Judiciary of hope and aspirations

1. INTRODUCTION

Judiciary is one of the pivotal organs amongst the three organs of the State- viz. legislature, executive and judiciary. Judiciary is looked upon by the common people of the country as their saviour, the custodian of fundamental rights, as saviour of their hopes and aspirations. Unlike the other two organs, people expect a lot from the judiciary. Therefore, the judiciary is expected to remain independent and perform its task in a free and fair manner. Judiciary, being one organ of the state is as much accountable to the people of this country and courts being the institutions through which the judiciary is enabled to respond and redress the grievances of the citizens and the people, and judges being persons through whom courts function, courts and judges cannot remain insulated from public opinion nor can discard public needs and demands. This is evident from the activist approach of the Court in the recent years through the powerful tool of Public Interest Litigation, routinely made law, increasing and ensuring the transparency and accountability of executive bodies etc.

About fulfilling the public expectations by playing its role correctly, there cannot be an exception in the case of the highest court of the country- the Supreme Court of India, with regard to transparency and accountability. Judges after all should be like Caesar's wife- above all suspicion. Thus, the appointment of judges should be fair and transparent, but unfortunately that is not so. The appointment is made by the body known as Collegium, a product of judiciary itself which is secretive in nature. Its conduct in the matter of selection and appointment of judges and its secretive nature has drawn a lot of flak from all sections of the society and more so from the legal fraternity itself. The defence of collegiums, through the slender arguments of the matter being confidential and may not be conducive for the proper functioning and efficacy of the judicial system in the country, is not taken accepted/respected by the members of the public and is discarded. The legal/technical defences called in aid by the collegiums to refuse to divulge information about the manner of appointment of judges, has come in for very grave criticism and perhaps rightly so. It is claimed that to maintain a good image and the reputation of the institution, it is necessary not to divulge information leading to the recommendation and appointment of judges in the superior courts. But such an argument has very little ground in this era of accountability.

The Collegium system came under the scanner recently in light of its recommendation to appoint Justice P.D. Dinakaran, the Chief Justice of Karnataka High Court as a judge of the Supreme Court of India, who was facing acquisitions of land grabbing, disproportionate assets etc. while Justice A.P. Shah who has done a commendable job as the Chief Justice of Delhi High Court was ignored. These incidents have raised general questions about the process of selecting judges for the Supreme Court. What are the norms for selecting a judge? Are the reasons for not selecting a judge to be put down in writing? Are appointments made after consultations with the legal fraternity or do they rest on the preferences of a single individual? are some of the questions that are vexing and remain unanswered. This project aims at analyzing the working of collegium system in light of Justice Dinakaran controversy.

2. JUDGES APPOINTMENT IN INDIA

The independence of judiciary was undermined to certain extent by the Emergency. There were large scale transfers of judges during the Emergency. In fact a list of 56 Judges to be transferred without their consent was prepared. But only 16 were transferred while others were leaked in order to threaten the Court. This was challenged in the Court in Union of India v. Sankalchand Himmatlal Seth.[1] The Supreme Court struck down the action of the Union. The word ‘transfer' was given a narrow interpretation in order to maintain the independence of judiciary. The Supreme Court was called upon to safeguard the independence of judiciary from undesirable appointments and arbitrary transfers by the executive through 3 cases- popularly known as the First, Second and Third Judge's case. Thus, the mode of appointment of the judges came under the scanner for the first time.

The relevant Article for the appointment of a Supreme Court judge is Sub-clause (2) of Article 124. The said Article reads as follows:

Article 124: Establishment and Constitution of the Supreme Court

(2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold the office until he attains the age of sixty five.

Provided that in case of appointment of a Judge other than the Chief Justice , the Chief Justice of India shall always be consulted.

The relevant Article for the appointment of a High Court judge is Sub-clause 1 of Article 217. The said Article reads as follows:

Article 217: Appointment and conditions of the office of a Judge of a High Court

(1): Every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court

The appointment is thus made by the President after consultation amongst the functionaries mentioned in these Articles. The expression ‘consultation' does not mean ‘concurrence'. In the Constituent Assembly when suggestion was given that the expression should be concurrence and not consultation, it was not agreed. Dr. B.R. Ambedkar made the following comments in that regard:

“With regard to the question of the concurrence of the Chief Justice, it seem 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 is also a dangerous proposition."

FIRST JUDGE'S CASE: S.P. GUPTA v. UNION OF INDIA[2]

Controversies concerning the appointment of judges came for determination in this case. The relevant Article for appointment of a Supreme Court Judge is Sub-clause (2) of Article 124. While the relevant Article for the appointment of a High Court judge is Sub clause 1 Article 217.

