Report No. 14
11. Working of the procedure.-
We understand that the constitutional procedure prescribed by Article 217 is worked administratively in the following manner:
The Chief Justice forwards his recommendation to the Chief Minister who in his turn forwards this recommendation in consultation with the Governor to the Minister of Home Affairs in the Central Government. If, however, the Chief Minister does not agree with the recommendation of the Chief Justice, he makes his own recommendation. It appears that in such a case, the Chief Justice is given an opportunity for making his comments on the recommendation made by the Chief Minister.
This practice is not, however, invariably followed, so that, in some cases it happens that the recommendation made by the Chief Minister does not come to the knowledge of the Chief Justice. The rival recommendations are then forwarded to the Minister of Home Affairs who, in consultation with the Chief Justice of India, advises the President as to the selection to be made. The person recommended by the Chief Minister may be, and occasionally is, selected in preference to the person recommended by the Chief Justice.
12. Difficult position of the Chief Justice.-
It is obvious that this procedure places the Chief Justice in an extremely awkward position. Though he is expected to be responsible for the transaction of the judicial business of his Court by Judges possessing appropriate qualifications, the procedure in force results, at times, in the rejection of the persons recommended by him and the appointment instead of another person whom he considers unsuitable. A Chief Justice may thus find such a person appointed for a judgeship of his Court at the instance of the local executive and against his own preference. He may be put in the position of having to carry on the work of the Court with Judges who are incapable of rendering proper assistance or are otherwise unsuitable.
The position would be further aggravated by the knowledge of the newly appointed judge that he has been appointed to the bench by the executive against the recommendation of the Chief Justice. The effect of such a situation or even the possibility of such a situation arising, naturally weighs upon the mind of the Chief Justice in making his recommendation. It may well deter him from recommending someone whom he has reasons to know the executive will not favour or lead him to recommend someone who, he believes, would be acceptable to the executive.
13. Selections made with the concurrence of the Chief Justice.-
The figures made available by the Home Ministry to us, however, show that in the vast majority of cases, the Chief Justices of the various High Courts have concurred in the appointments made to the High Courts after 1950. How is it then that the Chief Justice of the High Courts have happened to agree to the appointment of the unsatisfactory personnel of which, as stated above, we have indubitable evidence?
14. A possible explanation.-
The explanation, perhaps, lies in what has been stated to us by the Chief Justice of India.
"In olden days in the matter of the appointment of High Court Judges, the Chief Justice of the High Court had a preponderating voice and generally speaking, the recommendations made by him, as the person responsible for the working of the High Court, used to find support of the Governor, who in such matters could act in his individual discretion. Now, the Governor has to be guided by his Ministers and it is usually felt that nowadays the Chief Minister thinks that it is his privilege to distribute patronage and that his recommendations should be the determining factor.
The voice of the Chief Justice is not half as effective as it was in the past. Indeed, instances are known where the recommendation of the Chief Justice has been ignored and overruled and that of the Chief Minister has prevailed. This unedifying prospect has brought about some demoralisation in the minds of the Chief Justices and therefore before making their recommendations they ascertain the views of the Chief Minister so as to be sure that the recommendation to be made by him, the Chief Justice, will eventually go through, and he will be spared the discomfiture and loss of prestige in having his nomination unceremoniously turned down.
The Chief Minister now has a hand, direct or indirect, in the matter of the appointment to the High Court Bench. The inevitable result has been that the High Court appointments are not always made on merit but on extraneous considerations of community, caste, political affiliations and likes and dislikes have a free play. This necessarily encourages canvassing which, I am sorry to say, has become the order of the day.
The Chief Minister holding a political office dependent on the goodwill of his party followers may well be induced to listen and give way to canvassing. The Chief Justice, on the other hand, does not hold his office on sufferance of any party and he knows the advocates and their merits and demerits and a recommendation by the Chief Justice is, therefore, more likely to be on merit alone than the one made by the Chief Minister who may know nothing about the comparative legal acumen of the advocates."
A Judge of the Supreme Court has stated as follows:-
"The methods of selection also make for a lowering of morale and standards. The habit of touting for high judicial office and producing chits and recommendations from this person of influence and that and of carrying back-stair intrigue for appointments is growing and is, to my mind, revolting and dangerous. Also political considerations, and worse, are creeping in and Chief Justices are finding it increasingly difficult to resist this sort of pressure. That ought to be stopped forthwith."
A Judge of a High Court has stated:,
"If the State Ministry (Minister in the State Government) continues to have a powerful voice in the matter, in my opinion, in ten years' time, or so when the last of the Judges appointed under the old system will have disappeared, the independence of the judiciary will have disappeared and the High Courts will be filled with Judges who owe their appointments to politicians."
