Report No. 121

2.13. There is a body of opinion that the majority decision having undermined the position of Chief Justice of India in the matter of appointment to superior judiciary, further inroads have been made in the insulated walls of independence of judiciary and, to some extent, there is perceptible erosion of independence of judiciary.

It would have been an interesting case study to examine and threadbare analyse the approach of the Chief Justice of India in the matter of selection of persons for manning the superior judiciary; what was the yardstick employed; what criteria were developed in reference to which the selection was objectively made or whether it was a wholly subjective process.

It would have been equally interesting to find out whether the recommendation by the Chief Justice of India was invariably accepted in pre-Gupta period. In fact, spokesman for the Government of India, whenever an occasion arose, emphatically asserted and reiterated that every appointment was made by accepting the recommendation of the Chief Justice of India and no one has been appointed at least to the Supreme Court of India who has not been recommended by the Chief Justice of India.

2.14. Jurists and commentators on the Constitution of India expressed an opinion that by the majority view, the judiciary has suffered from self-inflicted wounds.1 An eminent jurist, who showed his disinclination to be identified, stated with a high degree of bitterness that as a matter of official courtesy and formal methodology, Government would be amply justified in asserting that every appointment to the Supreme Court of India has been made on the recommendation of the Chief Justice of India.

But how such recommendation is extorted needs in-depth examination. He also referred to the post-retirement statement of a former Chief Justice of India which bears out his statement. There is no material available to evaluate the position of the Chief Justice of India prior to the decision in S.P. Gupta's case and subsequent thereto.

But if in all these situations the appointment has been made on the recommendation of the Chief Justice of India, then it is difficult to appreciate the oft-repeated comment that not according primacy to the opinion of the Chief Justice of India, 'highest dignitary of Indian justice', has totally undermined the independence of the judiciary. To set the records straight, it is necessary to recall the evaluation of the opinion of the Chief Justice in the matter concerning judicially expressed in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831. It say:

"In all conceivable cases, consultation with the highest dignitary of Indian justice will and should be accepted by the Government of India and the court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such a sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order."2.

However, the same learned Judge, three years after the extracted assertion, observed in this very context in the case of Union of India v. Sankalehand Himatlal Sheth, (1977) 4 SCC 193 as under:

"It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the court that a case was made out for not accepting the advice of the Chief Justice of India.... of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly.".3

1. H.M. Seervai Constitutional Law of India, Vol. II, p. 2177 (3rd Edn., 1984).

2. Ibid., p. 882.

3. Ibid., p. 274.

2.16. A brief reference to the debates in the Constituent Assembly bearing on the topic would shed light on the mental processes of the Founding Fathers. Winding up the debate on the articles concerning judiciary, Dr. Ambedkar observed that:

"With regard to the question of concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have, and I think to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I, therefore, think that that is also a dangerous proposition."1

In the process, the view of Mr. B. Pokhar Saheb, who had given notice of two different amendments Nos. 1818 and 2584 providing for concurrence of the Chief Justice of India in the matter of appointment of a Judge of the Supreme Court of India and a Judge of a High Court, stood rejected. The amendment to draft Article 193 was specifically negatived.2

It would thus appear that giving primacy to the opinion of the Chief Justice of India in the matter of appointment of a Judge of the Supreme Court or a Judge of a High Court was specifically moved and rejected and what is expressly rejected cannot be read by implication. This being the constitutional position as emerging from the debates, the primary source of information, the majority leaned in favour of it.

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

2. Ibid., p. 674.

2.17. The situation, therefore, boils down to this that the Constituent Assembly itself rejected the claim for according primacy to the opinion of the Chief Justice in the matter of appointment of a Judge to the Supreme Court or a High Court; and yet the debate is going on that if unfettered power is given to the executive to select a person for appointment as a Judge of a High Court or the Supreme Court, it would be subversive of the independence of judiciary.

2.18. Having examined the relevant provisions of the Constitution and its pre-cursors, and having acquainted ourselves with the meaning and effect of those provisions as authoritatively interpreted by the highest court in the country, the stage is now reached when the outcome of the actual and practical working of the provisions may be collected and dispassionately analysed so as to appreciate whether the scheme embodied in these provisions has stood the test of time or has become irrelevant and a search for a new model is required to be made.

One should caution oneself that a search for a new model should not be readily resorted to if the scheme as in vogue framed by the founding fathers of the Constitution can still be extricated from the dross which has enveloped it or by making peripheral adjustments. Therefore, it is necessary to examine the fall out of the present system.