Judicial Appointments

Author(s): Nirmalendu Bikash Rakshit

Source: Economic and Political Weekly , Jul. 3-9, 2004, Vol. 39, No. 27 (Jul. 3-9, 2004),
pp. 2959-2961
Published by: Economic and Political Weekly

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 Judicial Appointments
affect the independence of the judges by
denying them security of service.
Naturally, the nomination by the head
of state remains the only method to be
The Constitution had laid down provisions for the impartial adopted for choosing judges. In such a
case, the judges are inducted for a long
and merit-based appointment ofjudges to the superior courts.
time and, thus, it gives them the security
However, the spirit of constitutional provisions has been affected of service and, at the same time, gives
by the biases and prejudices of appointing authorities. The them the opportunity to gather precious
proposed National Judicial Commission is a welcome development experience in the matter of settlement of
disputes.
and will hopefully ensure that the judiciary remains free of But this method also has its own defects.
executive influences. The head of state may have his own political
liking and it may unduly motivate his
NIRMALENDU BIKASH RAKSHIT proper recruitment of the judges is one personal choice. Moreover, he may be
of the necessary ingredients to maintain advised and, even, pressurised by his
It is gratifying to note that the central that judicial excellence. The judges ministers to choose some persons of their
government has, very recently, decided interpret the law, protect the Constitution own faith or choice. In such a case, the
to set up a National Judicial Commis- and settle all disputes which come up party in power is sure to capture the ju-
sion for the appointment of judges of within the complex society. But they diciary for its sinister interests.4 It is a
Supreme Court and high courts. The pro- must perform these stupendous duties proverbial truth that while it is necessary
posed commission, a five-member body, honestly, independently and with circum- to inject justice into politics, it is danger-
will be chaired by the chief justice of spection.1 Unless they are properly ous to inject politics into justice. So, there
India. Two seniormost judges of the apex chosen, there may be frequent miscarriage is a necessity to curb the executive author-
court, the law minister of India and an of justice, because with small men no ity of choosing the judges by introducing
eminent citizen, possibly of the legal sector, great thing can ever be accompolished. If some constitutional means.
will be its members. The commissionthe lamp of justice, thus, goes out in The makers of our Constitution have
would, for filling up vacancies in the
darkness, it would surely bring about a surely considered these arguments and,
Supreme Court and high courts, prepare
total catastrophe. hence, they have provided for some checks
For this reason, our constituent assem-
a panel of names out of which the presi- on the presidential power of choosing the
dent would make his ultimate choice. bly carefully considered the pros and cons judges. So, Articles 124(2) and 217(1)
It means that the government intends toof different methods of the appointment enjoin that the president must, before
introduce a major change in the prevailing of the judges of the superior courts and, making such appointments, consult with
method of appointments. Under Articlefinally accepted the method of nomination some judges of the Supreme Court and
124(2) of the Constitution, Supreme Courtby the president. high court and, in some cases, consulta-
judges are appointed by the president after In fact, there are three different methods tion with the chief justice of India or the
consultation with some judges of the of choosing the judges. The method of chief justice of the relevant high court has
Supreme Court and high courts of his own electing them by the people seems, of been made obligatory.5 It is claimed that
choice. However, in the case of the ap-course, to be really democratic. But, as these provisions have modified, to a large
pointment of the judges other than theHarold Laski has put it, it is, without extent, the presidential authority in the
chief justice, the president is bound toexception, the 'worst of all' for various nomination of the judges.6 As B R
consult with the chief justice of India. reasons.2 The task of the judges is so Ambedkar, the chief architect of the
Similarly, under Article 217(1), the delicate that it requires long experience Constitution, observed, 'The provision in
president is the sole authority to appointand maturity of mind. But election by the the article is that there should be consul-
the judges of the high courts. Of course,people gives them only a five-year-term tation of persons who are, ex-hypothesis,
before making such appointments, he haswhich is very insufficient for that purpose. qualified to give advice in matters of
to consult the chief justice of India andMoreover, such a short term can, by no this sort'.7
the governor of the relevant state. How-means, ensure security of service and, Yet there are some loopholes in the
ever, in the case of appointment of a judgehehce, for securing a subsequent tenure, whole arrangement. First, Article 124(2)
other than the chief justice, he must judges are sure to turn into politicians. In and 217(1) stipulate that the president will
consult with the chief justice of the saidsuch a case, legal erudition would have nominate the judges 'after consultation'
high court. little meaning - only the canny and self- with some jurists and judges of his own
So, the proposal of setting up of ajudicial seeking jurists with popular charm would choice and this is mandatory.8 But these
commission would surely bring about a find their place in the judicial bench. provisions do not, by any means, indicate
significant change in the prevailing method Similarly, election by the legislature that he must abide by the suggestions of
of appointing judges of the superior courts. cannot ensure the independence and neu- such persons. In other words, if he does
In fact, the nature of a political ad- trality of the judges,3 as political consid- not seek their opinion, he would surely
ministration basically depends upon the erations would vitiate the recruiting pro- violate some statutory provisions, but if
integrity, independence and neutrality of cess. Moreover, it too would make the he merely consults with them and, then,
the judiciary and it is an axiom that the appointment a short-term affair and, thus, makes his own choice, it does not at all

