Who will judge the judges?
BY RAVI KIRAN JAIN , SENIOR ADVOCATE IN BAR AND BENCH
“Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” -Lord Acton
“Power corrupts, absolute power corrupts absolutely”, a very old saying appears to have been put aside by the Supreme Court while deciding the case of SC Advocates on Record and thereafter deciding Presidential Reference No. 1 of 1998 (AIR 1994 SC 268 and 1999 SC Page 1), popularly known as Second Judges case and Third Judges case respectively. The judgment in the Second Judges case was welcomed because it overruled S.P. Gupta case popularly known as First Judges case. The fallout of S.P. Gupta was that the opinions of the Chief Justice of India (CJI) and Chief Justices of the High Courts were totally ignored in matters of appointment and transfer of judges as power had slipped in the hands of the corrupt executive to the exclusion of the judiciary and for a period of about 12 years the judges were appointed by the corrupt executive. The judgment in First Judges case was given on December 30, 1981, in Second Judges case the judgment was given on October 6, 1993 and in Third Judges case it was given on October 28, 1998. In First Judges case the 7 Judge Bench by a majority held that the primacy in matters of appointment and transfer of judges is that of the executive and not of the judiciary. The S.P. Gupta case went to the extent of holding that consultation by the President of India with the CJI in the case of Supreme Court, and CJI and Chief Justices of the High Courts in case of appointment of a High Court Judge, is only formal.
A 9 Judge Bench was constituted in pursuance of an order dated October 26, 1990 passed in Subhash Sharma vs. Union of India (AIR 1991 SC 128). The papers of the S.C. Advocate on Record Association vs. Union of India were directed to be placed before learned Chief Justice of India to examine the two questions referred therein namely- the position of the CJI with respect to primacy, and justiciability of fixation of judge’s strength. The Bench in Subhash Sharma’s case which referred the said two questions was of the opinion, that the correctness of the majority view in S.P. Gupta vs. Union of India (AIR 1982 SC 149) required reconsideration by larger Bench. It was in this backdrop that the judgment in Second Judges case was welcomed. In the Second Judges case the Supreme Court held that the opinion of the CJI, for the purposes of Articles 124(2) and 217(1), so given, has primacy in the matter of all appointments: and no appointment can be made by the President under the provisions to the Supreme Court and the High Courts, unless it is in conformity with the final opinion of the CJI formed in the manner indicated. The “manner indicated” was that the opinion given by the CJI in consultative process has to be formed taking into account the views of the two senior most judges of the Supreme Court, and the CJI is also expected to ascertain the views of a Judge of the Supreme Court whose opinion is likely to be significant in adjudging the suitability of the candidate, by reason of the fact that he has come from the same High Court. Similarly in matters relating to the appointment in the High Courts, the CJI is expected to take into account the views of the colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. This view of the Supreme Court in Second Judges case rested on the concept of independence of judiciary being the basic feature of the Constitution.
It may be seen here that Articles 124 and 217 of the Constitution which are relevant regarding the manner of appointment of Supreme Court and High Court Judges is silent about the primacy or supremacy either of the executive or of the judiciary. The ruling of the majority judgment in S.C. Advocates on Record Association vs. Union of India was clear and required no clarification in as much as it was clearly held therein that the opinion of the CJI in the process of consultation in the matter of selection and appointment of judges to the Supreme Court and the High Court’s as well as transfer of judges from one High Court to another High Court is entitled to have the right of primacy, and is binding upon the President of India. However, in purported exercise of his power under Article 143 to refer to the Supreme Court for its opinion questions of law or fact “which have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain such opinion”, the President of India made a reference to the Supreme Court in answer to which Third Judges case was decided by a Constitution Bench. A bare perusal of the Presidential Reference which has been quoted in Third Judges case clearly goes to show that it was more of a clarification or an interpretation of the Second Judges case than some “questions of law or fact” of such public importance that it required a reference to the Supreme Court. The Presidential Reference starts by saying “WHEREAS the Supreme Court of India has laid down principles and prescribed procedural norms in regards to the appointment of Judges… in the case of SC Advocates on Record Association vs. Union of India” and then the Presidential Reference proceeds to say:-“AND WHEREAS doubts have arisen about the interpretation of law laid down by the Supreme Court… Now, Therefore, in exercise of the powers…I K.R. Narayanan …. whereby refer the following questions to the Supreme Court of India namely:
(1) Whether the expression “consultation with CJI in Article 217 (1) and 222 (1) requires consultation with a plurality of Judges in the formation of the opinion of the CJI or does the sole opinion of the CJI constitute consultation within the meaning of said Articles”.
