Higher judicial appointments - II

By V. R. Krishna Iyer

THE JUDICIAL takeover - critics may call it a quasi-coup - of the power of appointment of judges has landed the law in an imbroglio and magnified the dilatory methodology. Today, the State Chief Justice and his two senior colleagues switch on the selection operation and intriguing rumours of communal moves and personalised ploys et al are the gossip. Unjust, ill-founded speculations and imputations are invented by Bar corridors and prejudice the selection process. When politicians were in charge, politicisation and favouritism were the currency. Judges are imputed communal and oblique motives often baselessly. The morale of the public and credibility of integrity slumping is a bad omen. Judges are human and favouritism and other unhappy influences do not spare their incumbency and their social philosophy. Criteria vary with judges and some favour affluence of lawyers and jettison service-minded indigent advocates. Women are allergy and Scheduled Castes/ Scheduled Tribes are anathema, though the criticism is exaggerated. Sometimes, contrary to the values of the Constitution, dynastic and aristocratic considerations are preferred and socialist faith in the Socialist Republic abhorred. This results in selections of lawyers and District Judges who have no sympathy with concepts of social justice, egalite, economically and educationally weaker sections and other regional biases which run counter to the Preamble. These are matters so real but delicate and embarrassing to express. Anyway, until Constitutionl changes are brought about, we have to accept the present system. Indeed, we find even factionalism among judges, not to speak of other weaknesses.

The Chief Justice of the High Court and his senior colleagues wade through the wobbling causerie and confidential debate, and then the trio reach an agreement, forward the list, after consultation with the State Executive, to Delhi. The scene shifts and the Chief Justice of India and his two colleagues are seized of the matter. There again, agreements and disagreements consume time and the collegium, at long last, finalises the list. Lobbying, as usual, is busy. Strategies and tactics have play until wisdom wins. Then it goes to the Law Ministry which takes its time to meditate and look for captious contretempts and correction of flaws. Result, inflicting a longer holiday for the file.

Some lawyers still think that operations at Law Minister's level are possible. This is wrong. The Minister is only a conduit but each Minister has his own predilection in interpreting his role. Some Law Ministers forward the file to the Prime Minister. Of course, there is an intelligence verification and check-up of antecedents. Some Law Ministers hold the view that the entire list has to go back to the High Court for reconsideration if the Chief Justice of the High Court has changed although the file has had its successful sojourn at CJI's level! In that event, a reincarnation of the whole operation begins. These are days when Chief Justices of High Courts are posted when they have only a short tenure left. When the sunset comes, another Chief Justice in the evening of his career arrives and bids farewell after a short term. The result is that each Chief Justice makes detailed enquiries and by the time Delhi gets the papers he retires and a fresh innings opens! This causes great aggravation of delay, such phenomenal stagnation leads to arrears in the High Courts.

I will stop with one current illustration of Kerala. A good judicial collegium, a fine Law Minister, a great President and fast track PMO and short period State Chief Justice (which, these days, is the obviable but obtuse praxis)! The Kerala High Court has a sanctioned strength of 29 judges. But the Chief Justice told me that with her retirement there would be 12 vacancies. She was appalled at the mounting arrears and indifferent appointment process.

Six names of candidates suitable for appointment were cleared by the former Chief Justice Savant. They were cleared by the collegium at the CJI's level and came down to the Law Minister en route to the Prime Minister and the President. Meanwhile, Mr. Justice Savant retired and Ms. Justice K.K. Usha became the Chief Justice. The Minister took the view that when a new Chief Justice at the State level had come, the whole set of names should be sent back. Perhaps he had in mind some stray precedent. The consequence was the whole set of names came back to the successor who was already party to Justice Savant's list. However, with due processual dilatoriness (for which the legal system is well known) the same list was sent back, cleared by the Chief Justice of India and the collegium. It moved to the Minister of Law, then the Prime Minister, then the President. These are not ascertainable facts but guesses and depend upon quasi- credible reports and rumours.

Anyway, it is a long time since the vacancies arose and list after list was forwarded to the CJI and his collegium. There was no indication whatever about the finality of the list and the fate of nominees. The judges are at a loss to know how to tackle the docket explosion and periodic judicial disappearances by superannuation. This escalation of arrears and diminishing judge strength inflict on the litigants incalculable injustice, with half the court halls locked and Benches vacant.

On a little investigation I came to know from a ruling reported in AIR 1991 Supplement-I that there was no need to return the draft recommendations merely on the score that the Chief Justice at the State level has changed. Indeed, it is a three-judge Bench, binding, until reversed, on the Law Ministry and the country.

I quote from the head note: ``In the functioning of public offices there is and should be continuity of process and action and all objective decisions taken cannot be transformed into subjective issues. If in a given case the Chief Justice of the High Court has recommended and the name has been considered by the Chief Minister and duly processed through the Governor so as to reach the hands of the Chief Justice of India through the Ministry of Justice and the Chief Justice of India as the highest judicial authority in the country, on due application of his mind, has given finality to the process at his level, recommendations finalised by the Chief Justice of India unless for any particular reason and unconnected with the mere change of the Chief Justice or the Chief Minister justifying the same should not be reopened. If in a given case the Union of India is of the view that the matter requires to be looked into again a reference should be made to the Chief Justice of India and there can be fresh look at the matter only if the Chief Justice of India permits such a review of the case. This has to be rule and the policy or practice adopted by Union of India of reopening recommendations cleared by the Chief Justice of India on the basis of change in the personnel of the Chief Justice of the High Court or the Chief Minister of the State should be immediately given up''.

The text of the judgment emphasises the point that the change of the Chief Justice at the State level shall not be a ground to send back the file for reconsideration. I think there is much common sense in this. It may be clearly arguable that the old list now pending with the Centre should be acted upon unless extraordinary or exceptional new grounds have been presented. There are considerations which weigh in favour of a Constitutional reform of many basic aspects of the Judiciary, too serious to be left to the Supreme Court whatever the number of the Bench.

An old Roman adage says: ``Whatever touches us all should be decided by all''. The Court is under the Constitution and the country and cannot grab power and will not. Business management of judicial administration is an art, a course, not mere seniority nor High Bench authority.

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