Economic and Political Weekly July 3, 2004 2959

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bring a breach to the Constitution.9 This is really praiseworthy. As such, the com- for and abounding faith in them. Even
is, obviously, a drafting contrivance mission will prepare a panel from which George H Gadbois, a foreign writer, has
which, ultimately, makes him the final the president would make the final choice. felt that judges in India are highly es-
authority in choosing the judges. As such, As such, his choice would strictly remain teemed by the people. As he writes, 'More
politics has sufficient scope to play its within the list prepared by the commission than any other segment of this elite, they
vicious part in the matter of judicial ap- and, naturally, politics and justice would are viewed as the examplers of honesty and
pointments and, as the president is nor- remain dissociated. It is to be realised that dignity'.15 By choosing the best legal
mally guided by his prime minister, the the judiciary is, in fact, the cornerstone of talents, this respect and faith need to be
ruling party is sure to thrive by such the nation and, hence, it must be consti- enhanced.
constitutional lacunae. tuted as a temple of justice. However, a proper choice in the recruit-
Secondly, the report of our Law Com- The fact is that in recent years the ju- ment of the judges may improve the ju-
mission reveals that communal and re- diciary has, for some cogent reasons, largely dicial system in another way. H R Khanna,
gional consideration and even executive expanded its sphere of action. Particularly, a former judge of the Supreme Court, has
influence have often influenced the execu- the Supreme Court has assumed an un- rightly pointed out that an able judge can
tive decision in the appointment ofprecedented role in order to make up the deliver his verdict in far less a time than
judges.0l While quality should have been deficiencies of other organs of govern- now required by his inept colleagues. Thus,
the single and sole criterion in this matter,ment. Though it is often criticised in some by choosing the most capable person, the
such external factors have sometimes la- quarters as 'judicial activism', it has, judicial settlement may be made a prompt,
mentably affected the legitimacy of the obviously, made a beneficial contribution proper and cheap affair. The proposed
presidential choice. It actually runs counter to Indian society. Moreover, by accepting measure of making a panel by the chosen
to the ethics of justice in an ugly manner 'Public Interest Litigations', it has rem- jurists for the consideration of the presi-
and makes the judiciary an adjunct to the edied various evils where the affected dent would also prohibit any scope of
executive organ. persons could not, due to financial in- political patronisation in the appointment
Thirdly, sometimes the intention of the capacity, move the court for a needed of the judges.
Constitution-makers have been frustrated redress. 12 For all these reasons, the proposal for
by some clever measures. It is true that the In this way, the apex court has now a change in the method of appointment of
letter of the Constitution has been ob- become the most important citadel of demo- judges of the superior courts is really
