Method Of Appointments Of Judges

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Law Commission Report

Method Of Appointments Of Judges

EIGHTI ETH REPORT

ON
THE METHOD OF APPOINTMENT OF JUDGES

1-315 LAD/NDI79



D.O. No. F. 2(12)/77-L.C.

Mr. Justice S. N. Shankar MEMBER
LAW COMMISSION
GOVERNMENT OF INDIA

'A' Wing, 7th Floor,
Shastri Bhavan, New Delhi-110 001.
August 10, 1979.

My dear Minister,

1 send herewith the Eightieth Report of the Law Commission relating to
the method of appointment of Judges. The subject was taken up by the
Commission for consideration, pursuant to a reference made by the Union
Government to the Commission. Details of the relevant correspondence are
given in the ﬁrst chapter of the Report.

The Report was mainly prepared by Mr. Justice H. R. Khanna, when he
was Chairman of the Commission. As he resigned before the Report could be
signed. the Report does not bear his signature. However, it may be stated that the
Report bears his full concurrence.

The Commission would like to place on record its appreciation of the
assistance rendered by Shri P. M. Bakshi, Member--Secretary of the Commission
in the preparation of this Report.

With kind regards,

Yours Sincerely,
Sd./-
(S. N. SHANKAR)

Shri S. N. Kacker,

Minister of Law, Justice & Company Affairs,

New Delhi.

(iii)



CONTENTS

Chapter Topic
1.

Introductory

2. Importance of the subject

3. Position in various countries

4. Historical background

5. Constitutional provisions and the present practice

6. Recommendations as to method of appointment of High Court Judges

7. Recommendations as to method of appointment as Supreme Court Judges

8. Conclusion

9. Summary of recommendations APPENDICES Appendix l----Circuit Judges Nomination Commission in U.S.A. Appendix Z--QucstioImaire issued by the Law Commission of India Appendix 3~Tabulation of replies to the Questionnaire Page 12 16 21 29 31 32 37 38 41 CHAPTER 1 INTRODUCTORY 1.1. According to letter dated 29th December, 1977, from the Secretary, Reference Ministry of Law, Justice and Company Affairs, to the Member-Secretary, Law to the Law Commission, the Prime Minister directed that the question of the appointment of Judges of the High Courts and the Supreme Court be examined. and the Law Minister was of the view that this question should be referred to the new Law Commission so that the Commission might study the problem in depth and explore the possibilities of improvement. The letter also made reference to a suggestion that there should be an informal Consultative Panel consisting. perhaps, of three retired Chief Justices of the Supreme Court. and pointed out that there might be constitutional dilﬁculties in having a Consultative Panel. There was also a reference in the letter to papers prepared by the Ministry on the subject.

1.2. On receipt of the letter, those papers were sent for and perused by the Law Commission. The Chairman of the Commission sent a letter on January 24, 1978, to the Minister of Law, Justice and Company Affairs. containing his view (with which the Member-Secretary broadly agreed) regarding various points. The views of the Chairman were incorporated in ﬁve paragraphs which read as under 2 "(D As the provisions of the Constitution stand at present, the appointment of an Informal Consultative Panel in connection with the appointment of Judges of the High Courts and the Supreme Court is of doubtful constitutional validity.

(2) In case it is decided to amend the provisions of the Constitution. we must guard against putting the whole matter of appointmem of Judges at large and thus open Pandora's box. The attempt should be to plug the loopholes in the present system with a view to eliminate favouritism or the im act of any political or party consideration in the matter of appointment rat er than to make any radical changes. Radical changes would be necessary if we ﬁnd the method devised by our Constitution for the appointment of Judges to be basically wrong and intrinsically defective. In case, however, we ﬁnd that the scheme of our Constitution for appointment of Judges is by and large sound but some defects or lacunae have come to surface in the actual workng of the scheme, in that event what would be required is not radical change but such modiﬁcation as may strengthen the scheme and eliminate the defects and lacunae. As at present advised, I think that the scheme for appointment of Judges in our Constitution belongs to the latter category. By and large, the method devised for this purpose by our founding fathers was well considered. Defects. no doubt, have been noticed in the working of the scheme, but they are of such a character as can be iectiﬁcd without throwing overboard the whole scheme. Efforts should, theretore, be made to rectify the defects and plug the loopholes.

"(3) After we have crossed the constitutional hurdles, the appointment of the Panel referred to in the above-mentioned letter, in my opinion, is desirable.

"(4) The Panel (or whatever be the name given to it: perhaps it would be better to call it Judges Appointment Committee or Judges Appointment Commission) should consist of :

(a) Chief Justice of India (ex-ofﬁcio);

(bl Minister of Law, Justice and Company Affairs (cx--ofﬁciol: and

The members of the Panel in category (c) should be appointed for a period of four years. To prevent appointment of persons who have, with the passage of time, lost touch with Judges and the lawyers, the persons belonging to category (c) should be normally those who have been on the Bench of the Supreme Court within six years of their appointment on the Panel. The suggestion that those on the Panel under category (c) should C0nSISt only of Commis-

sion.

Letter Chairman.

of 2 retired Supreme Court Chief Justices is not feasible because this would circumscribe the choice within a very narrow limit which would perhaps be not desirable.

"The sitting Chief Justice should be the Chairman of the Panel. The Panel should express its views to the Government about the suitability of persons to be appointed as Judges and Chief Justices of the High Courts and the Supreme Court. In case of any difference between the members of the Panel. the view of the majority should be considered to be the view of the Panel.

"The consultation with the Panel would be in addition to the present practice in accordance with the existing constitutional provisions. The consultation with the Panel would take place at the ﬁnal stage before the President is advised to appoint a person.

"One effect of the above' proposal would be that the Chief Justice of India would come into the picture at two stages: one, earlier in accordance with the constitutional provisions and the practice prevailing at present and, second time. as Chairman of the Panel. This cannot. in the very nature of things. be helped. The Chief Justice in the meeting of the Panel can apprise the other members of facts which might have come to his notice. He might also clarify some matters. It would be open to the Panel. in case they consider it proper in any particular matter, to informally consult any of the members of the Bar, including the Attomey-General, Solicitor-General and the Advocate-General.

"(SJ Apart from the above, I make the following suggestions :

(ii In case of the appointment of a Judge of the High Court, the Chief Justice of the High Court. before making recommendation. should consult his two seniormost colleagues, In the communication. containing the recommendation. the Chief Justice should state that he has consulted the two seniormost colleagues and what has been the view of each of them in respect of the recommendation. Normally, a recommendation in which the two seniormost colleagues concur with the Chief Justice, should be accepted.

(ii) Similar course should be adopted in case of the appointment of a Judge of the Supreme Court.

(iii) In the matter of the appointment of the Chief Justice of the High Court, no junior Judge should normally be appointed in supersession of the seniormost Judge.

(iv) If the seniorrnost Judge is considered not suitable for appointment as Chief .Justice. in that event, a Chief Justice or a Judge from another High Court should normally be appointed as Chief Justice.

(V) Apart from that also, we should more frequently appoint a Judge from outside' as Chief Justice of the High Court. The disadvantage of this proposal is that an outsider Chief Justice would not have full knowledge about the local talent. The advantage. however.

would be that he would not suffer from any personal likes or dislikes from which a local person having long association with others. might suffer. It should not also take the outsider long to acquire knowledge of the local talent. An outsider is also likely to bring greater detachment and dispassionate approach to the office of the Chief Justice. The advantages may thus outweigh the disadvantages.

"(vil We should also have' a convention according to which one-third of the Judges in each High Court should be from another State. This would normally have to be done through process of initial appointments and not by transfer. It would. in the very nature of things, be a slow and gradual process and take some years before we reach the proportion.

Once the principle of having a certain percentage of persons from outside the State as Judges of the High Court is accepted, the modalities to bring. about the desired result can be worked out. One suggestion can possibly be that every Chief Justice. while proposing the name of a person for appointment as High Court Judge should mention in the communication as to Whether that person agrees to be appointed outside the State. In the case of District Judges proposed to be appointed. the prospect of promotion would. in most cases. be enough inducement and thus outweigh the possible inconvenience of being 3 posted outside the State. As regards lawyers, some might consider it advantage- ous to be appointed outside the State so that after retirement they can resume, if they so desire, the practice in the State wherein they were practising earlier.

"(vii) In the matter of appointment of Chief Justice of the Supreme Court, the normal conventionshould be to appoint the seniormost judge.

There should be no departure from this convention unless such a course is approved by the Consultative Panel.

"The above proposals. which are of a broad character. would have the effect of not only eliminating political interference in the appointment of Judges. they would also more or less do away with the possibility of any Chief Justice bringing his personal likes or dislikes into the picture."

Towards the end of his lcftct', the Chairman wrote :

"In case, however. the entire: matter of appointment of Judges of the High Court and the Supreme Court. including the Chief Justices, is to be reopened. and it is desired that the matter be examined in detail and at greater length, in that event the matter would have to be considered in the light of the'- practice prevailing in different countries. The views of the Judges of the Supreme Court and the High Court as also of the members of Bar and other concemezl would have to be ascertained. A detailed report can thereafter be sent in the matter Some materal for this purpose ha:-2 aireatiy been collected."

1.3. On March , i978, the Minister of Law. Justice and Company Affairs Letter 01 wrote :1 lc"cr to the Chairman, Law Commission,' the material part of which the Minis- read-; as under :-- :9" °f o Chair "Thank you for your letter dated 24th January. £978. on the question man. of improvement of procedures 'or the appointment of Judges. You have mentioned in the concluding portion of your letter that if the matter is to be considered in detail it would have to be considered in the light of practice prevailing in different count-*1'es. I shall be grateful if the matter is considered in depth and a detailed reportifurnished to us.

2. I am also enc',osIn-:1 extracts from a memorandum received from the Bombay Bar Association. In this extract there is a suggestion for the establish- ment of a Judicial Appointments Commission to consider appointment to the office of the Chief Justice of India."

The present report is furnished in pursuance of the above letter.

1.4. It may be mentioned that during the period from March 1, 1978, the Suggestions Commission invited sugt.r,es-'ions from all the High Courts. the Supreme Court. invited from the State Governments and the Bar Associations about the appointment of judges. Various While some suggestions were received promptly. others took considerable time. g:3":"v:it_ Some suggestions were received in June 1979. Some Courts. and Governments? ed' also refrained from expressing their views. The questionnaire which was sent in this connection is printed as an Appendix to this Report} 1.5. As the *?ce'ipt of suggestions was going to take time, the Commission Repons during the period from March 1978 till the date of this Report dealt with other forwarded matters and sent Reports about them. Two of the important Reports sent by between this Commission during this period were the seventy-seventh Report which dealt'1'g;§"1;nd with delay and arrears in the trial courts and the seventy-ninth Report which present dealt with delay and arrears in High Courts and other appellate courts. Report.

1Letter of the Minister of Law, Justice and Company Affairs, 1st March, 1978. =E_ g. S. No. 87 in Law Commission ﬁle.

3See Appendix 2.

3-315 LADIND/79 Role of High Courts and Supreme Court.

' Importance of indepen-

dent judici-

airy.

Wrong appoint-

ments---

adverse effects.

CHAPTER 2 IMPORTANCE OF THE SUBJECT

2.l. Under the scheme of our Constitution, very important role has been assigned to the High Courts and the Supreme Court. Apart from the ordinary civil and criminal cases. as also cases under special laws, these Courts have to deal with vital issues of public importance involving interpretation of the Constitution. The citizens have also a right to approach the courts in case they ﬁnd that any act of the State to their prejudice contravenes the provisions of the statute or the Constitution. The variety of cases which come up before these Courts. the constitutional issuesésome having major political repercussions~-- -- dealt with by them, the duty laid upon them to provide protection against infringe- ment of the citizens rights, necessitate that the Judges who consitute these Courts should be of the right calibre. well-versed in the Constitution and the laws and known for their independence and integrity. For this purpose, it becomes essential that utmost care be taken at the time of initial appointment that the right type of persons are appointed as Judges. Criticism has occasionally been levelled that the selection has not been proper and has been induced by ulterior considera- tions. There are also complaints of executive interference in the appointment of Judges. Official spokesmen have also not been lacking, at least in one period of our history, when a plea was strongly put forward for the appointment of those who may be described as "committed Judges". Besides that. charges of lavouritism have been levelled not only against the Chief Ministers but also. on occasions, against Chief Justices.

2.2. It is needless to emphasise the importance of an independent judiciary. The basic postulate of democracy is that the adjudication of disputes both between citizen and citizen as also between the citizen and the State ought to proceed on the basis of law and not on extraneous considerations. Justice must be done. as the judicial oath has it, without fear or favour, affection or illwill. Citizens must have an assurance of equal treatment under the' laws. Such assurance can only emanate from a general feeling that the forum which is to adjudicate upon the rights and liabilities of parties would keep the scales even and be imbued with a sense of utmost impartiality. An independent judiciary is absolutely indispensable for ensuring the rule of law. Experience tells us that attempt to undermine the independence of the judiciary is preceded by an attack upon the judiciary. Such attacks are symptomatic of the feeling of indignation and chagrin arising out of the inability to control the judiciary. Such attacks would also reveal on occasions a design to browbcat and overawe the judiciary. '\s observed by a writer :' "[Andl in a free democracy like ours. the principal function of the law is to protect the weak from the strong!whether the strong take the shape of the Crown. feudal barons, iron-masters. mtiltination corporations----or trade unions. Whenever such groups begin to whine about the unfairness of the law or the judges. that is a Sure sign not that they are weak, but that their power has grown to a point where the law must begin to control it-- because in the interest of the community at large. they can no longer be trusted to exercise the necessary control themselves."

2.3. Wrong appointments of Judges have affected the image of the courts. They have also undermined the conﬁdence of the people in the courts. The stake of the community in the preservation of the courts as dispensers of justice is tremendous. Of the three organs of the State. the Legislature. the executive and the judiciary. the judiciary is considered to be the weakest. It has neither the power of the sword nor that of the purse. It has neither the financial resources nor can it by itself enforce its decisions. Even for such purposes it has to depend upon the other organs. Despite that, the courts, especially the superior courts, have enjoyed high esteem and commanded great respect of the people. This has been so because of the moral authority they would and because of the role they play as dispensers of justice in any dispute between the rich and the poor, the mighty and the weak, the State and the citizen. without fear 1Guardian. Gazette, extracted in (2nd August 1977), New Zealand Law Journal, 304.

or favour. Any undermining of the broad conﬁdence of the people in the courts or any detraction from the image of the courts as dispensers of even- handed justice poses a grave danger for the well-being and security of the society, for inevitably it must turn people to extra-legal methods for redress of their grievances and for settlement of their disputes. This would not only disturb the even ﬂow of the life of the community, but would also in the long run erode the democratic structure of out polity. Nothing rankles more in the human heart than a brooding sense of injustice. Any feeling or consciousness of the incapacity of the lawful agencies to afford relief for the wrongs and injustice, supposed and real, takes people's thought to dangerous channels and drives them to seek recourse to methods which are other than legal and smack of a state of jungle or the rule of tooth and claw. It is, therefore, essential to ensure that nothing is done to detract from the image of the courts and the broad conﬁdence of the people in the courts by wrong and undesirable appointments of judges.

2A. Nothing counts more for the judiciary than the conﬁdence it commands Conﬁdence As observed by a writer' while dealing with a great American Judge :-- command-

"What is it, indeed which makes a Judge? In the ultimate sense, the 'Pdd. .''Y "W greatest of judges are those in whom is placed the greatest conﬁdence as judges. 1" wary' And this conﬁdence goes to the judge who inspires in his brethren on the bench, at the bar, and among the public whom he serves, the conviction that the decision of every question, the weighing of every argument, the resolution ot every discretionary issue, will be made selﬂessly, fearlessly, wisely in so far as wisdom is given to him, and to the best of his understanding of the law which binds him as well as the litigants."

2.5. A person appointed not on merit but because of favouritism or other Res t f ulterior considerations can hardly command real and spontaneous respect of the the ptfacrp 0 bar. Anyone who is familiar with the working of the courts, can bear testimony to the fact that unless we have persons presiding over the courts who command real and spontaneous respect of the bar, the court proceedings are liable to run into diﬂiculties. In any system of dispensation of justice, much depends upon the personality of judges; the most well-drafted codes and laws would prove to be illusive if those concerned with construing and implementing those laws are lacking in right calibre. The presiding oiﬁcers' efﬁciency, tact, devotion, diligence, mastery of law or lack of them can make all the difference in the way the court proceedings are conducted and the cases are handled in courts. It is common experience for the members of the bar to ﬁnd that some case before one judge takes two hours and before another judge two days. Indeed, in quite a number of cases, the counsel feels more satisﬁed before the former judge. It would also not be correct to assume that judges who take less time are impatient or do not allow the counsel to put forth full arguments or present necessary facts. While striking a note of caution against the tendency to show undue hurry or impatience in disposal of cases, the Commission would point out that very often the length of time taken in the hearing of a case depends upon the up-take of the judge, his capacity to quickly grasp the points of law and facts and his ability to wade through the maze of facts and legal propositions to the crucial point.

Observa-

2.6. In the above context, it will be pertinent to repeat what was said by tions in V us in the 79th Report of this Commission?- 79", Re.

"3.l5. We are also of the opinion that every effort should be made to 9°"

see that the best persons available are appointed to serve on the High Court Bench. The overriding consideration for this purpose should be the merit of the individual. All other considerations must be subordinated to the paramount necessity of having the best available person for the post. Experience tells us that wrong appointments not only affect the image of the courts, they also undermine the conﬁdence in, and respect for, the High Court amongst the litigants, the members of the Bar and the general public. A wrong appointment also affects the quantum of output and the quality of disposal. Cases have also not been unknown when one wrong appointment has deterred competent persons from joining the Bench subsequently despite the entreaties of the Chief Justice.

|Charles A I-Iorsky, "Augustuz Noble Hand", in (1935) 68 Harvard Law Review, H18, lll9.

"'79th Report, paragraphs 3.15 and 3.16.

() "3.l6. Also, with a view to attracting persons of the right calibre to the Bench. something may have to be done to improve the service conditions. This might also take into account the beneﬁts, including pension, to which they would be entitled alter retirement. While it is true that the pay-scales of the judges cannot be wholly divorced from the general pattern of pay structure of the country at the higher levels, it has also to be borne in mind that bright and capable members ol the Bar by sticking to the profession can earn much inore. ln the eyes of sour: there may be a halo around the olliee of judgesnip. 'l he halo has, however, been gcttiiig dimmer and dimmer with the elllux oi' time, the rising spiral of prices and the disparity between the professional incinne and the salary of judges, We must itike note of the fact that some measures have recently been adopted to improve the service conditions oi" the High Court Judges by providing them rent-tree house and giving them a conveyance allowance. However, having regard to the existing tax laws, the steps taken in this respect may perhaps not provide adequate relief."

