Justice Krishna Iyer, who enters his hundredth year today, took the Supreme Court in a new direction while evolving radical principles
Justice Vaidyanathapuram Rama Iyer Krishna Iyer was born on November 15, 1915, was sworn in as a judge of the Supreme Court on July 17, 1973 and retired at the age of 65 on November 14, 1980. He now starts his journey to complete a century.
Justice Krishna Iyer’s elevation to the Supreme Court raised eyebrows and scepticism in many legal circles. I must confess that my scepticism soon turned into admiration.
Several judicial activists reached the Supreme Court of India in the mid-seventies. Justice Krishna Iyer wielded considerable influence on the thought processes of his colleagues such as Justice P.N. Bhagwati (later Chief Justice of India) and Justice Chinnappa Reddy. They were articulate, sensitive and had a strong desire to translate the vision of the constitution makers into reality.
A new direction
By 1980, Justice Bhagwati and Justice Krishna Iyer became senior justices and took the Supreme Court in a new direction while evolving radical principles. Justice Krishna Iyer, a revolutionary at heart, principally triggered this internal revolution in the thought processes of his colleagues — a movement vigorously carried forward by Justice Bhagwati and Justice Chinnappa Reddy.
A new public interest jurisprudence was fashioned, the old ‘locus standi’ rules were jettisoned, epistolary litigation was encouraged and a strategy was evolved for giving relief to the disadvantaged and underprivileged. Procedural ‘due process’ was restored to centre stage, overruling earlier decisions. Consequently this radical transformation gave high international stature and visibility to the Supreme Court. It was an explosive enlargement of the court’s jurisdiction. It carved out a niche in the common citizens’ heart whose respect and adoration for the higher judiciary reached glorious heights.
Justice Krishna Iyer’s prolific judgments, his gentle and disarming demeanour as a judge, his unrivalled grasp of facts and law, his empathy for the disadvantaged, and his courtesy and consideration for the young lawyer appearing before him was a unique blend of judicial virtues.
Justice Krishna Iyer’s interim order of June 24, 1975 — a day before the Proclamation of Emergency on June 25, 1975 — in the Indira Gandhi case has a historical significance. Mrs Gandhi lost her election case and was disqualified. He did not give Mrs Gandhi, the serving Prime Minister, an unconditional stay despite huge media hype. She was allowed to function as Prime Minister, attend the House, but without a right to vote following well-settled precedents.
H.M. Seervai, the great constitutional lawyer but no uncritical admirer of Justice Krishna Iyer, wrote: “As the historian turns from the High Courts to the Supreme Court his task will be harder, for the history of the Supreme Court during the Emergency is a history of two different periods: the first began a day before the Emergency and ended with Prime Minister Indira Gandhi’s Appeal in the Election Case; the second began with the Habeas Corpus Case and ended with the revocation of the Emergency by a defeated Mrs Gandhi, unwilling to put into the hands of her opponents a weapon she had forged and used against them. Of the first period, the historian will say that the Supreme Court moved towards its finest hour, a day before the Proclamation of Emergency, when, on 24 June 1975, Krishna Iyer J., following judicial precedents, rejected an application made by Mrs. Gandhi that the Allahabad High Court’s order, finding her guilty of corrupt election practices and disqualifying her for 6 years, should be totally suspended. In the best traditions of the judiciary, Krishna Iyer J. granted a conditional stay of the Order under appeal, although he had been reminded by her eminent counsel, Mr. N.A. Palkhivala, “that the nation was solidly behind (her) as Prime Minister” and that “there were momentous consequences, disastrous to the country, if anything less than the total suspension of the Order under appeal were made”.”
“He spurned the lure of pelf and power and governmental patronage and became an unrivalled champion of social justice, constitutional values and the rule of law.”
Justice Krishna Iyer earned the unintended, unforeseen and doubtful distinction of having judicially fathered the Emergency leading to preventive detention of many opposition leaders including Jayaprakash Narayan, Atal Bihari Vajpayee, L.K. Advani and Morarji Desai.
He recalls in his book Off the Bench how the then Law Minister H.R. Gokhale, a good friend, expressed a desire to meet him at his residence after Mrs Gandhi’s disqualification by the Allahabad High Court judgment in connection with her appeal. He politely refused to see him and indicated that the correct way was to file the appeal in the Registry which would be taken up promptly.
Justice Krishna Iyer’s crowning glory and finest hour were after retirement. He spurned the lure of pelf and power and governmental patronage and became an unrivalled champion of social justice, constitutional values and the rule of law. He blossomed into an iconic and inspirational figure both nationally and internationally.
