“The Chief Justice Is…”: Members of the Constituent Assembly Discuss Judges’ Selection

In October 2015, leading a five-judge bench, Jagdish Singh Khehar—the chief justice of India, who retires on 28 August 2017—struck down the 99th constitutional amendment, which proposed the setting up of a body to make appointments to the high courts and the Supreme Court. This body—the National Judicial Appointments Commission, or the NJAC—would have comprised representatives from the executive and the judiciary, as well as two “eminent persons.” The issue of judicial appointments has a long history—if passed, the NJAC would have replaced the collegium system of appointments, which was laid down by the Supreme Court in 1993. The collegium system gave primacy to the judiciary’s role in the selection of judges, and was viewed by some as a usurpation of power by the judiciary. Until then, appointments to the higher judiciary were made by the president of India, after consultation with the chief justice. In a cover story for the June issue of The Caravan, Atul Dev, a staff writer, noted that “Khehar’s judgment in the NJAC case ensured that, at least for the foreseeable future, power over appointments to the judiciary would remain with the judiciary.”

As part of “The Argumentative Indians,” The Caravan’s series of selections from the Constituent Assembly Debates, below are extracts from the members’ speeches during the discussion on the appointment of judges to the Supreme Court, including those of KT Shah and BR Ambedkar. The members discuss why, according to them, the power to appoint judges should not rest with the executive or the judiciary alone.

Shibban Lal Saksena: Sir, in this amendment I have provided that the chief justice of the Supreme Court shall be appointed by the President, but it shall be confirmed by at least two-thirds majority of both the houses. At present, clause (2) provides that the president shall appoint the chief justice of the Supreme Court, which means that the prime minister or the executive shall appoint him. The chief justice of the Supreme Court should be completely independent of the executive, and it is this principle that I want to introduce in this section. At present, he shall be a creature merely of the executive and the president shall appoint him on the advice of the prime minister. This will take away some independence of the Supreme Court. We are here providing for the highest tribunal of justice in our country. This tribunal should be above suspicion and no executive should be able to have any influence upon him. … I therefore want, Sir, that the chief justice shall be appointed by the president of course, but at least two-thirds members of the parliament shall approve his name. … In this manner, there is some initiative to the president also: he will be the man who will give the names, but the name will only be accepted if two-thirds majority of both the houses support him. …

This method has two advantages: it gives the executive the right of choosing the person who they think will be proper, but it will not exercise that right in a party spirit and shall decide it in a manner that all the members of both the houses—or at least a two-thirds majority of them—shall approve that name. …

At present, Sir, the judges also have not to be appointed on the advice merely of the chief justice of the Supreme Court, but they are appointed in consultation with the supreme chief justice, which means even in their appointments the executive has got the major hand. I think, Sir, that this should not be. Every judge of the Supreme Court should be appointed on the advice merely of the supreme judge of the Supreme Court, so that they may derive their authority from the chief justice and not from the executive. This, I think, Sir, is a very important thing and should be incorporated in our Constitution. We have all along said that we want an independent judiciary; that is the pride of many peoples and that is the pride of the United States of America. I think we too want that our Chief Justice and the Supreme Court should be above suspicion. These should be completely independent, so that a man can feel that they shall be absolutely independent of the executive.

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B Pocker Sahib Bahadur: Sir, I move that for clause (2) and the first proviso of clause (2) of article 103, the following be substituted: “(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme and the Chief Justice of the High Court in the States and every judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.”

Now, Sir, in giving this amendment, I wanted to see that the appointment of the judges of the Supreme Court is not in any way affected by political influences. I am very strongly supported by the opinions given by the federal court and the chief justices of the various high courts, which have been submitted to this body. That memo has been circulated to the honourable members of this house. … This is what it says:

It appears that a certain provincial Government has issued directions that the recommendations of the Chief-Justice, instead of being sent to the Premier, should be sent to the Chief-Secretary, who, in some instances, has asked the Assistant Secretary to correspond further with the High Court in the matter. Thus, there seems to be a growing tendency to treat the High Court as a part of the Home Department of the province. With a view to check this tendency which is bound to undermine the position and the dignity of the High Courts and lower them in the estimation of the public, the Judges assembled in conference were unanimously of opinion that a procedure on the following lines must be laid down for the appointment of High Court Judges: “The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor, the President should make the appointment with the concurrence of the Chief Justice of India.

This procedure would obviate the need for the Chief Justice of the High Court discussing the matter with the Premier and the Home Minister and justify his recommendations before them. It would also ensure the recommendation of the Chief Justice of the High Court being always placed before the appointing authority, namely, the President. The necessity for obtaining the concurrence of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear on the matter.”

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I submit, sir, the views expressed by the federal court and the chief justice of the various high courts assembled in conference are entitled to the highest weight before this assembly, before this provision is passed. It is of the highest importance that the judges of the Supreme Court should not be made to feel that their existence or their appointment is dependent upon political considerations or on the will of a political party. Therefore, it is essential that there should be sufficient safeguards against political influence being brought to bear on such appointments. Of course, if a judge owes his appointment to a political party, certainly in the course of his career as a judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him. That the judges should be above all these political considerations cannot be denied. Therefore, I submit that one of the chief conditions mentioned in the procedure laid down, that is the concurrence of the chief justice of India in the appointment of the Judges of the Supreme Court, must be fulfilled. This has been insisted upon in this memo and that is a very salutary principle which should be accepted by this House. I submit, Sir, that it is of the highest importance that the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed.

