This article is an extract from SP Gupta Judgment. Law on this issue has been changed after this judgment.
Entrustment of Power to Chief Justice of India and Chief Justice of High Court
The power of appointment of Judges is not entrusted to the Chief Justice of India or to the Chief Justice of a High Court because they do not have any accountability to the people and even if any wrong or improper appointment is made, they are not liable to account to anyone for such appointment.
The appointment of a Judge of a High Court or the Supreme Court does not depend merely upon the professional or functional suitability of the person concerned in terms of experience or knowledge of law though this requirement is certainly important and vital and ignoring it might result in impairment of the efficiency of administration of justice, but also in several other considerations such as honesty, integrity and general pattern of behaviour which would ensure dispassionate and objective adjudication with an open mind, free and fearless approach to matters in issue, social acceptability of the person concerned to the high judicial office in terms of current norms and ethos of the society, commitment to democracy and the rule of law, faith in the constitutional objectives indicating his approach towards the Preamble and the Directive Principles of State Policy, sympathy or absence thereof with the constitutional goals and the needs of an activist judicial system.
These various considerations, apart from professional and functional suitability, have to be taken into account while appointing a Judge of a High Court or the Supreme Court and it is presumably on this account that the power of appointment is entrusted to the Executive.
But, as pointed out above, there is a fetter placed upon the power of appointment by the requirement of consultation with the Chief Justice of the High Court, the Governor of the State and the Chief Justice of India in case of appointment of a High Court Judge and with the Chief Justice of India in case of appointment of a Supreme Court Judge.
Consultation with Other Judges
However, at this stage, it is necessary to point out that so far as appointment of a Supreme Court Judge is concerned, it is not consultation with the Chief Justice of India alone that is provided in clause (2) of Article 124. Undoubtedly, consultation with the Chief Justice of India is a mandatory requirement but in addition “such of the Judges of the Supreme Court and of the High Courts” as the Central Government may deem necessary are also required to be consulted.
One argument advanced on behalf of the petitioners was that when clause (2) of the Article 124 uses the expression “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”, it does not impose a mandatory obligation on the Central Government to consult one or more of the Judges of the Supreme Court of the High Courts but it leaves it to the discretion of the Central Government whether or not to consult one or more of the Judges of the Supreme Court or the High Courts before making appointment of a Judge of the Supreme Court.
The petitioners contended that the Central Government may, if it thinks fit, consult one or more of the Judges of the Supreme Court and of the High Courts or it may not consult any and where it does not, the Chief Justice of India will be the only constitutional functionary required to be consulted and in such a case the Central Government must accept the opinion of the Chief Justice of India as binding upon it. We do not think this argument is well founded.
In the first place it is not justified by the plaint language of clause (2) of Article 124. This clause clearly provides for consultation as a mandatory exercise and the only matter which is left to the desecration of the Central Government is the choice of the Judge of the Supreme Court and the High Courts who may be consulted. The words “as the President may deem necessary” qualify only the preceding works “such of the Judges of the Supreme Court and of the High Courts in the States.” Which of the Judges of the Supreme Court and of the High Courts should be consulted is left to the discretion of the Central Government but consultation there must be with one or more of the Judges of the Supreme Court and of the High Courts.
The Central Government must consult at least one Judge out of the Judges of the Supreme Court and of the High Courts before exercising the power of appointment conferred by clause (2) of Article 124. This requirement is prescribed obviously because the Constitution -markers did not think it desirable that one person alone, howsoever high and eminent he may be, should have a predominant voice in the appointment of a Judge of the Supreme Court.
But it seems that this requirement is not complied with in making appointments on the Supreme Court Bench presumably under a misconception that it is not a mandatory but only an optional provision. The result is that the Chief Justice of India alone is consulted in the matter of appointment of a Supreme Court Judge and largely as a result of a healthy practice followed through the years, the recommendation of the Chief Justice of India is ordinarily accepted by the Central Government, the consequence being that in a highly important matter like the appointment of a Supreme Court Judge, it is the decision of the Chief Justice of India which is ordinarily, for all practical purposes final.
But, as it happens, there are no criteria laid down or evolved to guide the Chief Justice in this respect nor is there any consultation with wider interests. This is, to our mind, not a very satisfactory mode of appointment, because wisdom and experience demand that no power should be vested in a single individual howsoever high and great he may be and howsoever honest and well-meaning.
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 may also be noticed that it is not difficult to find reasons to justify what our bias or predilection or inclination implies us to do. It is for this reason that we think 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. There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual.
That is perhaps the reason why the Constitution-makers introduced the requirement in clause (2) of Article 124 that one or more Judges out of the Judges of the Supreme Court and of the High Courts should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to the Central Government to select any one or more of the Judges of the Supreme Court and of the High Courts for the purpose of consultation.
Suggestion of Collegium
We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad based and there should be consultation with wider interests.
If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential – it would go a long way towards securing the right kind of Judges, who would be truly independent in the sense we have indicated above and who would invest the judicial process with significance and meaning for the deprived and exploited section of humanity.
Reference
S.P Gupta & Others v. Union of India & Another (1981)