In one of the lengthiest decisions ever, the Seven Judge Bench of the Supreme Court, comprising of A.C. Gupta,D.A. Desai,E.S. Venkataramiah,P.N. Bhagawati,R.S. Pathak,Syed M. Fazal AliandV.D. Tulzapurkar, JJ held that the consultation with each of the three constitutional functionaries, the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India means a full and effective consultation, which has the same meaning as under Article 222(1) namely obtaining opinion after due deliberation, placing full and identical facts and material before the person being consulted. The President could override the opinion given by the functionaries. The action of President means acting through the Council of Ministers. No primacy could be given on the opinion of Chief Justice of India. The action of the President can only be challenged on grounds of mala fide or on the grounds of extraneous considerations. The word ‘consultation' does not mean concurrence. The expression ‘concurrence' was explicitly rejected by the Constituent Assembly.[3] This made the appointment of judges transparent in the sense that the Executive is responsible to the Legislature, and through the Legislature it was accountable to the people. To this effect Bhagawati J observed at para 29:

“This is, of course, not an ideal system of appointment of Judges, but the reason why the power of appointment of Judges is left to the Executive appears to be that the Executive is responsible to the Legislature and through the Legislature, it is accountable to the people who are consumers of justice. The power of appointment of Judges is not entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not have any accountability to the people and even if any wrong or improper appointment is made, they are not liable to account to anyone for such appointment. The appointment of a Judge of a High Court or the Supreme Court does not depend merely upon the professional or functional suitability of the person concerned in terms of experience or knowledge of law though this requirement is certainly important and vital and ignoring it might result in impairment of the efficiency of administration of justice, but also on several other considerations such as honesty, integrity and general pattern of behaviour which would ensure dispassionate and objective adjudication with an open mind, free and fearless approach to matters in issue, social acceptability of the person concerned to the high Judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system. These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a Judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive. But, as pointed out above, there is a fetter placed upon the power of appointment by the requirement of consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India in case of appointment of a High Court Judge and with the Chief Justice of India in case of appointment of a Supreme Court Judge.”

This judgment was seen by many within and outside the judiciary to lend too much power to the executive arm of the Union. Independence of judiciary was already held to be a basic structure in Kesavananda Bharati v. State of Kerala.[4]

SECOND JUDGES CASE

This case is the Supreme Court Advocates on Record Assn. v. Union of India.[5] A prelude to this case was Subhash Sharma v. Union of India.[6] In that case, a 3 Judge Bench comprising of Ranganath Mishra C.J., M.N. Venkatachalliah and M.M. Punchhi JJ referred two questions namely the position of the Chief Justice of India with reference to primacy and the justiciability of fixation of Judge strength. Fixation of Judge strength was held to be non-justiciable in the First Judges case.[7] This aspect was sought a reconsideration in Subhash's case.[8] The correctness was further doubted because during the hearing of Subhash's case, the setting up of a National Judicial Commission through a Constitutional Amendment was in contemplation. After the proposed amendment the Chief Justice of India would become the Chairman of the Commission. The matter was thus placed before a larger bench.

Before moving on to an analysis of the controversial decision in the Advocates on Record case, it should be noted that of the 547 appointments to the higher judiciary in the decade ending 1993 only 7 were not in accordance with the opinion of the Chief Justice of India.[9] The Second Judges case was decided by 9 Judge Bench. The majority opinion was delivered by Verma J (on behalf of Yogeshwar Dayal, G.N. Ray, A.S.Anand and S.P. Bharucha JJ), concurred by S.Ratnavel Pandian and Kuldip Singh JJ. The minority views were of A.M.Ahmadi and M.M.Punchhi JJ (as the lordships then were). The decision overruled the First Judges Case. It was held that since the Chief Justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge and it was also necessary to eliminate political influence even at the stage of the initial appointment of a judge, the opinion of C.J.I. as a consultee would have to be final opinion which must prevail in the appointment of a judge.[10] Thus, in the matter of appointment of judges, the Chief Justice of India will not only have primacy but is determinative as well. Other conclusions were:

(1) The process of appointment of Judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub serving the constitutional purpose, so that the occasion of primary does not arise.

(2) Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; and for transfer of a Judge/Chief Justice of a High Court, the proposal had to be initiated by the Chief Justice of India. This is the manner in which proposals for appointments to the Supreme Court and the High Courts as well as for the transfers of Judges/Chief Justices of the High Courts must invariably be made.

(4) No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India.

(5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.

THE BIRTH OF COLLEGIUM

The idea of ‘collegium' was also born in this case. In fact Bhagawati J at para.29 of S.P. Gupta did make a mention of the concept of collegium. The learned judge opined:

“ We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge, The recommending authority should be more broad based and there should be consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would Invest the judicial process with significance and meaning, for the deprived and exploited sections of humanity.”

However, the exact origin to a speech delivered by Y.V. Chandrachud, CJI while inaugurating a seminar at Patna on February 26,1983 i.e. long after the decision in S.P. Gupta's case was handed down on December 30, 1981 admitted that the present procedure for selection and appointment of Judges to the superior judiciary is "outmoded" and should be "given a decent burial". In his view, the recommendation by the suggested collegium would be far more credible and acceptable than of a single individual in the narrow confines and secrecy of his chamber. Article 217(1) talks of ‘consultation with the Chief Justice of India', which meant consultation with a plurality of judges in the formation of opinion. Therefore, collegium was to be composed of Chief Justice with 2 senior most judges.

