Seniority is not the ideal norm to determine the appointment of the chief justice of India..

The Department of Justice in the Ministry of Law and Justice issued a terse notification on December 19 saying that by exercising the powers conferred by clause (2) of Article 124 of the constitution of India, the president had appointed Justice Jagdish Singh Khehar, a Supreme Court judge, as the 44th Chief Justice of India (CJI), with effect from January 4, 2017.

The notification, albeit routine, issued ahead of the swearing-in of the new CJI is significant because of what it fails to reveal. Strange as it may seem, clause (2) of Article 124 of the constitution does not confer any such power on the president to appoint the CJI.

The relevant part of clause (2) of Article 124 reads:

“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 65 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.”

No doubt, a CJI is also a judge of the Supreme Court and, therefore, it may be suggested that the power to appoint a CJI can be inferred from this provision. Justice Khehar, however, has already been appointed as a Supreme Court judge once and continues to be one till date.

Therefore, without a clarificatory notification, the use of this provision would mean the appointment of the same person twice.

The absurdity of the literal reading of this provision apart, the lack of clarity in clause (2) of Article 124 with regards to the appointment of the CJI might suggest that the framers of the constitution perhaps envisaged the appointment of a person to the post other than the judge of the Supreme Court. Or at the very least, the framers did not envisage the consultation of the president with the judges of the Supreme Court – or the CJI – with regard to the appointment of the incumbent CJI’s successor.

The supersession issue

By appointing Justice Khehar – the senior-most judge in the Supreme Court after outgoing CJI Justice T.S. Thakur – as the next CJI, the president has put to rest the speculations that have been doing the rounds for weeks.

The news must come as a relief to those who could not rule out supersession in the judiciary by the present government, as well as to those who believed that the present government would hesitate to take an unwise step like the supersession of the CJI, ignoring the convention of elevating the senior-most judge in the Supreme Court as the CJI.

The senior most puisne of the Supreme Court has always been appointed as the CJI except on two occasions.

The convention was breached when Justice A.N. Ray was appointed as the CJI on April 25, 1973, by superseding three senior-most judges. The supersession was made on the day following the Supreme Court’s judgment in the Kesavananda Bharati case.

The second supersession took place during the Emergency when Justice M.H. Beg was appointed as the CJI on January 29, 1977, by superseding Justice H.R. Khanna.

During the hearing of the National Judicial Appointments Commission (NJAC) case last year, the government counsel defending the NJAC assured the Supreme Court’s constitution bench that these two instances of breaching the convention should be considered as aberrations.

The bench also took note of the fact that the first prime minister, Jawaharlal Nehru wanted to supersede Justice Patanjali Sastri, who was the senior-most judge of the Supreme Court, when the first CJI, Harilal Kania, died in office on November 6, 1951.

The bench was told – on the basis of reliable records – that all the six judges of the Supreme Court threatened to resign if Sastri was superseded. Sastri only had a few months left until his retirement and the government acceded to the so-called non-existent convention at the time.

The petitioners in the NJAC case, who doubted the government’s bonafides, pointed to the amendment of the constitution inserting the new Article 124(C), which said that the parliament may – by law – regulate the procedure for the appointment of CJI and other judges of the Supreme Court, and the chief justices and other judges of high courts.

The petitioners were aghast that the new provision equated the appointment of the CJI with that of the other judges of the apex court and chief justices and other judges of high courts without taking note of the convention of seniority guiding the appointment of the CJI, which was cast in stone all these years.

The petitioners were also concerned about the vagueness of the term ‘fitness’, used in Section 5 of the NJAC Act, while referring to the fitness of the senior-most judge of the Supreme Court, to be determined by parliament, for the purpose of his elevation as the CJI.

While Attorney General Mukul Rohatgi clarified to the bench that fitness meant physical and mental fitness alone, doubts remained whether the parliament could define “fitness” in a manner subserving the interests of the executive.

The petitioners’ concerns prevailed over the bench, which struck down both the NJAC Act and the Constitution 99th Amendment Act 2014, on grounds that if the parliament has the authority to regulate the procedure for the appointment of judges – including the CJI – by framing laws, it would mean legislative control, which would breach the “independence of the judiciary.”

The convention of appointing the senior-most judge of the Supreme Court as the CJI, following the retirement of the outgoing CJI, was given the stamp of approval in the Second Judges Case in 1993.

In that case, a nine-judge bench had held that “there is no reason to depart from the existing convention and, therefore, any further norm for the working of Article 124(2) in the appointment of Chief Justice of India is unnecessary.”