Earlier 2.7. Dealing with appointment of judges on consideration other than that Law, ?0m'of merit, the Law Coininission headed by Shri M. C. Se'alvad in its liourteenth '(')'t;::'_'r':,';_S Report observed' 2! tions. "The selection or a person on considerations other than of merit has far-reaching repercussions. Such a Judge would naturally not receive from members of the Bar, who would be no strangers to his capacity, the full measure ol co--operation which is needed for the proper administration of justice; not would a Judge so appointed generally have that amount of conlideiice in niinself which alone can contribute to the ellicient discharge of his duties. lhese circumstances are bound to allett adversely the quantity and the quaiity or the work turned out by such a Judge. lt is axiomatic that the lowering ol judicial standards must adversely ailcct the eﬂicient administration of justice. It has been stated in some qtiarters that the large the number of Judges, the tower is the proportionate eutptit of work. We are of the view that such a generalisation is not based on any acceptable data; but what seems to have led to lower output ol' work by Judges is the appoint- merit of persons who are not satisfactory. Whether a Judge of a High Court is selected from the Bar or trom the service, he should be the fittest person available to hold that ollice. If this cardinal principle is over-looked in making the appointment and persons of inditlerent capacity are appointed, the work turned out by such persons will naturally not come up to the proper standards. 11', tlierelore, there has been in some cases a proportionately lower output ol' work when 21 iarger number of Judges are appointed, the fall in the work is clearly attributable to the circumstances that the persons added were not titted for the oiiice. lite inevitable etlcct of appointments of this character to hie High Court Bench on the disposal oi work and the mounting arrears is obvious."

Effect of 2.8. ilihe ellecl. of \-yrong or improper' apponnnient .3» ii.-it not only lor the wrong time being; its repercussions are tell long thereaﬁer. lt also quite often has the appoint' effect of dissuading oher suitable pci'soiis troin stihsequently accepting olfers "'°"" for appointment. 1:, therelore. bccouie». cifacllllili to eiinnitate. as far as pOSSlbl6. the chances of tavouritisin and plug other loopholes with a view to ensure that in future persons of the l'lgi1i t.-aiibze ar-.' appointed and that the consideration which might weigh should he oi" merit alone.

'i4th Report, Vol. 1. page 70, paragraph 9 CHAPTER 3 POSITION IN VARIOUS COUNTRIES

3.]. The provisions as to the appointment of Judges in the other countries Ana]y5i5_ alford some interesting material. It would be tedious to discuss here the position in each country in this regard. But a few major countries may be dealt with.

3.2. Under the constitutional scheme in several countries, the appointment Appoint- of judges to the superior courts is made by the Government in the name of the mm' by Head of the State, and there is no special provision for consultation with any gig'! °f other person or authority. In this category fall Australia'-2, Canada and the ' ' United Kingdom--to mention some of the principal examples in the Common- wealth.

3.3. In the United Kingdom, all the superior J udges,--that is to say, the United Judges of the House of Lords (the Lords of Appeal, who sit in the House of Kingdom- Lords), Judges of the Court of Appeal, Judges of the High Court, Circuit J udges and Recorders,----are appointed by the Crown acting on the advice of the appropriate Minister. The Prime Minister nominates the Law Lords, the Lord Justices of Appeal, the Lord Chief Justice, the Master of the Rolls and the President of the Family Division.3 It is commonly assumed that the Prime Minister is guided in this respect by the Lord Chancellor.4 The Lord Chancellor nominates ordinary (puisne) Judges of the High Court, Circuit Judges, Recorders and Deputy High Court and Circuit Court J udges.4 3.4. In Australia} Judges of the High Court and other Courts created by Ausn-ana_ Parliament shall be appointed by the Govdmor--General-in-Council and shall not be removed except by the Governor-General-in-Council on an address from both the Houses of Parliament in the same' session praying for such removal on the ground of misbehaviour or incapacity.

3.5. Each State in Australia has a Supreme Court and a system of sub- Australia- ordinate courts with a variety of names. A distinguished writer" has stated the State position relating to the appointment of judges in these terms :---- COWS-

"Supreme Court judges, like High Court justices are appointed by the executive] but can be removed only by the respective parliaments ............. .. No important party has ever advocated elective judges or magistrates."

As to State Courts in Australia, it has been stater'"-- --

"State courts are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the court itself, and the organization through which its powers and jurisdictions are exercised."

3.6. Recently, Sir Garﬁeld Barwick, Chief Justice of Australia, made the Australia_ following suggestion9 as to the manner of selection of the judiciary and as to views of the need of restraint upon executive appointment of the judiciary :-- Sir Gar-

"In my view, the time has arrived in the development of this community Bar- and of its institutions when the privilege of the Executive Government in this area should at least be curtailed. One can understand the reluctance of a government to forgo the element of patronage which may inliere in the appoint- ment of a judge. Yet I think that long term considerations in the administra- tion of justice call for some binding restraint of the exercise of this privilege.

'Section 72, Commonwealth of Australia Constitution Act, 1900, 'See, however. paragraph 3.6, infra as to Australia.

"Jackson, Machinery of Justice in England (1977). Pages 859-460. 'Jackson-, Machinery of Justice in England (1977). page 460.

5Section 72, Commonwealth of Australia Constitution Act. I900.

6Geoﬂrey Sawar, Australian Government Today, Fifth F.dition~revised (1957), page 42.

7Note the plural.

"Le Mcsurier V. Cannon, (1929) 42 C.L.R. 481, 495-496.

9Sir Garﬁeld Barwick, "The State of the Australian ludicature" (July, 1977) Vol. 51, Australian Law Journal, 480, 494 (19th Australian Legal Convention, Sydney).

Canada.

U.S.A.-

Supreme Court.

U.S.A.----

Court of Appeal.

U.S.A.-

State Courts.

I make bold to suggest that, in all the systems of Australia where appointments to judicialofﬁce may be made by_ Executive Government, there should be what is known in some systems as a_ judicial commission--but the nomenclature is un1mportant--a body saddled with the responsibility of advising the Executive Government of the names of persons who, by reason of their training, knowledge, experience, character and disposition, are suitable for appointment to a particular oﬂice under consideration. Such a body should have amongst its personnel judges, practising lawyers, academic lawyers and, indeed, laymen likely to be knowledgeable in the achievements of possible appointees. Such a body is more likely to have an adequate knowledge of the qualities of possible appointees than any Minister of State is likely to have. Some may prefer to pass the actual choice of appointees to such a body: others may prefer that recommendations only may be made by it; yet others may prefer to require the submission by that body of a short panel of names, outside of which the Executive Government may not go: or may not go without public explanation of the reason for doing so.

"It is not for me to express here my own preferences. It should sulﬁce that ] say with a degree of emphasis that the time is here when some restraint should be placed upon and accepted by the Executive Government in its choice of judicial appointees."

3.7. In Canada,' judges of the superior courts are appointed by the Governor General and hold office during good behaviour, but are removable by the Governor General on the address of the Senate and House of Commons.' According to a statutory provision} "the Supreme Court shall consist of a Chief Justice to be called the Chief Justice of Canada and eight puisne judges who shall be appointed by the Governor-General-in-Council by letters patent under the Great Seal".

3.8. In the U.S.A., the selection of the Chief Justice and Judges of the Supreme Court of the United States is made by the President and is required to be approved by the Senate} 3.9. As regards (Federal) Courts of Appeal in the U.S.A., the Constitution requires the same procedure.' Recently, by Presidential Order. a "Circuit Judges Nomination Commission" has been established to supply the President with names of the "best qualiﬁed persons for appointment to the U.S. Courts of Appeal". Details of the relevant provisions of the Order will be found in an Appendix."

3.10. As regards judges of superior courts in States in the U.S.A., the position has been thus stated in a fairly recent study:5 "Judicial Selection in the States In the states, judges are selected by election, by appointment, or by a combination of both methods. The practice of electing judges was one of the bequests of Jacksonian democracy. Prior to 1832 only one state elected all its judges, but every state admitted to the Union from 1846 to 1959 has provided for the election of all or most of its judges. In 1971 election was the principal method of judicial selection in twenty-seven states (on partisan ballot in fourteen states and nonpartisan in thirteen); the legislatures elected the judges in four states; there was executive appointment in nine states; and a 'merit plan' existed in eleven states.

"The merit plan, also called the Missouri plan, is a compromise between appointing and electing judges, Under this arrangement several commissions are established to nominate judges at dilferent court levels. The appellate commission consists of seven members; the chief justice of the' state, three lawyers elected by the state bar association, and three persons appointed by 'Sections 96 to 99, British North America Act, 1867. 2Revised statutes of Canada (1970), Chapter S-19, section 4; Legal System (1977), page 107.

"Constitution of U. S. A., Article II, Section 2 and Article III, section 1. 'See Appendix 1.

5Mllrpl1y & Pritchett, Courts, Judges and Politics (1974) page 163.

Gall, The Canadian 9 the govemor, none of whom can be a public office holder or an official of a political party. With the exception of the chief justice, these members serve for six years, with their terms staggered so that two retire every other year. The commission nominates three men for each judicial vacancy. The governor must appoint one of the three. At the ﬁrst election after the new judge has served for twelve months, his name is put on the ballot wjth the question whether he should be retained in oﬂice. If elected, he serves a deﬁnite term---twelve years for an appellate judge, six years for a trial judge. At the end of this term he is eligible for re-election. Whether the Missouri plan really recruits judges on the basis of merit is open to question. (Reading 6.8). What is clear is that selection is no less political although the political arena tends to be that of bar associations, rather than a public forum in which citizens have a check if not a voice."

3.11. In the U.S.S.R., the Constitution of 1977 provides as follows :-- USSR "Article 151. In the U.S.S.R. justice is administered only by the courts.

"In the U.S.S.R. there are the followinsz courts: the Supreme Court of the U.S.S.R.. the Supreme Courts of Union Republics, the Supreme Courts of Autonomous Republics, Territorial, Regional, and city courts, courts of Autonomous Regions, courts of Autonomous Areas, district (city) people's courts, and military tribunals in the Armed Forces.

"Article 152. All courts in the U.S.S.R. shall be formed on the principle of the electiveness of judges and people's assessors.

"People's judges of district (city) people's courts shall be elected for a term of live years by the citizens of the district (city) on the basis of universal, equal and direct suffrage by secret ballot. People's assessors of district (city) people's courts shall be elected for a term of two and a half years at meetings of citizens at their places of work or residence by a show of hands.

"Higher courts shall be elected for a term of ﬁve' years by the corresponding Soviet of People's Deputies.' "The judges of military tribunals shall be elected for a term of ﬁve' years by the Presidium of the Supreme Soviet of the U.S.S.R. and people's assessors for a term of two and a half years by meetings of servicemen.

"Judges and people's assessors are responsible and accountable to their electors or the bodies that elected them, shall report to them, and may be recalled by them in the manner prescribed by law.

"Article 153. The Supreme Court of the U.S.S.R. is the highest judicial body in the U.S.S.R. and supervises the administration of justice by the courts of the U.S.S.R. and Union Republics within the limits established by law.

"The Supreme Court of t're U.S.S.R. shall be elected by the Supreme Soviet of the U.S.S.R. and shall consist of a Chairman, Vice-Chairman, members, and people's assessors. The Chairmen of the Supreme Courts of the Union Republics are ex-ofﬁcio members of the Supreme Court of the U.S.S.R. _ "The organisation and procedure of the Supreme Court of the U.S.S.R. are deﬁned in the law on the Supreme Court of the U.S.S.R. "Article 154. The hearing of civil and criminal cases in all courts is collegial: in courts of first instance cases are heard with the participation of people's assessors. In the administration of justice people's assessors have all the rights of a judge.

"Article 155. Judges and people's assessors are independent and subject only to the law.

"Article 156. Justice is administered in the U.S.S.R. on the principle of equality of citizens before the law and the court."

3.12. In France, there is provision for consultation by the head of the France, State with a high-powered body, which advises the head of the State on the appointment of judges of the superior courts.

The provisions of the Constitution of the Fifth French Republic (1958), appearing in the Title relating to "Judicial Authority", are quoted below in so far as they are material :2 'As to Soviets of People's Deputies. see Article 89.

'Constitution of the Fifth French Republic (1958), Title VIII, Articles 64 and 65.

West ('rer-

many.

Japan.

Certain Common-

wealth countries providing for Judicial Service Commis-

sion.

p"/lrlicle 64. The President of the Republic the independence of the judicial authority.

"He shall be assisted by the High Council of the Judiciary.

"Arti'cle_65. The High Council"of"tl'i<:_ judiciary shall be presided over by the Pl'€Sld€nt.Of the Republic. The Minister of Justice shall be its Vice President ex-oﬂ'i('i0. He may pre-ide in place of the President of the Republic.

"The Hivh Council shall, i:i addition, include nine members appointed by the Presitlcnt of the Republic in conformity with the conditions to be deter- 'ii'n:d by an organic law.

High Council of the Judiciary shall present nominations for judges of il_i~;> Ct'.=lil'l of Cassation (Supreme Court of Appeal) and for First Presidents of ('nuns of Appeal. It shall give its opinion, under the conditions to be determined by an organic law, on proposals of the Minister of Justice! relative to the nomination of the other judges. It shall be consulted on questions of pardon under conditions to be determined by an organic law.

."The High Council of the Judiciary shall act as a disciplinary council for judges. 'In such cases, it shall be presided over by the First President of the Court of Cassation."1 3,l3. In (West) Germany, we ﬁnd two separate methods of appointment of judges prescribed by the Constitution. As regards the Federal Constitutional Court,3 which is not an ordinary court of appeal but deals only with questions relying to interpretation of the Constitution and the validity of laws. the C0ﬁ'1lllllilOtl provides as follows 2' "94(l). The Federal Constitutional Court shall consist of federal judges and other nlCnll')'.'TS. Half of the members of the Federal Constitutional Court sha-'=1 be elected by the Bundcstag and half by the Bundesrat. They may not belong to the Bundestag. the Bundesrat, the Federal Government, or the corresponding organs of a Land."

Brrsidcs the F-3dei'al Constitutional Court, there is the Supreme Court of Germany established "to preserve the uniformity of federal law", by deciding cases in which the decision is of fundamental importance for the uniformity of the administration of justice by the high federal courts. The constitutional provisions as regards the appointment of judges of this Court read as follows3:--

"The judgcs of the Supreme Federal Court shall be selected jointly by the Federal Minister of Justice and a committee for the selection of judges consisting of the Land Minister of Justice and an equal number of members clcstcd by the Bundestag."

3.14. The position in Japan is as follows?' The Judges of the Supreme Court of Japan are appointed_by the Cabinet, except the Chief Justice (described in the Constitution as "Chief Judge') who is formally appointed by the Emperor after nomination by the Cabinet.

The Constitiition further provides--

"The appointment of the judges of the Supreme Court shall be reviewed bv the people at the ﬁrst general election of members of the House of Repre- sentatives following their appointment. and shall be reviewed again at the ﬁrst general election of members of the House of Representatives after a lapse of ten (10 years) and in the same manner thereafter."

"In cases mentioned in the foregoing paragraph, when the majority of the voters favours the dismissal of a judge. he shall be dismissed."-"

3.15. Equally interesting are the provisions in the Constitutions of some countries that have newly acquired independence from British rule--countr_ies which were previously British colonies. In these countries, Judicial Service Commissions are provided for in the Constitution, Their functions, in general. are to give advice on the appointment of superior Judges (other than_the Chief Justice and the President of the Court of Appeal, if any), and to exercise control in regard to inferior Judges.

shall be the guarantor of 1See also Constitution of Italy. Articles 104-105.

3Article 94(1), Basic Law of the German Federal Republic. . 3Article 95(3). Constitution of the German Federal Republic. 'Articles 6 and 79. Constitution of Japan.

'Constitution of Japan, Article 72(2), (3).

ll d'I'he Constitution of Malawi'-1 aﬁords an example. The relevant provisions rca :

"63. (1) The Chief Justice shall be appointed by the President.

_ "(2) The Judges shall be appointed by the President after consultation with the Judicial Service Commission.

"67. (1) There shall be a Supreme Court of Appeal for Malawi which. subject to the provisions of this Constitution, shall have such jurisdiction and powers as may be conferred on it by this Constitution or by any other law.

(2) The Justices of the Supreme Court of Appeal shall be--

(a) the Chief J ustice, "as President";3

(b) such number of Justice of Appeal (if any) as may be prescribed by Parliament; and

(c) the other Judges of the High Court for the time being holding oﬁioe.

- - - o ~ - - - - . . a - ~ . o . . . . - - - - . ..

"7l. There shall be a Judicial Service Commission which shall consist of--

(a) the Chief Justice, who shall be Chairman;

(b) the Chairman of the Public Service Commission or such other member of that Commission as may for the time being be designated in that behalf by the Chairman of that Commission; and

(e) such Justice of Appeal or Judge as may for the time being be desig-

nated in that behalf by the President acting after consultation with the Chief Justice."

3.16. The earliest precedent for Judicial Service Commission is to be found (Sﬁ Link') in the erstwhile Constitution of Ceylon (now Sri Lanka).4 C'y'°"' According to articles 52 to 56 of that Constitution, the Chief Justice and puisne judges of the Supreme Court and the Commissioners of Assize were required to be appointed by the Governor-General, while other judicial oﬂicers were required to be appointed by the Judicial Service Commission consisting of the Chief Justice, a judge of the Supreme Court and one other person.

3.17. Then, the Constitution may contemplate that the head of the State Consult!!- may consult a body which does not consist entirely of the judiciary, and which 3%'; """' is also not a branch of the Legislature.' 504;"

3.18. It would be useful to analyse the material contained in the above Analyil. discussion. The various provisions fall into the following broad groups :--

'(a) no special provision for consultation before appointing judges:

(b) provision for consultation with the Chief Justice or other members of the judiciary before appointing judges;

' (c) provision for consultation with a judicial council, judicial service com- mission or other similar body;

((1) provision for consultation with the legislature, or a body elected by it. or approval of the legislature;

(e) provision for consultation with, or approval of. an agency not falling within the above category; and (0 election of the Judges.

'Constitution of Malawi, Articles 63 , 67 and 71.

'See also Constitution of Uganda, Articles 90, 91, 97; Jamaica, Session ll:

Kenya. Section 174 (1); Malaysia, Article 138; Seirra Leone, Sections 76(1), (2). 80(1), (2) and 85; Trinidad, Sections 75 and 79.

'Deleted by the Constitution of Malawi (Amendment) Act No. 39 of 1966.

"Paragraphs 52(1), 53, 54, 55. 56, Ceylon Constitution Order in Council. Pensless Constitutions of Nations, 2nd Ed. (1956), Vol, 1, pages 464, 465. 'Constitution of Nepal, Articles 69 , 23(1) and 23(2).

3-315 LAD/ND/79.

