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India, 2010 |
Remedy worse than the malady Appointing
Chief Justices: The way out
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Merits and demerits of
‘outsider’ CJs
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Remedy worse than the malady
NOT so long ago, whenever the post of Chief Justice of a High Court fell vacant, whether on retirement, resignation, death or otherwise, the Judge next in seniority would take over as the Chief Justice of that High Court. This long established convention has now become a thing of the past.
The Chief Justice of a High Court is today appointed not from amongst Judges of the same court but from those of some other High Court, keeping in view, of course, their seniority. What presumably impelled this change was to ensure objectivity in the role that a Chief Justice is expected to play. Inherent in being the Chief Justice of a High Court is his position as leader of the court even though he is often described as being just the first amongst equals. Regardless of this, there are significant functions that lie exclusively within the Chief Justice’s domain which are only for him to perform. Included amongst them being to recommend persons for appointment as Judges of the High Court and to assign or list cases for hearing before particular Benches besides dealing with the administration of the High Court by virtue of being its head. It has also been seen that even in the matter of control which vests in the High Court over the subordinate judiciary which includes the cadre of District and Sessions Judges, the Chief Justice exercises considerable influence. The appointment of Chief Justices of High Courts from amongst Judges of other High Courts has been the norm now for almost three decades. The time has come to assess its impact upon the functioning of the judiciary. Has it fulfilled the objectives with which this policy was conceived and put into effect? These are issues that call for a critical appraisal. Experience shows that when a senior High Court Judge becomes eligible for consideration for appointment as Chief Justice, there is no scope for knowing whether he will get a chance to be Chief Justice as instances are not unknown of occasions when no Judge of a particular High Court was holding the post of Chief Justice of any court while at the same time there being two or more Judges of some other High Court functioning as Chief Justices. In other words, no Judge knows if at all he will be appointed Chief Justice and, if so, when and of which High Court. It is in such situations that the cult of sycophancy flourishes. Sycophancy, as is well known, can take various forms whether it is courtesy calls on those that matter, be they the Supreme Court Judges, the Union Law Minister or other influential persons or calling them to preside over functions like seminars, conferences or laying foundation stones and the like. Further, experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the state, its people, their customs and traditions or even his colleagues, the subordinate judiciary, including District and Sessions Judges and the members of the Bar and yet it is with their aid and advice that justice in the state is to be administered. No wonder, the Chief Justice has perforce to rely upon and follow the advice of some of his colleagues. How good or objective such advice is remains a variable factor. And yet, as pointed out earlier, his is the dominant voice in recommending persons for appointment as Judges of the High Court and also in allotting cases for hearing to particular Benches of the High Court. As regards the High Court Judges’ appointment, it has to be borne in mind that those appointed will often be dealing with the lives, liberty and property of persons and, what is more, it is from amongst them that tomorrow’s Chief Justices will be appointed. Clearly, much care and discretion is required in the matter of appointment of Judges. The Supreme Court in the Second Judges’ case (1993) has evolved the collegium system for appointment of High Court Judges. The Chief Justice of the High Court and two seniormost Judges constitute the collegium.The primary source for appointment of Judges is the High Court Bar Association. Almost 60 per cent of the total appointments are made from amongst the practicing lawyers in the High Court. It is thus of utmost importance that the most competent and legally sound lawyers with good practice and possessing unimpeachable integrity be considered for appointment. A Chief Justice with a year’s tenure or little more in a High Court cannot possibly form his own independent and informed opinion in the matter of selection from amongst the members of the Bar. He cannot justifiably undertake this exercise. He has thus perforce to fall back upon the opinion of his other colleagues in the collegium. Thus, the very purpose of having a Chief Justice from another state is frustrated. It makes us very sad to hear people referring to the collegium system as no more than a division of spoils implying that the way it works is “you take my man, I take yours” rather than selecting the most deserving. Turning to the other side of the senior Judge of each High Court being appointed Chief Justice on his predecessor vacating that post, it eliminates attempts at jockeying for the post of Chief Justice as it is known who will become Chief Justice and when. The flaw in this lies in the incumbent lacking or perceived to be lacking objectivity in performing his duties and functions of the office. It cannot be denied that caste, religious and regional factors have, unfortunately, been known to play their role even in the administration of justice. Though not expressly so stated, this appears to have been the underlying idea behind the practice of having Chief Justices from amongst Judges of other High Courts. Be that as it may, it would be fallacious to assume that all or most Chief Justices would be found suffering from such a malady. If a particular Judge is found to be functioning in an unbecoming manner, appropriate action, whether denial of elevation as Chief Justice, transfer to another High Court or something else could be considered but to resort to the wholesale exercise of having Chief Justices from other High Courts is clearly a remedy worse than the malady sought to be cured by it. Justice Kuldip Singh is a former Judge of the Supreme Court. All other writers are former Chief Justices of various High Courts
