The tussle between the government and the judiciary over appointment of judges appears to be far from over because the former has rightly opposed the Supreme Court collegium deciding to scrap the Judgments Evaluation Committee (JEC) set up in the 24 high courts which decided whether an additional judge (temporary judge on probation for two years) is suitable for confirmation as a puisne or permanent judge.
This was the only objective parameter for evaluation of high court judges, some of whom were juniors of famous lawyers who became judges. An example is that of Justice Girish Kulkarni, one of the youngest judges of the Bombay high court who was a junior of Supreme Court Justice Dhananjay Chandrachud. There is no doubt that Justice Kulkarni is a very good judge but having been Chandrachud’s junior also helped him.
Sons and daughters of judges often become judges like Justice Riyaz Chagla, who is the grandson of the first chief justice of India, M.C. Chagla and the son of Bombay high court senior counsel Iqbal Chagla, who turned down judgeship of the Supreme Court “because I would be the CJI for too short a time to make a difference,” as he admitted some time ago in the David Sassoon library.
These guidelines for setting up JECs in each high court which have now been withdrawn were issued by the then CJI S.H. Kapadia who has expired. On October 30, 2010, Justice Kapadia sent a letter to the chief justices of the 19 high courts (at that time) outlining the steps to be taken for setting up of these JECs.
Today, the reported judgments of lawyers who wish to be elevated as high court judges are scrutinised while in the case of district judges, their case disposal time and number of adjournments granted are evaluated by in-house teams. One-third of those elevated to the high court are from the subordinate judiciary while the remaining two-third are senior lawyers.
Former CJI J.S. Khehar wrote to the 24 high court chief justices that the assessment of additional judges of high courts to determine their suitability for confirmation as puisne judges was contrary to paragraph 41 of the judgment delivered in S.P. Gupta’s case of 1987 which is why the practice of having a judges’ committee chaired by the chief justice of each high court to confirm an additional judge or not was discontinued. Those judges who formed the JEC were not part of the collegium which decided who would be elevated as high court judges.
The present advocate-general Ashutosh Kumbhakoni, who was earlier a high court judge, was unhappy over the fact that those from the subordinate judiciary had been made his senior which reduced his chances of going to the Supreme Court. This prompted him to resign after his letters to the then President Pratibh Patil evoked no response. Today, the BJP government has rewarded him with the post of advocate general.
Once a judge is made a puisne judge, the only way to force him to quit is by way of impeachment in Parliament which has not worked till date in the case of judges who are corrupt or unable to discharge their duties. Justice V. Ramaswami was the first judge in 1993 to face the ignominy of impeachment while Justice P.D. Dinakaran of the Sikkim high court and Justice Soumitra Sen resigned from the judiciary in 2011 after facing impeachment motions.
Judges appointing judges to protect their independence is not what was envisaged by the founding fathers. B.R. Ambedkar replied to a question during the Constituent Assembly Debates by declaring :” We do not want to give the right of appointment of judges to any one single hand. Be it the Prime Minister or the Council of Ministers or even the Chief Justice of India (CJI). “
But the Constitution speaks through the Supreme Court which has a monopoly in declaring what its various articles mean. These interpretations may change according to a changing economic and political situation as when Justice Hameedullah Beg was rewarded with chief justiceship in 1976 after he wrote that life itself could be suspended during an Emergency in the infamous ADM Jabalpur case. In August 2017, Justice D.Y.Chandrachud overruled his own father, Y.V.Chandrachud who assented with Justice Beg.
The collegium system was created in 1987 in S.P.Gupta’s case and today, it has a monopoly in deciding who will be a judge and who will not. Sometimes, their decisions have been disastrous as seen in the case of Justice C.S. Karnan who created history by going into hiding after being sentenced to six months jail for contempt of court.
No record is kept of collegium meetings which is the anti-thesis of a democracy as the seniormost collegium member, Justice Chelameshwar Rao has pointed out when he boycotted collegium proceedings. He would have been the CJI were it for an inexplicable delay in elevating im to the apex court.
But to return to the present, Union law minister Ravi Shankar Prasad has said he accepted the striking down of the 99th amendment of the Constitution which resulted in the scrapping of the National Judicial Appointments’ Commission Act to appoint high court and Supreme Court judges. He remarked in a laconic vein, that the Prime Minister could be trusted with the nuclear button but not with appointment of judges.
Apparently, there is a big difference between starting a nuclear holocaust and creating a judicial holocaust by rejecting incumbent judges on the grounds of “national security” whatever that might mean. Olav Albuquerque is a journalist-turned-lawyer of the Bombay high court with a Ph.D in law from the University of Mumbai.