Higher judicial appointments - I

By V. R. Krishna Iyer

MANY HIGH Courts have vacant court halls and Benches with no robed brethren available to sit and dispense justice. Maybe, the high functionaries shouldering the burden of processing judge's fitness for office are faithful to their anfractuous protocol, meditate to resolve differences and remain in a wise and masterly inactivity! How else do we explain the pathetic delay in finalising the suitable candidates. We have around 600 sanctioned judges' posts in the country but about 150 of them lie vacant since no appointments have been made for long spans while litigants are stunned by appalling delays in docket disposals and the residuary brethren are fazed and dazed by the escalating cause lists. Are senior judges so poor or disagree in judging the merits of candidates that unanimity is a rarity or each judge has a favourite?

There are plural powerful criticisms about the authority, methodology and basic values which must govern the selection of judges so that our courts may be functionally faithful to the finer principles of speedy disposal, fair hearing and social justice tuned to the culture of our Secular Socialist Democratic Republic of which We, the People of India, (the many millioned masses and a few million belonging to the creamy layer) are the political sovereign. I leave that larger issue and the related debate on a National Judicial Council for a later debate. I focus here only on the mystifying procrastination in the gestation process and midwifery protocol of appointees (Their Lordships). Whoever is to blame, injustice due to absence of Justices and dysfunctional judicature due to diminishing judge strength are a bizarre kind of contempt of court. Kerala, for instance, has a sanctioned strength of 29 but 12 vacancies! A culpable quandary and dilematic slow motion have paralysed the see-saw system which calls for Constitutional mutation to correct the aberration. Business management in the administration of the court system is a simple serendipitous art but does judge's genius transform simplicity into complexity?

The administration of justice through a constitutionally structured judicature is the most fundamental promise, sans which civilised society with guaranteed human rights will soon reach the vanishing point of democracy. That is why our founding fathers, with a profound commitment to the common people, designed a unitary judicative instrument vesting the largest powers in the highest deck of that institution. ``Be you ever so high the law is above''. ``The law is what the judges say it is'' and the Judiciary is empowered to interpret and adjudicate whenever a forensic dispute arises. It is thus among the highest principles of our constitutional order that the judicative functionaries shall ever be present and vigilant to discipline every organ of Government and other holder of power so as to defend life and liberty whenever in peril. The Judicature is thus a perennial controllerate in which We, the People of India, have a paramount stake.

The supremacy of the Judiciary makes the prompt appointment of the `robed brethren' a matter of grave concern and urgent attention. Chaos in the cosmos, entropy in society and mayhem on human rights may well be the macro-lawlessness that may explode if courts are mute and judges unavailable. In this perspective, if justices are not functionally in place in every higher court in the country, there is, of necessity, a de facto breakdown of the Constitution, with none to police, according to the rule of law, the social order. Any political thinker, experienced statesman, or profound jurist will readily agree on this proposition. The President of India appoints judges of the Supreme Court and the High Courts after careful assessment by dignitaries concerned, making the courts the sentinels on the qui vive. Leaving vacancies in the final fora unfilled and void is violation of justice by negation of duty.

The constitutional debates indicate that the Chief Justice of India and the Chief Justice of the State will be consulted (Article 217) and the State Executive has a voice. Then the Central Executive will take the ultimate decision regarding the appointees. These high echelons of judicial power thus command continually the delivery of justice under the Constitution. Since the beginning of the Constitution, the praxis has been that the President, as head of the Republic, signs the appointment of the various judges in all the High Courts and the Supreme Court.

Consultation with the Chief Justice was important and appropriate but concurrence with the Chief Justice was rejected by Ambedkar in his categorical intervention in the Constituent Assembly. Thus the Prime Minister had the ultimate voice in the choice, effective consultation with the Chief Justice being an inalienable obligation to inhibit dubious or arbitrary elements infiltrating into the choice. The process of selection of judges of the High Courts begins with the State Chief Justice concerned, due consultation with some of his colleagues is done and the papers move on to the next stage of the Chief Minister (and Governor). Eventually, the Central Executive, in consultation with the Chief Justice of India (who consults a few colleagues) settles the final nomination. At last, the papers move up to the President whose signature concludes the selection.

Broadly speaking, this protocol has had a peaceful sojourn for decades. The Prime Minister, being the final decision-maker, has rarely disagreed with the Chief Justice of India pro-tem. Still suspicion of political pollution vitiated the process and an impression that judicial independence and impartial excellence was marred, brought up the issue of appointment of judges before the Supreme Court more than once. There was considerable complaint of inordinate delay, politically motivated procrastination and heavyweights in the Executive influencing the judicial selection. Politicians were alleged to be indifferent to the urgencies to fill up vacancies and great qualities expected of a judge. To rid the process of selection to judicial office, the apex court heard the matter and usurped the power to itself but, looking back in retrospect, floundered and caused razzmatazz. But being the summit court the ruling prevails. The Supreme Court is final not because it is infallible, but it is infallible because it is final (Articles 141 and 144).

The jurisprudence of judicial appointments has been complicated by the plurality of opinions and prolixity of pages expressed by the learned judges who sat on the benches on more than one occasion. The last and largest Bench, nine judges strong, made the final statement of the law which will hold the field until upset by a larger bench or by a Constitutional amendment creating a national judicial council broadening the base and going beyond `robed brethren', including great statesmen and foremost social scientists. At present, we are bound by what the nine judges laid down in an erudite tournament of opinions. Although, they spoke in divergent voices, sometimes creating confusion out of profusion of opinions running into incredible lengths, sometime contradictory in wisdom, at other terms mindless of the plain proceedings of the Constituent Assembly and ignoring the meaning of unmistakable English in the printed Constitution. Profound scholarship from the summit seat puzzles the wit of the laity and the `attorney', if Judicalese, with twists and turns of ratiocination, makes judge-picking jurisprudence read like `a riddle wrapped in a mystery inside an enigma'.

As a consequence of the nine-judge Bench verdict, there has been difficulty in choosing judges, differences of opinion causing embarrassment and disharmony, discontent and even estrangement. While there was loud complaint by the Bench and the Bar in the country about wanton wasting of time, tammany tactics, and pollutive intrigues and miasmatic motives by the Executive in providing judges by prompt appointments, the situation today is worse, being pathological, personalised and marred by delays - not always.

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