Article on Argument Unheard in SCI on 30.03.2015

It has become imperative to pen this brief article because in the Supreme Court, in the Press and elsewhere, practically one side of the question whether the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 (“the said Acts”, for short) are constitutional or not and are desirable or not is being heard. The said Acts are challenged in the Supreme Court and elsewhere on the ground that if they are brought into force that will undermine the independence of judiciary; that independence of judiciary is one of the basic structures of the Constitution, inalienable. The contention that the said Acts will undermine the independence of judiciary is heard from the mouth of the most respected lawyers, the doyens of the Bar.

2. The plea that the independence of judiciary is at stake canvassed by distinguished lawyers, Fali S. Nariman, Anil Diwan, et al, purportedly representing the Supreme Court Advocates on Record Association, is, which at the first blush could be attractive, indeed, a most misconceived one. It is founded on the premise that independence of judiciary is guaranteed only when the Judges appoint themselves and where they do not enjoy an absolute say in the appointment of Judges, and instead in a new collegium where Judges constitute to be 50% and in the selection of the two eminent persons the Chief Justice of India constitutes to be a member along with the Prime Minister and the Leader of the Opposition, there is no independence of the judiciary. The necessary corollary thereof is that independence of judiciary is where Judges enjoy complete monopoly in selecting Judges and where it is not; there is no independence of judiciary. In other words, one of the basic structures of the Constitution is Judges appointing themselves.

3. The above argument, though so absurd, has not received public attention the way it demands because the bogey of independence of judiciary that Judges appointing themselves is the basic structure of the Constitution has come from the most respected voices in the legal fraternity. The system of Judges appointing themselves is the result of the judgment in Judges-2 case. The said judgment was a fraud on the Constitution; it meant rewriting of the Constitution without a Constitution amendment, without a referendum, keeping the people of this country in darkness. The background which led to the judgment in Judges-2 case is fairly well known, namely, that some effort was made by the executive to appoint Judges of their choice and if persons with political background are appointed, they are less likely to be impartial.

4. From Independence till 1993, it was the executive which appointed Judges of the higher judiciary and Judges with political background proved themselves to be the most outstanding ever – Chief Justice Mahajan, legendary Justice Krishna Iyer, Justice O.A. Chinnappa Reddy, to cite a few. In rest of the civilized world, the common laws countries, in USA too, the most outstanding Judges were with a political background, parliamentarians – Chief Justice Edward Coke, Chief Justice Marshall, Blackstone, Lord Halsbury, Felix Frankfurter, Chief Justice Holmes, to cite few. The first four decades of the Supreme Court of India when political executive appointed Judges is certainly said to be its golden era. Neither the Supreme Court nor the Law Ministry maintain any record as to the economic and social status of those appointed as the Judges of the Supreme Court and High Courts. But the data gathered by the author and his friends would indicate that since the Judges started appointing themselves, they have mostly appointed their own kith and kin; so too of big lawyers.

5. In the judgment in Judges-2 case, the Supreme Court introduced the doctrine of ‘legitimate expectation’ for elevation of a Judge as the Chief Justice of a High Court or a Judge of the Supreme Court. This meant that if a progeny of a Judge is appointed as a Judge of the High Court at the earliest possible age, say 40 years, nay, below the age of 45 years, his elevation as a Chief Justice or as a Judge of the Supreme Court, nay, even becoming the Chief Justice of India, is guaranteed. The progeny chart which the author could prepare indicates that all those who were appointed as a Judge of the High Court at the age of below 47 years are exclusively sons and sons-in-law of sitting and retired Judges. This has led to inequality among Judges, for those Judges who could secure themselves to be appointed at a young age due to their consanguinity, allowed a march over others who are not fortunate to have their immediate relatives as sitting and retired Judges.