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Appointing Chief Justices: The way out
The article, “Remedy worse than the malady”, penned by a former
Supreme Court Judge and five retired Chief Justices of High Courts on
September 9, 2010, regarding the policy of appointing a Chief Justice of a High Court from outside the state has stirred an intense debate among the legal fraternity. Two eminent jurists give their view.
by Fali S. Nariman
The Calcutta Bar often recalls that one of their most notable Chief Justices in recent times was the late Justice P.D. Desai (1988-1991). He was a stranger to the Bengal Bench and Bar, having been transferred there from another place (Shimla) where he was also a stranger, and yet most popular. On transfer to Kolkata, P.D. Desai quickly found his feet in the court where Sir Elijah Impey (first Chief Justice of Bengal) sat; and the Bar took to him instantly. Ditto was the case with Chief Justice Chittatosh Mookerjee of the Bombay High Court (1987 to 1991), transferred from Calcutta. Grandson of one of India’s first Chief Justices
(Ashutosh Mookerjee) and son of another Chief Justice, Chittatosh had “good-judging” in his veins. In Bombay, he did what no indigenous Chief Justice had done before. When 200 members of the Bar went to him with a signed petition complaining about the errant behaviour of four sitting Judges of the Bombay High Court, he did not turn them away, nor did he accept at first blush all that they had to say. He took his time, made his own investigations, found that the allegations were largely true, and immediately stopped giving work to the four named Judges. This created a furore – both among the four, as well as in Delhi. The then Chief Justice of India
(Ranganath Misra) came down to Bombay and upbraided the Bombay Bar for having taken “the law into their own hands”. Chittatosh turned a deaf ear to the
CJI. And he told the complaining judges that they were free to file writ petitions against his administrative order under Article 226 of the Constitution. However, till the Court on the judicial side said he was wrong, the no-work order would remain. No one — not one of the four errant judges — had sufficient confidence in their own integrity to do what the Chief Justice said. The experiment of disciplining them, by not giving them work, actually worked. It has since become known as the Bombay Experiment — it toned up the Bombay High Court. There is however, much truth in the following passage (in The Tribune article): “experience has shown that the usual tenure of a Chief Justice coming from another High Court is rarely, if ever, of a long enough period for such Chief Justice, to really get to know the State, its people, their customs and traditions or even his colleagues, the subordinate judiciary, and the members of the Bar...” May I respectfully add: And do you know why? It is because the ‘outsider’ Chief Justice is constantly looking over his shoulder, expectantly waiting-in-the-wings to be pulled up! Generally (not always — there are notable exceptions) the outsider Chief Justice is not greatly interested in a High Court where he has never sat or
practised, and whose customs and traditions are not familiar to him. He uses the Chief Justiceship of a High Court only as an intermediate stop — to reach the (hopefully) ultimate destination: New Delhi. When this doesn’t happen (which is often) the High Court suffers. When it does happen, some other aspirant to the highest office takes his place — with like expectations. And the game of looking-over-one’s-shoulder goes on. All this is bad for judicial harmony, bad for the High Court, bad for the state: but the remedy for this lies not in revoking the policy of transfer but by levelling the retirement age of all Judges of the superior judiciary (High Courts and Supreme Court) to 65 years. Today High Court Judges retire at 62, Supreme Court Justices at 65. If and when the retirement age is levelled at 65 for all, a Chief Justice — especially of a large High Court — would have to be persuaded to join as a Judge of the Supreme Court; and with
levelling, members of the Collegium would not be troubled with 61-year-olds knocking at their doors for “elevation”! The working life of a Judge of the Supreme Court is not a bed of roses: the job requires intense concentration, extraordinarily hard work and robust good health. All High Court Judges are simply not cut out for it: there has to be a credible process of close scrutiny and selection: whether by the Collegium or by some other body or group which may be “invented” for the future – whoever it is, whichever that body, it must have the time and sufficient data (including inputs from responsible members of the Bar) to assess the relative worth and calibre amongst High Court Chief Justices, and High Court Justices. Regrettably, too often in my experience, able and prominent Chief Justices in High Courts have been overlooked in the past for reasons difficult to fathom — at least one of them is the co-author of the article under
review!
