To judge or not to judge


Is the Dinakaran imbroglio really a puzzling question? I do not think so. The Chief Justice of India, K.G. Balakrishnan, is right that the collegium is bound to follow the Supreme Court decisions on the point relating to the appointment of judges, till the law is changed. The real issue is: on that basis, is the solution for the problem not obvious? Once again my answer is in the affirmative. I have no doubt that the credibility of the appointment process and the image of the judiciary must not suffer further damage, shaking the public confidence which is the true strength of the judiciary. This factor impels me to write this piece.

The blame for the current situation is attributed mainly to the Supreme Court decision in the 1993 Second Judge’s case (AIR 1994 SC 269), which gave primacy to the opinion of the judicial collegium in the matter of appointments. As the author of that opinion I must dispel that impression — indicating that the decision does carve out to the executive the area of non-appointment of a person on the ground of doubtful antecedents. The executive, therefore, is not helpless if in such a situation the judicial collegium’s recalcitrance to withdraw the recommendation continues. It is the duty of both organs to ensure that a known doubtful appointment is not made of a judge at any level, more so in the apex court.

Let me say at the outset that I neither know Justice Dinakaran, nor do I comment on the merits of the allegations made against him. I speak only on the basis of the information in the public domain brought out by media reports of the uncontroverted facts, which to my mind are sufficient for his non-appointment to the Supreme Court on the above ground.

A brief reference to the existing law governing the appointment of Supreme Court and high court judges on which the appointing authorities rely is useful. The recognised principle stated in the 1982 First Judge’s case to govern the exercise was reiterated in my separate opinion in the K. Veeraswami case (1991(3) SCC 655), thus: “The collective wisdom of the constitutional functionaries involved in the process of appointing a superior judge is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful person gains entry. It is, therefore, time that all the constitutional functionaries… should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment is made even if some time a good appointment does not go through. This is not difficult to achieve.” (Emphasis supplied.)

In the 1993 Second Judge’s case the majority opinion, which I wrote, held: “The process of appointment of judges of the Supreme Court and the high courts is an integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment… There may be a certain area, relating to suitability of the candidate, such as his antecedents and personal character, which, at times, consultees, other than the Chief Justice of India, may be in a better position to know. In that area, the opinion of the other consultees is entitled to due weight, and permits non-appointment of the candidate recommended by the Chief Justice of India… If the non-appointment in a rare case on this ground turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment… Non-appointment for reasons of doubtful antecedents relating to personal character and conduct, would also be permissible.” (Emphasis supplied.)

Thus, the settled law on the point is: a person of doubtful integrity or antecedents should not be appointed a judge of the Supreme Court; the area of non-appointment on this ground is clearly in the executive domain, notwithstanding the recommendation for appointment made by the CJI; it is safer and in public interest to not appoint a doubtful person, even if it turns out later to be a bona fide mistake. The executive is not powerless to thwart the appointment of such a person; the Supreme Court decision expressly empowers the executive in this behalf.

In Justice Dinakaran’s case, the media reports, based also on the statements of the CJI, say that the report of the district collector sought on some allegations pertaining to land grabbing is adverse to the candidate and that the outcome of a further inquiry by another authority is awaited. If the available material is sufficient to create a reasonable doubt warranting further inquiry, the test for non-appointment laid down judicially is satisfied and it is difficult to appreciate the propriety of keeping alive the issue of his appointment to the Supreme Court. I for one, with experience of the office of CJI and as the author of the opinion that lays down the existing law, find the persistence with the recommendation embarrassing and contributing to an erosion of the image of the institution. I wish the imbroglio ends soon with withdrawal of the recommendation.

The power of withdrawal is inherent and need not be specified. There are precedents of withdrawal of recommendations even to the Supreme Court on discovery of adverse material subsequently. I myself, as CJI, withdrew a recommendation for appointment of a judge as chief justice of a high court on further information regarding his antecedents. I wish this matter ceases to get curiouser every day. That is not good for the institution, which is bigger than any individual.

It must be remembered that elevation to the Supreme Court and continuance in the high court are two different issues. Merely non-appointment to the Supreme Court does not automatically call for removal of the judge from the high court, which can be done only for “proved misbehaviour or incapacity” under Article 124(4). For non-appointment, a reasonable doubt, as indicated above, is sufficient; and for removal further inquiry ending with proof based on authentic materials of the allegations of misconduct or misbehaviour is necessary. In the case of Justice Dinakaran, his non-appointment on this material is at present the only issue.

I write this piece with the hope that it helps to end the imbroglio soon, satisfactorily.

The writer is a former Chief Justice of India


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