Report No. 121

Part II

Constitutional Provisions Relating to Judiciary

2.5. A brief resume of the constitutional provisions dealing with the question of appointment to superior judiciary would be advantageous.

2.6. Part V of the Constitution deals with the Union judiciary. Article 124 provides for the establishment and constitution of Supreme Court. Clause (2) provides that every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Court in States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.

There is a proviso which makes it obligatory to consult the Chief Justice of India in the matter of appointment of every Judge of the Supreme Court other than the Chief Justice of India. The qualifications for appointment are set out in clause (3). Clause (4) provides for removal of a Judge of the Supreme Court. Thus the power to appoint a Judge of the Supreme Court vests in the President. The President, in exercise of this executive power, will be bound by the advice given by the Council of Ministers as required by Article 74.

2.7. Chapter V in Part VI of the Constitution deals with High Courts in the States. Article 214 provides that there shall be a High Court for each State. Every such High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 217 provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.

The qualifications for being appointed as a High Court Judge are set out in clause (2). Even here, the power to appoint a Judge of the High Court vests in the President who, while exercising the executive power, will be bound by the advice tendered to him under Article 74. It is obligatory upon the President before making an appointment to consult the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court to which the selectee is to be appointed.

The consultation with the Governor of the State will imply intervention of the State executive represented by the Council of Ministers as ordained in Article 163. It would thus appear that the Chief Justice of the High Court, the Council of Ministers of the State concerned, the Governor of the State and the Chief Justice of India and the Council of Ministers at the Centre would all be involved in the process of making and finalising the appointment of a High Court Judge.

However, the scheme of the Constitution in the matter of appointment of a Judge of a High Court or a Judge of the Supreme Court clearly indicates that the power to appoint vests in the President of India who, in view of the decision in Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (2209), would be bound to act according to the advice of the Council of Ministers.

2.8. Article 124(2) of the Constitution and Article 217 confer power on the President to appoint a Judge of the Supreme Court and a Judge of the High Court respectively. Article 124(2) and Article 217(1) ensure that the Judges of the Supreme Court and the High Court shall hold office during good behaviour and can be removed only for proved misconduct or incapacity by a process analogous to impeachment.

This is in sharp contrast with the position prior to 1947, viz., that the Judges hold office during His Majesty's pleasure, even though Constitution does retain the pleasure doctrine. Article 310 provides that except where contrary is provided, all the members of the Defence Service or Civil Service of the Union or the State hold the office during the pleasure of the President or of the Governor of the State, as the case may be.

The Judges of the superior judiciary are assured a fixed tenure subject to maintaining good behaviour. The tenure, pay, pension and other conditions of service are guaranteed and cannot be altered to the disadvantage of a Judge during his tenure. More or less the judiciary is insulated against outside pressures, including one from the executive.

2.9. Having said all this, it must straight away be conceded that the power to appoint members of the superior judiciary, including the Chief Justice of India, vests in the President, i.e., the executive. Under the Constitution, position has not undergone a change at all from what it was prior to the advent of the Constitution save giving a specific role to Chief Justice of India and Chief Justice of a High Court.

The debates in the Constituent Assembly put in sharp focus whether appointment to superior judiciary except that of the Chief Justice of India should be made not in consultation with the Chief Justice of India but with his concurrence. This specific suggestion of providing for concurrence of the Chief Justice of India was specifically proposed and rejected1.

1. CAD, Vol. VIII, 230, 258.

2.10. The present situation is that ordinarily a formal proposal for filling up of a vacancy in the Supreme Court is initiated by the Chief Justice of India by recommending the name of the person considered suitable by him to the Minister of Law and Justice. If the Minister accepts the recommendation, the proposal is forwarded to the Prime Minister of India who, if he approves, advises the President to issue a formal warrant of appointment under his own signature.

