November 13, 2021
The Judicial appointments process provides a
particularly effective case study to illustrate the
way in which the construction of merit is a dynamic process which can only be
carried out with reference to the qualifications of the potential candidate
pool. In common with many other appointments processes, the lack of any
criteria in the appointments made, has consistently been attributed to a
failure to properly apply the merit principle. The Supreme Court
has at instances, recognized the importance of merit but has pestered
continuously that Seniority is the fundamental consideration factor and merit
is an additional measure under “strong cogent reasons.” But
the authors question whether this aim of avoiding subjectivity, is doing
justice to judicial independence?
The
present blog seeks to do a jurisprudential analysis as to how the appointment
procedure of the Chief Justice of India has the tendency to erode the concept
of “merit” which is the biggest hallmark for the appointment of the Judges in
any country.
The appointment procedure- Defilement of the “Sovereignty
of Merit”
The
lack of solid and rigid definition of merit and unclear wordings of Article 124
raises an issue of great constitutional importance that though the Constitution
requires merit to be the
criterion in the appointment of Judges, it does not define
it. Nor has the Court defined it.
Perhaps
it never had the occasion or opportunity to define it. Its closest expression
on some kind of definition is the seniority rule for
the appointment of the Chief Justice of India and other Judges of the
Supreme Court. It goes no further. It does not apply to appointments of High
Court Judges. It also fails to apply if appointments to the Supreme Court are
made from the bar or from amongst the jurists. Thus, in any
case, in a wide variety of situations merit for
the appointment of Judges remains undefined and undiscussed.
Concept
of merit in Indian Judicial system
A
key feature of a strict merit-based system is that the determination of the
relevant qualifications for each position should be derived solely on the basis
of the functions to be fulfilled. The most qualified person is the one whose
characteristics and abilities are such that they will be most likely to perform
those functions effectively. Critics and supporters of existing selection
systems generally agree that in order for the determination of what constitutes
merit to be free from prejudice it must be constructed without taking into
account the background of the members of the potential candidate pool.
The
function of a merit- based selection system is the selection of the most
qualified amongst those who are willing and able to occupy the position. In
order for the notion of merit to be translated from an abstract principle into
a set of concrete qualifications which can be used to achieve this result,
there must be an assessment of the nature of the potential candidate pool.
Without
knowledge about who the potential candidates are likely to be, selection
systems would regularly and inevitably devise qualifications which would be
pitched either too high or too low. The result would be either a failure to
appoint any or enough candidates or a failure to attract sufficiently highly
qualified candidates and that is the biggest drawback of the seniority
convention.
The
appointment of the Chief Justice of India is a regular process and for a selection
system in which appointments are
made on a regular basis, this process of translating merit into job
qualifications and selection criteria in a way which pitches appropriately to
the available candidate pool is relatively unproblematic. The biggest problem
with the seniority convention is that it has reduced the appointment procedure
to a mere selective group, where a group of seniors are all in line to become
the Chief Justice of India.
In
this regard the authors find it pertinent to state the observation of Pandian J
in the Second Judges case[i]:
“It is essential and
vital for the establishment of real participatory democracy that all sections
and classes of people, be they backward classes or scheduled castes or
scheduled tribes or minorities or women, should be afforded equal opportunity
so that the judicial administration is also participated in by the
outstanding and meritorious candidates belonging to all sections of the society
and not by any selective or insular group.”
According
to Punchi and Ahmedi J.J.[ii] “the seniority principle and principle of
legitimate expectation would only push merit to the second place and seniority
will have a role to play only when both candidates are of equal merit.” According,
to Kuldeep Singh J. “the selection of
Chief Justice of India must be based on objective standards and not by mere
seniority.” The learned Judge further held that there is no existing
convention of appointing the senior most puisne Judge as the Chief Justice. The
appointment should be based only on merit and seniority role has no
application.
In
Re. Special Reference[iii]
the court held that a Judge of outstanding merit can be directly appointed
as the judge of the Supreme Court. This above-mentioned exception creates an unanticipated
and sudden instability in the candidate pool which brings a sharp correction to
this process and demonstrates very clearly the close relationship between the
make-up of the potential candidate pool and the definition of merit.
This
approach is not, of course, unique to the judiciary. But the strength and
consistency of that commitment is arguably stronger than many other public and
professional selection processes because of the particular role and function of
judges. The argument that selecting a less qualified over a more qualified
candidate is unjust to the candidate passed over applies to the allocation of
all positions in a selective appointments system. But
the extent of the unfairness is affected by the particular type of position
being allocated.
The
recent trend of the collegium shows us that the apex court has moved on with
the seniority convention with respect to the appointment of the Judges at the
apex court. Therefore, the seniority convention with respect to the appointment
of the Chief Justice of India does not appears to be any meticulous.
