Dr. M.V.K. Moorthy, Supreme Court Advocate

In this article of to-day’s great importance and significance in the presence of the scenario of unpleasant circumstances prevailing in the country is being penned as a responsible professional with utmost respect and honesty to the sovereign state as well as the Indian Judiciary, I feel it as my humble duty as an identified constitutional law specialist to share some of my thoughts so as to defuse the confounded situation, which is the most perilous for survival of the greatest democratic nation in the world.

The Indian constitution that had consumed a considerable length of time for well considered and textured deliberations in the constitutional assembly over a period of 2 (two) years, ultimately was adapted on 26th January, 1950 and thus the constitution had survived a period of over a period of seven decades. Equally significant it is to note that the constitution had also suffered more than century amendments. In this connection, I am reminded of an age old saying that law is not static, but a rolling one. In other words, in the process of development of the country the law framed earlier in different context is required to refine to tune in line with the changing circumstances taking place in the society as well as in the universe. In line with this concept, the constitution of India which is a written arganic document apart from other laws was subjected to amendments many a time. An examination of our constitution on administrative side contains 3 (three) well considered and compulsory concomitant such as legislature, executive and judiciary. Functioning of the 3 (three) wings independently to achieve the galloping development of the people especially in rising standards of living with dignity, availment of fundamental rights, of course, with inherent duties and a good administration through official as the watch dog of the survival and success of the democratic setup with maintenance of rule of law, people with a reformative mind also championed another fourth wing of the constitution viz., the press, which includes print and electronic media. The very beauty of the Indian Constitution is to function independently without interference with or overstepping. In other words, it is to be ensured that within the ear-marked spheres of respective jurisdiction. The wings will have to function and discharge their duties and obligations.

It is to state that the union judiciary the establishment of Indian Judiciary is found in Chapter-IV of the constitution. According to the article 124, the Supreme Court of India is to be established and constituted and the Supreme Court is headed by the Chief Justice and prescribed number of judges. So, for the entire nation, the Apex Court is established and constituted in terms of Clause (1) of Article 124. Clause (2) of the said article, plays a very important and dominant role. To elaborate, it is to state that every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal, after consultation with the Chief Justice of India. The judges so appointed to the Supreme Court shall hold the office until attainment of the age of 65 years. Clause (2) also inter-alia provided that a judge may by writing under his hand addressed to the President, resign of his office and it also provides a judge may be removed from his office in the manner provided in Clause (4) of article 124. Clause (B) provides the qualifications for appointment of person as a judge of the Supreme Court. Clause (IV) requires a person appointed as a judge of the Supreme Court before entering upon his office shall make and subscribe before the President or some person appointed in that behalf by him an oath or affirmation. Clause (5) prohibits a person, who held the office of the judge of the Supreme Court shall plead, appear or act in any court or before any authority within territory of India. Now, it is also essential to touch upon the aspect of the procedure prescribed for removal of a judge of Supreme Court. Clause (IV) unambiguously postulates that the judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each house of Parliament supported by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members of that house present and voting has been presented to the President in the same session for such removal on the ground of proved behavior or in capacity. Clause (5) inter-alia envisages that Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or in capacity of a judge under Clause (4). A very careful analytical examination of article 124, which establishes and constitutes the highest court for the land, it would empower the President of India to appoint the persons fulfilling the qualifications setout therein and the procedure for resignation as well as removal. The appointment is in the the appointment process, Parliament does not play any kind of role or concern. Though the President of India is the unimpeachable authority for appointment. However, the President as an appointing authority does not enjoy the same amount of power, when it comes to the removal of a judge, who was appointed by him. The procedure in relation to removal contemplated in clauses (4 & 5) of Article 124 is envisaged to safeguard and protect the judges of the Supreme Court from very and any undesirable baseless complaints received against the judges to deal with in normal or ordinary manner as other public servants are dealt with. Therefore, the judges of the constitutional court appointed by the head of the constitution are placed on a higher pedestal with much more respect and honour, so as to create a kind of atmosphere that the judges perform and discharge their constitutional duties without being influenced by any quarter of the society and without any fear, favour and bias. Therefore, the concept of independence judiciary is readily available in so many explicit terms. Of course, the repercussions or the other way implications arising from out of the reference made to the House of the people. Except the laid down procedure for removal in Clauses (4 & 5), article 124 as exhibited and demonstrated more laxity with utmost respect in observance of other service conditions. Whether, on receipt of the complaints and during the course of enquiry, a respectable judge in the process of enquiry is liable to be kept away from discharge of judicial functions or for that matter like any other charged person to be placed in the suspension or to be advised to go on leave are all short falls or lose ends. Definitely absence of this kind of steps also go to show that greatest respect has been shown to the institution and the individual persons, who belong to such institution. There cannot be any more latitude than the absence of actions to the contrary much more degree of independence with all reverence has been demonstrated.