The renowned Australian Judge Michael Kirby, a former President of the International Commission of Jurists, described him as “incontestably one of the great spirits of the common law of this century.”
Justice Krishna Iyer’s services to the nation, the rule of law, the judiciary and the disadvantaged and underprivileged give him a stature comparable to many who have been honoured with a Bharat Ratna. Many believe that his unique, lustrous and incomparable contributions earn him the sobriquet of Nyaya Ratna.
(Anil Divan is a senior advocate of the Supreme Court.)
In view of the order dated 26 July 2012 in Criminal Appeal 135/2010 – Budhadev Karmaskar vs State of West Bengal & Ors the present debate and controversy stirred up by the NCW Chairperson Lalita Kumarmanglam on Legalization of sex trade is a contempt of Supreme Court Orders. The National Commission of Women has been a party to the case and are aware of the Bench clarification dated 26 July 2012.
Speaking to the Times Of India she said that “I will only speak about the issue after the national consultation on November 8,” . “It is my personal and professional view that sex work should be legalized but the commission must make an informed decision and I am open to listening to all views. I will be using a lot of time next week to hold informal consultations on the issue, talking to all advocacy groups and others to understand what their apprehensions are.”
On October 28, Kumaramangalam told a daily that legalization will bring down trafficking of women and lower the incidence of HIV and other sexually-transmitted diseases. She also said she intends to put forth the proposal at the November 8 meet of the SC appointed Panel.
Bharti Dey of Durbar Mahila which supports the Legalisation Debate has stated “Police very often get paid to let off traffickers. Regulation will decriminalize the trade,” says Dey, whose organization currently runs self-regulation units and has sent at least eight traffickers to jail. She also points out that many of those entering the profession are extremely poor, have few options and know what they are getting into. “But they make it to our communities through traffickers and middlemen. Legalizing will remove these middlemen,” she says.
Supreme Court Lawyer and President of Shakti Vahini Ravi Kant while opposing the statement of the NCW Chairperson statement stated “Prostitution is Organised Crime and Violation of Fundamental Rights. Trafficking and sexual slavery is worst form of Human Rights Violation. No women joins this inhuman trade out of choice. More then 95% of the women have been trafficked and forced into the sex trade”.
He further elaborated that ” Immoral Traffic Prevention Act 1956 criminalises the organised crime of Prostitution. Organised Prostitution creates a demand for young girls for the brothels which is met by trafficking of minor girls from across the Country.Giving Prostituion a legal status will be giving boost to demand of young minor girls who will be trafficked. In countries where such legalization has happened it has led to exploitation of women and girls and also commodification of women bodies.
He added that there here is no doubt that women who have been caught in the sex trade need access to all Government facilities and schemes and efforts must be made to see that they join the mainstream and are properly rehabilitated. Also those who indulge in this organised crime of human trafficking which leads to kidnapping of young girls from across the country need to be properly punished.
On the role of the Governmental agencies he lamented “The sad part is that inspite of various recommendations from the Supreme Court in various cases no geniune efforts have been made by any Government to see that this social malice which results from Organised Crime be eradicated”.
Kant further stated “The statement of the National Commission for Women Chairperson for legalising prostitution is deplorable. It is time that the Government of India ammends the Immoral Traffic Prevention Act and brings in harsher punishments to the people who are involved in this organised crime”.
The Supreme Court in its order dated 26 July 2012 has clarified that its endeavor to provide right to life and access to governmental schemes should not be construed as an encouragement to prostitution. The clarification had come from a bench of Justices Altamas Kabir and Gyan Sudha Mishra after additional solicitor general P P Malhotra had drawn the court’s attention to its July 19 order in which it had sought suggestions from the SC-constituted panel on creating “conditions conducive for sex workers who wish to continue working as sex workers with dignity”.
Malhotra had said there was a danger of the order being construed as an incentive to indulge in an activity that had been termed as an offence under the Immoral Traffic Prevention Act, 1956.
The Judges on the bench passed had passed separate orders, but both meant to clarify that the panel would recommend steps to create “conditions conducive for sex workers to live with dignity as per provisions of the Constitution Article 21”.
Justice Kabir added a precautionary clarification — “The above modification should not be construed to mean any attempt made to encourage prostitution.”
Hearing the Petition Justice Mishra had clarified, “I prefer to add…sex workers have a right to live with dignity but the collective endeavour must be on part of the sex workers to give up the trade in case they are given alternate platform.”
