Appointing Chief Justices: The way out


The article, “Remedy worse than the malady”, penned by a former Supreme Court Judge and five retired Chief Justices of High Courts on September 9, 2010, regarding the policy of appointing a Chief Justice of a High Court from outside the state has stirred an intense debate among the legal fraternity. Two eminent jurists give their view.

by Fali S. Nariman

The article “Remedy worse than the Malady” in The Tribune (September 9) by a former Supreme Court Judge and five former High Court Chief Justices was impressive. But, from the other side of the fence, my experience does not wholly coincide with the suggestions made. There is another angle to the subject that helps illustrate a different point of view.

The Calcutta Bar often recalls that one of their most notable Chief Justices in recent times was the late Justice P.D. Desai (1988-1991). He was a stranger to the Bengal Bench and Bar, having been transferred there from another place (Shimla) where he was also a stranger, and yet most popular. On transfer to Kolkata, P.D. Desai quickly found his feet in the court where Sir Elijah Impey (first Chief Justice of Bengal) sat; and the Bar took to him instantly.

Ditto was the case with Chief Justice Chittatosh Mookerjee of the Bombay High Court (1987 to 1991), transferred from Calcutta. Grandson of one of India’s first Chief Justices (Ashutosh Mookerjee) and son of another Chief Justice, Chittatosh had “good-judging” in his veins. In Bombay, he did what no indigenous Chief Justice had done before. When 200 members of the Bar went to him with a signed petition complaining about the errant behaviour of four sitting Judges of the Bombay High Court, he did not turn them away, nor did he accept at first blush all that they had to say.



He took his time, made his own investigations, found that the allegations were largely true, and immediately stopped giving work to the four named Judges. This created a furore – both among the four, as well as in Delhi. The then Chief Justice of India (Ranganath Misra) came down to Bombay and upbraided the Bombay Bar for having taken “the law into their own hands”. Chittatosh turned a deaf ear to the CJI. And he told the complaining judges that they were free to file writ petitions against his administrative order under Article 226 of the Constitution.

However, till the Court on the judicial side said he was wrong, the no-work order would remain. No one — not one of the four errant judges — had sufficient confidence in their own integrity to do what the Chief Justice said.

The experiment of disciplining them, by not giving them work, actually worked. It has since become known as the Bombay Experiment — it toned up the Bombay High Court.

There is however, much truth in the following passage (in The Tribune article): “experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the State, its people, their customs and traditions or even his colleagues, the subordinate judiciary, and the members of the Bar…”

May I respectfully add: And do you know why? It is because the ‘outsider’ Chief Justice is constantly looking over his shoulder, expectantly waiting-in-the-wings to be pulled up! Generally (not always — there are notable exceptions) the outsider Chief Justice is not greatly interested in a High Court where he has never sat or practised, and whose customs and traditions are not familiar to him. He uses the Chief Justiceship of a High Court only as an intermediate stop — to reach the (hopefully) ultimate destination: New Delhi. When this doesn’t happen (which is often) the High Court suffers.

When it does happen, some other aspirant to the highest office takes his place — with like expectations. And the game of looking-over-one’s-shoulder goes on. All this is bad for judicial harmony, bad for the High Court, bad for the state: but the remedy for this lies not in revoking the policy of transfer but by levelling the retirement age of all Judges of the superior judiciary (High Courts and Supreme Court) to 65 years.

Today High Court Judges retire at 62, Supreme Court Justices at 65. If and when the retirement age is levelled at 65 for all, a Chief Justice — especially of a large High Court — would have to be persuaded to join as a Judge of the Supreme Court; and with levelling, members of the Collegium would not be troubled with 61-year-olds knocking at their doors for “elevation”!

The working life of a Judge of the Supreme Court is not a bed of roses: the job requires intense concentration, extraordinarily hard work and robust good health. All High Court Judges are simply not cut out for it: there has to be a credible process of close scrutiny and selection: whether by the Collegium or by some other body or group which may be “invented” for the future – whoever it is, whichever that body, it must have the time and sufficient data (including inputs from responsible members of the Bar) to assess the relative worth and calibre amongst High Court Chief Justices, and High Court Justices.

