It’s important that the composition of the highest court should not be on geographical lines or simply an amalgam of various interests nor should it be a court of high court chief justices. It ought to be a seat of meritocracy. It is necessary to remember that some of the most eminent judges, who sat in the Supreme Court, were not chief justices in the high court. To go by seniority as of now is to deny the Supreme Court the best available talent. So too having a benchmark of age for elevation to the Supreme Court serves no purpose.
Talking of geographical representation, when the great Justice Holmes retired from the US Supreme Court, it was almost universally agreed that Judge Cardozo was the most appropriate person to succeed him. However, there was some apprehension whether President Hoover was reluctant to nominate Cardozo as he hailed from New York and four judges of the Supreme Court were already from New England. To allay this misgiving, Justice Harlan Stone, who was also from New England, wrote to the President offering to step down and urging him to nominate Cardozo. It is a matter of history that Cardozo was nominated without Stone resigning. The zone of consideration for appointment to the Supreme Court should not be restricted to the high court judges or even practising advocates. Art 124(3) should be given its full play. The constituencies from which to choose judges of the Supreme Court should be the high courts, the Bar and the lawyers outside. The infusion of academic jurists of the right order into the highest Tribunal may lead to its enrichment. Justice Frankfurter aptly remarked, “One is entitled to say without qualification that the co-relation between prior judicial experience and fitness for the function of the Supreme Court is zero.”
A busy practitioner is more concerned with cases while an academician has to build on basic principles and has more freedom to arrive at conclusions where there are no precedents or to differ from precedents of the highest authority where they are out of tune with fundamental principles. Such freedom is essential for the highest court. At times, a non-practising lawyer-judge might be in a better position to deal with problems of public law because of his outlook and freedom from a narrow and technical approach. Paradoxically, sometimes, persons with no constitutional law background are assigned constitutional cases in the Supreme Court and there are astounding judgments for all to see.
Moving for introduction of the provision which is now Art 124 (3) (c), Shri HV Kamath spoke of the need to have persons of outstanding legal and juristic learning and referred to similar provisions relating to qualifications for judges of the International Court of Justice at the Hague. Supporting the proposal, Shri Ananthasayanam Ayyangar was of the opinion that out of the seven judges of the Supreme Court as originally contemplated, one must be a jurist of great reputation. It has too often been suggested that the court should have a regular Constitution Bench to deal with constitutional issues and the Appellate Division of the court should deal with other cases. The suggestion bears repetition because of its urgency and importance.
One suggestion is to increase the judge-strength of the Supreme Court. But that may not be wise. The highest court, to retain its character, should be compact. The original strength was seven besides the Chief Justice. Chief Justice Subba Rao, who strongly believed in building the image of the court, considered a maximum strength of nine to be appropriate. Whether or not that would be ideal in the present circumstances, a mere increase in judge-strength would perhaps be counter-productive — Parkinson’s law being attracted and the work expanding and distributing to fill the time available for its completion and subordinates multiplying regardless of the amount of work produced, as Justice Krishna Iyer forcefully pointed out.
It is also important to have judges of the highest calibre to man the superior courts — judges, according to Chief Justice Dixon, possessing ‘integrity, equanimity, legal knowledge, patience and common sense.’ It is appropriate to refer to what Shri KK Venugopal advocated in the First RK Jain Memorial Lecture: “The Supreme Court should have a separate cell, which would analyse a few judgments of each high court judge for the purpose of finding out the quality of the judge. That would disclose whether he has statesmanship, legal knowledge, experience, balance and impartiality. If all these are present, then the inputs of each of the Supreme Court judges would ensure a meaningful and effective decision in the cases before them. If all this is done, then one can look forward to a glorious future for the court where judges will be able to listen to arguments with detachment and patience and perhaps, be able to even devote themselves to the reading of legal classics, ponder over the arguments addressed and deliver pioneering and celebrated judgements.”
It is not known why for appointment of high court judges there is no such category as ‘eminent jurist’ as in Art 124 (3) (c). It is interesting that in Draft Article 193, which is the present Article 217, an amendment for incorporating a similar provision was moved by Prof Shibban Lal Saksena which was negatived without debate. The 42nd Constitutional Amendment Act introduced that provision which was perhaps the only good provision in it. It was, however, omitted by the 44th Amendment Act. It may be advisable to have a Constitution Amendment to incorporate such a provision.
It is also necessary to do away with the pernicious practice of appointing Additional Judges. Art 224 contemplates appointment of Additional Judges only when there is a temporary increase in work or accumulation of arrears, i.e., to meet a particular contingency and not to be a permanent feature. The original idea behind the provision has been perverted in practice. While this was so denounced by the Supreme Court way back in 1981 in the First Judges’ case which is still good law, in recent times, the Supreme Court on the administrative side has perpetuated this baneful practice and even worsened the situation by requiring some certification of the judgments passed by the Additional Judges by their peers. This has no constitutional or legal sanction and it is not understandable how high court judges pusillanimously put up with this which is derogatory for judges of the highest court of a State.
Durga Das Basu, in his Tagore Law lectures, observed that one cannot but emphasise the importance of proper personnel for the success of judicial review and poignantly added that even those, who are responsible for the selection of judges, sometimes lament over the performance of the courts, forgetting that the original sin was perhaps that of the critics themselves. In no other situation is this brought out more piquantly than when a sitting judge is sought to be removed for his inappropriate actions before he became a judge. Impressions and public perception — perception of right thinking people are indeed important and cannot be brushed aside. The situation can worsen when one tries to push under the carpet any allegations; the entire system may get corroded.
Shri Fali Nariman hit the nail on the head when he said that regrettably — with a few notable exceptions — the fraternity of justices in the higher judiciary in India tend to stick together when anyone speaks of any wrongdoing about one of them. It is imperative that there is a social boycott of black sheep by their peers and the public at large. Otherwise, all our crying about deviant and unworthy conduct is not only futile but also dishonest. It has been well said that when the Constitution gives the judiciary enormous power and responsibility to ensure that every institution and every citizen must strictly conform to law, it is logical then to expect that the institution of the judiciary itself must be worthy of the full confidence of the people.
The author is a lawyer specialising in Constitutional law.E-mail: vsudhishpai@gmail.com
(Concluded)