Supreme Court and Judicial Accountability

Dr. Showkat Ahmad Wani

Assistant professor School of Law

Lovely Professional University &

Mr. Jay Kumar Bhongale Research Scholar Lovely Professional University & Assistant Professor in New Law College, Pune.

Introduction

If I will introduced this topic with quote of Attorney General of India, Mr. Soli Sorabjee, “Criminal Justice system in India is on the verge of collapse owing to inordinate delay in getting judicial verdict and many a potential litigant seem to take recourse to a parallel mafia dominated system of ‘justice’ that has sprung up in metros like Mumbai, Delhi etc.”, then it would appropriate preliminary remark relating to the present topic.

With this quote several questions arouse before us who makes question marks on administrative justice delivery system, adjudicatory bodies, on government and also on the statutes which clarify the power and procedure of these bodies, as well as the right to justice of the litigants. One of the most important question emerged in today that does Supreme Court of India shared the responsibility for arrival of these kind of situation in Indian legal system? Soli Sorabjee said that, “criminal justice is on the verge of collapse. Because Justice is not dispensed speedily, people have come to believe that there is no such thing as justice in courts”. This is the indispensible fact of Indian justice delivery system, being silent to create enhancement of judicial reform might have Supreme Court of India and Higher Courts cover their responsibility.

Appointment of judiciary and Judicial Accountability:

Appointment of judges to the Supreme Court of India and the High Court’s is provided for in Article 124(2) and Article 217(1) of the Constitution respectively.¹These constitutional provisions

¹ 124. Establishment and constitution of Supreme Court (1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.

Article 124 (2) :- Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 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 and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:

have been inserted after significant debate on basic issue of judicial independence that took place in constituent assembly on 24th and 27th of May, 1949. The constituent assembly after long debate approved the system which the president would appoint judges, after compulsorily consulting with the Chief Justice of India. This assignment of the constitutional role to the Chief Justice of India was given with intent to create a check on politically provoked selection in appointment.

In S.P. Gupta vs. Union of India², the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution. It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court. The process of making accountability and independence of judiciary start from this era but due to non positive approach of the Indian legal system we are here in this situation.

Consultation’ and the concept of independence of judiciary:

In any other country except India never having provision of ‘consultation’ with chief justice or any other member of the judiciary on the subject of appointment of Judges. Only the Constitution of India does so but it has very intent objectives to insert in it. Dr. Ambedkar, Alladi Krishnaswami Ayyar K.M. Munshi, Jawaharlal Nehru and Sardar Patel ware important persons in constituent assembly and all were worried to and concerned sincerely for the independence of judiciary. Because nature of Executive is to control the other organs of government but independence and protection of judiciary much more important for protection of normal people’s rights and therefore the condition 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 was inserted which is an extra mark of the concerned the founding fathers had with the independence of the judiciary.

Dr. Ambedkar opinion,³ in relating to ‘consultation’ with chief justice of SC is imperative in appointment of judges in higher judiciary. “Consultation” interpreted under Articles relating to

217(1) reads: ‘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 in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court…’

² (AIR 1982 SC 149)

³ Supra note 1, at 2. “With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of Judges is really to transfer the

appointing judges shall be real and complete consultation. Reason was that Superior judges being better situation to judge the capability and character of the probable contenders, so their opinion shall have more preference in the matter of appointment. And the same policy allowed in the matter of selection of subordinate judiciary because High Court appoint lower judiciary judges and consultation with senior most judges of High Court is compulsory.

Supreme Court in Chief Justice of A.P. v. L.V. Deekshitulu⁴, If anyone interpret Article 124 & 217 in the eyes of Independence of judiciary then it will have more significance to the language of these articles, it may deduced that Article 74 has no application to Articles 124 and 217 and President has to appoint judges with consultation with Superior judiciary. In this case Supreme Court held that Articles 124 and 217 must be read consistent with the concept independence of judiciary. Articles 124 and 217 must be read as exhaustive on the subject.

Shamsher Singh v. State of Punjab⁵, Supreme Court held: “In all conceivable cases, consultation with highest dignitary of Indian justice will and should be accepted by the Government of India and the court will have an opportunity to examine if any other extraneous circumstances have entered into the verdict of the Minister, if he departs from the counsel given by the Chief Justice of India. In practice, the last word in such sensitive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order.”

