The Nature of Judicial Power: Mihir Naniwadekar

Sitting here at the end of 2015, we’ve had 41 years since Royappa, and it is still unclear what the Arbitrariness Test is really about.’ Mihir, however, is forceful in his conclusion that, ‘the content of Article 14 cannot change in the manner suggested by the Court.’ It cannot be so that no one can challenge a law as arbitrary in any case. ‘Rajbala exhibits, in stark terms, the urgent need for a sustained judicial conversation about Article 14.’

January 1, 2015 was about V. Niranjan. January 1, 2016 it is Mihir Naniwadekar’s turn. Symmetry.

CJI Ray authored E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.

Bhagwati J: “We are in agreement with the final conclusion reached in the Judgment delivered by the Learned Chief Justice, but our approach and reasoning are a little different and we are, therefore, delivering separate Judgment expressing our views on the various questions arising.” Laughable. Look how we are suffering for the lack of clarity!

Bhagwati J is the one who appeared ‘strange’ to Joseph J, for his views on judicial primacy. Who had the better approach? Ray or Bhagwati?

Here is what Mihir wrote in 2006 as a 2nd Year Law Student, a must read before any discussion on the issue:

I shall look at the Supreme Court’s opinion in the Presidential Reference.[1] First, I shall look at the questions presented to the Supreme Court and the Supreme Court’s answers to those. Secondly, I shall look at whether the Supreme Court has restricted itself to interpreting the Second Judges’ case[2] or whether it has gone beyond that case. Finally, I shall look at what the strengths and deficiencies of the Court’s opinion are.

The Reference:

The Supreme Court gave its opinion in response to a reference of nine questions by the President of India (under Article 143 of the Constitution) to the Court. The nine questions can be, and were, divided effectively into three categories:

  • Consultation between the Chief Justice of India (“CJI”) and other Judges.
  • The relevance of seniority in making appointments.
  • The scope of judicial review of transfers.

Consultation: With respect to the first of these categories, the Court stated that the expression ‘consultation with the Chief Justice of India’ used in the Constitution requires consultation with a plurality of Judges. The sole opinion of the CJI does not constitute ‘consultation’; what has primacy is not the sole opinion of the CJI but the institutional opinion of the judiciary as such. The CJI must recommend appointments of Supreme Court Judges or transfer of High Court Judges in consultation with the four senior-most puisne Judges of the Supreme Court. Insofar as transfers are concerned, the views of the Chief Justices of the concerned High Courts should also be obtained. For appointments to the High Court, two senior-most puisne Judges of the Supreme Court must be consulted. This collegium of Judges is distinct from other Judges who may be asked to express their views about the suitability of certain appointments. If the majority of the collegium is against a particular nominee, the Government would not be bound to appoint that nominee even if the CJI so opines. At the same time, no nominee can be appointed without the consent of the CJI. Recommendations of the CJI without such consultation are not binding on the Government.

Criteria: Turning to the second set of questions, the Court opined that merit is the predominant criterion for appointments. ‘Strong cogent reasons’ need not be recorded for a departure from seniority. What must be recorded is the ‘positive reason’ for the recommendation of a junior Judge. The legitimate expectations of senior High Court Judges must be considered, particularly when merit is even.

Judicial Review: Finally, the Court restricted the scope of judicial review of transfers to the extent that the Courts could review only whether the process of consultation was followed. No other grounds for review (including mala fides and non-application of mind on part of the CJI) were allowed.

Beyond the Second Judges’ Case?

Appointments and Transfers: The Second Judges’ case envisaged a check on the abuse of discretion by one person by saying that discretionary authority was conferred not to an individual but to a body. The Court said that the opinion of the CJI was to have the greatest weight. The CJI’s opinion, however, meant the opinion formed by the CJI after consultation. The Court in the Second Judges’ case stated that the collegium should include two senior-most Judges of the Supreme Court. In the Presidential Reference, the Court mostly kept within these guidelines. The point of departure was with the size of the collegium, which was now increased to include four senior-most Judges.

Seniority: The Second Judges’ case held that unless there is a strong cogent reason to justify a departure from the order of seniority, that order should be followed. This would recognise the legitimate expectations of the Judges in the High Courts and would lead greater credence to the process of appointment. In this sphere, the Presidential Reference has definitely gone beyond the Second Judges’ case. It said that merit was the most important criteria. The ‘strong cogent reasons’ requirement was changed to the ‘positive reasons’ one. At the same time, perhaps out of deference to the earlier judgment, the Court considered that legitimate expectations should also be a factor. In cases of even merit, this factor would tilt the scales. Despite this, however, the relative weight of the legitimate expectations has definitely been scaled down.

Judicial Review: Finally turning towards the issue of the judicial review of transfers of judges, the Second Judges’ case limited the grounds of review to only the process followed. The Presidential Reference essentially keeps within those grounds by allowing only the process of appointment to be challenged. The Court followed K. Ashok Reddy v. Government of India,[3] a sequel to the Second Judges’ case, which held that the process of appointment left open no room for any bias or arbitrariness.

The Desirability of the Process:

Vacuum in the process: With respect to appointments, there seems to be a vacuum left in the situation where the Judges in the collegium and the CJI disagree. The Court simply said that such a situation was difficult to envisage. Perhaps this is so, but recent events (such as the controversy over the appointment of Justice Vijendra Jain) clearly show that those situations are not impossible.

Independence of the Judiciary: Further, while independence of the judiciary is an objective worth striving for, it is unclear as to whether this would mean that the executive be kept out of the process of appointment. The independence can also be maintained by making sure that after the appointment, there is no interference in the judicial process. Giving primacy to the judiciary in appointments will work only on the underlying assumption of the fairness of the judiciary. This may not always be the case. It cannot be assumed that the CJI will always act in an unbiased manner, or that the collegium will always consider all relevant material, etc. Independence of the judiciary is not necessarily an end in itself. Thus, while giving primacy to the judiciary may lead to fulfilling the means – separating the judiciary from the executive – it may not necessarily lead to the ends – ‘good’ judges free from all influences, basing themselves on no extraneous considerations.

Scope of Judicial Review: The process of appointments and transfers laid down would remove the difficulties noticed in the earlier paragraph if it were to be open to judicial review on traditional administrative law grounds. The review must, therefore, not be open solely on process but must include grounds accepted in administrative law such as bias, mala fides, non-application of mind etc. The Second Judges’ case and the Presidential Reference both ignore this aspect. Even accepting that the outcome of a judicial process removes arbitrariness and bias, it needs to be kept in mind that in the matter of appointments and transfers of judges, the judiciary is clearly acting in an administrative role. It is not acting in its judicial capacity.

Seniority: With respect to the issue of seniority, it is submitted that the Court’s opinion reflects a better view than that in the Second Judges’ case. The balance should be in favour of merit. In cases where the merit is equal, seniority must tilt the balance.


It is submitted that the Presidential Reference case does go beyond the Second Judges’ case in a few spheres. The desirability of the procedure laid down, though, is open to question. While the Court’s opinion on the role of seniority appears to embody the best possible solution, this cannot be said with respect to the other categories of questions raised.”

[1] AIR 1999 SC 1.

[2] Supreme Court Advocates-on-Record Association v. Union of India, AIR 1994 SC 268.

[3] (1994) 2 SCC 303.