DIRE NECESSITY TO ENSURE PROPER APPOINTMENT TO JUDICIARY

Cover Story : DIRE NECESSITY TO ENSURE PROPER APPOINTMENT TO JUDICIARY

The recent explosive information disclosed by Justice Markandeya Katju as to what happened in the case of appointment/confirmation of a judge of Madras High Court has been a rude shock to all those who are greatly concerned in having an independent, impartial and fearless judiciary and also among the general public.

What is surprising is why Justice Markandeya Katju who was the Chief Justice of the Madras High Court long back when the improper appointment took place and who thereafter was in the Supreme Court and at present the Chairman of Press Council, took so long a time to come out with such explosive information. But such exposure is sure to help the nation to get rid of such situations arising hereafter.

However, in my experience of two decades as an advocate prior to my appointment as judge of the Karnataka High Court for a period of fifteen years and as a Senior Advocate at the Supreme Court for more than a decade after my retirement as Chief Justice of Punjab and Haryana High Court, by and large suitable and competent persons have been appointed as judges at all levels. Our judiciary both higher and lower has an excellent record which makes us to hold our head high. There has been enormous contribution of judiciary in upholding the highest standards of judicial conduct in the manner expected of them cannot be minimised. However, it cannot be denied that there are a few appointments made to judiciary on collateral considerations of caste, religion and political affiliation. Though they are very small in number, they have brought disrepute to the judiciary. Therefore, what is necessary is even such weaknesses which has crept in judicial appointments should be eliminated. I am sure that it will be done.

