Overpowering the judiciary is not a new phenomenon. Post-independence, all successive governments have ventured to tinker with the independence of Judiciary in India in some way or the other. Bringing judges of their choice in the higher judiciary has become the most common technique to intrude in the judicial system. However, elevating Justice A.N. Ray as the Chief Justice of India in the year 1973, superseding three senior Judges, perhaps, was the direct onslaught on the independence of Judiciary.

This was an upshot of Kesavananda Bharti judgment in the year 1973, which had enunciated the basic structure doctrine and had decreed that power of the Parliament to amend and alter the Constitution was not unlimited. Earlier to that too, in the year 1964, Justice Gajendragadkar was appointed as Chief Justice of India, superseding Justice Imam. This supersession was not much offending, as it was done on health grounds of Justice Imam.

After the retirement of Justice A. N. Ray, Justice M. H. Beg was appointed as Chief Justice of India, superseding the senior-most Judge of the Supreme Court, Justice H. R. Khanna, presumably, in retaliation to Justice Khanna's scathing dissent in the ADM Jabalpur case. Briefly, the government, could not digest the dissenting voice, on the doctrine of basic structure of the Constitution and that of personal liberty over-riding detention during Emergency. These two supersessions are still regarded as the saddest period in Indian judiciary.

Current conundrum
Legislature, Executive and Judiciary are the three pillars of governance under the Constitution of India. Judiciary is considered to be the custodian of the Constitution. As a corollary, an independent judiciary is important for preserving the Rule of Law and is, therefore, the most important facet of good governance. Judiciary's power to review the legislations, irks the Legislators. Very often, the Legislators raise eyebrows towards the judiciary by terming their dictates as 'overreach' and over-stepping the un-demarcated line of 'lakshmanrekha'. All the Legislators come under one umbrella, shedding their different ideologies and political charters, to impeach the judiciary under the guise of apprehended Constitutional crisis.

To fulfill the avowed agenda to overpower/control the judiciary, several attempts were made, by way of intrusion in the process of selection and appointment of judges in the High Courts and the Supreme Court. Several endeavors were made by successive governments, to enter in the arena of the process of selection of judges of higher judiciary. It started in the year 1990, when the Government of the day, attempted to constitute a National Judicial Commission through the Constitution (Amendment) Bill, 1990. However, the Bill lapsed due to dissolution of the Lok Sabha in the year 1991.

The tussle to make entry in the selection process took a new turn, after judgment of the Hon'ble Supreme Court in the case of Supreme Court Advocates on Record Association and Another -vs- UOI in the year 1993. In this judgment the Apex Court brought-in the concept of 'collegium' and pronounced that appointment of judges in the higher judiciary is an "integrated participatory consultative process". This view was reiterated in Ref. No.1 of 1998, popularly known as 'the Third Judges Case'. This was the turning point inintensifying the tussle of supremacy between the Judiciary and the Government.

The Central Government evolved the idea of constituting a National Commission to review the working of the Constitution. This Commission (NCRWC) was headed by former Chief Justice of India, Justice M.N. Venkatachaliah. The Commission submitted its report in the year 2002, recommending establishment of a National Judicial Appointments Commission (NJAC) comprising of five members, namely Chief Justice of India, two senior most judges of the Supreme Court, the Union Minister of Law and Justice and one eminent person, nominated by the President after consulting the Chief Justice of India.

Pursuant to this report, the Constitution (98th Amendment) Bill, 2003 was introduced in the Parliament to set up an NJAC for appointment of High Court and Supreme Court judges, in terms of the recommendations of the NCRWC. This Bill also lapsed due to dissolution of the Lok Sabha in March, 2004.

Undeterred with previous failures, the government pursued its determination to be a part of the selection process of Judges. Finally, the Constitution (121st Amendment) Bill, 2014 was passed by both the houses of Parliament and after obtaining assent of the President of India, the Constitution (99th Amendment) Act, 2014 came into force on 13.04.2014. This amendment altered Article 124 of the Constitution providing that appointments and transfers of High Court and Supreme Court judges be made on the recommendations of NJAC. Simultaneously, the Parliament also passed the National Judicial Appointment Commission Act, 2014.