Present Appointment of judges in Superior Court:

authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous proposition.”

⁴ AIR 1979 SC 193.

The President of India had constituted an Administrative Tribunal for Andhra Pradesh to adjudicate upon the service disputes of employees of the State. The Tribunal was vested with exclusive jurisdiction with respect to appointment, promotion and all other service conditions of persons holding “posts in the Civil Services of the State” among others. The question was whether employees of High Court are not persons holding “posts in the Civil Services of the State”. The Court held that though in its ordinary connotation, the employees of the High Court and members of subordinate judiciary can be said to hold “posts in the Civil Services of the State”, the other provisions of the Constitution concerning judiciary and the underlying concept of judicial independence must lead us to construe those words narrowly so as to exclude the employees of the High Court, members of the subordinate judiciary and employees in various courts under the control of the High Court. The Constitution Bench speaking through Sarkaria J. referred to Articles 229 to 235 and to the provisions in Chapters V and VI of the Constitution and held that the expression “Civil Services of the State” in Article 371 – D should be construed and understood in the light of the said Articles and the underlying scheme of the said Chapters. In this connection, the Constitution Bench quoted an earlier judgment of the Court saying that “while interpreting words in a solemn document like the Constitution, one must look at them not in a school-masterly fashion, not with the cold eye of the lexicographer but with the realization that they occur in ‘a single, complex instrument in which one part may throw light on the other’ so that the Constitution must hold a balance between all its parts”. The court concluded by saying “In sum, the entire scheme of Chapters V and VI in Part VI epitomized in Articles 229 and 235 has been assiduously designed by the Founding fathers to ensure independence of the High Court and the subordinate judiciary”. (Para 42).

⁵ AIR 1974 SC 2192.

Present appointment of Supreme and High Court judges base on ‘Collegium System’ which evolved through ‘Three Judges Cases’ in Indian Judicial system. In the First Judges Case⁶ which is popularly known as S.P. Gupta vs. President of India and Ors. Supreme Court held that Supreme Court and High Court judges appointed by President and Chief Justice of India recommendation to the President can be refused for strong reasons. So in the first judge case gave the supremacy of executive over the judiciary in the appointment and transfer of the judges.

Under Article 222 of the Constitution the Chief Justice of India has to be consulted on the question whether a particular Judge should be transferred and where he should be transferred while implementing the said policy. If the Government requests the Chief Justice of India to give his opinion on a transfer to implement the said policy which is really in the public interest he cannot decline to do so. Even though the Chief Justice was opposed to the ‘wholesale transfers’ of Judges there is no bar for the Government treating the recommendation for transfers made by the Chief Justice of India as a part of the implementation of its policy.⁷

121st Report of Law Commission of India

The Law Commission of India recommended for constitution of National Judicial service Commission. The report of law commission recommends NJSC shall have eleven members, namely,

1. the chief justice of India and three senior most judges of Supreme Court,
2. three senior most chief justice
3. Minister of Law and Justice,
4. Attorney General of India
5. Immediate retiring office of the Chief Justice of India
6. An outstanding law academic

Law commission also recommends that Commission will also have its own procedure for suggesting persons for selection. Commission recommendation would bind on President but President may refer the recommendation back to Commission on the basis suitability of the candidate.

The Constitution (67th Amendment) Bill:

In 1990 the Constitution 67^th Amendment Bill was introduced for National Judicial Commission, but it has being lapsed since then. In Supreme Court Advocates-on Record Association v. Union of

⁶ (1981) Supp (1) SCC 87; AIR 1982 SC 149

⁷ Ibid

India⁸, also commonly known as Second Judges Case, Article 124(2) was broadly interpreted. In this case opinion and satisfaction of Chief Justice of India shall have primacy in all types of judicial appointments. It means that in the appointments of judicial posts consultation with CJI is compulsory. In Addition Supreme Court held that only CJI views is not required but also two of the senior most judges of the Supreme Court is essential. In this way Colleguim system of appointment started with second judge case. Still uncertainty regarding judicial appointments was not totally cleared. Justice A.M. Ahmadi took the dissenting opinion, Hon’ble Justice Verma wrote the majority opinion on behalf of four judges.

