The Hindu Business Line : Appointment of judges

The framers of India’s written Constitution wisely built into it checks and balances in order bring about a harmonious balance in the powers and responsibilities of the three branches — the Executive, the Legislature and the Judiciary — of the Government. They knew that in a democratic set up, the absence of such a balance, and the distortion and even perversity resulting therefrom, would render effective governance an impossibility. The people particular ly look up to the judiciary to maintain and preserve the equilibrium by its interpretation of various laws and decisions on the legality and constitutionality of the exercise of their functions by various authorities, in cases coming before it.

Right of final say

In the matter of appointment of judges to the High Courts and the Supreme Court, however, by its judgment in SC Advocates on Record Association vs The Union of India (1993), and reiterated in its advisory opinion in a Special Reference made by the President in 1998 for clarification, the Apex Court had claimed to itself the unquestionable right of final say, negating the Constitutional status of the President, representing the Executive.

The substance of that judgment is that the opinion of the Chief Justice of India (CJI), formed after following the procedure prescribed in the judgment of consultation with his brother judges and, where necessary, with the Chief Justice and companion judges of the High Court concerned, has primacy in regard to all appointments and no appointment can be made by the President to the Supreme Court and the High Courts, unless it is in conformity with CJI’s final opinion. This reduces the Government to an automaton, with no scope for applying its mind to the justifiability and suitability of the recommended names.

The Government of the day and its successors have, since then, accepted the situation, apparently taking the ruling as the law declared by the Court, although it is only a procedure devised by itself and not implicit or explicit in the provisions of the Constitution governing appointment of judges to the Supreme Court and High Courts. Actually, the elaborate scheme of selection and appointment, and total exclusion of the President from its purview, laid down in the SC Advocates on Record Association case seems to overshoot the mark upsetting the Constitutional balance. There is a strong case for the Government for moving the Supreme Court for a review of the judgment and advisory opinion.

Restoring balance of power

Such a course has also been urged upon the Government by the Law Commission of India in its 214th report. It must be remembered that the Commission is headed by a former Supreme Court Judge, Justice A. R. Lakshmanan. Especially pertinent are the following observations made by the Commission: “… in all other Constitutions either the Executive is the sole authority to appoint judges or the Executive appoints [judges] in consultation with the Chief Justice of the country. The Indian Constitution has followed the latter method. However, (the Supreme Court) has completely eliminated and excluded the Executive ….the Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”

With increasing reports of malfeasance and corruption among judges, leaving the evaluation of qualifications, quality and merit of the persons selected solely to the collegium of Supreme Court judges at the cost of accountability and transparency is neither desirable nor in the public interest.

The Government should act on the Law Commission’s advice without delay.

B. S. RAGHAVAN

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