Justice J.S. Verma, former Chief Justice of India.
JUSTICE Jagdish Sharan Verma was the Chief Justice of India from March 25, 1997, to January 18, 1998. It was during his tenure that the Supreme Court adopted the Restatement of Values of Judicial Life and the in-house procedure to maintain judicial discipline. Justice Verma, however, is better known as the author of the majority opinion in the Second Judges’ case (1993), which gave primacy to the judiciary in the matter of appointment of Judges to the higher judiciary. In this interview, he discusses some of the implications of this judgment in the light of certain recent controversies.You said in one of your speeches that judicial appointments have become judicial disappointments. Do you now regret your 1993 judgment?
My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.
Broadly, there are two distinct areas. One is the area of legal acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues [who] are the best persons to adjudge the legal acumen. Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgment said that in the area of legal acumen the judiciary’s opinion should be dominant and in the area of antecedents the executive’s opinion should be dominant. Together, the two should function to find out the most suitable [candidates] available for appointment.
I expressly said in that judgment that in the area of non-appointment on the grounds of bad antecedents, it is left to the executive to reject a recommendation made by the judiciary, for reasons to be recorded. If there is any reasonable doubt regarding a candidate’s antecedents, and if the Supreme Court’s collegium reiterates a recommendation sent to the executive, unless the initial recommendation and its reiteration are unanimous by the collegium of the judiciary, the executive is not bound.
When the former President [A.P.J.] Abdul Kalam sent back recommendations of the collegium [comprising the Chief Justice of India and four senior-most Judges of the Supreme Court] to the government for reconsideration, the initial recommendations were not unanimous decisions of the collegium. [According to reports in the media, Kalam returned to the executive for reconsideration recommendations pertaining to the appointment of Vijender Jain and Jagdish Bhalla as the Chief Justices of the Punjab and Haryana High Court and the Kerala High Court respectively.] The reiteration of these recommendations by the Supreme Court collegium was also not unanimous. Now, why did the executive not exercise its power of non-appointment? It is wrong to say that my 1993 judgment does not leave any scope for the executive to assert where it should.
To begin with, after the First Judges’ case of 1982, the executive said, we alone matter, the judiciary had no say. I was a Judge in the High Court since 1972, and I was involved in the appointment process, so I know. Even during the pre-1993 phase, it depended on the strength of the Chief Justice concerned. That was the executive arbitrariness that was the occasion when the Second Judges case came. My judgment does not say I alone, as the CJI, matter. That is how the collegium came.
The general impression within the judiciary is that there is arbitrariness in the exercise of powers by the collegium. And the executive conveniently says it cannot do anything when it suits it. I wrote in December 2005 to the then Chief Justice, Y.K. Sabharwal, with copies of the letter to the next two senior Judges, Ruma Pal and K.G. Balakrishnan, about the impression I got during my visits to several High Courts in the country. I said the recommendation made by the collegium in the High Courts is not always objective, since it is at the behest of someone from the Supreme Court, of a lawyer not of the requisite stature or noticed earlier, and this is hinted as a disturbing trend. Such aberrations, I pointed out, are seen in the case of persons with access to or affinity with someone involved in the appointment process or close to it. I deplored that susceptibility of members in the High Court collegium to such influence results from their expectation of better future prospects of upward mobility by resilience to this influence.
Even if there is an iota of doubt, why appoint? If the President of India returns a recommendation for reconsideration, it is a serious matter. Then the collegium must show why the allegations are wrong.Is the National Judicial Commission (NJC) an answer to the aberrations in the appointment process?
Whatever the system, it is the honesty of purpose of the persons who are in charge of working that system that matters. Honest errors everyone makes. But then if something stares you in the eye, and then you do it, it weakens the system. And, therefore, I am for transparency. There is no reason why, after an appointment is made, the entire correspondence cannot be made public. The public must know the reason why a collegium recommended someone and persisted.
Some names that were expressly rejected by the collegium during my time were subsequently recommended after I retired from the Bench. Maybe the earlier decision was wrong. But the records must show why.
Consultation among senior Judges in the matter of appointments was also a convention before the 1993 judgment. There is no inherent flaw in the judgment. The flaw is only in the working.
Now, what should be the composition of the NJC? I am not for Speaker or anyone else, because ultimately they are political persons. You have instances of the Speaker going to the executive. Therefore, the Vice-President would be the correct choice to head the NJC. The Vice-President does not belong to either the executive or the judiciary. The Chief Justice of India and two senior Judges for the judiciary; the Prime Minister, and the Home Minister or Law Minister for the executive. For High Courts, we can have the CJI, the seniormost puisne Judge and the Chief Justice of the High Court, who should consult his colleagues in the High Court. For the executive, you can include the Chief Minister, apart from the Prime Minister and his nominee (the Home or Law Minister). So, neither the judiciary nor the executive can think that it has the veto power, and the constitutional purpose of the exercise being joint and participatory becomes real.Can you throw light on how, during your tenure as the CJI, appointments took place?
For every Supreme Court appointment, I consulted senior lawyers like Fali S. Nariman and Shanthi Bhushan. I used to consult five or six top lawyers. I used to consult even lawyers belonging to the middle level. Similar consultation took place in the case of High Courts. I recorded details of every consultation. I wish all my correspondence is made public. After the appointment, why should it be secret? If there is a good reason to appoint the Judges, then at least the doubts people cast on them even now will not be there. And if there is a good reason why they should not have been appointed, then it would expose the persons who were responsible for their appointment.
In respect of more than one Judge, I had an inquiry held, and senior Supreme Court Judges found the allegations true, and then I forwarded all those papers to the Prime Minister for action on that basis. The Constitution does not provide for any other action except removal.
I wrote to the High Courts that I will not clear any appointments in the High Courts unless the person concerned agrees to abide by three resolutions: asset declaration, restatement of values and in-house procedure. In 1997, I wrote to the Prime Minister that these require legal sanction to be enforced. If there is a false allegation, the complainant must be punished, and the Judge’s name must be cleared. Most of the allegations against the Judges are malicious and false. Even if there is one true allegation, that must be taken to its logical conclusion.
(Letters to the Editor should carry the full postal address)
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