An independent judiciary is an important pillar for every democratic set-up governed by Rule of Law. It is the protector of the rights of the citizens and guardian of the Constitution. Judges must decide cases without fear or favour, affection or ill will and uphold the Constitution and the laws. The question that arises is whether the Supreme Court Collegium is the sole repository of power to select Judges, who will be independent and impartial and whether involvement of the executive wing of the State or members of civil society, per se, affects the independence of judiciary.
CONSTITUTIONAL PROVISIONS ON APPOINTMENT OF JUDGES
Article 124 of the Constitution of India provides that every Judge of the Supreme Court shall be appointed by the President “after consultation with such of the Judges of the Supreme Court and the High Courts in the States as the President may deem necessary”; and “in case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. Article 217 requires that every Judge of the High Court shall be appointed by the President “after consultation with the Chief Justice of India, Governor of a State and in case of appointment of the Judge other than the Chief Justice, the Chief Justice of the High Court”. These provisions, in clear terms, say that the appointing authority is the President; however, before the appointment, the President is required to consult the members of the judiciary.
The aforesaid provisions are in contrast with the provisions of Articles 103 and 192 under which the President/Governor is required to decide the questions of disqualification of members of Parliament/State Legislatures after obtaining the opinion of the Election Commission of India and “shall act according to such opinion”. The President/Governor has no discretion to decide the question of disqualification contrary to the opinion of the Election Commission.
Thus, the Constitution has used separate expressions, namely, “consultation”, and “shall act according to such opinion” for different purposes in different provisions. It is difficult to say that the Founding Fathers were oblivious of the meaning of these different expressions and the word “consultation” means “shall act according to such opinion”.
SUPREME COURT JUDGMENTS—PRIMACY FROM PRESIDENT TO COLLEGIUM
In First Judges case1 (1981), a Bench of seven Judges of the Supreme Court held that the expression “consultation” in Articles 124 and 217 cannot be understood as “concurrence”. In the event of disagreement between the constitutional functionaries, the Union Government will decide whose opinion should be accepted and whether appointment should be made or not; and the opinion of the Chief Justice of India has no primacy. The function of appointment of Judges of the constitutional courts is an executive function which rests with the President.
In Second Judges case2 (1993), a Bench of nine Judges of the Supreme Court overruling First Judges case1 held that the process of appointment of Judges to the Supreme Court and the High Courts is an integrated “participatory consultative process” for selecting the best and most suitable persons available for appointment. For appointment of Judges of the Supreme Court, a Collegium comprising of the Chief Justice of India and two seniormost Judges of the Supreme Court will take the final decision. “In case of conflicting opinions by the constitutional functionaries, the opinion of the judiciary “symbolised by the view of the Chief Justice of India” and formed in the manner indicated, has primacy.” Through this process, the individual opinion of the Chief Justice of India was substituted by the collective opinion of the Collegium of Judges and a Collegium system came in place by a process of judicial interpretation; rather by judicial incorporation of certain provisions in the Constitution.
In Third Judges case3 (1998), the view taken in Second Judges case2 was reiterated by another nine-Judge Bench. It was held that the expression “consultation with the Chief Justice of India” requires consultation with a plurality of Judges and the individual opinion of the Chief Justice of India does not constitute “consultation”. However, the composition of the Collegium, for appointment of Judges in the Supreme Court, was expanded to consist of the Chief Justice of India and four seniormost Judges rather than the two seniormost Judges. Here again, the Supreme Court interpreted the expression “Chief Justice of India” differently for the purpose of appointment for Judges of the Supreme Court and to the High Court. While in the case of appointment of Judges of the Supreme Court, the Chief Justice of India would mean the Collegium comprising of the CJI and four seniormost Judges; in the case of appointment of the Judges of the High Court, the Chief Justice of India would mean the Collegium comprising of the CJI and two seniormost Judges.
NATIONAL JUDICIAL APPOINTMENT COMMISSION (NJAC)
Parliament on four occasions proposed to amend the Constitution and set up a National Judicial Appointment Commission. The Constitution (67th Amendment) Bill, 1990 provided for setting up a National Judicial Commission (NJC) consisting of the Chief Justice of India and two seniormost Judges of the Supreme Court; and for the appointment of a Judge of the High Court, NJC was to consist of the Chief Justice of India, the Governor/Chief Minister of the State concerned, the seniormost Judge of the Supreme Court, the Chief Justice of the High Court and the seniormost Judge of the High Court. The Bill was not taken up for consideration due to the dissolution of the Lok Sabha in May 1991.
The National Commission to Review the Working of the Constitution (Ncrwc) headed by the former Chief Justice of India, Justice M.N. Venkatachaliah in his Report (2002) recommended establishment of a National Judicial Commission comprising five members, namely, the Chief Justice of India, two seniormost Judges of the Supreme Court, the Union Minister for Law and Justice and one eminent person nominated by the President after consulting the Chief Justice of India.
The Constitution (98th Amendment) Bill, 2003 was introduced to set up an NJC for appointment of Judges in terms of the recommendations of the Ncrwc. However, the Bill modified the recommendation in respect of appointment of an eminent citizen, to be nominated by the President of India in consultation with the Prime Minister of India (instead of the Chief Justice of India) for a period of three years. This Bill was also not passed in Parliament, due to the dissolution of the Lok Sabha in March 2004.
The Constitution (120th Amendment) Bill, 2013 was introduced for establishment of NJAC for appointment of the High Court and Supreme Court Judges. Parliament was authorised to make law providing for composition of the Commission. This Bill was passed by the Rajya Sabha on 5-9-2013, but before the Bill could be sent to the Lok Sabha, it was dissolved in May 2014.