CHAPTER 4 HISTORICAL BACKGROUND I. GOVERNMENT OF INDIA ACT, 1935 Govcrn- 4.1. The Government of India Act, 1935 contained no speciﬁc provisions mall?' Agtf about the persons who had to be consulted before appointment of Federal Court I"19§'5_ 'Judges and High Court Judges. Sub-sections (2) and (3) of section 200 of the Act, which dealt with appointment of Federal Court Judges, provided :1 "(2) Every judge of the Federal Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains age of sixty-ﬁve years :

Provided that --

(a) a judge may by resignation under his hand addressed to the Governor-

General resign his office;

(b) a judge may be removed from his oﬂice by His Majesty by warrant under the Royal Sign Manual on the ground of misbehaviour or of inﬁrmity of mind or body, if the Judicial Committee of the Privy Council, on reference being made to them by His-Majesty, report that the judge ought on any such ground to be removed.

(a) A person shall not be qualiﬁed for appointment as a judge of the Federal Court unless he--

(a) has been for at least ﬁve years a judge of a High Court in British India or in a Federal State; or

(b) is a barrister of England or Northern Ireland of at least ten years standing, or a member of the Faculty of Advocates in Scotland of at least ten years standing; or

(c) has been for at least ten years a pleader of a High Court in British India or in a Federal State or of two er more such Courts in succession :

Provided that --m

(i) a person shall not be qualiﬁed for appointment as Chief Justice of India unless he is, or when first appointed to judicial office was. a barrister, a member w' the Faculty of Advocates or a pleader; and

(ii) in relation to the Chief Justice of India, for the references in paragraphs (b) and (c) of this sub-section to ten years there shall be substituted references to ﬁfteen years.

In computing for the purposes of this sub-section the standing of a barrister or a member of the Faculty of Advocates, or the period during which a person has been a pleader, any period during which a person has held judicial office after he became a barrister, a member of the Faculty of Advocates or a pleader, as the case may be, shall be included."

4.2. Sub-sections (2) and (3) of section 220 of the above-mentioned Act related to the appointment of High Court Judges, and were in the follo ing terms :2 "(2) Every judge of a High Court shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold oﬂice until he attains the age of sixty years :

Provided that--

(a) a judge may, by resignation under his hand addressed to the Governor resign his oﬂice;

"(b) a judge may be removed from his ofﬁce by His Majesty by warrant under the Royal Sign Manual on the ground of misbehaviour or of inﬁrmity of mind or body if the Judicial Committee of the Privy Council, on reference being made to them by His Majesty, report that the judge ought on any such ground to be removed.

'Section 200(2) and 200(3), Government of India Act, 1935. 'Section 220(2), and (3), Government of India Act, 1935.

I3 _ _(c) _the oﬂice of 'a judge shall be vacated by his being a ' I ' _ by His Majesty to be a judge of the Federal Court or of another 'gh _ urt.

Iﬁghtygguﬁ E3-gsnhzhall not be qualiﬁed for appointment as a judge 9f 3

(a) is a barrister of England or Northern Ireland. of at least ten Yﬁars standing, or a member of the Faculty of Advocates in Scotland of at least ten years standing, or (_b) is a member of the Indian Civil Service of at least ten years standing, who has for at least three years served as. or exercised the powers Of. a district judge; or to) has for at least ﬁve years held a judicial oﬂice in British India not inferior to that of a subordinate judge, or judge of a small cause court; or "(d) has for at least ten years been a pleader of any High Court, or of two or more such Courts in succession : ' Provided that a person shall not, unless he is, or when ﬁrst appointed to judicial oiﬁce was, a barrister, a member of the Faculty of Advocates or a pleader, be qualiﬁed for appointment as Chief Justice 013 any High Court constituted by letters patent until he has served for not less than three years as a Judge of a High Court. ' In computing for the purposes of this sub-section the standing of a barrister or a member of the Faculty of Advocates, or the period during which a person has been a pleader, any period during which the person has held judicial ofﬁce after he became a barrister, a member of the Faculty of Advocates, or a pleader, as the case may be. shall be included.

II. CONSTITUENT ASSEMBLY AND ITS COMMITTEES 4.3 There was considerable discussion in the Constituent Assembly, and Dgscw,-,,,n -- 111 the Various Committees which were appointed in connection with the appoint-in the ment of Judges and other allied matters. Almost simultaneously with the?-itucnit A appointment of the Union Constitution Committee, a Special Committee1 was A35°".1b1Y set up to consider and report on the constitution and powers of the SupremeE0',J1's',fi':l'_ Court. This Committee consisted of S. Varadachariar, former Judge of thetion com. Federal Court. Alladi Krishnaswaini Ayyar, B. L. Mitter, K. M. Munshi (allmittee, and three of them distinguished advocates) and B. N. Ran, the Constitutional Adviserad 1109 who had also earlier held high judicial oﬂice. This Committee, in its report on sent on May 21, 1947, apart from; dealing with the jurisdiction of the Supremesupwn, Court, suggested two alternative procedures for appointment of Judges to -theCourt. Supreme Court. The Committee was emphatic in its opinion that the appoint- lneiit of Judges should not be left to the unfettered discretion of the executive.

one suggested procedure was that for the appointment of puisne judges, the President should. in consultation with the Chief Justice of the Supreme Court. make .3 recommendation and such recommendation should be conﬁrmed by at least seven out of a panel of eleven persons composed of some of the Chief Justices of the High Courts, members oil the Central Legislatures and some law cﬂicers of the Union. The alternative suggestion was that the panel should put forward three names for every vacancy, leaving it to the President to make the choice in consultation with the Chief Justice of the Supreme Court. The same procedure with the necessary modiﬁcation that the Chief Justice would not be consulted was also to apply in the matter of the appointment of the Chief Justice of the Supreme Court. In order to ensure that the panel would be independent and would command conﬁdence, it was suggested that the panel should not be an ad hoc body but should function for a period of ten years.

The extract from the report of this Committee in this respect reads :

"We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted. One method is that the President should. in consultation with the bid hoe Committee on Supreme Court.

'Ad hoc Cornmitteepn Supreme' Court (2lst May, 1247), Report, being __the a to the Report of the Union Constitution Committee; B. Shiva Rae, The Framing 0 Indian Cunstiuitioa (1967). Vol.2. D8835 587. 59°-

Memoran-

dum Constitu-

Chief Justice of the Supreme Court (so far as the appointment of pujsne Judges is concerned), nominate a person whom he considers ﬁt to be appointed to the Supreme Court and the nomination should be conﬁrmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the Constituent units, some members of both the Houses of the Central Legislature and some of the Law Oﬂicers of the Union. The other method is that the panel _of 11 should recommend three names out of which the President, in consultation with the Chief Justice, may select a Judge for the appointment. The same procedure should be followed for the appoint~ ment of the Chief Justice, except, of course, that in this case there will be no consultation with the Chief Justice. To ensure that the panel will be both independent and command conﬁdence. the panel should not be ad hoc body but must be one appointed for a term of years.

4.4. The Constitutional Adviser,' in his memorandum dated May 30, 1947 of suggested that the appointment of Judges should be made by the President with the approval of at least two-thirds of the Council of State. The Council of lions! Ad' State, according to him, was to be a body in the nature of a Privy Council for visa".

Drafting Committee.

Dr. _ kat'I view.

Amber!-

advising the President on certain matters on which decisions were required on independent non--party lines. The Council of State was to include the Chief Justice of India among its members and its composition was to be such as to secure freedom from party bias. Such a Council of State, it was suggested by the Constitutional Adviser, would be a satisfactory substitute for the panel recommended by the Special Committee?

4.5. The Union Constitution Committee} did not accept the proposal of the Constitutional Adviser for setting up of a Council of State, and suggested that the procedure for the appointment of judges should be that the President should consult the Chief Justice and such other judges of the Supreme Court as might be necessary.

4.6. It may be appropriate at this stage to refer to an amendment suggested by the Drafting Committees' Accoring to the suggestion, an Instrument of Instructions was to be issued to the President. One of the provisions proposed to be included in the Instrument of Instructions was the setting up of an Advisory Board consisting of not less than 15 members of Parliament. The procedure contemplated for the appointment of Supreme Court Judges was:5 "(1) in the case of the Chief Justice of India, the President would consult the Judges of the Supreme Court and the Chief Justices of all High Courts other than those in Part III States (the Indian States); in the case of other judges he would consult the Chief Justice of India, the other judges of the Supreme Court and the Chief Justices of the High Courts, other than those in Part III States;

the recommendations of the judges so consulted would be placed before the Advisory Board for its advice. The functions of the Board were consultative and the ﬁnal decision rested with the execiitive, but in any case where the Board's advice was not accepted it could insist that its dissent should be recorded and placed before Parliament with a memo- randum explaining the reasons for not accepting the advice tendered by the Board."

4.7. In the course of discussion which followed in the Constitutent Assembly, Dr, /smbedkaré dealt with two suggestions. The ﬁrst suggestion was that the appointment of Judges of the Supreme Court should be with the con- currence of Chief Justice. The second suggestion was that the approval of Parliament or, alternatively, of the Council of States would be necessary to these appointments. Dr. Ambcdkar did not accept any of these suggestions. According to him, to make appointment subject. to the veto_ of Parliament would be cumbersome and might involve the possibility of political pressures being exerted. He also expressed the view that to give any mdividual,--~even an (2) . (3) 'Constitutional Adviser, Memorandum dated May 30, 1947; B. Shiva Rate, The Ftaminﬂ of India': Constitution, Main Volume (1968), pages 338, 339, 485. 'Para. 4.3, supra, _ _ , 'Union Constitution Committee, Report, Clause 18; B. Shiva Rao. The Framing of India's Constitution (1967), Vol. 2, pages 583, 600; Main Volume, pages 335, 383,' 485. , 'Drafting Committee (February 1948), Draft Constitution Article 103(2); B. Shiva Run, The Framing of India's Constitution (1967), Vol. 3.

' In; Shiva Rao (1968). Main Vol., page 491.

'Dr. Ainbedkar in the C. A. Debates, Vol. 8, pages 257-260 at page 258 (24th May. 1943)-

eminent person like the Chief Just_ice,--a power of veto might be a dangerous proposition. Dr. Ambedkar in this context observed:

"With regard to this matter, I quite agree that the hpointuaised is of the greatest importance. There can be no diiference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could secured. There are two diiferent ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown. without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for in- stance, oﬁices of the Supreme Court as well as other oﬂices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me. in the circumstances in which we like today, where the sense of responsibility has not grown to the same extent to which We find it in the United States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say. merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being inﬂuenced by political pressure and political con- siderations. The draft article, therefore. steers a middle course. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the inﬂuence of the Legisla- ture. The provision in the article is that there should be consultation of persons who are, ex hyporhesi, well qualiﬁed to give proper advice in matters of this sort and my judgment is that this sort of provision may be regarded as sulﬁcient for the moment.

"With regard to the question of the concurrence of the Chief Justice. it seems to me that those who advocate that proposition seem to rely impli- citly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings. all the sentiments and all the prejudices which we as common people have; and 1 think to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I. therefore. think that that is also a dangerous proposition."

III. HIGH COURT JUDGES 4.8. Regarding the appointment of High Court Judges, there was general am, can agreement that as in the case of Supreme Court Judges, the appointment of Jndpi. Judges of the High Court should also not be left to the unfettered discretion of the executive government. The Constitutional Adviser, in his memorandum of May 30, 1947 on the Provincial Constitution} included a general suggestion that provisions of the Government of India Act, 1935 regarding High Court:

might be adopted with necessary changes. On the speciﬁc question of ap int» ment of High Court Judges, his proposal was that the High Court Judges s ould be appointed by the Governors with the approval of two-thirds of the member:

of the Council of State?

4.9. The Provincial Constitution Committee3 accepted this proposal. In pfovindd.

the meantime, the proposal to set up a Council of State was abandoned. The Constitu- Committee accordingly proposed that the Judges of the High Court should 69:! Car be appointed by the President of the Federation in consultation with the Chief """°"

Justice of the Supreme Court, the Governor of the Province and the Chiet Justice of the High Court. except when the Chief Justice himself was to be ' appointed.' 'Constitutional Adviser, Memorandum dated 30th May, 1947; B, Shiva Rao, The Framing of India': Constitution (1968), Main Volume, page 497.

"Fun Council of State as proposed was a body in the nature of 1 Privy Council. so para. 4.4, supra.

'Provincial Constitution Committee Report, Part II, para 1; B. Shiva R80, The . Framing of India's Constitution (1967), Vol. 2, pages 656, 662, (June-July 1941).

'For various suggestions received, see B. Shiva Rao, The Framing of India'! Coaeﬁtutiu (1967), Vol. 2, pages 629-630. - . . . .. . .

Articles 124 and 217.

Article 224- Additional and acting Judges.

Present praetice.

CHAPTER 5 CONSTITUTIONAL PROVISIONS AND THE PRESENT PRACTICE 5.1. The constitutional provisions as they ﬁnally emerged on the subject of appointment of Judges of the Supreme Court and of the High Courts are contained in articles 124 and 217. According to article 124, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose and shall hold oﬁice until he attains the age of 65 years, provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. The article also provides that a person shall not be qualiﬁed for appointment as a Judge of the Supreme Court unless he is a citizen of India and has been for at least ﬁve years a Judge of a High Court or of two or more such Courts in succession; or has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion of the President, a distinguished jurist.

5.2. Article 217 provides that every Judge of a High Court shall be appointed by the President by a warrant under his hand and seal after consul- tation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold ofﬁce, in the case of an additional or acting Judge, as provided in article 224 and in any other case, until he attains the age of sixty-two years. (This age was initially 60, but was raised to 62 as a result of subsequent amendment). Clause (2) of article 217 provides that a person shall not be qualiﬁed for appointment as a judge of the High Court unless he is a citizen of India and has for at least ten years held a judicial oﬂice in the territory of India; or has for at least ten years been an advocate of a High Court or of two or more such Courts in succession; or is, in the opinion of the President, a distinguished jurist. The provision according to which the President could also appoint a person who, in his opinion, was a distinguished jurist was added in article 217 as a result of the 42nd amendment, and has since then been deleted by the 44th Amendment.

5.3. Article 224, to which there is a reference in article 217, provides for the appointment of additional and acting Judges of the High Court and states that if by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualiﬁed persons to be additional judges of the Court for such period not exceeding two years as he may specify. It is further stated that when any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his otﬁce or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualiﬁed person to act as a Judge of that Court until the permanent Judge has assumed his duties. No person appointed as an addi- tional or acting Judge of a High Court shall, however, hold ofﬁce after attaining the age of sixty-two years.

5.4. The manner in which the constitutional provisions regarding appoint- ment of Judges are worked can be best understood if we describe the present practice. For the appointment of a Judge of the Supreme Court, whenever a vacancy occurs, the Chief Justice of India intimates that fact to the Minister of Law and Justice and recommends the name of a suitable person for ﬁlling up the vacancy. If the Minister of Law and Justice agrees with the recommen- dations of the Chief Justice of India, he, with the concurrence of the Prime Minister, advises the President of the selection. In case the Minister has some reservations about the person recommended by the Chief' Justice of India, he can consult such Judges of the Supreme Court and the High Court as he may deem necessary and, after the consultation, may bring any point to the notice of the Chief Justice of India or suggest the name of any other person not recom- mended by the Chief Justice of India. On obtaining the views of the Chief Justice, the Minister of Law and Justice, with the concurrence of the Prime Minister, advises the President of the selection.

5.5. Whenever a permanent vacancy is expected to arise in the oﬂce_ of the Chief Justice of India, action is taken by the Minister of Law and Justice. There has also been a convention for the outgoing Chief Justice of India to make a recommendation regarding the appointment of his successor though. under the Constitution, no such recommendation is required.

5.6. Regarding the appointment of High Court Judges, the present practice Summer": of has been summarised in the report1 of the Study Team on Centre-State Rela- F2229; b tions of the Administrative Reforms Commission and the same reads: {Edy "l3.5. According to a Memorandum of Procedure drawn up as a drill to implement this provision, when a permanent vacancy is expected to arise in the oﬁice of a Judge, the Chief Justice communicates, as early as possible, to the Chief Minister of the State his views as to the person to be selected for permanent appointment. The Chief Minister, in consultation with the Governor, forwards his recommendation to the Union Minister of Home Affairs, along with full details of the person recommended. When the Chief Minister or the Governor proposes to recommend a person different from the one put forward by the Chief Justice, the Chief Justice is informed accord- ingly and his comments invited. These comments are forwarded along with the communication from the Chief Minister to the Union Minister of Home A ﬁairsﬁ who, in consultation with the Chief Justice of India and the Prime Minister, advises the President as to the selection. The same procedure is observed with regard to the appointment of the Chief Justice except that the recommendation for the appointment of a Chief Justice originate from the Chief Minister.

"13.6. The correspondence between the Chief Justice and the Chief Minister and the correspondence between the Chief Minister and the Governor is made in writing and copies of the correspondence are forwarded to the Union Minister of Home Affairs along with the Chief Minister's recommenda- tion. The Chief Justice has, however, recently (and after consideration of the Law Commission's report) been authorised to send directly to the Union Minister of Home Affairs and the Chief Justice of India a copy of his corres- pondence with the Chief Minister.

"l3.7. As soon as the appointment is approved, the Home Secretary in- forms the Chief Minister, who obtains from the person selected---

(a) a certiﬁcate of physical ﬁtness signed by the Civil Surgeon or the District Medical Oﬂicers; and

(b) a certiﬁcate of the date of his birth.

"The Chief Minister forwards the documents to the Ministry of Home Affairs. Medical certiﬁcates are obtained from all persons selected for ap- pointment whether they are at the time of appointment in the service of state government or not. After the warrant of appointment is signed by the Presi- dent the appointment is announced and the Home Ministry issues the neces- sary notiﬁcation in the Gazette of India.

"13.8. The procedure for the appointment of additional judges is sub- stantially the same. The general policy is not to appoint members of the Bar as acting judges and to appoint them as additional judges only if they are likely to be appointed to permanent vacancies during their period of tenure as additional judges.

"13.9. According to Article 163 of -the Constitution, the Council of Ministers with the Chief Minister at the head is to aid and advise the Gover- nor in the exercise of his functions, except in those cases where the Governor is required to exercise his functions or any of them in his discretion. In the matter of appointment of judges of a High Court. the Governor acts not in his discretion but on the advice of the Chief Minister."

5.7. It may be mentioned that some variation in the practice has been Va"'ati°I1 in made in the case of appointment of a Judge to a High Court which is common "ii to two or more States having a common Governor as well as to a High Court regard to which is common to two or more States, each having a separate Governor. In High Court such cases the Chief Minister of each of such States as well as the common to 'Study Team of the Administrative Reforms Commission on Centre-State Relations (1967), Vol. 1, pages 182-184, para. 13.5 to 13.9.

'Minister of Law and Justice has now been entrusted with the above_functions of the lginister 'of: Home Affairs in pursuance of the recommendations of Adminlstrative Reforms omrnissron.

Governor or each one of the Governors. as the case may be. comes in the picture and has to be consulted.

