Report No. 80

1.2. Letter of Chairman.-

On receipt of the letter, those papers were sent for and perused by the Law Commission. The Chairman of the Commission sent a letter on January 24, 1978, to the Minister of Law, Justice and Company Affairs, containing his view (with which the Member-Secretary broadly agreed) regarding various points. The views of the Chairman were incorporated in five paragraphs which read as under:

"(1) As the provisions of the Constitution stand at present, the appointment of an informal Consultative Panel in connection with the appointment of Judges of the High Courts and the Supreme Court is of doubtful constitutional validity.

(2) In case it is decided to amend the provisions of the Constitution, we must guard against putting the whole matter of appointment of Judges at large and thus open Pandora's box. The attempt should be to plug the loopholes in the present system with a view to eliminate favouritism or the impact of any political or party consideration in the matter of appointment rather than to make any radical changes. Radical changes would be necessary if we find the method, devised by our Constitution for the appointment of Judges to be basically wrong and intrinsically defective.

In case, however, we find that the scheme of our Constitution for appointment of Judges is by and large sound but some defects or lacunae have come to surface in the actual working of the scheme, in that event what would be required is not radical change but such modification as may strengthen the scheme and eliminate the defects and lacunae. As at present advised, I think that the scheme for appointment of Judges in our Constitution belongs to the latter category. By and large, the method devised for this purpose by our founding fathers was well considered. Defects, no doubt, have been noticed in the working of the scheme, but they are of such a character as can be rectified without throwing overboard the whole scheme. Efforts should, therefore, be made to rectify the defects and plug the loopholes.

(3) After we have crossed the constitutional hurdles, the appointment of the Panel referred to in the above-mentioned letter, in my opinion, i. desirable.

(4) The Panel (or whatever be the name given to it: perhaps it would be better to call it Judges Appointment Committee or Judges Appointment CoMmission) should consist of:

(a) Chief Justice of India (ex-officio);

(b) Minister of Law, Justice and Company Affairs (ex-officio); and

(c) three persons, each of whom has been Chief Justice or a Judge of the Supreme Court.

The members of the Panel in category (c) should be appointed for a period of four years. To prevent appointment of persons who have, with the passage of time, lost touch with Judges and the lawyers, the persons belonging to category (c) should be normally those who have been on the Bench of the Supreme Court within six years of their appointment on the Panel. The suggestion that those on the Panel under category (c) should consist only of retired Supreme Court Chief Justices is not feasible because this would circumscribe the choice within a very narrow limit which would perhaps be not desirable.

The sitting Chief Justice should be the Chairman of the Panel. The Panel should express its views to the Government about the suitability of persons to be appointed as Judges and Chief Justices of the High Courts and the Supreme Court. In case of any difference between the members of the Panel, the view of the majority should be considered to be the view of the Panel. The consultation with the Panel would be in addition to the present practice in accordance with the existing constitutional provisions. The consultation with the Panel would take place at the final stage before the President is advised to appoint a person.

One effect of the above proposal would be that the Chief Justice of India would come into the picture at two stages: one, earlier in accordance with the constitutional provisions and the practice prevailing at present and, second time, as Chairman of the Panel. This cannot, in the very nature of things, be helped. The Chief Justice in the meeting of the Panel can apprise the other members of facts which might have come to his notice. He might also clarify some matters. It would be open to the Panel, in case they consider it proper in any particular matter, to informally consult any of the members of the Bar, including the Attorney-General, Solicitor-General and the Advocate-General.

(5) Apart from the above, I make the following suggestions:

(i) In case of the appointment of a Judge of the High Court, the Chief Justice of the High Court, before making recommendation, should consult his two seniormost colleagues. In the communication, containing the recommendation, the Chief Justice should state that he has consulted the two seniormost colleagues and what has been the view of each of them in respect of the recommendation. Normally, a recommendation in which the two seniormost colleagues concur with the Chief Justice, should be accepted.

(ii) Similar course should be adopted in case of the appointment of a Judge of the Supreme Court.

(iii) In the matter of the appointment of the Chief Justice of the High Court, no junior Judge should normally be appointed in supersession of the seniormost Judge.

(iv) If the seniormost Judge is considered not suitable for appointment as Chief Justice, in that event, a Chief Justice or a Judge from another High Court should normally be appointed as Chief Justice.

(v) Apart from that also, we should more frequently appoint a Judge from outside as Chief Justice of the High Court. The disadvantage of this proposal is that an outsider Chief Justice would not have full knowledge about the local talent. The advantage, however, would be that he would not suffer from any personal likes or dislikes from which a local person having long association with others, might suffer. It should not also take the outsider long to acquire knowledge of the local talent. An outsider is also likely to bring greater detachment and dispassionate approach to the office of the Chief Justice. The advantages may thus outweigh the disadvantages.

(vi) We should also have a convention according to which one-third of the Judges in each High Court should be from another State. This would normally have to be done through process of initial appointments and not by transfer. It would, in the very nature of things, be a slow and gradual process and take some years before we reach the proportion.

Once the principle of having a certain percentage of persons from outside the State as Judges of the High Court is accepted, the modalities to bring about the desired result can be worked out. One suggestion can possibly be that every Chief Justice, while proposing the name of a person for appointment as High Court Judge should mention in the communication as to whether that person agrees to be appointed outside the State. In the case of District Judges proposed to be appointed, the prospect of promotion would, in most cases, be enough inducement and thus outweigh the possible inconvenience of being posted outside the State. As regards lawyers, some might consider it advantageous to be appointed outside the State so that after retirement they can resume, if they so desire, the practice in the State wherein they were practising earlier.

(vii) In the matter of appointment of Chief Justice of the Supreme Court, the normal convention should be to appoint the seniormost judge. There should be no departure from this convention unless such a course is approved by the Consultative Panel.

The above proposals, which are of a broad character, would have the effect of not only eliminating political interference in the appointment of Judges, they would also more or less do away with the possibility of any Chief Justice bringing his personal likes or dislikes into the picture."

Towards the end of his letter, the Chairman wrote:

"In case, however, the entire matter of appointment of Judges of the High Court and the Supreme Court, including the Chief Justices, is to be reopened, and it is desired that the matter be examined in detail and at greater length, in that event the matter would have to be considered in the light of the practice prevailing in different countries. The views of the Judges of the Supreme Court and the High Court as also of the members of Bar and other concerned would have to be ascertained. A detailed report can thereafter be sent in the matter. Some material for this purpose has already been collected."