April 30, 2012
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4.1 Procedure for appointment of Judges of High Courts:
5.1 ‘Consultation’ and the concept of independence of judiciary: None of the Constitutionsb of the Commonwealth countries, nor the Constitution of U.S.A. (not even the Swiss and Japanese Constitutions), provides for “consultation” with the head of the judiciary or any other member of the judiciary in the matter of appointment of Judges. Only our Constitution does – and it could not have been without a purpose. Many of the leading members of the Constituent Assembly were lawyers of great repute. They knew the conditions in India – not only in the world of law but also public life. They held eminent positions in public life. Apart from Dr. Ambedkar, Alladi Krishnaswami Ayyar and K.M. Munshi, the great political leaders like Jawaharlal Nehru and Sardar Patel were also lawyers. The question arises why did they depart from other countries and provided this innovative procedure, when even the Government of India Act, 1935 [S.220 (2) concerning the appointment of Judges of High Courts] did not provide for such consultation? There can be no explanation for this innovation except that they were anxious to and concerned seriously with the concept of independence of judiciary. This provision is attributable to their conviction that at our stage of development and having regard to the propensities of the Executive (to control every organ of State and every institution of governance) they cannot be vested with the sole power of appointment to judiciary, a co-equal wing of government. True it is that the draft prepared by Sir B.N. Rao sought to import the U.S. model – as explained later in this paper – but there was practically no support for this model. The requirement of consultation with not only the Chief Justice of India but with certain other Judges at the Supreme Court and High Court level in Article 124 is an added indication of the concern the founding fathers had with the independence of the judiciary. They had before them the U.K., Australian, Canadian, Irish and other Constitutions which did not provide for any such consultation with the head of Judiciary either at federal or provincial level – much less with other judges, but yet chose this particular formulation. Evidently, they did not trust the Executive in India to make proper appointments and hence ‘entrenched’ the requirement of ‘consultation’ in the Constitution itself expressly. It is, therefore, perfectly consistent with the Constitution, for the Supreme Court to say, in its 1993 and 1998 decisions referred to hereinbefore, that the Chief Justice of India occupies a pre-eminent position and that the “consultation” contemplated by the said Articles should be a real and full consultation and further that since the Judges would be in a better position to judge the competence and character of the prospective candidates, their opinion should prevail in the matter of appointment. Indeed, as pointed out hereinafter, this is also the policy adopted by the Constitution with respect to the appointment of members of the subordinate judiciary. They are selected by the High Court; only the formal orders of appointment are issued by the Governor/ Government.
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How are High Court judges appointed? If it looks too complex, pls read the first post for simplified explanation.
4. Appointment of Judges to High Courts
4.1 Procedure for appointment of Judges of High Courts:
The procedure for appointment of Judges of the High Courts is slightly different from the one concerning the appointment of Judges of the Supreme Court. Clause (1) of Article 217 says that “every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office, in the case of an additional or acting judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years”. A reading of this clause shows that while the appointment is made by the President, it has to be made after consultation with three authorities, namely, the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. (Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice is not required). Just as the President is the constitutional head, so are the Governors. However, according to the practice, which had developed over the last several decades and which was in vogue till the aforementioned 1981 decision of the Supreme Court (S.P.Gupta), the Chief Justice of the High Court used to make the recommendation which was considered by the Governor of the State (Council of Ministers headed by the Chief Minister) who offered his comments for or against the recommendation. The matter then went to the Central Government. At that stage, the opinion of the Chief Justice was sought and based upon such advice, the appointment was either made or declined, as the case may be. It may be noted that even clause (1) of Article 217 uses the expression ‘consultation’ and not ‘concurrence’. The decision of the Supreme Court in S.P. Gupta on the meaning of ‘consultation’ applied equally to this Article. After the decision in S.P. Gupta, the executive made quite a few appointments to the High Courts which gave rise to a good amount of dissatisfaction among the relevant sections including the Bar leading to the nine-Judge Constitution Bench decision of the Supreme Court in 1993 aforementioned. The decision laid down that the recommendation for appointment to the High Court shall be made by the Chief Justice of the concerned High Court in consultation with his two senior-most colleagues. The opinion of the Chief Justice of India was given primacy in the matter and was to prevail over that of the Governor of the State or even that of the High Court, if inconsistent with his view. The President was of course to make the formal appointment just as in the case of a Judge of the Supreme Court. This position was affirmed in the Third Judges case (1998 (7) SCC 139).