The Detailed Order of the Bench Dated 26 /07/2012 is as follows :
1. CRLMP.NO.12415 of 2012, has been filed on behalf of the Union of India, for modification of the order passed by this Court on 19th July, 2011, referring certain issues to the Committee which had been constituted by the said order itself.
2. The first modification sought by the Union of India is for deletion of the Durbar Mahila Samanwaya Samiti, from the panel. The second modification sought is with regard to the third term of reference, which reads as follows:-
(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
3. Appearing in support of the application, the learned ASG, Mr. P.P. Malhotra, submitted that the Samiti in question had been actively advocating the revocation of the Immoral Traffic(Prevention) Act, 1956, and had also been advocating the recognition of sex trade being continued by sex workers. The learned ASG submitted that the continuance of such Samiti in the panel is giving a wrong impression to the public that the Union of India was also inclined to think on similar lines. The learned ASG submitted that this wrong impression should be removed by excluding the Samiti from the panel.
4. As far as the second issue is concerned, the learned ASG submitted that wording of such reference could be suitably modified so as not to give an impression that the Union of India was in favour of encouraging the sex workers, in contravention of the provisions of the aforesaid Act.
5. We have heard Mr. Pradip Ghosh, learned senior advocate and Chairman of the Committee, as also learned senior advocate, Mr. Jayant Bhushan, who is also a member of the Committee and its co- Chairman and Mr. Grover, learned senior advocate, on the issue.
6. It has been submitted by Mr. Ghosh that at the meetings of the Committee, the members of the Samiti had contributed a great deal towards the understanding of the problems of the sex workers and it was not as if the said Samiti was encouraging sex trade, but were providing valuable inputs into the problems being faced by people engaged in the trade. Mr. Ghosh, Mr. Grover, and Mr. Bhushan, in one voice urged that the presence of the Samiti in the Committee was necessary even to function as a sounding board in respect of the problems that are faced by this marginalised and unfortunate section of society.
7. We agree with the submissions made by Mr. Ghosh, Mr. Grover and Mr. Bhushan, learned senior counsel, and are not, therefore, inclined to delete the Samiti from the Committee, as prayed for by the Union of India, and such prayer is rejected.
8. As to the second issue, it will not in any way make any difference to the terms of reference, if the wording of the third term of reference, is modified to the following effect:-
“Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”
9. The above modification, should not, however, be construed to mean that by this order, any attempt is being made to encourage prostitution in any way.
10. CRLMP.NO.12415 of 2012, is, therefore, disposed of in term of the aforesaid order.
11. Let this matter now be listed for consideration of the Sixth and Seventh Interim Reports, filed by the Committee, on 22nd August, 2012, at 3.00 p.m.
12. Let this Bench be reconstituted on the said date and time for the aforesaid purpose.
.………………J. (ALTAMAS KABIR) NEW DELHI; JULY 26, 2012.
1. While concurring with the views of my learned brother Justice Altamas Kabir, I prefer to add in regard to the second issue that this Court should not be misunderstood to encourage the practice of flesh trade or advocate the recognition of sex trade merely because it has raised the issue to emphasize the rehabilitation aspect of the sex workers, for which this Court had taken the initiative right at the threshold. I consider this essential in order to allay any apprehension which prompted the Union of India to move this application for modification, by highlighting that the sex workers although have a right to live with dignity as the society is aware that they are forced to continue with this trade under compulsions since they have no alternative source of livelihood, collective endeavour should be there on the part of the Court and all concerned who have joined this cause as also the sex workers themselves to give up this heinous profession of flesh trade by providing the destitute and physically abused women an alternative forum for employment and resettlement in order to be able to rehabilitate themselves. I, therefore, wish to reiterate by way of abundant caution that this Court should not be perceived to advocate the recognition of sex trade or promote the cause of prostitution in any form and manner even when it had stated earlier in its terms of reference regarding conditions conducive for sex workers who wish to continue working as sex workers with dignity.
2. Thus, when we modify the earlier term of reference and state regarding conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution, the same may not be interpreted or construed so as to create an impression or draw inference that this Court in any way is encouraging the sex workers to continue with their profession of flesh trade by providing facilities to them when it is merely making an effort to advocate the cause of offering an alternative source of employment to those sex workers who are keen for rehabilitation. When we say conditions conducive for sex workers to live with dignity, we unambiguously wish to convey that while the sex workers may be provided alternative source of employment for their rehabilitation to live life with dignity, it will have to be understood in the right perspective as we cannot direct the Union of India or the State Authorities to provide facilities to those sex workers who wish to promote their profession of sex trade for earning their livelihood, except of course the basic amenities for a dignified life, as this was certainly not the intention of this Court even when the term of reference was framed earlier.
