By S Farman Ahmad Naqvi,

The question regarding how to appoint judges at the High Courts and Supreme Court has been bothering not just the top echelons of judiciary in India but the executive too. Though the “collegium system” which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters.

The collegium system – which is followed in the appointment of judges to the Supreme Court and the High Courts, has recently been challenged in the Supreme Court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system “ultra vires” and “unconstitutional” because the constitution does not mention it anywhere and it has been brought into existence through the judgments of the Supreme Court. The bench, which heard the matter, referred it to the Chief Justice of India for “appropriate direction” as the petition rose “complicated legal issues.” On its part, the government has said that the matter required reconsideration.

Recently on 1st May 2013, in a written reply to a question in the Rajya Sabha, Dr. Ashwani Kumar, Minister of Law & Justice, said that representations have been made by various agencies and expert bodies to review/change the present procedure of appointment of judges. Based on the suggestions received, there is a proposal to establish a broad based Judicial Appointments Commission. However, no decision has been taken by the Government so far, Dr. Kumar informed the House. He also informed the house that the appointment of Judges to High Courts and Supreme Court is based on a Memorandum of Procedure for Appointment of Judges of Supreme Court and High Courts* (see at http://doj.gov.in/sites/default/files/memosc.pdf ) prepared in 1998 pursuant to the Supreme Court Judgment of October 6, 1993 read with their Advisory Opinion of October 28, 1998.

How the collegium system came into being is very remarkable. In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta Vs. Union of India (AIR 1982 SC 149), the majority held that „consultation? does not mean „concurrence? and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment. The balance titled in favour of the executive. Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less.

After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India. Naturally, this state of affairs developed its own backlash. In 1993, a nine-Judges Constitution Bench of the Supreme Court in Supreme Court Advocate-on-Record Association Vs. Union of India (1993(4)SCC 441) over ruled the decision in S.P. Gupta. The nine-Judges Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the Interest of “protecting the integrity and guarding the independence of the judiciary.” For the some reason, the primacy of the Chief Justice of India was held to be essential. It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive. Elaborate reasons were recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system.

One of the judges relied upon Article 50 of the Constitution which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the „cherished concept of independence.” It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.

Reaction to this judicial assertion of power has not been uniform. In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal. The 1993 decision was reaffirmed in 1998 [1998(7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution. All the basic conclusions of the majority in the 1993 decision were reaffirmed.

There was, however, some variation. It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to while the proposed name comes from must also be consulted. In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the “Collegium” for the purpose of appointment of Judges to the Supreme Court.

The present collegium system of appointment of judges of Supreme Court and High Courts has resulted in an anomaly in as much as the executive no longer has to share any responsibility in filling up vacancies, the entire responsibility being that of the collegium. It appears that this system had outlived its life and its pessimistically failed to fulfill the aspirations of people.

At the Congress party’s national convention on “Law, Justice and the Common Man”, union urban development minister and party veteran S. Jaipal Reddy raised serious doubts on the Supreme Court’s Collegium system of judicial appointment? “The current system of judicial appointment is faulty; it is faulty because it is opaque. The opacity of this system attracts charges of nepotism and lack of transparency. The government is bringing a legislation (the Judicial Standards and Accountability Bill), which should address this sense of grief over the conduct and reputation of judges and the manner of their appointment,” Reddy said. (http://www.dnaindia.com/india/report. Mar 28, 2010.)

Leader of opposition in Rajya Sabha and a senior Advocate of Supreme Court Mr. Arun Jaitley said the collegium system was better than executive appointing judges and he would never advocate executive interference in judiciary. “But the collegium system of appointing judges too lacks in terms of quality and integrity. The standard needs to be improved far more,” He said.

“I have always preferred a National Judicial Commission where judiciary has primacy, executive participates and includes some eminent citizens who act in safeguarding public interest,” he added. Time of India Aug 29, 2011.

One of the country’s top legal luminaries Fali S. Nariman while speaking at National Law University (New Delhi) made bold exposure on drawbacks of collegiums-system of appointing judges. The speech delivered in presence of Chief Justice of India directly hinted at personal equations and not merit being followed in recommending elevation of judges at Supreme Court. Eminent lawyer gave two recent examples which echo views of right-thinking persons of the civil society. First was superseding country’s known-distinguished judge Justice A P Shah in his elevation as Supreme Court Judges, who retired in February 2010 from Delhi High Court. Fali S. Nariman justified his comments with example of Justice A.K. Patnaik who after being overlooked three times, was at last elevated to Supreme Court just after retirement of the collegium-member opposing him from the Supreme Court. (http://www.merinwes.com Nov 22, 2009).