As regards the argument that the executive should have primacy since it is accountable to the people than the judiciary which is not Verma J (as he then was) opined at para 44:

“The majority view in S.P. Gupta to the effect that an executive should have primacy, since it is accountable to the people while the judiciary has no such accountability, is an easily exploded myth, a bubble which punishes on a mere touch. Accountability of the executive to the people in the matter of appointments of superior Judges has been assumed, and it does not have any real basis. There is no occasion to discuss the merits of any individual appointment in the legislature on account of the restriction imposed by Articles121[11]and211[12]of the Constitution. Experience has shown that it also does not form a part of the manifesto of any political party, and is not a matter which is, or can be, debated during the election campaign. There is thus no manner in which the assumed accountability of the executive in the matter of appointment of an individual judge can be raised, or has been raised at any time. On the other hand, in actual practice, the Chief Justice of India and the Chief Justice of the High Court, being responsible for the functioning of the courts, have to face the consequence of any unsuitable appointment which gives rise to criticism levelled by the ever vigilant Bar. That controversy is raised primarily in the courts. Similarly, the Judges of the Supreme Court and the High Courts, whose participation is involved with the Chief Justice in the functioning of the courts, and whose opinion is taken into account in the selection process, bear the consequences and become accountable. Thus, in actual practice, the real accountability in the matter of appointments of superior Judges is of the Chief Justice of India and the Chief Justices of the High Courts, and not of the executive which has always held out, as it did even at the hearing before us that, except for rare instances, the executive is guided in the matter of appointments by the opinion of the Chief Justice of India.”

THIRD JUDGES CASE

This case is Special Reference No.1 of 1998 In Re Presidential Reference. This case was a Presidential Reference on account of the action of the Chief Justice. M.M. Punchhi, the dissenting judge in the Second Judge's case became the C.J.I. in 1998. He was terribly upset with the majority opinion in the Second Judge's case. When he became the Chief Justice, he tried to get away from the ruling and in a matter of transfer of five High Court judges he made his recommendations without consulting the two senior most judges at that time, namely A.S. Anand and S.P. Bharucha JJ (as they then were)

At the onset of hearing, the Union of India through its Attorney General said that the Union of India is not seeking a review or reconsideration of the judgment in the Second Judges case.[13] The nine judge bench[14], in unanimity speaking through S.P. Bharucha J upheld the major premise of Second Judges case. It expanded the strength of the collegium from two to four. In the case of an appointment to the High Court , the recommendation shall be made in consultation with the two senior most puisne judges of the Supreme Court. Further, the strong cogent reasons do not have to be recorded for a departure from the order of seniority in respect of each senior judge of the High Court who had been passed over for the appointment to the Supreme Court. What has to be recorded is the positive reason for the recommendation.[15]If recommendations are made without consultation, they are not binding.

The term ‘consultation with the Chief Justice of India' in Arts. 217 (1) and 222(1) of the Constitution of India requires consultation with a plurality of judges in the formation of the opinion of the Chief Justice of India.[16] Though CJI has primacy in the appointment his primacy has been diluted by the fact that a requirement of consensus in the Collegium is necessary.

3. THE COLLEGIUM: ITS WORKING AND PROBLEMS

WORKING

The Collegium comprising of Chief Justice of India and four senior most judges of the Supreme Court has to be formed to render advice to the President (i.e. to the government). In making a decision as to whom that collegium should recommend, it takes into account the view that are elicited by the Chief Justice of India from the senior most Judge of the Supreme Court who comes from the same High Court as the person proposed to be recommended. It also takes into account the views of other Judges of the Supreme Court or the Chief Justices or Judges of the High Court or, indeed, members of the Bar who may also have been asked by the Chief Justice of India or on his behalf. The principal objective of the collegium is to ensure that the best available talent is brought to the Supreme Court bench. The Chief Justice of India and the senior most puisne Judges, by reason of their long tenures on the Supreme Court, are best fitted to achieve this objective. They can assess the comparative worth of possible appointees by reason of the fact that their judgments would have been the subject matter of petitions for special leave to appeal and appeals. Even where the person under consideration is a member of the Bar, he would have frequently appeared before them. In assessing comparative worth as aforestated, the collegium would have the benefit of the inputs provided by those whose views have been sought. The distinction, therefore, is between the Judges of the Supreme Court who decide, along with the Chief Justice of India, who should be recommended for appointment to the Supreme Court and the judges of the Supreme Court and others who are asked to express their views about the suitability of a possible nominee for such appointment. The view of the senior most judge (if he is not the part of the collegium) who hail from the High court where the person to be recommended as judge to Supreme Court, is functioning as judge, must be obtained in writing. The collegium must consider the following factors in recommending the judges for the appointment:

1. Merit should be the predominant consideration. On what basis the merit will be judged? Earlier judgments given by the judge, respect he commands in the legal fraternity, his legal qualifications, and any such considerations.

2. Not only that, Cogent and good reasons should berecordedfor recommending a person of outstanding merit regardless of his seniority.

3. "For recommending one of several persons of more or less equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered."

4. And any such factors may deem necessary.

The Supreme Court then prepares its recommendations, everything in writing, stating all the factors cogently and with significant reasoning. If two or more members of the collegium disagree with the names recommended, then Chief Justice of India should not persist with the recommendation. If the collegium agrees to the names, the recommendation is sent to the executive. Constitutionally, Supreme Court's recommendation is not binding on executive, so the executive may refuse to accept the candidates recommended by Supreme Court for the appointment. But government must provide genuine reason for its refusal. In case government accepts Supreme Court's recommendations, matter ends there, the judges will be appointed as recommended.