The writer is an eminent jurist
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by Justice A.R. Lakshmanan (retd) In
every forum, there is a long debate about introduction of judicial reforms. It is only being talked about and has not so far been implemented. The time has now come to give a serious thought to it. The 18th Law Commission of India has already given various recommendations on the subject of reforms in the judiciary, which subject is very dear to my heart. In particular, the Law Commission has submitted that a detailed report to the Government of India to reconsider the Judges’ cases I, II and III by its Report Nos. 2 and 4 giving ample reasons as to why the three judgments should be reconsidered. The word Collegium is nowhere present in the Constitution of India. It was first used by Justice P.N. Bhagwati in the majority judgment of S.P. Gupta vs. Union of India. The expression of Collegium and the Collegium of Judges has been freely used in Paragraphs 15 and 22 of the said judgment. The Collegium is now to consist of the Chief Justice of India and four seniormost Judges of the court and in the appointment of a High Court Judge, the Supreme Court Judge acquainted with that particular High Court should also be consulted raising the number to six. There is no indication as to what happens if there is no consensus among the consultees or if the majority disagrees with the Chief Justice of India. On a scrutiny of several constitutions of other countries, it may be seen that in all other constitutions, either the executive is the sole authority to appoint Judges or the executive appoints in consultation with the Chief Justice of the country. Our Constitution has followed the latter method. The Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of Judges of the Supreme Court and High Courts where both the executive and the judiciary have been given a balanced role. This delicate balance has been upset by the Second Judges’ case and the opinion of the Supreme Court in the Presidential Reference. It is time the original balance of power was restored. The Parliamentary Standing Committee on Law and Justice has also recommended the scrapping of the present procedure for appointment and transfer by Supreme Court and High Court Judges. In every High Court, the Chief Justice is from outside the state as per the Government of India’s policy. The seniormost judges who form the collegium are also from outside the state. Consequently, the Judges constituting the Collegium are not conversant with the names and antecedents of the candidates and, more often than not, appointments suffer from lack of adequate information. Two alternatives are available to the Government. One is to seek a consideration of the aforesaid three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments. The 18th Law Commission has submitted a detailed report suggesting various reforms in the judiciary, including the selection and appointment of High Court Judges. The High Court Judge has importance under our Constitution and the incumbent is often supposed to be not only fair, impartial and independent, but also intelligent and diligent. The general eligibility criteria is that a person should have put in 10 years of practice/service in the legal/judicial field. The post of Chief Justice should not be transferable. This practice was introduced in our country after the Emergency (1975-77) had been imposed. The Chief Justice who comes on transfer for a short period of six months, one or two years is a new man, alien to the place and passes his time somehow. He has to depend on others for policy decision in administrative matters. If the Chief Justice is from the same High Court, he will be in a better position to not only control the lower judiciary but also assist the persons both from the Bench and the Bar for elevation to the High Court. This will also curtail the unnecessary delay in filling up the vacancies in the High Court. If the functioning of the High Courts is to be improved, the policy of transferring the Chief Justice has to be given up forthwith. Now the time has come when this policy needs re-evaluation. Likewise, the policy needs to be changed for enhancing the retirement age of the High Court Judges and Supreme Court Judges at least by three years. Similarly, there is no uniformity in the age of retirement of the Judges of the tribunals in the country. The 18th Law Commission has also submitted a report recommending uniformity in the age of retirement of the Chairmen and the Members of the different tribunals at the age of 70 and 65 respectively. Considering the huge pendency of cases at all levels of judicial hierarchy, it has become necessary to increase the number of working days of the court. It has to be introduced at all levels of judicial hierarchy and it must start from the Supreme Court. The recommendations for an urgent and immediate review of the present procedure for appointment of Judges are being fortified by various legal luminaries and many retired Judges of the Supreme Court. The time has now come to reconsider these suggestions. The writer is a former Judge,