The appointment of the CJI, by its very nature, was considered distinct from the appointment of other judges of the apex court and the high courts.

The convention has its own justification – there is no provision for consultation in the constitution between the CJI and the president for the appointment of the CJI, unlike in the case of the appointment of other judges and it is for that reason that a healthy convention has developed of appointing the senior-most judge of the court as the CJI.

This convention, the Supreme Court was told in the Second Judges Case, is in keeping with the concept of independence of the judiciary as it excludes the possibility of executive interference in the matter. The Supreme Court’s nine-judge bench accepted this contention and ruled accordingly. No wonder then that in the NJAC case, another five-judge bench of the Supreme Court found this convention inviolable.

Seniority convention has no roots

Abhinav Chandrachud, a scholar and lawyer, however, found little evidence for this convention prior to the establishment of the Supreme Court, specifically in the high courts of Bombay, Calcutta, Madras, Allahabad, Patna, or in the Federal Court of India (FCI).

According to him, the seniority norm for the appointment of the chief justices of these high courts and in the FCI did not prevail. He observed that when viewed as a whole, the seniority convention in the high courts of India was an exception rather than a rule.

He adds that in the1950s, the appointment of the CJIs on the norms of seniority was an aberration, today, however, it is perhaps indispensable in order to safeguard the independence of the judiciary.

Chandrachud cites a few instances of non-judges becoming chief justices in high courts – Basil Scott was an advocate general and he directly became the chief justice of the Bombay high court, while P.V. Rajamannar was made the chief justice of the Madras high court by superseding four judges. William Patrick Spens was appointed as a chief justice of the federal court – a post vacated by his predecessor, Maurice Gwyer – even though he was not a federal court or a high court judge.

India’s first attorney general, M.C. Setalvad, was asked by the then home minister, K.N. Katju, whether he was interested in taking Kania’s place as the CJI – referring to a custom prevalent in England where the attorney general replaces the lord chief justice. Setalvad reminded the home minister that he had already surpassed the retirement age. Setalvad apparently suggested to the home minister that M.C. Chagla, the then chief justice of the Bombay high court, be considered for the post.

There is evidence suggesting that the framers of the Indian constitution contemplated someone other than the Supreme Court judge to become the CJI in order to ensure that the incumbent has a longer term in office than what most CJIs – elevated on the basis of seniority – can hope to have.

It is too late in the day to speculate what could have been the consequence had the six judges of the Supreme Court not threatened to quit in the face of Nehru’s threat to supersede Sastri in 1951. Since then, seniority as the only norm for the appointment of the CJI has become synonymous with the independence of the judiciary.

The rapid succession of the CJIs and the experience of outgoing CJI Thakur – who had just about a year in office as the chief justice before his retirement and was therefore at the receiving end of the government’s indifference to the collegium’s recommendations for filling vacancies of judges in high courts – should tell us that in the absence of fixed minimum tenures, no chief justice can hope to reform the judiciary and thereby ensure its independence from the executive on aspects other than the appointment of the CJIs.

The next CJI, Khehar, who assumes office on January 4, 2017, will retire on August 27, 2017, with a summer vacation lasting for one and a half months.

Seniority is not the ideal norm to determine the appointment of the CJI, but there appears to be no alternative at present with the government’s lack of respect for institutions hitting an all-time low.

https://thewire.in/88687/seniority-norm-cji-appointment-thakur-khehar/

Scrapping NJAC: Judiciary versus not executive but will of the people

A five-judge Constitution bench of the Supreme Court on Friday scrapped the National Judicial Appointment Commission – passed by Parliament as the 99th amendment to the Constitution – disallowing the Executive a hand in selection of judges for appointment to High Courts and the Supreme Court.

Though one of the judges, Justice Chelameshwar had his reasons to uphold the validity of NJAC, the ruling will prevail till the government of the day at the Centre decides its future course of action to protect its Constitutional amendment. Therein is the recipe for a future confrontation between the judiciary and the executive on the issue of judicial independence.

India is free, egalitarian and democratic and values judicial independence. This independence in practice has to be seen in the level of transparency in the appointment of judges to the higher judiciary. The Indian judiciary, by dint of carrying on the task of upholding the Constitution and champion the fundamental rights of the people, has necessarily to be seen to have judicial accountability for itself.

What better way to uphold than to have a system of judicial appointments not exclusively headed and maintained by judges themselves? That is where the NJAC comes into the picture. And by scrapping the NJAC, the judiciary has opened itself to a lot of questioning. It is not the case of the judges appointing a bad judge or a good judge; it is of whether it can ever look fair for judges to appoint judges among themselves.