More or less similar procedure has been contemplated in article 217 as regards to the appointment of persons as the judges of the High Court. The only marginal difference in retirement age is 62 years. All other procedure touching upon the bedrock of an independence coupled with respect in the process of dealing, with the complaints leading to removal is the same as contemplated in Clauses (4 & 5) of article 124.

While the above is related to the manner of appointment of judges and the stipulation of the appointing authority prescription of the qualifications as well as the action to be initiated on the allegations of misbehavior or incapacity. Originally, the process of appointment by the President of India required consultation with the Chief Justice of India in the matter of appointing judges to the Supreme Court as well as the judges to the High Courts. The expression consultation, however did not intend by implication consent as the two expressions, consultation and consent are mutually exclusive and consent is not compliment to the consultation. Therefore, the process of consultation with the Chief Justice was considered to be a informal, on the other hand consultation was interpreted to ascertain the views or opinion of the Chief Justice. Not that the opinion of the Chief Justice rendered in the process of consultation did not invite any kind of controversies as the opinion of the Chief Justice was always respected. Therefore, the position in relation to appointment emerged was the government used to prepare a panel qualified persons, of course, on the basis of certain reasonable, valid and acceptable criteria and before a decision to appoint is taken, the opinion of the Chief Justice of India, whether consequence of consultation was obtained and was respected in most of the cases.

Whether the solitary opinion of the Chief Justice alone is the hallmark for being considered by the appointing authority was also in frequent deliberations by the legal luminaries and therefore suggestedly it was felt just and proper to involve two senior puisne judges of the Supreme Court. Then also rendition of opinion by the Chief Justice in consideration of inputs given by his brother judges would amount to mere consultation as a formality or for that matter consent to have a degree of impactable binding on the appointing authority. In the case of S.P. Gupta vs. Union of India, a constitution bench of Supreme Court interpreted the word consultation as not amounting to consent. However, in a subsequent case in Subhash Sarma it was observed that the interpretation placed by the constitution bench was incorrect and therefore the matter was referred to a bench of 9 judges. The 9 bench judge of Supreme Court with a majority of 7 judges in the case of Supreme Court Advocates on Record Association v. Union of India in AIR 1994 SC 268 came to the conclusion that consultation would almost mean concurrence or consent. In 1968, the President of India in exercise of his powers under Article 143 of Constitution of India made a reference to Supreme Court in the consultation between CJI and his brother Judges in the matter of appointment of Supreme Court Judges, not as a review or reconsideration of the 2nd Judges case. In special reference NO.1 of 1998, another constitution of 9 judges opined that the opinion of the CJI having primacy in the consultative process reflecting the opinion of the judiciary has to formed on the basis of the consultation with a collegium comprising of CJI and the 4 senior most Supreme Court judges. The views of the collegium shall be in writing . The recommendation of the collegium should be conveyed by the CJI to the government of India. That is how the institution of collegium in the history of Indian judiciary came into being. The judgment in special reference No.1 of 1998 was reported in (1998) 7SCC739. It may be necessary to mention that he constitution employed different expressions to meet different situations, which the majority has over-looked. “Consultation” was used in Article 124(2), 217(1) & (3) & 233(1), “previous consent” used in Articles 127, 128 & 224 recommended used 233(2) and approval used in Articles 145 & 229(2). Accordingly, the expression used in the constitution namely consultation was interpreted as collegium leading to institution of collegium. At this juncture, nothing more is required to be added in this regard.

The Parliament in 2014 amended the constitution by way of 99th Constitutional Amendment Act, 2014 whereby the expression “consultation” was substituted with the words “Recommendation of National Judicial Appointment Commission” as referred to in the newly inserted Article 124A and by other successive insertions of Article 124B and Article 124C by which the functions of the commission and the power of the Parliament to make law to lay down the procedure for appointment of judges was contemplated. The said Constitutional Amendment Act was assailed in the Hon’ble Supreme Court under Article 32 by the Supreme Court Advocates on Record Association and by a majority judgment in AIR 2015 SC(SUPP)2463 held that the 99th Constitutional Amendment Act, 2014 was unconstitutional and as such void. In the ultimate analysis, it was held that the collegium system prevailing before amendment to the constitution would continue. That is how the Institution of National Judicial Appointment Commission died as an infant without any kind of nurture and once again he process of the appointment of judges of Supreme Court and various judges of High Courts was to continue through the system of collegium. This article does not propose to go into the working or functionality of the collegium system.

