Judging the judges

The government?s practice of appointing High Court Chief Justices on the basis of seniority, rather than competence, is the major cause for the public disillusion with the judiciary.

Despite the fact that judges of the Supreme Court work hard and most of them are very competent, there has been, of late, heightened concern about the country’s judicial system. Why is the judiciary not measuring up to the expectations of the people? The practice of appointing a High Court Chief Justice only on the basis of seniority, to me, seems an important cause for this state of affairs.

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For many decades after Independence, the Chief Justice of India used to, very carefully, select a person to be the Chief Justice in a High Court. The administration of justice at the subordinate level, as well as the High Court level, depends upon the Chief Justice. The Chief Justice has to have integrity, transparent work ethics and has to provide leadership in terms of hard work and competence. He also has to be a good administrator. He must closely supervise the subordinate courts and ruthlessly weed out persons of doubtful integrity and encourage the disposal of judicial work with utmost expedition by getting an appropriate system in place.

The practice of appointing a Chief Justice only on the basis of seniority has played havoc with the administration of justice. The old system of the Chief Justice of India hand-picking a clean, able and conscientious Chief Justice must be restored forthwith.

This practice has its origin in the supercession of three senior judges of the Supreme Court by the then government in 1973. The celebrated Keshvanand Bharati’s case was decided by a 13 judge bench in 1973. Six judges were of the view that there were no limitations on the power of Parliament to amend the Constitution under Article 368. Seven judges were of the view that if such amendment affected the Constitution, it would be beyond the powers of the Parliament.

The government at that time had the absolute powers of appointing judges, and was not bound by the advice of the Chief Justice. It exercised this power and superseded all the judges who were parties to the majority decision, and appointed Justice A.N. Ray as Chief Justice, who was the seniormost judge among the minority of six. This led to a furore in the country.

A principle thus emerged that as the government could be influenced by political considerations, it should not have the right to handpick a person as a Chief Justice of India and therefore this position must go by seniority. Although this had no application in the appointment of Chief Justices in High Courts, imperceptibly, this practice started being followed in the appointment of High Court Chief Justices also. Many persons have thus been appointed Chief Justices even when they were totally unfit for that position. This practice has ceased to have any good reason now.

The Constitution vests the power of appointment of judges with the President. This power is meant to be exercised after consulting the Chief Justice of India. It was accepted till 1993 that while the Chief Justice had to be consulted by the Government, his advice was not binding on it. It was only in 1993 that a 9 member judge bench of the Supreme Court held that the advice of a collegium of Supreme Court judges, headed by the Chief Justice, would be binding on the government.

The reason, which led to the practice of appointing a Chief Justice on the basis of seniority, was to prevent the government from appointing a Chief Justice on political considerations. This has now disappeared. While seniority should be taken into consideration, other more relevant factors must be given much more weightage to keep the administration of justice unsullied and efficient.

If the administration of justice has to be preserved and restored to its old glory, only those persons should be appointed as Chief Justices who are transparently clean and have a high level of legal competence. They should be known for not wasting judicial time and ensuring quick disposal of cases to provide necessary leadership in that regard. The responsibility of selecting such Chief Justices must be that of the collegium of Supreme Court Judges. If an unfit person gets appointed as Chief Justice in any High Court thereafter, the people of India will have to make the collegium of Supreme Court Judges responsible.

The members of the Bar are aware that there have been instances in which corrupt judges came to hold the office of Chief Justice in High Courts and where the appointment of an inefficient Chief Justice led to a steep fall in the standards of justice in a state.

It is a healthy sign of a mature democracy that the people are also scrutinising the work of the judiciary, as happened in the Jessica Lall murder case. I have no doubt that strong public opinion will emerge that the time has come to demand that only a clean and able judge invariably head the judiciary in a state.

The writer is a senior advocate and former Union Law Minister