APPOINTMENT OF JUDGES

Author- Mahendra Pratap Bharti, BA.LLB Student, from Gautam Buddha University, Greater Noida

Introduction

In a country, the judiciary is one of the most important organs. It is the judiciary that keeps a check on the powers conferred on different authorities under the Constitution of a nation, and it solves disputes between two citizens of the nation or between the state and the citizens. The judiciary is the most important aspect of a nation with a written foundation, such as the nation’s constitution. Courts have the power to safeguard the interests of the Constitution by interpreting its provisions and keeping a check on whether all the authorities are working under the power conferred on them. The judiciary prevents the abuse of power and maintains the principles of natural justice.

Another important aspect of the judiciary is that it should be free and independent, which means that there shall be no unnecessary restrictions on the powers of the courts. Only a free and independent judiciary can protect and safeguard the rights and interests of the citizens of a country while simultaneously keeping a check on the powers conferred to other organs of the government so that they do not abuse them.

Indian Judiciary

India, as a state, has the world’s biggest written constitution. The Constitution of India confers powers on different authorities, while on the other hand, it restricts those powers by giving the judiciary the power of judicial review. The Constitution of India guarantees powers to the state as well as rights and duties to the citizens too, so there is always a chance of clash between the rights of individuals and the powers of the state, then comes the role of the judiciary which, by interpreting the constitutional provisions, provides justice to the needy.

In India, the Indian judiciary is divided into some levels, where the Supreme Court stands at the apex and the High Courts are subordinate to it, followed by courts at the district level, which are subordinate to these High Courts.

Any court can function properly and deliver effective justice only in the presence of competent judges. This paper deals with the appointment of judges of the Supreme Court of India.

Appointment of Judges

The Constituent Assembly, while referring to the appointment of judges, argued that there shall be competent judges in the Supreme Court of India, and for achieving this, there shall be a proper and competent authority that can fairly appoint the judges because all these judges are the justice providers for society.

Now, the question is: who will appoint these judges?

There were several arguments, like that the President will appoint judges of the Supreme Court and High Courts after consulting with the Parliament of India. Also, a letter was sent to all the Chief Justices of different high courts for their opinion. And a conclusion was drawn: that –the President will appoint the judges in consultation with the Chief Justice of India and the Parliament.

Dr. Ambedkar rejected all these arguments and contended that in our country, the president is the executive head, but our executive is not mature enough, like in America, and secondly, when the President consults with the Parliament, there will be high chances of political interference in the appointments of judges. And then our basic principle that the judiciary must be free will get vitiated. Hence, he contended that the President of India will appoint judges, but in consultation with judges of SC and HCs, the Chief Justice of India must be consulted too.

Provisions related

Article 124(1) of the Indian Constitution provides the establishment of Supreme Court in India. Chief Justice of Supreme Court is known as Chief Justice of India.

Further it provides that there shall be not more than thirty-three other judges as provided by the Supreme Court (Number of Judges) Appointment Act, 2019.  

Article 124(2) provides that President will appoint the judges of the Supreme Court on the recommendation of NJAC committee given under Article 124A of the Constitution.

Article 217(1) of Constitution provides the appointment of judges of High Courts with similar condition as Article 124(2).

Article 222(1) provides that President after consulting with NJAC can transfer a judge from one High court to another.

However, there has always been controversy over the appointment of judges of the Supreme Court, but the Supreme Court has clarified the competent authority for appointment with its judgements in different cases.

The cases related with the appointment of judges are famously known as “the Three Judges Case.” Let’s understand them one by one.

• UNION OF INDIA VS SANKAL CHAND SHETH AND ANR 1977 AIR 2328

Facts 

The fact of case was that a judge, Sankalchand Sheth J., of the Gujarat High Court was transferred to Andhra Pradesh High Court by the President without his consent. Justice Sheth followed the presidential order and joined his new office yet he challenged the order of the President and claimed that there had been a misinterpretation of Article 222(1). He contended that his consent was required for the transfer, and the executive did not hold ‘effective consultation’ with the Chief Justice of India.

Judgement

The five-judge bench of the Supreme Court heard the case and held that the consultation given under Article 222(1) of the Constitution means ‘effective consultation’; it implies a process in which all the data related to the judges will be presented before the Chief Justice of India, and the CJI, after examining those data properly, will give his consultation related to that judge. However, this consultation does not mean ‘concurrence’ and the president is not bound to follow that consultation. The President has the power to transfer any judge of one high Court to another without their consent or without the concurrence and consultation of the Chief Justice of India; however, whenever the President denies the opinion of the CJI, he must give valid reasons for the same.

Analysis

This judgement raised questions about the consulting power given to CJI for the appointment and transfer of the judges. The president’s power in this matter became very broad after this judgement since he was neither bound to follow the consultation of the Chief Justice of India nor the consent of the judges who were getting transferred. A similar issue was dealt with in the next case, too.

• S P GUPTA v. UNION OF INDIA AND ANR 1981 SUPP (1) SCC 87

This case is popularly known as ‘the first judges’ case.

