Judging the Judges
By Dr Abhishek Atrey
Recently, the collegium of the Supreme Court led by Chief Justice of India (CJI) UU Lalit decided to access the past judicial performance of judges of different High Courts. It decided to look at their judicial records and judgments for taking a decision on their elevation to the apex court.
Among judges, this step is being seen as derogatory to their reputation and status, whereas in other judicial fraternity, it is being welcomed. Before coming to the pros and cons of the new system, it is necessary to understand the status and inter-relationship of High Courts and the Supreme Court in the Constitution.
Chapter IV of Part IV from Articles 124-147 deals with the formation, functions and powers of the Supreme Court, and Chapter V of Part VI from Article 214 to 232 deals with the formation, functions and powers of High Courts. According to Article 124, judges of the Supreme Court may be appointed by the president in consultation with the CJI from amongst (a) Judges of High Courts who remained as such for a minimum five years, (b) from amongst advocates of not less than 10 years standing, (c) distinguished jurists. According to Article 127 ad hoc judges may be appointed in the Supreme Court, while Article 128 says that temporary judges may also be appointed to the Supreme Court from amongst its retired judges and those of the High Court who remained as judge there for a minimum five years.
Similarly, according to Article 217, judges to High Courts may be appointed by the president in consultation with the CJI, the governor of that state and in case of other judges, the chief justice of that High Court from amongst (a) Judicial officers with a minimum 10 years in office and (b) from amongst advocates having minimum 10 years standing. Under Article 223, acting and additional judges may be appointed and under Article 224-A, retired judges may be appointed in High Courts in case of need. Under Article 227, High Courts have the power of superintendence over all other courts and tribunals in their jurisdictions, but no such power is with the Supreme Court over High Courts in India.
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However, in the Constitution, the word “consultation” is used. But in 1993, a nine judge bench of the Supreme Court in Supreme Court Advocates-on-Record Association vs Union of India held that the word “consultation” shall be treated as “concurrence” and devised a specific procedure called the “Collegium System” for the appointment and transfer of judges in the higher judiciary. The Collegium in the Supreme Court will consist of the CJI and four seniormost judges of the Court, and in the High Court, the chief justice and two seniormost judges of that Court.
For appointment as permanent judges in High Courts, it is a settled procedure and the centre also issued a Memorandum of Procedure, according to which, at the time of appointment of a permanent judge in a High Court from additional judges, their month-wise disposal of cases, attendance in court, number of reportable judgments, etc, are considered by the collegium.
But when the issue comes for appointment from permanent judges of High Courts to the Supreme Court, no performance is being accessed till now by calling such records. The reason behind this is simple. At the time of appointment of an advocate or judicial officer as additional judge of a High Court or from additional judge to permanent judge of a High Court, there is no criteria and only suitability is seen.
But when the time comes for appointment of permanent judges to the Supreme Court, they have constitutional protection of their posts. Appointment as well as removal procedure of both is the same—by the president and by impeachment, respectively.
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However, for appointment of Supreme Court judges, there is no criteria or guideline. Suitability is the only criteria. However, under Article 124, equal weightage was given for appointment to the Supreme Court from amongst High Court judges, advocates and distinguished jurists and no quota was fixed separately. But till now, more than 90% appointments to the Supreme Court are from the first category, i.e. from judges of High Courts. Less than 10% are appointed from advocates and none from jurists. It was almost as if these two categories don’t exist.
The present decision to call past judicial record is also for the first category only. For the second and third category, there are no guidelines or criteria. The only criteria is their performance and suitability. Even for appointments from the first category, seniority is no criteria and judges of High Courts have been elevated to the Supreme Court time and again from those who 40-60 in number of seniority. To say that all judges above them in seniority were not suitable for elevation to the Supreme Court is not justified.
While understanding the process of appointment of judges, we must keep in mind that the Indian legal profession is one of the largest in the world, with over 1.4 million enrolled advocates. Whereas the total sanctioned posts of judges in the Supreme Court is 35, in High Courts, it is 1,108, including 836 permanent and 272 additional judges and total sanctioned posts of subordinate courts is 22,677. This is the total strength of our judicial system which controls over 135 crore people. Now anyone can imagine the probability of being appointed from subordinate courts to High Courts and from High Courts to the Supreme Court in comparison to appointments to both Courts from amongst advocates.
In this probability, while selecting advocates for elevation to High Courts or the Supreme Court, “performance” is the most used word to judge their suitability. But the reality is something different. The “performance” of an advocate is not judged by the Collegium by his qualification, marks, university, degrees, articles, extracurricular activities, social life, research or even drafting skills. It is judged by the number of his appearances before judges of the Collegium and to some extent, the number of reported judgments in which he has appeared.
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It is no secret how the appearances of advocates are being managed by people who are in control of the system. The blessed ones come on the panel of the Union of India, state governments or different corporations from the day they enter the profession. On the other hand, the not so lucky ones spend their whole life waiting for a chance.
Even for those who come on such panels, work is allotted to those who appear in courts regularly and who are recognised by judges. They are the only people whose names appear in the most number of reported judgments and ultimately, they will be the ones who will be elevated to High Courts or the Supreme Court on the basis of their performance, which is based on the number of their appearances.
The present decision of the Collegium to call the records of judges of High Courts offers a ray of hope for aspirants of the first category, but this criteria is of no use to those from the second category, i.e., advocates. Moreover, advocates who practice in the Supreme Court can’t even think of being elevated to High Courts because the elevation there is done by the Collegium of that High Court. Judges in the Collegium of High Courts access the “performance” of advocates who practice before them only.
Two years back, the Supreme Court Bar Association made a search committee to find out and recommend names from amongst advocates who practice in the Supreme Court for elevation to High Courts. Unfortunately, Collegium members of different High Courts saw this as interference in their jurisdiction and did not even call these advocates for interview.
Therefore, there is a dire need for just and proper guidelines by the Collegium for elevation from the second category also.
—The writer is Advocate-On-Record, Supreme Court of India