Right from 1950 to 1973, even though the power to appoint judges was with the executive, and the judiciary was only to be consulted by going through the office of the chief justice of India, assisted by the chief justices of the high courts, the government went by the advice of the CJI, without attempting to influence his views.
It was the wafer-thin seven-to-six majority judgment in Kesavananda Bharati in 1973 that led to the departure from the tradition of going by the recommendation of the CJI. The government, incensed by the majority judgment in Kesavananda Bharati, decided to supersede not one or two but all three judges who had decided the case against the government. The person who was appointed the next CJI by superseding three senior judges was the seniormost judge who had decided in favour of the government. This supersession was intended to send a clear signal to the judiciary that an important judgment against the executive would jeopardise future prospects of the judges involved.
The supersession of April 1973 was followed by the Emergency in June 1975 and the suspension of the fundamental right to life and liberty. This ultimately led to the ADM Jabalpur case, and the Supreme Court, with a majority of four to one, held that the right to challenge illegal detention had vanished with the suspension of fundamental rights during the Emergency. Those imprisoned during the Emergency — nearly all opposition leaders, including the present finance minister — had no hope of being released.
It was in this context that the next CJI was to be selected during the Janata party government, in which I was law minister. Those who had suffered during the Emergency for their political beliefs were dead against the elevation of the two remaining seniormost judges who had sided with the government in the ADM Jabalpur case. These judges were perceived by some as having surrendered before the government to preserve their career prospects. How could they be elevated to the post of CJI when they were responsible for the sufferings of lakhs of people on account of their judgment, which was seen to be motivated? The overwhelming opinion in the party and among the conscientious sufferers of the Emergency was that these two judges should be superseded. So much so that the conscience-keeper of the Janata government, Jayaprakash Narayan, requested me to consider this factor while deciding on the appointment of the next CJI.
In spite of the pressure from different sources, I chose to go by the mandate of the Constitution by widening the consultation to all the judges of the Supreme Court and the chief justices of all the high courts. There was near unanimity among the judges that the principle of seniority in the selection of the CJI should be restored. As the question of who appoints judges has a great impact on the independence of the judiciary, we decided to follow the advice of the judges — despite the reluctance of many of my colleagues in the government — to preserve and maintain the independence of the judiciary in all its majesty, which we regarded as an integral part of the basic features of the Constitution.
I am glad that this was accepted and the government agreed to the elevation of Justice Y.V. Chandrachud as the next CJI and, by implication, the elevation of Justice P.N. Bhagwati as his successor. I can say with authority that when I was law minister from 1977 to 1979, each and every appointment was made strictly according to the recommendations of the CJI, without the slightest attempt to influence his views.
I recently read an opinion of the current Union finance minister, Arun Jaitley, in which he has referred to this failure of the Supreme Court during the Emergency as an example of its fallibility. However, one should remember that this was the direct result of the political class meddling with the appointments process from 1973 onwards. In fact, the period of the Emergency demonstrates the dangers of the executive having the last word in the appointment of judges to the higher judiciary.
From 1980 onwards, after the Janata party regime ended, the executive again started interfering in the selection of judges — the course correction during the Janata government was shortlived. As political attempts to influence the views of the chief justices of the high courts and the CJI increased, the need to correct the situation was felt in the Supreme Court, leading to the collegium judgments.
The Constitution provides for a council of ministers to simply “aid and advise” the president. It does not say that the advice is binding on the president. In fact, this issue was raised by the first president, Rajendra Prasad, soon after the Constitution came into force. Then Attorney General M.C. Setalvad opined that, notwithstanding the language used, the president was bound by the advice of the council of ministers. This view was also endorsed by the Supreme Court in its seven-judge judgment in Shamsher Singh. If the advice of the council of ministers is deemed to be binding on the president, then why wouldn’t the advice of the collegium be binding on the president in the same manner? In my view, therefore, consultation must mean going by the advice of the CJI.
Can a litigant select a judge to decide his own case? If not, how can the government be given a direct role in the selection of judges, given that one of their main roles is to judge the government’s actions? Its role should be confined to giving important and useful inputs to the judiciary about the persons being considered by the collegium.
I strongly believe it is possible to appoint honest, knowledgeable, able and objective judges capable of rendering much quicker justice through a more robust, transparent and consultative collegium system. All the shortcomings of this system can be removed by the Supreme Court itself. It is gratifying to note that the National Judicial Appointments Commission judgment itself accepts the shortcomings of the collegium system and has posted the matter for a “consequential hearing” in November to determine how it can be improved.
The writer, a senior advocate at the Supreme Court, was Union law minister from 1977-79
(The article appeared in the print under the headline, ‘Supreme Collegium’)
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