;'r'°es';°d '31:'; _ 5.8. It may be mentioned that in 1947, the then Chief Justice of the Madras Chief Jus_ High Court expressed misgivings about the procedure relating to the appoint-

ﬁcg Mad," rnent of Judges as, according to that procedure, the Ministers were also brought in 1947, into the picture, as against the earlier procedure in which the Governor or Governor-General acted without taking the advice of the Minister in this matter. Sardar Patel, who was the Home Minister, defended the change made in the procedure in his letter dated 8th December, 1947 to the Govemor-General of India,' in the course of which he observed:

" .............................. ..obviously the previous procedure becomes out of date and in the new order of things recommendations must go from the provincial Ministers or Prime Minister to the Minister concerned in the Cen- tral Government. To assign those respective roles to the Governor and the Govemor-General would be casting upon them the burden of explaining pro- posals or decisions, interim or ﬁnal, with which they may not be wholly in sympathy but which nevertheless they are bound to accept on advice. This in my opinion is neither fair nor proper. I am quite clear in my mind that the procedure which we have devised does full justice to the constitutional position which obtains now and places responsibility fairly and squarely where it should be placed ................ .. Indeed the procedure which has been devised is calculated to reduce practically to vanishing point, favouritism of all forms, be it of the Chief Justice or of the politicians, by making the ﬁnal appointment the result of deliberations between the Chief Justice, the Prime Minister and the Governor of the province and the Chief Justice of India. the Home Minister, the Prime Minister and the Govemor-General of the Dominion. In such a situation it is ridiculous to entertain apprehensions such as the Chief Justice has done."

Impression 5.9. The impression, nevertheless. has prevailed that the appointment of about ap- the Judges to the High Court has not been always made on merit and that this P$1;f'w".';"°' has affected the image of the High Courts. This impression was strengthened gm] ' on by the fourteenth Report of the Law Commission under the Chairmanship? of m¢1--i¢_. Shri M. C. Setalvad sent on September 26, 1958. The Commission, while noting 14th Report. that most of the appointments had been made with the concurrence of all con- cerned, including the Chief Justice of the High Court and the Chief Justice of India. observed that with the prevailing procedure the Chief Justices of the High Courts gave their concurrence to prevent awkward situations arising from the appointment of persons not recommended by them or from the rejection by the executive of the persons recommended by them. In the view of the Commis- sion, many unsatisfactory appointments were made to the High Courts on political, regional, communal or other grounds with the result that the ﬁttest men were not appointed. This resulted. the Commission found, in dimunition in the out-turn of the work of the Judges. The Commission all the same ex- pressed the view that the practice of consultation with the State executive should be adhered to and was necessary before appointments were made to the High Court. The Commission made in this connection the following recommendations3 :

"(11) While it should be open to the State executive to express its own opinion on a name proposed by the Chief Justice, it should not be open to it to propose a nominee of its own and forward it to the Centre.

(12) The role of the State executive should be conﬁned to making its remarks about the nominee proposed by the Chief Justice and if necessary asking the Chief Justice to make a fresh recommendation.

(13) It would be advisable for the Chief Justice of a State to send a copy of his recommendation direct to the Chief Justice of India to avoid delays.

(14) Article 217 of the Constitution should be amended to provide that a Judge of a High Court should be appointed only on the recommendation of the Chief Justice of that State and with the concurrence of the Chief Justice of India."

'Sardar Patel, letter dated 8th December, 1947.

'For summary, see Mth Report, Vol, 1. pages 105-107, para. 82. 'l4th Report, Vol. 1, page 106. para. 82.

5.10. The Report of the Law Commission was discussed by the Parlia-D'P''' '' mom in November, 1959. Intervening in the debate' in the Rajya Sabha on Sabh: on November 24, 1959, the then Home Minister referred to the fact that since 1950. 1411: Report. 211 appointments had been made and out of them all except one, i.e., 210 out of 211, were made on the advice or with the consent or concurrence of the Chief Justice of India. Of these, 196 were with the support of all persons who were connected in the matter. The Home Minister also pointed out that there were l5 cases in which there had been difference of opinion between the Chief Justice and the Chief Minister or the Governor.

5.11. The Government of India considered the recommendations of theﬁﬁtjﬁ" 5, Law Commission reproduced above and mentioned as recommendations 11, 12 Govern- and I4 and rejected all three of them. In rejecting the first two recommenda- mom- tions, the Government relied on the fact that no nominee was considered without taking into consideration the views of the Chief Justice of the High Court con- cerned, and in all cases the recommendations of the Chief Justice of India had been accepted. The third recommendation of the Law Commission that all appointments should be made with the concurrence of the Chief Justice of India was rejected on the ground that it departed from the spirit of the Constitution and fettered the ultimate decision of the Government of India.

Study 5.12. The procedure for the appointment of the Judges of the High Courtrrwn of was gone into again by a Study Team on Centre-State Relations of -the Adrninis-tn, Adm,-. trative Reforms Commission? This team was also headed by Shri M. C. nistrative Setalvad. This team considered the three recommendations of the Law Com- g:f°""." mission referred to earlier. The team urged that the recommendations nos. 11 9.-°:'m"' and 12 might be accepted by the Government. It was pointed out by the Study ' Team that the recommendations did not amount to bypassing the constitu- tionally elected representatives. The President, as the head of the Executive, it was stated, would, even in the arrangement visualised by the Commission, make appointment on the advice of the constitutionally elected Government at the Centre. These two recommendations, in the opinion of the Team, envisaged a change only in the role of the State executive which was sought to be restricted to commenting on the Chief Justice's proposal instead of making one. The Study Team further suggested that the constitutional provision be amended to dispense with the obligation to consult the Governor. The fact that the budget of the High Court was debited to the State account was not, in the opinion of the Team, a suiiicient reason for giving the State executive a say in these appoint- ments. The Team felt that the State Government's comment on 1 candidate should be restricted to----

{al his local position;

(bi his character and integrity: and (cl his aﬂiliations.

5.13. Emphasising the fact that its recommendation would strengthen the R019 0' independence of the judiciary. the Study Team pointed out that the principle gggmgﬂ"

underlying its recommendation was that State Governments should not have, and vi" of should not insist upon having. any constitutional right in the matter of appointments Study to the High Courts. Nepotism by the Chief Justice, in the opinion of the Team.T°'m- was still possible, but would be less likely and less frequent, as, being outside politics. he was less vulnerable to pressure. The Study Team expected that if its first two recommendations were accepted, political inﬂuence exerted at the State level in the appointment of Judges would decline and less blame would attach to the political executive for the unsatisfactory appointments. It would also, in the opinion of the Team, result in greater regard being given to the professional competence.

Regarding the third recommendation no. l4 of the Law Commission that all appointments should have the concurrence of the Chief Justice of India, the Study Team conceded that there was merit in the reasoning of the Government of India in rejecting the recommendation. The Study Team, therefore, did not support the recommendation of the Law Commission in this respect.

1Raiya Sabha Debates. 24:11 November. 1959. Vol. 27, Part 1, pages 285. 289 (Slur? G. B. Pant).

'Study Team on Centre-State Relations of the Administrative Reform: Commission Report (1967), Vol. 1, page 180 at seq., Chapter 13.

4--315 LA'DiN'D!'I9 View of Administra-

tive forms Commis-

sion.

View High Courts Arrears Commit-

tee.

of 20 5.14. The recommendations of the Study Team were considered by the Re. Administrative Reforms Commission} The Administrative Reforms Commission did not agree with the Study Team and felt that the existing procedure and method of appointment of High Court Judges should continue. The Administrative Re- forms Commission, however, recommended that the role of the Ministry of Home Affairs should be taken over by the Ministry of Law. This recommendation of the Administrative Reforms Commission was accepted by the Government. Since 1971, a separate Department of Justice has been formed to deal, inter alia, with matters relating to appointment of Judges. The Home Secretary is currently designated as Secretary, Department of Justice. The Minister in charge of the Department is, however, the Minister of Law, Justice and Company Affairs. The procedure for appointment of Judges was not, however, changed.

5.15. The High Courts Arrears Committee headed by Justice J. C. Shah also went into the question and re-iterated in its report the recommendation made by the Law Commission. The Committee also observed :2 "We may recommend that the recommendation with regard to the appoint- ment of a Judge may be sent by the Chief Justice directly to the Governor of the State, and if, within a time to be ﬁxed by convention, say, not exceeding a month, no objection is received to the appointment, the Governor must be deemed to have accepted the recommendation, and the matter may be referred to the Central Government. The Central Government also should take expeditious steps to clear the steps for early appointment before the date on which the vacancy occurs. The scheme of consultation with the Chief Justice of the High Court and the Chief Justice of India in appointment of judges of the High Court will function smoothly if the recommendation made by the Chief Justice of a High Court for appointment of a judge is treated as cleared by the Governor if no objection has been raised by him within a month from the date when the recommendation was received by him and the Central Government will be entitled to deal with the recommendation on that footing."

The above recommendation was not accepted by the Government as, in its opinion, article 217 made consultation with the Governor mandatory and the ''Governor'' had been interpreted as acting on the advice of the Chief Minister.

W-'Administrative Reforms Commission Report (1969, June) 24 (Ordinary) Chapter VII, pages 39 and 40.

'High Courts Arrears Committee Report (1972), page 80, para. 128.

CHAPTER 6 RECOMMENDATION AS TO METHOD OF APPOINTMENT OF HIGH COURT JUDGES

1. GENERAL 6.1. We have set out above the historical background of the constitutional . provisions relating to the appointment of judges of the High Courts and the Ylﬁgs °f buprerne Court, the actual modalities which are adopted in working out those com; as provisions and the various suggestions which have been made off and on for to existing making changes in the working of the scheme and the decision taken on those S"h°m°- suggestions. Most of the High Courts «to which a reference was made by the Law Commission' about the existing scheme of appointment of judges have, in their replies to the Questionnaire, expressed the view that the existing scheme is. by and large, sound} 6.2. After giving the matter our earnest consideration. we agree with the Pr t High Courts and are of the view that the present constitutional scheme, which Scﬁiﬁe was evolved by the framers of the Constitution after much reﬂection and after sound. taking into account the various modes of appointment in different countries, is basically sound. it has worked, on the whole, satisfactorily and does not call for any radical change. There are, however, certain aspects of the working of the scheme about which we consider it necessary to make recommendations with a view to bringing about what we believe to be improvement in the working of the scheme. We shall make our recommendations when dealing with diﬁerent aspects of the matter.

11. HIGH COURTS: INITIATION OF THE PROCESS 6.3. So far as the appointment of High Court judges is concerned, the Initiative initiative in the matter is to be taken, as would appear from the above. by the ' Chief Justice of the High Court. In order to prevent delay in the appointment and keeping in view the fact that the various steps take considerable time before the matter reaches the ﬁnal stage, we recommend that in case of normal vacancies arising as a result of retirement the imtiative for the purpose should be taken by the Chief Justice not less than six months before the date when the vacancy is going to fall due. Although the period of six months may at ﬁrst sight appear to some to be too long, taking into account the past experience and the dilhculties that quite frequently arise because of the difference of opinion between ditlerent authorities who come into the picture, it appears to us to be much more realistic that the initial steps for the purpose are taken six months before the date of vacancy. Adherence to this time schedule would obviate the possibility of vacancies remaining unﬁlled for a long time aﬂter the previous incumbent retires.

6.4. We may in this connection refer to our seventy-ninth Report? wherein Recom- we observed : rnendation "As mentioned earlier, though the sanctioned judge strength of the High ﬁneport' 7% Courts in the country during the year 1977 was 352, only 287 judges on an average were in position. Likewise, in the year 1976, even though the sanctioned strength was 351, only 292 judges were in position. Leaving aside the judges who were entrusted with work outside their normal duties. the fact remains that the number of judges in position in both the years was less than the sanctioned strength. This disparity between the sanctioned strength, and the number of judges in position was apparently due to the fact that vacancies in the posts were not ﬁlled in as soon as they occurred. It is our considered opinion that delay in ﬁlling in the vacancies is one of the major controlling factors responsible for the piling accumulation of arrears. In our opinion. when a vacancy is expected to arise out of the retirement of a judge, steps for ﬁlling in the vacancy should be initiated six months in advance. The date on which such a vacancy will normally arise is always known to the Chiet Justice of the High Court and also to others concerned. It should be ensured 1See Appendix 2.

"See Appendix 3.

379th Report, para. 3.10.

Consulta-

tion bl! Chi Justice with two uni ormost colleagues.

A99 for appoint-

IIIGIJ I High Court.

to Other points oun- cerning eli-

gibility.

that necessary formalities for the appointment of a Judge to 1111 the vacancy are completed by the date on which the vacancy occurs."

6.5. When niaking the recommendation lor appointment of a judge of the High Court, the Chiet Justice, in our opinion, should also consult his two senior- most colleagues. in the letter containing the recommendation for the appoint- ment, the Chief Justice should state that he has consulted his two seniormost colleagues and also indicate the views of each or those colleagues in respect of the person being recommended. We are conscious oi the fact that the Constitution does not make it obligatory for the Chief Justice to consult his colleagues when making the recommendation. Despite the absence of such a requirement, we understand that in some courts the Chief Justice betore making the recommendation does consult his two scniormost colleagues while in other courts no such practice is in vogue. Consultation with the two seniormost colleagues, in our opinion, would have a healthy ctlcci and considerably minimise the chances of any possible tavouruism. incorporation of the views of the two seniorrnost colleagues in the' recommendation or the Chief Justice would also enable the other authorities, who come into die picture and who in very nature of things would not have as much personal knowledge about the suitability of the person recommended, to know as to how two other senior colleagues of the chic: Justice reel about me recommendation. It is plain that the two seniormost colleagues of the Chief Justice would generally have as much knowledge about the suiuiniiity of the person recommended as would the Chief Justice. At the same time, we would like to emphasise that the views or the senior colleagues of the CHICI Justice shall be coniined only to comments on the suitability or the person recommended. it would not be open to them to suggest another name tor appointment.

Any recommendation or the Cniet Justice' which carries the concurrence of his two seniormost concagues should normally be accepted.

Lll. AGE AND Ullililt 1'ALiUli5 l{l:.LAi TING IO El.lGlBlLl1'Y 6.6. We may next deal with the question of age group within which a person may be appointed a judge of the High Court. While considering this aspect, we wish to emphasise that maturity is as much essential in a judge as are the ltiiowietigc of law, experience and other prolicicncics. Maturity normally comes with years, and while brilliance and quick up-take constitute great qualiﬁ- cations, they cannot provide a substitute for the great laculty which eludes' description but winch comes as a result or miiturity. Keeping in view this tact. we leel that the min.mum age at which -.3, person should be appointed a judge of the High Court should be 4.5. We may add that normally. in our opinion the requisite maturity which is needed tor a High Court judge is acquired nearahout the age ol 48. We are, however. recommending the mimmutn age 0t 45, as we do not want to circumscribe within too narrow limits the area of selection. so tar as the upper age hunt is concerned. we feel that for persons selected trom the liar, the limit should be 54 years. By that age a member of the Bar, if he has real merit. would have already made 9. mark and would be considered for selection to {he Bench. it is, in our opinion, not desirable 'to appoint members of the Bar as judges when the tenure on the Bench is going to be less than even eight years. so tar as District and other Service Judges are concerned, we do not wish to prescribe any maximum age limit for their appointment, because in some States their turn for appointment may not come till they are about to reach the age of superannuations District or Service Judges.

6.7. We are conscious oi the fact that there have been distinguished judges in the past who were appointed at an age younger than that indicated by us and who even at that age made a signiﬁcant contribution. Those great judges, however, constituted exceptional cases. When laying down a rule, we have to take into account the normal and usual type of cases. We may also add that the age limit indicated by us should. in our view. be ordinarily adhered to. In exceptional cases and for reasons to be stated, it should be open to the authorities concerned to appoint persons who are not within the age group.

6.8. Other points which may be kept in view for selecting persons for the august olﬁce of a High Court judge are their competence and emciency. general reputation for integrity and hard work, attitude of sobriety, balanced approach and dignity they exhibit and are expected to bring to the oiﬁce of judgeship. Income-tax returns regarding professional income for the preceding three years 'See 1180 para. 6.13, infra.

of the members of the Bar being selected for judgeship would also give good indi- cation of the extent of the practice they command at the Bar.

ﬁ.9. We are, in principle, against the selection of persons on grounds or Selection considerations of religion, caste or region. In our opinion, the only consideration On 8f9|_md which should weigh should be that of merit and of the suitability of the person °f '°"3'°"' concerned to discharge his functions as a High Court judge. Wrong appoint- :2': 331; To mcnts of persons as High Court judges have, as already mentioned,' not onlybe encour- affecled the image of the courts, the conﬁdence they enjoy and the quantum aged- and quality of their disposal, but have also deterred suitable persons from _'|Oll1iI1g the Bench in future vacancies. This, however, is an ideal state. Even when matters of State policy make it necessary to give representation to persons belonging to some religion, caste or region on the High Court Bench, every effort should be made to select the best person. Further, as appointments on grounds of religion, caste or region make an inroad into the principle of selec- tion on pure merit, we recommend that the number of such appointments to the exalted oflice of the High Court judgeship which calls for great qualities of head and heart should, if unavoidable, be as few as possible.

IV. CONSIDERATION BY THE GOVERNMENT 6.10. According to the existing practice, the recommendation of the Chief Forwarding J usticc for appointment of the person to the oﬂice of the High Court judge isof the re- sent to the Chief Minister. The Chief Minister, on receipt of the letter containing '°°9mm°"' the recommendation, either agrees with the Chief Justice, or sometimes disagrees 33°" Chiﬁ or has some other reservation. He can in such a contingency call for some J further information or express his disagreement. He may also suggest a name other than that recommended by the Chief Justice. In such an event he has to inform the Chief Justice and the' latter's comments on the name proposed by the Chief Minister are invited. In our view, the Chief J ustice. while sending the name to the Chief Minister, should also state the views of his two seniormost colleagues as already recommended by us."-

6.ll. Complaint has on occasions been made that the Chief Ministers sit Suggestion tight over the recommendations made by the Chief Justices and this results inin 79th ile- considerable delay in the appointment of judges. One consequence of that P0" """' is that the vacancy for the office of the High Court judge retmains unﬁlled for "ad"

a long time. To obviate such delays we would like to re-iterate the recommen- dation which was made by us in the seventy-ninth Report wherein we observed:3 "Complaints have been heard that sometimes a Chief Minister sits tight over the recommendation made by the Chief Justice for the' appointment of judges, and this fact results in delaying the appointment. In this regard, it would, in our opinion, be necessary -to ensure that whatever may be the view of the Chief Minister about the particular recommendation of the Chief Justice, the recommendation of the Chief Justice should engage the prompt attention of the Chief Minister and should not be kept pending for more than a month. Sometimes the recommendation of the Chief Justice necessitates the exchange of correspondence between the Chief Minister and the Chief Justice. In such an event. efforts should be made to see that because of such exchange of correspondence the matter does not get stuck up. It would perhaps be appropriate that necessary reply to a letter received be sent within a week of its receipt. We feel that the outside limit of six months which we have indicated above should be suﬂicient to take into account the various bottlenecks and delays which take place at different stages."