6. The collegium system, where Judges appoint themselves, has also meant a serious injury on the concept of independence of High Courts. Prior to the collegium system coming into vogue, the office of the Chief Justice of a High Court is considered to be as important as a Judge of the Supreme Court, with the only disadvantage that the Chief Justice has to retire at the of 62 years whereas the retirement of a Judge of the Supreme Court is at the age of 65 years. Had the retirement age be the same, many Chief Justices would have remained so of the respective High Court. The collegium being invested with the power of elevation of a Chief Justice as a Judge of the supreme Court, it meant a serious dent to the independence of the office of the Chief Justice, nay, the institution of the High Court. As Justice Krishna Iyer used to lament, it has led to a new disease called “promotion sickness”, an infectious one. The Chief Justice and senior Judges of the High Courts competed with each other in not offending the senior Judges of the Supreme Court and keeping them in good humour, inviting them for various functions organized only for that purpose, as Chief Justice U.L. Bhat has lamented in his autobiography “The Story of a Chief Justice”.

7. Articles 124 and 217 of the Constitution, as originally enacted, were well thought of provisions and it did work well because eminent faces like Fali Nariman extended their voice in support of replacement of the concept of “consultation with the Chief Justice of India” with “concurrence with the Chief Justice of India”; few noticed that the judgment in Judges-2 case mean rewriting of the Constitution, which the Supreme Court had no jurisdiction to do. The weak executive, with the coalition Government at the Centre, did not have the courage to assert itself about its right to appoint Judges, and by seeking a reference under Article 143, the Government became an unwitting party to the rewriting of Articles 124 and 217. With the judgments in Judges-2 and Judges-3 cases, the judiciary usurped to itself the power of appointing Judges of the higher judiciary, reducing the role of the executive as a mere postman. The words of Lord Acton “”Power tends to corrupt, and absolute power corrupts absolutely” were proved to be correct.

8. The collegium acts in a most arbitrary and secretive manner; with its birth the concept of diversity in judicial appointment came to an end; the only concept of diversity, to some extent, was regional representation of various minorities, say, women, but those appointed as Judges below the age of 46 years, who were to become senior Judges, Chief Justices and Judges of the Supreme Court were from a narrow pool of sons, sons-in-law, nephews, daughters and brothers of retired and sitting Judges and big lawyers. The executive and the legislature took notice of the same and the aforesaid Acts are the expression of the voice of the people, speaking through their parliamentarians. The said Acts reflect the opinion of the people of the country and it meant an end to the monopoly enjoyed by the senior Judges of the Supreme Court in appointing Judges to the higher judiciary. It is difficult to imagine of a more worthy legislation which is the need of the hour, of which to find fault with is impossible. But, still, apparently at the instance of those who are uncomfortable with the loss of their monopoly in the appointment of Judges, a challenge to the aforesaid Acts is made on the plank that independence of judiciary is at peril; that independence of judiciary is one of the basic structures of the Constitution, though the euphemism that the power of Judges appointing themselves is one of the inalienable basic structure of the Constitution is noticed by none.

9. The learned Attorney General, the learned Solicitor General and the Government, though expected to come in the forefront and defend the said Acts proudly and assertively and plead that the collegium system is nothing but a fraud on the Constitution; that it meant rewriting of the Constitution; that independence of judiciary though can be a basic structure of the Constitution, it is not that Judges appointing themselves is the basic structure of the Constitution; that in the last 20 years the collegium system has produced great amount of evil and inequity and, therefore, the Acts are the need of the hour and the Government intends to bring into force the said Acts; that Rules and Regulations for implementation of the Acts are on the anvil and will advertise vacancies of Judges, invite applications from all eligible, henceforth seek references from all quarters in a transparent manner in consonance with the constitutional principle of equality in the matter of public employment etc., did not assert so. What is most manifest but is not canvassed in support of the Acts is the real independence of the judiciary in securing appointment of the most eligible and most competent candidates from as diverse a pool as possible by resort to advertisement of vacancies, open selection subject to public scrutiny of the credentials of those selected.