And then similar questions about the interpretation of the judgment in Second Judges case from Q No. 2 to 9 were formulated. The Supreme Court in Third Judges case, after having quoted the Presidential Reference in extenso proceeded to give answer to the questions by quoting some parts of the Second Judges case and a perusal of the whole judgment in the Presidential Reference goes to show that it was nothing but an exercise of interpreting/clarifying the majority view in the Second Judges case. It appears that the Presidential Reference was wholly misconceived in as much as no Presidential Reference can be made just to interpret some earlier judgment of the Supreme Court. This reference should have been returned by the Supreme Court without answering it and holding that it was misconceived. In paragraph 9 of the Third Judges case it was observed:-“we record at the outset the statements of the Attorney General that:
1. The Union of India is not seeking a review or reconsideration in the Second Judges case.
2. That the Union of India shall accept and treat as binding the answers of this Court to the questions setout in the REFERENCE”.
Through this judgment the manner of appointment of judges through the collegium system was introduced. It may be seen here that in the Second Judges case there was nothing at all to introduce a collegium system. Although a bare reading of the relevant provisions of the Constitution of India goes to show that the collegium system was not in accordance with the constitutional scheme but it was generally welcomed. To begin with, the system seemed to work well. In early 1999, a large number of judges were appointed in various High Courts and it appeared that all those appointments were made on the basis of objectively viewing the merit by the collegiums of Supreme Court and various High Courts. The appointments were to the satisfaction of all concerned. However, soon after its working for a brief period it started appearing and an impression was gaining ground that the collegium system has derailed from its basic objective of choosing judges on the basis of merit. On the other hand there have been pertinent complaints that the merit had taken a backseat while considering or choosing a lawyer for judgeship and this has been causing anger as well as frustration amongst those who stood deprived of the judgeship despite being eligible on the ground of merit. Of late the majority of the members of the Bar have become more vocal than they were in the past about the inadequacies in the appointment of judges. The collegium of the Supreme Court and the High Courts started laying their hands upon the kith and kin of the senior advocates for choosing judges which created conflicting vested interest in the Bar which prevented a united agitation against the arbitrary manner in which the judges were being appointed.
The judgment in the Third Judges case is clearly against the constitutional provisions. Laying down that there has to be a collegium system for the appointment and transfer of Judges amounts to amending the Constitution of India. But all that was welcomed when the judgment came in as much as it was expected that the collegium system would work objectively.
Why the collegium system has derailed from its basic objective of choosing judges on the basis of merit so soon after it having worked well for a brief period? The reason appears to be that the judges appointed in various High Courts during the period the executive had the supremacy to appoint them (i.e. between 30.12.1981 and 6.10.1993) became senior judges in the Supreme Court and started becoming members of the collegium of the Supreme Court and the collegium of the various High Courts, so much so that when Justice V.N. Khare was the CJI the whole of the Supreme Court was packed with the judges who were appointed in post SP Gupta and pre SC Advocates on Record case who had a different mindset being chosen during the period of the supremacy of the executive.
The Supreme Court assumed “absolute power” in matters of appointment and transfer of judges of the superior courts has become absolutely clear now when we see in a recent judgment given by the Supreme Court in Mahesh Chandra Gupta vs. Union of India (JT 2009(9) SC 199), a 2 Judge Bench has demonstrated that it had assumed such absolute power by virtue of the judgments in Second Judges case and Third Judges case. What particular meaning should be given to the words “Corrupt” or “Corruption” when we talk of judicial corruption is difficult to say. Whatever be the meaning, at the cost of repetition, it is submitted that the Supreme Court put aside the famous saying “Power corrupts, absolute power corrupts absolutely” while giving judgments in Second Judges case and Third Judges case. The Second Judges case and Third Judges case were welcomed when they were given, but then with the passage of time and the manner in which the collegiums of the Supreme Court and the High Courts had been using its power, a realization was coming and controversy was increasingly becoming a matter of debate, and a demand of a judicial commission to replace the collegium system was becoming popular. But now after the judgment in Mahesh Chandra Gupta’s case in which the Supreme Court has demonstrated the assumption of absolute power (which corrupts absolutely) the debate is becoming one sided. The judgment in Mahesh Chandra Gupta’s case was given in the following backdrop.