The 99th Amendment Act as well as the NJAC Act came for judicial scrutiny before the Hon'ble Supreme Court in Supreme Court Advocates on Record Association -vs- UOI (commonly known as Fourth Judges Case). The 99th Amendment of the Constitution (amending Article 124) as well as the NJAC Act, 2014 was struck down per majority vide judgment dated 16.12.2015. In this judgment also, the Apex Court reiterated the primacy of judiciary in appointment of judges and held the same to be an integral part of independence of judiciary, which, is a constituent part of the basic structure of the Constitution, flowing from interpretation of the term 'Consultation'.

The Supreme Court has also berated the Government and took exception about inclusion of Union Minister of Law and Justice in the NJAC under the garb of it being a threat to the independence of the judiciary.

This appears to be an extreme position since the process of appointment of judges of higher judiciary passes through Ministry of Law and Justice and His Excellency the President of India cannot act without aid and advice of the "Council of Ministers" under Article 74. This appears to be an extreme position since, the process of appointment of judges of higher judiciary passes through Ministry of Law and Justice.

In the backdrop of severe controversy of collegium system doing rounds in public domain, more particularly its opaqueness (the author is withholding the nasty allegations made against the collegium system in public), it appears improper to stretch the concept of 'consultation' and 'independence of judiciary' beyond an acceptable limit, while completely striking down the NJAC Act, [except the dissenting voice of Hon'ble Justice J. Chelameswar].

In a democracy and more particularly from the institution of Judiciary, people expect more transparency. However, while declaring 99th (Amendment) of the Constitution and the NJAC Act as ultra vires the Hon'ble Supreme Court is seen to have sent a message that it did not wish to part-ways with its monopoly in selecting judges, to any extent, form or to any other authority.

Now, the conundrum is stuck in mud of Memorandum of Procedure (MOP) for appointment of Judges. Though, both parties have agreed in principle that there should be a Memorandum of Procedure to appoint High Court and Supreme Court Judges, the said MOP is also not forthcoming, on one hand, due to the persistent stand of the Government in the name of "improvement" and on the other hand, the so called pseudo threat upon the independence of the judiciary.

Quota in appointment of High Court Judges
The above controversy is at its highest peak. Both sides are exhibiting extreme postures. In the meanwhile, Judicial Service Association of Delhi has recently raked a new controversy by filing a Writ Petition in the Delhi High Court, demanding that the ratio of Judicial Officers in the appointment of High Court Judges be raised to 50%. As per the existing norms, the strength of judges in various High Courts are filled up in the ratio of 67:33% from the Bar and the State Judicial Service Cadre, respectively.

Article 217 of the Constitution of India, covenants the appointment and conditions of High Court judges. For ready reference only the relevant part of Article 217 (2) is extracted below:

217 (2) - A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and:

1. has for at-least ten years held a judicial office in the territory of India; or
2. has for at-least ten years been an advocate of High Court or of two or more such courts in succession;

I thoroughly endorse the sentiments expressed by the officers of district judiciary of Delhi. It has rightly been pleaded in the Writ Petition that Article 217 of the Constitution of India, neither prescribes any proportion for appointment of judges vis-�-vis categories (a) & (b). Contrary to that, the category of judicial officers for their elevation to the High Court, is placed above the category of advocates in Article 217 (2) (a).

It has also been rightly pleaded that once the judicial officers become eligible for their elevation to the High Court after putting in ten years of service, there is less possibility of any allegation of political affiliation or attachment, which is the ostensive, prime and foremost concern of any government. Besides this, judicial officers are already acclimatized to justice delivery system, having devoted a considerable long period in rendering justice to all strata of society, irrespective of race, caste, sex, creed, religion, faith, political affiliation or economic status.

Article 14 of the Constitution of India is a sacrosanct and one of the most revered pieces of fundamental rights guaranteed in Part III of the Constitution. Truly speaking this is the first among other fundamental rights enshrined in Part III. Article 14 mandates equality before law and equal protection of the laws within the territory of India. I consider this fundamental right as the pillar of Indian democracy. Any tinkering with this inherent right of Indian citizens would irreparably destroy the fabric of equality.

Similarly, Article 15 of the Constitution of India also prohibits discrimination on the grounds of race, religion, etc. with certain exceptions provided under Article 15 [Exception 3 & 4]. However, the practice being followed to set apart a higher ratio for the advocates, in the matter of their elevation as judges of the High Courts, does not stem out from the aforesaid Exceptions.