The uncertainty regarding judicial appointment was not cleared, the uncertainty arise the then president K.R. Naryanan to consign this affair for Presidential reference. In 1998, in Re Presidential Reference which is also known as the third judges case, in this case Supreme Court held that The Chief Justice of India shall make a approval to appoint a Judge of the Supreme Court and to transfer a Chief Justice or Judge of a High Court in consultation with the four senior- most Judges of the Supreme Court. At the time of Appointing High Court judges, the recommendation must be made in consultation with the two senior-most Judges of the Supreme Court. So in this way Colleguim system of appointment of judges start where consultation with four senior judges becomes compulsory. Apex court cleverly declared the supremacy of executive but kept the control under hand in appointing the judges.

But this system also was not complete, it has also many loopholes, so the colloquium system was criticised on the ground of lack of judicial accountability, lacking transparency, being biased and corruptions. New scamp of the judiciary were being disclosed by the media, people of India roared the voice of judicial accountability and justice. For that purpose appointment of judge’s issue again came on the top for the government. Example like Chief Justice of Gujarat High Court, Justice Bhaskar Bhattacharya, and allegation was framed that Justice Bhattacharya was not selected to Supreme Court because he was opposed to the selection of then Chief Justice Atmas Kabir sister to become Calcutta High Court Judge.

EVOLUTION OF NATIONAL JUDICIAL APPOINTMENT COMMISSION

THE CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014 was passed by the Lok

Sabha on 13th August, 2014 and the Rajya Sabha on 14th August, 2014. President gave the assent to the Act on 31st December 2014 and it came into force from 13^th April, 2015.

The Constitution Ninety Ninth Amendment Act provides for the composition and the functions of the NJAC. The members of NJAC will be consisting of according to Article 124A⁹. Through this

⁸ (1993)4 SCC441

⁹ 124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:––

Act the Constitution of India was amended and Article 124A, 124B, 124C was added to Article 124.

The NATIONAL JUDICIAL APPOINTMENT COMMISSION Act also passed on 31

December 2014. The preamble¹⁰ of the Act define its purpose which having relating to appointment and transfer of the judges.

Section 5 of National Judicial Appointment Commission Act; specify the procedure to selection of the Supreme Court judges whereas sections 6 will specify procedure to select High Court judges. The selection will do by commission on the basis of seniority and on merit and ability wise. Section 11of the Act specify the rule making power of the Commission. So that’s why this Act being criticised and challenged on the aspect that it violating the basic structure Doctrine which was evolved by the Supreme Court in Kesavananda Bharti case and also intervention of executive and political parties in the appointment of judges which is being seemed against independence of Judiciary.

Serious criticism rose among the judiciary that Law Minister may interfere in to the functioning of NJAC and he can send the detail of the vacancies in the higher judiciary. This is against the Theory of separation of power and if Law minister exercised both power like Executive and Judicial, then there will be chances of misusing the power because absolute power corrupts absolutely. Article 124A (1) (d) also criticised on the basis that introduction of reservation in NJAC which will result that particular member of the Commission will try to cherish the cause of the community and class where he belongs. Up till now the judiciary was immune from any type of government reservation but through NJAC will introduce reservation in the judiciary.

• the Chief Justice of India, Chairperson, ex officio;
• two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;
• the Union Minister in charge of Law and Justice––Member, ex officio;
• two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members: Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women: Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for re-nomination.

¹⁰ An Act to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.

Section 13¹¹ of National Judicial Appointment Commission Act also objected on the basis that Article 145 and 229 of the Constitution of India empowered the rule making power to judiciary. It means that Sub-ordinate legislation drafted by judicial bodies shall lie before the parliament which is against the Constitution. Sub-ordinate legislations framed by judiciary under the Indian constitution are class wise different, and are not subject to similar treatment.

“It is difficult to hold that the wisdom of appointment of judges can be shared with the political- executive. In India, the organic development of civil society has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,”¹² Supreme Court rejected the NJAC Act and 99^th amendment to the Constitution also declared unconstitutional and void and colleguim system would be operative relating appointment of the higher judiciary.

Learned Senior Counsel appearing before the Constitution bench under this case made contention that impugned act infringe the basic structure of the Constitution as the same demoralizes the independence of judiciary as the very act itself challenge the role of the Hon’ble Chief Justice in selection of the judges to the Higher Judiciary and therefore, the act must be declared as ultra vires.

