Disclose correspondence of Judge’s appointment

“...the injury which would be caused to the public interest in administration of justice by non-disclosure of the correspondence between the Law Minister, the Chief Justice of state and the Chief Justice of India and the relevant noting made by them in regard to non-appointment of a person far outweighs the injury which may, if at all, be caused to the public interest by their disclosure and hence these documents were liable to be disclosed”. This direction was given with reference to non-appointment of a person as additional judge 32years ago. This should be the direction in appointment of additional judge who was described as “corrupt” by Justice Katju. The above direction was historic rudiment of right to information in the celebrated judgment of the Supreme Court in SP Gupta vs. President of India AIR 1982 SC 149, which is quite relevant in today’s context too.

There was a failed attempt by former Law Minister Shanti Bhushan to restrain this judge. The judgment in that case in WP No 375 of 2007 by Dr Arijit Pasayat in 2008 focused on the theme ‘judges like Caesar’s wife, should be above suspicion’. Questioning the appointment of an additional judge as permanent judge the petitioner stated norms required as per the apex court order in Advocates on Record Association vs. Union of India (1993)(4)SCC441 and Special Reference No. 1 of 1998 [1988(7)739] were not followed. As per the procedure prescribed in this case “While forming the opinion, the Chief Justice of India has to consult two senior-most Judges and some other Judges of the Supreme Court who are conversant with the affairs of the High Court concerned’.

The majority view in the Second Judges case [1993 (4) SCC 441] is that in the matter of appointments to the Supreme Court and the High Courts, the opinion of the Chief Justice of India has primacy. CJI’s opinion is “reflective of the opinion of the judiciary, which means that it must necessarily have the element of plurality in its formation”. The Supreme Court in this case said that the principle of non-arbitrariness which is an essential attribute of the rule of law is all pervasive throughout the Constitution. It further explained: The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need.

The Union’s counsel told the court in Shanti Bhushan case that more than 350 Additional Judges were appointed as permanent judges from 1.1.1999 to 31.7.2007 by successive Chief Justices of India without consulting the Collegium. However, Collegium was consulted when they were appointed as additional judges, which is mandatory as per Article 217(1), which says “every judge of a High Court shall be appointed after consultation with the Chief Justice of India, the Governor of the State and the Chief Justice of the High Court”. This procedure needs to be followed when the term of additional judge gets over and he is considered again for that or for the post of permanent judge as mandated by the Supreme Court in SP Gupta vs. Union of India 1981 Supp SCC 87.

The court explained that while making the recommendations for appointment of an Additional Judge as a permanent Judge, Chief Justice of the High Court is not required to consult the Collegium of the High Court. Additionally, there is no requirement of enquiry by the Intelligence Bureau. The Chief Justice while sending his recommendation has to furnish statistics of month-wise disposal of cases and judgments rendered by a Judge concerned as well as the number of cases reported in the Law Journals duly certified by him. Further information required to be furnished regarding the total number of working days, the number of days the concerned Judge attended the Court and the days of his absence from Court during the period for which the disposal statistics are sent.

“At the stage of appointment of either as an Additional Judge or a Permanent Judge, the Union Minister of Law, Justice and Company Affairs is required to consider the recommendation in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. This procedure is not required to be followed when an Additional Judge is appointed as a Permanent Judge”.

In Shanti Bhushan case the Supreme Court explained that... it is of significance to note that some of the Hon’ble Judges who were parties to the judgments relied on by the petitioners while functioning as a Chief Justice of India have not thought it necessary to consult the Collegium as is evident from the fact that from 1.1.1999 to 31.7.2007 in more than 350 cases the Collegium was not consulted. It means that they were also of the view that the practice/procedure was being followed rightly. Considering this the court rejected the plea that without consultation with the Collegium, the opinion of the Chief Justice of India is not legal.

Dr Arijit Pasayat observed that the then Chief Justice should have stuck to the view expressed by the Collegium and should not have been swayed by the views of the government to recommend extension of the term of that judge. But he had “no hesitation in saying that a person who is not suitable to be appointed as a permanent Judge on the ground of unsuitability due to adverse factors on account of mental and physical capacity, adverse materials relating to character and integrity and other relevant matters, which are so paramount and sacrosanct for the functioning as a Judge, should not be continued as an Additional Judge”.

What rattle the common man’s mind are that after all the long discussions, strong arguments on either side and after analysis with technical precision, the doubts remain whether justice was done. The apex court made several profound pronouncements about transparency including disclosure of the correspondence about consultation for appointment of judges. Unless that is realized it is difficult to bring in accountability in appointment of judges.

Need of the hour is to disclose the entire correspondence including IB report about appointment and extension of additional judge and also about his elevation to permanent position. The Executive and Judiciary should take a policy decision to put all correspondence about each and every appointment of judge/constitutional office holders in public domain voluntarily under Section 4(1)(b) of Right to Information Act, 2005. The people of this country have a right to know what kind of persons is deciding their fate in the abode of judiciary.