It may be mentioned that the Chief Justice has, pursuant to the recommen- dation of the Law Commission." been authorised to send directly to the Union Minister of Home Affairs and the Chief Justice of India a copy of his recommen- dation to the Chief Minister.

6.12. It has become a practice in some States5 for the Chief Minister and Meeting, the Chief Justice to meet together either before the Chief Justice makes a between recommendation for appointment of a person to the office of the High Court Ch'=f 1":

judge or after he has made the requisite recommendation. Criticism has been g'r'fef ;'['i_ levelled against the adoption of such practice by some persons. It is stated that m-s,,_.,._ ustice.

Chapter 1, supra.

"See para. (3.5, supra.

379th Report, para. 3.il.

'Chapter 5, supra.

5Cf. 14th Report, Vol. 1, page 73, para. 16.

sometimes what may be called a bargain is struck between the Chief Justice and the.Chief Minister. The Chief Minister, it is stated, concurs with the recommen- dation made by the Chief Justice in return for the Chief Justice agreeing in another vacancy to sponsor the name suggested by the Chief Minister. It has, therefore, been suggested that such personal meetings between the Chief Justice and the Chief Minister should be avoided and that the whole thing should be Conducted through correspondence. We have given the matter our consideration and are of the opinion that no rigid rule should be laid down. Many difficulties which sometimes arise and which would otherwise take long to be resolved can be sorted out by a personal meeting between the Chief Justice and the Chief Minister. It would essentially depend upon the personal equation between the Chief Minister and the Chief Justice. We' also ﬁnd it difﬁcult to subscriln to the view that every such meeting would result in some kind of bargaining between the Chief Justice and the Chief Minister. A Chief Justice conscious of the fact that his recommendation is based upon pure merit should have no hesitation in repelling any undue overture. At the same time, a Chief Justice should have no hesitation in paying due heed to the suggestion of the Chief Minister if he ﬁnds the same to be based upon merit.

Rccom- 6.13. At this stage, we would like to re-iterate what we have mentioned mcndation earlier' about the evolution of a convention that a recommendation made by ""*d° by the Chief Justice with which both his seniormost colleagues agree should normally Ch. f J -

ﬁcfand $0 be accepted.

serlilionnost co eagues.

Role uf 6.14. Another question which has engaged attention is as to whether the Chief Jus- role of the Chief Minister should be that of commencing on the name recommended tieo by the Chief Justice, or whether, in case he disagrees with the recommendation of the Chief Justice, he (the Chief Minister) can also suggest another name. This question was agitated in the past, and after due consideration it was decided1 that the Chief Minister would be entitled, in case he disagrees with the recom- mendation of the Chief Justice, to suggest another name. The Chief Minister in such an event has to invite the comments of the Chief Justice and send the matter thereafter along with the comments of the Chief Justice, to the Union Minister of Law and Justice. In view of the fact that a decision referredto above has already been taken after due consideration, we need not say anything further in the matter.

guggwgon 6.15. A suggestion has been made tha_t the Chief Justice of the High Court, as to num- while making the recommendation for ﬁlling a vacancy on the High Court bcf of Bench} should suggest, instead of one name, a panel of names. We are against "am" "S b° the acceptance of this suggestion, for it would inevitably have theheﬂfect of diluting Egggﬁte the the recommendation of the Chief Justice. It would also result in robbing the Chief Jus- initiative which now vests in the Chief Justice of its eﬁicacy. We feel that lice not it is undesirable to impose a compulsion on the Chief Justice to suggest a panel "°°°P'°d- of names instead of a single name for a vacancy on the High Court Bench.

Forwarding 6.16. After the papers have been ﬁnalised at the level of the Chief Minister of papers to and the constitutional requirement about the consultation with the Governor is U."i°" Mi' completed, the papers are forwarded to the Union Minister of Law and Justice. "st" °f The Minister, unless he has some reservations in the matter. Sends the PaP€IS 10 & Jus- the Chief 'Justice of India, who then expresses his view and sends the papersi back to the Union Minister of Law and Justice. Thereafter the papers. in consu tation with the Prime Minister, are forwarded to the President.

5"b5°q"°"' 6.17. Whatever we have said about the avoidance of delay' at the level '[t):{'°3'"t b of the Chief Minister should hold equally good at the subsequent stages also. ay n e avoided. V. APPOINTMENT OF CHIEF JUSTICE 6.18. We may now deal with the question of the appointment of the Chief Ch' r J - . .

ticeleof Justice of the High Court. It has already been mentioned5 that recommendation C0u1't--- for this purpose emanates from the Chief Minister. Normally, we think that ]S°3i°"n°s' the seniormost judge of the High Court should be appointed as the Chief Justice u go nor- . ~ - - ' mally to be of the High Court. It would not be! desirable, in our opinion, to recommend or appointed. __ __ _, mg _..,_..

lsec discussion a wo senior-most eolleasulﬁ. Pl-l'|- 55» MP7"- *Chapter 5, supra.

'Cf. Law Commission ﬁle, S. No. 81.

'Part. 6.11, supra.

'See Chapter 5. aura-

appoint a junior judge of the High Court as Chief Justice in the presence of a senior judge. In case we countenance the recommendation for appointing a junior judge to the ofﬁce of Chief Justice, it would lead to the undesirable practice of junior judges cultivating and developing some kind of personal relationship with the Chief Ministers. It would also have the effect of undermining the independence of the judiciary. In any case, the image of the court would be considerably affected if some of the judges of the court start hobnobbing with the Chief Minister. We feel that the role of the Chief Minister should be continued only to taking the initiative in the matter of the appointment of the Chief Justice and expressing views about the suitability of the seniormost judge for the office of the Chief Justice.

6.19. It would not be a healthy practice, in case the seniormost judge isAppoint- considered not suitable for the office of Chief Justice, to appoint a junior judge me!" °f from the same court as Chief Justice. In such an event. the proper course, in §.:h'°f ti"

our opinion, would be to appoint some judge from outside the State. It should offside. om also be ensured that the judge so appointed as Chief Justice) should have been on the High Court Bench for a sufficiently long time and should have that much seniority as a judge as not to cause resentment in the senior judges of the High Court that someone junior in service has been appointed in supersession of their claim. While appointing someone from outside the State as Chief Justice of the High Court. care must also be taken to see that his tenure as Chief Justice is not so long as to block the chances of not only the seniormost judge' but also of other judges in the High Court. By the words "blocking the chances". we mean not only preventing the appointment of a person as Chief Justice but also substantially reducing the length of his term as Chief Justice.

Of course, arithmetical exactitude! and precision in these matters cannot be insisted upon.

6.20. One aspect which needs consideration in the appointment of ChiefTenuro of Justice of the High Court is about the desirability of ensuring that no incumbent Chief Jui- of the Oﬁice of the Chief Justice normally holds that office for more than six ""°' years. There can be no doubt that long tenures of Chief Justice gives an element of continuity to the court. There can also be no doubt that we have had Chief Justices like Chagla and Rajamannar in whose case the lustre they shed to their office was in no way dimmed by the long years they occupied that office. still we feel that in a majority of cases the long term has the effect of introducing certain xveaknesses and undesirable traits which are not good for the health of the court.

VJ. JUDGES FROM OUTSIDE 6.21. We may next deal with the question of having in each High Court Appoint- about one-third of judges from outside the State. Recommendation for this "'°£tmh_d purpose was made by the States Reorganisation Commission. The Law Com-ffdgcs from mission presided over by Mr. Setalvad in its fourteenth Report observed in outside this connection :1 sum-

"The recent creation of various zones in the country and the efforts to treat the States forming part of these zones as one until for various purposes would. we hope, lead to the States forming part of each zone to be recruiting ground for appointments to the High Court from the members of the' Bar in these States. It is hoped that in this manner the expectation of the States Reorganisation Commission that at least one-third of the High Court Judges would be persons drawn from outside the State will be realised."

Likewise, the Study Team' on Centre-State Relations appointed by the Administrative Reforms Commission also suggested that so far as practicable. one-third of the number of judges of a High Court should be outside.

We have given the matter our earnest consideration and are in substantial agreement with the recommendations mentioned above. In our opinion. there should be a convention, according to which one-third of judges in each High Court should be from another State. This would normally have to be done through the process of initial appointments. and not by transfer. It would also in the very nature of things be a slow and gradual process and take some years before we reach the proportion.

'Law Commission of India, 14th Report, Vol. 1. page 100. para. 74.

'Administrative Reforms Commission Study Team on Centrostato Relations Report. page 190, para. 13-20 (September 1963), Vol, 1. e 26 mfg 6.22. Evolving such_a convention would. in our opinion. not only help in _°cme. the process of national integration but would also improve the functioning of various High Courts. It would secure on the Bench of each High Court the presence of a number of judges who would not be swayed by local considerations or affected by issues which may rouse local passions and emotions. As observed by us in one of our earlier Reports. one of the essential things for the due administration of justice is not only the capacity of the judges to bring a dis- passionate approach to cases handled by them, but also to inspire a feeling in all concerned that a dispassionate approach would underlie their decision. quite often. cases which arouse strong emotional sentiments and regional feelings come up before courts of law. To handle such cases. we need judges who not only remain unaffected by local sentiments and regional feelings. but also appear to be .

so. None would be better suited for this purpose than judges hailing from other States. It is a common feeling amongst old lawyers that apart from cases with political overtones, the English judges showed a sense of great fairness and brought a dispassionate approach in the disposal of judicial cases handled bv them. We in India are in the fortunate position of having a vast country. 'There can. therefore. be no diﬂicultv in having a certain percentage of judges who hail from other States. The advantages gained by having persons from other States as judges would be much greater compared with any disadvantage which might result therefrom.

6.23. Doubt is sometimes raised as to whether we would be able to persons attract competent persons on the Bench of the High Court if at the time of from out- their appointment they are Conscious of the fact that they would be posted not "d°.--b.].t in their own State but in another State. So far as this aspect is concerned. we E?" "y may mention that though quite a number of persons would be reluctant to be appointed outside their State, there would always be, in our opinion. a certain percentage of persons being considered for High Court judgeship who would have no objection to being appointed outside the State. In the case of District Judges being appointed. the prospect of promotion would in most cases be enough inducement and will outweigh the possible inconvenience of being posted outside the State. As regards the members of the Bar. some might consider it advantage- ous to be appointed outside the State. so that after retirement they can resume. if they so desire. the practice in the State High Court wherein they were practising earlier. The bar against practising in the High Court in which one was previously Mod "Y fa judge would not thus stand in the way.

I l O imp]"n°'t_ 6.24. Question then arises as to what should be the modalities for imple-

in menting the above recommendation. There was. it may be mentioned. at one time a proposal to have a common panel of names considered suitable for appointment as High Court judges and to appoint judges to the ditlerent Courts from that common pool. View was expressed in the Chief Justices' Conference held in October 1957 that while it was quite possible to have an all-India panel of service District Judges from which selection could be made. all-India panel of advocates presented considerable difﬁcultv. In the Conference held _1n January 1960 the Chief Justices expressed the unanimous opinion that main- tenance of an all-India panel containing names of advocates suitable for appoint- ment as High Court judges was not only not feasible.' but also highly undesirable. The Law Ministers' Conference in June 1960. while considering the question of the appointment of judges from outside the State. referred to the decision taken in the Chief Justices' Conference of January 1960 and requested the Union Home Minister to initiate such discussion as he might think necessafﬁ' With the Chief Justice of India and the Chief Ministers. This matter was further' considered in the Chief Justices' Conference held in March 1961. The Conference expressed the opinion that in view of its f0COIl11'l'l€ndail.0l'l.lt.1 respect of recruitment by competition of certain proportion of the higher judicial service on all-India basis, it was not necessary to have a panel of names for aOP0"ltm€"t 35 H'-Eh Court judges either from amongst the members of the Bar or from amongst the members of the State judicial service.

Recommen-

duion for 6.25. The Law COI'I'l11:llSS.l0n.itl its seventy-seventh Report' had recgmlrineigleg An Indian the creation of an. all-India judicial service. The recommendation of It §_a aas Judicial Commission in this respect was turned down by the Government 0 n 1 .

Service 00' would appear from the reply given in Parliament on behalf of the Home a°°°P'°d bi' Ministry. In our opinion, turning down of that suggestion makes It 3" the more G°Vfm' imperative to ﬁnd out other modality to ensure one-third of the judges in each mﬂl .

"Nth Report.

High Court from outside the State, The outside States from which such persons be appointed should normally be in the same zone. as mentioned in section 15 of the States Reorganization Act.' in which the State in which a person is to be appointed judge of the High Court is situated. For this purpose, the Chief Justices in the same zone may meet as and when it becomes necessary or, as a result of correspondence with each other, ascertain the names of members of the Bar and District Judges considered ﬁt for appointment. Such of the persons from other States in the zone as are found to be suitable may be recommended for appointment as judges. Care should, however, be taken to see that reciprocity in numbers in matters of appointment of judges from other States is maintained as far as possible and that no State gets undue advange in the actual working of the scheme.

6.26. There is. however, nothing rigid about the modality indicated above.P';§°"d I Once the principle of having one-third of the judges from outside the State isfﬁwgﬁgd "3, accepted. there should. in our opinion, be not much dilﬁculty in devising somebe rigid, method to bring about the desired result and to work out the details of the method.

VIJ. CONSULTATIVE PANEL 6.27. The question of appointment of a consultative panel may next engageC_°DS""a' our attention. As mentioned earlier? the Secretary. Ministry of Law. Justice'"'° panel' and Company Affairs. Department of Legal Affairs in his letter dated December 29, I977. to the Law Commission. had referred to the suggestion about having an informal consultative panel consisting perhaps of retired three Chief Justices of the Supreme Court. The letter also pointed out the constitutional difﬁculty about having such a panel. The Chairman of the Law Commission thereafter sent a letter incorporating his views in the matter. Those views have already been reproduced earlier?' Letter dated March l, 1978 was thereafter received from the Ministry of Law. Justice and Company Affairs by the Chairman of the Law Commission. A note was then prepared.4 A copy of the same was sent to the Supreme Court and the various High Courts and others concerned for expression of their views on the suggestion contained in the note. In para- graph 3 of that note, it was stated :

"(3) After we have crossed the constitutional hurdles, the appointment of the Informal Consultative Panel (perhaps. it would be better to call it 'Judges Appointment Commission') (hereinafter referred to as the 'Commission') is desirable."

6.28. Most of the High Courts which have sent their views have expressedPr0p0S81 themselves against the formation of a Judges Appointment Commission. Itfi" .J't'f15°' would seem that the word "Commission" gave rise to the reaction that whatm§§t°'"COm_ was sought to be established was something like the Public Service Commissionmission not even though the appointment was to such august oﬂice as that of a High Courtfavoured. Judge We can understand and well appreciate the reaction and in deference to that. we drop the suggestion about the appointment of the Judges Appointment Commission. While doing so. we would like to add that the idea behind the suggestion was not to have a body like the Public Service Commission, but to associate a high level panel consisting of persons known for their integrity. independence and judicial background in the matter of appointments with a view to eliminating the sway of political or other extraneous considerations and ensure scrutiny of appointments by a dispassionate body.

6.29. At the same time. we recommend that whenever it is proposed to passpanet of over the seniormost judge for appointment to the ofﬁce of the Chief Justice ofC_hief Jus- the High Court. the matter should be placed before a panel consisting of the?" '.'"1S Chief Justice of India and his four seniormost colleagues. The claim of thergggt S°c'(','f1'e_ seniormost judge for appointment to the ofﬁce of the Chief Justice of the Highagues to he Court should not be ignored unless the aforesaid panel ﬁnds sutﬁcient cause forconsulted such a course. In case of difference of opinion among those constituting the panel,in case of the view of the majority should be taken to be the view of the panel. We are5PP°'5°"

making this recommendation because criticism has been levelled on occasions that 5'°"' seniormost iudges have been passed over in the matter of appointment of the Chief Justices of the High Courts on extraneous considerations. This has understandably 'Section l5. States Reorganisation Act. 1956.

'See Chapter 1, supra.

'See Appendix 2.

5-3l5 LAD/ND/79.

created ﬂutter and caused discontent. It is necessary to ensure that appointment to the exalted oflice of the Chief Justice of the High Court does not become the subject of controversy. This objective can be substantially achieved if, before passing over the seniormost judge for the office of the Chief Justice of the High Court, the matter is scrutinised by a high level panel consisting of Chief Justice of India and his four seniormost colleagues. Avoidance of controversy is also necessary to preserve the image of the High Court.

Transfer of 6.30. We may now advert to the question of transfer of judges of the High géihn Court. Regarding this question, we would like to emphasise that we are normally Judges. against_the transfer of judges of the High Court from one court to the other as such power is liable to be abused and impinges upon the independence of the judges. Normally, a judge should continue in the court to which he is appointed. except where he is appointed Chief Justice of some other High Court. but there are occasions ---- we hope rare -- when the image and good name of the judiciary make it incumbent that a judge posted in a High Court be transferred to some other High Court. Although by and large the judges of the High Court have evoked great respect for maintaining high standards, complaints have sometimes been heard against one or other individual judge. The facts of the case may not be such as might warrant resort to the extreme remedy of impeachment; still the requirements of the situation may call for the transfer of the judges concerned. The transfer of a judge in such an event should not be looked upon as something taboo. All that has to be ensured is that the power of transfer be not abused and that the transfers be not motivated by extraneous considerations. To prevent any abuse of the power of transfer. we recommend that no judge should be transferred without his consent from one High Court to the other unless a panel consisting of the Chief Justice of India and his four seniormost colleagues finds sufficient cause for such a course. In case of difference between the members of the panel, the view of the majority should be taken to be the view of the panel.

tCi§,'::jit"' as_ 6.31. A question which might also engage our attention is whether there is pea any constitutional hurdle to the creation of the consultative panel mentioned above.' So far as this aspect is concerned, we may mention that according to a decision of the Supreme Court. if the Constitution or law requires consultation with A. B and C and the appointing authority. in addition to consulting A, B and C also consults D, the appointment suffers from an inﬁrmity and, as such, is liable to be struck down. Reference in this connection may be made to the case of Chandra Mohun v. State of U.P.2 As long as the rule laid down in the above case holds the ﬁeld. it would not be permissible to appoint the consultative panel without amendment of the Constitution. It may. perhaps. be necessary to insert a provision in the Constitu- tion that consultation with someone other than those mentioned in the Constitution would not invalidate an appointment.

(1))f°s";a:_f]1't5' 6.32. We may add that we are normally averse to making a suggestion as p ' may necessitate amendment of the Constitution. Despite our general reluctance on this score. we still feel it desirable to have a consultative panel with a view to preventing the sway of extraneous considerations in the matter of supersession or transfer. Occasions have arisen in the past when transfers on extraneous considera-

tion have been made. or when the seniormost judges have been passed over in the matter of appointment to the office of Chief Justice. This has understandably created flutter and caused discontent. It is necessary to ensure that such acts in respect of high judicial offices do not become subject of controversy. This objective 'sari be substantially achieved if. in case of transfer and also in case of ignoring the claim of the seniormost judge in the matter of appointment of Chief Justice of the High Court. the matter is scrutinised by a high level body of persons who are known for their integrity and have also judicial background. Avoidance of controversy is also necessary to preserve: and keep up the image of the High Courts.