Facts 

The facts of this case were that in 1981, several writ petitions were filed by various advocates in different high courts. The issue of all those petitions was the same. All these petitions challenged the presidential order for the transfer of judges and the appointment of additional judges in the High Courts.

One of those petitions, was filed by SP Gupta, who was an attorney in the Allahabad High Court. He challenged the appointment of Justice Murlidhar, Justice AN Verma, and Justice N.N. Mittal as High Court additional judges.

Issue

The main issue in this case was related to the independence of the judiciary and the procedure for the appointment of judges in the higher courts.

Argument of Petitioners

The petitioner side argued the constitutional validity of the order of the central government and contended that these orders have indirectly forced the judges to give their consent to being appointed as additional judges. Another argument was that the president is bound to follow the procedure laid down in Articles 124 and 216 for the appointment of judges in consultation with the Chief Justice of India.

Judgement

Seven judges bench was hearing case, case and the majority decision by 5:2 in this case held that this court unanimously agrees with the meaning of the term consultation as given in the case of Sankalchand Sheth. The bench further stated that the word ‘consultation’ in Articles 124(1), 217(1), and 222(1) has the same meaning. The Constitution of India mandates that consultation must be based on reasonable grounds. The Chief Justice of India, while forming his opinion, must consider all the relevant factors and shall also consult with other judges before forming his opinion, The sole individual opinion of the Chief Justice of India does not forms valid ‘consultation’ as provided in the articles mentioned above.

Justice PN Bhagwati recommended that a committee be formed, just like the Australian Judicial Commission, to assist the CJI in forming his opinion so that he can provide effective consultation to the President for the appointment of judges. He observed, “It is unwise to entrust power in any significant or sensitive area to a single individual, however high or important the office, that he is occupying.”.

Analysis

The bench in this case also held that the opinion of the CJI is not binding on the President. The word ‘consultation’ does not mean ‘concurrence.’ This means that ultimate power for the appointment of judges was given to the Executive. It can be noted that the judgement was bound to have adverse effect on the independence of he judiciary. When the Executive was solely appointing the judges of the higher courts, the impartiality of the judges was very much compromised. That is why judges like PN Bhagwati have recommended the appointment of the judicial committee for the process of appointing judges of the higher courts, since giving the whole power of appointment to the executive will certainly violate the basic foundations of the Constitution, which provide that the judiciary must be independent.

• SUBHASH SHARMA v. UNION OF INDIA, 1991, AIR 631

The next case in this series is this one, however, this one is not considered part of the ‘3 judges’ case, but the judgement of this case provided a basis for the further interpretation of the term ‘consultation’ of the Chief Justice of India.

In brief, the facts of the case were that Subhash Sharma challenged the vacancy of judges in the Supreme Court. A three-judge bench of the Supreme Court expressed that primacy shall be given to the opinion of the CJI, but this issue must be dealt with by a larger bench since the judgement of SP Gupta was delivered by a bench comprising of 7 judges, and it was held there that ‘consultation’ does not mean ‘concurrence’ means that the President is not bound to follow the opinion given by the CJI, and the present bench of this court consists of 3 judges, which is incompetent to overrule the judgement delivered in the SP Gupta case.

The bench emphasised that an independent and non-political judiciary is crucial for the nation and for persevering with the essence of the constitution. By giving the whole power of the appointment to the executive, the quality and impartiality of the judiciary cannot be maintained. To maintain the independence of the judiciary, it is necessary that the appointment of judges be done without being biassed, and when the power is given to a single authority, there are high chances of bias.

The question of the process of appointing Supreme Court judges was again considered in the next case in this series.

• SUPREME COURT ADVOCATES ON RECORD ASSOCIATION VS. UNION OF INDIA AIR 1994 SC 268

This case is popularly known as ‘the second of three judges’ case. After the judgement of this case, a new body named the collegium system was adopted for the appointment of the judges of the Supreme Court and High Courts.

Facts

The brief facts of the case were that a public interest writ petition was filed in the Supreme Court by the Lawyer’s Association concerning the issues in the appointment of the judges of the Supreme Court and the High Court.

Issue

This case also dealt with the same issues as mentioned in the above cases. The Supreme Court’s 9-Judge Bench examined two main issues.

Firstly, what is the role of the Chief Justice of India in the appointment as well as transfer processes of the judges of the Supreme Court and High Courts?

Secondly, is the fixation of the number of judges in each High Court, justifiable?

Judgement

A bench of nine judges was hearing this case, and while referring to the first issue, they contended that our founding fathers of the Constitution ensured that there would be a rule of law maintained in the provisions of the Constitution, and they also ensured that the judiciary must be independent to deliver a fair and reasonable judgement, which is also effective. To maintain fairness, it is necessary that the appointment of the judges be done without being biassed and that the power is not given solely to a single authority.

They further contended that when consultation does not include concurrence, then the essence of getting the consultation with the Chief Justice of India for the appointment or the transfer of judge’s processes gets vitiated and the sole power remains in the hands of the Executive, which is very harmful for the independence and impartiality of the judiciary.

