Cover Story: The President: Courting Controversy

A presidential recommendation to increase Scheduled Caste representation in the Supreme Court sours Rashtrapati Bhavan-judiciary relations and delays the appointment of judges.

President K R Narayanan

"Eligible persons from SC/ST categories are available and their underrepresentation or non-representation would not be justifiable."
K R Narayanan's noting in a file on judges' appointments

In the Union Government it is a file that has become too hot to handle. So recently it was a reluctant Union Law Minister M. Thambi Durai who carried it to Chief Justice of India (CJI) Adarsh Sein Anand for his perusal. He informed Anand that the file contains a note from President K.R. Narayanan recommending that Scheduled Caste (SC) and Scheduled Tribe (ST) candidates be duly considered for appointment as judges of the Supreme Court. Last week Thambi Durai told India Today, "I have brought to the notice of the CJI the views of the President of India. The matter is now between them because the Government has no role to play in this case."

Of late, Narayanan has been publicly voicing concern about underrepresentation of the weaker sections in the higher echelons of the judiciary. It is a matter that needs looking into. But it is for the first time in the history of the Republic that a President has chosen to put his suggestion on record. Though the President has no constitutional power to suggest any changes in the selection process, his active intervention is bound to lead to an unseemly confrontation with the judiciary. For a start, it may reopen the contentious issue of appointment of Supreme Court and high court judges.

The Union Government's legal experts are also concerned about other possible implications. They are worried that the President is propounding a new theory of affirmative action for judicial appointments -- a Pandora's box that will have a wider impact on services like the armed forces, where the Government has so far strictly kept out reservations on the basis of caste. The President seems to have also decided to act as a check on the judiciary at a time when even the executive seems to have accepted judicial supremacy over appointments. During the past four weeks, Narayanan has questioned the procedure followed in the appointment of at least four chief justices and several judges of various high courts.

It all began when Anand, soon after his appointment in October, initiated the process of filling up seven vacancies in the Supreme Court and about 150 in various high courts. Earlier, these vacancies were frozen due to a pending presidential reference to a nine-member constitutional bench regarding the procedure to be followed for the appointment of judges.

On October 28, the Supreme Court ruled that in the appointment of Supreme Court justices, the CJI would constitute a collegium of four of the seniormost judges to recommend a candidate for the Union Government to approve. Soon after the judgement, the CJI set in motion the selection process for the vacancies.

In mid-November the CJI sent to Thambi Durai a file containing four names (Justice M.B. Shah, Justice D.P. Mahapatra, Justice Umesh Banerjee and Justice R.C. Lahoti) for appointment as justices. The procedure laid down entails the law minister to send it to the secretary of the Justice Department who then forwards the names to the Intelligence Bureau for whetting. The file is then forwarded to the prime minister for his approval. After his signature it is sent for presidential assent.

CJI Anand on Supreme Court Appointments

Chief Justice Adarsh Sein Anand

"All eligible candidates, including those belonging to the Scheduled Castes and Tribes, are considered by us while recommending names for appointment as Supreme Court judges.

Our Constitution envisages that merit alone is the criterion for all appointments to the Supreme Court and high courts. And we are scrupulously adhering to these provisions. An unfilled vacancy may not cause as much harm as a wrongly filled vacancy.

We are greatly concerned over the delay in judicial appointments. I am getting resolutions from various high courts protesting against this avoidable delay.

Some of the high courts are working with less than half their sanctioned strength of judges.

Unless a very serious charge comes to the notice of the government, the approval of judges by the government is a mere formality."

In an interview at his residence
with Editor Prabhu Chawla

Normally, the Presidential assent is granted within a day or two. But in the case of the four judges, the president's Secretariat took several days to react. And when it finally did, the file came back to the Justice Ministry with a potentially explosive suggestion which even seemed to cast aspersions on the whole selection process.

While giving his assent to the names on the file on November 28, 1998, Narayanan wrote: "I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are given due consideration."

If that wasn't enough, the President went on to note: "Eligible persons from these categories are available and their underrepresentation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle."

The judiciary, it is learnt, has taken serious note of the President's views. Legal circles acknowledge that compared to the population very few justices belonging to the SC/ST category are appointed. In the past, the 25-member Supreme Court used to have at least one justice belonging to the underprivileged section. None of the 24 serving justices belong to this category.

What has, however, irked the judiciary is Narayanan's implication that many meritorious SC and ST candidates have been ignored in favour of those from other castes and communities. The CJI strongly denies (see interview) that there is any discrimination in the selection of Supreme Court judges: "I would like to assert that merit alone has been the criterion for selection of judges and no discrimination has been done while making appointments."

Meanwhile, judicial circles have begun speculating on the possible SC and ST candidates that the President was referring to. Among the candidates who could have been considered were Chief Justice K. G. Balakrishnan of the Gujarat High Court and Chief Justice Om Prakash of the Kerala High Court.

In Balakrishnan's case, he was not considered because he had not attained the age of 55 years (he is 53 now). But in the case of Om Prakash, the collegium is said to have found him unsuitable for elevation.

For the judiciary the salvo against its choice of judges has come from the most unexpected of quarters. Earlier it was battles with the executive and some of its distinguished brethren that resulted in the setting up the nine-member constitutional bench to go into the question of appointment and transfer of judges in the higher courts.