served in consulting the chief justice on cracy and rule of law.13 Whatever might praiseworthy and its implementation
the appointment of the high court judges, be the opinion of constitutional experts, brooks no delay.
but its spirit has been tacitly neglected it can, by no means, be denied that the It is a cardinal truth that judiciary holds
because the chief justices have often given people have happily accepted this ex- a unique place in the political system and
in to wishes of the chief ministers. The tended role of the judiciary. Sometime that the independence of the judges is
Law Commission has also noticed that for back, Hidayatullah,14 the former chief really the cornerstone of democracy.'6
these reasons, sometimes the best legal justice of India, held, 'The citizens expect This is why, the founding fathers of the
talents of the high court have not found the courts to supply the deficiencies in our Constitution have provided some neces-
their way towards the apex court.1I society. They certainly look to the courts sary measures for the creation of an
Then, on occasions, even active poli- for the redress of any grievances they efficient judicial system. As M V Pylee
ticians have, after electoral defeat, been may have.' writes, 'The Constitution of India envis-
sent to the high court bench. Such inci- As such, the judges should be so chosen ages an independent judiciary'.17 In fact,
dents have surely undermined the image that the public may have the best regards the superior courts have been vested with
of thejudiciary which is supposed to remain
above politics.
Above all, there are instances of unlaw- Wanted: Executive Director for Multiple Action Research Group, MARG, a national NGO
ful appointment to the high court bench. based in Delhi, working on empowering women through legal literacy and training. MARG
Under Article 217(1), to be eligible for works essentially in the Hindi speaking states through partner NGOs. Alongside con-
ducting research into the legal status and rights of women, MARG prepares educational
such appointment, a person must either (i)
materials in.a multi-media format for easy dissemination. For a detailed understanding
have, for at least 10 years, served in a
of MARG, visit the Website ngo-marg.org
judicial office or (ii) have, for the same
Applicants should preferably have a legal background and commensurate experience -
length of years, pleaded before a court of
administrative, fundraising, networking. Above all, the candidate must share MARG's
law as a professional jurist. But N philosophy and vision and be prepared to commit at least 3-5 years.
Srivastava, an IAS officer, was once ap-
Salary: Around Rs 30-45,000 p.m. gross.
pointed to the Guwahati High Court by
Please apply with complete bio-data and references by 31st July 2004 to
repudiating this provision and, hence, the
Marglegal04@yahoo.co.uk
presidential order of appointment was,
Or write to
most disgracefully, invalidated by the
apex court. Administrative Officer,
For all these reasons, the new proposal Multiple Action Research Group (MARG)
205-206 Shahpur Jat, Second Floor, New Delhi 110049
of setting up a judicial commission for
modifying the presidential authority of Interviews for selected candidates will be held in September 2004.
choosing the judges of the superior courts

