In the United Kingdom and other common law jurisdictions, say Australia, Canada and the New Zealand as well as the United States, the appointments to the superior judiciary are exclusively by the executive with varying degrees of control. In the United Kingdom the appointments are made on the recommendations of the Lord Chancellor or the Prime Minister depending on the level at which the appointment is made. In Australia, the appointments are made by the executive in the name of the Governor- General or Governor in council depending on whether the appointments are to the High Courts or other federal courts or at the State-levels. In Canada the appointments are essentially by the executive whereas in New Zealand the judiciary plays an active role but the appointment is made on the recommendation of the Cabinet by the Governor-General. In the United States the appointment to the Supreme Court is made on the nomination by the President subject to confirmation by the Senate. It will thus be seen that in these developed countries whose people are no less jealous of preserving judicial independence, the initial appointment at the entry stage is by the executive.
In British India, under the Government of India Act, 1915, Ss. 101 and 102, appointment of the Chief justice and Judges of the High Court was in the absolute discretion of the Crown and their tenure was governed by the pleasure doctrine. Under the Government of India Act, 1935, Ss. 200 and 220, the appointments to the Federal Court and the High Court continued to be an executive privilege but their removal was dependent on a report from the Judicial Committee of the Privy Council to the Crown. We have pointed out the development of the concept of judicial independence in British India earlier and see no reason to repeat the same. Since our Constitution makers were alive to the need to insulate the judiciary from external pressures they introduced the concept of consultation with the Judicial Wing to limit and check the absolute discretion of the executive in the matter of appointments to the superior judiciary. They achieved this by introducing the concept of compulsory consultation with the judiciary before the appointments are made to the superior judiciary. That is why Arts. 124(2) and 2 17(1) provide that the appointments under the said provisions shall be made ‘after consultation’ with the Chief justice of India and others. But it is difficult to say that the Constitution makers intended to denude the executive of all its power of appointment by providing for consultation with the Chief justice of India and others. We do not think, as we will presently show, that such a view is permissible on the plain language of the Constitution even if the word ‘consultation’ is understood in the backdrop of the need to strangthen the concept of judicial independence.
Before we deal with Indian constitutional scheme regarding appointments to the superior judiciary, it would be advantageous to bear in mind the practice followed in Britain and other Common Law Systems as well as the United States. In Britain the Lord Chancellor enjoys a unique position of three in one. He is at once the head of the judiciary, Presiding Officer (Speaker) of the House of Lords and a member of the cabinet. This unique position enjoins that he ensure separation of powers and independence of the judiciary. One of his responsibilities is to select and appoint Judges and other judicial officers. To ensure that the appointees are of the highest professional calibre, integrity and judicial quality, certain guidelines laid down by Lord Chancellor’s office are followed. Appointments to the High Court and above being by invitation, the principle of wide consultation is followed. The views thus obtained are collated and recorded and after considering the same the proposal is put forward for appointment. Lords justice of Appeal and Judges of the Supreme Court of England and Wales are appointed by the Queen on the Prime Minister’s recommendation. It will thus be seen that the process of appointment is essentially an executive one yet no one says that the English judiciary is not independent, in fact it is recognised as fiercely independent.