3. We, therefore, wish to be understood that we confine ourselves to the efforts for rehabilitation of sex workers which should not be construed as facilitating, providing them assistance or creating conducive conditions to carry on flesh trade for expanding their business in any manner as it cannot be denied that the profession of sex trade is a slur on the dignity of women. Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution be therefore understood in its correct perspective as indicated above.
J (GYAN SUDHA MISRA) New Delhi, July 26, 2012 ———————–
Senior advocate Fali S. Nariman appearing in cases before the Supreme Court where his son is a judge has revived an old debate regarding the appropriateness of such appearances
In 1967, when U.S. President Lyndon B. Johnson appointed the son of U.S. Supreme Court Judge Tom C. Clark as the Attorney General, Clark promptly resigned from his post. This was because an Attorney General will have to make frequent appearance in the court in which his father will be one of the judges adorning the bench and in that Supreme Court all the nine judges sit together. But in India that has not been the case. Right now the matter regarding the appropriateness of a lawyer appearing in a court in which his near relative is a judge has gained significance in the context of Fali S. Nariman, a leading senior advocate of the Supreme Court, continuing to appear in cases before the Supreme Court in which his son Rohinton F. Nariman has become a Judge since July 2014. While some criticism was aired regarding this in public, Mr. Nariman dismissed complaints maintaining that there is no legal bar for such appearance and said that everyone is equal before the law.
What rules say
Until 1961, in India, there were instances in which lawyers appeared in the same court over which their relatives were presiding. But after the Advocates Act, 1961 empowered the Bar Council of India to frame rules on the matter, such incidences have become rare. Under Rule 6 of the norms established by the Bar Council, no lawyer can practise in a court where any of his relatives functions as a judge. The list of such relatives included his/her father, grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or sister-in-law. However, there have been controversies as to whether the term ‘court’ mentioned in this Rule refers only to the court of that particular judge or the entire court where the relative works.
During the early 1980s, this rule came up for interpretation before the Karnataka High Court. Pramila Nesargi, a woman advocate who got married to Nesargi, a Karnataka High Court Judge who had lost his wife at that time, appeared before the court of Justice P.P. Bopanna. She was not a senior advocate at that time and as her name did not find mention in the vakalat filed in that case, the Judge directed her to file a vakalat to represent her client. The next day when her name appeared in the cause list, the judge who heard her case refused to allow her to appear before any judge in the Karnataka High Court.
He ruled: “The Bar Council prohibits a lawyer from appearing in a Court where a close relative works as a judge. While the term ‘court’ does not specifically refer to all the courts in a particular High Court, we should be strict in respect of a wife. A wife has an intimate relationship with her husband. Many matters discussed among judges would reach her ears. When a woman who has access to confidential matters in respect of a Court is allowed to practise in the same Court as a lawyer, it can spell danger.”
” Advocates Act, 1961 empowered the Bar Council of India to frame rules so that no lawyer can practise in a court where any of his relatives functions as a judge. ”
Subsequently, the matter was raised before the Supreme Court which ordered notice to the Bar Council. But the case was not taken to its logical end and the matter became infructuous as the counsel involved became a senior advocate and the Judge concerned was superannuated. Yet the controversy over the interpretation of the rule still continues to haunt the courts. When Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate P. B. Krishnamoorthy shifted his practice to another State. There was also a strange practice adopted by a lawyer in the early 1970s. The said lawyer used to sign hundreds of memos of appearances in bail applications so that those matters will not go before his father-in-law judge, who was known to be strict regarding granting of bail.
When Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practise in any court in India opting for private employment. Justice V. Sivaraman Nair of the Kerala High Court had worked as a junior of Justice Krishna Iyer. But as soon as his daughter and daughter-in-law started practising in the Kerala High Court, he requested the President of India to transfer him to another State.
Justice Leila Seth, a former Chief Justice of Himachal Pradesh writing in her autobiography recalled her experience in the Patna High Court regarding the two kinds of ‘practice’ the Bar had adopted.
She wrote: “I heard people talking about ‘Uncle Practice’ and ‘Lal Jhanda’. I wondered what all this was about. I learnt that, since a son was not permitted practice in his father’s court, if you did not want the matter to be heard by that court, you briefed the son and thus stopped the matter from going before the father; you had put out a warning ’Red Flag’. This misuse of a rule that had been incorporated to prevent partisan decisions was apparently quite prevalent, and some young lawyers even managed to make a living out of it. It was also rumoured that certain judges favoured the sons of their brother judges, and so the ‘Uncle Practice’ thrived.”