If the government refuses to appoint the person recommended by Supreme Court, the materials and information conveyed by government must be placed before the original collegium or the reconstituted one. If the collegium accepts the opinion of executive, then CJI, in his discretion, informs the person earlier recommended for his non appointment. The names recommended by executive will then be final for appointment. In case collegium refuses to reconsider the request and unanimously reiterate that the appointment of recommended candidates must be made, then, government (President) has no choice but to appoint them.

PROBLEM

In Justice Verma's view, the author of the leading opinion in the Second Judges case the current problem is not one which arises from the enormous authority given to the Supreme Court collegium by the Second Judges ruling. It is rather from the application of that judgment and dissemination of the wrong impression that once the collegium makes its recommendation, it was absolutely binding on the executive, even if the collegium's recommendation was not unanimous. Justice Verma went on to say: “….the opinion of the executive is weightier in the area of antecedents and personal character and conduct of the candidate; the power of non-appointment on this ground is expressly with the executive, notwithstanding the recommendation of the CJI; and that doubtful antecedents etc., are alone sufficient for non-appointment by the executive. The decision also holds that the opinion of the judicial collegium, if not unanimous, does not bind the executive to make the appointment.”[17] In an earlier occasion Justice Verma who wrote the lead judgement in the 2nd judges case was asked by V. Venkatesan of Frontline dated 10.10.08, “You said in one of your speeches that judicial appointments have become judicial disappointments. Do you now regret your 1993 judgments?” Justice Verma's answer was, “The 1993 judgment which holds the field, was very much misunderstood and misused. It was in that context I said that working of the judgment now for sometime is raising serious questions, which cannot be called unreasonable; therefore some kind of rethinking is necessary”.

Criticisms of functioning have come in, not only from outsider but also from personalities who have ‘insiders' in the functioning of the Supreme Court. Referring to the lack of credibility in the in house process of appointment, former Supreme Court Judge V.R.Krishna Iyer opined:

“It has often been dilatory, arbitrary and smeared by favourites. The Nine Judges Bench, in a mighty seizure of power, wrested authority to appoint…judges from the top executive to themselves by a stroke of adjudicatory self-enthronement.”

A judiciary which has total control over its own composition would have a club like outlook. Thus, judges who do not subscribe to the views of the Collegium may not be considered for appointment. For e.g. Justice A.P. Shah was not considered for elevation to the Supreme Court as he delivered landmark judgments like in Naaz Foundation Case legalizing homosexuality, in the Subhash Agarwal's case bought the office of the CJI under the ambit of the RTI, much to the displeasure of the Court. This in fact is strengthened by the fact that Justice S.H.Kapadia, one of the members of the Collegium is believed to have told the lawyers who met him that the judgments delivered by Shah was for ‘extraneous' reasons- that is considerations not germane to the case influenced the judgment. If such a ‘coterie' exists within the Collegium, it will be difficult for the good judges to make it to the Apex Court.

In prescribing the appointment to judges of the Supreme Court and the High Courts by the collegium, the Supreme Court did not realise the burden it was imposing on the collegium of selecting judges for the Supreme Court and High Courts and transferring them from one High Court to another. At any given time there are two to three vacancies in the Supreme Court, and 200 in the 22 High Courts and the transfer of a number of judges to be made. An administrative task of this magnitude must necessarily detract the judges of the collegium from their principal judicial work of hearing and deciding cases. The collegium neither has a secretariat to shoulder this burden nor an intelligence bureau to make appropriate inquiries of the competence, character and integrity of a proposed appointee. The result is the proposal for appointment of a judge like P.D. Dinakaran, who has been under the scanner, while a Judge like A.P. Shah, who is very meritorious is overlooked.

Collegium lacks the infrastructural backup and thus resorts to ad hoc informal consultations with other judges in the Supreme Court who are expected to know the merits of a proposed appointee from a High Court or occasionally by sounding a member of the Bar. These methods are poor substitutes for a full time intensive collection of data about an incumbent, his work, standing, merit, integrity and potential which requires to be made considerably in advance for filing in the vacancy. Besides, the collegium's deliberations are secret, the system is opaque and the choice of a judge is only known when his name is forwarded to the Government for formal appointment. The collegium has necessarily limited its field of choice to the senior-most judges from the High Court for the appointments to the Supreme Court, overlooking the several talented junior judges in the High Courts or members of the bar. Limiting the zone of selection to senior-most judges of the High Court has induced legitimate expectations in them to be promoted to the Supreme Court and consequent disappointment when they are overlooked.

With regard to appointments, the Supreme Court's judgments in the Second and Third Judges Cases, according to observers, paved the way for several wrong appointments. With the Collegium's deliberations shrouded in secrecy, it was inconceivable that any wrong recommendation of the collegium would come to public notice. There is a gap of six to 10 weeks which can stretch up to a maximum of 16 weeks, if there is disagreement among members of the collegium between the government's receipt of a proposal from the CJI and the actual appointment of a judge. But this period is almost always rushed through, with little public transparency over the written opinions of the members of the collegium. The 1993 judgment makes these opinions non-justiciable but non-disclosable to the public.

To be fair to the present collegium of the Supreme Court it has inherited a system with these limitations given to them by the two judgments of the Supreme Court. With the best effort and good faith the collegium suffers from institutional handicaps in its selection.