Under the American system many State Judges are elected; of those that are not, their appointments are subject to legislative concurrence. However, in the case of Supreme Court Judges, the President makes the nomination. While the requirements of merit, expertise, independence and public confidence are universal it is conceded that other factors, such as, ideology, political compatibility, etc., also figure prominently in the selection process. During the 1984 Presidential Campaign when judicial appointments were debated, Mr. justice William Rehnquist is reported to have said:”there is no reason in the world why a President should not ……… appoint people ……….. who are sympathetic to his political or philosophical principles” and buttressed it by noting that the President is the “one official who is elected by the entire nation” and, therefore, the public has “something to say about the membership of the court”. (Washington Post, October 20, 1984 p. 6). Besides political and ideological compatibility, “representativeness” based on race, gender, etc., plays a measurable role in the choice of candidates. The ultimate aim, it would seem, is to make the court reflective of America’s heterogeneity and thereby foster legitimacy and credibility for the institution in the eyes of the people. It is obvious, therefore, that in selecting the candidate for nomination to the Supreme Court, political and ideological views of the candidate are considered relevant and an attempt is made to give the Court a representative look so that the Court derives legitimacy in the eyes of the people. The nomination made by the President must of course be confirmed by the Senate. The Senate too in the course of its deliberations tries to ascertain the nominee’s ideological and political compatibility, his merit, competence, experience and suitability before approving or disapproving the nomination, it will thus be seen that the process of selecting a candidate for appointment to the U. S. Supreme Court is solely an executive function which has the backing of the Senate. Surely, it cannot be argued and was indeed not argued, that the people of America who were jealous in enforcing the doctrine of separation of powers with a view to ensuring the total independence of the judiciary were at the same time willing to dilute it. Their concept of judicial independence is clearly of post-appointment application. Once the nomination is complete and the candidate enters the judicial family he must enjoy complete independence, both institutional and individual, and there should be no interference from any source, whatsoever, in the discharge of his judicial functions.
In Australia, Judges are appointed by the executive in accordance with the statute. Appointment to the High Courts and other federal courts is by the Federal Government whereas appointment to the State courts is by the State Governments. The appointments are made in the name of the Governor General, or the Governor, in council. In reality they are dependent on Cabinet decisions. Once appointed they are independent of the executive. Thus the Australian method of appointments contrasts with the system prevalent in the United Kingdom and the United States.
In Canada. appointments of Judges of the Superior, District and County Courts in each province, except two, are made by the Governor General. In addition, each of the ten provinces has its own process of appointment of provincial Judges to provincial courts. There is no uniformity but the appointments essentially are by the executive.
In New Zealand, the role of the judiciary in the selection of Judges is quite active. The Chief justice of New Zealand is appointed by the Governor General on the recommendations of the Prime Minister who ordinarily discusses the matter with the Attorney General. The latter seeks the opinion of the President of the Court of Appeal and, informally, of some other Judges. Where appointments to the High Court are in the offing, the Chief justice prepares a list after consulting the other Judges and makes a recommendation which the Attorney General scrutinises. After making his own inquiries he consults the New Zealand Law Society and on receipt of a positive response sounds the candidate and on his or her agreeing the Cabinet is appraised. The Cabinet then makes a formal recommendation to the Governor General who makes the appointment.
In India, after the advent of the British, the judicial system underwent changes. The Courts set up by the East India Company were exclusively executive. Thereafter a new judicial system comprising three types of courts came to be introduced in the Presidency towns of Bombay, Calcutta and Madras. The courts so constituted were replaced by the establishment of Supreme Courts in the said three Presidency towns. The Chief justice and other Judges held office during the pleasure of the Crown although their salaries were ascertained. On the enactment of the High Courts Act, 1861, these courts were replaced in 1862 by High Courts. Under the Government of India Acts, 1919 and 1935 the power of appointment was exclusively with the Crown, but under the latter Act the age of superannuation was fixed at 60 years subject to the Crown’s power to remove a Judge for misbehaviour or mental or physical infirmity on the report of the Judicial Committee of the Privy Council. Thus Judges enjoyed independence from the executive but continued to serve under the Crown’s pleasure. However, on account of the British culture of judicial independence, the Judges of the High Court functioned without any executive interference or fear of interference. The Federal Court later strengthened this great tradition of judicial independence. The purpose of setting out this abridged historical background is to point out how the pendulum swung from total executive control to near total judicial independence except for the limited scope of the pleasure doctrine. Founding fathers of Indian constitution were aware of these developments in England, America and British India when they undertook the task of drafting the Constitution for free India. It will be noticed that even then the power of appointment was totally with the executive.