Finally, the Constitution (121st Amendment) Bill, 2014 was passed by both the Houses of Parliament and was ratified by most of the State Legislative Assemblies. The Bill, on receipt of the assent of the President, became the Constitution (99th Amendment) Act, 2014 and came into force on 13-4-2015. Simultaneous with the passage of the Constitutional Amendment, Parliament passed the National Judicial Appointment Commission Act, 2014. The Constitution 99th Amendment Act amended Article 124 and provided that appointments and transfers would be on the recommendation of the National Judicial Appointment Commission (NJAC). Article 124-A was inserted providing for the constitution of NJAC comprising the Chief Justice of India, two seniormost Judges of the Supreme Court, the Union Law Minister and “two eminent persons” to be nominated by a committee comprising the Prime Minister, the Chief Justice of India and the Leader of the Opposition. One of the two nominated members must belong to the Scheduled Castes, the Scheduled Tribes, OBC, minorities or women.
NJAC STRUCK DOWN BY THE SUPREME COURT
Fourth Judges case4 (2016), by majority (J.S. Khehar, Madan B. Lokur and Adarsh Kumar Goel, JJ.), struck down the Constitution 99th Amendment Act and the NJAC Act on the ground that the amendment impedes the independence of the judiciary which is a basic structure of the Constitution. It was held that Article 124-A does not provide an “adequate representation” to the judicial component in NJAC, and NJAC is “insufficient to preserve the primacy of the judiciary” in the matter of selection and appointment of Judges. The inclusion of the Union Law Minister as an ex officio Member of NJAC impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”. On the same analogy, inclusion of two “eminent persons” as Members of NJAC is ultra vires the Constitution.
Jasti Chelameshwar, J. delivered his dissenting opinion with the preface: (Supreme Court Advocates-on-Record case4, SCC p. 740, para 1113)
1113. We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence? Have we acquired independence greater than our intelligence, maturity and nature could digest? Have we really outgrown the malady of dependence or merely transferred it from the political to judicial hierarchy?
990. All told, all was and is not well. … the present Collegium System lacks transparency, accountability and objectivity. … the dictatorial attitude of the Collegium seriously affecting the self-respect and dignity, if not, independence of Judges, …
COLLEGIUM—LACK OF TRANSPARENCY AND COHESIVENESS
The official website of the Supreme Court (as on 25-3-2022) has uploaded 402 Collegium resolutions/statements regarding recommendation for appointment and transfer of Judges. On 3-10-2017, Collegium of the Supreme Court headed by Chief Justice of India, Dipak Misra, C.J. and the four seniormost Judges resolved5 to put the Collegium resolutions on the website “to ensure transparency and yet maintain confidentiality in the Collegium system.”
In accordance with the aforesaid decision, the Collegium resolutions uploaded on the Supreme Court website till 3-10-2019 containing details of the names of the judicial officers, the date of recommendation by the High Court Collegium, consideration by the Supreme Court Collegium and brief reason for recommendation for appointment and/or rejection/deferment of the names considered. Subsequently, since 15-10-2019, no Collegium resolutions are uploaded on the website; instead only “statements” mentioning the names recommended for, are uploaded6. Thus, limited information considered necessary to ensure transparency on 3-10-2017, continued only for two years up to September 2019.
At least three Judges of the Supreme Court who have retired as Collegium Judges have criticised the functioning of the Collegium on public platforms. Justice Madan B. Lokur7 published an article (2019) under the heading “Collegium is accustomed to controversies, but its recommendations are now under attack” in the matter of transfer of Judges. In 2020, Jasti Chelameswar, J. told Bloomberg Quint, “I never understood as even a member of the Collegium as to why a particular High Court Judge is being transferred.”8 Justice Ruma Pal in the 5th V.M. Tarkunde Memorial Lecture (2011) described Collegium as “possibly the best kept secret in the country”.
God Save the Hon’ble Supreme Court—Fali S. Nariman
Fali S. Nariman, a well-known constitutional lawyer and Senior Advocate who argued Second2, Third3 and Fourth4Judges case, has published a book under the title God Save the Hon’ble Supreme Court (2018) wherein he has said:
• The permanent problem about “objectivity”, “transparency” and “trouble spots” of individual Chief Justices of India can be explained only by appreciating that the Supreme Court of India set up under our Constitution is an institution whose importance and prestige is far above that of the men and women, who for the time being, sit in it or preside over it!
• We may speak or write about the frailties of men and women—but the constitutional offices they hold are carved in stone.
• Hence keeping in mind what is written above, it was a grave error of judgment on the part of Chelameshwar, J. (Court No. 2) to direct by order the setting up of a Bench of five Judges to hear a particular matter mentioned before him. It was Equally an error of judgment on the part of Chief Justice Dipak Misra, not to have replied (privately of course) to the undated letter (of November 2017) addressed to him by the four seniormost Judges listing their complaints, which got publicised later by the four Judges on 12-1-2018. Silence in the face of a letter containing allegations (against the person or authority to whom it is addressed) is never an option. When you reply to a letter you reveal your stand—and posterity judges you by what you said at the time, and not by hindsight!
• In India, in recent months the way in which the Supreme Court of India has been “run”, has become not just a matter of interest or debate—it has become a matter of acute controversy, causing widespread concern, because—and only because—a singular lack of spirit of collegiality has been exhibited amongst the Judges, especially amongst the five seniormost including the Chief Justice of India. A pity indeed! Simply because it leaves us all wringing our hands in the “winter of despair”!
