounds, one such being that the non-consensual transfer was outside the purview of Article 222 as it would result in erosion of independence of judiciary.

The order of transfer was struck down by a full Bench of the Gujarat High Court. Union of India appealed to the Supreme Court. The contention that was put in the forefront in the Supreme Court was that a non-consensual transfer is destructive of the independence of judiciary which is the basic feature of the Constitution and, therefore, the court should read a limitation "without his consent" in Article 222(1). Chandrachud, J., observed that the founding fathers of the Constitution envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the executive.

The Constituent Assembly gave to the concept a concrete form by making provisions to secure and safeguard the independence of judiciary. After enumerating those provisions, he concluded that these provisions indisputably are aimed at insulating the High Court judiciary, and even the officers and servants of the court, from the influence of the executive.

The concern of the court was not to give such interpretation to Article 222 as would in any manner whittle down the independence of judiciary. But even with this concern in the forefront, the majority declined to read the expression "without his consent" in Article 222.

Undoubtedly, the minority held that non-consensual transfer is outside the purview of Article 222. Bhagwati, J., who led on behalf of the minority, ob served that independence of judiciary, the fighting faith of our Constitution and fearless justice is a cardinal creed of our founding document; and in order to ensure and guarantee the same, it is inconceivable that the founding fathers should have left a loophole and conceded power to the executive to inflict injury on a High Court Judge by transferring him without his consent so as to wipe out the effect of other provisions and denude them of meaning and content.

1. U. Baxi The Indian Supreme Court and Politics, (1580), p. 191.

1.22. The very question came to be re-agitated before a larger Bench in S.P. Gupta v. Union of India, 1981 Suppl SCC 87. The view that selective transfer of individual Judge for something improper in his behaviour or conduct would certainly cast a slur or attach a stigma and would leave indelible mark on the character of the Judge, found favour generally. Such a transfer, it was said, was outside the purview of Article 222 and power to transfer in this fashion makes Judges vulnerable to pressure or blackmail.

1.23. Threat to independence of judiciary was also perceived in a circular letter-issued by the then Law Minister and the argument covered much wider ground. It was, inter alia, contended that if primacy is not accorded to the opinion of the Chief Justice of India in the matter of appointment of Judges of High Courts and Supreme Court, the prized independence of the judiciary would become hollow and the executive would be able to impose its own nominees on the judiciary.

A comprehensive analysis of the power of appointment of Judges in various democracies was undertaken. It was held by the majority that there is hardly any country in which appointment of Judges is by nomination and not election, where the executive does not enjoy the power of selection and nomination or that the judiciary has a veto in the matter of such appointments. The conclusion, however, was that the vesting of the power of appointment in the executive without a veto of the judiciary is not subversive of the independence of the judiciary1.

1. Ibid., pp. 593-595.

1.24. Past history is usually looked into because it is often said that it sheds light for future path-finder. One additional reason for looking at the past is the usual human tendency to develop gradualism by providing continuity. Therefore, it is now necessary to look at the historical evolution of the method of appointment of Judges of the superior judiciary in India under the colonial masters and reach the stage where the Constituent Assembly forged the present set of provisions for selecting manpower for judiciary.