This indeed is a dismal picture and would seem to show that the atmosphere of communalism, regionalism and political patronage, have in a considerable measure influenced appointments to the High Court Judiciary.
15. Prevalence of canvassing.-
Apart from this very disquieting feature, the prevalence of canvassing for judgeships is also a distressing development. Formerly, a member of the Bar was invited to accept a judgeship and he considered it a great privilege and honour. Within a few years of Independence, however, the judgeship of a High Court seems to have become a post to be worked and canvassed for.
16. Procedure in certain States.-
The Chief Justice of a High Court outlined to us the procedure followed in his State in regard to the selection of High Court Judges. According to him, the question is first discussed at a meeting between the Chief Justice and the Chief Minister during which the Chief Justice suggests names and the Chief Minister gives his opinion on the proposal. Thereafter, some discussion takes place and an informal understanding is reached between the two before formal proposals are sent up.
He stated that from his experience of such conferences, it was clear that political and communal considerations did affect the mind of the executive at the time of the discussion of the names. We have no doubt that in other States, a somewhat similar procedure is followed before the making of a formal recommendation by the Chief Justice. It is not surprising therefore that the concurrence of the Chief Justice has been obtained to many unsatisfactory appointments. In substance, having regard to the position in which he is placed, the Chief Justice surrenders his better judgment and yields to the wishes of the Chief Minister.
17. Role of the State executive consultation necessary (State Governments not to make rival nominations).-
This is a grave state of affairs and it is for consideration whether it is advisable and practicable to prevent altogether the State executive from having a voice in the selection of the High Court Judges. It has been stressed upon us by a large body of opinion that consultation with the Governor provided by Article 217 should be omitted. We have given very anxious consideration to this matter and feel that it will not be right to recommend that the State executive should not be consulted in the matter of appointments. It must be remembered that the appointment to a judgeship is made by the President who is himself the head of the executive.
The High Court is the highest judicial organ of the State and it is the State exchequer which pays for its maintenance. It would, therefore, be unreasonable not to allow the State executive to express its views with reference to a person recommended for judgeship by the Chief Justice of the State High Court. While the Chief Justice would be the most competent person to evaluate the merit and efficiency of a person recommended, there may be, and frequently are, other matters relating to the person recommended which the State executive alone would be in a position to know and of which they may inform the Chief Justice.
It may be that the local position of the person proposed, his character and integrity, his affiliations and the like, which may have a considerable bearing upon his efficient functioning as a Judge may not all be within the knowledge of the Chief Justice. For these reasons, it seems to us reasonable and necessary that where the Chief Justice recommends as person for a judgeship, the State executive should have an opportunity to offer its comments upon that recommendation. It appears to us however, that it should be left to the Chief Justice on whom lies the responsibility of the efficient working of the Court to determine whether or not a person is competent to be a Judge or from which of the sources recognised by the Constitution a judge should be drawn to fill a particular vacancy.
The consultation with the local executive and the information which it may supply should be limited to other factors such as we have mentioned above. We are also clearly of the view that it should not be open to the State executive to propose a nominee of their own and forward the name of such nominee to the Centre. If the State executive disagrees with the recommendation of the Chief Justice by reason of the nature mentioned above, it should be open to it to disagree with the recommendation and request the Chief Justice to make a fresh recommendation.
18. Steps to avoid delay.-
In order to avoid delays it would be advisable that the Chief Justice of the State should forward direct to the Chief Justice of India a copy of the recommendation made by him to the executive of the State.
19. Recommendation of the Chief Justice to be necessary for appointments.-
Having regard to what has been stated above, it is in our view very essential, that the hands of the Chief Justice in making his recommendation should be strengthened. Instead of the constitutional provision requiring a consultation with the Chief Justice in the matter of the appointment of Judges, it should require an appointment of a judge being made on the recommendation of the Chief Justice of the State. If the Chief Justice is assured that no appointment can be made unless he recommends the person, the fear which the Chief Justice at present has of executive interference and the tendency to enter into compromise with the executive which have been noticed above will disappear.
20. An additional safeguard (Concurrence of the Chief Justice of India essential).-
It may be asked whether the acceptance of this suggestion will not place the Chief Justice in a dominating position, able as it were, to dictate in regard to the person to be appointed and lead to arbitrary and even capricious appointments by the Chief Justice. It may be urged that Chief Justices may also be moved on occasions by considerations of communalism and favouritism.
