The article is an excerpt from the Judgment.
By convention and practice, the initiation of proposal for judgeship is to be made only by the CJI whose opinion in this matter, is entitled to primacy or the Chief Justice of the High Court concerned non-else and that the procedure in vogue alone is a healthy practice.
Therefore, at the forefront we may emphatically say that the Central or State Government shall not have any right of directly initiating the name of any candidate for judgeship bypassing the CJI or Chief Justice of the State and that if such a right of initiation by the Government is recognised and accepted regarding the judicial appointments then it will not be violative of the well accepted long standing practice but also destructive of the independence of the judiciary.
It will be pertinent, in this connection, to take note of the fact that recruitment to the judiciary at the level below the District Judges is either through a State Public Service Commission which is an independent body or through an entrance test organised by the High Court. The recruitment at the level of District Judges is made by the Governor in exercise of his powers under Article 233 of the Constitution which power of appointment is conditioned by the obligation to consult the High Court.
In practice, the High Court selects the candidates by an interview and sends a panel to the Government from which the required strength of the candidates is selected and appointed by the Governor but after the appointment, the entire “control over the district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of State and holding any post inferior to the post of district judge” is vested in the High Court.
Executive may also propose the names for judgeship
On cogitation of this problem, we are of the view that there will be not unconstitutionality or illegality in making proposals and that such proposals will not be violative of the existing practice or opposed to the public policy. Indeed the Central Government which is accountable to the people should have the right of suggesting the names of the suitable candidates with sterling character for consideration to the CJI for Judgeship of the Supreme Court and to the Chief Justice of a State to that High Court.
Similarly, the State Government which is also equally accountable to the people should have the right to suggest the names of candidates for consideration to the Chief Justice of its State. The above view is based on the following reasons:
(1) In the context of the plurastic society of India where there are several distinct and differing interests of the people with multiplicity of religion, race, caste and community and with the plurality of culture brought together and harmonised by the Constitution makers by assuring each section, class and society ‘equality of status and of opportunity, it is inevitable that all people should be given equal opportunity in all walks of life and brought into the mainstream so that there may be participation of all sections of people in every sphere including the judiciary.
(2) The Government which is accountable to the people has its constitutional obligation to treat all alike and afford them equal opportunity in all spheres including the superior judiciary.
(3) It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society not by any selective or insular group.
(4) In the normal or accepted way of making such suggestion regarding the names of the candidates by the Chief Justice even after consulting his senior colleagues, he may not have sufficient opportunity to evaluate the merit and suitability of the most deserving and worthy legal practitioners other than those who have appeared before him or whose names alone have brought to his notice by his consultees.
It is especially so in cases where some of the suitable and fit persons are specialising in some other branches of law and who may not have any chance of appearing before the Chief Justice or his consultees. But the Government may be in a position to come to know about those candidates from other source or through its powerful machinery.
(5) There may be most meritorious and suitable candidates practicing in forums other than the High Courts. Therefore, it may not be possible for the Chief Justice of a State to know the legal ability and suitability of those candidates either personally or even form his consultees. In such cases, the Government may be in a position to know the candidates and bring the names of such persons to the notice of the Chief Justice.
In the present day, when Chief Justices are being transferred from one state to another, they may not be in a position atleast for some period, to know personally about the candidates unless he is well informed from other sources.
(6) It cannot be gainsaid that there is a general grievance that suitable candidates for judgeship who are at the grassroots level of society are inexcusably neglected from being considered for judicial office for one reason or another. Therefore, the Government will be justified in proposing the names of those candidates to the Chief Justice concerned from the neglected section or class along with others whom the Government thinks fit and suitable to be considered for appointment of Judges.
It may be worthy to note that even in well advanced countries like U.S.A. or United Kingdom, in practice, regional, social and racial representations are kept in view in making appointments of judges to superior judiciary, without of course sacrificing merit.
I would like to emphatically declare that the above view of mine should not be construed as a plea for reservation or quota system, of any kind, but it is expressed only with the sole object of attracting the best in judicial talent from all sections of society on equal footing and bringing them within the zone of consideration by the concerned Chief Justice.
Issue of Favouritism
I am emboldened to express this view because with the years or experience for nearly two decades at the Bar and two decades on the Bench and with knowledge and experience I have gained so far about the manner and method of selection of Judges I had opportunity to notice that on few 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 that some of the recommendations have been tainted with nepotism and favouritism.
No doubt, there is an abundance of sermons, preaching and teachings that the selection and initiation of candidates for judgeship should be free extraneous consideration, nepotism and favouritism – yet can it be said that in reality, such high flown sermons are implicitly followed by all including some of the preachers? Can it be said that anyone is exempted from following such sermons and preaching or anyone enjoys any immunity therefrom, regrettably, it is a fact of life that some have followed such homilies more in the breach than in their observance. Even today, there are complaints that generations of men from the same family or caste, community or religion, are being sponsored and initiated and appointed as judges, thereby creating a new “theory of judicial relationship.”
In this connection, it is worthy to note the view of Sardar Vallabhbhai Patel in his letter of the 8th December 1947 addressed to the Governor General of India regarding a memorandum issued on the procedure for filling vacancies in His Courts. It reads thus:
Purity of motives is not the monopoly of a Chief Justice nor nepotism and jobbery the vices of politicians, only.
As rightly pointed out by Dr. B.R. Ambedkar, “the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have….”
The Eightieth Report of the Law Commission on this aspect of matter has stated thus:
Criticism has occasionally been levelled that the selection has not been proper and has been induced by ulterior considerations.
Having stated so, it has lamented that a person appointed not on merit but because of favouritism or other ulterior considerations can hardly command real and spontaneous respect from the bar.
In Gupta’s case, Bhagwati, j has stated,
“We are all human beings with our own likes and dislikes, our own predilections and prejudices and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and moreover sometimes, the information on which we base our judgments may be incorrect or inadequate and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations… it is unwise to entrust power in any significant or sensitive area to a single individual, howsoever high or important may be the office which he is occupying.”
I venture to express that the right of entry into superior judicial office is not the exclusive prerogative of any particular coterie or privileged class or group of people. To say differently, it is neither inheritable nor a matter patronage.
However, unpalatable the above scenario may be to some, it is nevertheless a ground reality. Our democratic polity is not only for any self-perpetuating oligarchy but is for all people of our country.
If the vulnerable section of the people are completely neglected, we cannot claim to have achieved real participatory democracy.
Therefore, 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.
Reference
Justice R. Ratnavel Pandian in Supreme Court Advocate on Record Association v. Union of India (1993)