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KT Shah: [referring to his proposed amendment] The amended proposition would read: “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with the Council of States [the Rajya Sabha] and such of the judges of the Supreme Court and of the High Courts in the States as may be necessary for the purpose and shall hold office until he attains the age of sixty-five years.”

Sir, this is an amendment seeking to make the appointment of Judges free from any particular influence. My amendment is that the president, if he makes the appointment, will naturally do so on the advice of the prime minister. In my opinion, sir, if I may so with all respect, this Constitution concentrates so much power and influence in the hands of the prime minister in regard to the appointment of judges, ambassadors—or governors to such an extent—that there is every danger to apprehend that the prime minister may become a dictator if he chooses to do so. I think there are cases which ought to be removed from the political influence, of party manoeuvres. And here is one case, [which is] the judges of the Supreme Court, who I think should be completely outside that influence. … I suggest that the Council of States should be associated, if only to avoid the influence that is likely to dominate when the prime minister alone advises the president on such matters. The Council of States composed, as it is of representatives of States as well as certain interests, would be, I think, more able to be balanced in this matter.

There is of course the obvious precedent of the US Senate, which is associated in such matters, even though the Constitution of the US is based, fundamentally speaking, on a somewhat different principle than that which we have adopted in this draft. Nevertheless, here is a case in which I think it would be well for us to adopt that line.

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Das Bhargava: Sir, I support amendment number 1817 [referring to Saxena’s proposition]. According to the provisions of this amendment, confirmation of the appointment of the chief justice of the Supreme Court must be made by a two-thirds majority of the total number of members of parliament assembled in a joint session of both houses of parliament. If you kindly refer to clause (4) of this article, it will appear that so far as removal of a Supreme Court judge is concerned, an address supported by not less than two-thirds of the members present and voting should be presented to the president by both houses of parliament in the same session. I beg to submit that this principle is quite sound that the dismissing authority should be the appointing authority also. Therefore, the objection that the legislature should not have any influence in regard to the judges of the Supreme Court has been laid at rest by this provision about removal. There can be no such valid objection so far as the appointment of the chief justice of the Supreme Court is concerned. No doubt, the appointment should be made by the President; but what is sought now is that the confirmation may be got to be made by a two-thirds majority of the total number of members of Parliament. This would inspire much more confidence in the chief justice of the Supreme Court and at the same time, the chief justice also shall get more influence and prestige when it is known that his appointment has not only been supported by the president, who practically represents the majority in the legislature, in so far as that it will be the prime minister who will give his advice to the president.

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RK Sidhva: Now coming to the amendment of Professor Shah, he wants the Council of States to decide the question of the appointment of Judges. This I must strongly oppose. We want impartial and independent Judges, and if you leave it to the Council of States there is bound to be individual canvassing, in which case the question of ability, et cetera will be set aside. Of course from the point of democracy it may be good to consult them because we want wider consultation and discussion, but there must be a limit to it. And if you leave it to the Council of States to appoint judges, that will be going too far. After all our prime minister will be a responsible person; Professor Shah stated that the prime minister has to make appointments of ambassadors, governors, judges et cetera. This is true—he is likely to make appointments of his choice or show favoritism, but surely he is subject to our votes.

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Biswanath Das: … Sir, it has been proposed that a joint session with a two-third majority is one way of selecting the chief justice of India. Professor KT Shah contracts the process of the election by having the election of judges to be done by the Council of States. In any event, be it by a joint session of Parliament or by the Council of States, the fact remains that we are trying to import a very dangerous principle, namely the process of electing judges of the Supreme Court in place of the one that we have, namely the process of selection.

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KT Shah: On a point of personal explanation, I have not said that they should be elected. I have said that the Council of States should be consulted.

RK Sidhva: It comes to the same thing.

Biswanath Das: Consulting the legislature and election are certainly technical two different processes. But in a democracy functioning, as we propose it should, under this Constitution, is it anything less to say that my friend, Professor Shah, wants to import election into the appointment of the judges? I think there is nothing for me to stand corrected by the revised version given by my honourable friend, the learned professor. We have seen the difficulties and distress of countries that have accepted the principle of such election. If you once accept the principle of election what reasons could you assign to exclude the subordinate? As has been done in America, even public prosecutors are to be elected by a defined electorate. Under these circumstances, Sir, I plead with my friends that the system of appointment by a process of election be shunned and be given up for good.

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Rohini Kumar Chaudhury: Mr President, I have come here purposely to warn the house against the acceptance of the suggestion made by my friend, Mr Shibban Lal Saksena. He seems to think that any appointment that is made should be subject to confirmation by two-thirds majority of the houses of parliament. I submit that this is a very dangerous principle. Confirmation by two-thirds majority of the houses of Parliament means that the appointment will be at the pleasure of the leader of the majority party. … I would therefore warn the house not to accept any proposal aimed at giving the house power to confirm the appointment of judges or agree to the suggestion that action for the removal of a judge can be taken by Parliament itself. That sort of thing should not be allowed to be accepted for a moment.

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BR Ambedkar: Now, Sir, with regard to the numerous amendments that have been moved, to this article, there are really three issues that have been raised. The first is, how are the judges of the Supreme Court to be appointed? Now grouping the different amendments that are related to this particular matter, I find three different proposals. The first proposal is that the judges of the Supreme Court should be appointed with the concurrence of the chief justice. ... The other view is that the appointments made by the President should be subject to the confirmation of two-thirds vote by Parliament. The third suggestion is that they should be appointed in consultation with the Council of States.

… 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 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, officers 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 United 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 that 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. It 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.

This is part of “The Argumentative Indians,” The Caravan’s series of excerpts from the Constituent Assembly Debates that reflect on subjects relevant to public discourse in the present day.