His appointment was made to the post of Additional Judge of High Court on 18th August, 2008 by the President of India under her warrant. He was a total stranger to Allahabad High Court. He never practiced as an advocate. He was only enrolled as an advocate on 13.7.1975, and thereafter he remained in service at various places between 1975 to 1997, a period during which he ceased to practice and then became member of Income Tax Appellate Tribunal. His appointment was challenged by a practicing advocate of Allahabad High Court Mahesh Chandra Gupta by filing a writ of quo-warranto. The Division Bench comprising of Justice Harkauli and Justice Vikramnath heard the matter at length and at the stage of probing to see a prima facie case, the Bench passed an order, directing the High Court to produce before the Bench a report of Three Judges Committee on the recommendations of which the collegium of the High Court recommended the name of Dr. Satish Chandra to the Supreme Court collegium, only to be perused by the Court on 25 September, 2008, making it clear that if the High Court proposed to claim privilege or raise any objection to the production of the report, it would be open to the High Court to do so by moving an application and if such an application was made on or before 25 September, 2008 it would not be necessary for the High Court to produce the said report unless the said objections were disposed off. The Allahabad High Court was a party in the Writ Petition. In an SLP filed by the High Court against this order, shockingly, the Supreme Court issued notice and stayed further proceedings in the High Court. The Bench was headed by CJI. One would be shockingly surprised to know that the notice was issued in SLP in such an innocuous interim order just for production of the report of a committee and that too for the perusal only of the Court, making it clear that if the High Court had any objection or wanted to claim privilege it could do so, and in that eventuality the report would not be necessary to be produced. Was it a case in which by any stretch of imagination the Supreme Court could issue notice? The notice was issued by a Bench presided over by the CJI, but then it was transferred to a Bench comprising of Justice S.H. Kapadia and Justice Aftab Alam. After the notice was issued in the SLP, the High Court filed a Transfer Petition in the Supreme Court under Article 139A of the Constitution to transfer the original Writ Petition filed by Mahesh Chandra Gupta form High Court to Supreme Court. It was all the more a shocking surprise that the Supreme Court allowed the transfer petition, withdrew the Writ Petition from High Court to itself. Both, the Transfer Petition and the SLP were connected but against all cannons of law the SLP was put aside and the counsel of Mahesh Chandra Gupta was asked to argue the transferred Writ Petition. The counsel submitted that the Supreme Court had no power to transfer the petition of Mahesh Chandra Gupta under Article 139A of the Constitution. The Judges did not agree and proceeded to hear the transferred Petition on merit. Article 139A provides that: “Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself”.
No other case involving the same or substantially the same question of law as involved in Mahesh Chandra Gupta’s Writ Petition was pending either in the Supreme Court or in any other High Court, and therefore the necessary condition to exercise the power did not exist. The Supreme Court by its judgment dated July 6, 2009, has dismissed the Writ Petition of Mahesh Chandra Gupta and upheld the appointment of Dr. Justice Satish Chandra as Additional Judge of Allahabad High Court.
Three manifest errors of law were committed by the Supreme Court in initiating proceedings to bring the Writ Petition from the High Court for being decided by itself and preventing the Division Bench of the High Court, to decide the Writ Petition which passed an innocuous order to produce report of three judge committee. The first is that it entertained SLP against the innocuous order of the High Court, the second is that it transferred the original Petition from the High Court to itself against the Constitutional provision, and the third is that it put aside the SLP and dismissing it as having become infructuous after the judgment in the original transferred petition.
Justice should not only be done but should also appear to have been done. A manifest in justice has not only been done but has demonstrably appears to have been done with impunity by the manner in which the appointment of Dr. Satish Chandra has been upheld by the Supreme Court. The name of Dr. Satish Chandra was recommended by the collegium of the Supreme Court headed by CJI. Besides the aforesaid three manifest errors of law leading to injustice, a grave judicial impropriety was committed that the initiation of the proceedings in the Supreme Court took place at the hands of a Bench presided by CJI, but when it was criticized, the CJI recused himself from the Bench and then transferred it to the Bench presided over by a senior Judge of the Supreme Court, who is also next CJI.
While hearing the transferred petition the judges of the Supreme Court were shown the Three Judge Committee Report. It was perused by them. But it was not shown to the counsel of the petitioner. It was not a fair procedure. After the judgment has been delivered by the Supreme Court it has become a matter of common knowledge in Allahabad High Court that the Three Judge Committee Report made adverse remarks against Dr. Satish Chandra. It was observed in the Report that he had a bad reputation as a judicial member of the Income Tax Appellate Tribunal.