• I suggest that in desperate times like these when public confidence in the highest court of India is at an all-time low, it would not be inappropriate to amend the last sentence of the traditional chant in the US into a single impassioned prayer on the lips of all Indian citizens:
“God Save the Hon’ble Supreme Court”
RTI judgment on Collegium
Subhash Chandra Agarwal9, a well-known RTI activist sought information as regards correspondence and documents relating to appointment of some Judges of the Supreme Court and by another application sought declaration of the assets of the Judges of the Supreme Court. A Bench of five Judges of the Supreme Court held that disclosure of assets of the Judges of the Supreme Court does not impinge upon the personal information and right to privacy of the Judges. On the issue of disclosure of Collegium proceedings regarding appointment of Judges, the Supreme Court judgment requires that the final opinion of the Collegium resolution can be disclosed; however, the personnel data or details cannot be furnished as it violates the right to privacy and the duty of confidentiality.10
Despite the law laid down by the Supreme Court and the Collegium resolution dated 3-10-2017, the website of the Supreme Court merely uploads a statement on the resolutions of the Collegium and not the resolutions themselves after October 2019. Moreover, the websites of none of the 25 High Courts have uploaded the Collegium resolutions passed by them. It is imperative that the Collegium resolutions should be uploaded on the website of the Supreme Court and the High Courts.
TRANSFER OF JUDGES AND CHIEF JUSTICES—NO OBJECTIVE CRITERIA
The transfer of Justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court as Chief Justice has raised many eyebrows on the exercise of power by the Supreme Court Collegium as a supervisory authority over functioning of the High Court Chief Justices. It is not the first time that the Chief Justice of a High Court is transferred on arising of certain controversies. The news portal Scroll11 has published an article on 17-11-2021 giving details of controversial transfers of the High Court Chief Justices:
1. The news of the Supreme Court Collegium recommending the Madras High Court Chief Justice Sanjib Banerjee’s transfer to the Meghalaya High Court has met with controversy. Multiple lawyers and lawyers’ associations have written to the Collegium asking it to reconsider its decision and to also provide reasons for this transfer. Justice Banerjee has been transferred from one of the biggest High Courts in the country, to one of the smallest. The Madras High Court handles around 35,000 cases a year and has a sanctioned strength of 75 Judges, while the Meghalaya High Court handles around 900 cases a year and has a sanctioned strength of 4 Judges. While all the High Courts in the country are equal in law, transfers from bigger courts to smaller ones are often seen as punitive. He passed various judgments this year where he criticised the Government for its handling of the Covid-19 Pandemic. In April, when Assembly elections were happening, he criticised the poll body for allowing large rallies observing “Election Commission officers should be booked on murder charges probably”. The Madras Bar Association passed resolution saying that they were “deeply concerned with the opaqueness” surrounding the transfer and asked for the decision to be reconsidered. 237 lawyers from the Madras High Court wrote to the Collegium saying that “punishment transfers” that were common during the Emergency had hampered the independence of the judiciary.
2. In 2019, V.K. Tahilramani, the then Chief Justice of the Madras High Court, was transferred to the Meghalaya High Court—exactly what is happening to Banerjee now. She resigned as a result. An article published in The Hindu12 held that the “media has reported that the transfer is a reaction to her judgment13 in the Bilkis Bano case that concerned the Gujarat riots of 2002”. While at the Bombay High Court, Tahilramani had, in 2017, awarded13 life imprisonment to 11 people for the gangrape of a Muslim woman during the 2002 Gujarat riots. India Express14 reported that the reason for transferring her was her work ethic, political links and financial transactions.
3. In February 2020, the Union Government issued a notification for the transfer of Justice S. Muralidhar, a Delhi High Court Judge, just the day after he passed15 critical remarks against Delhi Police while listening to the Delhi riots case. His transfer led to protests by the Delhi High Court Bar Association which expressed “shock, outrage and dismay” in a resolution.16
4. In 2018, when Justice Akil Kureshi was expected to become the Chief Justice of the Gujarat High Court, he was transferred to the Bombay High Court where he would be fifth in seniority and therefore would not be Chief Justice17. In 2010, he directed the CBI inquiry in Sohrabuddin Sheikh encounter case18.19 As per autobiography of Chief Justice Ranjan Gogoi, the Union Law Minister objected to the Collegium resolution for his appointment as Chief Justice of Madhya Pradesh High Court by its letter dated 23-8-2019. The Collegium later modified his recommendation and he was appointed to a smaller High Court, namely, Tripura in November 2019. Justice Kureshi was transferred as Chief Justice of Rajasthan High Court in October 2021, wherefrom he has retired in March 2022.
5. In 2017, Jayant Patel, who was about to become the Chief Justice of the Karnataka High Court, had resigned when he was transferred to the Allahabad High Court. Patel was the acting Chief Justice of the Gujarat High Court that ordered20 an investigation into the murder of Ishrat Jahan by Gujarat police officers in 2004.21
6. One Senior Judge of the Gauhati High Court was transferred to the Bombay High Court on the premise that “reports of the Judge’s avoidable involvement in many issues on the judicial and administrative side came to me as CJI” said the then Chief Justice, Ranjan Gogoi in his autobiography. This transfer was criticised by the Gauhati High Court Bar Association stating the same to be “on extraneous grounds”.
In the initial years, Chief Justices of the High Courts preferred to remain Chief Justices of that High Court rather than becoming junior Judge of the Supreme Court. Chief Justice M.C. Chagla of the Bombay High Court declined appointment as Judge of the Supreme Court in 1949. The said perception has undergone considerable change in recent years. The status of the High Courts and Chief Justices have been diluted over the years by their repeated transfers and exercising control while confirming an Additional Judge as permanent. The status of the Supreme Court, more particularly Collegium Judges has risen by leaps and bounds and the stature of the Chief Justices and Judges of the High Courts have been eroded. The noted constitutional scholar, H.M. Servai had written a letter in 1995 to the Chief Justice of India saying that the transfer of the High Court Judges has the effect of turning the Judges of the High Court to the level of District Courts.
