Appointment of Supreme Court Judges: Options Before The Constitution Makers

Article 124(2) of the Indian Constitution deals with the method of appointment of Judges to the Supreme Court. Its form, prior to the failed NJAC Constitutional Amendment Bill of 2014, was as follows:

“Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five 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”

In the 80s and the 90s, the Supreme Court, via the three ‘Judges Cases‘ changed the meaning of this Article and took over considerable powers in the appointment of the Judges to the Supreme Court. It created the ‘collegium‘ system, which continues to be the mode of operation even today.

In this article, let us look at how the makers of our Constitution looked at this issue, the various options they considered, and the final decision they resorted to.

Opinion of the Special Committee

During the initial stages of the Constituent Assembly itself, a special committee was constituted to address the question of constitution and powers of the Supreme Court. This committee consisted of S Varadachariar, Alladi Krishnaswami Ayyar, B L Mitter, K M Munshi and B N Rau (the Constitutional Adviser).

This committee submitted its report on the 21st of May, 1947.

On the question of appointment of Judges to the Supreme Court, the committee suggested two options.

“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”

Its comment on the first option was as below:

“One method is that the President should, in consultation with the Chief Justice of the Supreme Court (so far as appointment of puisne 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 officers of the Union

The second option was as below:

“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 appointment 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 an ad hoc body but must be one appointed for a term of 10 years”

Opinion of the Constitutional Adviser

The Constitutional Adviser, B N Rau, took up this recommendation and made some modifications of his own. He suggested that the appointment should be made by the President with the approval of at least two-thirds of the ‘Council of State‘. The Council of State was a body, conceived of at that stage, that would aid the President in making important decisions, that needed to be independent and on non-party lines.

His exact recommendation was as below:

“The ad hoc Committee on the Supreme Court has observed that it will not be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. They have suggested two alternatives, both of which will involve the setting up of a special panel of eleven members…….

……….The relevant section in the draft clauses adopts substantially the first alternative, utilising at the same time the Council of State for this purpose. It will be noticed that the Council of State includes the Chief Justice among its members and its composition is such as to secure freedom from party bias”

The exact draft clause as suggested by him was as below:

“Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal with the approval of not less than two-thirds of the members of the Council of State and shall hold office until he attains the age of sixty-five years”

K T Shah’s General Directives

In May 1947, a ‘Union Constitution Committee’ was constituted to provide inputs to the drafting of the Constitution. It solicited feedback from the Constituent Assembly members and others on all issues.

K T Shah submitted a detailed response to this committee and termed it as ‘General Directives’. He submitted the same in December 1947 and it included a detailed comment on the mode of appointing Supreme Court judges.

His exact suggestions were as below:

Every appointment of a judge of the Supreme Court shall be for life, unless otherwise ordained and provided for by Act of the Union Legislature.

Judges of the Supreme Court shall be appointed from among practising lawyers of prescribed standing, judges of High Courts and other judicial officers of the Union, or in any component part thereof or from among professors of law or jurisprudence by the Head of the State; provided that the Union Legislature may, by a majority of two-thirds of the members present and voting, order the removal of any judge or judicial officer on grounds of proved offence against the safety, security or tranquility of the Union, proved misconduct, incurable illness, established infirmity of mind or body, and consequent incapacity or violation of the oath of office.

The judicial organ of the State in India shall be wholly independent, and co-equal of the legislative and the executive, in power, function and authority. In no case shall any judicial function, power or authority be vested in any administrative or executive officer, body or authority”

Opinion of the Union Constitution Committee

The Union Constitution Committee met on the June 11, 1947, in which the Articles related to the Supreme Court were discussed. On the question of appointment of judges to the Supreme Court, the committee felt that the President should consult the Chief Justice and such other judges of the Supreme Court and High Courts as necessary.

The extract from the minutes of the meeting are as below:

“As regards the method of appointment it was agreed that the President should appoint the judges of the Supreme Court after consulting the Chief Justice of the Supreme Court and such other judges of the Supreme Court and of other High Courts as may be necessary for the purpose”

Note: It is this recommendation that got into the draft Constitution and pretty much the same version got accepted as the final Article.

The committee submitted a report on the 4th of July 1947, in which the following draft clause was included.

“Supreme Court: There shall be a Supreme Court with the constitution, powers and jurisdiction recommended by the ad hoc Committee on the Union Judiciary, except that a judge of the Supreme Court shall be appointed by the President after consulting the Chief Justice and such other judges of the Supreme Court as also such judges of the High Courts as may be necessary for the purpose”

Feedback from the Provincial High Courts

The Draft Constitution was circulated amongst relevant stake holders and several of them provided feedback. The Chief Justices of the Provincial High Courts and the Federal Court (of that time) presented a joint memorandum in March 1948.

It contained the following recommendation:

“Every judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India….

……The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court, and article 103(2) may also be suitably modified”

In addition, the joint memorandum made an interesting suggestion expanding the powers of the President in this matter.

“In this connection, it is not appreciated why a constitutional obligation should be cast on the President to consult any judge or judges of the Supreme Court or of the High Courts in the States before appointing a judge of the Supreme Court. There is nothing to prevent the President from consulting them whenever he deems it necessary to do so”

Opinion of the Drafting Committee

The Drafting Committee had mooted the idea of an “Instrument of Instructions” to be issued to the President. This would be a series of guidelines/instructions to the President, in the form of a new Schedule to the Constitution – Schedule IIIA.

As part of this, an ‘Advisory Board‘ would be constituted. This board would constitute not less than 15 members of the Houses of Parliament to be elected by both Houses by the method of proportional representation by means of the single transferable vote. It would also include the leader of Opposition in either House of Parliament and would advise the President on the making of appointments such as all Ambassadors in foreign States, the Auditor-General of India, the Chairman of the UPSC and so on.

It would also advise the President on the appointment of judges to the Supreme Court and the High Courts.

The procedure for appointment of judges to the Supreme Court would be as follows:

“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);

2. 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 High Courts, other than those in Part III States;

3. the recommendations of the judges so consulted would be placed before the Advisory Board for its advice.”

If the advice of the Board was not accepted, it could insist that its dissent be recorded and placed before Parliament with a memorandum explaining the reasons.

During the Constituent Assembly debates, it was Dr B R Ambedkar who introduced the amendment to include the Instrument of Instructions and the creation of the Advisory Board. However, in the end, the proposal was dropped since the Assembly felt that the President should only be guided only by the advise of his council of ministers on all these matters.

Alladi Krishnaswami Ayyar strongly argued against this amendment and said that it should be the council of ministers that should be guiding the President and that this council of ministers was responsible to the House of the People on every matter connected with the administration of the country.

His arguments were accepted, and the amendment to add the Instrument of Instructions was dropped by the Constituent Assembly.

Conclusion

As we have seen above, a number of alternative proposals were made during the Constituent Assembly days, with respect to appointment of judges to the Supreme Court. A few of them did grant significant stake to the Legislative, while a few others sought complete independence.

Finally, the version suggested by the Union Constitution Committee made it to the actual Constitution.

One important feature that stands out in every single suggestion is the fact that the appointment process was to be driven from the President’s side, with the judges playing a advisory and consultative role.

After the ‘Three’ Judges Cases, the process has in effect been reversed with the Supreme Court collegium pushing appointments through its ‘recommendation’ process.

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