Judicial Review of Chief Justice of India’s Power to Appoint and Transfer | Law Optional Notes for UPSC PDF Download

Introduction

• An impartial, efficient, and autonomous judiciary is crucial for the functioning of our democratic system, safeguarding fundamental rights, and maintaining national unity.
• In India, the process of appointing judges has evolved significantly over the years, transitioning from executive dominance to judicial supremacy.
• The Constitution underwent amendments in 1976, restricting the power of Judicial Review temporarily, until it was reinstated in 1978 through the 44th Amendment Act. Subsequent attempts in 1981 to control the transfer of High Court judges led to the landmark 1st Judge's Case.
• The S.P. Gupta v. Union of India case in 1981 highlighted that the recommendations for judicial appointments by the Chief Justice of India could be overruled by political authorities only for valid reasons.
• However, in 1993, the Advocate on Record Association v. Union of India case established the Collegium system, where a panel comprising the Chief Justice of India and two senior-most Supreme Court judges determines judicial appointments and transfers.
• Despite the Collegium system, instances occurred where the Chief Justice of India made decisions unilaterally, reducing the President's role to a mere formality.
• Efforts have been made to address these issues, including a reference by President K.R. Narayan in 1998 seeking clarification on the term "consultation" concerning judge appointments and transfers under Articles 124, 217, and 222 of the Constitution.
• The Supreme Court responded by outlining guidelines emphasizing the supremacy of the judiciary over the executive in judicial matters.
• Successive cases such as the first, second, and third Judge's Cases, along with the creation and subsequent annulment of the National Judicial Appointment Commission, have shaped the judicial appointment process in India, ultimately reinstating the Collegium system.

Problem

• The Constitution of India grants the President the authority to appoint and transfer judges in consultation with the Chief Justice of India. This led to a prolonged conflict between executive supremacy and judicial supremacy.
• An ongoing debate questions the necessity of judicial review concerning the Chief Justice's power to appoint and transfer judges, along with the extent to which this review should be conducted.

Objectives

Nature of the study and sources of the data

• This research project employs an analytical and doctrinal approach, utilizing a combination of original and secondary sources for information gathering.
• Books and various references recommended by the faculty have been instrumental in providing a solid foundation for this project.

Limitations of the study

• This study is specifically focused on the comprehension of the appointment and transfer processes of judges in India.
• The primary emphasis is on the 'three judges' case and the National Judicial Appointment Committee (NJAC) system.
• Research constraints include access to books within the university library and online law libraries stipulated by the university.

Contribution of the study

• The project addresses the ongoing power struggle between the executive and the judiciary, particularly concerning the appointment and transfer of judges.
• It aims to document various instances of judges' transfers, the functioning of the NJAC system, and the reinstatement of the collegium system.
• In addition to emphasizing judicial independence, the project underlines the importance of judicial efficiency.

Power of Chief Justice of India to Appoint and Transfer

• Judges of the Supreme Court and High Courts are appointed by the President under specific Articles of the Constitution.
• The President is required to consult with certain judges of the Supreme Court and High Courts for these appointments.
• Article 124(2) outlines the appointment process for Judges of the Supreme Court.
• According to Article 124(2), the President appoints every Judge of the Supreme Court after necessary consultations.
• Judges of High Courts are appointed by the President after consultation with various authorities.
• The appointment process involves consultation with the Chief Justice of India, the Governor of the State, and others as required.
• Each Judge's term differs based on their position, with retirement typically at sixty-five years for Supreme Court Judges and sixty-two years for High Court Judges.
• The Chief Justice of India must be consulted for the appointment of Judges other than the Chief Justice.

Intent of the Makers of the Constitution

Appointment of Judges

• The Supreme Court judges were intended to be appointed with the Chief Justice's agreement.
• Appointments by the President were to be confirmed by a two-thirds vote in Parliament.
• Consultation with the Council of States was also necessary for appointments.