'Para. 6.30. su pra. "Chandra Mohlm V. State of U.P.. A.I.R. l966 S. C. 1987. l990'. (1957) l S. C. R. 77 See also Baldrn Raj v. Higli ('nurt of Punjab & Hawana. AIR. i976 S. C. 2490.

CHAPTER 7 RECOMMENDATIONS AS TO METHOD OF APPOINTMENTS TO Tl-lE SUPREME COURT AS JUDGES 7.1. The Supreme Court of lndia is the highest court of the land. It is Amplitude vested with powers which are exercised by few other courts in the world. It of jurisdic- constitutes the highest ot appeal in civil and criminal matters. Appeals.tion of the against the order of any tribunal can also be entertained by the court by special Supreme leave. Petitions questioning the validity of the election of the President and thecoun' Vice---l*rcsidciit are exc'lusively trlabie by the Supreme Court. The court has exclusive jurisdiction in any dispute between the Government of lndia and one or more States, or between the Ctovcriiment of lndia and any State 01' States on one side and one or more other States on the other; or between two or more States. the court also exercises advisory jurisdiction, ihasmucli as the President may relcr for consideratioii to the court any question of law or fact of public importance that has arisen or is lilteiy to arise. A right has further been guaranteed to every Ci'tiZCl.1, and in some cases to non-citizens also, by article 32 of the Constitution to approach the Court in cases of infringement of any of the funda- mental rigilts mentioned in Part lll oi the Constitution. The court has been vested for this purpose with power to issue directions, or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certi- orari. lite Constitution also provides that the law declared by the Supreme Court shall be binding on all courts within the territory ol India.

7.2. in view of the importance of the role which has been assigned to t.heNeed to ap_ court under the scheme ot our Constitution, it is necessary that persons of thepoim per. highest calibre siiould be appomlcd judges of this court and no other consideration sons of the except that of merit should weigh in the matter of appointment. the tact that the 1113,1195' Supreme Court sits as a court ol appeal against the judgment or the High Courts °a1'b"°' inakcs it imperative that the judges or the Supreme Court should be persons of such high stature and coiniriarid such great esteem that even when the judgment or the high LOUIL is reversed on appeal by the Supreme Court, the judges of the High Court should have a ieeimg that it has been done by a court which is not only higher in the legal sense or the term but which, because of the acumen of the judges composing it, is otherwise also superior to the High Court. in one of his classic judgments L,lllLi Justice Patanjali Sastri compared the role of the Supreme Court to that ol the seminal on the gut vive. both on this account and on account of the fact that the law laid down by the Supreme Court becomes the law of the lalid, it is essential to ensure that the cream or" the judicial talent ol the country is represented on the Bench of the court.

1.5. Another important factor which should not be lost sight of in the Reputation appoiiitnient ol judges to LiiC supreme Court is the need to ensure that only personsfo, indepen- who enjoy the highest rcputatioii ior independence, dispassionate approach anddence and cictachnieiit are elevated LU the Bench or the court. The revelation of any tendency d€ta°hm°m or inclination to iiobnob with mmlsters and political personages should be consider- ;I;g;'1'(')'}"' ed as disqualiﬁcation tor oemg considered for the job. This becomes essential ' because of the iact that cases having political overtonts and involving high political personages frequently come up before the Supreme Court. it is plain that persons who hobnob with ministers and other pohtical personages would not inspire conﬁdence when dealing with such cases.

7,.-1. Question, then, arises as to whether persons who once had affiliations persons with a political party should be debarred altogether from consideration for appoint- with politi- ment to the Supreme Court. We have given the matter our consideration, and 0,81 8'ﬁ1l3- are of the view that aihliation in remote past of a person otherwise suitable should"°"5' not disqualify him for this purpose. The position should, however, be different if the person has till recently been active in political lite. After having considered the various pros and cons, we are of the view that no one should be appointed to the Supreme Court as a judge unless for a period of not less than seven yearsphe has snapped all aﬂiliatiohs with political parties and unless during the preceding period or seven years he has distinguished himself for his independence, dispas- sionate approach and freedom from political prejudice, bias or leaning. lhis would provide a sufficient assurance that his past political athliation would not colour his judicial pronouncements.

Impor- _ 7.5. We are aware of the fact that in the United States, the United Kingdom ﬁance 0': and some other countries, persons who were active in political life and were ap. P3"'° 3 pointed judges, distinguished themeselves on the Bench. Taking into account the h . i - . - - .

3? l}:ﬁ1ai:_ conditions as they are in india and the importance that we attach to independence and tlispassionate approach or the judges and the role which the Constitution has assigned to the court, we consider it necesary to insist upon tiie above safeguard.

Consul"- 7.6., As in the case oi the High Court judges' appointment, so in the matter tion byot appomlmcnt oi a judge oi the supreme court, we leel that the Chiet Justice Chief Ju,-S-oi india, white nialging a recommeiidation, should also consult his seniormost 'v:°ifh°f1i1s"'::coileagues. the number ol colleagues to be consulted tor this purpose should be niormost three. lhe Lhiel Justice ol lndia in the communication incorporating his recom-

cojjcagues, mendation should speciiy that he has consulted his three seniormost colleagues and also reproduce the view oi each or them regarding his recommendation. the role or the seniormost colleagues would be cohhncd only to making their comments on the recommendation oi the Lhiet Justice; they would not be entitled to initiate a separate name tor the purpose. lhe toiisuitation with three seniormost colleagues by the Chief Justice would minimise tiie chances ol any possible arbitrariness or tavouritism.

Age for ap_ ' 7.7. We may now dcalwlth the question of age ior appointment to the oﬂice poimmem oi' bupreme Lourt Judge. As rheiitioned cétllltfl', the cream or the judicial talent to Supreme or the country should, in our view, oe rcpiesehtcd on the bupreme Court. Apart Court. from the tact that the judges should be persons possessing iegai acumen and a sound knowledge oi constitutional and other law, it is essential that they should have within tiiem that great quality which eludes description, but Wl'lit.'l1 comes with the passage oi' years and as a result or long contemplation and reflection, -- the quality which gives depth to the judgment and which is lihown as maturity. More than in any other court, it is in the bupreme Court that we cannot do with- out that quality. lo ensure that, we recommend that the proper age tor appoint. merit to the ohice or supreme court Judge should be between 54 and 60. Inc upper age innit would ensure that judges appointed to the court would have a tenure or at least 5 years.

7.8. We are conscious of the fact that there have been judges who have been appointed in the past to the court at an age less than .54 years and who have distinguished themselves. Looking, however, to all the facts and keeping in view the general rule, we consider that in luture no appointment should be made of a person to the bench or the Supreme Court at an age less than 54.

principle 79. We feel that the principle ol seniority should be observed in the appoint- of senio- ment to the oiiice of the Lhiet" Justice. Past experience tells us that whenever there my- has been a departure from this principle. the appointment has roused considerable controversy. it has thus aiiected the image or the oiiice or Lhict Justice. lhe vesting oi unbridled powcr in the executive to depart troni the principle or seniority in the matter of appointment to the olhce of Chic: justict is liable to be abused. it is also likely to make inroads into the independence or the judiciary and the approach oi the judges. in case the Uovernment considers it proper in some individual case to depart 'ironi the principle or seniority tor apponitment to the post of Chiel' Justice, in such an event, in our opinion, the matter should be re- terred by the boverhment to a panel consisting or all the sitting Supreme Court Judges. The principle or seniority should be departed from only if the above panel iinds sulhcient cause tor such a course. in case of difference of opinion, the decision of the majority shall be taken to be the decision of the panel.

Reprcsem 7.10. One other _point may also be mentioned. We are conscious of the fact tation of re- in the matter of appointment to the Supreme Court, despite the need tor selection gion. on the basis of merit, regard is also had for representation of diﬂerent regions. Even so. consistently with that also, it can be ensured that the best person from the region is appointed to the court.

'See para. 7.2, supra.

CHAPTER 8 CONCLUSION Our recommendations in this Report have been inspired by our desire t0Qual.ities maintain publ'c conﬁdence in Judges and the highest standards in the Judiciaryﬁf 8 The qualities required oi a Judge were described by Mr. Justice Tom C. Clark.5"d'='e' former Associate Justice of the United States Supreme Court.' in words which cannot be bettered :--

"Judicial independence, of course, has its corollary of judicial responsibility. The judges must be ol' the stuff that goes to make a good judiciary. What is this stutt' of which 1 speak'? Legal knowledge? Yes, and of sufficient quality to be able to determine the applicable rule of law in a given case together with the wisdom to apply it with clarity and dispatch. Ability to discover the facts'? Yes, and an open mind to recognise the truth and separate it from the chaff. A ﬁrm but understanding heart 'Z Yes, and the courage to declare a just decision and enloice it. Integrity '2 Yes, above all other attributes; and a public and private deportinent that is above reproach. A conscience 'I Yes, but rather than being one that breeds fear and negative action it must be a conscience which at the close of each days work may whisper softly. 'Today you were truly worthy to wear the robe and enjoy the appellation of judge'. To maintain such a status in the public mind judges, like Laesars wife, must live above suspicion."

Let us express the hope that our recommendations will, to some degree, facilitate the attainment of these high ideals.

We may conclude this Report by citing the words used by John Rutledge, Jr. in 1802 on the ﬂoor ol the US. House of Representatives to describe the "shield" of the judiciary :2 "As long as this buckler remains to the people, they cannot be liable to much or permanent oppression. The Government may be administered with indiscretion and with violence; oflices may be bestowed exclusively upon those who have no other merit than that of carrying votes at elections; the commerce of our country may be depressed by nonsensical theories, and public credit may suffer from bad intentions; but, so long as we may have an independent Judiciary, the great interests of the people will be safe .... .. Leave to the people an independent Judiciary, and they will prove that man is capable of groverning himself; they will be saved from what has been the fate of all other Republics, and they Wlll disprove the position that Governments of a Republican form cannot endure."

'Tom C. Clark, Former Associate Justice, U. S, Supreme Court, "Judicial Self-Regula- tion. The Potential" (Winter, 1970), 35 Law and Contemporary Problems, No. 1. pages 37, 38, 39.

'~'11 Annals of Cong. 739-40 tl802), dated by trying R. Kaufmann, "Judicial Indepen- dence" (March 1979), Vol. 88, No. 4. Yale L. J. 681, 716.

CHAPTER 9 5Ul\'ilViARY OF RECOMMENDATIONS We may summarise our recommendations as follows :------

GENERAL

(l) The present constitutional scheme as to the method of appointment of judges is basically sound; it has, on the whole, worked satisfactorily and does not call for any radical change. But there are certain aspects of its working about which recommendations are necessary in order to bring about an improvement.' APPOINTMENT OF HIGH COURT JUDGES (2) In case of normal vacancies in the High Court, the initiative (for ﬁlling up the vacancy) should be taken by the Chief Justice at least 6 months before the expected date of the vacancy} in order to obviate the possibility of the vacancy remaining unﬁlled for a long time after the retirement of the previous incumbent.-' (3) When making a recommendation for appointment of a judge of a High Court, the Chief Justice should consult his two seniormost colleagues. The Chief Justice, in his letter recommending the appointment, should state the fact of such consultation and indicate the views of his two colleagues so consulted.' (4) Any recommendation of the Chief Justice which carries the concurrence of his two scniormost colleagues should normally be accepted?

(5) ln a judge, maturity is as muchessential as 'are other proﬁciencies. Maturity normally comes with years, brilliance and quick up-take being no sub- stitute for it. In view of this, the minimum age at which a person should be appointed a judge of the High Court should be 45.

For persons selected irorii the bar, there should be an upper age limit of 54."

Though there have seen distinguished judges in the past who were appointed at a younger age, they constituted exceptional cases.

'i"ne age limit indicated above should be ordinarily adhered to; a departure can, however, be made in exceptional cases and for reasons to be stated by the authorities concerned' (6) Other points to be kept inpview for selecting persons as High Court judges are their competence, reputation for integrity and hard work, attitude of sobr;cty, balanced approach and dignity.

Income tax returns for the last 3 years (in case of members of the bar) would also be relevant.' (7) The Commission is, in principle, against selection to the High Court Bench on ground of religion, caste or region. Merit should be the only considera- tion. tivcn when matters oi tiiate policy make it necessary to give representation to persons belonging to some religion, caste or region, every effort should be made to select the best person. The number of. such appointments should be as few as possible?

(8) While sending the name to the Chief Minister, the Chief Justice should also state the views of his two seniormost colleagues,"/' as already stated.

(9) There should be an outside limit of 6 months (as already recommended in the 79th Report, paragraph 3.11) within which the recommendation of the Chief Justice should be processed and completed in the State Government. The 1Paragraphs 6.1 and 6.2.

"Recommendation in 79th Report, para. 3.10, referred to. "Paragraphs 6.3 and 6.4, 'Paragraph 6.5.

-"Paragraph 6.5.

"Paragraph 6.6.

"Paragraph 6.7.

'Paragraph 6.8.

"Paragraph 6.9.

"Paragraph 6.10.

recommendation of the Chief Justice should engage the prompt attention of the Chief Minister, and should not be kept pending for more than a month. If ex~ changes of correspondence becomes necessary. cﬁ'or'is should be made to see that because of such exchange. the matter does not become stuck up}-3 (10) No rigid rule need be laid down as to whether personal meetings between the Chief Justice and the Chief Minister to discuss appointments to the High Court should be avoided. The difficulties that sometimes arise can be sorted out more quickly by a personal meeting than by oorrespondence. It would essentially depend upon the personal equation between the Chief Justice and the Chief Minister. Every such meeting would not result in some kind of bargaining, as is sometimes assumed.3 (11) At the same time, as already indicated, a recommendation made by the Chief Justice with which both his seniorrnost colleagues agree should normally e accepted.' (12) On the question whether the role of the Chief Minister should be that only of commenting on the name recommended by the Chief Justice. or whether the Chief Minister can also suggest another name. a decision has already been taken and nothing further need be said in the matter.5 (13) The suggestion that the Chief Justice. while making the recommenda-

tion_ should suggest a panel of names is not accepted, as it would have the effect of diluting the recommendation of the Chief Justice."

(14) Whatever has been said above about the avoidance of delay at the level of the Chief Minister should also hold equally good at the subsequent stages.7 (15) In regard to the appointment of the Chief Justice, normally the senior- most judge of the High Court should be appointed. Recommending a junior judge for appointment as Chief Justice would lead to the undesirable practice of junior judges cultivating a personal relationship with the Chief Minister and would undermine the independence of the judiciary and affect the image of the court. The role of the Chief Minister should be conﬁned to taking the initiative for appointment of the Chief Justice and expressing views about the suitability of the seniormost judge for appoirftment as Chief Justice.8 (16) If the seniormost judge is not considered suitable for the otﬁce of Chief Justice, a junior judge should not be appointed. but the proper course would be to appoint some judge from outside. The judge so appointed should have been on the bench of the court for a long time and should have that much seniority (as a judge) as not to cause embarassment to the other judges. Care should also be taken to see that the appointment of outside judge as Chief Justice does not block the chances not only of the seniorrnost judge, but also of the other judges of the High Court. Of course, arithmetical exactitude in these matters cannot be insisted upon.9 (17) It is desirable to ensure that no incumbent of the office of Chief Justice of the High Court normally holds that office more than six years." While long tenures may give an element of continuity to the court, yet in a majority of cases it has the effect of introducing certain weaknesses and undesirable traits.

(18) There should be a convention according to which one-third of judges in each High Court should be from another State. This would normally be done through initial appointment, and not by transfer. The process will have to be gradual; it would take some years before the proportion is reached."

'Paragraph 6.11.

2Recommendation in 79th Report. para 3.11 re-iterated.

-'Paragraph 6.12.

'Paragraph 6.13 read with paragraph 6.5.

5Paragraph 6.14.

"Paragraph 6.15.

7Paragraphs 6.16 and 6.17.

"Paragraph 6.18.

'-'Paragraph 6.19.

'Paragraph 6.20.

"Paragraph 6.21.

Such a convention would not only foster national integration, but would also improve the functioning of High Courts. It would inspire a feeling that a dispassionate approach underlies their decisions The advantages gained by having persons from other States as judges would be much greater compared with the possible disadvantagesl (19) Though a number of persons would be reluctant to be appointed outside their State. a certain percentage of persons would have no objection to such an appointment. in case of District Judges. the prospect of promotion would be enough inducement. In case of members of the bar. they can practise in the State High Court wherein they were practising earlier?

(20) Since the suggestion for All Indian Judicial Service. made earlier} has been turned down. it is all the more imperative to ﬁnd out some other modality to ensure the appointment of one-third of judges from outside the State. The outside. States should normally be in the same zone4 in which the State in which a person is to be appointed is situated.5 (21) For this purpose. the Chief Justices may meet when necessary. or settle the name of the person to be appointed by correspondence.5 (22) Care should. however. be taken to see that reciprocity in numbers (in matters oi' appointment of judges from other States) is maintained as far as possible.7 (23) There is nothimv rigid about the above modalitv. Once the principle is accepted, there' should be no diﬁieulity in devising a method for bringing out the desired result.3 (24) The proposal for constituting a consultative panel -- which had been described in the Questionnaire issued by the Law Commission as a "Judges Appointments Commission" ~- has not been favoured bv most of the High Courts in their replies to the Questionnaire issued by the Commission and is accordingly dropped. It mav. however. be stated9 that the idea was not to have a body like the Public Service Commission, but to associate a high level panel consisting of persons known for their integrity. independence and judicial background in the matter of appointments. to eliminate extraneous considerations and to ensure dispassionate scrutiny."

(25) At the same time. the Law Commission recommends that whenever it is proposed to pass over the seniormost iudge for appointment to the office of Chief Justice of the High Court. the matter should be placed before a panel consisting of the Chief Justice of Tndia and his four seniormost colleagues.

The claim of the seniormost judge should not be ignored unless the aforesaid panel finds sutﬁcient cause for such a course. In case of difference of opinion amongst the panel, the view of the majority may be taken as the view of the panel. Such a procedure will avoid discontent and controversy. and preserve the image of the High Court."

(26) Normallv a judge should continue in the High Court where he is ap- pointed. except where appointed Chief Justice of another High Court. But there are oc£'asionS'-- though rare ~~ when the image and good name of the judiciary make it incumbent that a iiidge should be transferred. though the extreme remedv of impeachment may not be called for.

(2"\ To prevent abuse of the power of transfer. it is recommended that no iuri-ie slmiild hr: tranqfwred without his consent from one High Court to another unlt:s.< a panel consisting of the Chief Justice of India and his four seniormosi 'Paragraph 6 22.

9P:1ra{zraph 6.23.