The first choice to elevate advocates as judges of High Courts, and occasionally to the Supreme Court, by way of Executive Circular, is possibly based on prejudice and a notion that advocates are superior in quality to the serving officers in the District judiciary. This perception has no legs to stand, in as much as, many judges elevated from District judiciary to the High Courts and to the Supreme Court have excelled in discharge of their duties and have received respect from the Bar and the litigants, alike.

Similarly, Article 16 of the Constitution of India also stipulates equality of opportunity in matters of public employment. It is true that the post of judge of a High Court may not be considered as public employment. However, in my considered opinion a constitutional position is far above a public employment and the appropriate authorities should not override or summarily bypass the Constitutional mandates provided under Articles 14, 15, 16 and other related provisions under Part III and Part IV of the Constitution. I feel no hesitation to opine that criteria of appointment of High Court judges in the ratio 67:33% is ex-facie arbitrary, discriminatory, subjective, prejudiced and contrary to the letter and spirit of Constitutional provisions.

Seniority disparity
In the same line of deviation from the written words of Article 217 (2) of the Constitution, the government is also discriminating the judicial officers of District judiciary, who are fortunate to be elevated, in fixing their seniority after their elevation to the High Courts, even if they are senior in age to the judges who are elevated from the Bar. On the basis of Executive Circulars, judicial officers are placed below the judges who are directly elevated from the Bar as High Court Judges, in seniority.

However, the scenario in the Hon'ble Supreme Court is just opposite to it where the judges elevated from the Bar are not so fortunate to get seniority over the judges elevated from the high courts. It is true that Article 217 does not distinguishes in the eligibility criteria for elevation as High Court judge, so far their experience in judicial field is concerned. However, in reality neither a judicial officer in the lowest rank reaches the position of a District Judge in 10 years, [the qualification as prescribed in Article 217 for elevation to the High Court] nor such promotee District Judges are elevated exactly on completion of 10 years of service.

There are also very few instances where directly recruited District judges have been elevated to the High Courts immediately after completing 10 years of judicial service. On the contrary, there are abundant instances where judicial officers are taken to the High Courts at the fag end of their careers. Unfortunately, if such judicial officers happen to be elevated to the High Courts along with members of the Bar, they are placed below in seniority. This practice, in all essence, disregards the dignity of judicial officers, overlooking their experience and also disrespects their age. This practice also offends Article 14 of the Constitution with all impunity.

The language employed in Article 124 (2) of the Constitution is parimateria to Article 217 (2) of the Constitution. In the last seven decades only eight Advocates were found suitable to be picked up for their appointment to the Supreme Court directly, in absence of any executive circular securing judge-advocate ratio. Hence, the analogy, which must have been drawn from the 'doctrine of pleasure', in fixing 67:33% ratio, only for elevation of judicial officers and advocates to the High Courts, is also prima facie arbitrary.

Peroration
Common people are suffering in the midst of power struggle between the Judiciary and the Government. The imbroglio and the conundrum regarding appointment of High Court and Supreme Court Judges should not be allowed to drag on, at the cost of the litigants. The fire of ego needs to be doused with joint efforts of judiciary and the government, albeit maintaining and respecting each other's domain within the Constitutional framework.

In my opinion, the composition of the Selection Committee, suggested by Hon'ble Justice M.N. Venkatachaliah his report in the year 2002 through NCRWC, should be accepted by the Hon'ble Supreme Court as the judiciary would wield the power being in majority in the composition and without any veto power of any member.

The composition would be in consonance with Article 74, full-filling the requirement of consultation with the Council of Ministers to a greater extent and also bringing transparency in the selection process of judges through eminent person in the committee.

While resolving the MOP for selection and appointment of judges of the higher judiciary, both, the Supreme Court and the government should also re-examine the validity of fixing the ratio of appointment of High Court judges, which appears to be dehors the unambiguous language of Article 217 (2) of the Constitution.

In the same process, both the aforesaid authorities should also re-visit the precedence being followed to give seniority to the judges who come from the Bar, in preference to the judges who are elevated from the District judiciary in the High Courts by virtue of Notifications issued on even dates, keeping in mind the old adage that justice should not only be done but it must be tangible on its face.

Written By: Retd. Justice B D Agarwal
Vip Road, Radhanagar, Guwahati-781022, Assam
Email: [email protected], Ph no:  9435136573