Regrettably, too often in my experience, able and prominent Chief Justices in High Courts have been overlooked in the past for reasons difficult to fathom — at least one of them is the co-author of the article under review!

The writer is an eminent jurist

by Justice A.R. Lakshmanan (retd)

In every forum, there is a long debate about introduction of judicial reforms. It is only being talked about and has not so far been implemented. The time has now come to give a serious thought to it.

The 18th Law Commission of India has already given various recommendations on the subject of reforms in the judiciary, which subject is very dear to my heart. In particular, the Law Commission has submitted that a detailed report to the Government of India to reconsider the Judges’ cases I, II and III by its Report Nos. 2 and 4 giving ample reasons as to why the three judgments should be reconsidered.

The word Collegium is nowhere present in the Constitution of India. It was first used by Justice P.N. Bhagwati in the majority judgment of S.P. Gupta vs. Union of India. The expression of Collegium and the Collegium of Judges has been freely used in Paragraphs 15 and 22 of the said judgment.

The Collegium is now to consist of the Chief Justice of India and four seniormost Judges of the court and in the appointment of a High Court Judge, the Supreme Court Judge acquainted with that particular High Court should also be consulted raising the number to six. There is no indication as to what happens if there is no consensus among the consultees or if the majority disagrees with the Chief Justice of India.

On a scrutiny of several constitutions of other countries, it may be seen that in all other constitutions, either the executive is the sole authority to appoint Judges or the executive appoints in consultation with the Chief Justice of the country. Our Constitution has followed the latter method.

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 High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the Second Judges’ case and the opinion of the Supreme Court in the Presidential Reference. It is time the original balance of power was restored. The Parliamentary Standing Committee on Law and Justice has also recommended the scrapping of the present procedure for appointment and transfer by Supreme Court and High Court Judges.

In every High Court, the Chief Justice is from outside the state as per the Government of India’s policy. The seniormost judges who form the collegium are also from outside the state. Consequently, the Judges constituting the Collegium are not conversant with the names and antecedents of the candidates and, more often than not, appointments suffer from lack of adequate information.

Two alternatives are available to the Government. One is to seek a consideration of the aforesaid three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.

The 18th Law Commission has submitted a detailed report suggesting various reforms in the judiciary, including the selection and appointment of High Court Judges. The High Court Judge has importance under our Constitution and the incumbent is often supposed to be not only fair, impartial and independent, but also intelligent and diligent.

The general eligibility criteria is that a person should have put in 10 years of practice/service in the legal/judicial field. The post of Chief Justice should not be transferable. This practice was introduced in our country after the Emergency (1975-77) had been imposed. The Chief Justice who comes on transfer for a short period of six months, one or two years is a new man, alien to the place and passes his time somehow. He has to depend on others for policy decision in administrative matters.

If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary but also assist the persons both from the Bench and the Bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancies in the High Court.

If the functioning of the High Courts is to be improved, the policy of transferring the Chief Justice has to be given up forthwith. Now the time has come when this policy needs re-evaluation.

Likewise, the policy needs to be changed for enhancing the retirement age of the High Court Judges and Supreme Court Judges at least by three years. Similarly, there is no uniformity in the age of retirement of the Judges of the tribunals in the country. The 18th Law Commission has also submitted a report recommending uniformity in the age of retirement of the Chairmen and the Members of the different tribunals at the age of 70 and 65 respectively.

Considering the huge pendency of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days of the court. It has to be introduced at all levels of judicial hierarchy and it must start from the Supreme Court.

The recommendations for an urgent and immediate review of the present procedure for appointment of Judges are being fortified by various legal luminaries and many retired Judges of the Supreme Court. The time has now come to reconsider these suggestions.

The writer is a former Judge, Supreme Court of India and Chairman, Law Commission of India


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