In S. P. Gupta’s case (1981) dealing with the judges’ transfer issue relating to close relations taking undue advantage of a sitting judge, the following way out was suggested to avoid embarrassment: “We have to take into account the advice given by the CJI in one of the seminars that where close relations of a Judge or the Chief Justice practise in the same court and are likely to gain undue advantage, the concerned judge should himself, in obedience to the keen sense of justice which every Judge possesses opt to be transferred to some other High Court.”
In 1997, all the judges of the Supreme Court assembled under the Chairmanship of Chief Justice J. S. Verma and adopted a resolution on ‘The Values in Judicial Life’. That resolution stated that a judge should prohibit a close relative of his from appearing in his court. It also stated that no relative of his should practise law while staying in the Judge’s house. Markandeya Katju, in his judgment in Raja Khan’s case, sounded a warning on the ills of kith and kin being allowed to practise in the same court as their relatives. He said: “Some Judges have their kith and kin practising in the same court, and within a few years of starting practice the sons or relations of the Judge become multimillionaires, have huge bank balances, luxurious cars, huge houses and are enjoying a luxurious life. This is a far cry from the days when the sons and other relatives of Judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyer.”
What is the way out?
When Justice R. M. Lodha took over as the Chief Justice of India, some presspersons raised a question as to whether it was not possible to prohibit relatives of a judge from practising as lawyers in the same Court. He replied that it was up to the Bar to find a solution to the problem. He also dismissed a public interest litigation filed by advocate M. L. Sharma seeking a ban on the relatives of judges practising in the same courts.
With the controversy reviving in the context of Mr. Nariman appearing in the court where his son is a judge, the Bar Council of India must be called upon to suitably amend relevant rules and uphold the faith of the common man in the judiciary.
(K. Chandru is a retired Judge of the Madras High Court.)
>>There was a reference to Justice A.S. Bopanna in the Comment page article – “Father, son and the holy Court” (Oct. 24, 2014). It should have been Justice P.P. Bopanna.
Debates on the collegium system generally start at the wrong place, namely, whether a national judicial commission will be a better alternative. The point at which they ought to start is whether the creation of such a system is constitutionally permissible. Article 124 of the Constitution states that every judge of the Supreme Court shall be appointed by the president in consultation with such of the judges of the Supreme Court, and of the high courts in the states, as the president may deem necessary. It also says that in the case of appointment of a judge other than the chief justice, the chief justice of India (CJI) shall always be consulted.
In the name of the independence of the judiciary, the Supreme Court said in 1993 that primacy in the matter of judicial appointments must lie in the final opinion of the CJI, “unless for very good reasons known to the executive and disclosed to the chief justice of India, that appointment is not considered to be suitable”. To mitigate the violence done to the
plain language of the Constitution and to reassure every one that power did not rest in one individual alone, that is, the CJI, the court created a new constitutional institution, a collegium of the senior-most judges.
This was not a creative interpretation of the Constitution, as the apologists for the collegium system would have us believe, but a plain rewrite. This was judicial overreach and it was only last year, 20 years later, that serious attempts began to repair the damage to the Constitution.
Having stated my fundamental objection, I will recapitulate my three other objections. First, there must be an element of democratic accountability in the matter of appointments to the higher judiciary, which has the power to strike down laws of Parliament and state legislatures, and even amendments to the Constitution. Second, when judges appoint judges, they look mainly at “technical competence” and seniority. They do not necessarily look at the social philosophies or gender sensitivities of prospective candidates. Third, judges do not pay particular attention to the idea of manpower planning, as is clear from the many short-term appointments of chief justices and short-term appointments to the Supreme Court. In a judge-dominated system, everyone needs to be given a “chance”.
And so, it is about time that we put a better system in place. There is no going back now to the original system of the executive appointing judges in consultation with the judiciary, by invoking the doctrine of “original intent”. Much has changed in the world since we enacted the Constitution. Processes of judicial appointments are far more participatory all over the world. Stakeholders in the justice delivery system are now accorded an important role. Let us look at just two examples.
In Canada, the advisory committee for judicial appointments includes a member of parliament from each recognised party, a retired judge, a nominee of the attorney general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. In South Africa, the Judicial Service Commission includes judges, the minister for justice or his nominee, advocates and solicitors nominated by their respective professional bodies, a professor of law, senators and four nominees of the president of whom two shall be advocates or solicitors.
