The Nation: Judiciary; One Among Equals

India Today
November 9,1998

JUDICIARY
One Among Equals

In a landmark judgement a nine-judge bench of the Supreme Court makes the chief justice of India one among other judges in appointing colleagues.

By Sumit Mitra

A S Anand For nearly two decades now, the judiciary has been embroiled in the controversy over who should appoint or transfer judges. The issue seemed settled in 1993, when a nine-judge bench of the Supreme Court said that the chief justice of India (CJI) held the key in all such matters. The judgement still left a patch of grey area on whether the CJI could override his senior "brothers" or was merely the first among equals.

Former CJI M.M. Punchhi, who retired last month, resolutely defended the first view, bringing appointments to the Supreme Court and the high courts to a standstill. However, last Wednesday, yet another nine-judge bench of the apex court, headed by Justice S.P. Bharucha, finally overturned the retired CJI's interpretation. The bench, from which present CJI A.S. Anand correctly stayed away, has ordered that the collegium for appointment to the Supreme Court should comprise the CJI and four seniormost judges of the court. Punchhi had reduced its size to three, including himself. The inadequacy of consultation led to huge vacancies: about 150 in the high courts and seven in the 25-member Supreme Court.

In the collegium of five, a strength of two is now enough to block an appointment. "We have little doubt," says the judgement in a fine blend of courtesy and plainspeaking, "that if even two of the judges forming the collegium express strong views, for good reasons, that are adverse to the appointment of a particular person, the chief justice of India would not press for such appointment." In other words, the appointing brotherhood of Supreme Court judges now has powers that are just short of that enjoyed by members of clubs to "blackball" unwanted entrants.

The judgement has also overturned another convention institutionalised after the 1993 judgement. It relates to consulting, in the matter of a Supreme Court appointment, the seniormost judge of the apex court coming from the appointee's high court. While he cannot be a part of the collegium, the size of which can in no case be extended, its members are free to "ascertain the views" of the Supreme Court judge with experience of the relevant high court. The collegium members can even consult knowledgeable members of the bar, a convention which former CJI J.S. Verma followed as a matter of rule. But such consultation (with non-judges) need not be in writing. The member of the collegium engaged in such external consultation is only required to put it down in a memorandum to be conveyed to the Union government.

For appointment in the high courts, however, the collegium is smaller with the CJI and his two seniormost colleagues. They will elicit the opinions of the chief justice of the high court and those of the Supreme Court judges "who are conversant with the affairs of the concerned high court". In the recent past, Supreme Court judges belonging to the latter category were often shut off from the consultative process on the ground that the concerned high court was not their "parent" high court and they were transferred there. This excuse has been annulled by the bench. "The objective being to gain reliable information about the proposed appointee, such Supreme Court judge as may be in a position to give it should be asked to do so," it ruled.

With cji Anand presiding over the collegium, its other members will be Justice Bharucha, due to retire on May 6, 2002; Justice M.K. Mukherjee (December 1, 1998); Justice S.B. Majumdar (August 20, 2000) and Justice Sujata Manohar (August 28, 1999). As Justice Mukherjee retires next month, his place is likely to be filled by Justice G.T. Nanavati (February 17, 1999). Since all members of the collegium were on the nine-judge bench, which was unanimous in its judgement, it is unlikely that a difference will persist among them as regards the interpretation of the consultation process. Such a difference arose from Punchhi's own view on Article 124(2) and 217(1), which set down that consultation with the CJI is a must for appointments to the bench of the Supreme Court or high courts. As a dissenting member of the 1993 bench, he held that the individual view of the CJI came before the judiciary's collective view.

The 1993 judgement had greatly curbed the power of the executive to put a spoke in the wheel of judicial appointment by tossing in reports of the Intelligence Bureau. Such executive grounds for "unsuitability" were made a subject for consultation by the collegium, though within its closed doors. However, the Supreme Court now leaves it to the discretion of the CJI to bring to the notice of the candidate the grounds for executive objection and seek his response. That is a big step forward. During the hearings, Justice B.N. Kirpal, a member of the bench, brought out the lighter side of the executive disapproval as he mentioned an incident in which the intelligence authorities had attempted to block an appointment saying that the candidate was a "boozer". In reality, the candidate was so nicknamed by his friends from the bar because he never touched alcohol at cocktail parties. With the CJI virtually advised now to seek the response of the candidate to executive charges, it is hoped that there will be fewer occasions of reputations being sullied with unchecked, if not motivated, reports.

The recent judgement is more meritocratic than its predecessors -- the 1993 one as well as the 1982 judgement in the S.P. Gupta case -- in the sense that it gives no weight to the all-India seniority across the high courts of a candidate for the Supreme Court if he has "outstanding merit". However, considerations like regional representation in the apex court can weigh in only if it is a choice between people of equal merit. The 1993 judgement upheld the seniority principle unless there were "strong cogent reasons" for a departure from it. The judgement delivered last week says that such departure from the order of seniority need not be recorded each time a senior judge is passed over. "What has to be recorded is the positive reason for the recommendation."

The judgement became necessary in view of a presidential reference on July 23 in which the President sought the apex court's views primarily on whether the CJI meant the individual, or plural, in terms of his consultative power. If it were plural, the President wanted a final definition of such plurality. The Supreme Court has, apart from replying to his questions, vastly expanded the scope of the earlier judgement. It has allowed for the judicial review of transfer of high court judges when it lacks adequate consultation between the CJI and the chief justice of the high court where the candidate was posted, on the one hand, and the chief justice of the high court of his new posting, on the other. The inter-high court transfers have often been arbitrary and generated acrimony.

Attorney-General of India Soli Sorabjee, who played a pivotal role in drafting the reference as well as presenting the Government's case before the constitution bench, says that "one of the most unique features of this case is the unanimity of the judges' views". In both the 1982 and 1993 cases, the judges were divided on the substantive as well as peripheral issues. But the recent bench, despite its internal shades of group loyalties, displayed a remarkable unity of views. The 43-page judgement is shorn of legalese and purple prose. It has few references to individual cases. Instead it is structured entirely on mere principles of the law. Besides, the judgement was delivered with exemplary speed in three months, inclusive of the interim vacations. Normally such constitutional debates drag on for several years.

However, the judgement has, in addition to eliminating arbitrariness in judicial appointments, set a new oligarchic pattern for decision-making. Post-colonial India has followed a hierarchical chain of command which was best described by poet Rudyard Kipling as a pecking order that made the sergeant obedient to the lieutenant, and up the chain, the viceroy to the queen. The cabinet system that governs the executive is also vertically aligned, the prime minister enjoying a decisive primacy over his colleagues. The apex court has departed from the hierarchical system on the faith perhaps that the best decisions are more often taken collectively by the judicial "brothers" than by Big Brother alone.

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