Concerns Addressed by Dr. Ambedkar

• Dr. Ambedkar proposed a balanced solution to the appointment of judges.
• He emphasized the need to avoid absolute power in the hands of any one authority.

Role of the Chief Justice

• Dr. Ambedkar did not support making the Chief Justice the sole authority in judge appointments.
• He believed that entrusting such power solely to the Chief Justice could lead to errors.

Consultative Process

• The appointment of judges was seen as a consultative process among constitutional functionaries.
• This process aimed to safeguard the judiciary's independence in a democratic setup.

By analyzing the original intentions of the framers of the Constitution, it becomes evident that the appointment of judges was designed to involve multiple checks and balances to prevent the concentration of power in any single entity. Dr. Ambedkar's insights underscore the importance of a collaborative approach in ensuring the independence of the judiciary.

The Evolution of Judicial Appointments

• Traditionally, judicial appointments under Article 124 followed Dr. Ambedkar's vision, emphasizing a consultative process.
• The CJI was typically the senior-most judge, respecting the norm until 1973.
• In 1973, this practice was disrupted when Justice A.N. Ray was made CJI over three more senior judges, introducing the 'committed judges theory'.
• Similarly, in 1977, Justice H.R. Khanna, not appointed CJI, exemplified the government's attempt to neutralize the 'independent judges theory' due to his dissent in the ADM Jabalpur case.

Pre-NJAC Era

• Before the National Judicial Appointments Commission (NJAC) came into existence, the process of appointing judges, particularly the Chief Justice of India (CJI), was relatively uncomplicated.
• In 1973, Justice A.N. Ray's appointment as the CJI sparked a conflict between the executive and the judiciary, setting the stage for a power struggle.
• Attempts were made to limit the independence of the judiciary through means such as using transfers as a tool to influence judges and appointing additional judges to scrutinize their decisions.
• Challenges to executive interference in judicial appointments were raised, leading to significant legal battles like the First Judges Case.
• In the S.P. Gupta case, the Supreme Court ruled that the CJI's opinion did not hold superior weight in judicial appointments, reflecting a balanced approach.
• The Second Judges' Case in 1993 redefined the consultation process, giving prominence to the judiciary's independence in appointments.
• Emphasis was placed on consensus among consultees, with the CJI's opinion carrying significant weight due to their expertise in evaluating candidates.
• The concept of democratic accountability was debated, with the judiciary's role in ensuring suitable appointments being highlighted.
• The collegium system was introduced as a mechanism for collective decision-making in judicial appointments, promoting transparency and shared responsibility.
• Subsequent developments in the judiciary, including the Third Judges' Case and debates over the collegium system, underscored the evolving dynamics of judicial appointments.
• The emergence of the NJAC was driven by perceived shortcomings in the existing appointment mechanisms, signaling the need for reform.

Analysis of the term "Opinion" of the Chief Justice of India

• The Chief Justice of India forms opinions based on pragmatic considerations and past practices.
• For Supreme Court appointments, the Chief Justice considers the views of the two seniormost Judges.
• Views of other Judges are essential for forming opinions, as per Article 124(2).
• Consultation with other Judges ensures collective decision-making at the apex judiciary level.
• For High Court appointments, the Chief Justice considers opinions of colleagues and senior Judges.
• Opinions must be in writing to avoid ambiguity, as per legal requirements.
• The Chief Justice's opinion holds primacy in all appointments to ensure the best candidates are selected.
• Appointment conformity with the Chief Justice's opinion is crucial for maintaining judicial independence.
• Non-appointment may occur if a recommended candidate is deemed unsuitable based on valid reasons.
• Consultation and written opinions are critical for transparency and effective decision-making.
• Expression of opinions in writing serves as a check on exercising power and ensures careful consideration.