'*7'7th Report 'Section IS. States Reorganisation Act, 1956 5Paragraph 6.25.

"Paragraph 6.25.

7Paragraph 6.25.

"Paragraph 6.26.

'-'Paragraph 6.27.

"Paragraphs 627 and 6.28.

"Paragraph 6.29.

colleagues ﬁnds suﬂicient cause for such a course. In case of diﬂerence between ﬁilenijbaenrglpf the panel, the view of the majority be taken to be the view of e .

(28) Constitutional amendment_rnay be required to implement the above recommendation for consultation with a_ panel consisting of Chief Justice of India and his four semormost colleagues (in the matter of supersession or transfer of a High Court judge)?

Normally, the Law Commission is averse to recommending a constitutional amendment. But such a panel is necessary to ensure that controversy does not arise in regard to such action (as is indicated above) in respect of high judi- cial otﬁceﬁ APPOINTMENT OF SUPREME COURT JUDGES (29) Having regard to the importance of the role assigned to the Supreme Court under the Constitution and the nature and amplitude of its jurisdiction, it is necessary that persons of the highest calibre should be appointed judges of that court and no other consideration except that of merit should weigh in this regard. The fact that the Supreme Court sits as a court of appeal against the judgments of the High Court makes it imperative that its judges should be persons of such high stature and command such great esteem that even when it reverses a judgment of the High Court, the judges of the High Court should feel that the reversal has been done by a court which, because of the acumen of its judges, is superior to the High Court.' (30) Only persons who enjoy the highest reputation for independence, dis- passionate approach and detachment should be elevated to the bench of the Supreme Court and any revelation of a tendency to hobnob with Ministers should be a disqualiﬁcation.-'> (31) While affiliation in the remote past with a political party should not constitute a bar in itself, no one should be appointed to the Supreme Court, unless, for a period of not less than seven years, he has snapped all affiliations with political parties and unless, during that period, he has distinguished himself for independence and freedom from political bias or leanings.' Taking into account Indian conditions and the importance which we attach to independence and dispassionate approach and the role of the Supreme Court. this safeguard is necessary.7 ( 32) The Chief Justice of India, while recommending the name of a person for appointment as a judge of the Supreme Court, should consult his three senior- most colleagues and should, in the communication incorporating his recommenda- tion, specify the result of such consultation and reproduce the views of each of his colleagues so consulted regarding his recommendation. The role of these colleagues would be conﬁned to commenting on the recommendation of the Chief Justice. Such consultation would minimise possible arbitrariness or favouritismﬁ (33) Persons appointed as judges of the Supreme Court should not only have legal acumen and sound knowledge of law, but also have within them that great quality which eludes description but which comes with the passage of years and after long contemplation and reﬂection ---- the quality imparting maturity. Therefore, the proper age for appointment as judge of the Supreme Court should be between the age of 54 and 60 years. Though, in the past, there have been judges who were appointed at an age less than 54 years and who have distinguished themselves, yet looking to the facts, no appointment should be made to the bench of the Supreme Court at an age less than 54 years?

'Paragraph 6.30.

"Paragraph 6.31.

3Paragraph 6.32.

'Paragraphs 7.1 and 7.2.

-'Paragraph 7.3.

"Paragraph 7.4.

7Paragraph 7.5.

"Paragraph 7.6.

"Paragraphs 7.7 and 7.8.

6-315 LAD/ND/79 36 (34) The principle of seniority should be observed in the appointment to the oﬂice of the Chief Justice. Departure from this principle in the past has aroused controversy and has affected the image of the office of the Chief Justice.

The vesting oi' unbridled power in the executive to depart from this principle may be abused. and may also make inroads into judicial independence and affect the approach of the judges. Where, in an individual case, the Government proposes to depart from this principle, the matter should be referred to a panel consisting of all the sitting Supreme Court judges, and the departure should be made only after this panel ﬁnds suﬂicient cause for such a course. In case of difference of opinion, the decision of the majority would be the decision of the panel} (35) Even where, in the matter of appointment to the Supreme Court, regard is had for representation of dilferent regions, the best person from the region should be appointed to the Court?

S. N. SHANKER ......................... .. Member.

T. S. KRISHNAMOORTHY Ivan ......................... .. Member.

I'. M. BAKSHI    Member-Secretary.

August 10, 1979.

M1AParagraph 7.9.
2Paragraph 7.10.



Functions
of the
Panel

in
U.S.K.

Standards
for
selection.

MJ
\1

APl'l;i\'DlX 1

Ci'/'cm'r .Iud<:es i'-.70n1/na!i'0.ii Commission in U.S./1.

1, In U S. .'\.. i)I"C3iLl€l'iii{1l Order 11972 has established a circuit judges nominating commission to supply the President with names of the "best qualified" persons for appointment to the United States Courts of Appeal} The Order provides for a commission of thirteen panels, one for each of the federal circuits, except the Fifth and Ninth circuits. which will have two each.

The Panels will be appointed by the President when a vacancy exists on a court of appeals. and their purpose will be to recommend to the President for nomination "persons whose character, experience, ability and commitment to equal justice under law fully qualify them to serve in the federal judiciary".

Each panel will have not more than eleven members, including its Chairman, and must include "members of both sexes, members of minority groups, and approximately equal numbers of lawyers and non-lawyers".

2. The functions of the panels are outlined in the Order as follows:----

"A panel shall begin functioning when the President notiﬁes its Chairman that he desires the panel's assistance in aid of his constitutional responsibility and discretion to select a nominee to ﬁll a vacancy on a United States Court of Appeals. Upon such notiﬁcation, the panel shall :--

(a) Give public notice of the vacancy within the relevant geographic area, inviting suggestions as to potential nominees;

(b) Conduct inquiries to identify potential nominees;

(c) Conduct inquiries to identify those persons among the potential nominees who are well-qualiﬁed to serve as a United States circuit judge; and

(d) Report in conﬁdence to the President, within sixty days after the notiﬁca-

tion of the vacancy, the results of its activities, including its recommendations as to the ﬁve persons whom the panel considers best qualiﬁed to ﬁll the vacancy."

3. The Order sets these standards for the selection of proposed nominees:--

(a) Before transmittinggto the President the names of the ﬁve_ persons it deems best qualiﬁed to ﬁll an existing vacancy, a panel shall have determ1ned:--

ti) that those persons are members in good standing of at least one state bar, of the District of Columbia bar, and members in good standing of any other bars of which they may be members;

(ii) that they possess, and have reputations for, integrity and good character;

(iii) that they are of sound health;

tiv) that they possess, and have commitment to equal justice under law;

iv) that their demeanor, character and personality indicate that they would exhibit judicial tempe-ramount 1-f appointed to the position of United States circuit judge.

demonstrated, outstanding legal ability and

(b) In selecting persons whose names will be transmitted to the President a panel shall consider whether the training, experience, or experience of certain of the well- qualiﬁed individuals would help to meet a perceived need of the court of appeals on which the vacancy exists.

(c) To implement the above standards, a panel may _adopt such additional criteria or guideliness as it considers approprite for the identiﬁcation of potential nominees and the selection of those best qualiﬁed to serve as United States circuit judges.

No commission member may be considered as a potential nominee while serving or for one vear after service. Members will receive no compensation but may be allowed travel expenses.

4. Appointment to panels will end thirty days after submission of the panel's report. The President will appoint a person to ﬁll the vacancy on a panel "within a reasonable time after termination of an appointment or the creation of a vacancy for any other reason".

The Commission had initially an ending date of December 31, 1978, but this was extended by the President? upto December 31, 1981.

5. A similar Order3 appears to have been issued in regard to Federal Judicial Olﬁcers.

1Note in tApril. 1977) American Bar Association Journal, 554, referring to Executive Order 11972, "U. S, Circuit Judges Nomination Commission"; Presidential Documents, Vol. 13, No. 8, page 214, dated 21st February, 1977.

Zlnformation as to extension of date orally obtained from U. S. International Commu- nications Agency, New Delhi.

3Executive Order No. 11992, "Committee on Selection of Federal Judicial Otﬁcers"

Presidential Documents, Vol. 13, No. 22, page 810, dated 30th May, 1977.

APPENDIX 2 Questionnaire Issued by The Law Commission of India NOTE The Law Commission has been asked to study the question of the appointment of Judges of the High Court and the Supreme Court in Depth and to explore the possibilities of improvement in the existing method of appointment. Reference has also been made to a suggestion that there should be an Informal Consultative Panel consisting, perhaps, of three retired Chief Justices of the Supreme Court.

View in this respect has been expressed containing various suggestions as under:---

"( 1) As the provisions of the Constitution stand at present, the appointment of an Informal Consultative Panel in connection with the appointment of Judges of the High Court and the Supreme Court, is of doubtful constitutional validity.

(2) In case it is decided to amend the provisions of the Constitution, we must guard against putting the whole matter of the appointment of the Judges at large and thus open Pandora's Box. The attempt should be made to plug the loopholes in the present system with a view to eliminate favouritism or the impact of any political or party consideration in the matter of appointment rather than to make any radical changes. Radical changes would be necessary if we ﬁnd the method devised by our Constitution for the appointment of Judges to be basically wrong and intrinsically defective. In case, however, we ﬁnd that the scheme of our Constitution for the appointment of Judges is, by and large, sound, but some defects or lacunas have come to surface in the actual working of the scheme, in that event, what would be required is not radical change but such modiﬁcations as may strong then the scheme and eliminate the defects and lacunae.

The scheme for appointment of Judges in our Constitution, prima facie, belongs to the latter category. By and large. the method devised for this purpose by our founding fathers was well considered. Defects, no doubt, have been noticed in the working of the scheme but they are of such a character as can be rectiﬁed without throwing over- board the whole scheme. Efforts should, therefore, be made to rectify the defects and plug the loopholes.

(3) After we have crossed the constitutional hurdles, the appointment of the Informal Consultative Panel (perhaps, it would be better to call it "Judges Appointment Commis- sion"), (hereinafter referred to as the "Commission") is desirable (4) The Members of the Commission should consist of:----

(a) Chief Justice of India (ex-ofﬁcio);

(b) Minister of Law, Justice and Company Affairs (ex-otﬁcio); and

The members of the Commission in category (0) should be appointed for a period of four years to prevent appointment of persons who have. with the passage of time, lost touch with the Judges and the lawyers. The persons belonging to category (c) should be normally those who have been on the Bench of the Supreme Court within six years of their appointment to the Commission under category (c) should consist only of retired Supreme Court Chief Justice is not feasible because this would circumscribe the choice within a very narrow limit which would, perhaps, be not desirable.

The sitting Chief Justice should be the Chairman of the Commission. The Commis- sion should express its views to the Government about the suitability of persons to be appointed as Judges and Chief Justices of the High Court and the Supreme Court. In case of any difference between the members of the Commission the view of the majority should be considered to be the view of the Commission.

The consultation with the Commission would be in addition to the present practice in accordance with the existing constitutional provisions. The consultation with the Commission would take place at the ﬁnal stage before the President is advised to appoint a person.

One effect of the above proposal would be that the Chief Justice of India would come into the picture at two stages one, earlier in accordance with the constitutional provisions and the practice prevailing at present and. second time, as Chairman of the (Iommission. This cannot, in the very nature of things, be helped. The Chief Justice in the meeting of the Commission can apprise the other members of facts which might have come to his notice. He might also clarify some matters. It would be open to the Commission, in case they consider it proper in any particular matter, to informally consult any of the members of the bar, including the Attomey-General, Solicitor-General and the Advocate-General.

Apart from the above the following suggestions are made:

(i) In case of the appointment of a Judge of the High Court, the Chief Justice of the High Court, before making recommendation, should consult his two seniormost colleagues. In the communication containing the recommendation, the Chief Justice should state that he has consulted the two seniormost colleagues and what has been the view of each of them in respect of the recommendation. Normally, a recommen-

dation in which the two seniormost colleagues concur with the Chief Justice, should be accepted.

(ii) Similar course should be adopted in case of the appointment of a Judge of the Supreme Court.

_(iii) In the matter of the appointment of the Chief Justice of the High Court, no Junior Judge should normally be appointed in supersession of the seniormost Judge.

'(iv) _If the seniormost Judge is considered not suitable for appointment as Chief Justice. in that event, a Chief Justice or a Judge from another High Court should normally be appointed as Chief Justice.

(V) Apart from that also, we should more frequently appoint a Judge from outside as Chief Justice of the High Court. The disadvantage of this proposal is that an out- side Chief Justice would not have full knowledge about the local talent. The advantage, however, would be that he would not suffer from any personal likes or dislikes from which a local person having long association with others, might suffer. It should not also take the outsider long to acquire knowledge of the local talent. An outsider is also likely to bring greater detachment and dispassionate approach to the office of the Chief Justice. The advantages may thus outweigh the disadvantages.

(vi) We should also have a convention according to which one-third of the Judges in each High Court should be from another State. This would normally have to be done through process of initial appointments and not by transfer. It would, in the very nature of things, be a slow and gradual process and take some years before we reach the proportion.

Once the principle of having a certain percentage of persons from outside the State as Judges of the High Court is accepted. the modalities to bring about the desired result can be worked out. One suggestion can possibly be that every Chief Justice, while proposing the name of a person for appointment as High Court Judge should mention in the communication as to whether that person agrees to be appointed outside the State. In the case of District Judges proposed to be appointed. the prospect of promo- tion would. in most cases. be enough inducement and thus outweigh the possible inconvenience of being posted outside the State. As regards lawyers, some might consider it advantageous to be anpointd outside the State so that after retirement they can resume, if they so desire, the practice in the State wherein they were practising earlier.

(vii) In the matter of appointment of Chief Justice of the Supreme Court, the normal convention should he to appoint the seniormost Judge. There should be no departure from convenion unless such a course is approved by the Commission, It is requested that your views may be expressed on the following points:

(1) ls the scheme of our Constitution for appointment of Judges of the Supreme Court and the High Court. by and large. sound or does it require to be thrown overboard and substituted by an altogether new scheme?

(2) Have some defects or lacunae come to the surface in actual working of the scherne of our Constitution for appointment of Judges of the Supreme Court and the High Courts?

(3) Do you think that these defects and lacunae are of such a character as can be rectiﬁed by plugging the loopholes and without throwing overboard the whole scheme?

(4\ What is your view regarding the appointment of a Judges Appointment Commission (or whatever be the name given to it)?

(5) In case you are of the view that it is desirable to have the above--mentioned Com- mission. do you agree with the view reproduced above regarding the composition of the commission ? If you do not agree with the above view, who, ln your opinion should be the Chairman and the members of the Commission? Also please specify as to what should. he the strength of the Commission in such an event.

(6) What is your opinion about having. practising members of the bar, including Government counsel. as members of the Commission?

(7) Would you consider it preferable for the Commission to informally consult the members of the Bar. including the Attorney-General. Solicitor-General and Advomte- General. in the matter of the appointment of Judges instead of having members of the bar as members of the Commission?

(R) What is your View regarding the siiggestion that the Chief Justice of the High Court. before making a recommendation should consult his two seniormost colleagues and should state the views of each one of them in respect of the recommendation? What is also your view about the suggestion that a recommendation with which the two senior-

most colleagues agree. should normally be accepted?

w regarding the suggestion that in the matter of appointment of (9) What is your We Judge should normally be appointed in the Chief Justice of the High Court. no Junior supersession of the seniormost Judge?

with regard to the suggestion that if the seniormost Judge am What 1; your vlewor appointment as Chief Justice of the High Court, in that ' l . ' bl f _ geiiilt th:§nChlieert"edJii?tlild: oer' a Judge from another High Court should normally be appoint-

ed as Chief Justice?

(11) What is your View with regard to the suggestion that we should more frequently appoint a Judge from outside the State as Chief Justice of the High Court?

(12) What is your view with regard to the suggestion that We should have a conven- tion according to which one-third of the Judges in each High Court should be from another State?

(13) What is your view with regard to the suggestion that in the matter of the appointment of Chief Justice of the Supreme Court, the normal convention should be to appoint the seniormost Judge and that there should be no departure from this conven- tion unless this course is approved by the Commission?

(14) Should the Commission have the power to initiate a new name not hitherto recommended in the matter of the appointment of----

(a) High Court Judge;

(b) Chief Justice of the High Court;

(d) Chief Justice of the Supreme Court?

If the answer be in the affirmative in respect of some of the categories and in- the negative in respect of other categories, the same may also be indicated.

(15) What is your view regarding the suggestion that the consultation with the Com- mission should be in addition to the present practice in accordance with existing constitu- tional provisions and that consultation should take place at the ﬁnal stage before the President is advised to appoint a person as a Judge?

(16) Should the recommendations of the Commission be binding upon the Government? What suggestions would you make for a situation in which the Government disagrees with the recommendations of the Commission?

(17) If you think that the scheme of appointment of Judges should be thrown over- board and be replaced by an altogether new scheme, what, in your opinion, should be the new scheme?

(18) What is your opinion about having a common panel or pool of persons for appointment as High Court Judges who have given consent to be appointed outside their State?

(19) What, in your opinion, should be the age group out of which persons should be normally appointed Judges of-

(a) the High Court; and

(b) the Supreme Court?

(20) Any other suggestion you would like to make in the matter.

4i APPENDIX 3 Tabulation of Replies to the Questionnaire The Questionnaire issued by the Commission has already been quoted} Of the replies to the Questionnaire, those received from High Courts, High Court Judges, eminent jurists and State Governments,-' are very brieﬂy tabulated below, questionwise.

Question N0. 1.

(a) Seven High Courts regard the present scheme as, by and large, sound.

lb) So do some Judges of one High Court and the Chief Justice and two Judges of another High Court.

id) Four State Governments and one Law Secretary regard the scheme as sound, while one States Government favours an "altogether new scheme".

Question No. 2

la) According to four High Courts, some defects have been seen in the present scheme though they are not serious enough to justiiy changing the scheme. Two High Courts, however, see no substantial detects in the working or the present scheme. Detects menitoned are--appointment on political or caste basis, and suggesting of names by the State Government.

(b) According to some Judges of one High Court and the Chief Justice of another High Court, some defects or lacunae have been seen. they have mentioned, as an example or a delect, the suggestion of a new name by the State Government, and also delaying the matter by keeping the matter pending tor a long time in the State Government, (C) A very eminent jurist is of the view that some lacunae exist.

(d) Three State Governments and one Law Secretary also see some defects in the present scheme. one State Government states that there are no major detects In the present system.

Question No. 3

(a) As regards two High Courts, Question 3 does not arise in view of their reply to Question 2. one High Court has not dealt with question 3. _ Four High Courts have expressed the view that the detects can be rectified by plugging the loopholes without Lhiowing overboard the whole system.

(b) Some Judges of a High Courtand the Chief Justice and a few other Judges of another High Court, are also of the View that the detects can be so remedied.

lc) This is also the view of a very eminent jurist.

id) Three State Governments and one Law Secretary take the view that the defects can be rectilied, while one State Government is of the view that radical changes should be brought about.