It is high time that the Collegium lays a policy laying down criteria for transfer of Chief Justices. Chief Justices must have sufficiently long tenure in a High Court as he takes a large number of administrative decisions apart from judicial work. Once appointed as a Chief Justice, he should not be transferred from the High Court till the age of superannuation or elevation to the Supreme Court. This will help the Chief Justice to shape the subordinate judiciary. Transfer of Chief Justices from one High Court to another adversely impacts the administration of justice.
CHIEF JUSTICE RANJAN GOGOI’S AUTOBIOGRAPHY
The recent autobiography22 by Justice Ranjan Gogoi, former Chief Justice of India of India shows internal disputes and distress among the Collegium Judges. The book says:
• Chelameswar, J. refused to physically participate in Collegium meetings due to differences with Chief Justice Thakur.23
• Khehar and Dipak Misra, JJ. always said that they needed time to consider every proposal made by Chief Justice Thakur and the Collegium meetings were adjourned.24
• Dipak Misra, C.J. while sitting in Constitution Bench ensured that there is no mentioning before Justice Chelameswar after Justice Chelameswar directed listing of a matter involving judicial corruption to be heard by a Bench without Chief Justice25.
• On 12-1-2018, four seniormost Judges held a press conference in view of their disagreement with Chief Justice Misra with regard to the Bench hearing Judge Loya case.
• There is a danger to control the judiciary from a group of people holding cards of judicial independence.26
• Life of the Chief Justice of India is lonely and there is no brotherhood among Judges.27
PRASHANT BHUSHAN’S ALLEGATION OF CORRUPTION AGAINST CJIS
In 2009, Prashant Bhushan, a well-known advocate and a civil rights activist alleged that out of the last 16 Chief Justices of India “eight were definitely corrupt, six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest or corrupt”.28 Shanti Bhushan, a leading Senior Advocate of the Supreme Court and former Law Minister of India, gave a sworn statement before the Supreme Court while enclosing a list in a sealed cover identifying the respective eight, six and two Chief Justices in different categories of honesty. Contempt proceedings29 initiated against Mr Bhushan in the year 2009, are still pending. This case has been listed on 25 occasions during last eleven years and in the last order dated 13-10-202030, the case was adjourned on the request of the Attorney General with a direction that the Registrar may get in touch with Mr Harish N. Salve, the Amicus Curiae to ascertain his availability and request him to appear in the next date of hearing. The silence of the Supreme Court on this grave allegation made by Mr Prashant Bhushan in 2009 and non-disclosure of names given in the sealed cover by Mr Shanti Bhushan is a matter of great concern. Either the Judges against whom allegations are made must come out clean or the Supreme Court should take strict possible action for making sweeping allegations against the highest judicial office of the country.
Mr Prashant Bhushan in the year 2020, tweeted that the Chief Justice of India, Sharad A. Bobde, was riding on a Rs 50 lakh motorcycle without a mask or helmet, at a time when he kept the Supreme Court in lockdown denying citizens access to justice. For his tweet in 2020 the Supreme Court convicted Prashant Bhushan for committing contempt of Court31 and imposed a fine of Re 1 on him.
MEMORANDUM OF PROCEDURE (MOP) ON APPOINTMENT OF JUDGES
The Government of India prepared a Memorandum of Procedure (MoP) in the year 199932 in consultation with the Chief Justice of India. The said MoP also prescribed the mechanism and a timeline for appointment of the High Court Judges by the constitutional functionaries as under:
1. Chief Justice of the High Court to send the recommendation of the High Court Collegium for appointment of permanent Judges to the Chief Minister of the State and endorse a copy to the Chief Justice of India and the Union Law Minister—6 months before the vacancy arises.
2. Chief Minister of the State to send his comments on the recommendation of the High Court Collegium to the Union Law Minister—6 weeks after the receipt of the proposal, if not received it will be presumed that the Chief Minister has nothing to add.
3. Union Law Minister to forward recommendations of the Chief Justice of the High Court, State Government, Intelligence Bureau and his own opinion to the Chief Justice of India—No timeline specified.
4. The Chief Justice of India to obtain views of the Judge(s) of the Supreme Court who are conversant with the state of affairs of the particular High Court—No timeline specified.
5. The Supreme Court Collegium to send recommendation to the Union Law Minister—4 weeks after the consultation with the consultee Judge(s).
6. The Law Minister may send back the names for reconsideration to the Chief Justice of India with specific reasons or put up the file to the Prime Minister—preferably 3 weeks of the Supreme Court Collegium.
7. Prime Minister to advise the President for the appointment—No timeline specified.
Despite the said timeline, a large number of vacancies remain in the High Courts. The Supreme Court in PLR Projects33 (2021) noted that the High Courts are in a crisis situation, as 40% of the sanctioned strength is vacant and in some larger High Courts even 50% posts are vacant. It also noted that out of a sanctioned strength of 1080 Judges, the working strength is 664 Judges and no recommendations have been made by the High Court Collegiums for 220 posts. The Supreme Court prescribed a fresh timeline for appointment of the High Court Judges on the following aspects:
1. Intelligence Bureau (IB) to submit its report—4 to 6 weeks of receipt of the High Court Collegium recommendation.
2. Law Ministry to forward recommendations to the Chief Justice of India—8 to 12 weeks of receipt of inputs from the State Government and IB.
3. The Government of India to make appointment—3 to 4 weeks of the recommendation of the Supreme Court Collegium, if not sent back.