As the matter was relating to Supreme Court Judge’s appointment and was raised by one of the country’s top legal luminaries Mr. Fali S. Nariman, it caught the eyes of media. However, there are hundreds and thousands of cases relating to appointment of Judges of High Courts either from the higher judiciary or from the bar, where anomalies are abundantly caused but they go unnoticed being found unimportant.

Justice P.N. Bhagwati in conversation with Padmaparna Ghosh while answering the question, “does the collegium system work?” had unequivocally said that “this system does not work satisfactorily. I am not in favour of it. I don’t know that the truth is but going by rumours, bargaining goes on between the collegium judges. People are losing confidence in the mode of appointing judges. Therefore, it is necessary to change it.” (http://indiatoday.intoday.in published on August 29, 2011).

Former Delhi High Court’s Chief Justice A.P. Shah, who could not make it to the apex court, quotes Justice Ruma Pal, formerly Supreme Court judge to say that the process by which a judge is presently appointed to the high court or the Supreme Court is ”one of the best kept secrets in the country”. The constitution dealing with the appointment of judges of the Supreme Court (Article 124) and the high court (Article 217) says that the President would appoint such judges in consultation with other judges. Justice Shah, whose elevation to the Supreme Court was said to have been stalled, says the present system of judicial appointments in the constitutional courts exemplifies the „misalignment? between the core values of judicial independence and accountability. “Our current appointments system is out of step with democratic culture primarily because it lacks transparency, and provides for no oversight. Choosing judges based on undisclosed criterion in largely unknown circumstances reflect an increasing democratic deficit,” Justice Shah points out. He calls for taking lessons from other countries like the UK and South Africa where a transparent process of appointment of judges is followed, while maintaining judicial independence. “International consensus seems to favour appointments to the higher judiciary through an independent commission,” he says. Probably, that is why former Delhi High Court Judge R.S. Sodhi feels the collegium system has not been able to deliver so far. He dubs it as „a total failure?, when it comes to inducting judges of quality. “Keeping the system of appointment of judges within the four walls of collegium has given rise to a lot of criticism like uncle-and-son-syndrome,” Justice Sodhi opines. (http://www.deccanherald.com 20 November 2011).

The anomalies are such which ultimately resulting in nepotism, favoritism and casteism although to curb these anomalies? the collegium system was devised in 1993 in the case of Supreme Court Advocates-on-record Association and others Vs. the Union of India and others, by the Supreme Court. The prime reason of Nepotism is unnecessary secrecy adopted in these appointments, and granting free hand to some individuals who are not accountable to any one of their mistakes or calm over mistakes.

Here I deem it appropriate to quote a passage from a judgment of Supreme Court reported in (2010) 7Supreme Court Cases 502 = STPL (Web) 539 SC 7 Hari Singh Nagra Vs. Kapil Sibal where the Court while dealing a contempt plea raised against Sri Kapil Sibal had observed; “There is no manner of doubt that Judges are accountable to the society and their accountability must be judged by their conscience and oath of their office. Any criticism about the judicial system or the judges which hampers the administration of justice or brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. National interest requires that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. There is no manner of doubt that freedom of expression as contemplated by Article 19(1) (a) of the Constitution is available to the Press and to criticize a judgment fairly albeit fiercely is no crime but a necessary right. A fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility.”

The cases of anomalies in appointment of judges are great in numbers;

I will try to figure it out one by one in the following paragraph.

1. Under Article 124(2) and Article 217(1) of the Constitution, a judge of Supreme Court/ High Court has to be appointed by the President after „consultation? with the Chief Justice of India (CJI). The government was not bound by the CJI?s recommendation. But in 1993, the Supreme Court introduced the collegium system, taking over primacy in appointments to higher judiciary. A nine-judges Constitution Bench in 1998 ruled that “consultation” must be effective and the chief justice’s opinion shall have primacy. Now India is the only nation in the world where judges appoint judges. In 2008, the Law Commission favoured restoration of pre-1993 position. 2. Law Commission of India in its report no.230, submitted to the Govt. of India on 5.8.2009 under the heading “REFORMS IN THE JUDICIARY – SOME SUGGESTIONS” stated in Para 1.3 and 1.4 as under;

