By Lokendra Malik
Asserting its primacy in judges’ appointments in the superior judiciary, the Supreme Court collegium headed by the Chief Justice of India (CJI) NV Ramana has unanimously reiterated its previous recommendations to press the appointments of 12 persons, including three judicial officers, to five High Courts —Rajasthan, Allahabad, Jammu and Kashmir, Karnataka, and Calcutta. The central government was sitting on their files for several months.
The material, including the objections raised by the government, has been considered by the collegium and it has rejected the government’s objections. However, the material is not available in the public domain. The collegium has rightly insisted on the appointments of judges and the centre should not make it a prestige issue. CJI Ramana and his collegium colleagues deserve appreciation for taking this courageous stand at a crucial time when High Courts need judges on a priority basis.
With this, the ball has again come into the executive’s court. Let us see how the centre reacts now. Given the well-established primacy of the Supreme Court collegium in judicial appointments, the central government has no option but to implement the collegium’s reiterated recommendations and decisions.
As per the Second, Third, and Fourth Judges’ cases, the unanimous recommendations of the Supreme Court collegium headed by the chief justice of India are binding on the President of India, who acts on the advice of the prime minister. However, the President can return the advice to the collegium for its reconsideration by recording reasons. On reconsideration, the Supreme Court collegium may either drop the recommendation or reiterate its view. In the latter case, the President is bound to accept the recommendation. Thus, the Supreme Court collegium led by the CJI is the final arbiter in making judicial appointments to the Supreme Courts and High Courts. This system was created to protect the independence of the judiciary by eliminating the executive’s interference from judicial appointments.
Admittedly, there was too much executive interference in judges’ appointments in the pre-collegium system which was dominated by the prime minister and the Union law minister. After the collegium system came into existence, the entire situation has changed, and now these functionaries cannot influence the process of judicial appointments much.
Admittedly, the Supreme Court collegium headed by the CJI is the real judge-maker in the country and the central government just acts like a facilitator. Gone are the days when the centre used to dominate the appointments of judges. Now the government has to toe the judiciary’s line.
Let me recall the Supreme Court’s observations made in the Second Judges’ case, 1993, regarding this situation:
“Non-appointment of anyone recommended, on the ground of unsuitability must be for good reasons, disclosed to the Chief Justice of India to enable him to reconsider and withdraw his recommendation on those considerations. If the Chief Justice of India does not find it necessary to withdraw his recommendation even thereafter, but the other Judges of the Supreme Court who have been consulted in the matter are of the view that it ought to be withdrawn, the non-appointment of that person for reasons to be recorded, maybe permissible in the public interest. If the non-appointment in a rare case, on this ground, turns out to be a mistake, that mistake in the ultimate public interest is less harmful than a wrong appointment. However, if after due consideration of the reasons disclosed to the Chief Justice of India, that recommendation is reiterated by the Chief Justice of India with the unanimous agreement of the Judges of the Supreme Court consulted in the matter, with reasons for not withdrawing the recommendation, then that appointment as a matter of healthy convention ought to be made.”
The apex court has also reiterated this view in the Third and Fourth Judges’ cases. These observations make it crystal clear that the Supreme Court collegium led by the CJI has the conclusive power in making judicial appointments to the Supreme Court and High Courts.
Justice MB Lokur’s following observations in his concurring judgment in the NJAC case, 2015, also demonstrate the primacy of the Supreme Court collegium headed by the CJI:
“The Chief Justice of India and other judges are undoubtedly well qualified to give proper advice with regard to the knowledge, ability, competence, and suitability of a person to be appointed as a judge of a High Court of the Supreme Court. There is no reason, therefore, why the opinion of the Chief Justice of India taken along with the opinion of other judges should not be accepted by the executive, which is certainly not better qualified to make an assessment in this regard. However, it is possible that the executive may be in possession of some information about some aspect of a particular person which may not be known to the Chief Justice of India, and as postulated in Sankalchand Himatlal Sheth and the Second Judges case the entire material should be made available to the Chief Justice of India leaving it to him/her to decide whether the person recommended for appointment meets the requirement for being appointed a judge or not, despite any antecedents, peculiarities, and angularities. If the Chief Justice of India and others with whom he/she has discussed the matter concludes—unanimously—that the person ought to be appointed as a judge of a High Court or the Supreme Court despite the antecedents, peculiarities, and angularities, there can be no earthly reason why that collective view should not be accepted. The Chief Justice of India is in a sense the captain of the ship as far as the judiciary is concerned and his/her opinion (obtained collectively and unanimously) should be accepted rather than the opinion of someone who is a passenger (though an important one) in the ship. Dr. Ambedkar was of the confirmed view that the judiciary should be independent and impartial and if the Chief Justice of India does not have the final say in the matter, then the judiciary is, in a sense, under some other authority and therefore not independent to that extent. This would be a rejection of the views of Dr. Ambedkar and a negation of the views of the Constituent Assembly.”
Given the above discussion, the Supreme Court collegium led by CJI Ramana has rightly reiterated its recommendations to press the appointments of the judges in High Courts. It’s a well-justified stand that will preserve judicial independence and dignity. The time has come when the collegium should not allow the government to delay or modify its recommendations. The collegium has appositely sent a strong message to the government that is constitutionally bound to implement its decisions.
Let me conclude this discussion with these thought-provoking words of former Chief Justice of India RM Lodha: “Judges are best equipped to adjudge the suitability of a person or candidate as the judges of the superior court because as judges we know all about their court craft, behaviour, skill, legal knowledge, and other aspects. So, there cannot be a better-equipped person than a judge who watches them.”
—The writer is Advocate, Supreme Court of India