Judicial independence is a concept born in the United States where ironically, the selection and appointment of judges is clearly a political process with all powers retained by the executive. In India, on the contrary, the NJAC was a step towards enlarging the appointments panel to include the judiciary itself. The prevalent, collegium process of the judiciary itself appointing judges was felt a bit too independent an exercise which brought about the question of judicial accountability. That these are times when the Indian judiciary is seen to exercise judicial activism through frequent observations on the country’s political and social life, thus reinforcing that the executive is at times weak and at best indecisive, is an altogether separate matter.

It is the same principle of judicial accountability that provides a hierarchical system of the Supreme Court over the high courts and the high courts over the subordinate judiciary. However, the Supreme Court does not have an authority above it. So, how will the apex court account for accountability? The age of whimsical Victorian morality is long past us and Indian judges themselves have often admitted that they too are humans and therefore subject to mistakes. They are the conscience-keepers of the Constitution. Does it mean they are accountable only to themselves?

The entire controversy between the judiciary and the executive over the appointment system arose because of follies committed by both in the past. In the early years after Independence, it was so that most of the judges of the Supreme Court were previously judges of the high courts, with the senior-most of them taking over as Chief Justice of the apex court. It was in 1958 that the Law Commission of India found that the process did not take merit into account.

The Commission’s view-point was ignored until former Prime Minister Indira Gandhi decided to openly interfere with the judicial appointments, thus confirming her authoritarian mood that would eventually plunge India into the dark period of Emergency. In 1973, she appointed Justice Ajit Nath Ray as the Chief Justice, superseding three justices. She obstinately named his successor too – Justice MH Beg – superseding Justice HR Khanna who, coincidentally had dissented in a 1975 case on the need for Emergency detenus to have recourse to legal remedy.

The judiciary stung by such blatant misuse of power, and turning a blind eye to the less than proficient postures of the two Indira’s appointees, decided to bring in safeguards. The issue that remained unresolved in major judicial debates and in the deciding of such cases in courts was the nature of “consultation” (of who-ever, the Chief Justice or the President through the executive, etc) in the appointment of judges. Through rulings in what are called the First Judges’ Case (1981), the Second Judges’ case (1993) and the third Judges’ case (1998), the judiciary twisted and turned with this word.

First it said the Constitution talks about “consultation” and not “concurrence”, meaning thereby that while the Chief Justice can be consulted, the opinion of the President and not of the Chief Justice will have primacy. That was fine with the Constitutional provision. Then it made a turn, saying the opinion of the Chief Justice should have primacy. This was against the provision of the Constitution which says the President will appoint the judges after consulting the Chief Justice. This amounted to the judiciary becoming what some legal experts a self-appointed institution which was not as per the Constitution. The judiciary elsewhere in the world does not have such freedom to appoint judges by itself. In any case, since then, the collegium system came into existence which nullified the role of the executive in higher judicial appointments, the executive nursing its political wound saying the judiciary was over-reaching and that the executive would have to have a say in the appointments.

The NDA government brought in a bill to set up the NJAC. It was passed by Parliament in 2014 and came into force from this April. At last count 20 states had ratified it. However, some legal experts challenged it in the supreme court saying it stifled the role of the chief justice of the Supreme Court, subverts the independence of the judiciary and works against the “basic structure” of the Constitution.

Their contention was that the “basic structure” of the Constitution is not amenable to change at all and that judicial independence is one key aspect of the “basic structure” and therefore cannot be diluted by Parliament. A landmark judgement in 1973 (Kesavananda Bharathi case) had classified certain elements of the Indian Constitution as "basic structure". It has been held that the “basic structure” of the Constitution cannot and should not be tinkered with, as it belongs to the core of the Constitutional spirit.

The fight between independence – whose? -- and accountability – whose? -- has only begun.

The larger issue the judiciary will have to think about is the primacy of the will of the people in democratic India. Both Houses of Parliament had passed the NJAC Bill and 20 state assemblies have already ratified it. By committing itself against the NJAC, the Supreme Court with one stone wasted the opportunity of tweaking the NJAC to its satisfaction in consultation with the government and, secondly, has put itself in an impossible position to defend in future its preferred system of appointing judges on its own.

http://www.ibnlive.com/blogs/india/vvp-sharma/scrapping-njac-judiciary-versus-not-executive-but-will-of-the-people-14329-1152631.html