Similarly, in the case of a Judge of the High Court, the formal proposal emanates from the Chief Justice of the High Court and if that is accepted by the Chief Minister of the State, the Governor of the State, the Chief Justice of India and the Minister of Law and Justice, Government of India, the same is processed and submitted to the Prime Minister of India, who, if he approves the recommendation, advises the President to issue a formal warrant of appointment.

The intervention of the Prime Minister of India is not merely formal. Cases are not unknown where even if the Minister of Law and Justice in the Government of India has accepted the recommendation, the same was not given effect to on account of the objections from the Prime Minister of India. Thus, the intervention of the Prime Minister of India1 is real and substantial.

1. H.M. Seervai Constitutional Law of India, Vol. II, 2295 (3rd Edn., 1984).

2.11. The power to make appointment to, or to grant promotion to, the post of a district judge is conferred on the Governor of the State to be exercised in consultation with the High Court of the State1. Similarly, power of appointment of a person to a post other than district judge in the judicial service of a State vests in the Governor of the State to be exercised in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State2. The Law Commission has analysed in details the power conferred by Articles 233 and 234 of the Constitution in its two earlier reports3 and, therefore, it is unnecessary to re-examine the aspect herein.

1. Article 233, The Constitution of India.

2. The Constitution of India, Article 234.

3. LCI, 116th Report; LCI, 118th Report.

2.12. The provisions, especially those dealing with recruitment to superior judiciary (Articles 124, 217 and 224) came in for a critical appraisal recently before a Bench of seven Judges of the Supreme Court1. A clear cleavage of opinion surfaced in the course of arguments. Two irreconcilable positions adopted were: (1) In the matter of appointment of Judges to High Courts and Supreme Court, the last word should be with the Chief Justice.

This position, on deeper examination, was found to be unsustainable not only because of the language in which the provisions are couched but by also inviting an external aid to construction by referring to the relevant debates in the Constituent Assembly which in terms rejected such a proposition; (2) leaving last word with the executive in the matter of appointment to superior judiciary is likely to permit the executive to pack the Judiciary with its own nominees which would not only destroy the independence of the judiciary but would be subversive of the independence of the judiciary.

Shorn of embellishment, the contention was that even though Chief Justice of India is one of the constitutional functionaries who is to be consulted in the matter of appointment, yet, by a process of interpretation with a view to consolidating the independence of judiciary, his view should be accorded primacy. On the other hand this submission was repelled by asserting that the court cannot, by a process of interpretation, read, by implication, into the provisions something which was expressly suggested and rejected.

The majority, in the face of unimpeachable evidence, rejected the contention that the view of the Chief Justice in the matter of appointment must be accorded primacy. Bhagwati, J., held that the proposal for appointment of a person as a Judge may be initiated by the Central Government or by any of the three constitutional functionaries required to be consulted and from whomsoever the proposal emanates, the other constitutional functionaries are required to be consulted in regard to it on the basis of full and identical material.2

It would 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 the said decision is based on relevant considerations and is not otherwise mala fide.3 He concluded that the opinion of each of the three constitution functionaries is entitled to equal weight and it is not possible to say that the opinion of the Chief Justice of India may have primacy over the opinions of the other two constitutional functionaries.

If the primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance, amount to concurrence, because giving primacy means that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, and that the Central Government must accept his opinion.4

It was also indicated that if the Chief Justice of India and the Chief Justice of concerned High Court were unanimous in their opinion in either confirming an additional Judge or renewing his term, the Central Government should ordinarily accept it, otherwise its decision is liable to be attacked and the burden would lie heavily on the Central Government to show that it has cogent reasons to disagree with the Chief Justice of the High Court and the Chief Justice of India.5 The majority, broadly stated, leaned in favour of this view with some marginal variations.

1. S.P. Gupta v. Union of India, 1981 Suppl SCC 87.

2. Ibid., p. 256.

3. Ibid., p. 228.

4. S.P. Gupta v. Union of India, 1981 Suppl SCC 229.

5. Ibid., p. 245.