Warranted intervention, phoney controversy

Print edition : January 30, 1999

A working President's notings on the judicial appointments file, which essentially represented a discourse between the President and the Prime Minister, in effect urged that besides the criterion of merit, a certain balance between social classes be given its due.


IN relatively unexciting times, the temptation to forage for spurious controversy becomes a powerful affliction in sections of the media. This alone would seem to explain the rapid extinction of the dispute that recently seemed to engulf the constitutional offices of the President of India and the Chief Justice of India (CJI).

The issues involved were by no means trivial. There were dark suggestions that President K.R. Narayanan had overstepped his constitutional function, that he had sought to impose a doctrine of affirmative action on the judiciary that cut at the roots of its autonomy and integrity. In a momentary frisson of alarm, some legal pundits came forth to uphold the centrality of "merit" criteria in selections to the higher judiciary. There could be no reservations for higher judicial appointments, they chorused, as if that was what the President had proposed.

When the dust settled after the initial round, the eminent constitutional lawyer Fali S. Nariman sought to restore a sense of propriety to the proceedings: the right to counsel and advise is an inherent power of the constitutional Head of State, in the exercise of which he is normally afforded the privilege of confidentiality. In other words, it was unseemly in the extreme to drag the advisory opinion of the President into the mass media and pillory it on the basis of a partial and tendentious understanding. And in seeking to whip up a controversy over an affirmation of political fairness, that section of the media did itself little credit.

At the core of the controversy that failed to ignite were some notings that the President made on a file seeking his assent for the appointment of four Supreme Court judges. In granting his approval, the President chose to record the following observation: "I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are given due representation."

As an affirmation of the principle of fairness and social justice, this was impeccable. The notings went further, raising a perfectly justifiable question relating to the soundness of the consultative process preceding higher judicial appointments: "Eligible persons from SC/ST categories are available and their underrepresentation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work which the Supreme Court is required to handle."

Democratic convention allows the President to proffer an opinion for the consideration of the Prime Minister and his Council of Ministers. It is another matter that in the case at hand, the Union Minister for Law chose merely to pass on the President's notings to the CJI with an elaborate pretence of helplessness. The matter, he said, was entirely between the President and the CJI. This was either extremely disingenuous or uninformed or signified too docile an acceptance of the reigning orthodoxy on judicial appointments. It created the conditions for a phoney controversy attempting to involve the President and the CJI and for grossly misdirected media reports of presidential impropriety. In an ill-judged and hasty response, "an interview" at his residence with India Today's Prabhu Chawla, Chief Justice Adarsh Sein Anand was quoted as making remarks on eligibility, "merit" as the sole criterion for appointments to the Supreme Court, "avoidable delay" in judicial appointments and so on which, in contraposition with excerpts from the President's notings, seemed to fuel the story of tension between the President and the CJI.

In a broader sense, the presidential notings fit into a conception of a "working President" that President Narayanan has worked out for himself. This concept is helpful in getting to the heart of the constitutional, and constitutionally circumscribed, role intended by the Constitution for the Head of State. He or she cannot be an executive president, but neither does the Constitution provide for a purely ceremonial figurehead, a sort of constitutional dummy. A "working President", on the other hand, thinks, opines, raises questions, works hard on issues that matter in the constitutional scheme, within the limits intended, indicated or laid down by the Constitution and with the welfare of the people of India as a pervasive concern.

UNIQUELY among the institutions of governance, the judiciary in India is the closest approximation to a self-governing and self-perpetuating entity. In a 1993 ruling, the Supreme Court held that the process of "consultation" envisaged in the Constitution necessarily meant that the concurrence of the CJI had to be obtained for all appointments to the higher judiciary. The CJI, in turn, would premise his decisions upon consultations within the judiciary, typically involving the two seniormost puisne Judges of the Supreme Court.

This opinion was rendered by a majority of seven judges on a nine-member Bench, though there were important differences in nuance between the three concurring opinions. Only one judge on the Constitution Bench went against this opinion, refusing to accord the CJI any primacy over the political executive in the matter of judicial appointments. Justice M.M. Punchhi, as he then was, upheld not merely the primacy of the CJI but also his inherent right to decide. The CJI, in other words, was entitled "to consult any number of judges on a particular proposal. (And it was) equally within his right not to consult anyone."