Indian Constitution envisages a three tier judiciary with the subordinate courts at the floor level, the High Court at the State level and the Supreme Court at the Union level. The provisions in regard to Union. Judiciary, i.e. the Supreme Court, are to be found in Chapter IV, those regarding the High Courts in the States in Chapter V and subordinate courts in Chapter VI of Part VII of the Constitution. We may first deal with the provisions relating to the subordinate courts which comprise Articles 233 to 237. Article 233 provides for the appointment of ‘District Judges’, an expression defined in Article 236(a). Article 233(1) provides that appointments of persons to be and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. It may be noticed that consultation is with the entire body of Judges constituting the High Court and not with a single individual like the Chief justice of the High Court. Article 233(2) says that a person not already in service of the Union or the State shall be eligible to be appointed a District Judge if he has a standing of not less than seven years at the Bar and is ‘recommended’ by the High Court for appointment. Under Article 235 the control over District Courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court. Article 237 empowers the Governor to direct that the provisions of this Chapter and any rules made thereunder shall apply in relation to any class or classes of Magistrates in the State as they may apply in relation to persons appointed in the judicial service of the State subject to such exceptions and modifications as may be specified. The expression “judicial service” is defined under Art. 236(b) to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. On a plain reading of Art. 233 it becomes clear that the power to appoint District Judges is vested in the Governor of the State which he must exercise in consultation with or on the recommendation of the concerned High Court. Thus consultation with and recommendation of the High Court is a condition precedent to the exercise of power by the Governor of the State[Supreme Court Advocates-on-Record Association and another Vs Union of India AIR 1994 SC 268]
Indian System is Different from the rest of Jurisdictions
In India judiciary plays a more active role in selecting Judges at all levels than in other countries. The appointments to the subordinate judiciary must be made by the Governor in consultation with or on the recommendation of the High Court as provided by Article 233 of the Constitution. Article 233 is a self-contained provision for appointment as District Judge and is in two parts; the first clause provides for the appointment of a person who is already in the service of the Union or the State in consultation with the High Court while the second clause provides for the appointment of a person who has been for not less than seven years an advocate or a pleader on the recommendation of the High Court. The requirement of consultation with or recommendation by the High Court is a must and the decision has to be taken by the entire body of Judges constituting the High Court. In the case of appointment of persons to the judicial service other than as a District Judge, Article 234 requires that their appointments shall be made in accordance with rules made by the Governor in that behalf in consultation with the State Public Service Commission and with the High Court. Therefore, even though the ultimate appointment of a person to be a District Judge rests with the Governor, he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has, as the case may be, recommended the appointment. Consultation would not be complete, meaningful and effective unless there has been an exchange of views and in the event of disagreement the executive has indicated the reasons for its disagreement to the High Court and has disclosed the material on which the disagreement is based. Therefore, the obligation to consult the High Court is so integrated with the exercise of power by the Governor that the power must be exercised in the manner provided by Article 233(1) or not at all. In order that the requirement of consultation does not end up as an empty formality or is not reduced to a mere mockery it is essential that in the event of difference of opinion there is an effective interchange of view-points between the two functionaries so that each is able to appreciate the views of the other and there is a genuine attempt to iron out the creases before a final decision is taken. In cases governed by Art. 233(2), normally, as a matter of rule, the High Court’s recommendation must be accepted unless there exists ‘good and weighty reasons’ in which case the executive should communicate its views to the High Court and give the latter an opportunity to react to the same. See State of Kerala v. A. Lakshmikutty, (1986) 4 SCC 632. Once the Governor makes the appointment and the appointee becomes a part of the judicial family, he is under the protective umbrella of the High Court under Article 235 and none except the High Court can take disciplinary action against him. See State of West Bengal v. Nripendra Nath Bagchi, (1966) 1 SCR 771 at 789-790. The ultimate order of dismissal or removal may be passed by the Governor on the recommendation made by the High Court based on the outcome of the domestic enquiry. A lesser punishment, that is, a punishment other than dismissal, removal or reduction in rank, can be imposed by the High Court itself but if the punishment recommended is the one falling under Article 311, the order must be made by the Governor. This position is made clear in the case of Tej Pal Singh v. State of U. P., (1986) 3 SCC 604 at 610-611. It is, therefore, obvious that in the matter of selection of District Judges, it is the High Court which plays a dominant role for the reason that lot of weight is attached to the views of the entire body of Judges constituting the High Court. It is, therefore, natural that departure from the opinion of this informed body, which the Constitution requires to be consulted, can be a rare event and that too for very strong, cogent and compelling reasons. Even in such an eventuality there must be an effective, purposive and meaningful dialogue with the High Court before a final decision is taken by the executive. It is necessary to realise that the framers of the Constitution have deliberately provided for consultation with the entire body of Judges constituting the High Court and it is their collective wisdom which adds weight to the opinion transmitted to the executive and hence it is not surprising that except in rare cases where they may have gone wrong for want of some material that the executive may take a different approach and invite the High Court to revise its opinion in the light of that material, e.g., I.B. Report or the like. It is significant to note that consultation is not limited to the Chief justice of the High Court presumably because it was not thought wise to limit the consultation with one single individual. The Constitution makers have chosen to rely on the collective wisdom of the High Court as a body and not any single individual, howsoever high he may be placed.
