[By T.P.KELU NAMBIAR B A M L,
SENIOR ADVOCATE,
HIGH COURT OF KERALA]
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Some well-meaning lawyer-friends asked me: “Why are you keeping a stiff upper-lip, and your blue pencil at rest, on the current controversial question of primacy of the Chief Justice of India in the context of appointment of Judges of the Supreme Court and the High Courts, the Park Avenues of Justice. Why don’t you speak out. Your opinion, perhaps would be an ‘open sesame’ to the topic. You are not a ‘wounded lawyer’, awaiting the boon of all-merciful healer-time.” Though I live a life on my own terms, I was provoked. It was a slap on my wrist. It tickled my funny bone. I thought, I should open up and wag my pencil, because I am asked to write for the legal fraternity, not for thriller-readers; and I am no Dan Brown to write a ‘Da Vinci Code’.
Reversing the normal process, with the utmost respect I start with the conclusion that the decision of the majority, of the nine-judge Bench, in Supreme Court Advocates-On-Record Association case, [(1993) 4 SCC 441], is not correct. (Mark, the Bench did not arrive at a collective conclusion.)
The majority (of seven learned judges) have travelled through one-hundred-and-fifty printed pages to come to the conclusion that ‘no appointment of any judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India’. The dissenting view (of two learned judges) that ‘as regards primacy to be accorded to the view of the Chief Justice of India vis-à-vis the President, i.e. the executive, although his views may be entitled to great weight, he does not enjoy a right of veto, in the sense that the President is not bound to act according to his views’, was arrived at, in about seventy-five pages. (I write for those who have read the decision in full.)
I shall not make a lengthy travel with my blue pencil to endorse the conclusion come to by the ‘dissenting judges’. I am not scripting an ode to judge-selection.
Neither the straight text nor the clear meaning of Articles 124 and 217 of the Constitution is capable of being read and interpreted to mean that the opinion of the Chief Justice of India is the final word. The references made by the majority to various ‘authorities’ only show that the primacy of the Chief Justice of India would be ideal. The majority kept out of mind that the Constitutional provisions are being interpreted, not reconstructed. The ‘wish’ of the majority alone is reflected in their opinion, not the ‘meaning’ of the Constitutional provisions.
It needs little emphasis to clarify that the Debates of the Constituent Assembly are unlike proceedings of the Parliament and Legislative Assemblies, or the objects and Reasons of a legislation, or an Explanatory Note to statutory Rules. The Debates reveal the meaning and intention of an Article as finally adopted. The Constituent Assembly was composed of the “Freely chosen representatives” of the people of India, as desired by Mahatma Gandhi, far back as 1922. The desire of the Mahatma was affirmed, from time to time, by various public bodies and political leaders, and the idea of Constituent Assembly had come to prevail largely as an ‘article of faith’ in almost all the politically-minded classes of the country. The address, on the 9th December, 1946, (when, at eleven of the clock, the Constituent Assembly of India first met), of the Provisional Chairman Dr.Sachidananda Sinha ‘ to the Indian people’ reveals the constitution, nature and importance of the Constituent Assembly. The members of the Constituent Assembly were ‘great names’. The Supreme Court was not seen taken through the speech of Dr. Sachidananda Sinha, and the ‘great names’. I hold the firm view that when one entertains a doubt regarding the meaning of a constitutional provision, the Debates of the Constituent Assembly are the sure guide.
Articles 124 and 217 are the Articles dealing with appointment of Judges of the Supreme Court and the High Courts, respectively. Those portions of these Articles, relevant for the present purpose, may be read here:
“124……
(2) 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 and shall hold office until he attains the age of sixty-five years”. “Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”.
“217……
(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years”.
The Draft Article before the Constituent Assembly corresponding to Article 124 was Article 103; and the raft Article corresponding to Article 217 was Article 193. The Constituent Assembly Debates reveal the attention and anxiety bestowed upon framing these Articles. Several amendments were moved. Some members moved amendments on the lines of giving primacy of views, in the appointments, to the Supreme Court/Chief Justice of India. Winding up the proceedings, Dr.Ambedkar said, after an elaborate exposition of the features involved:
“With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured. There are two different ways in which this matter is governed in other countries. In Great Britain the appointments are made by the Crown, without any kind of limitation whatsoever, which means by the executive of the day. There is the opposite system in the United States where, for instance, offences of the Supreme Court as well as other offices of the State shall be made only with the concurrence of the Senate in the United States. It seems to me, in the circumstances in which we live today, where the sense of responsibility has not grown to the same extent to which we find it in the Unites States, it would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say, merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of the appointment being influenced by political pressure and political considerations. The draft article, therefore steers a middle course . It does not make the President the supreme and the absolute authority in the matter of making appointments. Id does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgment is that this sort of provision may be regarded as sufficient for the moment.
“With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition”.
The views of Dr.Ambedkar are reflected in articles 124 and 217. I am sure, I follow.
The majority of the Judges, constituting the Constitution Bench, has labored much to come to the view that primacy should be accorded to the views of the Chief Justice of India. The decision is not what the Articles mean, but what the Articles should have been, or should be. This, with great respect, is not interpreting the Articles, but constructing entirely different Articles, which is not the function of the Court. There was an indication in the speech of dr.Ambedkar that the question of variation in articles 124 and 217 could be looked into at a later stage. It is not for the Supreme Court to finalise the variation. The Supreme Court could have suggested the variation for the consideration of the Government.
I, too, can deliver verdict. One fears only that which he does not understand. I do not want to win. I prefer not to lose. This is a creative writing, which I love. I do not want this write-up to be protected under patent. Nor have I obtained letters patent therefore. Anybody can do anything with this. I simply believe my own opinion. It is not my habit to whisper. I proclaim aloud. I do not use spiritual vocabulary while scripting on a subject like this. Articles 124 and 217 are verily articles without multiple layers of meaning. These Articles are misjudged and misinterpreted, is my respectfully view. I should think, I have not made an odd choice of vocabulary. I underline the Indian Tribonian, and the contributions of Sir B.N.Rau, who compiled and consolidated the legal code of India, that is, the Constitution of India.
The Constitution of India is not the magic of many. It is a prodct of hard, diligent, untiring, remarkable and intelligent labour of the Constituent Assembly of India, which was composed of ‘great names’, and which occupies the place of first glory. Every lawyer should remember what somebody said: ‘What do they know of English Law, who only English Law know’; and should realize: ‘What do they know of constitutional Law, who only Constitution of India know’. Lawyers should have close acquaintance with the Debates of the Constituent Assembly. The constituent Assembly is a ‘Foundation’ in the names of those who constituted it, unlike a court, which is not a foundation in anybody’s name, alive or dead. And, that is that.
The ‘judicial’ tear in the fabric of the ‘People’s’ Constitution needs urgent ‘legislative’ darn. I call immediate attention of the Union Government to repair the damage and restore the pristine look. I am sure, the Government would realize that the Constitution, of ‘We, the People of India’, is not a mere play of Squirrel Nutkin and Tom Kitten.