On his elevation to the CJI's post, Punchhi sought to put this rather radical vision into practice. The events of mid-1998, when he sent up a number of recommendations for appointment to the higher judiciary, exposed all the inherent infirmities of the 1993 ruling. Unsure about the conformity between these recommendations and the procedures laid down by the Supreme Court, the Government refused to accept Punchhi's choices for the higher judiciary.

Under the Constitution, the President is entitled to seek the opinion of the Supreme Court on sensitive questions of law that may arise in the exercise of his powers. Such a reference was made on July 23, 1998, asking for clarification of various areas of ambiguity in the 1993 ruling. This was an act of statesmanship, to help break an unseemly deadlock between the executive and the judiciary.

(From left) Chief Justice Adarsh Sein Anand, President K.R. Narayanan and Prime Minister A.B. Vajpayee. In a broader sense, the presidential notings fit into a conception of a "working President" that President Narayanan has worked out for himself.-V. SUDERSHAN

The advisory opinion of the Supreme Court was rendered on October 28, 1998. On behalf of a nine-member Constitution Bench, Justice S.P. Bharucha held it to be "desirable that the collegium (which recommends judicial appointments) should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court." The recommended strength of the collegium was evidently based on the consensus on the Bench, of the threshold beyond which "arbitrariness and bias" would be submerged in an appreciation of what was best for the judiciary.

A variety of qualifications was then spelt out to deal with the diverse range of circumstances in which the choice of high judicial functionaries would be made. In selection, seniority on an all-India basis among judges should be given its due weight, said Justice Bharucha, but it would be a factor only among judges who are considered "suitable and at least equally meritorious." Merit, in other words, "is the predominant consideration for the purposes of appointment to the Supreme Court."

In choosing between equally meritorious candidates, the judicial collegium could consider the imperatives of providing adequate representation to the different parts of the country: "When the contenders for appointment to the Supreme Court do not possess such outstanding merit but have nevertheless, the required merit in more or less equal degree there may be reason to recommend one among them because, for example, the particular region of the country in which his parent High Court is situated is not represented on the Supreme Court Bench. All that then needs to be recorded when making the recommendation for appointment is this factor."

A PLAIN reading of the President's notings on the judicial appointments file would reveal that he has urged, importantly, that a second criterion - that of balance between social classes - be given its due. President Narayanan's advocacy of this criterion has never been a secret. For instance, in his inaugural speech at a seminar on judicial reforms on December 5, he made the following observations: "In our vast country with its immensity of diversities, it is a matter of importance that in the judiciary all the major regions and sections of society are represented to the extent possible, consistent with the requirements of merit and the high standards maintained by the judiciary. The argument is not that the judiciary should follow some sort of proportional representation. The administration of law and justice is intimately linked to the social philosophy of the judiciary, and the social philosophy cannot be entirely separated from the social origins of those who dispense justice. It has been said that those who live differently think differently."

It would take a rather fanciful or fevered imagination to interpret these locutions as advocacy for reservations, or as an argument that "merit" criteria should be waived in the interests of ensuring the balance between regions and social classes. The point, rather, is a more profound one, which has a bearing on the social and political content of judicial pronouncements.

The 1993 ruling of the Supreme Court had held that the proposal for appointing a judge must be initiated by the CJI or by the Chief Justice of a High Court, as the case may be. Following this, all other constitutional functionaries who have a role in the process should provide their opinions in a time-bound manner. The 1998 advisory opinion of the Supreme Court did not depart from this formula, which vested the initiative with the judiciary in the matter of appointments.

The judgment delivered by Justice S.R. Pandian in 1993 is of specific relevance here. While concurring with the majority opinion that the CJI in consultation with his senior colleagues should have the decisive influence over judicial appointments, Justice Pandian also thought it necessary to enter an important caveat: his years of experience at the bar and the Bench had convinced him that on occasions, "the candidates have been initiated for judgeship either on regional or caste or communal basis or on extraneous considerations." "There have been complaints which cannot be easily brushed aside," he continued, "that some of the recommendations have been tainted with nepotism and favouritism."

The outcome was a "theory of judicial relationship" whereby "generations of men from the same family or caste, community or religion are being sponsored and initiated and appointed as judges." This in turn meant that certain sections of the population were devoid of meaningful representation in the higher judiciary. Justice Pandian's estimate - equally valid now - was that less than 4 per cent of judges in the higher judiciary was from the SC and ST sections and less than 3 per cent were women.