High Court Appointment
Insofar as appointment to the High Court is concerned, the same is governed by Article 217(1). We have reproduced the text of this Article earlier. The appointment has to be made by the President by warrant under his hand and seal. But it must be preceded by ‘consultation’ with the Chief justice of India, the Chief justice of the State and the Governor of the State. Consultation with these three functionaries is a condition precedent and a sine qua non to appointment. It is common knowledge that the proposal ordinarily emanates from the Chief justice of the High Court who forwards it to the Chief Minister The Chief Minister scrutinises the proposal and if he needs any clarification he must interact with the Chief justice. If he or the Governor has any suggestion to make or names to propose they may do so and forward the same to the Chief justice who may examine the suggestions and send his response. The Chief Minister must then forward the proposal, with the comments of the Chief justice, if any, in consultation with the Governor to the Minister of Law and justice in the Central Government. The Minister of Law and justice would then consult the Chief justice of India and the Prime Minister and then forward the papers with the advice to the President who will thereupon issue the warrant of appointment. On a plain reading of Article 217(1) it becomes clear that the President is empowered to make the appointment ‘after’ consultation with the three constitutional functionaries. The Article does not give any indication of any hierarchy among the three consultees. These three functionaries are those who are consulted, they have a consultative role to play in the appointment of a High Court Judge but the ultimate power of appointment rests in the President who must act in accordance with Art. 74(1) of the Constitution. The power conferred on the President is not an absolute. or arbitrary power but the same is checked, circumscribed and conditioned by the requirement of prior consultation with the three constitutional functionaries. The consultation must be complete, purposive and meaningful and cannot be treated as a mere idle formality. If the consultation is found to be a mere empty formality without effective exchange of views, the appointment would be vitiated and the whole exercise may ultimately turn out to be loves labour lost. Each of the three constitutional functionaries holds a high constitutional position and it is difficult to see how, in the absence of express words, it can be said that there is a hierarchy envisaged by the said provision. It must be remembered that the Chief justice of the High Court must be attributed intimate knowledge regarding the quality of legal acumen of the members of the Bar chosen by him for appointment. Since he has the opportunity to watch the performance of members of the Bar at close quarters, he is best suited to assess the worth of the candidate relating to his legal knowledge, acumen and similar other qualities, including his willingness to work hard and his temperament to discharge judicial functions. From the point of view great weight must be attached to the opinion of the Chief justice of the High Court. On other matters, such as, the antecedents of the individual, his political affiliations, if any, his other interests in life, his associations, etc., the executive alone may provide the information. Similarly, the executive would be able to collect information regarding the honesty and integrity of the individual and certain other related matters which may have a bearing on his appointment. Thus the opinion of the executive in this area would be equally important. From both these opinions would emerge the personality of the candidate proposed for appointment. The Chief justice of India being ‘pater familias’ of the judiciary in India would have the advantage of the views of both these consultees and, where necessary, he may also be able to interact with the Chief justice of the High Court as well as colleagues on the Supreme Court Bench from that court, if any, before formulating his view finally in the matter.