In paragraph 35 of the judgment, the Supreme Court has observed: “….the information contained in the Report of the Sub-committee was also brought to the notice of the Supreme Court collegium, though through a different route”. What was that ‘different route’ has not been disclosed in the judgment neither it was told to the counsel of the parties when the matter was being argued. This observation in the judgment has been made obviously to justify the recommendation of the Supreme Court collegium. This fact that the Report of the Sub-committee was brought to the notice of Supreme Court collegium came to light only through the judgment. There was nothing in record of the Writ Petition to show that the report of the sub-committee was brought to the notice of the Supreme Court.
The Writ Petition filed by Mahesh Chandra Gupta was a writ of Quo Warranto with a prayer for issuance of Quo Warranto directing Dr. Satish Chandra as a Judge of Allahabad High Court to show the authority of his office and justify the constitutionality of his appointment as judge of Allahabad High Court. The Allahabad High Court was only a formal party. No relief was claimed against the High Court. The Division Bench of the High Court from whose board the Supreme Court transferred the petition to itself, had not yet issued a notice to Dr. Satish Chandra, when the High Court went in SLP against the order dated 10.9.2008 directing Allahabad High Court to produce the Report of the Sub-committee of Three Judges. How could the High Court be agreed against such an order? The Division Bench of the Supreme Court has decided the case as if the Writ Petition of Mahesh Chandra Gupta was directed against the collegium of the Supreme Court. It was not so.
Coming to the merits of the judgment after having held that Dr. Satish Chandra was enrolled as an advocate on July 13, 1975 and thereafter never practiced, the Supreme Court held that the requisite constitutional requirement is not actual practice as an advocate and what is required is that in order to be eligible a person should have a right to practice and remains enrolled as an advocate with such a right of practice although he may not have actually practiced. In paragraph 23 of the judgment it has been held that “actual practice cannot be read into the qualification provision, namely, Article 217(2)(b). The legal implication of the 1961 Act is that any person whose name is enrolled on the State Bar Council would be regarded as ‘an advocate of the High Court’. The substance of Article 217(2)(b) is that it prescribes an eligibility criteria based on ‘right to practice’ and not actual practice”.
In the concluding part of the judgment the Supreme Court observed: “Before concluding, we may state that ‘continuity of an Institution’ is an important Constitutional principle in the Institutional decision-making process which needs to be insulated from opinionated views based on misinformation. At the end of the day ‘trust’ in the decision-making process is an important element in the process of appointment of judges to the Supreme Court and the High Court, which, as stated above, is the function of an integrated participatory consultative process”. The judges who decided this case are living in ivory towers. The credibility of the Supreme Court as institution has further been eroded by this judgment. The judgment is being severely criticized by the members of the Bar in the corridors of the High Court. It is also being criticized by almost all the judges here at Allahabad. A total stranger claiming himself to be an advocate of this High Court has been foisted upon the people here.
The rationale of Mahesh Chandra Gupta boils down to this: A citizen cannot challenge the appointment of judge on any ground whatsoever even if he has a bad reputation or even if he has obtained recommendation of collegium by practicing fraud. The judges of High Courts should not have the courage to exercise their power under Article 226 of the Constitution to entertain a writ of Quo Warranto against a judge of High Court and if they do so the same would be treated by the collegium of Supreme Court to be a Writ Petition against them. For eligibility mere enrolment as an advocate is enough- actual practice at the Bar is not required. ‘Suitability’ cannot be questioned because it is in the exclusive domain of the My Lords of the Supreme Court. The citizen has to trust the institutional infallibility of the Supreme Court.
In retrospect in ADM Jabalpur the message was clear – trust the executive for it can do no wrong. In Mahesh Chandra Gupta the message is clear and unequivocal – trust the institution for it can do no wrong. In Antulay the Supreme Court rose to its majestic heights by admitting that it had been wrong- the plea of institutional infallibility was available even then. In Mahesh Chandra Gupta the process has been reversed.
Power corrupts and absolute power corrupts absolutely, nay it is the fear of losing power. The fear syndrome has struck. It is time to write obit of the Rule of Law and Judicial Review – the signature tune of the Constitution. Also time to bury them in archives of history or, let us say, preserve them for academics or intellectual exercises.