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5. The significance of “consultation” provided by Articles 124 and 217
5.1 ‘Consultation’ and the concept of independence of judiciary: None of the Constitutionsb of the Commonwealth countries, nor the Constitution of U.S.A. (not even the Swiss and Japanese Constitutions), provides for “consultation” with the head of the judiciary or any other member of the judiciary in the matter of appointment of Judges. Only our Constitution does – and it could not have been without a purpose. Many of the leading members of the Constituent Assembly were lawyers of great repute. They knew the conditions in India – not only in the world of law but also public life. They held eminent positions in public life. Apart from Dr. Ambedkar, Alladi Krishnaswami Ayyar and K.M. Munshi, the great political leaders like Jawaharlal Nehru and Sardar Patel were also lawyers. The question arises why did they depart from other countries and provided this innovative procedure, when even the Government of India Act, 1935 [S.220 (2) concerning the appointment of Judges of High Courts] did not provide for such consultation? There can be no explanation for this innovation except that they were anxious to and concerned seriously with the concept of independence of judiciary. This provision is attributable to their conviction that at our stage of development and having regard to the propensities of the Executive (to control every organ of State and every institution of governance) they cannot be vested with the sole power of appointment to judiciary, a co-equal wing of government. True it is that the draft prepared by Sir B.N. Rao sought to import the U.S. model – as explained later in this paper – but there was practically no support for this model. The requirement of consultation with not only the Chief Justice of India but with certain other Judges at the Supreme Court and High Court level in Article 124 is an added indication of the concern the founding fathers had with the independence of the judiciary. They had before them the U.K., Australian, Canadian, Irish and other Constitutions which did not provide for any such consultation with the head of Judiciary either at federal or provincial level – much less with other judges, but yet chose this particular formulation. Evidently, they did not trust the Executive in India to make proper appointments and hence ‘entrenched’ the requirement of ‘consultation’ in the Constitution itself expressly. It is, therefore, perfectly consistent with the Constitution, for the Supreme Court to say, in its 1993 and 1998 decisions referred to hereinbefore, that the Chief Justice of India occupies a pre-eminent position and that the “consultation” contemplated by the said Articles should be a real and full consultation and further that since the Judges would be in a better position to judge the competence and character of the prospective candidates, their opinion should prevail in the matter of appointment. Indeed, as pointed out hereinafter, this is also the policy adopted by the Constitution with respect to the appointment of members of the subordinate judiciary. They are selected by the High Court; only the formal orders of appointment are issued by the Governor/ Government.
5.2 There is indeed another way of looking at the problem: The Constitution confers upon the President several powers – as distinguished from the executive power of the Union which is carried on in the name of the President. Article 74 says that “in exercise of his functions” (the President) shall “act in accordance with such advice” i.e. advice tendered to him by the Council of Ministers with the Prime Minister at its head. Even after its amendment by the Constitution (Forty-second Amendment) Act, 1976, the said requirement (to “act in accordance with” the advice) is not all pervading. There are certain areas where the President can act without, or even contrary to, such advice. For example, when the President has to choose a Prime Minister after a general election (or whenever such an occasion arises), the President has to act in his own discretion; the advice of the Union Council of Ministers with the Prime Minister at its head has, and can have, no application to such a situation; indeed he cannot act in this matter on the advice of the outgoing Council of Ministers. Similarly, where a Prime Minister suffers a no-confidence motion and thereupon advises the President to dissolve the House, the President is not bound by such advice. If the President finds that a viable alternative government can be formed, he is entitled to reject the advice of the Prime Minister, refuse to dissolve the House and swear in the alternative Prime Minister/Council of Ministers. It is thus clear that the requirement of acting on the advice of the Council of Ministers with the Prime Minister at its head cannot be said to admit no exceptions. It is the general rule but there can be exceptions. Articles 124 and 217, it is submitted, constitute yet another exception to the ‘requirement’ in Article 74 both because of the express language employed therein and also because of the concept of judicial independence which must necessarily be implied therein. It is well established that the over-arching concept of judicial independence calls for an interpretation of the Constitution consistent with the said concept. See the decision of the Supreme Court in Chief Justice of A.P. Vs. L.V.Deekshitulu (A.I.R 1979 SC 193)Y. Let us take Article 124 first. It says that “every judge of the Supreme Court shall be appointed by the President….after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose……”. The Chief Justice of India has necessarily to be consulted in case of appointment of a judge. (Article 217 is similar, with the difference that the consultation is with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court. If it is a case of appointment of the Chief Justice of the High Court, the consultation with the Chief Justice of the High Court is not necessary). If one reads Article 124/217 in the light of the principle of independence of judiciary (which is a basic feature of the Constitution and the concern with which is more than evident from the several provisions of the Constitution), giving full effect to the language used therein, it would follow that Article 74 has no application to Articles 124 and 217 and that under these articles, the President has to act in consultation with the authorities named in those articles alone. If the independence of judiciary (which means independence from the executive as well) is a basic feature of the Constitution, as held in several decisions of the Supreme Court including SCAORA, it follows by necessary implication that Articles 124 and 217 must be read consistent with the said concept i.e. so as to exclude executive influence therefrom. Articles 124 and 217 must be read as exhaustive on the subject. In other words, in the matter of appointment of judges of the Supreme Court and High Courts, the President has to act in consultation with only the authorities named in the said articles. The context excludes application of Article 74. It may also be a case of special (Articles 124 and 217) excluding the general (Article 74). L.V.Deekshitulu’s case is an authority for the proposition that literal interpretation has to be discarded if such interpretation has the effect of eroding the concept of judicial independence. The ill-effects of political domination in the appointment of judges has been amply and poignantly illustrated by the recent decisions of the U.S. Supreme Court and the Florida Supreme Court in the disputes relating to counting of votes and other alleged irregularities in the conduct of elections to the office of the President of U.S.A (2000-2001). Let us avoid political influence altogether in the matter of appointment of judges of Supreme Court and High Courts.
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Too complicated? Well, there is a simple explanation on how high court judge are appointed by learned advocate Abhishek Manu Singhavi on YouTube.
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