As ill-luck would have it, a very undesirable and dangerous to the democracy of the country statements are being made across the country at various platforms as to whether the recommendation of the collegium binds the government and appointing authority or for that matter the appointing authority has got any liberty, volition and a discretion not to act upon the recommendation of the collegium. As already explained supra, it is no body’s case that the collegium, which identifies the persons and makes the recommendations to the appoint authority, per-se is not an appointing authority. On the contrary, the role of the collegium is of a limited nature. It is therefore a recommendatory body. Then an immediate question is who has to appoint the recommended persons as the judges to the Supreme Court or the High Courts as the case may be? The answer is very simple and categorical i.e., the President of India. Simultaneously, the President of India is also the head of the executive. The President as adumbrated in the constitution is required to act upon the advice of the ministry of council, despite the fact that without the assent of the President, any enactment passed by the Parliament would not become law for being enforced or acted upon. Therefore, from this it is a explicitly clear the President is supreme authority as the head of the constitution. Therefore, there shall be no scope or doubt as to who shall be the appointing authority. The said appointing authority in the process of appointment undoubtedly is entitled to get the antecedents and credentials of a particular recommended candidate verified by an agency and after such verification, if in the wisdom of the appointing authority, any recommended candidate is found to be unsuitable or unworthy for appointment, the President may keep aside that particular individual or send it back to the collegium for consideration once again. To this extent, there is no problem. The real problem is that surfaced in recent times is whether a second time representation of the same name by the collegium, would it compulsorily bind the appointing authority without any discretion forcing it to go against its wisdom and conscience, in which case, it is being canvassed that the recommendation of the collegium is binding with a kind of supremacy on the constitutional head. That is how the rift or tassel or confrontation between the two organs of the constitution has come to the fore. In other countries especially United States of America, United Kingdom, Australia etc., judges for appointment are not recommended by the judiciary and there is no system of collegium. On the contrary, persons for appointment of judges are elected and on such election, the president as head of the country or Congress or Senate appoints such persons. There is no such practice in our country, that is why always one saying goes round with so much of vibration amongst the people that in India judges will appoint judges, which saying of course is not fully true, but the present unfortunate situation gives a kind of feel for that saying.

It is not doubt true as was most desirable for the growth and success of a country independence of the judiciary is sine-quanon. In certain landmark judgments such as Kesavananda Bharathi Minarva Mills case and in subsequent cases, it was authoritatively and succintly held that independence of the judiciary is one of the basic structures or features of the Constitution of India as one cannot think of democracy, freedom to speak, move, follow any faith, religion, creed, vocation, right to life equality before law, social justice, economic fairness, upliftment of down trodden communities, free trade etc., that would become a myth in the absence of independent judiciary. Such judiciary must be allowed to function and discharge its duties independently without any bias, ill-will and without being influenced in any manner by any source and the judge shall be allowed to function fearlessly. This is how the institution of judiciary expects independence. In my humble opinion, independence does not reside in appointment of judges independent of the specified and constitutionally stipulated authority. In other words, the saying judges appoint judges in any manner does not amount to independence of the judiciary. In this regard, my humble submission is that by the recommendation of the collegium in the absence of warrant of appointment to be issued by the President, one as recommendee cannot occupy the bench and commence discharging the duties of office. Therefore, the time has come to shred the misunderstandings or mis-conceptions and reconcile for efficacious functioning of the two constitutional wings with preservation of mutual respect and to work or function without crossing the lines ear-marked (Lakshmana Rekha) as the unrest amongst the constitutional wings is always unprofitable for the survival of democracy, good of the people and the overall growth coupled with maintenance and observance of Rule of law as India is a nation to-day with the galloping development in all respects with universal leadership qualities.

Therefore, in the interest of the country, every one shall rise to occasion and offer productive working inputs for reaching a peaceful, amicable and acceptable solution placing the constitution on a higher pedestal with unstinted supremacy.

The views on analysis of the present situation of mine are of academic expression and shall not be understood to convert confront with any of the judicial decisions.