No democratic institution could be sustained as a space reserved "for a self-perpetuating oligarchy," said Justice Pandian. And in ensuring access "for all the people", it was necessary to make the initiation of judicial appointments as broad-based a process as possible: "... there is every justification for the Government to forward lists of candidates belonging to diverse sections of the people to the Chief Justice concerned, who has to ultimately scrutinise the list and take his decision on the merit of the candidates without giving room for any criticism that the selection was whimsical, fanciful or arbitrary or tainted with any prejudice or bias. It is open to the Chief Justice of the High Court to get more particulars from the Government before taking any decision in this regard. Once the decision is taken by the Chief Justice of a State and the list is forwarded to the CJI, then the opinion of the CJI based on the materials placed before him should have the primacy."

Justice Pandian's plea was not for a principle of reservations, but for an open process of initiation and selection to ensure that social biases and inequities were not replicated and reinforced in the judicial realm. In the five years following the 1993 ruling, the Supreme Court has hesitantly moved towards enlarging the size of the judicial collegium that will initiate and recommend appointments. President Narayanan's observations are a constitutionally impeccable reminder that numerical concessions - like increasing the size of the collegium from three to five - are not yet an assurance that the fairness principle will be given its due. They resonate with the spirit of the Directive Principles of State Policy.

THE October 28 opinion of the Supreme Court conceived of a variety of situations - appointments to the high courts and the Supreme Court were one category, and then there were cases involving the transfer of judges between high courts, the transfer of a high court judge on promotion as Chief Justice of another Bench, and the transfer of Chief Justices between two high courts. The size of the collegium varies in each of these cases, and in a manner not obviously connected to the gravity of the decision.

Add to this the circumstance that the initiation of appointments, the scrutiny of prospective candidates and the final recommendation are the sole prerogative of the judiciary, and there is seemingly the recipe for the entrenchment of a "self-perpetuating oligarchy" in a vital institution of a democratic polity.

The formal Memorandum of Procedure covering judicial appointments, which embodies the Supreme Court's 1993 ruling and its 1998 opinion, is yet to be drafted. This has placed an additional onus on the President, to match each recommendation he has received with the procedures laid down by the Supreme Court. In some of these, a mismatch has been evident. This has obliged him to seek additional clarifications on the conformity between the CJI's recommendations and the Supreme Court norms. In a bizarre reversal, these efforts to ensure the fulfilment of Supreme Court norms not to speak of the spirit of the Constitution, has been read, in some motivated quarters, as obstruction from Rashtrapati Bhavan.

Failing their formal refutation, the lofty and unexceptionable norms laid down by Justice Pandian on the initiation of judicial appointments should also figure in the Memorandum of Procedure. This makes it obligatory on the Government to snap out of its inaction and take an initiative in upholding the principles of fairness and social justice. In reminding the Government that it needed to be more sensitive to this issue, the President would seem to have acted well within his constitutional jurisdiction.

HYPOTHETICALLY, an issue would arise if a President were to advocate any particular judge's claim for higher appointment. That has clearly not been the case. If anything, the boot is on the other foot. By any criterion, Chief Justice K.G. Balakrishnan of the Gujarat High Court would be considered a strong claimant for a Supreme Court berth. He is highly regarded; his name has for long been in contention, not because he happens to be from a Scheduled Caste, but because he has been an outstanding judge. But for reasons that remain shrouded in the process of consultation in the judicial collegium, Balakrishnan failed to make the most recent list. As a Chief Justice at the relatively young age of 53, he seems obviously to possess the "merit" that is considered essential for the higher judiciary.

To use a judge's relative youth as a disqualification for a Supreme Court berth would obviously negate the claim that "merit" is the principal criterion. Judges have been appointed to the Supreme Court even before the age of 55, which today for reasons unexplained seems to be informally accepted as the minimum age. These judges have in due course invariably ascended to the office of the CJI on grounds of seniority. If merit is the principal criterion, then an outstanding individual from a Scheduled Caste could in the foreseeable future occupy the highest judicial office in the country for a relatively long period. It would take a particularly outmoded sensitivity to see in this anything less than the vindication of the fairness principle.

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