Transfers of Judges and the Judicial Review

Consideration of Views in Judge Transfers

• In the process of transferring a Judge (other than the Chief Justice), the Chief Justice of India must consider the opinions of various key figures.
• This includes the Chief Justice of the relevant High Court, a Supreme Court Judge if their input is significant, and at least one other senior Chief Justice or relevant individual identified by the Chief Justice of India.
• Personal factors related to the Judge in question and their preferences should also be taken into account.

Judiciary Primacy and Transfers

• The judiciary's paramount role in appointments and transfers embeds a judicial aspect in the process, obviating the need for additional judicial review.
• The involvement of multiple judges in the Chief Justice of India's decision-making process acts as a safeguard against bias or arbitrariness.
• Further judicial review is unnecessary due to the predominant judicial influence in appointments and transfers.

Guidelines for Justiciability

• Guidelines, including consultation with multiple judges, minimizing discretion, and adhering to established norms, serve as checks against arbitrariness.
• These norms do not confer justiciable rights upon the transferred Judge.
• Transfers must be recommended by the Chief Justice of India and are not justiciable on other grounds, ensuring protection against arbitrariness and bias.

Public Interest and Avoidance of Litigation

• Excluding transfers and appointments from litigative debate serves the public interest by maintaining decision credibility and fostering open communication among constitutional functionaries.
• Such exclusions aid in ensuring effective consultation and the right decision-making process.
• Judicial Review Scope
  • Judicial review in transfer matters is limited, primarily focusing on consultation with designated officials and adherence to appointment conditions.
  • Concerns such as bias are mitigated by the involvement of multiple decision-makers in the process.

NJAC Era

• National Judicial Appointments Commission (NJAC) was a proposed body aimed at handling the appointment and transfer of judges within the higher judiciary of India. It was established through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014.
• The NJAC was intended to replace the existing collegium system for judge appointments, which had been put in place by the Supreme Court through judicial decree.
• Alongside the constitutional amendment, the National Judicial Appointments Commission Act, 2014, was passed by the Indian Parliament to govern the operations of the NJAC.

Ad Hoc Committee Report (1949)

• In 1949, an ad hoc committee was formed by the constituent assembly to recommend a suitable method for appointing judges. The committee proposed a panel of 11 members, including Chief Justices of High Courts and members of both houses, to nominate judges. These nominations required confirmation by at least 7 members before being presented to the President for final approval.

121st Law Commission Report (1987)

• The 121st Law Commission Report in 1987 referenced the Missouri Plan in the United States, suggesting a composition for the judicial appointments body that included the Chief Justice of India, senior judges, the Union Law Minister, the Attorney General of India, and a distinguished legal academic.

Venkatchalaiah Committee Report (2003)

• Building on the 1987 Law Commission report, the National Judicial Commission was proposed in the Constitutional (67th Amendment) Bill of 1990. Subsequent developments aimed at expanding the 'collegium' system, leading to the introduction of the National Judicial Commission Bill in 2003, which unfortunately lapsed due to changes in government and parliamentary dissolution.

The Issue of Executive Dominance

• The 99th Amendment and the NJAC Act of 2014 seem to prioritize the role of the executive branch in judicial appointments.
• Article 124C of the Constitution suggests that Parliament will regulate the appointment process, giving significant power to the executive.
• Under the National Judicial Appointment Commission Act, 2014, the Commission, rather than the judiciary, initiates the appointment process, deviating from established norms.

Composition of the Commission

• Article 124A outlines the composition of the Commission, which has shifted from a predominantly judicial body to one with increased executive representation.
• The current Commission comprises only 3 judges out of 6 members, reducing the judiciary's influence in the appointment process.
• The imbalance in power between the judiciary and the executive is becoming more pronounced.

Role of the Chief Justice of India

• Sections 5 and 6(6) of the NJAC Act introduce provisions that could undermine the authority of the Chief Justice in judicial appointments.
• The Act allows for a potential veto by two members of the Commission, which could overrule the recommendations made by the Chief Justice and other members.
• This veto power introduces the risk of non-judicial factors influencing the appointment process, threatening judicial independence.

