The Suggestion by States Reorganisation Commission
The earliest point of time when this view was expressed by a high powered body was in the year 1955, when the States Reorganisation Commission in its report recommended that “at least one-third of the number of Judges in the High Court of a State should consist of persons who are recruited from outside that State “and this recommendation was guided by the consideration that” the principal organs of State should be so constituted as to inspire confidence and to help in arresting parochial trends” .
14th Report of Law Commission
Then the Law Commission in its Fourteenth Report presented in 1958 expressed the same view:
“The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one unit for various purposes would, we hope, lead to the States forming part of each zone to be the recruiting ground for appointments to the High Court from the members of the Bar in these State. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one-third of the High Court Judges would be persons drawn from outside the State will be fulfilled.”
Chief Justices’ Conference, March 1965
There was also a discussion on this proposal, namely, whether one-third of the number of Judges in each High Court should be from outside the State, at the Chief Justices’ Conference held in March 1965 and out of 15 Chief Justices of High Courts who attended the Conference, 8 were against the proposal, 6 were in favour and the remaining Chief Justice also supported the proposal, but with this qualification that the one-third number of Judges should be worked out by initial appointment.
Chief Justice K. Subba Rao also in his letter dated October 6, 1966, expressed the view that it would be better to bring Judges from outside at the time of initial appointment.
Report of the Study Team of the Administrative Reforms commission
Then came the Report of the Study Team of the Administrative Reforms commission submitted in 1967 and this Report also examined the question of appointment of Judges in High Courts and came to the view that the recommendation of the States Reorganisation Commission should be implemented so that as for as possible one-third of the number of Judges in a High Court are from outside.
The Study Team observed that a serious effort to implement this recommendation “will make its own contribution to efficiency, independence and national integration.”
Law Commission, 1978
The same question once again came up for consideration before the Law Commission in the year 1978 and the Law Commission sent out a questionnaire to various individuals and associations for the purpose of eliciting their views inter alia in regard to the suggestion that there should be a convention according to which one-third of the Judges in each High Court should be from another State.
Mr. S. V. Gupte, who was then Attorney-General of India and who is known for bold and courageous expression of his views, stated in answer to the questionnaire that he was wholly in favour of having one-third the number of Judges in each High Court from outside the State “as that alone may perhaps secure some kind of freedom from bias on grounds of caste and class consideration or any close association with local people.”
The Bar Council of India also in its reply to the questionnaire supported the proposal of one-third Judges in a High Court being from outside the State. It is interesting to note – and this completely establishes the bona fides of the Law Ministers in issuing the circular letter – that even as far back as February 26, 1979, when the political party to which the Law Minister belongs was not in power, the Law Minister stated clearly and unequivocally that he agreed with the view expressed by the Law Commission that one-third of the Judges in each High Court must be from outside the State, because this would achieve better national integration in the field of judiciary.
Whilst expressing this view, it is significant to note that the Law Minister made it clear that he would not support transfer of a High Court Judge “if it is based on extraneous considerations”.
Eightieth Report of the Law Commission
Then followed the Eightieth Report of the Law Commission presided over by Mr. Justice H. R. Khanna. This Report was submitted to the Government of India in August 1979 and in this Report, the Law Commission expressed its agreement with the recommendation made by the earlier Law Commission in its Fourteenth Report, namely, that “there should be a convention according to which one-third of the Judges in each High Court should be from another State” and added that this should normally be done through the process of initial appointments and not by transfers.
The Law Commission gave the following reasons for taking this view:
“Evolving such a convention would, in our opinion, not only help in the process of national integration but would also improve the functioning of various High Courts. It would secure on the Bench of each High Court the presence of a number of judges who would not be swayed by local considerations or affected by issues which may rouse local passing and emotions.
As observed by us in one of our earlier reports, one of the essential things for the due administration of justice is not only the capacity of the judges to bring a dispassionate approach to cases handled by them, but also to inspire a feeling in all concerned that dispassionate approach would underlie their decision, quite, often, cases which arouse strong emotional sentiments and regional feelings come up before courts of law.
To handle such cases, we need judges who not only remain unaffected by local sentiments and regional feelings, but also appear to be so. None would be better suited for this purpose than judges hailing from other States. It is a common feeling amongst old lawyers that apart from cases with political overtones, the English judges showed a sense of great fairness and brought a dispassionate approach in the disposal of judicial cases handled by them.
We in India are in the fortunate position of having a vast country. There can, therefore, be no difficulty in having a certain percentage of judges who hail from other States. The advantages gained by having persons from other States as judges would be much greater compared with any disadvantage which might result therefrom.”
Consultative Committee of Parliament for the Law Ministry
This question was also discussed at the Meetings of the Consultative Committee of Parliament for the Law Ministry held on June 7, 1980, July 24, 1980 and December 17, 1980 and unanimous view taken by the members of the Consultative Committee belonging to different political parties was that at least one-third of the Judges in a High Court should be from outside the State.
The Chief Justice of India also in a communication addressed to the Law Minister in March, 1978, expressed his view favouring outside appointments to High Courts and in a letter addressed by him to the Law Minister on March 18, 1981, he opined that “it is high time that at least a few of the new appointments to every High Court were made from outside the State”. He also observed in a communication addressed in April 1981 that” he had publicly proclaimed his opinion more than once that at least one- third of the new appointments should be from amongst persons from outside the particular States”.
National Seminar on Judicial Appointments and Transfers
The National Seminar on Judicial Appointments and Transfers convened by the Bar Council of India in Ahmedabad from October 17 to 19, 1980 also yielded the same consensus view, namely:
“The ideal of having one-third of High Court Judges from outside the State helps promotion of national integration and the preservation of a unified judicial system. However, it is desirable that this composition of the High Court should be accomplished by way of initial appointments rather than by transfers. Furthermore, in implementation of this formula care must be taken to preserve the legitimate representation of States and to maintain the sanctioned strength of teach State.”
It will thus be seen that, barring perhaps the Associations of Bombay Law- years, all high-powered bodies, forums and associations, which have anything to do with judicial system, have consistently over the years taken the view that one-third of the number of Judges in each High Court should be from outside the State. The unanimity of view has been so complete and over-whelming that it is impossible to contend that the policy of having one-third of the Judges in every High Court from outside the State, which the Law Minister is trying to implement by issuing the circular letter, is ill-conceived or mala fide or subversive of the independence of the judiciary.
So long as the policy is evolved by the Government after consultation with the Chief Justice of India and it is not otherwise unconstitutional, the Court cannot pronounce upon the wisdom of the policy or strike it down because it does not appeal to the court. Here the policy of having one-third of the number of Judges in each High Court from outside the State has been adopted after consultation with the Chief Justice of India and, in fact, it has his complete approval and the Law Minister did not therefore act unconstitutionally or illegally in relying upon this policy in the first paragraph of the circular letter.
Reference
An excerpt from SP Gupta & Others v. Union of India & Anothers (1981)