4. P.D. DINAKARAN CONTROVERSEY

The Supreme Court collegium for the first time was forced to withdraw a name it recommended for the first time in the case of Karnataka High Court Chief Justice P.D. Dinakaran. The Dinakaran saga began following the recommendation of his name, The Forum for Judicial Accountability (FJA), of which R. Vaigai, an advocate in Chennai, is the convener, received information about certain allegations against him. The allegations related to land-grabbing, acquisition of assets disproportionate to known sources of income and abuse of office. A written complaint was made to the CJI and later additional materials were submitted on the same. The FJA's investigation revealed that the encroachment of government land and public property meant for the villagers deprived them of their resources and livelihood. The encroached area includes the government Anadhinam land, meant to be assigned only to landless poor for small holdings and personal cultivation, and poromboke land, which is meant for all residents and cannot be occupied by any individual. Under a recent scheme of the State government, they can be distributed only to the landless poor.

The investigation found that the encroachment also extended to water bodies such as lakes, canals and streams, to common village pathways and to an ancient mud fortress abutting his patta land. Access to the water source for the village was also restricted by the extensive use of water for the judge's farm, the investigation found. The erection of a fence around the encroached property deprived the local residents of access to common property resources of the village, on which many of them depended for their livelihood. According to the FJA, Justice Dinakaran is in possession of approximately 440 acres in the village alone, almost one-fourth of the village.

In light of such serious allegations and widespread criticism from the Bar and Bench, the Collegium was forced to withdraw the name of P.D. Dinakaran. The writer is of the view that the Collegium's face saving action was right as once the CJI has made a recommendation the Executive is bound by it and he has to be appointed. After appointment, the removal of a judge, as per the Constitution is a cumbersome process which is tough to carry through. More importantly, Judge's should be above all suspicion. Hence, not one bad robe should be allowed to tarnish such a great institution.

WAS CONSULTATION PROPER IN DINAKARAN'S CASE?

The majority opinion in the Second and Third Judges Case meant consultation by the Chief Justice with the senior most Judge of the Supreme Court who comes from the same High Court as the person proposed to be recommended.[18]In Dinakaran's case, the Collegium sought the views of Justice R.V. Raveendran, the senior-most judge of the Supreme Court who served in the Karnataka High Court, before recommending Justice Dinakaran. But the spirit of the judgment would have required a much wider consultation with senior judges who might have been familiar with Justice Dinakaran's long tenure in the Madras High Court. In that sense consultation should have been made with Markandey Katju and Ashok Kumar Ganguly JJ who were the Chief Justices of Madras High Court where Dinakaran served. Hence, in the matter of recommendation of Justice Dinakaran the procedure was not proper.[19] Mr. Prashant Bhushan, Senior Supreme Court lawyer has also given the same view.[20]

THE PRESENT & FUTURE OF DINAKARAN

The impeachment proceedings against Justice Dinakaran started immediately after his name was dropped by the Collegium. Rajya Sabha chairman, who is the Vice Preident of India, Hamid Ansari has set up a statutory three-member panel and the government is working on a notification to activate the Judges Inquiry Act. Supreme Court judge, Justice V.S. Sirpurkar will head the panel that will have Andhra Pradesh high court chief justice AR Dave and noted constitutional lawyer PP Rao. “I hope the inquiry panel will take maximum three months to complete the inquiry and thereafter, submit its report to the Rajya Sabha chairman,” says a member of the panel on condition of anonymity. It is said that Justice Dinakaran will contest the charges, unlike Supreme Court judge, justice V Ramasami, who watched the proceedings from outside while an interested MP Krishnamani had put up a proxy defence on his behalf.

In Justice Dinakaran's case, however, there is a likelihood of three sets of lawyers appearing before the panel: the panel's lawyer, complainants' lawyers, and justice Dinakaran's lawyer. Despite the initiation of impeachment proceedings the Collegium in the first week of April made a recommendation to move Justice Dinakaran from the Karnataka High Court to the Sikkim High Court. The Sikkim Bar has opposed it strongly. This is in the light of the fact that Justice Dinakaran has refused to go on leave. On that issue the Law Minister Veerappa Moily commented: "The hand of law is quite long enough to catch anyone. I don't think Justice Dinarakan is above the law, or he is beyond the reach of the law." Despite these developments, it is suspicious that the Collegium is still persisting with the name of Dinakaran.

Dinakaran issue has raised interesting question on the collegium system. Having discussed, the concept of Collegium and wide criticism that arose in the Second Judges case, the writer now proceeds on to why the Second Judges Case should be reconsidered and an alternative mode of appointment should be considered.

5. WHY SECOND JUDGES CASE REQUIRES RECONSIDERATION?

Ever since the controversial decision in the Second Judges Case has come, it has invited huge criticisms from the Bench and the Bar. The concluding lines of the judgment by M.M. Punchhi J (as he then was) were skeptic- “Was it worth it?”[21] H.M. Seervai, a doyen of Indian Constitutional Law in his classic ‘Constitutional Law of India' 4th Ed. 3rd Vol. p.2928 has called the decision as a ‘fatally flawed decision'. The crucial question that falls for consideration is whether the independence of judiciary enshrined in Article 50 was given a proper interpretation or not. This is necessary in the sense that much of the controversy surrounding that decision arose out of this question. Independence of judiciary is a wider concept which implies independence from any pressure or prejudice and fearlessness from any centre of power.[22] So, in the case of appointment of judges by the Executive (pre Second Judges case) does there exist any pressure or prejudice and fearlessness on the judiciary. The writer does not think so. Of the appointments made by the Executive only few were not in consonance with the opinion of the CJI. More importantly Article 50 is a Directive Principle of State Policy (DPSP) which gives a mere directive. Thus a law can be passed which disregards the directive in Article 50 and such a law has been held to be valid.[23] Thus, the view to that extent is not good.

