Appointment of Judges
Even if you keep yourself aloof from the Courts, Lawyers and Judges, your life is influenced by Judges; sometimes directly if you are a litigant or indirectly when Judges decide important questions of law and thereafter, executives implement those directions of the Court. Many of us have not witnessed the Proceedings in Courts to realise how debates go on in the Courts and how lawyers put in their hard work in presenting the view point and how much Judges exercise their minds to come to a conclusion as he knows the judgment is going to influence the lives of millions of countrymen. Umpteen number of maxims or principles of law and precedents come in their way to obstruct their thinking’s so that they are not wrong or they do not lay down wrong principles as the ratio of the case become binding precedents for all Courts and Hans are tied to decide only in that manner and in no other manner.
It is not that the principles once laid can not be altered or varied but normally Courts are loath or reluctant to deviate from the principles already enunciated. Once a principle is followed in large number of cases, it becomes more difficult to deviate.In the past. Several cases are reconsidered by larger benches and new principles are laid down.This is being followed by the Courts through out the world.
In the above premises, appointment of Judges should be considered.There have been always two sources of appointment, members of the Bar are directly appointed as Judges and members of the Judicial Services are also elevated to High Courts. Normally from Services when they are appointed, they are appointed from the Cadre of District and Sessions Judges who come to High Courts at the very fag end of their career. Very seldom Service Judges reach Supreme Court level though there had been few distinguished Service Judges who not only reached Apex Court became Chief Justice of India.
When Services Judges are considered for appointment, their entire service records are before the Recommending and Appointing Authorities. It is much easier. However, when a member of the Bar is considered for appointment, it poses a problem because of independence shown by the Advocates in their long professional career.
Constitution of India under Articles 124 for Supreme Court and under Article 217 for High Courts lay down the procedure for appointment of Judges. Before 1980 ,there were not many problems in appointment as the Chief Justice of the High Courts would send the recommendations to the Executives and invariably appointments used to go through. It would be the duty of the member of the Bar to honour the words of the Chief Justice if he called upon the member of the Bar seeking his consent to be a Judge. No member of the Bar would refuge the call of duty. Even the Chief Justice of the High Courts would feel confident in recommending the names. The day his consent is taken, he would thereafter refrain from appearing in Courts.
But upsetting the election of Indira Gandhi on corruption charges, Justice Jagmohan Lal Sinha, Justic Sllahabad High Court, changed the scenario. When she came back to power in 1980, controversies started. Indira Gandhi was intolerrent of Judiciary which lead to infamous supercession of Judges in 1973 and appointment of A.N.Ray as Chief Justice of India. Before Shah Commission there was a case of Justice U.R.Lalit ,a judge of Bombay High Court who was not confirmed which was cited as one of the emergency excesses.Indira Gandhi was always upset with Judiciary as it did not behave like an obedient child and always asserted its independence.
Many methods were deviced by Mrs.Gandhi to pack the Courts by her henchmen and she succeeded through two Law Ministers Sri P.Shivshankar and Sri Hans Raj Bhardwaj.But still it was not possible to infect the entire Judiciary.But A few infiltration itself was bad enough.Such a fear phycosis was let loose by her that even a Constitution Bench of the Supreme Court lost its glory in fundamental right case( ADM Jabalpur Case ).Judge’s transfer also became a boiling issue in 1980s when inconvenient judges would be transfered without consent.
Then came 1990s when a question was raised as to who should have primacy in appointment of Judges,the Executives or the Chief Justice of India.A seven Judge Bench of Supreme Court by majority of 5:2 held that a collegium of Three Judges ( Later Five Judges ) shall have primacy in appointment of Judges.It was laid down that to maintain the independence of Judiciary it is imperative that unanimous recommendations of the Collegium of the Supreme Court shall have primacy and the Executive shall be bound to appoint the Judges.
The Collegium system became a tool in the hands of Supreme Court to appoint Judges of their choice and the executives just remained an onlooker.After 10 years it was realised that Collegium is not functioning with transparency, latest was appointment of Justice Ashok Kumar of Madras High Court who was perceived to be corrupt.Justice Katju raised this issue of 2005 appointment now.Suffice to say,the Collegium System had not developed any institutional safeguards and it was lacking in transparency.
For the last few years a National Judicial Commission is being talked about which every government proposes and the Supreme Cort always opposes.The National Judicial Commission is still in formative stage and consultation process is still going on.Unless it takes some shape,it will not be prudent for me to comment upon.
Related articles by Sh. AK Srivastava
- Amending Powers Under The Constitution - October 12, 2014
- Encounter With Pakistan - October 10, 2014
- SWACH BHARAT-2 (CLEAN INDIA-2) - October 6, 2014
Excellent commentary on the procedural path of governance in vogue in our ‘democratic’ country. Just an addition which is a point to ponder over now, not just by governments,administrations or lawyer community but by citizens,litigants & political parties vying with one another to rule this vast republic . A certain chief has his ‘boys’ filled in to queue the next fifteen years at least of judicial dictation of laws. An avowed,unwritten policy being for courts to never interfere in matters of govt.policy although legislations enacted by parliament are subject to judicial scrutiny. Administrative action , other things apart, of appointment of judges of a certain political leaning or lineage is the Achilles heel in an otherwise dispassionate judiciary. The lining up of ‘successors’ in a feudal system of yes men and powerful henchmen calling the shots is most despicable,to say the least.
I would call upon my learned Brother, the wise author of this article to admit or deny this ” statement of facts” after analysing names of those jettisoned to the high posts across the decades of his standing at the Bar.
Bhushan duo strangely went silent ,like a damp squib after raising bogey of ‘judicial accountability’ . Mr.Hazare too staged a walk over. Rest of claimants to highest posts of governance too remain silent spectators. Even a NaMo cannot effectively bring in changes in society unless & until stables of governance be cleansed of old boys association.
While on the topic, NaMo will be well advised to desist from retaining same old advisers and coterie in any sphere of the administration.
Spiders and cobwebs ,like lizards haunt old temples . Here, of justice!
All honourable men !
Like ceasar’s wife though, let them all be above suspicion.
Jai hind!
For appointmentment from Bar,personal likes and dislikes alwys played a role but earlier liking and disliking was mainly based upon performance in the Courts.So far interference in Policy Matters are concerned,Courts hardly interfered unless the Policy violated the fundamental rights.Though Judgship is coveted position,many members of the Bar refuged to accept the position for various reasons.After all it is a salaried position.So the Judiciary failed to attract the best talent ftom the Bar particulerly after 1980 when transfer policy was put in place by Indira Gandhi Gvt.