Author: Honey Verma, B.A. LL.B (H) from Amity University, Rajasthan
In the Supreme Court of India
Civil Original Jurisdiction
Case No. Writ Petition (Civil) no. 13 of 2015
Petitioner: Supreme Court Advocates on Record Association
Respondent: Union of India
Bench: Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel
It is the system of appointment and transfer of judges that has evolved through judgments of the Supreme Court, and not by an Act of Parliament or by a provision of the Constitution. The Supreme Court collegium is headed by the Chief Justice of India and comprises four other senior most judges of the court. A High Court collegium is led by its Chief Justice and four other senior most judges of that court. Names recommended for appointment by a High Court collegium reaches the government only after approval by the CJI and the Supreme Court collegium. Judges of the higher judiciary are appointed only through the collegium system — and the government has a role only after names have been decided by the collegium. The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court. It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
The roots of the case range back to the year 1973 where a 13 judge bench in the ratio of 7:6 propounded the landmark judgment in His Holiness Sri Kesavananda Bharati Sripadgalvaru v State of Kerala[i]. This case established the doctrine of basic structure which implies that the basic structure of the constitution cannot be altered by way of any Act or constitutional amendment. This judgment was not received in the right spirit by the then Mrs Indira Gandhi led Congress government which considered it as being a restriction on its powers. So was the series of events that the post of Chief Justice of India got vacant soon after this judgment was pronounced. Therefore by Article 124(2)[ii], Justice A.N. Roy was made the CJI but the convention of appointing the senior-most judge to the position. The three judges who were superseded namely Justice Shelat, Justice Hegde and Justice Grover were among the ones who had passed the judgment in favour of the basic structure doctrine. This incident was considered a direct attack on the independence of the judiciary by the executive. In 1976 during the imposition of Emergency, the question of the application of Article 20[iii] and Article 21[iv] was in question under the ADM Jabalpur v Shivakant Shukla[v] case whereby the 5 judge bench in 4:1 ratio laid down that the fundamental rights under Article 20[vi] and Article 21[vii] shall remain suspended during the period of emergency. It so happened again that the seat of CJI became vacant sometime after this judgement was pronounced. Justice H.R. Khanna who was the first in line to be appointed as the CJI and also the lone dissenter in the ADM Jabalpur case[viii] was superseded by Justice MH Beg. These instances of abuse of the judiciary’s independence by the executive led to the case of SP Gupta v Union of India[ix] that is the First Judges case whereby the Supreme Court ruled in favour of the executive. The same question was then raised in the present case of Supreme Court Advocates on Record Association v Union of India[x].
The case had come up for hearing before the 9 judge bench in the Supreme Court to reconsider the judgment laid down in the First Judges case that is S.P. Gupta v Union of India[xi]. The issues before the Court were regarding the :
1. Primacy of the opinion of the Chief Justice of India in the matter of appointment and transfer of the judges in the Supreme Court or High Court in light of the word consultation used under Article 124(2)[xii].
2. Adherence to the convention of seniority rule in the matter of appointment of the CJI.
3. Fixing the number of judges in a particular High Court.
Arguments of the Petitioner
The crux of the arguments revolved around Article 50 of the Constitution of India, 1950 which talks about the separation of the executive from the judiciary to the maximum extent possible. Therefore, giving an edge to the President in matters of judicial appointments is a clear violation of Article 50[xiii]. The edge that has been granted by the impugned 1982 decision[xiv] makes the executive the “lord of the lords”, resulting in them becoming the “overload”. It is, therefore, necessary to give due precedence to the recommendations made by the CJI and minimize the role of the executive in the same. Giving an edge to the executive reduces the stature of CJI to that of a passive and involved body which is outrightly dangerous to the independence of the judiciary. It is also a matter easily understood that the CJI must be much more aware of the intricacies of the judiciary and the competency required for becoming a judge in the Supreme Court. Thereby reducing the role of the CJI to that of only consultative nature is also not beneficial for the efficiency of the same.
The appointment of the senior-most judge of the Supreme Court to the post of CJI can be said to be the unwritten rule or convention that came into existence. It is the silent voice of the makers of the constitution[xv]. Almost no or very little deliberation is required for the appointment of the senior-most judge of the supreme court to the post of the Chief Justice of India[xvi]. Thereby, no need exists for any lengthy consultative process as it is not a requirement[xvii]. Under the constitutional scheme, it cannot be comprehended that anyone apart from senior-most puisne judges of the SC can be appointed as the CJI[xviii]. The seniority convention has not been mentioned in the constitution explicitly as in any civilized democratic society such references to the higher dignitaries are not appreciated[xix]. Had the seniority rule be mentioned in the constitution, it would have become an obligation to mention a list of exceptions to the same which would not be much of a happy reading[xx].
With regards to the fixation of the judges' strength in the High Courts, various factors are to be considered before doing so, financial implications and the workload of the particular High Courts being the main ones. The assessment of the financial implications shall be best done by the authorities concerned. With regards to the issue of workload, factors affecting it are peculiar to each High Court. Thereby to settle on a particular formula for regulating the judge's strength is not ideal[xxi]. Thus it is best to leave the issue of determining the judge strength to the specific High Courts.