If
one delves into the history, then it can be seen that the seniority convention
does not have any constitutional backing. Prior to the independence there has
been instances where advocates have been directly appointed as the Chief
Justices of the High Court. Thus it can be
inferred that the seniority convention was more than an exception rather than a
rule. This
particular convention only began with the appointment of the Patanjali Sastri, when
he was appointed as the first Chief Justice of India.
Short
tenure- An injustice to the legacy of the post of Chief Justice of India
One
of the biggest drawbacks of the seniority convention is that it acts as an
indentation on the tenure of the Chief Justice of India in simpler terms this
convention does not do justice to the post of Chief Justice of India by
providing a short tenure.
Till
date Justice Y.V. Chandrachud had the longest tenure of serving the Chief
Justice of India for a duration of 7 years whereas Justice K.N. Singh had the
shortest tenure which lasted only 18 days. On an average till date no Chief
Justice of India had a tenure of more than a year. Such duration not only does
injustice to such a sacred post but also prevents the Chief Justices to bring some
long-term radical changes in legal profession. The same was highlighted by Justice
Sathasivam the 40th CJI two days before his retirement.
The
limited number of days that each CJI has in his disposition makes it hard to
resolve the more critical issues that have been pervasive in the legal system.
Also, when a CJI would have perceived the issue, the date of retirement moves
nearer. The execution consequently stays unfulfilled. It is imperative that
frequent changes cause systemic inefficiencies, raise incoherence in strategies
for dealing with ongoing issues, and jeopardise the leadership stability that a
large and well-respected organisation requires.
Defilement of the Consultative
Procedure
The
principle of independence of Judiciary cannot be equated with the seniority
convention, because it fails to recognize the merit. The appointment of CJI is
not based upon the consultative process which only undermines the procedure established
by law.
In
the Second Judges case[iv]
the court emphasised that the phraseology used in Article 124(2) indicates
that it was not considered desirable to vest absolute discretion of power of
veto in the Chief Justice of India as an individual. The phrase “consultation”
means “an opinion formed collectively” i.e. the primacy of the CJI formed after
taking into account the views of his senior colleagues who are required to be
consulted by him for the formation of his opinion.
However,
no such opinion is taken into consideration while appointing the CJI. The
appointment of the CJI is based only upon a mere recommendation which is put
forth by the outgoing CJI. This process makes the CJI as the collegium where
his sole recommendation has the primacy, which very much goes against the law
laid down by the apex court in Second Judges case. This recommendation though
not binding upon the Executive. Apart
from two exceptions till date there has been no deviation from this practice.
The
authors would like to contend that such vesting of power in single hand goes
against the Rule of Law. Hence, violates article 14 of the Indian Constitution.
An adjunct of this principle is “the absence of absolute power in one
individual in any sphere of constitutional activity. Therefore, the meaning of
the “opinion of the Chief Justice” is “reflective of the opinion of the
Judiciary” which is formed after taking into account the views of some other
Judges who are traditionally associated with this function and in the present
case this consultation is absent.
CONCLUSION
A strict adherence to Seniority is
badgered because of two powerful reasons, the importance of tradition and the
insistence on objective criteria, and these influential forces shape the
functioning of Indian Judiciary today. Seniority has unquestionably served the
Judiciary well in many ways, but it is now merely an antiquated facet of
tradition.
In the arena of appointments,
objectivity has become synonymous to fairness and any decision made without the
objective standards is instinctively met with accusations of corruption and
skulduggery. This attitude hinders sound-decision making and leads to peculiar
outcomes that are worse than the malice it was intended to address. A feasible alternative to this
hornets’ nest could be inclusion of merit.
Moreover, the power of
recommendation with the outgoing Chief Justice of India are reminiscent of a
verse by Decimus Junius Juvenalis, a Roman satirist who, while condemning
imperial Rome's vices, stated, "Sed
quis custodiet ipsos Custodes?" (Who is to guard the guards
themselves?).[v]
The fact that the pater familias of
such a significant and puissant Judiciary is appointed
by an opaque and conventional procedure in a constitutional democracy is
certainly saddening. This vast amount of power and authority, with no checks
and balances, undermines judicial accountability, a crucial aspect of judicial
independence in a republican democracy.
There are more than enough reasons for
the seniority convention and the non-consultative powers of Chief Justice to be
given a proper send-off. It is not as objective as it claims to be, results in
absurdly short tenures for chief justices, ridicules Rule of Law in a
participatory democracy and is a strategic tool used when convenient. But, in
order to do so, we need a different, clearly articulated method of appointment
to take its place. Without it, all appointments, no matter how well-intended,
will appear unscrupulous.
It is probably past time for India to
demonstrate that, as a mature polity, it is willing to place its faith in
decisions made by accountable public authorities using well-established and
transparent procedures.
[i] AIR 1994
SC 268.
[ii] Id.
[iii] AIR 1999 SC 1.
[iv] Supra note ii.
[v] A v British
Broadcasting Corporation (Secretary of State for the Home Department
intervening), [2015] A.C. 588.