The judgment in Second Judges case was a high level of judicial creativity. In the name of securing independence of judiciary, it rewrote the entire constitutional provisions with regard to the appointment of judges. The High Court judges, who figure as consultees in the appointment of a Supreme Court judge in Article 214(2) has no role in the new set up. By giving primacy to the opinion of the CJI in the matter of appointment of judges, the expression ‘consultation' has become ‘concurrence' something that was explicitly rejected in the Constituent Assembly by B.R.Ambedkar. Constitutional Assembly Debates were thus disregarded. In such a case ‘the integrated participatory consultative process' as said in the Conclusions by Verma J at para. 508 stands in conflict with Conclusion 7 which says CJI has not just primacy but is determinative. Expressing his amazement at the interpretation to the Constitution Lord Cooke of Thorndon said:

“The majority of the Court may have gone too far, if their conclusions be viewed as an interpretation of the Constitution intended to be binding in law. However, vulnerable in detail, it will surely always be seen as a dramatic event in the international history of jurisprudence.”

M.M. Punchhi and A.M.Ahmadi, the dissenting voices have also expressed their disagreement with the majority in virtually rewriting the Constitution to assign a role to the Chief Justice which was never intended by the Constitution makers. Punchhi vehemently criticized this rewriting in para 533[24] of the judgment as follows:

“I also disagree, likewise, in the creation of and vesting of powers assumed, in the hands of the oligarchy representing the judiciary as a whole created by adding words to the Constitution by interpretative exercise so to silence the singular voice of the Chief Justice of India of ever. I also disagree to the denial of judicial review on the subject on the supposition that it would be the judiciary's act, as that is against the basic structure of the Constitution. Subject to the views afore-expressed, I am, by and large, in respectful agreement with the opinion of my learned brother Ahmadi, J. Necessarily and squally, save to the views afore-expressed by me, I am in respectful disagreement with the view of my learned brethren Pandian and Kuldip Singh, JJ. since they are supportive of the majority view, save and except where their views accord with mine and that of brother Ahmadi, J.”

The decision delivered in the Second Judges was without any consent among the judges. It is well understood from the following lines by M.M. Punchhi J at para. 512:

“This nine-Judge Bench sat from April 7, 1993, to hear this momentous matter concluding its hearing on May 11, 1993, close to the onset of the summer vacation. I entertained the belief that we all, after July 12.1993, on the re-opening of the Court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court. I was indeed overtaken when I received the draft opinion dated June 14, 1993 authored by my learned, brother J.S. Verma, J. for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S.Anand and S.P. Bharucha, JJ. The fait accompli appeared a stark reality; the majority opinion an accomplishment. The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated August 24, 1993 of my learned brother Ahmadi, J. like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brethren Kuldip Singh and Pandian, JJ, dated September 7, 1993 and September 9, 1993 respectively. No meaningful meeting thereafter was possible as the views by that time seemed to have been polarized. So now the firm opinions of the eight brethren, as communicated are known to me. Loaded with these opinions I set out to express my own, more as a duty to the venture embarked upon, for I owe it immeasurably, for being party to the referral.”

The judgment is thus per incuriam. It is violative of Article 145 (4) and (5) as it was arrived without consensus among the judges.

In 2006, the Parliamentary Standing Committee also proposed to give away with this outmoded technique of appointment. Further, the Law Commission in its 214th Report has made a proposal for the reconsideration of the decision in the Judges case. The Government has accepted a Parliamentary Panel's recommendation to scrap the present procedure for appointments and transfers of Supreme Court and High Court judges. The Law Ministry has also agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law & Justice recommended doing away with the collegium. Presently, the collegium decides the appointments and transfers of judge.[25]

6. ALTERNATIVE WAY FORWARD

Having discussed on the need for reconsidering the judgment in the Second Judges case, the question is of suggesting an alternative way forward. The question thus essentially is whether the pre Second Judges position be restored or not. It is not a foolproof system but nevertheless had openness. The 121st Report of the Law Commission in 1986 under D.A. Desai had highlighted this fact that executive always had the last word in the appointment of judges. So, in India we had an Executive dominance in the appointment of judges. But the Constitution makers were wise enough to ensure that Executive will not over dominate and threaten the independence of judiciary by putting the word ‘consultation' in the appointment of judges. Prior to the Second Judges Case in 1993, as a matter of convention the government always consulted the Chief Justice of India in the appointment of judges and there were only a few appointments without the concurrence of the Chief Justice of India. The period of the Emergency was an exception. The ablest judges appointed to the Supreme Court were by appointments made prior to the collegium system. It is hard to understand the necessity to overturn the Constitution's prescription by the Supreme Court in this manner. With the best effort and good faith the collegium suffers from institutional handicaps in its selection. For that it is today easily pilloried by critics for making wrong choices or overlooking the right persons. Conscious of the criticism of the collegium system the CJI, K.G. Balakrishnan has said that until the system is changed he is bound by the two judgments. It is ironical that those who created the collegium and argued in favour of vesting the power of appointment in judges today find faults in the working of the system.[26] Thus an alternative way is necessary.