The judicial appointments commission (JAC) needs to be written into the Constitution itself, not only in terms of its creation but also its composition. It is necessary to make this point because the previous government had originally sought to bring the commission into the Constitution, but left it to Parliament to make an ordinary law to prescribe its membership. This was undesirable. Successive governments would have been free to change its composition according to their will.
Should the JAC be a part-time body? The Union Public Service Commission is not part-time. Surely, appointments to the superior judiciary are not less serious a matter than civil service appointments. But the present collegium, by its very nature, can only meet in the evenings after the judges have finished their arduous courtroom work, and before they start writing their judgments and reading for their cases the next day. To make appointments to the Supreme Court and all the high courts in the country, we need a full-time institution with a permanent secretariat and its own information- gathering wing. And so, the judicial members would have to be former and not sitting judges. Similarly, jurists and eminent citizens will need to be full-time members. The only possible part-time ex officio member could be the law minister.
The national judicial commission will need to devise new methods for attracting talent to the judiciary. The old practice of “asking” and “inviting” must be supplemented by calling for applications from interested candidates (currently, you can apply to become a district judge, but it is bad form to apply to be a high court judge!). Search committees will have to look for the best legal talent, not only from within the court system but also outside. In the current system, non-litigating lawyers don’t ever get considered.
And the question of the “tilting balance” remains. Former judges (most recently, Justice A.P. Shah) take the view that the independence of the judiciary can only be secu red by judges outnumbering the others. I, however, believe that democratic accountability in the process of appointment is equally important and, in principle, judges should be marginally outnumbered.
Finally, since it looks as if we are getting down to business, we need to attend to the removal process as well; it is part of the same Article 124 that is going to be amended. Impeachment involves getting signatures from MPs. On the one hand, it makes it difficult for even genuine complaints to proceed further. On the other hand, it politicises the process. One impeachment failed because the then ruling party abstained from voting, and two others were aborted by midstream resignations (civil servants are not allowed to resign in the middle of disciplinary inquiries; can judges be allowed to do so?). The proposed national judicial commission must therefore be in charge of the removal of judges as well.
The writer is a senior lawyer in the Supreme Court
The appointment of judges at the level of the high courts and Supreme Court continues to be problematic, in spite of cosmetic changes brought in through judicial activism in two stages. What remains is known as the collegium system. It was formulated by a nine-judge bench of the Supreme Court after hearing long arguments addressed by top-ranking counsel. Initially, the collegium system was generally welcomed, despite opposition from politicians on the ground that the judges had arrogated to themselves the power of choosing judges. But in due course, it received criticism from different quarters, including members of the Bar. It is true that the collegium system has remained in force for more than 15 years. As the years have passed, burgeoning criticism that the present system did not remedy the drawbacks of the erstwhile mechanism have eventually become more strident.
At least in a few instances, unsuitable persons have found their way to seats of judges in the high courts. It is, of course, a matter of relief that the number of such persons has not swelled to alarming proportions. At the same time, it would not be true to say that no unsuitable person has reached the Supreme Court bench through the collegium system. The lesson to learn is that however much improvement is sought to be achieved through changes to the appointments process, the efficacy of its working depends on the vision and dedication of the persons empowered to manage the system.
The chairman of the Law Commission of India has suggested that a seven-member judicial appointments commission (JAC), with a preponderance of members from the judiciary, be instituted. But of what use are the proposed changes if some members of the JAC function in the same manner as before? What is the guarantee that only persons of impeccable and proven integrity, coupled with the moral strength to assert their dissent (if any) on record, would fill up the JAC? Having been a member of the collegium of the Supreme Court, I know how outsiders seek (and get) access so as to canvass for the decision-making process. I doubt that the situation would change if the proposed composition of the JAC were to be implemented. I am also not prepared to say that the selection of “eminent persons” would not become diluted in due course, particularly because of the vagueness in standardising who these “eminent persons” can be. I am sceptical of the outcome of the JAC in the long run, given that the scope for manipulation and favouritism cannot be fully eliminated even within it.