It is pertinent to note that though timeline has been prescribed for each stage of appointment, neither the MoP nor the recent order in PLR Projects case33 has prescribed any timeline for the Supreme Court Collegium to make its recommendation. The Supreme Court Collegium in a number of cases has made its recommendation after 8 to 12 months of the receipt of the proposal.
As per the statement of the Law Minister Kiren Rijuju made in Parliament in March 2022, out of 404 vacancies in 25 High Courts, the High Court Collegium have not recommended any name for 233 vacancies and 101 recommendations made by the High Court Collegium are pending at various stages.
MoP not revised
However, it is yet to be revised and notified, though more than six years have passed. In R.P. Luthra35, the Supreme Court (Bench comprising Adarsh Kumar Goel and Uday U. Lalit, JJ.) by an order dated 27-10-201736 issued notice to the Attorney General to consider that “there should be no further delay in the finalisation of MOP in larger public interest”. However, surprisingly in less than 15 days another Bench of the Supreme Court (Dipak Misra, CJ., A.K. Sikri and Amitava Roy, JJ.) vide order dated 8-11-201737 recalled the order and disposed of the case. The MoP is yet to be revised.
HIGH COURTS—PENDENCY OF CASES AND STRENGTH OF JUDGES
Article 216 of the Constitution provides that every High Court shall consist of a Chief Justice and other Judges as the President may from time to time deem it necessary to appoint. The Supreme Court in Second Judges case2 (1993) held that periodic review of Judge strength of every High Court must be undertaken taking into account the backlog and expected future filing. The President while fixing the Judge strength must attach great weight to the opinion of the Chief Justices of the High Court and Chief Justice of India. Article 224 of the Constitution provides that the President can appoint Additional Judges if there is any temporary increase or arrears of work in the High Court.
The workload of the High Court is not temporary but ever increasing. As per the figures available on the National Judicial Data Grid38, as on 26-3-2022, 58,90,297 cases are pending, of which 31,99,972 cases are less than five years old, 13,19,766 cases are between five to ten years and 13,70,559 cases are more than ten years old.
|Sl. No.||High Court||Less than 5 years||5 to 10 years||More than 10 years||Total|
|9.||Jammu & Kashmir||27,778||13,782||6,207||47,767|
|20.||Punjab and Haryana||2,45,721||1,04,123||1,02,526||4,52,370|
The sanctioned strength of the High Courts as on 2-3-2022 is 1104, out of which 833 are permanent Judges and 271 are Additional Judges39, i.e. 25% posts are of Additional Judges and 75% are of permanent Judges. When the number of cases in the High Courts are increasing, there is no justification for creating posts of Additional Judges. It is of utmost necessity that all the posts of Additional Judges of the High Court be converted as permanent Judges.
The website of the Department of Justice, Government of India has published names of the Judges of the High Court along with the dates of appointment as Additional Judge, as permanent Judge and the date of retirement along with the strength of each High Court (permanent and additional) as on 5-1-2022.40 The orders of appointment and transfers from 7-2-2013 to 3-1-2022 are also available on the website of the Department of Justice.41 An analysis of the said list shows different systems and methodology of appointment of Judges in various High Courts. In some of the High Courts, Additional Judges are appointed even when there are vacancies in the permanent posts. Presently, there are no Additional Judges in 13 High Courts42; whereas, 12 High Courts43 have Additional Judges. For example, the Allahabad High Court has sanctioned strength of 160 Judges (120 permanent and 40 additional); yet, out of 93 sitting Judges, 19 are additional. Similarly, the Bombay High Court, has sanctioned strength of 94 Judges (71 permanent and 23 additional); yet, out of total 60 Judges, 8 are Additional Judges. So also, the Calcutta High Court has sanctioned strength of 72 Judges (54 permanent and 18 additional); yet, out of total 39 Judges, 9 are Additional Judges. There is hardly any justification to have Additional Judges when permanent posts are available.
ADDITIONAL HIGH COURT JUDGES—WHETHER ON PROBATION
The Supreme Court in S.P. Gupta1 (First Judges case) (1981) said that “Additional Judges were appointed under this Article not as temporary Judges for a short period”. In Shanti Bhushan44 (2009) it was held that “an Additional Judge cannot be said to be on probation for the purpose of appointment as a permanent Judge. Indira Jaising45 (2003) case said that the Supreme Court does not have any disciplinary control over the High Court Judges, much less the Chief Justice of India has any disciplinary control over any of the Judges. In Tirupati Balaji Developers46 (2004), it was held that the High Court is not a court “subordinate” to the Supreme Court and the Supreme Court has not been conferred with any power of superintendence. In Imtiyaz Ahmad47 (2012) case, the Supreme Court laid down that it has no power of superintendence over the High Court.
The MoP (para 13)48 says that the Chief Justice of the High Court while sending recommendation for appointing an Additional Judge as permanent Judge, must furnish statistics for disposal of the cases, judgments rendered, number of days actually attended the court and the days of absence. The Supreme Court Collegium resolution dated 26-10-201749 further requires that the judgments of the Additional Judges shall be “evaluated” by a committee of two Judges of the Supreme Court.
Cases of repeated extensions of Additional Judges before making them permanent
Despite the clear pronunciation of law, the tenure of Additional Judges is extended from time to time, many a times for short duration and are made permanent after evaluation of their performance. There are a few instances of repeated and short-term extensions.
Saga of Justice Ganediwala—Skin-to-Skin case
13-2-2019: Justice Pushpa Virendra Ganediwala was appointed as Additional Judge for a period of 2 years in Bombay High Court.