Supreme Court of India and Chairman, Law Commission of
India
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Merits and
demerits of ‘outsider’ CJs CJ is the very soul of the
High Court
THE practice of having Chief Justices from outside is having a negative effect. The Chief Justice is not a computer; he is the very soul of the High Court. A Chief Justice from outside is not even familiar with the names of the advocates practising in the High Court he has been transferred to. How does he function? A local Judge has his own advantages. He knows the Bar. And if there are misunderstandings with some of the members, he is in a position to informally sort them out in the larger interest. RAJINDAR SACHAR, Former Chief Justice, The system has failed to
select the best
THE entire transfer policy which originally had a purpose of having
one-third judges from some other high courts has totally collapsed and the
policy itself has come to an end. The appointment of Chief Justices was part
of the transfer policy.
The transfer of a CJ from one state to another for a very short period of
time is often engineered to bring certain people to the Supreme Court. This is
not a correct approach. Puisne Judges should be elevated in their own courts
as also to the Supreme Court. There may be puisne judges who are of
distinction who may often be overlooked and will not get a chance based on
both seniority and merit.
Transferred CJs are often unfamiliar with the state and sometimes lose
interest, waiting to be transferred to the Supreme Court. Therefore, in
qualitative terms, the best Judge familiar with the state is not appointed as
CJ of that state.
The appointment of CJs has become a merry-go-round which is entirely
whimsical and often punitive. This is unacceptable whatever is the laudable
purpose of the policy. The present system has neither elevated the best judges
to be in command nor produced the best catchment for selection to the Supreme
Court.
The best method is to equalise the retirement age of High Court and Supreme
Court Judges so that all this manipulation and mad rush come to an end.
Rajeev Dhavan, CJ from outside has no
enemies
THE transfer policy has both merits and demerits. The person appointed to
the post of Chief Justice of a High Court, who is an outsider, does not have
friends or enemies, nor does he have any pre-conceived notion. He would not
have any senior or a junior with whom he has worked. He does not have
relatives nor does he know the relatives of other judges.
While these are the merits, there are demerits too. For instance, the CJ
does not have personal experience of the members of the Bar practising in the
HC which is a handicap for recommending names for appointment as Judges. He
doest not know the district court judges — how good or bad they are.
The present system is not bad. The problem is one of working the system and
everything depends upon the people who are manning the system. In fact, many
times members of the Bar are very happy with the fact that the CJ is from
outside. He does not have any prejudices or pre-conceived notions about the
fellow colleagues, about members of the Bar and about the subordinate
judiciary. There are many outside CJs who have come very popular at the new
place.
Similarly, there are many CJs who have become unpopular. On the whole, this
system should be continued subject to improving upon the functioning of the
CJs at the new place.
P.H. PARIKH, Judicial Commission, the
only panacea
THE issue is complex. Outside CJs are not the most desirable thing. But in
the present situation, it is the least of the evils. If we do away with it, we
have a larger evil. The six Judges have a point that it is affecting the
working in some ways. As against this, having CJs from the same courts would
lead to odd situations and this has been experienced in the past.