In order to avoid contingencies of that character, we further propose, that the constitutional provision should be amended so as to require not merely consultation with the Chief Justice of India but his concurrence in the proposed appointment. The Chief Justice of India would naturally keep himself informed about persons suitable for appointment to the Bench at the Bar as well as in the Services and will be in a position to prevent unsatisfactory appointments being made on the recommendation of the Chief Justices of the States if ever such occasions arise.
21. Effect of proposed changes.-
The changes we propose have the effect of placing the State executive in the position, as it were, of informing the Chief Justice of the State and the Chief Justice of India of their views about the proposed nominee but leaving the responsibility of the appointment squarely on the shoulders of the Chief Justices of the State and the Chief Justice of India. This, it appears to us, is necessary. As pointed out earlier, the responsibility for the efficient working of the High Court rests on the Chief Justice of the Court and it should not be possible to thrust upon him a colleague whom he does not consider to be sufficiently equipped.
22. Constitutional amendment recommended.-
The relevant portion of Article 217 would in the light of the amendments we have suggested read as follows:
"217. (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Governor of the State and with the concurrence of the Chief Justice of India, and in the case of appointment of a Judge other than the Chief Justice on the recommendation of Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty years."
23. Appointment of Chief Justice.-
It may be convenient to deal at this stage with the manner of appointment of Chief Justices of the State High Courts, particularly having regard to the increased responsibility which will devolve on the Chief Justice under the proposed constitutional amendment.
24. Importance of the office.-
In dealing with the question of the appointment of the Chief Justice of the Supreme Court, we have already made reference to the importance of a Chief Justice in a Court and the qualifications, personality and independence of outlook required by a person occupying the office of the Chief Justice. A great deal of what has been stated there applied to the Chief Justices of the State High Courts.
25. Present practice unsatisfactory (Consequences).-
At present it has become almost a matter of routine for the senior-most puisne Judge to become the Chief Justice of the State High Court on the retirement of the Chief Justice. It is obvious that the senior-most puisne Judge, even though a very competent judge, may not be suitable for being appointed a Chief Justice. A Chief Justice of the Court needs, apart from judicial competence, administrative ability and a personality so as to be able to assess and regulate the subordinate judiciary and win the regard of the executive.
In our view, therefore, on every vacancy occurring in the office of the Chief Justice, the question of a fit successor should be examined by the Chief Justice of India in the light at the qualifications needed. The senior-most puisne judge should succeed to the office only if he has the necessary qualifications. It is easy to visualize the difficulties which would arise in the event of an incompetent senior-most puisne Judge being appointed Chief Justice. The Chief Justice will not have the confidence and respect of • this puisne Judges and the Court will lack cohesion.
There will be absence of team work which is essential to efficiency and dispatch and it may well happen that there may be conflicts between the Judges of the Court. We have in the course of our inquiry come across at least two instances of High Courts, in which these conditions have arisen by reason of the appointment of the senior-most puisne Judge as Chief Justice. We feel therefore that the Constitution should provide for the concurrence of the Chief Justice of India in the appointment of the Chief Justice of High Court.
26. Chief Justice from outside the Stat.- The case for.-
A large body of evidence before us has suggested, that it should be made an invariable practice to fill a vacancy in the office of Chief Justice by appointing a judge from outside the State. Such course, it is said, will have the advantage of giving the Chief Justice of India a wide choice in recommending a person suitable for that office. It has also been pressed upon us that bringing a Chief Justice from outside the State will have a very healthy influence, in that, it will promote a sense of unity in the country and prevent the Chief Justice being swayed by local connections and local influences.
It may be mentioned that Chief Justices from outside the State have been appointed in some of the States and these appointments have proved a success. Though the analogy may not be very pertinent, we may refer to the practice of appointing Governors who do not belong to the State, which has been in vogue since the advent of the Constitution.
27. The case against.-
On the other hand it has been urged with considerable force, that it would not be fair, that competent persons on the Bench of the State High Court should be shut out from the chance of occupying the office of the Chief Justice in their own States. It has also been pointed out that the proposed practice may prevent members of the Bar from accepting appointments as judges, the opportunity of serving as Chief Justices in their own States being denied to them.
28. No inflexible rule but may be desirable.-
On the whole we are of the view, that it would be difficult to lay down such an inflexible practice. It should, we think, be clearly understood, that the senior-most puisne judge of a Court, should not merely by reason of his seniority have an expectation of succeeding to the office of the Chief Justice. In every case of a vacancy in the office of the Chief Justice, the senior puisne judge should be appointed to the office, only if he has the necessary qualifications. Indeed the Chief Justice of India may well bear in mind the desirability of appointing a Chief Justice from outside the State by reason of the consideration we have mentioned. Even in cases where the senior-most puisne judge is fit to occupy the office, it would be doing no injustice to him to leave him out and appoint him to a similar office in another State.