19-1-2020: The Judge acquitted50 an accused under the Pocso Act holding that there is “no direct physical contact i.e. skin-to-skin with sexual intent without penetration”. There was a huge uproar in the social media against the said judgment for her “skin-to-skin” reasoning.
20-1-2021: The Supreme Court Collegium notwithstanding the aforesaid judgment50 and the subsequent uproar, recommended her for appointment “as permanent Judge”.
31-1-2021: It appears that the Collegium withdrew the recommendation for appointment as permanent Judge51 (statement/resolution is not available on the Supreme Court website).
12-2-2021: Thereafter, her term as Additional Judge was extended for a further period of one year.
12-2-2022: The Supreme Court Collegium did not recommend her to be appointed as permanent Judge53 (statement/resolution is not available on the Supreme Court website) and her tenure as Additional Judge expired; however, one day before that, she resigned.
The saga of the appointment as Additional Judge, recommendation for making permanent Judge and subsequent withdrawal only on the basis of a judicial pronouncement and uproar in social media, sends a wrong signal to the Additional Judges. The skin-to-skin judgment50 is no doubt preposterous, absurd and wholly unacceptable. In case, the expression “skin-to-skin” was not used, there may not have been uproar in the social media. A judicial order of a High Court Judge can only be subject to appeal to the Supreme Court and cannot be a basis for non-confirmation of a High Court Judge; unless, the said judgment is found to be procured by corrupt means and/or motivated. Justice Ganediwala’s episode clearly shows that an Additional Judge is treated to be on probation, who will be looking forward to his/her confirmation as permanent Judge, depending on his/her evaluation by various authorities.
An Additional Judge who has been appointed after following the same rigorous process as that of appointment of permanent Judge, must be appointed as permanent Judge immediately on occurrence of the vacancy on seniority basis without any discrimination. Despite the clear pronunciation of law by repeated judicial pronouncement that the Additional Judges are neither temporary nor on probation, the additional posts are kept on probation which per se adversely impacts the independence of judiciary. If the tenure of Additional Judges is subject to evaluation of their performance at the stage of being made permanent, they would always be apprehensive about his/her term and may not be able to decide as an impartial adjudicator. Such Judges would also have a feeling of subordination, being subjected to scrutiny by their senior Brother and Sister Judges of the same High Court and by the Supreme Court Judges.
REITERATION BY SUPREME COURT COLLEGIUM—NOT FOLLOWED BY GOVERNMENT
The President is bound to appoint Judges of the High Courts and Supreme Court if the Supreme Court Collegium reiterates a particular name after considering the objection of the Government.54 However, the Government has not followed the law laid down by the Supreme Court and there have been many instances where despite reiteration of names by the Supreme Court Collegium, appointment orders have not been issued.
1. Kerala High Court: The Supreme Court Collegium on 25-3-2019 recommended three advocates, namely, Conrad Stansilaus Dias, Mohammed Nias C.P. and Paul K.K. for being appointed as Judge of the High Court. The Central Government, however, appointed only Conrad Stansilaus Dias and he was sworn in as an Additional Judge on 18-11-2019 and thereafter made permanent on 28-5-2021. The two other names recommended by the Supreme Court Collegium remained pending. The Supreme Court Collegium on 6-5-2019 recommended Viju Abraham, Advocate. All the three pending names i.e. Mohammed Nias C.P., Paul K.K. and Viju Abraham were returned by the Central Government. The Supreme Court Collegium on 2-3-2021 reiterated all the aforesaid three names for appointment as Judges of the Kerala High Court. Out of the three names reiterated by the Supreme Court Collegium, Mohammed Nias C.P. and Viju Abraham have been appointed as Additional Judges of the Kerala High Court on 13-8-2021. The name of Paul K.K. though recommended by the Supreme Court Collegium on 25-3-2019 and reiterated on 2-3-2021, is still pending with the Central Government for appointment.
2. Karnataka High Court: Aaditya Sondhi, Senior Advocate was recommended for elevation to the Karnataka High Court by the Supreme Court Collegium on 4-2-2021 and was reiterated on 1-9-2021. Yet, the proposal remained pending with the Government of India and on 9-2-2022, Sondhi withdrew his consent for elevation.
3. Jharkhand High Court: The Supreme Court Collegium on 1-9-2021 recommended five judicial officers, namely, Pradeep Kumar Srivastava, Gautam Kumar Choudhary, Ambuj Nath, Navneet Kumar, and Sanjay Prasad for being appointed as Judges of the Jharkhand High Court. The President of India vide Notification dated 6-10-2021 appointed Gautam Kumar Choudhary, Ambuj Nath, Navneet Kumar, and Sanjay Prasad. However, the seniormost judicial officer Pradeep Kumar Srivastava was not appointed. The Supreme Court Collegium on 1-2-2022 has reiterated elevation of Pradeep Kumar Srivastava as the Judge of Jharkhand High Court; but, the appointment order is yet to be issued. Even if Pradeep Kumar Srivastava is appointed now, he would be a junior Judge to the judicial officers who were earlier junior to him.
Broadbased Judicial Commission and not Closed-Door Collegium
Power of appointment of Judges of the constitutional courts needs a balancing approach, as neither the judiciary nor the executive can exclusively perform this task that inspires full confidence of the people. In the pre-1993 era, when the executive had the absolute primacy over the appointment of Judges of the Supreme Court and the High Courts, the executive started appointing and transferring Judges to ensure a committed judiciary. Appointment of Justice A.N. Ray as Chief Justice of India (1973) by superseding Justice J.M. Shelat, Justice A.N. Grover and Justice K.S. Hegde; and appointment of Justice M.H. Beg (1977) as Chief Justice of India by superseding Justice H.R. Khanna have created a dent on the independence of the judiciary and eroded public confidence.