Our Constitutional law principles have always placed a good degree of reliance in the American and British principles. So, it is necessary in brief to know how judges are appointed in the U.S. and the U.K.

United States of America.

The appointment of judges to the U.S. Supreme Court is transparent. It is made by the President who initiates the proposal and it is for the Senate to decide whether to accept it or not after full discussion. The President often suggests the name of a person belonging to his political party for the post. The nominee of the President has to appear before the Senate who is thoroughly grilled and cross examined as to his academic achievement, social background and political ideology. Often a Counsel appears for the nominate judge. Though the process is executive ridden its openness and transparency mitigates the evil of the American process. It is most humbly submitted that such a system is not practicable in India in the sense that the executive is not that highly qualified enough to ensure that the suitable candidates will be appointed as Judges.

United Kingdom

The system of appointment of judges has undergone a historic change in Britain in the year 2007. Formerly, the Lord Chancellor had a decisive role in the process of appointments, making recommendations for appointment to The Queen or on her behalf, or in the case of the most senior appointments to the Prime Minister who in turn advised The Queen. The Lord Chancellor had a high level of autonomy over the recommendations, selecting those to be recommended following confidential, informal discussions with the senior judiciary. This was largely a closed system. However, in 2005 the Constitutional Reform Act (CRA) was passed which led to the reformation of the system of appointing judges. While the Lord Chancellor retains an important role, the Act set up a new, independent body, the Judicial Appointments Commission, (JAC), which now has key responsibility for selecting judges, and ensures that there is a system of checks and balances in place aimed at ensuring that UK will have a high quality, independent judiciary appointed solely on merit.

The Judicial Appointments Commission consists of fifteen Commissioners, with a lay chair, five judicial members, two members from the legal professions, five lay members, a tribunal office holder, and a magistrate. The Commissioners are appointed by The Queen on the advice of the Lord Chancellor in accordance with the provisions of the Act. The appointment process is also regulated by an Independent Commissioner for Public Appointments who ensures an open and transparent process and guarantees that appointments are made on merit. The Lord Chancellor must give reasons in writing for rejecting a selection. The Judicial Appointments & Conduct Ombudsman (JACO) will investigate into the complaints in judicial appointments process. The Supreme Court Judges are appointed by the Queen on the recommendation of the Prime Minister after a process of selection carried out by an Independent selection panel, convened by the Lord Chancellor in accordance with Schedule 8 of the Constitutional Reform Act. They are transparent in their working even to the extent that applications are invited by public advertisement, as was the case when judges were appointed to the new Supreme Court of the U.K. recently. Such Commissions have worked with success in other Commonwealth countries such as Canada, South Africa etc.

7. NATIONAL JUDICIAL COMMISSION: AN ALTERNATIVE TO COLLEGIUM

The Dinakaran episode, A.P.Shah's non elevation etc. have raised huge question marks on the future of Collegium. The writer has already discussed the need to reconsider the Second Judges case and therefore the alternative system comes as a necessary corollary to that. A National Judicial Commission, on the lines of U.K. according to the writer, is a favourable alternative. In India proposals for the establishment of a National Commission for Judicial Appointments have been made at various times. In 1987, the Law Commission suggested for a broad based National Judicial Commission. It had the following composition: The Chief Justice of India must be at the head of this body and must be designated as Chairman. His pre-eminent position should not be diluted at all. Three senior-most judges of the Supreme Court next in rank to the CJI, because of their long judicial experience on close proximity of the Bar, should be members of the Commission. The predecessor in the Office of the Chairman i.e. the person who has retired as the Chief Justice of India to whom the Chairman has succeeded will also be a member. He would be an asset to the Chief Justice of India. Three Chief Justices of the High Courts according to their seniority as Chief Justices would be members. Minister of Law and Justice, Government of India, by virtue of his office would be a member. He represents at the highest level, the executive. Attorney General of India would be a member by virtue of his office as the leader of the Bar and not owing his office to any questionable electoral process, he can adequately represent the interests of the Bar. An outstanding law academic would also be a member of the Commission.

The Constitution (67th amendment) Bill, 1990 proposed the formation of a National Judicial Commission for the appointment of Supreme Court and High Court Judges and for the transfer of Judges from the High Court. The object was to prevent any arbitrariness in appointments and. This Judicial Commission was based on the recommendations in the 121st Law Commission Report. Its composition was different. The Chief justice of India was the Chairperson of the Commission and two other judges of the Supreme Court next to the Chief Justice should be the other members to be consulted. For making appointments to the High Courts it should be the CJI who should be the Chairperson, one other judge of the Supreme Court next to the Chief Justice in seniority, Chief Justice of the High Court and one other High Court judge next to the Chief Justice in seniority. The Bill however, lapsed.

The proposal for a National Judicial Commission has been resurrected by the Constitution (98th amendment) Bill, 2003 and once again contemplates the formation of a National Judicial Commission. It proposes to introduce a new Chapter consisting of just one Article in the Constitution and also proposes to make consequential amendments to other Articles in the Constitution. The National Judicial Commission, if formed, will consist of the following persons:-

(i) the Chief Justice of India, who shall be the Chairperson of the Commission.

(ii) two other Judges of the Supreme Court next to the Chief Justice of India in seniority.