My personal view is that the present system of appointments and transfers
may have shortcomings, but it is necessary until we have a proper judicial
commission which will deal with appointments, elevations to the post of CJs
and transfers and disciplinary action. We need that. Until we get a
constitutional body, this ad hoc arrangement will have to continue.
HARISH SALVE, Change the system of
appointments
I agree with the views of the former Judges that there is no need for
appointing CJs only from other High Courts. CJs from outside don't know
anybody in the court they are appointed and as such they cannot really control
the courts. They have to depend on the views of the fellow Judges and it takes
time for them to become familiar with the state of affairs.The whole system of
appointment of Judges and CJs must be changed. There must be a Judicial
Appointments Commission which must be independent of both the judiciary and
the government. The Commission should appoint these people, not the
Collegium of senior Judges as at present. The entire system must be
rationalised with proper criteria laid down allowing total transparency.
PRASHANT BHUSHAN, The system has merits and
demerits
THEappointment of outside CJs in the High Courts has certain advantages and
disadvantages too. An outsider will be above local politics, more objective,
will inspire more credibility and command greater credibility.But then, he
will not have the first-hand knowledge about the suitability of lawyers to be
considered for elevation to the Bench. He will not be familiar with the local
language and the practices and rules of the new High Court.
Unless he is assured of a reasonably long tenure, he cannot make an
effective contribution by providing necessary leadership on the administrative
side or on the judicial side. Therefore, it is necessary to ensure a minimum
tenure of about three years as CJ in the new High Court.To enable the CJ
acquaint himself with the new High Court, he should first be posted as a
puisne Judge at least for one year.
Transferring of CJs of doubtful integrity from one High Court to another
High Court should be stopped. Transfers may not help improve the level of
honesty. There should be a provision in the Constitution for not allowing a
Judge or a CJ against whom there are complaints which are under investigation
to function as a Judge. Such judges should be allowed to remain at home for
the period during which the investigation/inquiry goes on without any loss of
emoluments. The judiciary today suffers from an erosion of credibility. Every
step necessary to restore credibility should be taken.
P.P. RAO, A whiff of fresh air in
High Courts
THE infusion of outside judges has brought about a whiff of freshness to
the various high courts. No hard and fast rule can be prescribed whether the
Chief Justice must be from the same High Court or from outside. But one thing
is apparent that it doesn’t take an outside Judge too long to make himself
familiar with the local conditions prevailing in the High Court he has been
transferred to. It is for this reason that the practice currently being
followed is of bringing prospective Chief Justices to the High Courts where
they are likely to be elevated in the near future. The transfer of Acting
Chief Justice of the Guwahati High Court Justice Ranjan Gogoi to the Punjab
and Haryana High Court is an example.
R.S. CHEEMA, The issue deserves a close
look
IT was in the eighties that I first discussed the issue of having local
Chief Justices. Two senior-most Judges of the Punjab and Haryana High Court
had just returned to the city after stints as Chief Justices; and I happened
to ask them their opinion on elevating local judges, instead of importing them
from the High Courts of other states. Nearly three decades have lapsed since
then, but the response is still fresh in my memory. “It doesn’t help”
was the answer.
For the first time, a retired Supreme Court Judge and five Chief Justices
of High Courts have raised the issue at a public platform; and it should be
looked into. We have a huge pool of information available from retired judges
of the Supreme Court and Chief Justices of the High Courts. Without much ado,
an exercise should be launched to seek their opinion. And if they too are not
in favour of having Chief Justices from outside, we should revert to the old
order of elevating local judges.
M.L. SARIN, The question of commitment
Besides what is written in the article, “Remedy worse than the malady”,
the commitment a Judge would have for his court would be missing when he is
shifted to another court. Further, the local Judges have much better
understanding of how best to achieve an efficient justice delivery system for
their state.
R.K. CHHIBBAR, As told to R. Sedhuraman and Saurabh Malik |
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