2960Economic and Political Weekly July 3, 2004

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tremendous power and various responsi- Notes Politics in India, p 241.
11 Ibid, p 241.
bilities. Particularly, the Supreme Court
12 B R Agarwala, Our Judiciary, p 174.
has been expressly called upon to act as 1 So, Leacock writes that "the judiciary must be 13 H H Das, India: Democratic Government and
the final interpreter and guardian-of the as impartial as is humanly possible", Elements Politics, p 224.
Constitution.18 of Politics, p 200. 14 Democracy in India and the Judicial Process,
2 Laski, A Grammar of Politics, p 545. He has p 53.
But, if the judges are not properly cho- further observed, "I do not, therefore, believe 15 'Indian Judicial Behaviour', Economic and
sen, it is sure to affect the independence that a judicial system founded upon popular Political Weekly, annual number, November
and dignity of the judiciary. This is why, election is a satisfactory way of choosing 1970.
our Constitution has inserted the neces- judges", Liberty in the Modern State, p 68. 16 Sachdeva and Gupta, The Constitution ofIndia,
3 J W Garner, Political Science and Government, p 173.
sary provisions in order to avoid the
p 723. 17 An Introduction to the Constitution of India,
political pressure put by ministers on 4 S L Sikri, Indian Government and Politics, p 195.
the presidential authority of choosing p 201. 18 S C Kashyap, Citizens and the Constitution,
the judges. 19 5 G N Joshi, The Constitution of India, p 152. p 32.
Yet, it has often been argued that some- 6 D D Basu, Introduction to the Constitution 19 B C Rout, Democratic Constitution of India,
of India, p 249. p 162.
times political factors have determined
7 C A D, Vol VIII, p 258. 20 Indian Government and Politics, p 711.
presidential choices. As J C Johari puts it, 8 G S Pandey, Constitutional Law of India, 21 The Constitution of India, p 986.
'the nomination of a judge is virtually a p 295. 22 N A Palkhivala, Our Constitution: Defaced
political affair'.20 Similarly, M M Singh 9 S C Kashyap - Our Constitution, p 195. and Defiled, p 101.
holds that sometimes 'extraneous consid- 10 W H Morris, Jones, Government and 23 A C Kapur, The Indian Political System, p 296.
erations' have been found to be operative
in such matters.21
Such judicial appointment surely strikes
at the very basics of democracy and rule
of law. Before making judicial appoint-
Short-changing the Displaced
ments, the president should consider only
the legal erudition and personal integrity National Rehabilitation Policy
of the incumbent appointment of a person
of some political belief surely defies the
The new rehabilitation policy removes all constraints on the
letters and spirit of the Constitution.22
A reference to the American constitu- government's responsibility to provide agricultural land or
tional history would surely make our point replace the livelihoods of those displaced by large projects, and
amply clear. In order to fight out the is meant to ensure the large-scale transfer of lands to private
economic evils of the Great Depression of companies and corporate bodies. The policy will be the means
1929, president Franklin D Roosevelt had
to legitimise this resource alienation and to strengthen
adopted the 'New Deal' which was
promptly invalidated by the American
corporate control over land.
supreme court as ultra vires of the
Constitution. CHITTAROOPA PALIT the past two decades but were not used in
The people, however, realised the need most cases. In Madhya Pradesh, for ex-
of the New Deal and wanted the presidenht L ess than three months before theample, no rules have yet been framed to
to do the needful. Encouraged by such general elections, the NDA govern-
actualise the Displaced Persons Act passed
popular enthusiasm, he intended to en- 19 years ago, despite oustee demand. As a
ment brought out a National Rehabi-
large the Supreme Court-bench by adding litation Policy. Advertisements were is-for most projects anywhere in
result,
six new judges so that the New Deal could sued, presumably at public expense,
India, the actual legal framework under
be duly validated by a majority verdict. But extolling the prime minister as being a affected people are displaced is
which the
the people now realised the probable messiah of displaced people allthe over
Land Acquisition Act, originally framed
outcome of such a scheme - they felt that India. Since no national policy addressing
as a colonial law for land appropriation
in 1894.
the New Deal now might come out, but, the thorny issues of displacement and
by the new step, the president would 'pack' rehabilitation of oustees had existed However, the rehabilitation policy
the court and would eventually make it an before - though several drafts had beenframed by the central government belies
adjunct to the executive. The resentment under discussion - under normal circum- all hopes that it will be able to render any
was so vehement that the Supreme Court stances, such a step should have been substantive justice to oustees. A closer
(Re-organisation) Bill was withdrawn in very welcome. look at the policy will tell us why.
order to maintain the independence of the Few projects or states in India have The preamble of the rehabilitation policy
judiciary. rehabilitation policies, even on paper. captures three of the most important con-
The judiciary is really the bastion of Projects like Tehri and Narmada, which cerns relating to the experience of dis-
the rights, liberty andjustice.23 So, aproper have comprehensive rehabilitation policies placement. The first concern is whether
recruitment policy must be adopted so in place - even if they are most often not displacement, with its attendant impact
that it can work rightly, freely and with implemented - are rare. In some states, of not only the rupturing of 'homes,
ability. B1M Displaced Persons Acts were legislated in assets and means of livelihood' but also

Economic and Political Weekly July 3, 2004 2961

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