National Judicial Commission to be with the concept of independence of judiciary:

Since the independence of judiciary constitutes a basic feature it cannot be taken away or curtailed in any manner by an amendment to the Constitution, it can neither be done directly nor can it be done indirectly. In other words, the independence of the judiciary cannot be affected or curtailed by so changing the method of appointment of judges of the Supreme Court and High Court as to impinge upon their independence.

For example, if Article 124 and 217 are amended to take away the consultation with the Chief Justice of India, it would vitally affect the independence of the judiciary. In such a case the appointment would in fact be made by the executive acting alone in the case of Supreme Court and in the case of the High Court the element of executive would predominate and the concept of primacy of Chief Justice of India would disappear. The convention that the proposal should

¹¹ Section 13. Rules and regulations to be laid before Parliament :

Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

¹² Supreme Court Advocates-on-Record -Association and another V. Union of India, MANU/SC/1183/2015, Justice

J.S. Khehar, the presiding judge on the five-judge Constitution Bench, explained in his individual judgment.

emanate from the Chief Justice of India (in the case of Supreme Court) would also come to naught. Similarly, if tomorrow a National Judicial Commission is created and it is so constituted that the executive dominates it, it would equally be volatile of the basic structure of independence of the judiciary of our Constitution. It is equally essential that the Commission be presided over by the Chief Justice of Indian and by none else. The composition of the Commission should not also be such that the predominance of judiciary is diluted. Any such measure would be violative of the principle of independence of judiciary which has been accepted and affirmed as a basic feature of the Constitution. Rightly, therefore, the Constitution 67th Amendment Bill provided for a National Judicial Commission, which in the case of appointment to the Supreme Court, consisted exclusively of the Judges (Chief Justice of India and two senior most judges of the Supreme Court) and in the case of appointment to the High Court, the Chief Justice of India, the next senior most judge of the Supreme Court, Chief Justice of the High Court and the Chief Minister of the concerned State. It must also be remembered that the inclusion of the Chief Minister in the National Judicial Commission in so far as the appointment to the High Court was criticized by the Arrears Committee constituted by the Government of India on the recommendation of the Chief Justices’ Conference. By introducing a proviso and an Explanation in Article 124(2), pointed out hereinabove, the role of the executive in the matter of appointment was substantially diluted. Not only was the President precluded from appointing any person not recommended by NJC, the President (Council of Ministers) has to record reasons in writing for not accepting a recommendation made by the NJC.

Why imposition on Judicial Discipline

The judges shall be disciplined for the three reasons. The first is for democratic public accountability- so that the governed may safely relinquish control to those who hold authority.¹³ The second is to ‘enforce adherence to law itself- so that neutral principle rather than his own personal preferences motivate in his decision in each and every case. The third is to ensure that judges will follow to professional standards of behaviour and conduct so that they will not lose their respect of those who are subjected to it while exercising their authority.

While justifying first reason, in democracy, citizen must exercise their control over their government. Without this control, the exchange of power from citizens to government cannot be legitimate. It does strictly apply to political leaders so it applies to judges as well. Adherence to legal norms is important because a judicial decision shall be reliable and accurate.

CONCLUSION

¹³ Sankar, S. N. (2000). Disciplining the Professional Judge. California Law Review , 88:1233, 1233-1278.

Instead of invalidity of NJAC Act declared by the Supreme Court, one thing is clear that there has been a detrimental tradition followed under the Collegium system of appointment. Some judges were not appointed only because they had issues with Hon’ble chief justice of India. The collegium system was noted for its very essential characteristic that there was no role of executive or there was no political interference in the composition of the Collegium as no one from the ruling party or the opposition was associated in any manner in the appointment of judges.

When there is any move of political interference in the Judiciary and judicial appointments, the sufferer is none but the common litigants who seeks justice till the Hon’ble Apex Court. It is perceived that the Hon’ble Apex Court will pronounce the judgment keeping the essence of basic structure of the Constitution into consideration as well as taking into accounts the flaws which the Collegium had in its functioning.

As things stand, the judiciary has used its power only to insulate itself both from criticisms and accountability. It has failed to evolve any internal system of intellectual growth of its Honourable members. Although some of the finest brains can be found in the legal fraternity, there is no systematic mechanism to either attract high quality talent to the legal profession or to nurture the legal profession in India. Its distance from the academia only compounds the problem further. Repeatedly voices have been raised from variousquarters of society that the appointment of judges should be vested with an independent authority that has representation not only from judiciary but also from other segments of the society.