The edifice of Indian democratic polity is maintained through the conception of an independent judiciary that stimulates the constitutional scheme to uphold its fairness and impartiality. The judiciary is tasked to perform its functions by assuming the role of the protector of the Constitution and rights that emerge from it. The delicate balance between the judiciary and the executive is crucial to ensure effective functioning of the democratic structure the Constitution intends to sustain. The case of S.P. Gupta v. Union of India, notably dubbed as the First Judges Appointments case, was presented before seven-Judge Constitutional Bench by way of a public interest litigation as the first of its kind to elaborate upon the interpretation of the balance envisioned in the Constitution.

Various writ petitions were filed in two batches to the Supreme Court by advocates practicing in the High Court and the Supreme Court concerning a circular from the Law Minister of India dated March 18, 1981. The case considered two issues, one concerning the initial and further appointment of additional Judges, and the other pertaining to the transfer of High Court Judges, including the Chief Justice. Addressing the process of the appointments of Judges, the court explored the interpretation of ‘consultation’ in Article 124(2) and Article 217(1), while considering the resulting primacy of opinion that would be conferred to one among the constitutional functionaries in the process of selection. Furthermore, the court adjudicated upon the nature of power that is awarded to the President under Article 222 with respect to transfer of Judges.

Justice Bhagwati rightfully held the writ petitions maintainable on account that the petitioning lawyers were not acting as meddlesome interlopers or mere busybody as they encompassed an integral part of the judiciary which held imperative interest in its independent characteristic. The application of the broad liberal rule of locus standi has been evolved in PIL from the traditional the rule of standing which mandates that an action can only be maintained by an individual that has suffered injury as a result of the alleged act.

Examining the role of the central government in transfer of Judges, Justice Bhagwati addressed the issue of appointments to determine the interpretation of consultation under Article 217, as it would have the same meaning and effect as consultation stated under Article 222. It was important for the court to determine the power of executive in appointments as the interpretation of the court would have a significant impact on the independent characteristics of the judiciary. The majority view was that the opinions of Chief Justice of India and Chief Justice of the High Court were consultative and the power to appoint Judges vested exclusively in the executive through the aid and advice of Council of Ministers. The court clarified that Article 217 did not specify that the initiation of the process of appointment through the proposal has to be carried out by the Chief Justice of High Court, therefore allowing any one of the four functionaries mentioned in the Article to issue the proposal.

Furthermore, Justice Bhagwati relied upon Union of India v Sankalchand Himatlal Sheth in elucidating that the Chief Justice under Article 217(1) and Article 222 (1) assumed the role of  a mere constitutional functionaries to provide effective consultation to the executive. Conversely, the court held that is not compulsory for the central government to concur with the consultation provided and could override the opinion of the constitutional functionaries based on relevant considerations that are not mala fide. The fact that the Chief Justice of the High Court would possibly be well-appointed with information regarding the integrity, character and competence of the candidate under recommendation was acknowledged. However, the primacy of opinion was vested in the central government in decisions regarding appointment and transfer of Judges as the court resorted to the positivist interpretation of the law and accepted the literal construction of the word consultation in Article 217(1).

The opinion of the Chief Justice of India in consultation was consciously placed alongside other judicial constitutional functionaries by Justice Bhagwati. He relied on the text of Article 217 where such functionaries have been placed together, which indicated a lack of intention on the part of the constitution makers to place the Chief Justice of India as a higher judicial authority. After the judgement of S.P. Gupta the central government maintained that appointment of Judges were carried out with due consideration to opinion of the Chief Justice of India. However, the findings on this issue were criticized in Subhash Sharma v. Union of India, where the bench underscored the importance of an independent and apolitical judiciary to sustain the democratic polity of India, and in doing so highlighted the importance of role of the Chief Justice of India in the process of appointments. The court condemned the impact of S.P. Gupta which had resulted in increased practice of State authorities sending recommendations straight to the central government without providing reference to the judicial authorities. The removal of concerned judicial authorities from the equation by relegating their predominance in the process of appointments altered the constitutional scheme pertaining to the structure of judiciary immensely. The court in Subhash Sharma orated that the primacy of such judicial authorities be restored which would subsequently improve the quality of the selection process and suggested that this issue be addressed by a larger bench. The nine-Judge constitutional bench of Advocates-on-record Association v. Union of India subsequently overruled the view that the Chief Justice did not hold a higher judicial authority in appointments and laid down fourteen conclusions with relation to Justice Bhagwati’s suggestion of the collegium.