Arguments of the Respondent
The President of the country being the executive head has been granted the authority to appoint the judges to the Supreme Court and High Court on the advice of the council of ministers as specified under Article 124[xxii] and Article 214[xxiii]. However, this does not imply that the judge shall have a bias or faithfulness towards the executive as the judges by their oaths are faithful only to the Constitution of the country and not to any other extraneous influences[xxiv]. Thus giving precedence to the executive in matters of appointment of judges in the SC or HC won’t have any adverse impact on the judiciary’s independence[xxv]. India is a democratic country where the legislature and executive derive their powers from the people. Therefore, it aligns with the spirit of the constitution to grant an edge to the executive over the judiciary in matters of appointment of judges[xxvi]. The term consultation used under Article 124(2)[xxvii] implies that the CJI with regards to the appointment has to supply the requisite information to the president for making the appointment and has no more role to play in the appointment.
The convention of seniority in the matter of appointment of CJI is arbitrary given the fact that giving due diligence is not given to the merits of a judge. As far as the matter of judge strength in a High Court is concerned, the constitution has been silent on the matter. Article 124 of the Constitution of India, 1950 gives the power to the parliament to increase the judge strength in the SC. Article 216[xxviii] lays down that the President shall appoint such judges to a High Court as he may deem it to be fit. Since both the Supreme Court and High Court are constitutional courts that have been awarded similar status by the Constitution of India, 1950, it is clear that the fixation of judges' strength in a High Court is not a matter to be dealt with by the courts themselves but by the President[xxix].
Judgment of the Case
The nine-judge bench in the present case delivered the judgment in favour of the judiciary. By the ratio of 7:2 the earlier judgment of SP Gupta v Union of India[xxx] was overruled. It was held that in matters of appointment of judges to the Supreme Court and High Court, the primacy is to be given to the advice of the CJI to minimize the interference by the executive on the judiciary. The Court also laid that the matter of determining the strength of judges in a High Court is a matter best dealt with by the judiciary. The Supreme Court ruled in favour of the seniority rule for the appointments being made to the post of the Chief Justice of India.
The decision, in this case, was hailed by the judiciary as it again brought back the ball to the judiciary’s court. This decision should be held cherished as it aligns with the independence of the judiciary which is a part of the basic structure of the Constitution as propounded in Kesavananda Bharati v State of Kerala[xxxi]. The most important point raised by the Court was regarding the interpretation of the word consultation in Article 124[xxxii] as being that of concurrence meaning thereby that the suggestions made by the CJI have an edge over the executive. The Court emphasizes this interpretation by taking the support of the intention with which Article 50 was inserted in the Constitution. This decision upheld Article 50 of the Constitution of India, 1950 which strives to achieve the maximum separation of powers between the executive and judiciary. With regards to the matter of rule of seniority, the Supreme Court has taken a practical view on the same. Though the Constitution by Article 124(1)[xxxiii] grants a separate status to CJI and the other judges of the Supreme Court, it does not mean that other judges are any different in matters of knowledge and competency from the CJI. Thus the seniority rule is a much practical rule to adhere to as it not only saves time but also leads to the appointment of the best candidate to the post.
The arguments given by the respondents give an impression that the judiciary which is one of the pillars of the democracy is a puppet of the executive which has no powers of its own as for its basic functions and existence it is very much dependant on the executive. If the issue is assessed from the viewpoint of a layman, it would be an obvious inference that he who knows the best of one field shall be dealing with the matters arising concerning it. The viewpoint of the President is bound to be influenced by various factors other than the competency of the candidate but this shall probably be the case with the CJI given that he belonged to the field and knows the various aspects of it. For democracy to exist in its true sense in our country, a judiciary independent from the interference and influence of the executive.
Despite the long judicial battle, it cannot be said that this case settled the entire law on this matter. The present judgment gave birth to the concept of Collegium for the appointment of judges to the Supreme Court and High Court which was further elaborated and expanded in the 3rd Judges case[xxxiv]. Despite it in the year 2014, the BJP government by way of the 99th Amendment inserted Article 124A, 124B and 124C in the Constitution which provided for the establishment of the National Judicial Appointments Commission or NJAC which is an independent body constituted for the appointment of judges to the SC and HC. However, the NJAC was deemed as being opposed to the independence of the judiciary as its composition allowed for direct say of the executive in the procedure. NJAC was soon declared as being ultra vires the Constitution in the case of Supreme Court Advocates on Record Association v Union of India[xxxv] which is also being called the 4th judges' case now. This case yet again brought back the law enacted by the 2nd judges' case and the 3rd judges case. However, again this issue is bound to arise in the legal fraternity in the nearby future.
[i] (1973) 4 SCC 225.
[ii] The Constitution of India, 1950.
[v] (1976) 2 SCC 521
[vi] Supra 2
[vii] Supra 2
[viii] Supra 5
[ix] AIR 1982 SC 149
[x] AIR 1994 SCC 868
[xi] Supra 9
[xii] Supra 2
[xiii] The Constitution of India , 1950
[xiv] SP Gupta v Union of India , AIR 1982 SC 149
[xv] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868 , page 494
[xix] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868, page 495
[xxi] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868, page 499
[xxii] Supra 13
[xxiii] The Constitution of India, 1950
[xxiv] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868, page 501
[xxvi] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868, page 502
[xxvii] Supra 23
[xxviii] Supra 23
[xxix] Supreme Court Advocates on Record Association v Union of India, AIR 1994 SCC 868, page 503
[xxx] Supra 9
[xxxi] Supra 1
[xxxii] Supra 23
[xxxiii] The Constitution of India, 1950
[xxxiv] In Re Presidential Reference,AIR 1999 SC 1
[xxxv] (2016) 4 SCC 1