29. Difficulty of recruiting from the Bar.-
An important cause of the fall in the standards of the High Court judiciary which is undoubtedly responsible in a measure for the accumulation of arrears is said to be the difficulty of inducing members of the Bar to accept judgeships. The Bar must remain, as it has been for over a century and more, the main recruiting ground for the High Court Bench. Conditions, therefore, which make recruitment from the Bar difficult must, if we were to maintain the standards of the bench, be altered. The difficulty of inducing the leading members of the Bar to accept seats on the Bench was noticed by the Chief Justice of India in his speech at the inauguration of the Supreme Court. He said:
"Over thirty years ago the offer of a judgeship to a member of the Bar was considered a high honour and the culminating apex of his career as a lawyer. A judge was respected by the people and by the Government. His position and status were recognised in all spheres. In those days every one's attitude towards the Court was of adoration and almost of worship. That honour and the life of comparative ease were considered sufficient compensation to balance the financial loss which a good practitioner suffered by accepting a judgeship.
Unfortunately, during the last twenty years, that respect for position, status and dignity of the judge has not been fully maintained. Without any compensatory benefit or advantage it is difficult to persuade a good practitioner to accept a judgeship. We hope and trust that with the inauguration of the Republic the honour due to the position and status of a judge of a High Court and Supreme Court will be fully restored. Unless leading members of the Bar accept judgeships, it will be difficult to strengthen the Bench and the hopes of producing great judges may not be realised."1
1. 1950 SCR.
30. Decline in respect for the judiciary.-
The hopes expressed by the Chief Justice of India have not been realised. In the opening years of the Republic views were expressed by important persons which led to an impression in the public mind that judges, law courts and lawyers were superfluous institutions which hindered the progress of the social welfare State, which is the ideal of our Constitution. These views were repeated in some of the States by persons of lesser importance. Thus, instead of appreciating the more important role, which law and those administering it must play in a democratic social welfare State the public came to look down upon law, lawyers and those holding judicial office and regard them as obstacles to the progress of the nation. Indeed not infrequently, judicial pronouncements were treated with scant respect and commented upon in assemblies and public platforms.
We specifically invited opinion on the question whether, among other causes, the decline in the standards of the High Court judiciary was due to decreasing respect in Governmental circles for the lawyer and for the judicial office. The almost universal view is that the way in which the lawyer and the judicial office are looked upon in Governmental circles has been the undoubted cause not only of the refusal of leading members of the Bar to accept judicial office but also of a demoralisation and a loss of self-respect in the judiciary itself, which has led to a decline in the efficiency of their work. A Judge of the Supreme Court has described how the judiciary has been affected:
"The first (namely, decreasing respect in Governmental circles) is purely psychological but is important. When men are looked up to and respected, they rise to the occasion and live up to the expectations required of them. But, if they are constantly sneered at and pushed aside while some worthless self-serving demagogue with nothing like their erudition and learning is fulsomely workshipped (until he is set aside by another), a feeling of disgust for high office is naturally engendered and find it difficult to put forth their finest effort under these conditions."
A distinguished member of the Bar expressed himself thus:
"Whatever may happen to the future of the High Court, Government should see to it that they do nothing which may bring the High Court into disrepute I do not want even the highest in the land to throw aspersions on the High Court or the Supreme Court. And once it is done, perhaps, the contagion, would spread and the respect that we demand from every one will not be available to the High Court No observations should be made by the highest in the land to discredit the High Court in any way."
An eminent person intimately connected with judicial administration observed that "there are deeper reasons which give rise to the feeling that our High Court judiciary has considerably gone down in public estimation". After dealing with the method of appointment of High Court Judges, he stated that:
"There is an insidious and calculated attempt on the part of the executive to bring down the prestige of the High Court Judges. In the old days, in all public functions, the High Court Judges used to be assigned prominent places; but now, they are hardly taken any notice of and if any notice is taken at all, they are relegated to the background. In the warrant of precedence they are gradually being demoted. In the matter of amenities they are far behind the ministers This visible deterioration of the external trappings of the office of High Court Judges has naturally, to a certain extent, affected public respect for them. All these matters have contributed to the public feeling that High Court judiciary is not what it used to be."
These extracts reflect in substance what has been said in varying ways by a large number of witnesses of status and experience.
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