(iii) the Union Minister in-charge of Law and Justice; and

(iv) one eminent citizen to be nominated by the President of India in consultation with the Prime Minister for a period of three years.

The Commission is to draw up a Code of Ethics for the Judges of the Supreme Court, the Chief Justices and the Judges of the High Courts and can inquire into cases of their misconduct or deviant behaviour and advise the Chief Justice of India or the Chief Justice of the concerned High Court appropriately.

The National Commission to Review the Working of the Constitution (NCRWC) felt that the post-1993 arrangement for appointment of judges needed improvement. It said that a National Judicial Commission headed by the Chief Justice of India and comprising two senior-most judges of the Supreme Court, the Union Law Minister and an eminent person nominated by the President in consultation with the Chief Justice of India should select judges. The NCRWC said, “It would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations.”

More recently, the Second Administrative Reforms Commission (ARC) has come out strongly in favour of a National Judicial Council to select judges. Though the Second ARC differed from the MN Venkatachalaiah Commission on the composition of this body, the central theme remained the same. It said the NJC should be headed by the Vice-President and comprises the Prime Minister, the Speaker of the Lok Sabha, the Chief Justice of India, the Union Law Minister and the Leaders of the Opposition in the Lok Sabha and the Rajya Sabha.

8. CONCLUSION

In no democratic country the appointment of judges has been left exclusively to the judiciary. The denial of judicial review a basic feature highlights the secrecy in such appointments. It was with a view to ensure that the best products become the judges. But history has another story to tell. It is not necessary that the best products are ensured if judges appoint them. Lord Halsbury's appointments to the High Court had been controversial in the sense that the appointees were men of little or no learning whose previous career in public life had been largely in the service of the Conservative party or elsewhere, or else relations of his own. Thus, Ambedkar's view in the Constituent Assembly on Judge's appointment was correct.

What therefore needs to be done is to strike a right balance between the executive and judiciary in the appointment of judges. The writer's view finds support in the
‘The National Commission to Review the Working of the Constitution', which was headed by former Chief Justice of India MN Venkatachalaiah, declared in 2002 for a more participatory mode which would ensure effective participation of both the executive and the judiciary. It noted that on a plain reading of Article 124 of the Constitution, the power of appointment of judges vests in the President and the President is expected to perform this function “after” consultation and not “in” consultation with the Chief Justice of India.

In my view, what is required is a National Judicial Commission. Its composition would be preferably the one that was mentioned by the Law Commission in 1987. Its composition is reflective of both executive and judiciary. The Law Minister is capable of reflecting the view of the Executive as it is after all the Ministry of Law which forwards the recommendation to the Cabinet and to the President. Attorney General will be able to reflect the views of the Bar and considering his years of practice in the Supreme Court he is better equipped to know what kind of quality is required for a Supreme Court judge. In view of the vast size of our judiciary, there can be two Judicial Commissions- one for the Supreme Court and other for the State.

This may not be the best system available but it will definitely be transparent than a collegium which functions in secrecy. Transparency in public bodies is need of the hour and appointment of judges, who act as guardians of our Constitution should be transparent. After all Judges and their appointments should be like Caesar's wife- above all suspicion.

[1] (1978) 1 SCR 423

[2]AIR 1982 SC 149

[3] Dr. B.R. Ambedkar's speech in that regard has been quoted by Bhagwati J in paragraph 29 of S.P.Gupta case.

[4] AIR 1973 SC 1461

[5] AIR 1994 SC 268

[6] AIR 1991 SC 631

[7] E.S. Venkataramaih in his separate opinion held fixation of judge strength to be justiciable.

[8] Ibid at para. 20

[9] Cyrus Das & K Chandra (Ed.) ‘Judicial Accountability: India's Methods and Experience' in ‘Judges and Judicial Accountability'

[10] Per Verma J (on behalf of Yogeshwar Dayal, G.N. Ray, A.S.Anand and S.P. Bharucha JJ)

[11] Under Article 121, no discussion shall take place in the Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge.

[12] Same as 121, it deals with restriction on discussion in the Legislature.

[13] AIR 1999 SC 1, 15 at para.9

[14] S.P. Bharucha, M.K. Mukherjee, S.B. Majumdar, Sujata.V.Manohar, G.T. Nanavati, S. Saghir Ahmad, K. Venkataswami, B.N. Kirpal and G.B. Pattanaik JJ

[15] AIR 1999 SC 1, 22 at para. 41, Conclusion No. 6

[16] Ibid Conclusion No. 1

[17] R.K. Raghavan ‘Dangers Within' accessed from <www.hinduonnet.com>

[18] AIR 1999 SC 1, 16 at para.13

[19] T. Venkatesan ‘Controversial Choice' The Hindu 13 Dec. 2009

[20] Ibid

[21] AIR 1994 SC 268, 454 at para. 537

[22] High Court of Judicature at Bombay v. Shirish Kumar Rangarao Patil (1997) 6 SCC 339 at para. 13

[23] Gurdial Singh v. State of Punjab AIR 1959 Punjab 149

[24] AIR 1994 SC 268, 454

[25] Dr. Shyamlha Pappu ‘Judicial Reform: Appointment and Transfer of Judges' Halsbury Law Review

[26] T.R. Andhyarujinan ‘Appointment of Judges by Collegium of Judges' The Hindu 18 Decemeber 2009