Question No. 4

(a) One High Court favours the proposal for Judges Appointment Commission. Six High Courts are opposed to having a Judges Appointment Commission.

lb) Chief Justice and live Judges of one High Court are opposed to it. Une Judge of another High Court favours it.

(C) A very eminent jurist agrees with the proposal for having a Judges Appointment Commission. (He has made detailed suggestion in this behalt).

td) Two State Governments consider it to be desirable. Two State Governments and one Law Secretary regard it as not desirable.

Question No. 5

(a) Six High Courts have sent no reply to Question 5, in view of their reply to Question 4. According to one High Court \WhlCh has, in its reply to Question 4 favoured the idea), the Chief Justice of the Supreme Court and the Law Minister should be ex- otlicio members. It suggests that three more persons who have been Chief Justices or Judges of the Supreme Court, may also be appointed as members,

(b) Chief Justice of one High Court (not having favoured the proposal in Question

4), has not replied to Question 5. A Judge of another High Court (in view of his aﬂirma- tive reply to Question 4) has stated that the three members should be in service, rather than retired.

(c) A very eminent jurist is of the view that the body of persons to be constituted (whether unofficial or constitutional) should not be a mixed one of both Judges and lawyers. It should not also be unwieldy.

'Appendix 2.

2ln the case of one State, the reply is of the Law Secretary.

(d) One State Government is of the view that the composition of the proposed Commission may be suitably devised, and its strength may be seven or nine. Two State Governments and one Law Secretary are opposed to the very idea of a COIIIIIIISSIOD. Another State Government is of the view that-

(i) instead of the Minister of Law, a retired Chief Justice should be made a member;

(ii) the sitting Chief Justice of India would have already had his say and so, the retired Chief Justice of India should (instead_of the sitting Chief Justice of India) be made Chairman of the proposed Commission.

Question No. 6

(a) As regards six High Courts, Question 6 does not arise in view of their reply to Question 4. One High Court is of the view that Government Counsel and practising members of the Bar should not be included in the Commission.

(b) Five Judges of a High Court are of the view that practising members of the bar should not be members.

(c) A very eminent jurist is of the view that the unollicial body should consist of the Attomey-General of India and Advocates--General of all States. Judges and lawyers should not be mixed, as most lawyers would not express their opinion freely in the presence of Judges. Representatives of Bar Associations need not be included, as the Bar Associa- tions are split on the lines of legislatures and are moved by considerations of caste and religion.

(d) Two State Governments and one Law Secretary are opposed to the proposal for Commission, According to one State Government, practising members of the bar or Government counsel should not be made members of the Commission. According to another State Government, one practising member of the bar may be included in the Commission, but not always.

Question No. 7

(a) In the case of six High Courts, this Question does not survive in view of their opinion on Question 4. One High Court is of the view that the Commission may informally consult the Attorney-General, the Solicitor--Gencral and the Advocate-General.

(b) In the case of the Chief Justice and live Judges of one High Court as well as some Judges of another High Court also, question 7 does not survive.

((1) Four State Governments and one Law Secretary do not favour the appointment of a Commission, and for them Question 7 does not survive. One State Government is of the view that the members of the bar should not be consulted at any stage, while, according to another State Government, one practising member of the bar may (as suggested in its reply to Question 6) be included (though not always). But if that is not practicable, the Attorney-General be consulted informally.

Question No. 8

(a) Three High Courts agree with the suggestion in Question 8. They are also in general agreement with the view that a recommendation of the Chief Justice of the High Court with which the two seniormost Judges agree should normally be accepted. Accord- ing to one High Court, there should be a provision for consulting--

(i) seven Judges, where the High Court consists of (at least) 14 Judges, and

(ii) ﬁve Judges, where the High Court consists of less than 14 Judges.

However, the recommendation of the Chief Justice (of the High Court) should normally be accepted.

Three High Courts do not agree with the suggestion in Question 8. Such a course may spoil the harmonious atmosphere in the High Court and encourage lobbying and groupism. The matter should be left to the Chief Justice in his discretion,

(b) Some Judges of one High Court agree with the suggestion, but the Chief Justice of that High Court does not agree, as it may encourage lobbying and groupism. In another High Court, some Judges agree with the suggestion, but one Judge does not agree.

(c) A very eminent jurist is of the view that the present provision in Article 217 is "totally inadequate". A High Court Judge, in his opinion, should be appointed after consulting the Chief Justice of India and other Judges of the High Court, or three Chief Justices, or all the Chief Justices of the other High Courts.

(d) Four State Governments and one Law Secretary agree that the seniormost colleagues should be consulted and that the recommndation of the Chief Justice supported by them should be normally accepted. Some of them further add that the Chief Justice should also state the views of his colleagues, along with his own recommendation.

Question No. 9

(a) Seven High Courts agree with the suggestion_

(b) Chief Justice and six Judges of one High Court and some Judges of another High Court also agree.

(c) A very eminent jurist is of the view that junior Judges should not be normally appointed in supersession, until article 124 is amended or a permanent Commission appointed.

((1) One State Government and one Law Secretary agree with the suggestion. According to one State Government, when the seniormost Judge is not considered fit for Chief 43 Justiceship. then approval of the proposed Commission should be necessary. Two State Governments are opposed to the suggestion, one of them stating that seniority is not sacrosanct and merit alone may be the consideration.

Question No. 10

(a) One High Court agrees with the view put forth in the Question, but adds that the Chief Justice or Judge of another High Court, who is appointed as Chief Justice, should be senior to the seniormost Judge of the Court (in the all-India cadre of High Court Judges).

Six High Courts are opposed to the suggestion put in Question 10. It has been stated by some of them that before the appointment of a High Court Judge, his suitability is judged at various stages, and it is ditlicult to think that the seniormost Judge is not suit- able as Chief Justice. One of these High Courts adds that if the seniormost Judge is considered untit, an outsider should not be appointed, but the next seniormost Judge should be appointed.

tb) As regards individual Judges who have sent replies, in one High Court four Judges are opposed to the suggestion, while the Chief Justice and two Judges are agreeable. In another High Court, some Judges agree.

(c) A very eminent jurist agrees with the suggestion, but adds that there should be no inﬂexible rule and even an outstanding member of the bar should be considered.

td) One. State Government agrees that if the seniormost Judge is not suitable, the Judge of another High Court be brought as Chief Justice, but in that case the seniormost Judge of the High Court should be considered for Chief Justioeship in another High Court.

One State Governmtnt accepts the suggestion only to a very limited extent, The Chief Justice should be from the State where the High Court is situated. l-I, under any extraordinary circumstances, any outside judge is appointed as Chief Justice, such Judge should be a person proticient in the language of the State.

Two State Governments are opposed to the suggtstion to appoint a Judge from another High Court. One of them has stated that the bringing of Judges from other High Court:

is merely a mellowing factor, adding that the next seniormost Judge be appointed as Chief Justice.

One Law Secretary agrees with the suggestion in the Question, but the outside Judge should be brought only on the choice of the Chief Justice of lndia, who should consult his two seniormost colleagues, Question N0. 11

(a) According to one High Court, a Judge from outside be appointed as Chief Justice only in the circumstances mentioned in Question 10. In another High Court, the Chief Justice agrees with the suggestion, while other Judges are opposed. Five High Courts are opposed to the suggestion.

tb) ln regard to individual Judges, some Judges of one High Court, and some Judges of another High Court, are opposed.

to) A very eminent jurist agrees with the suggestion.

td) One State Government agrees with the suggestion, but stresses that considerations of regional language claim should be kept in mind One Law Secretary is of the View that an outsider be appointed as Chief Justice, but only when the seniormost Judge is unsuitable.

One State Government has not specifically dealt with this Question, Two are opposed.

Question No. 12

(a) Three High Courts agree with the suggestion, but out of them---

(i) one has expressed agreement only in principle, stating that practical diﬂiculties (for example, the proceedings being in regional language) may come in; and

(ii) another has qualiticd its agreement with the, suggestion by stating that one-third Judges of each High Court should be "initially" appointed in another State on a reciprocal basis.

Three High Courts are opposed to the suggestion. In their view, it is impracticable. In one High Court, the Chief Justice agrees with the suggestion, but not the other Judges.

(b) In regard to individual Judges the opinion in one High Court was equally divided:

the Chief Justice was of the view that the suggestion will not bring forth the result envisag- ed. In another High Court, one Judge agrees with the suggestion, while one Judge is opposed and iour Judges state that only willing Judges should be transferred, but that there should be no convention.

(c) A very eminent jurist has expressed himself as wholly in favour of the suggestion.

(d) Two State Governments and one Law Secretary are in agreement with the sugges-

tion. Besides this, one more State Government is of the view that one-ﬁfth of the Judges may be from outside the State; that State Government has also expressed the view that one-fifth of the Judges appointed from the Bar should be from among Advocates practis- ing in Mofussil District Courts. Finally, one State Government, though not in favour of the suggestion for appointment of Judges from outside the State in any fixed ratio, favours measures calculated to induct Judges from outside the State.

Question No. l3

(a) Seven High Courts agree with the suggestion in the Question (that the normal convention should be to appoint the seniormost Judge as the Chief Justice of the Supreme Court), Of these, ﬁve High Courts state (or imply) that there should be no departure from 44 the convention, according to the sixth High Court, there should be no departure unless approved by two-third of the Chief Justices of the High Courts. According to the seventh High Court, there should be no departure from the convention unless approved by the proposed Commission.

(b) As to the replies of individual Judges, some Judges of one High Court agree with the suggestion in the question. In the other High Court, two Judges agree with the suggestion in the Question, but they add that in case of a departure from the convention, other ﬁve seniormost Judges should be consulted.

(c) A very eminent jurist is of the view that in the context of the situation where the Government of the day cannot be trusted to act in accordance with the spirit of article 124(2), at least ﬁve seniormost Judges should be consulted. Fttrther when appointment of the Chief Justice of India is to be from outside the Supreme Court, all Chief Justices of the High Courts should be consulted. As to appointment of a Supreme Court Judge, all Judges of the Supreme Court and High Courts should be consulted.

Question No. 14

(a) The only High Court that has favoured the proposal for a Judges Appointment Commission is of the view that the proposed Commission should not have a power to initiate any new name for appointment of Judges of High Court or Supreme Court or Chief Justice of the High Court. As regards Chief Justice of the. Supreme Court, when all other Judges of the Supreme Court in the order of seniority are unsuitable, then a new name for the Chief Justice of the Supreme Court may be initiated by the proposed Commission.

(b) One Judge of a High Court is of the View that the proposed Commission should have no power to initiate new names.

(c) According to a very eminent jurist, the proposed Commission should have power to initiate new names for Judges, but not for the Chief Justiceship.

(cl) Of the two State Governments that 'favour a Commission, one is of the view that the Commission should have power to initiate a new name, while the other is opposed on the ground that the Commission is a consultative body.

Question No. 15

(a) The only High Court that has favoured the proposal for a Commission is of the view that consultation with it should be at the ﬁnal stage and in addition to the present constitutional provision.

tb) This is also the view of one High Court Judge.

(c) A very eminent jurist has expressed the view that consultation with the Commis- sion should be in addition to the present p. actice and in accordance with existing constitu- tional provisions.

(d) Of the two State Governments that have favoured a Commission, one is of the View that consultation with the Commission should be in addition to present constitutional position and at the last stage. The other State Government has simply stated that the view of the Government may prevail.

Question N0. l6

(a) The only High Court that has favoured the proposal is of the view that the recommendation of the Commission should be binding on the Government.

(b) This also is the view of one Judge of a High Court,

(c) A very eminent jurist is of the view that for some time the working of the Commission should be tried. Even if consultation with it is made a part of the Constitu- tion, it is not, at the present stage, possible to make its recommendation binding, since, as the matter stands_ even the recommendations of the Chief Justices are not binding. However, an appropriate provision should be made in the relevant article to the effect that the Government shull not appoint any person who is not supported by the majority of the Commission and the Chief Justice and Judges of the Supreme Court or of the High Court, as the case may be.

((1) Of the two State Governmnts which favour a Commission, one is of the view that its recommendation should be of a persuasive character. while the other answers the question in the atlirmative.

(Wuestion No. 17

(a) Of the High Courts, only three have speciﬁcally answered this question. One has stated that it should be the "invariable convention" that the seniormost Judge be appointed as Chief Justice of the Supreme Court. According to another High Court, this should be the "normal convention". and the question of approval by the Commission does not arise. According to the third. the existing scheme should not be thrown over- board.

(b) According to one High Court Judge, the existing scheme should not be thrown overboard.

(c) A very eminent jurist who has replied to_ the Questionnaire in great detail has made no suggestion for any new scheme (or appointment of Judges.

td\ Of the State Governments that have dealt with Question 17, one is opposed to any such convention while the other has suggested that for one appointment, there should be a panel of three names for consideration for appointment of a Judge before the Govern- ment. Choice must be left open to the Government, who will select one out of those three.

Question No. 18.

(a) Six High Courts have speciﬁcally dealt with this Question. One is in favour of a convention for appointing one-third Judges from outside. the State subject to its observation on Question 12 (supra). Another High Court favours a common pool but has pointed out that outsiders will have diﬂiculty of language. The remaining four High Courts are opposed to the suggestion put forth in the Question.

(b) Some Judges of a High Court are opposed, and so are ﬁve Judges of another High Court, four of them adding that second-rate persons will get in (if the suggestion is implemented).

(c) A very eminent jurist is, however. in favour of having a common panel or pool of persons who have given their consent to being: appointed outside the State,

(d) Of the State Governments, three welcome a common pool; one is against it. A Law Secretary is also against it.

Question No. l9 The replies on Question l9 reveal wide variety. The following are the ages suggested :

(a) High Courts One High Court . . High Court Judges _ 47_50 years.

Supreme Court Judges ._ 55-58 years.

One High Court . High Court Judges _ 40 years (lower age limit). One High Court . . High Court Judges __ Round about 50 years. Supreme Court Judges _ 55 years for direct recruitment. One High Court . . High Court Judges ~ 40_50 years.

Supreme Court Judges .. 50_60 years.

One High Court . . High Court Judges _ 45_ 55 years.

Supreme Court Judges _ 50.60 years.

One High Court . . High Court Judges _ No age consideration for High Court Judges.

Supreme Court Judges _ 45_55 years (for members of the Bar only).

One High Court . . High Court Judges ._ (i) 45_..55 years (for members of the Bar).

(ii) 55__58 years (for members of Judicial Service).

Supreme Court Judges __ 50._60 years.

(b) High Court Judges Chief Justice of a High High Court Judges 50 years (minimum) Court. Supreme Court Judges _ 55 years (minimum).

Some Judges of a 'High High Court Judges lower age limit 42 years C0ll!'t- (No upper age limit in the case of those persons in service).

Supreme Court Judges ._ 50 years (lower age limit).

One Judge of a High Court High Court Judges _45_55 years. Supreme Court Judges _ 55_6O years.

One Judge of a High Court High Court Judges ._ 47_55 years. Supreme Court Judges ._ 55-62 years.

Four Judges of a High Court. High Court Judges _ 40.. 52 years. Supreme Court Judges _.. 50_58 years.

Both relaxabel in case of extra ordinary qualiﬁcations.

(d) State,'Governmem' One State Government . High Court Judges - 45_ 50 years. One State Government . Suprc me Court Judges 50-55 years. _ 45-58 years normally.

One State Government . -- Should have completed_

(i) 35 years for High Court.

(ii) 45 years for Supreme Court.

One State Government . _ The minimum age for appoint-

ment of Judges must be 50 years:

Certainly younger persons may not be selected for the High Court. For Supreme Court, the minimum age should be 55 years.

Question No. 20

(a) One High Court has suggested that the recommendation of the Chief Justice of the High Court for the appointment of a Judge should be sent directly to the Chief Justice of India and not through the Chief Minister or the Governor. The initiation of a proposal for appointment of the Chief Justice of the High Court should be from the Chief Justice of India, and not from the State Government.

Another High Court is of the view that there should be a time-bound procedure for the appointment of Hi@ Court Judges, particularly in regard to the stage of the Chief Minister sending comments on the names recommended by the Chief Justice for appoint- ment as High Court Judge. The time limit should be one month, and if no comments are received within the period of one month, it should be assumed that the names recom- mended by the Chief Justice have the approval of the State Government.

Another High Court has suggested that the appointment (to the High C_ourt) must be made within 6 months of getting the consent of a member of the bar. If the authorities to not give their opinion within a stated period. they should be deemed to have agreed with the Chief Justice. It is also suggested that the Members of the Bar should be entitled to full pension after 7 years of service as Judge. That High Court is opposed to a ﬁxed quota for appointment from services, and suggests that merit alone should be considered, irrespective of seniority.

(bl The Chief Justice of a High Court is of the view that the Chief Justice of the High Court should send his recommendation to the Chief Justice of India. In his opinion, consultation with the Chief Minister and the Law Minister is an extra--constitutional practice. Some Judges of another High Court have also stated that the State Government should have no say in the matter of appointment of Judges and that the provision regarding consuitation with the Governor should be deleted. But the Chief Justice of the same High Court is not in favour of deleting the provision regarding consultation with the Governor.

According to some Judges of a High Court, there should be no transfer of a High Court Judge without his consent. They are also of the view that no person should be appointed as a Judge of the High Court unless recommended either by the Chief Justice of the High Court or by the Chief Justice of India and that no person should be appointed as a Judge of the Supreme Court unless recommended by the Chief Justice of India.

A Judge of another High Court has expressed the view that the appointment of High Court Judges should be made on the recommendation of the Chief Justice of the High Court, who should have a preponderating voice.

(cl A very eminent jurist who has sent a reply to the Questionnaire has no further suggestions to make,

(d) As regards the State Governments, one of them is of the view that there should be one--third of the Judges of the High Court from the subordinate judiciary to attract better talent while another State Government suggests that at least 60 per cent of the Judges should be appointed by promotion of District Judges as a ﬁllip to the lower judiciary which decides the fate of the common man.

One Law Secretary would like half of the vacancies in the High Courts to be ﬁlled from amongst District and Sessions Judges.

Consultation with the Chief Justice of India and his two seniormost colleagues for the appointment of Judges in the Supreme Court has been suggested by a State Government.

A State Government has suggested that 6 months before a Judge is to retire, the process for selection should be initiated. Another State Government would like the names of the candidates considered for appointment to be duly published 6 weeks in advance, so that if any candidate. has unsatisfactory or unsavcury past, it may be brought to the notice of the members of the public. It says that the Government would make secret inquiries about the truth or falsity of the allegation against any aspirant before a ﬁnal decision is taken.

One Law Secretary suggests that at least 10 members should be considered for the post of High Court Judge and selection should be on seniority-cum-merit basis.

The proposal from the Chief Justice of the High Court after consultation with two seniormost colleagues and agreed in by the State Government should, he says, he accepted. He has emphasised that in the conﬁrmation. extension and transfer of High Court Judges, the Chief Justice of India should have a decisive voice.

GIPN ---~SS~31S LAD(N D) I 79~--5-3-80~-2000.

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Method Of Appointments Of Judges