After the apex court's October 28 judgement that made it clear that the judiciary alone would have a final say in the matter of judicial appointments, the prime minister and the law minister have been following the verdict in letter and spirit. During the past three months, the Central Government has not returned a single file to the CJI for reconsideration.

Much to the chagrin of the judiciary, the President's Secretariat has begun scrutinising all judicial appointments with a fine-toothed comb. Especially as Justice Anand points out:" Unless a very serious charge comes to the notice of the government, the approval of judges by the government is a mere formality."

Last month, Narayanan returned a file pertaining to the transfer of Chief Justice M.S. Liberhan of the Madras High Court to the Andhra Pradesh High Court and three others for review by the CJI. The proposals were cleared by the CJI, two other senior judges, the law minister and the prime minister. But the President's office found fault with the CJI's recommendations pointing out stiffly that many of the procedures laid down by the judgement on appointments was not being observed.

On December 3, 1998, quoting from the latest judgement, Gopal Gandhi, secretary to the President, wrote on the file: "The CJI should also take into account the views of one or more Supreme Court judges who are in a position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place."

Gandhi went on to suggest that "the views should be expressed in writing and should be considered by the CJI and four senior judges of the Supreme Court. These views and those of the four seniormost judges should be conveyed to the Government of India along with the proposed transfer".

Gandhi also added that the President has observed that the procedure of eliciting in writing the views of "one or more knowledgeable Supreme Court judges and conveying them to the Government of India doesn't appear to have been followed in these proposals. No views of such judges are available on file".

M Thambi Durai
Union Law Minister

Union Law Minster M Thambi Durai

"My job is just to forward the President's suggestions to the chief justice of India and the collegium for their consideration. It's now up to them to take a view on this.

Personally I am for reservation. The spirit of the Constitution should be followed in all fields including the judiciary.

The President can refer back any appointment. He is not a rubber-stamp. But the law minister is just a forwarding agent."

Technically the President is right. The October 28 judgement did lay down an elaborate procedure for transfer of high court judges that began by appointing a consultative circle. This included the CJI, the chief justice of the high court from where the judge is being transferred and the chief justice of the destination high court. It also wanted the CJI to take into account the views expressed in writing of one or more puisne judges of the Supreme Court on deciding whether or not the proposed transfer should take place.

The procedure didn't end there. Once the recommendation of the consultative circle was available along with the written procedural report, a final consultative collegium comprising the CJI and four seniormost puisne judges of the Supreme Court should approve it. It stipulates that the Government of India must obtain views at every stage of the process before giving its assent to the appointment.

When the file containing the President's observations was received by the CJI in the first week of December, Anand reiterated his position and stated that he had followed the established rules as per law and the latest Supreme Court judgement. He also produced written permission of his brother judges giving their assent.

The President, however, remained dissatisfied and in another recent case concerning the transfer of Justice S.V. Patil of the Madras High Court to the Rajasthan High Court he wrote to the Government saying, "In order to avoid procedural ambiguities and confusion with regard to the appointment and transfer of judges, I would suggest that the prevailing Memorandum of Procedure be amended or substituted taking into account the new advisory opinion." The Law Ministry has already started work on this.

Meanwhile, the President continues to raise questions about proposals for the appointment of judges and chief justices of various high courts. Some of the other proposals pending with Narayanan for the past two weeks are:

Appointment of 22 judges to the Allahabad High Court to fill up 29 vacancies. The CJI proposed 12 names of practising advocates and 10 from the Uttar Pradesh Judicial Service for appointment in early December. The files were cleared by the state and the Central government and sent to the President for his assent. Six weeks later, the file is yet to be returned.

Anand recommended that Justice Y.K. Sabharwal of the Delhi High Court be elevated as chief justice of the Bombay High Court. Sabharwal's name was cleared by the chief ministers and governors of Maharashtra and Goa and also by other judges of the Supreme Court. But the file has been stuck with Rashtrapati Bhavan for over three weeks.

In early December, Justice Brijesh Mishra of the Allahabad High Court was proposed by the CJI for appointment as chief justice of the Gauhati High Court. His name was approved by the chief ministers and governors concerned, the prime minister and law minister. But the President is yet to return this file to the Government.

After clearing all formalities, Anand forwarded the name of R. Dayal of the Calcutta High Court for appointment as chief justice of the Sikkim High Court. The file, which was sent to the President in the last week of December, is yet to come back to the Justice Department. Meanwhile, the Sikkim High Court has been functioning with only one judge for the past two months.

The file regarding the appointment of Justice K.N. Mitra of the Calcutta High Court as chief justice of the Allahabad High Court has been held back by the President for over three weeks now though all other clearances have been procured.

Some of these files have been delayed because of a difference of opinion on the issue of appointment of high court chief justices. While the judiciary is of the view that the appointment of any judge as chief justice of any other court is not a transfer but a new appointment, the President's Secretariat feels otherwise. For the appointment of a high court chief justice, the procedure is less elaborate than a transfer: the CJI has to consult two "seniormost" judges of the Supreme Court. But for transfer he has to take the written advise of four "seniormost" Supreme Court judges and chief justices of the two high courts concerned. The President is insisting that the second course be followed.

With the President digging in his heels on most appointments, the confrontation between him and the higher judiciary is likely to escalate. The political leadership and the bureaucracy have distanced themselves from the controversy. But sooner than later they may find themselves drawn into an acrimonious battle that bodes ill not just for the pillars of the country's democracy but for India itself.