Speaking through Justice J.S. Verma, a constitution bench of nine judges in 1993 delivering the majority judgment in what has popularly come to be known as the Second Judges Case gave the following ‘raison d’être’ while arrogating to itself the power of appointment and transfer of high court and Supreme Court judges:
“These questions have to be considered in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the ‘rule of law’, essential for the preservation of the democratic system.”
The court reminded the “constitutional functionaries involved in the process of appointing superior judges” that their “collective wisdom” is expected to ensure that
“persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is not unlikely that the care and attention expected from them in the discharge of his obligation has not been bestowed in all cases. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior judges 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 can be made. This is not difficult to achieve.”
The court stressed that it is “obvious” that the reason why the constitution provided for consultation with the chief justice of India (CJI) and high court chief justices is because “the chief justice is best equipped to know and assess the worth of the candidate, and his suitability for appointment as a superior judge”: “Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior judge.
Thus, was conceived the principle of primacy of the opinion of the CJI and his/her collegium colleagues in making appointments to superior courts but with a strong caveat:
“The CJI, for the formation of his opinion, has to adopt a course which would enable him to discharge his duty objectively to select the best available persons as judges of the Supreme Court and the high courts.”
Any decision by the government to withhold a recommended judicial appointment, the court held, must be “for good reasons” to enable the CJI to reconsider and withdraw his recommendation if needed. But if after due consideration, that recommendation “is reiterated by the CJI with the unanimous agreement of the judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.”
On transfers, the CJI is expected to form his final opinion objectively on available material, in public interest and only for the better administration of justice.
Interestingly, the court also fixed a kind of time-table for such appointments, holding that “adherence to a time-bound schedule would prevent any undue delay and avoid dilatory methods in the appointment process…” It also said,
“The process of appointment must be initiated well in time to ensure its completion at least one month prior to the date of an anticipated vacancy; and the appointment should be duly announced soon thereafter, to avoid any speculation or uncertainty”.
Subsequently, in 2016, the Supreme Court in its judgment popularly known as the NJAC case, struck down sub-clauses (a) to (d) of Article 124-A(1) and also the Constitution (99th Amendment ) Act, 2014 – which had introduced a National Judicial Appointments Commission, thereby reaffirming the law as enunciated in 1993.
The law laid down by the Supreme Court binds the collegium as well. Yet, the appointment and transfer of judges to the high courts and Supreme Court have not been strictly in terms of that law.
It would be improper to discuss doubtful individual appointments but one can safely conclude that the constitutional functionaries have not been alive to the serious implications of their obligations nor have they been zealous in the discharge of their obligation so as to ensure “that no doubtful appointment be made” or that” the best amongst those available be selected.”
The time schedule suggested by the court is also completely in jeopardy. As of December 2, 2021, as many as 126 recommendations made by the chief justices of high courts remain pending at various levels. Pertinently, 23 recommendations re-iterated by the CJI and the collegium are pending with the government. Besides, there exist hundreds of vacancies amongst the high courts across the country. Clearly, the direction to start the process before any vacancy arises is forgotten.
On the transfer of judges, the Supreme Court’s 1993 judgment has clearly been ignored by successive CJIs and collegiums, as can be clearly deciphered from the case of Chief Justice Mohammed Rafiq, a senior judge appointed to the Rajasthan high court in May 2006. Between 2019 and 2021, he has been appointed as chief justice of four high courts – Meghalaya, Orissa, Madhya Pradesh and Himachal Pradesh. Why? There can be no plausible explanation.
Somewhat, intriguing is the case of the chief justice of the Calcutta High Court, Justice Rajesh Bindal, who was appointed as such in April 2021 and then transferred to the Allahabad high court on October 11, 2021, coinciding with the West Bengal and Uttar Pradesh elections.
Justice Dipankar Datta was made a high court judge in June 2006 and appointed chief justice of Bombay high court, a chartered and important high court, on April 28, 2020, while Justice Akil Kureshi, though made a judge of the Gujarat high court on March 7, 2004, was appointed chief justice of Tripura high court, a remote and small high court on November 16, 2019 and as chief justice of Rajasthan high court on October 12, 2021. There are many such glaring examples, raising serious question marks over the years. The fact that two of India’s finest judges, Justice Kureshi and Justice S. Murlidhar, have not been recommended for appointment to the Supreme Court is contrary to the principle stressed by the constitution bench in 1993, that:
“due consideration of every legitimate expectation in the decision making process is requirement of the rule of non-arbitrariness and, therefore, this also is a norm to be observed by the Chief Justice of India in recommending appointments to the Supreme Court.”
Today, with over 40 to 50 million cases across the country, the appointment of judges and chief justices to the high courts is critical for administration of justice.
Will the current CJI and his indomitable collegium reverse this trend? Only time will tell.
Dushyant Dave is a Senior Advocate at Supreme Court of India and Former President of the Supreme Court Bar Association