In the post-1993 era, Second Judges case2 accorded the primacy in the matter of appointment to a new body called Collegium in the matter of appointment of Judges. The Collegium created by the judicial process was entrusted with the power to appoint Judges to ensure the independence of the judiciary. However, the observations of Justice Chelameswar and Justice Kurian Joseph in the Fourth Judge’s case, and the autobiography of former Chief Justice of India, Ranjan Gogoi seem to suggest that there is complete lack of transparency. The Chief Justice of India does not have confidence in the Collegium Judges; and in the same way, the Collegium Judges have reservations about the functioning of the Chief Justice of India. A broad based Judicial Appointment Commission with transparent and objective criteria is the need of the hour.
The Supreme Court and all the High Court Collegium resolutions must be uploaded on their respective websites. These resolutions must indicate the following:
(a) Date of occurring of vacancy—permanent or additional; and in case additional on which date permanent vacancy is likely to arise.
(b) Name and date of birth of the candidate considered.
(c) In case of advocates, additional information must also be uploaded mentioning the number of appearances in reported judgments during the last three years and such other details as may be considered necessary.
(d) In case of judicial officers, his/her seniority position and brief description of the career.
(e) If a candidate has been considered earlier, details thereof.
(f) Date on which the High Court Collegium made the recommendation.
(g) Date of the opinion of the Chief Minister of the State.
(h) Date of the opinion of the Union Law Minister.
(i) Date of receipt of the proposal by the Supreme Court Collegium, that is to say, the recommendation of the High Court Collegium, the views of the Chief Minister of the State and the Union Law Minister.
(j) Date of the receipt of the opinion by the consultee Judges.
(k) Date of recommendation of the Supreme Court Collegium, including as to whether the recommendation is for permanent Judge or Additional Judge; and if Additional Judge for what period (normally the period must not be less than two years).
No transfer of Judges at least of Chief Justice:
The Government of India and the Supreme Court Collegium must formulate a transparent policy laying down the criteria for transfer of Judges and Chief Justices. Chief Justice of a High Court should not be transferred from the High Court till the age of superannuation or elevation to the Supreme Court. Transfer of Chief Justices of the High Court adversely affects independence of judiciary.
Sanctioned strength of the High Court Judges
The Supreme Court has repeatedly laid down that speedy justice is a fundamental right. Cases can be disposed of speedily only if there are a sufficient number of Judges. More than 56 lakh cases are pending in various High Courts, out of which about 13 lakh cases are more than ten years old, and another 13 lakh cases are between five to ten years. In such circumstances, there is no justification for creating posts of Additional Judges. The pendency being ever increasing, the post of Additional Judges which are one-fourth of total number, must be converted as permanent Judges. The strength of the High Court Judges must be reviewed every two years and the decision taken on such review, with brief reasons, must be uploaded on the web portal of the Ministry of Law and Justice.
Additional High Court Judges to be made permanent
The appointment procedure, powers and functions of the Additional Judges being similar to that of permanent Judges, the process of evaluation and repeated extensions as Additional Judges must be stopped forthwith. The Additional Judges, instead of being treated as on probation, must be made permanent immediately on occurrence of vacancy.
In the aforesaid scenario, I firmly 0believe that the entire selection process for the appointment of the Supreme Court and the High Court Judges needs to be revisited. A system having checks and balances, transparency coupled with confidentiality, objective criteria needs to be in place.
India has a population of more than 130 crores and definitely we have “eminent persons” in our country who have confidence amongst the citizenry. Inclusion of one or two such eminent persons in the selection mechanism cannot affect the credibility of the institution and independence of the judiciary—rather it will ensure more transparency and less opaqueness. Let the sovereign will of the people prevail.
† Senior Advocate, Supreme Court.
*The article has been published with kind permission of SCC Online cited as (2022) 8 SCC J-52
5 That the decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent Judge(s) of the High Court, elevation to the post of Chief Justice of the High Court, transfer of the High Court Chief Justices/Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different. The Resolution is passed to ensure transparency and yet maintain confidentiality in the Collegium system.
6 A statement dated 12-9-2019 signed by the Secretary General of the Supreme Court is uploaded to the following effect:
Certain reports relating to recommendations recently made by the Collegium regarding transfer of Chief Justices/Judges of the High Courts have appeared in the media. As directed, it is stated that each of the recommendations for transfer was made for cogent reasons after complying with the required procedure in the interest of better administration of justice. Though it would not be in the interest of the institution to disclose the reasons for transfer, if found necessary, the Collegium will have no hesitation in disclosing the same. Further, each of the recommendations was made after full and complete deliberations and the same were unanimously agreed upon by the Collegium.
10 Id, pp. 586-87, para 105
105. … it is necessary that the question of judicial independence is accounted for in the balancing exercise. It cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. However, we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information. … Distinction must be drawn between the final opinion or resolutions passed by the Collegium with regard to appointment/elevation and transfer of Judges with observations and indicative reasons and the inputs/data or details which the Collegium had examined.
22 Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021).