The S.P. Gupta judgement was the first to suggest a structure of collegium to be formed in India to consisting of a broad based recommending authority that would provide consultation on wider interests to the President in the process of appointments. The collegium system has been freely mentioned in the Third Judges Appointments case. The introduction of this system in the appointment process has been heavily criticized as addition of such a word into the constitution is antithetical to the function of the judiciary. This overreach was accurately highlighted in the 214^th Law Commission Report and it was submitted that the Supreme Court must restrict itself to interpreting the Constitution as it stands and should not be contributing to altering its construction through addition of words. The court in S.P. Gupta further complicated the course of appointments by introducing a foreign element into the procedure, one that the constitution makers did not deem necessary to be established. This resulted in Second Judges Appointments case and the Special Reference 1 of 1998 diverting their efforts to institute the collegium system rather than providing clarity on the power dynamic between the executive and the judiciary and suggesting an efficient way for the two to co-exist in operation as per the Constitution without one overshadowing the other. Furthermore, the suggestion of forming a collegium resulted in the following cases to increase in the number of senior-most Judges in the process, other than the Chief Justice of India. The addition of this standard in the process of appointments has diverted the consultation procedures and delayed appointments due to involvement of several different interests.

The issue pertaining to the transfer of judges in accordance with the Law Minister’s circular of having 1/3^rd of the High Court Judges that belong to a different state was addressed by the court by taking into account the State Reorganization Commission Report 1955 and the 14^th Law Commission report 1958 suggested similar restructuring of the Judiciary to make it more independent, unbiased and nationally integrated. Justice Bhagwati concurred with the decision of the Law Minister by placing reliance on the pre-existing literature, stating that the circular was not ill-conceived or mala fide. The court stated than non-compliance with the request of the law minister would not ensue an legal sanction as it is not evident that the Law Minister was exercises any constitutional or legal power, despite him representing the central government. However, the attempt of Law Minister to seek willingness of the Additional Judges to transfer was held to not violate Article 217(1) and deemed it a pertinent factor in the procedure of consultation with the constitutional functionaries before transfer is carried out. Furthermore, the court interpreted the Powers and Duties of President under Article 216 through its bare literal construction providing that it was upon the President to decide the necessity of additional High Court Judges, rendering the issue outside the purview of the Judiciary.

Moreover, the court explored the appointment of additional judges as per Article 224(1), maintaining that additional Judges were appointed for a period that was not exceeding two years to tackle increase in the cases in High Courts. Justice Bhagwati submitted that such appointments resulted in the expectation that the appointment would subsequently lead to reappointment as additional Judge for the subsequent term or as a permanent Judge at the expiration of the term due to the peculiarity of the operation of Article 224(1). Protecting such expectations, the majority presented that although it is not mandatory for the central government to automatically reappoint a judge at the end of the term, Judges could not be removed from their post without consideration since the Judges had a right to be considered for reappointment as per the customary operation of Article 224(1), after conducting due consultation with the High Court Chief Justice.

The court considered the case of Shri K.B.N Singh’s transfer in deciding the issue of acquiring consent of the Judge before transfer. The majority opinion of the Sheth case was reiterated stating that transfer can be made without attaining the consent of the Judge, including Chief Justices as per Article 222(1). However, the court emphasized that that the transfer had to be subjected to consultation as prescribed under the Constitution. Justice Bhagwati explicated that transfer of a judge could not be by way of punishment since that would be antithetical to the consideration of public interest in the transfer and would be outside the interpretative ambit and scope of Article 222(1). This classification is important and contemporarily relevant as transfer as a form of punishment would be detrimental to the independent characteristic of the Judiciary, forcing Judges to depart from their duty of being apolitical in order to ensure that they remain on favorable side of the central government and lead to internal politicization of the judiciary.

With hopes of bringing clarity and balance of power between the judiciary and the executive in the vital procedure of appointments, the S.P. Gupta case and subsequent Supreme Court Advocates on Record Association case and Special Reference 1 of 1998 judgments have inevitably resulted in restructuring of the judiciary that is inconsistent with the Constitution and inherently ambiguous. The need for immediate review of the procedure that evolved from these cases has been reinforced by Justice Verma who delivered the majority opinion in the Supreme Court Advocates on Record Association case. According to Justice Verma, in an attempt to restore the balance that was disrupted by the S.P. Gupta case, court in the Second Judges Appointments case failed to efficiently establish distinct and equally important roles of the executive and the judiciary, with the judiciary reviewing the legal acumen and the executive evaluating the antecedents of the recommended candidates. The existing system of allowing internal selection of judges provides for homogeneity that incites judges to reach consensus on cases and adds to the sense of brotherhood. However, the collegium system lacks credibility of merit of the judges and transparency of procedure which is yet to be addressed by the court. The delicate system of check and balance between the judiciary and the executive under Article 124(2) and Article 217(1) must be restored by reconsidering the three pivotal judgements or by passing a law that clearly elucidates the power of the executive central government and primacy of the Chief Justice of India in making judicial appointments.

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ABOUT THE AUTHOR

Aakanksha Singh

Aakanksha is a fourth-year student of B.A. LL.B.(Hons.) program at O.P. Jindal Global University, India.