The Bench held that this ‘consultation’ with the CJI includes ‘concurrence.’ It is the duty of the CJI to give effective consultation to the President, and when he is providing an effective consultation, it should have some biding power. Along with CJI there shall be two more senior judges who will give consultation to the CJI for forming an effective opinion, and this group of CJI and two senior judges of the Supreme Court came to be known as the “collegium system.”

While dealing with the second issue, they commented that it has been provided in our Constitution to provide equal justice to everyone, and to achieve this, the judges of one court can be increased so that people can get speedier justice.

Analysis

This was the first time a committee was formed, popularly known as the ‘Collegium System’, for the appointment and transfer of judges. The Chief Justice of India, along with two senior judges of the Supreme Court, must go through all the relevant information about the candidate who is getting appointed as a judge. When this ‘collegium’ gave its consultation to the President, it was established that it should be binding on the President.

This judgement transferred the power from the executive to ‘the collegium’ for the appointment and transfer, and the judgement was necessary to maintain the impartiality and independence of the judiciary and to make sure that the rule of law is maintained in society.

• IN RE SPECIAL REFERENCE AIR 1999 SC 1

This case is known as the ‘third judge’ case of this series.

Facts 

The fact of the case was that then CJI, MM Punchi, solely made an opinion for the transfer of a few judges and gave it to the President in the form of ‘consultation.’ Now it was decided in the above case that this consultation means concurrence, and the President is bound to follow the consultation given to him. Then President, K.R. Narayan exercised the power given to him under Article 143 of the Constitution and referred the matter to the Supreme Court.

Issues

Whether the expression ‘consultation with the CJI’ in Article 217(1) includes the opinion of CJI only, or it is mandatory that the opinion of CJI must be formed in plurality of the judges?

Judgement

The eight-judge bench of the Supreme Court heard the case and contended that power is given to the CJI to give consultation to the President in the appointment or the transfer of judges’ processes. The Bench referred to the SC Advocates on Record Association v UOI [1993] Supp. 2 SCR 659, and contended that, as it has already been decided, the CJI must consult with two senior judges of the Supreme Court, and then his consultation will be binding on the President. But if he solely forms his opinion and gives consultation to the President, the essence of the judgement given in the mentioned case would get vitiated, and hence it is necessary that the CJI consult with two other judges, who are the most senior in the Supreme Court, before he forms his opinion and gives consultation to the President.

And the bench held that now this collegium will include two more senior judges. And they will collectively assist the CJI in forming his opinion.

Analysis

This judgement increased the composition of ‘the collegium system’ Earlier, only two senior judges were required to give their opinions to the CJI, but now there are a total of four senior judges who will assist the CJI in forming his opinion.

• NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC)

The government of India observed that there is opaqueness in the appointment and transfer of judges’ decisions since the power of the collegium is kind of absolute because of the decision that ‘consultation means concurrence’ and the opinion of the CJI, when formed in consultation with the ‘collegium’, is binding upon the President. To maintain the partiality, the government of India then passed an Amendment (Ninety-Ninth) Act in 2014 and added Article 124A to the Constitution, which provides that a commission, namely, the NJAC, will be constituted and will assist in the formation of the opinion of the CJI.

NJAC consists of the Collegium (CJI + 4 senior judges) + the Law Minister to the Government of India + two eminent persons. Further, these two eminent people will be nominated by a committee comprising the Prime Minister, the leader of the opposition, and the CJI himself.

This commission will help the CJI form his opinion and give consultation to the President for the appointment and transfer processes.

This amendment was challenged in the mentioned case.

• SC ADVOCATES ON RECORDS ASSOCIATION VS. UNION OF INDIA (2016) 5 SCC 1

Background and the Facts

This judgement is now popularly known as the ‘fourth judges’ case. When the Ninety-Ninth Amendment Act, 2014 was passed, the government of India replaced the collegium system with a new commission known as NJAC for the appointment processes in the higher judiciary.

There was a lot of discussion regarding transparency and accountability in the NJAC. As mentioned by Justice Lokur, this amendment and the NJAC have left open questions regarding the privacy of the candidates for the appointment as judges.

The NJAC, which was made to allow transparency in the opaque collegium system, has itself raised questions about the right to privacy of candidates. And hence, this Act was challenged in court through a PIL.

Issues

Whether the 99th Constitutional Amendment and the NJAC Act were constitutionally valid?

Judgement

The 5-judge bench was hearing the case, and with a majority of 4:1, they struck down the Amendment Act 2014 and the NJAC acts as being unconstitutional and void. The bench contended that the involvement of the executive in the appointment of the judges raises questions about the principle of separation of power between the executive and the judiciary, and the inclusion of the law minister and two eminent persons, as mentioned in the NJAC Act, raises questions about the privacy of the candidates.

They further stated that the independence of the judiciary is the basic structure of the Constitution, and to maintain this independence, it is mandatory that the power of appointment of the judges remain in the hands of the judiciary itself.

Conclusion

Over the period, there had been changes in the primacy of the appointment of judges. Earlier, the power was solely vested in the hands of the President; he was not bound by the consultation by the CJI, but when the ‘collegium system’ was introduced and it was established that consultation means concurrence, the primacy in decisions shifted from the executive to the judiciary.