Appointment of judges to Supreme Court: A tug of war?

Thursday, November 20, 2008

Framers of our constitution judiciously avoided the supremacy of any organ of our democracy. Our parliament is not supreme unlike in United Kingdom, Judiciary is not supreme unlike in United States, Executive is not autocratic like any military ruled states. The perfect balance sought by the framers of Indian Constitution saved the infant democracy in spite of madam Gandhi's misrule during emergency. Every now and then, each organ (Executive/Judiciary/Parliament) of our democracy made significant attempts to prove their supremacy.

Yet again, by refusing to reconsider its decision on elevation of three High Court Chief Justices as apex court judges, Supreme Court has asserted judiciary's primacy over executive[The Hindu]. Was the apex court acted adamantly by refusing to reconsider it's recommendation? Was Dr.Manmohan Singh's government wrong in asking supreme court to reconsider it's recommendation? Legally, both supreme court and government exercised their right, there is no need to sensationalize the matter. Whatever has happened, has happened for good.

Article 124 of Constitution says, Every judge of the Supreme court shall be appointed by the President of India. The president shall consider the advice of his council of ministers and shall consult the Judges of Supreme court and High court. Constitutionally the advice given by Supreme court is not binding on government. Until 1982 (First Judges Case), Supreme court held that consultation of president does not mean concurrence (meaning, Agreement of results or opinions). But in 1993 (Second Judges case), a nine judge bench of supreme court held that consultation means concurrence. So, if "consultation means concurrence", then, both government and the supreme court must mutually agree in the matter of appointment of judges. Supreme Court opined that, members of the judiciary are well qualified than others to give their opinion in the matter of appointing judges. In that historic judgment, Supreme court had virtually arrested the irregularities in the appointment of judges to supreme court. In fact, the judgment has made appointment of judges more transparent than ever. Supreme Court laid down a clear procedure in appointing judges. Here is a quick look,
  1. The collegium comprising of Chief Justice of India and four senior most jusdges of the Supreme court has to be formed to render advice to the president (i.e. to the government).
  2. View of the senior most judge (if he is not the part of the collegium) who hail from the High court where the person to be recommended (as judge to supreme court) is functioning as judge, must be obtained in writing.
  3. The collegium must consider the following factors in recommending the judges for the appointment
    • Merit should be the predominant consideration. On what basis the merit will be judged? Earlier judgments given by the judge, respect he commands in the legal fraternity, his legal qualifications, and any such considerations.
    • Not only that, Cogent and good reasons should be recorded for recommending a person of outstanding merit regardless of his seniority.
    • "For recommending one of several persons of more or less equal degree of merit, the factor of the High Courts not represented on the Supreme Court, may be considered."
    • And any such factors may deem necessary.
  4. Supreme court then prepares it's recommendations, everything in writing, stating all the factors cogently and with significant reasoning.
  5. If two or more members of the collegium disagree with the names (to be recommended), then Chief Justice of India should not persist with the recommendation. If the collegium agrees to the names, the recommendation is sent to the executive.
  6. Constitutionally, Supreme Court's recommendation is not binding on executive, so the executive may refuse to accept the candidates recommended by supreme court for the appointment. But government must provide genuine reason for it's refusal. In case govt accepts Supreme court's recommendations, matter ends there, the judges will be appointed as recommended.
  7. If the government refuses to appoint the person recommended by supreme court, the materials and information conveyed by govt must be placed before the original collegium or the reconstituted one.
  8. If the collegium accepts the opinion of executive, then CJI, in his discretion, informs the person earlier recommended for his non appointment. The names recommended by executive will then be final for appointment.
  9. In case collegium refuses to reconsider the request (as it happened now) and unanimously reiterate that the appointment of recommended candidates must be made, then, government (President) has no choice but to appoint them.
Thus, the procedure seems to be transparent if one look at it without any bias. If the government think that it is smarter than Supreme Court and if Supreme Court is adamant with it's recommendation, then the conflict arises and harmony is lost between the organs of democracy.

In the recent case, "Prime Minister Manmohan Singh expressed his reservations about the elevation of three judges recommended by Supreme Court on the ground that seniority had been overlooked and certain States were not represented in the apex court [Read More]." But supreme court feels that merit of a judge is more important than relative seniority. Given the contemporary circumstances, merit must be the decisive factor without ignoring the seniority and that's exactly what Supreme Court is doing. Dr.Singh was absolutely right in asking Supreme Court for reconsidering it's recommendation. Executive has the legal right to express it's opinion and should be done with all respect to Supreme Court. On the other hand, Supreme court has done nothing wrong in refusing to reconsider the recommendation since it feels that meritocracy is more important than seniority and representation of the state (supreme court considers the states' representation factor even before recommending). The process of consultation must be treated as a routine legal activity and should not be sensationalized as it is being done these days.

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This work by Manjunath Singe is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 India License. The views and opinions expressed in this work are strictly those of the author and do not represent his employer's views in anyway.