Appointment of Justice

“I am glad that Arghya Sengupta and Ritwika Sharma have decided to publish a book dealing with the appointment of Judges to the Supreme Court of India.

From time immemorial, mankind desired to have wise and humane Judges with the wisdom to discriminate between truth and falsehood. The legends of King Solomon and Dharmaraja and the like are proof of such desire. Mankind experimented with the process of identifying wise people to be made Judges. No process is perfect. Experience demonstrates the shortcomings of every chosen selection process. So, the experiment goes on.

This book contains an examination of the legal history and background of The Constitution (99th Amendment) Act, 2014 and the views expressed by the Supreme Court in the NJAC Case. It also contains essays that examine models of appointment followed in some other democratic societies.”

Hon’ble Justice Jasti Chelameswar.

“Justice Kania’s role in appointments to the High Court had caused some significant flutters. At one point, Nehru even questioned his suitability to be the first Chief Justice of India. Specifically, because of Justice Kania’s interference in the appointments of Justice Bashir Ahmed and Justice Koman to the Madras High Court and the appointment of Justice K.N. Wanchoo as Chief Justice of the Rajasthan High Court.

Justice Ray was junior to Justice Jaganmohan Reddy but was sworn in first. At the time, it was only a question of status as both were not in line to become Chief Justice, but when supersession took place for Justice Ray to take over as Chief Justice of India, it would have been necessary for the Government to supersede Justice Reddy also. Justice Hidyatullah’s explanation for this departure from the seniority rule in swearing in was that Justice Ray was from the Calcutta High Court, which was higher in status. This seems an unlikely explanation and far from satisfactory. Justice Ray remains to this day the most controversial appointment to the office of the Chief Justice of India.

To offset the radical appointments of Justice Bhagwati and Justice Krishna Iyer, the Government and Justice Ray invited the first Assamese representative, Justice Parbati Kumar Goswami; and the first Sikh, Justice Ranjit Singh Sarkaria, to the offset the radical nature of the previous two appointments.”

B.N. Suchindran, Advocate.

“The starkest instance of the Government attempting to pack the Court with possibly favorable persons was the appointment of Justice A.N. Ray as the Chief Justice of India in 1973, superseding Three Judges of the Supreme Court who were senior to him. Interestingly, Justice Ray had ruled in favor of Parliament in cases, such as the Bank Nationalization Case and the Privy Purses Case, apart from having held in Kesavananda Bharti that there was no restriction on Parliament to amend the Constitution. Unsurprisingly, Chief Justice-ship was conferred as a reward on Justice A.N. Ray.

On 28 April 1976, after a marathon hearing, a Five-Judge Bench of the Supreme Court, with the majority comprising Chief Justice Ray, Justice M.H. Beg, Justice Y.V. Chandrachud, and Justice Bhagwati, held that by reason of the proclamation of Emergency of 25 June, 1975 any petition to question the legality of detention orders [made under The Maintenance of Internal Security Act, 1970] even if they were mala fide and without authority of law, could not be judicially reviewed. Chief Justice Ray was categorical that liberty is confined and controlled by law, and is not unregulated freedom. He also held that Article 21 is the sole repository of the right to life and personal liberty, and claim to a writ of habeas corpus for enforcement of Article 21 during Emergency is barred.

The mass transfer that took place in 1976 concerned Sixteen Judges of the Nine High Courts who had upheld the rights of the persons detained during Emergency.”

– T.R. Andhyarujina.

“During the tenure of Chief Justice Ray, a Seven-Judge Bench of the Court in Samsher Singh had the opportunity to examine the correct interpretation of the word ‘consultation’ in the context of termination of the services of Subordinate Judges. The majority opinion rendered by Chief Justice Ray dwelt upon the power of the Governor vis-à-vis the Council of Ministers. Justice V.R. Krishna Iyer, in a separate but concurring Judgment on behalf of himself and Justice P.N. Bhagwati, struck a note of support for the theory of primacy of the Chief Justice, holding that the Executive may not differ from the opinion of the Chief Justice of India.”

– A.K. Ganguli, Senior Advocate.

“It is time that the collegium system opens itself to real reform if it is going to deliver the Judges that India deserves.”

– Arun Jaitley. 

“I rejoiced with the rest of India when a Thirteen-Judge Bench of the Supreme Court ruled in Kesavananda Bharti v. State of Kerala, though only with a wafer-thin majority, that Parliament’s power to amend the Constitution does not include the power to destroy its basic structure. I felt that henceforth the Constitution will ever remain unimpaired. However, the verdict of the majority on the Five-Judge Bench of the Supreme Court in the NJAC Case, to my dismay, has ominously portended the dangerous extent to which the sword of Kesavananda Bharti could be swung; the swinging being by means of semantic exercises even against seemingly harmless mechanisms to appoint Judges to the Supreme Court of India and the High Courts. It is an enigma why the Five-Judge Bench did not refer this momentous issue to be decided by a much larger Bench, at least larger than the Nine-Judge Bench in the Second Judges’ Case that created the collegium system.”

– Hon’ble Justice K.T. Thomas.

“At the end of the day, Judges dispense justice to real people with real life problems. To be able to do justice, Judges must be as conversant with the real world around us as with the letter of law.”

– Madhavi Divan, Additional Solicitor General.

“Independence of the Judiciary, separation of powers, and rule of law are a few of the basic features of the Constitution. Even before the 99th Amendment, on at least three occasions, the Constitution was proposed to be amended to alter the procedure for appointment of Judges to the Supreme Court and the High Courts. The majority in the NJAC Case rightly invalidated The NJAC Act. Far from reforming the process of appointments, the NJAC would have unleashed utter confusion while also infringing on the independence of the Judiciary.”

– Arvind Datar, Senior Advocate.

“The first question that the Court had to answer was what, precisely, did the Second Judges’ Case hold on the question of the primacy of Judges; multiple opinions in the NJAC Case failed to satisfactorily engage with this question, thus undermining the majority’s central conclusions. While the findings of the NJAC Case on judicial primacy are now law, they rest, I would submit with respect, on intellectually shaky foundations.”

Gautam Bhatia, Advocate.

“Justice Chelameswar’s opinion joins an illustrious list of dissenting Judgments by Judges of the Supreme Court of India which boldly spoke truth to power.”

Arghya Sengupta, Advocate.

“This essay argues in favor of the autonomy of the Judiciary in the appointment process that the Supreme Court boldly reaffirmed in the NJAC Case.

It ought to be quickly added that the views of Chief Justice Ray was ‘doctrinaire’ and he personally enjoyed an impeccable reputation. I was privileged to meet him in his reclusive life after retirement when I could assess more accurately his belief in neo-classical parliamentary supremacy and not to aid any political setup. He had a keen eye for appointing good Judges and persuaded one of his great successors, Justice M.N. Venkatachaliah, to accept the office of a Judge. His passion for the freedom of the press, and his independent posture in administration is also well-known. Although I disagree with the readiness with which Justice Ray became Chief Justice and with his dissent in Kesavananda Bharti, yet a historical account would be incomplete without reference to his personality. I also remember the dignity with which Chief Justice S.H. Kapadia paid him a tribute at the Full Court Reference.”

– Gopal Subramanium, Senior Advocate.

A good movie, like a good book, is understood with time. The first few sentences that Chief Justice S.H. Kapadia read at that Full Court Reference belonged to Rudrajyoti Nath Ray. A beautiful moment. Transfer of the baton in a relay race is typically blind. 

What do we know? What have we learnt?BOOK.JPG