23 “Justice Chelameswar had, at that point of time, refused to physically participate in the Collegium meetings on account of differences on certain issues with Chief Justice T.S. Thakur. So only four members of the Collegium—the Chief Justice, Justices Khehar, Misra and I—participated in these meetings.” Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021)
24 “What transpired in the meetings between 19-11-2015 and 4-1-2016, was both perplexing and confusing; any name proposed by Chief Justice Thakur met with a response from either Justice Khehar or Justice Misra that they needed time to consider it. Justice Thakur had no choice but to adjourn the meeting and fix another date. In the last meeting just before the winter break, even before opening the papers, Justice Thakur asked the members if they were interested in conducting any business. I expected the first response would be from Justice Khehar or Justice Misra. It was useless for me to speak as the silence of the other two Judges answered the question and settled the issue. We parted on a pleasant note after the customary cup of coffee and walked out of the Supreme Court, using the same staircase to go down from the first floor to the ground floor.” Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021)
25 “Chelameswar, J. (seniormost Judge), on mentioning by Mr. Prashant Bhushan, ordered a case involving allegation of judicial corruption in a medical college matter by the High Court and Supreme Court Judges to be heard by a Bench without Chief Justice Misra. Misra, J. did not take this kindly and sought to negate the order by constituting a larger Bench which reiterated by a judicial order that it is the Chief Justice who is the master of the roster and he alone can direct listing of a case before his or any other Bench. To ensure that no mentionings is made before any other Bench except the Chief Justice’s Bench, Misra, J. resorted to a strange practice. While the Constitution Bench headed by Chief Justice Misra continued to sit, at 10.30 a.m. and 2 p.m., before the sitting of the Constitution Bench, the CJI along with one or two other Judges would sit on another Bench, primarily to take up mentionings. To say the least, it was very odd. During my tenure, while hearing the Ayodhya case for nearly four months, all mentionings were made in Justice N.V. Ramana’s court, as he was the seniormost Judge available. There was never any friction over this.” Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021)
26 “I am of the opinion that though attempts at executive control of the judiciary are real, the true danger, as strong, if not more, emanates from another quarter. This is based on my personal observations and experiences, and my reading and analysis of the public utterances/conduct of a group of people who hold out the card of judicial independence or lack of it. They do this through public speeches and writings in selective agenda-based publications which, at times, unfairly make personal attacks on Judges based on misinformation. They are highly organised and though few in number, exert a powerful voice and a firm grip/control over the means of expression which includes a few newspapers and portals.” Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021)
27 “For me, life as the CJI, to say the least, was lonely. I wish there was more camaraderie and brotherhood amongst the Judges. There was this colleague who, during my troubled days in April 2019, came to me with some Ayurvedic preparation which he advised me to take to relieve stress. Behind my back, he was doing just the opposite by acting against me.” Ranjan Gogoi, Justice for the Judge: An Autobiography, (Rupa, 2021)
29 Contempt Petition (Criminal) No. 10 of 2009.
32 < https://doj.gov.in/sites/default/files/memohc_0_1.pdf>.
1252. It was the further submission of the learned Attorney General that the views expressed by this Court, while disposing of the main controversy would enable the Government of India, to introduce amendments and to redraw the existing Memorandum of Procedure with the object of considering the criteria/benchmark for the appointment of Judges of the higher Judiciary, including widening the zone of consideration; to introduce transparency in the matter of appointment of Judges to the higher judiciary, as would be appropriate, keeping in mind the sensitivity of the issue; to make the present procedure broad based, by introducing supporting measures, whereby candidates can be screened and evaluated, and complaints against them are evaluated through a Secretariat constituted for the said purpose, under the control of the Chief Justice of India, as supplemental (and not as a substitute) to the process contemplated through the Second Judges case, (1993) 4 SCC 441 and the Third Judges case, (1998) 7 SCC 739 as well as our judgment on merits in the present batch of cases.
1255. In view of the above, the Government of India may finalise the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the Collegium comprising the four seniormost puisne Judges of the Supreme Court. They shall take the following factors into consideration:
1256.1. Eligibility criteria: The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the Collegium (both at the level of the High Court and the Supreme Court) for the appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time.
1256.2. Transparency in the appointment process: The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the Collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges.
1256.3. Secretariat: In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities.
1256.4. Complaints: The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge.
1256.5. Miscellaneous: The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the Collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.
36 Id, p. 418.
39 <https://doj.gov.in/sites/default/files/ SCI%20%26%20HCs%20as %20on%202-3-2022.pdf>.
40 <https://doj.gov.in./sites/default/files/SCI%20% 26%20HCs%20as%20on%202-1-2022.pdf>.
42 Andhra Pradesh, Delhi, Gujarat, Jammu & Kashmir, Madhya Pradesh, Meghalaya, Orissa, Patna, Rajasthan, Sikkim, Telangana, Tripura and Uttarakhand.
43 Allahabad, Bombay, Calcutta, Chhattisgarh, Gauhati, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madras, Manipur and Punjab & Haryana.
48 “13. The Chief Justice while sending his recommendation for appointing an Additional Judge as a permanent Judge, must along with his recommendation furnish statistics of monthwise disposal of cases and judgments rendered by the Judge concerned as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days he actually attended the court and the days of his absence from the court during the period for which the disposal statistics are sent.”
49 “Regard being had to the necessity of assessment of judgments and also bearing in mind the principle that peers should not be judged by peers, the Collegium in partial modification of its earlier decision taken on 3-3-2017 has decided that the judgments of Additional Judges of the High Courts shall be called for from the Chief Justices of the High Courts concerned and the same shall be evaluated by the Committee of two Hon’ble Judges of the Supreme Court, other than consultee-Judges, to be nominated by the Chief Justice of India.”
486. … (5) In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.; PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2020) 20 SCC 791 : 2021 SCC OnLine SC 332 : (SCC para 12)
“It would be for the Government to thereafter proceed to make the appointment immediately on the aforesaid consideration and undoubtedly if Government has any reservations on suitability or in public interest, within the same period of time it may be sent back to the Supreme Court Collegium with the specific reasons for reservation recorded. If the Supreme Court Collegium after consideration of the aforesaid inputs still reiterates the recommendation(s) unanimously (Cl. 24.1), such appointment should be processed and appointment should be made within 3 to 4 weeks.”