A former chief justice of the Kerala High Court had evolved an experiment while adhering to the collegium mechanism. When there were three vacancies of Bar candidates, he invited recommendations from all his companion judges in the high court, requesting them to send at least five names each. He got 40 names altogether, and shortlisted them to 10. He studied their performance and presented his views before the other members of the collegium of the high court. When there was dissent, he expanded the three-member collegium and obtained their views also. He made the final recommendation to the Supreme Court. In that process, the Kerala High Court gained three very fine judges. I thought that the same could be followed by the chief justices of other high courts and, in fact, I wrote an article in support of it. But on deeper thought, I sensed that if the practice continued and remained in place for much longer, the scope for canvassing with other judges for interested persons would have increased greatly and the experiment would have been rendered ineffective.
The criticism that the executive has now no role in the appointment of judges is, to a great extent, misplaced. In my view, there should not be any dispute on the proposition that judges should have the first-stage opportunity to point out who the best candidates for judgeship are. But their judgements on that score cannot be treated as infallible. When names of candidates are sent by the collegium to the executive, it is definitely possible for the executive to conduct a thorough inquiry through such departmental agencies as they could trust. Then the executive can send back the names to the collegium for further consideration and a final decision. One change I wish to propose is to permit the executive to propose names to the collegium at the initial stage.
Whenever recommendations are to be made for more than two vacancies (it may go up to 15 and sometimes even to 20), there could be a temptation for members of the collegium to compromise in order to accommodate candidates on barter considerations. Whenever bulk recommendations have occurred in the past, some not-so-suitable (if not totally unsuitable) candidates have succeeded in getting access to the list. This defect can be effectively eliminated by restricting recommendations strictly to one or two vacancies at a time, and definitely no more. In my view, the existing system can continue with the modifications indicated above.
The judiciary has been praised by some for its role in exposing corruption in politics, while others point to the defective method of selection of judges through the collegium system to criticise it. To prevent further easy public slapping of the judiciary, we must now finalise the method of appointment.
The suggested pattern of a judicial appointments commission broadly fills the void. It is headed by the chief justice of India (CJI) and includes the next two senior judges, the Union law minister, two eminent persons (emphasis added) to be selected by the prime minister, the CJI and the leader of opposition in the Lok Sabha. Some rightly feel that “eminent persons” should be substituted with “eminent jurists”, because “eminence” by itself is too vague. Instead, “eminent jurist” would provide a larger field of academics, authors, outstanding lawyers (no longer practising, of course). The fear that the presence of a lay person would interfere with the independence of the judiciary is misplaced. As the Judicial Commission of New South Wales Annual Report said: “Judicial independence is not some kind of industrial benefit generously extended to judges and magistrates, it is [the] fundamental principle of our society’s constitutional arrangements.”
The provision with regard to the appointment of high court judges, however, states, unacceptably, that the JAC is only required to elicit (emphasis added) the views of the governor, chief minister and the chief justice of the high court. I can hardly see any relevance of eliciting the view of the chief minister separately from the governor. I, however, take strong objection to reducing the position of the chief justice of a high court to merely eliciting his view. The advice of the chief justice of a high court as to the suitability or otherwise of a person to be appointed a judge of a high court should normally be accepted.
Reportedly, though technically the collegium is being sought to be abolished, the CJI has asked chief justices of the high courts to consult their colleagues, even junior ones, as far as possible. But this suggestion may only be observed in the breach. I remember that in 1977, the Janata government’s informal suggestion that the chief justices of the high courts consult two senior colleagues was observed more in the breach. It was only when the collegium system was established that the chief justices of the high courts had no option but to consult their colleagues.
However, this did not mean that the government has accepted the collegium’s recommendation in all cases. In 1985, the chief justice of a high court and his two senior-most colleagues recommended four names, with the clarification that they must be appointed in the order in which the names were sent. This was done to prevent the government from picking and choosing on the specious argument that some names had not yet been cleared by the CBI and the appointments might be delayed, while those lower down the list could be appointed immediately. This was opposed by the chief justice, and the law ministry was so affronted that the government did not appoint any judge during his tenure. Afterwards, too, the law ministry first appointed new names and only later appointed those recommended by the earlier collegium. So the government’s intervention can only be checked by a strong judiciary. It is for this reason that I have reservations on doing away with collegiums entirely. The collegium system is welcome inasmuch as it constitutes a wider circle of three judges, rather than leaving it solely to the chief justice of the high court. The CJI’s advice to consult two more judges is welcome. I see no reason to abolish the collegium system at the high court level (which, after all, is only recommendatory). The appointments are now to be made under the provisions of the proposed JAC.