Impact on Federalism

• The changes brought about by the NJAC Act have altered the federal balance in the appointment of High Court judges, tilting power towards the central executive.
• The Act has reduced the influence of state executives in the appointment process, potentially compromising the federal character of judicial appointments.

Overview of the Revival of Collegium System

• The Supreme Court rejected the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment.
• Independence of the judiciary is a crucial aspect of the Constitution, ensuring its impartiality and competence.
• The appointment of judges is integral to judicial independence and a fundamental constitutional ideal.
• The Constitution (99th Amendment) Act, 2014 was deemed to violate the basic structure of the Constitution and was struck down as void.
• The National Judicial Appointments Commission Act, 2014 was also found to be unconstitutional.

Reasoning Behind the Decision

• Justice J.S. Khehar emphasized the need for the judiciary to remain independent and free from external influences.
• The majority verdict upheld the primacy of the judiciary in the selection and appointment of judges.
• Justice J. Chelameswar's dissenting opinion criticized the lack of transparency in the collegium system.

Understanding the Collegium System

• The collegium system pertains to the method of appointing and transferring judges, a process that has evolved primarily through Supreme Court judgments rather than legislative acts or constitutional provisions.
• In the Supreme Court, the collegium is led by the Chief Justice of India and includes the four most senior judges of the court. Similarly, a High Court collegium is headed by the Chief Justice of that specific court along with four other senior judges.
• When a High Court collegium recommends names for judicial appointments, these recommendations are forwarded to the government only after receiving approval from both the Chief Justice of India and the Supreme Court collegium.
• Judges within the higher judiciary are exclusively appointed through the collegium system, with the government's involvement coming into play only after the collegium has finalized its selections.
• The government's responsibilities are limited to conducting an inquiry through the Intelligence Bureau in cases where a lawyer is being considered for elevation to a judgeship in either a High Court or the Supreme Court.
• The government can present objections and request clarifications regarding the choices made by the collegium. However, if the collegium reaffirms its selections, the government is obligated, as per Constitutional Bench rulings, to appoint the recommended individuals as judges.

Evolution of the Collegium System

• Confusion post the second judges transfer case led to a pivotal moment in 1998.
• President K R Narayanan sought clarification from the Supreme Court on the interpretation of "consultation" under Article 143 of the Constitution.
• The Supreme Court responded by establishing 9 guidelines to shape the collegium system as it stands today.
• The collegium now comprises the CJI and his four senior colleagues for recommendations, instead of just two.
• Consultation with Supreme Court judges from the relevant High Court became a mandatory step.
• Even in the face of dissenting opinions from two judges, the CJI has the authority to withhold the recommendation from the government.

Collegium System: Critical Analysis

• Critics argue that the collegium system lacks transparency as it operates without an official mechanism or secretariat. This leads to a perception of a closed-door process with no defined eligibility criteria or selection procedure.
• There is a lack of public knowledge regarding the functioning of the collegium, including when and how it convenes and makes decisions. This opacity extends to lawyers who are unaware if they are being considered for elevation as judges.
• Despite the revival of the collegium system through the NJAC Judgment, dissenting voices like Justice J Chelameswar have expressed concerns. The majority opinion emphasized the judiciary's primacy in judge selection, while Justice Chelameswar criticized the complete lack of transparency in collegium proceedings, which are often inaccessible to the public.
• The judiciary itself has acknowledged the imperfections of the collegium system, suggesting the need for improvements in the 21-year-old practice of judges appointing judges. Justice Khehar urged the government to collaborate in enhancing the system, recognizing the value of diverse perspectives in decision-making.

