Joginder Singh Toor

CAN there be judicial arbitrariness apart from judicial discretion? The answer in theory is no. It ought not to be there, but in practice it is yes. It is matter of concern. How and why can it happen? Are there legal loopholes, or arbitrary encroachment on law, on the part of those who are supposed to check it and protect the citizens, the sovereign from the vice of it? It is more agonizing when it relates to, or is attributable to the acclaimed organs of the state, the judiciary and the obnoxious one, the executive particularly, when it relates to their working, the jurisdiction, the accountability and their appointments and promotions.

India Constitution has virtually been twisted without amending it, both by the judiciary and the executive to the disadvantage of the people. Decisions are being taken in ones own favour against all cannons of jurisprudence, ethics and obligations. The oath taken to is not being adhered to in many a cases of public importance. People cry and those who ought to listen close their ears and shut their eyes.

Article 124(2) of the Constitution of India provides that “every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.” “provided further that in the case of appointment of a Judge other than the Chief Justice; the Chief Justice of India shall always be consulted.”

And in Article 217(1) it is additionally provided that every “Judge of the High Court shall be appointed……after consultations with the Chief Justice of India, the governor of the State and in the case of appointment of a Judge other than Chief Justice the Chief Justice of the High Court.”
The question arose in S.P.Gupta and others AIR (1982-SC-149) whether the opinion of the Chief Justice of India is to have primacy and is binding on the President even if the opinion of the governor representing the State Government and that of the Central Council of Ministers on whose advice the President is to act, in each case, is contrary and is to be ignored. The majority view of the 7 Judges Constitution Bench was, “it is unanimously agreed that the opinion of the Chief Justice of India is not binding on the President, Bhagwati, SMF Ali, Desai and Venkataramiah JJ are of the view that the opinion of the Chief Justice of India, has no primacy. Gupta, Tulzapurkar and Pathak JJ held that it deserves primacy, though does not operate as veto.”

The basis of the above opinion was that “each of the three constitutional functionaries occupies a high constitutional office and clause (1) of Article 217 provides that appointment of a High Court Judge shall be made after consultation with all the three constitutional functionaries without assigning priority to the opinion of one over that of the other.”

While giving opinion the Hon’ble Judges, differently opined about the concept independence of judiciary as “not an abstract conception but a living faith,” said Bhagwati, J. “it depends on security of tenure of Judges” said Gupta, J “is basic structure of the constitution”, “the constitution has not provided something like a “hands off attitude” to the judiciary.”

And this assertion found place in the 9 bench subsequent judgment in S.C.Advocates on Records case (AIR 1994-SC-268) when the Bench by majority view took the power of consultation absolutely in their hands, other wings of the State excluded and primacy of the view of the Chief Justice of India representing a colegium of some senior-most Judges, as paramount. “In other words, in the case of appointment of Judges, the President is not obliged to consult the executive as there is no specific provision for such consultation.” Provisions of Article 74 advice to the President of India by Council of Ministers and Article 163 come into play only for appointment and not for consultation before selection.

The 9 bench Constitution Bench held that “therefore in all circumstances, the opinion of the Chief Justice of India (the colegium) is entitled to have the right of primacy in the matter of selection of Judges to the Supreme Court as well as to the High Courts.” The contrary view expressed by A.M.Ahmadi, J was not accepted who was of the opinion that it “cannot be accepted unless the constitution is amended.”

Any way the judgment absolutely excludes the other functionaries of the State from the process of appointment of Judges. The judgment still holds good, and has not been negatived by the legislative process as has been done in many other cases, although some of the members of the Bench have expressed that the judgment has not worked as conceived. It has brought more vice than good. The process of appointments has become prone to arbitrariness, favouritism and even nepotism. India is the only country where judiciary virtually appoints itself.

On other aspects the Supreme Court of India in PUCL Vs Union of India (AIR 2003-SC-2363) while dilating on peoples right to know antecedents of candidates said that “it is facet of Article 19(1)(a). Such disclosure is necessary for survival of democracy”. S.33-B inserted by 3rd Amendment Act, 2002 in the Representation of Peoples Act held to be violative of the Constitution. It imposes blanket ban on dissemination of information. In S.P. Gupta’s case it was held that “right to know is implicit in right of free speech and expression. Disclosure of information regarding functionaries of the government must be the rule”. Besides this the Prime Minister of India in his speech on August 15,2008 sought to derive credit for providing to the people the right to information by enacting the Right to Information Act for the purpose.

Negating judicial pronouncements the Chief Justice of India has denied the information as to the assets of the Judges at the time of appointment and attained during the course of employment, the information being of personal nature and being confidential having been submitted to him. The right to information on administrative matters is seldom given. The Chief Justice of India claims that he holds constitutional post and is not subject to the provisions of the Act. To the contrary ex-Chief Justice of India, J.S.Verma has recently called for more openness. He says, “Internal infirmities about judiciary and Judges are more dangerous than external infirmities.” He goes on to assert “when candidates contesting elections disclose their assets, why not Judges disclose their assets. When we don’t give information how can we give directions to the executive to be transparent in their actions”. The Chief Justice of India should not be excluded and he should be treated at par with other Judges.

An organ of the state which commands others to be transparent has refused to give information regarding the facts and conclusions drawn by the 3 member investigation Committee consisting of a Chief Justice and 2 High Court Judges regarding the conduct of 3 Judges of the Karnataka High Court. Isn’t it judicial arbitrariness?

[Joginder Singh Toor is senior advocate and public affairs commentator jogindersingh_toor@yahoo.com]

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