I know for certain there are certain instances when the concerned Chief Justice has put down proposal by the executive to make an unsuitable person as judge of the High Court. But I know one specific instance which happened in the Karnataka High Court. During the year 1975-1977 there were as many as seven vacancies in the Karnataka High Court. Then there was pressure from the executive on the Chief Justice of Karnataka to recommend an advocate for being appointed as a judge of the Karnataka High Court, who according to the then Chief Justice Govinda Bhat was totally unsuitable to be appointed as a judge of the High Court. From reliable sources it came to be known that the Chief Justice was told that he could recommend any other six names in addition to fill up the seven posts then available to be filled up and all the seven will be appointed. It must be said to the credit of Govinda Bhat that he had taken the stand that even at the cost of keeping all the seven posts vacant he would not recommend the person who in his opinion was not suitable to be appointed as a judge of the High Court. He did not budge despite pressure and persuasion. Accordingly, the posts were kept vacant till 1979 and only after the change of the Government, seven persons were appointed at one go. What I say is there are such glowing examples also and for doing so there have been excellent guidelines in legal and constitutional history of our nation.
It is a matter of historical record that administration of justice in an impartial manner has been regarded as one of the most important obligatory functions of any Government in Bharat since times immemorial. In Bharatiya jurisprudence, five fundamental duties of State have been prescribed, which reads:-
To punish the wicked, to honour (protect) the good, to enrich the treasury by just methods, to be impartial towards the litigants and to protect the kingdom—these are the five yajnas (selfless duties) to be performed by a king. [Atrisamhita-28]
Same obligation have been laid on the judiciary in the Constitution of India. In order to ensure that the State administers justice in an impartial manner those persons who are to be appointed as judges from the lowest to the highest courts, must be men of sterling character who discharge the judicial powers vested in them in an impartial manner without fear or favour as the efficacy of the judiciary depends upon the persons who are appointed as judges at all levels. The quality of persons to be appointed
as judges have been clearly laid
down right from Mahabharata. In Mahabharata Shantiparva, verse-18, Chapter-24, the quality of persons to be appointed as judges have been laid down as follows:-
“A person who is (i) well versed in Vyavahara [laws regulating judicial proceedings] and Dharma [law on all topics], (ii) a Bahushruta [profound scholar] (iii) a Pramanajna [well versed in the law of evidence], (iv) Nyayasastravalambinah [of law abiding nature] and (v) has fully studied the Vedas and Tarka [logic] should be appointed to carry on the administration of justice. [Mahabharata Shanti Parva 24-18].
Narada Smriti reiterated the same qualities as mandatory for being appointed as a judge and added that persons to be appointed as judges should be impartial towards friends and foes. It reads:-
“Let the king appoint, as members of the court of justice, honourable men of tried integrity [sabhyas] after careful scrutiny who are able to bear the burden of the administration of justice and who are well versed in the sacred laws, rules of prudence, who are noble and impartial towards friends and foes. [Narada p. 36-4-5] [Dharmakosa ..43]
Sukraniti is more specific on this topic. It reads:-
“One who is well versed in civil and criminal law and law of procedure, Sprightfull, of sterling character, impartial towards friends and foes, of dharma abiding nature, truthful, ever active and who has established control over anger, desire and greed and pleasant in speech and demeanour should be appointed as Judge irrespective of the caste to which he belongs”. [Sukra Niti, Part-I, page 204, 136-137].
Sukraniti specifically laid down required code of conduct of judges by stating circumstances which if not avoided, judges are sure to be charged of partiality in dispensation of justice, thus:
There are five causes which give rise to the charge of partiality [against the judge]. They are: [i] Raga [affection in favour of a party] [ii] Lobha [greed], [iii] Bhaya [fear], [iv] Dvesha [ill-will against a party]; and [v] Vadinoscha Rahashrutihi [the judge meeting and hearing a party to a case secretly]. [Sukraniti, Part-II, page 627-7].
Article 219 under the Constitution provides that every person appointed as a judge of the High Court shall before entering the office make and subscribe before the Governor of the State, or some person appointed on that behalf, an oath or affirmation according to the form set out for the purpose in the third schedule:-
“…….. that I will uphold the sovereignty and integrity of India, that I will duty and faithfully and to the best of my ability, knowledge, and judgment perform the duties of my office without fear or favour, affection or
ill-will and that I will uphold the
Constitution and the laws.”
It is significant to note that the sum and substance of the oath prescribed under the Constitution is almost similar to the one referred to in Sukra Niti regarding the code of conduct of persons to be observed by a judge.
With the object of ensuring that able judges are appointed to the High Court who discharge their powers and duties in an impartial manner and fearlessly, the Constitution has made provision to ensure their security of tenure, firstly by prescribing their age of superannuation in the Constitution itself. Secondly, though normally the power of appointment includes the power of removal, under the Constitution though the President happens to be the appointing authority, no power has been conferred on the President to remove the judges once appointed.
The Constitution provides that a judge of the High Court can be removed only through impeachment as provided under Article 124 and judges can be removed by the President only if and when a resolution is passed by each of the Houses of the Parliament by a majority of total membership of the House and not less than two thirds majority present and voting. The very fact that such security of tenure has been conferred on the judges of the High Court indicates that great importance was given to impartial and fearless judiciary.
It is for this reason that the appointment of judges constitute the most important function under the Constitution and therefore has to be exercised without being influenced by any collateral considerations. The recent disclosure by Justice Markadeya Katju who is at present the Chairman of the Press Council of India, has shown certain startling facts relating to what has happened in relation to the appointment of a judge of Madras High Court, which shakes the confidence of the people in the judiciary. According to Justice Markadeya Katju, a person who lacked integrity and against whom there were serious allegations was appointed as judge of the Madras High Court as an additional judge and despite his objection in view of the adverse report on record about his integrity, his tenure was continued and subsequently the then Chief Justice of India Justice KG Balakrishnan even recommended for confirmation of the said person as a permanent judge and he was confirmed.
It is also reported in the Press that the said appointment was made in view of the threat posed by a political party to the effect that if the said person was not appointed/continued as a judge of the High Court, there was every possibility of fall of the Central Government headed by Dr Manmohan Singh. If this is what happened and is true in that case, there may be a few other cases in which the judges have been appointed on collateral considerations which may not have come to light. If such things are happening, the very object and purpose of establishing impartial and fearless judiciary stand defeated.
It is a matter of common knowledge that caste, religion or relationship or political affiliation are causing havoc in administration of justice and there is immediate need to insulate the procedure for appointment of judges against such considerations. In this behalf it is indisputable that persons on whom the power to make selection and appointment of judges are vested, have to be as independent, impartial and fearless as is expected of judges in deciding cases after their appointment.
The situation demands that there has to be necessary reforms in the process of appointment of judges to the High Court and the Supreme Court and the power to select persons to be appointed as judges must be entrusted to persons who are of proved impartiality, independence and fearlessness, so as to ensure that no appointments are made to such high offices on
collateral considerations.
Justice (Retd.) Rama Jois (The writer is former Chief Justice of Punjab & Haryana High Court)