I am amazed that, so far, a serious self-inflected injury is being overlooked — that is, appointing the chief justices of high courts outside their parent court. I have never understood the logic of transferring the senior-most judge, whose turn to head the court in which he has worked for almost 10 to 15 years, and with the functioning and lower judiciary of which he is most familiar, has come. To transfer him to a new court for a period of one or two years or even less, to which he is a total stranger and most likely unaware of the names of his colleagues, is strange. At present, one has the embarrassing spectacle of a chief justice being transferred to a state where he cannot even understand the language. The chief justice of a high court should be the senior-most judge of the same court. This alone will lend strength and dignity to the high courts.
Section 8 of the new bill contemplates asking the state and Central governments to send recommendations for the selection of judges. I find this to be a frontal attack on the judiciary. After a JAC is constituted, the state or Central governments have no locus standi and should be outsiders in the process of selection. I agree though that the JAC should make public the names it is contemplating for appointments to high courts and the Supreme Court. This will make the process more open and participatory, and also negate the charge of secret manoeuvring in the appointment of judges.
The writer is a former chief justice of the Delhi High Court
The clamour against the courts has been continuous. Initially, there was talk of a “committed” judiciary. Then, of judicial accountability and transparency. And so on. The latest is — why should judges choose judges? Hence, the effort to replace the collegium by a Judicial Appointments Commission (JAC). The bill has already been passed in both Houses of Parliament. Is it the right way to do so? I think, No.
Let us see what is happening in the country. Who selects ministers? The prime minister and chief ministers. Who selects the generals? The generals. Who selects army commanders? The army. Who selects government servants? The government.
Why then do we want a different method of selection for the judiciary? Why should the judiciary not be allowed to select judges? Is it an effort to destroy the one institution that has performed and exposed scams and scandals like Coalgate and 2G?
The founding fathers created a judicial pyramid. The subordinate courts were the base. Then came district courts. The high courts followed at the state level. The Supreme Court was placed at the apex. They also laid down the procedure for the selection and appointment of judges. The selection and appointments of the officers in the subordinate and district courts are made in accordance with the rules framed and promulgated by the government in accordance with the Constitution. The “control” vests in the high court. In so far as appointments to the higher judiciary are concerned,
the matter was considered by the Supreme Court in the second and third judges’ cases.
The court’s dictum has been followed. Judges to the high courts and Supreme Court have been selected by collegiums for some time now. The scope for interference by the political executive has been reduced to a minimum. Consequently, criticism from different quarters is understandable. But can the JAC improve the quality of judges?
No system of selection can be absolutely perfect. Institutions run by human beings will reflect human frailties. A fact that deserves mention is that the Constitution itself provides for Union and state public service commissions to make selections to the various services. The commissions have been in place for a long time. Has their performance been beyond reproach or even satisfactory? Have these commissions not been described as “personal” service commissions? The kind of eminent persons proposed to be included in the JAC are usually members of the state and Union public service commissions too. Yet, what do we have? Petitions in courts alleging all kinds of malpractices. Still more, states have moved petitions, prosecuted members or chairpersons of the commissions for different irregularities and even offences. Would a similar commission for judicial appointments change everything for the better? Looks unlikely.
Second, the state is the single-largest litigant in the country. Should a litigant have any say whatsoever in the choice of judges?
Third, in a democracy, independence of the judiciary is of paramount importance. A fearless and independent judiciary is a basic feature of the Constitution of India. It is a part of the “basic structure” and should not be sacrificed at the altar of the executive’s anxiety or ego. Legally speaking, the validity of the proposed bill is extremely doubtful.
The members of the collegium also monitor the performance of judges and lawyers who have to be considered for appointment to the high courts or the Supreme Court. They examine judgments of the persons who are considered for elevation. So far as the JAC is concerned, the majority shall not have that opportunity. They will necessarily have to depend upon hearsay evidence. This will be totally improper.
It is alleged that the collegium does not have a mechanism to “verify the character and antecedents of judges.” I think, it is not so. The court and/ or the chief justice can always ask the concerned agencies to do the needful. In certain cases, it has been actually done. I think the fear is wholly unfounded.
It has been suggested that judges sometimes indulge in mutual give-and-take. As a result, some people who should not have become judges at all have been elevated to still higher positions and courts, it is argued. Assuming this to be correct, can anybody claim we are totally impervious to all kinds of political and social influences or pressures? Has it never happened that, at the highest level, files are held up till the name of a particular person is cleared by the collegium?
But is the JAC the solution? No!
A rare exception under the collegium system has the potential of becoming the rule when the final word is left to the executive. Are the series of scams and scandals that have taken place recently in India not enough to caution us about the state of political morality? The judiciary is one institution in India that has performed and delivered. We can tinker with it only at our own peril.