1.3 As a matter of practice, a person, who has worked as a District Judge or has practiced in the High Court in a State, is appointed as a Judge or has practiced in the High Court in a State, is appointed as a Judge of the High Court in the same State. Often we hear complaints about “Uncle Judges”. If a person has practiced in a High Court, say, for 20-25 years and is appointed a Judge in the same High Court, overnight change is not possible. He has his colleague advocates – both senior and junior – as well as his kith and kin, who had been practicing with him. Even wards of some District Judges, elevated to a High Court, are in practice in the same High Court. There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser. The equity demands that the justice shall not only be done but should also appear to have been done. In government services, particularly, Class II and upward, officers are not given posting in their home districts except for very special reasons. In any case, the judges, whose kith and kin are practicing in a High Court, should not be posted in the same High Court. This will eliminate “Uncle Judges”. 1.4 Sometimes it appears that this high office is patronized. A person, whose near relation or well-wisher is or had been a judge in the higher courts or is a senior advocate or is a political high-up, stands a better chance of elevation. It is not necessary that such a person must be competent because sometimes even less competent persons are inducted. There is no dearth of such examples. Such persons should not be appointed and at least in the same High Court. If they are posted in other High Courts, it will test their caliber and eminence in the legal field. 3. The above recommendations of Law Commission and other earlier recommendations relating to subject in discussion were neither implemented nor taken care of in future appointments to the post of High Court Judges.

4. Article 217 of Constitution of India fixes no minimum or maximum age of appointment of a judge of high court, except that, he at least ten years held a judicial office in the territory of India? or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such courts in succession. As the Constitution had not prescribed any age limit hence this provision is used or to say misused to the advantage or to disadvantageous to the chosen few. Members of Collegium sometimes chose few individuals by charting their own norms regarding age but when the next collegium is constituted they devise new age barriers as per their own choice. Sometimes the High Court collegium chooses few bracketed in certain age group but Supreme Court finds them not suitable because of lesser in age or crossed the upper age limit, but where is the rule regarding age limit nobody knows. The rule rests with the new incumbent or the person who had divested the office and here comes into play the nepotism, bias, favoritism and predisposition. Nobody can question the choices of diverse ages at different era because there are no universal governing rules or standard guidelines available to do justice to do appointments upon such high judicial office. No clear cut guidelines and norms for selection of persons for the coveted post of High Court Judgeship e.g. no fix minimum or maximum age limits, which result in selection of a candidate of any age at no point and rejection of another candidate who is bracketed in the same age group at another point of time. One group of selectors has one type of rules and the next set of selectors work out their own rules as per their own exigency.

5. Although for appointment of High Court Judges no reservation rules apply as are applicable upon other services, because it is a constitutional office, but it appears that while panel is being prepared equilibrium tried to be struck between upper castes, OBCs, SCs. NO guiding features are available anywhere to apply the reservation in appointment of High Court Judges. Interestingly Chapter V of Part VI of Constitution does not prescribe any such condition to be followed. But it is a regular feature that relaxations of various natures are being granted to the persons belonging to the above reserved categories. Although Apex Court as well as High Courts is very strict in implementing back door entries in Public Services (Uma Devi’s Case is the latest such law laid down by Supreme Court) where rules were not followed and appointments are made at the whims and fancies of persons sitting at the helm of the affairs.

6. In Para-32 of Special Reference No.1 of 1998 RE, (1998) 7 SCC 739 the Supreme Court lays down,

“Similarly, if in connection with an appointment or a recommended appointment to a High Court, the Views of the Chief Justice and senior judges of the High Court, as afore stated, and of Supreme Court judges knowledgeable about that High Court have not been sought or considered by the Chief Justice of India and his two senior most judges, judicial review is available. Judicial review is also available when appointee is found to lack eligibility.”

7. The dictionary meaning of word eligibility is “allowed by rules or laws to do something or to receive something”. As stated earlier the only eligibility criteria laid down for appointment to High Court is about practice or held a judicial office for ten years under Article 217 of Constitution of India which fixes no minimum or maximum age of appointment of a judge of High Court, except that “he at least ten years held a judicial office in the territory of India” or in case of an Advocate, he should “at least” having ten years practice in a High Court or of two or more such Courts in succession. It means the only qualification required, by the Constitution, for the appointment upon the post of Judge of a High Court is that if someone attains ten years of practice or holds a judicial officer’s post in a State deserves to be appointed as judge of High Court. But some other eligibility criteria are also there which are not written anywhere but are religiously practiced; here lies the legroom for compromises which generate suspicion in terms of integrity and quality, as expressed by Jurists like Fali S Nariman etc. There are no written guidelines for undertaking the exercise. If the same would have been there the doubts could easily be rebutted as just tomfoolery.

8. The administrative burden of appointing judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees lacks any scrutiny.

9. Collegium is a closed-door affair without a formal and transparent system.

10. The limitation of the collegiums? field of choice to the senior-most judges from the High Court for appointments overlooking several talented junior judges and advocates.

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The author is practicing lawyer at Allahabad High Court, can be contacted at naqvifarman@yahoo.com