Judicial Primacy vs. Judicial Exclusivity

• Understanding Judicial Primacy:
  • Judicial primacy suggests that when judges are in agreement, the candidate they support should be appointed.
• Differentiating Judicial Primacy and Exclusivity:
  • Judicial primacy does not necessarily mean judicial exclusivity, which grants judges the sole right in the selection process, as seen in the collegium system.
  • Exclusivity is breached when external entities influence decisions in the absence of judicial unity, though primacy remains intact.
• Challenges in the Absence of Exclusivity:
  • In situations lacking exclusivity, a candidate not favored by the Chief Justice of India (CJI) may still be appointed.
  • The CJI must endorse a candidate, even if it's not their preferred choice, when consulted by the President as mandated by the Constitution.
• Revival of the Collegium System:
  • The collegium system resurfaced following the failure of the National Judicial Appointments Commission (NJAC).
  • Efforts are required to enhance the efficiency of the appointment process within the collegium system.
• Importance of the Memorandum of Procedure:
  • A Memorandum of Procedure was proposed to outline appointment details, enhancing transparency in the selection process.

Understanding Memorandum of Procedure

• When the collegium recommends a judge for elevation to the Supreme Court, the Centre has the power to approve or reject the recommendation.
• If the Centre rejects a recommendation, it can send it back to the collegium for reconsideration.
• If the collegium chooses not to reconsider, the appointment is confirmed.
• In the recent case, the Centre neither confirmed nor rejected the recommended names, using what is called a pocket veto.

Implications of a Pocket Veto

• A pocket veto allows the Centre to delay appointments indefinitely without a specified time limit for approval.
• This practice can lead to significant challenges, especially in the context of understaffed High Courts across the country.

Call for Revisiting the Memorandum of Procedure

• The current Memorandum of Procedure did not anticipate the use of a pocket veto.
• There is a need to revisit the MoP to prevent such delays in judicial appointments.

Importance of Collaboration Between Centre and Judiciary

• The Collegium system gives the final authority on judicial appointments to the Collegium.
• However, a healthy relationship between the Centre and the judiciary is crucial for the smooth functioning of democracy.
• Collaboration is essential to address issues arising from appointment delays and vacancies in the judiciary.

Conclusion

• Recent events in the Supreme Court involved four senior judges questioning the Chief Justice of India, Dipak Misra, regarding selective case allocation and certain judicial orders.
• Concerns have been raised about the increasing power of the Chief Justice of India over the past two decades without sufficient mechanisms of accountability.
• Issues of appointment and transfer of judges have also highlighted the need for checks and balances on the power of the Chief Justice.
• The process of appointment and transfer of judges is subject to limited judicial review, following specific guidelines and the Memorandum of Procedure.
• Recommendations and reasons for appointments and transfers must be documented in writing.

Suggestions for Upholding Judicial Independence and Transparency

• The establishment of clear and extensive grounds for limited judicial review is crucial to provide clarity. Any new grounds that may emerge should be decided based on the existing criteria, following the principle of ejusdem generis.
• Independence of the judiciary stands as a fundamental pillar of the Indian Constitution and the governmental system. It is imperative to safeguard this independence. Efforts should be made to prevent power struggles between the legislature and judiciary from compromising this independence.
• Checks must be implemented to prevent judges from engaging in judicial activism beyond their mandate. They should refrain from entertaining Public Interest Litigations (PILs) or issuing writs challenging the appointment of the Chief Justice of India. The interpretation of locus standi in such cases should be narrow to maintain public trust in the judiciary.
• A collaborative committee comprising representatives from both the judiciary and legislature, including Supreme Court and high court judges, as well as the law minister, should be formed. This committee can work towards resolving conflicts and ending power struggles between the two branches of government.
• Efforts should be made to enhance the transparency of the judicial system. Measures should be taken to eliminate nepotism and ensure that appointments and decisions are made based on merit and integrity.
• The issues outlined in the Memorandum of Procedure need to be carefully reassessed and addressed to enhance the efficiency and effectiveness of the judicial system.