I have read the article of Mr. Sankaranarayanan published in Times of India (25.8.2014) which was in response to my article published on 24.08.2014 in which I had written that the CJI should be appointed on merit, not seniority. My reply to Mr. Sankaranarayanan is as follows :
1. Article 124(2) of the Indian Constitution states : " Every Judge of the Supreme Court shall be appointed by the President--after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary for the purpose"
In the Second Judges case, referred to by Mr. Sankaranarayanan, has not the Supreme Court practically amended Article 124(2) of the Constitution, and substituted a different provision in its place by a judicial verdict ? Amendment to the Constitution can only be done by Parliament under Article 368. By which principle of interpretation was this power taken over by the Supreme Court ? In the garb of interpretation can the judges amend a statutory or Constitutional provision ? If the Judges can make such amendments to the Constitution by judicial verdicts, then what can debar them from saying that whatever may be written in the Constitution, there will be henceforth two or more Presidents of India, two or more Prime Ministers of India, or two or more Chief Justices of India ?
2. A plain reading of Article 124(2) shows that consultation by the President of India with the Judges of the Supreme Court or High Courts is only if he deems it necessary. Hence the President need not consult them, at least in the case of appointment of the Chief Justice of India, and may prefer to consult a body of some eminent jurists, which may include reputed senior lawyers of the Supreme Court and/or the High Courts, eminent academic jurists, retired Judges,etc. There is nothing in Article 124(2) debarring such consultation
3. Even in the second Judges case, to which Mr. Sankaranarayanan refers, the Supreme Court has said : " Appointments to the office of the Chief Justice of India have, by convention, been of the seniormost Judge of the Supreme Court considered fit to hold the office. The provision in Article 124(2) enabling consultation with any other Judge is to provide for such consultation if there be any doubt about the fitness of the seniormost Judge to hold the office, which alone may permit and justify a departure from the long standing convention. There is no reason to depart from the existing convention".
Now a convention is a convention, and not a statutory or Constitutional rule.When the Supreme Court delivered its verdict in the second Judges case in 1993 ( which practically amended the Constitution, as I have already pointed out), there may not have been any reason to depart from the convention. But since then experience has shown the harmful effects it has had on the judiciary. Mr. Shanti Bhushan, the former Union law Minister, and a very senior lawyer of the Supreme Court, filed an affidavit in the Supreme Court that half the 16 CJIs prior to the filing of the affidavit were corrupt. Surely Mr. Shanti Bhushan knew what he was talking about, and he has far greater experience of the legal world than Mr. Sankaranarayanan ( he was Advocate General of U.P. even before I started law practice in the Allahabad High Court in 1970, and he has also been a Union Law Minister). Even after the filing of that affidavit there have been CJIs about whose integrity there was a grave question mark, and I am sure Mr. Sankaranarayanan knows whom I am talking about since he has apparently been practising for many years in the Supreme Court.
As I said, a convention is not a statutory rule, and when experience shows it has been having a deleterious effect it should be given up, and a better method adopted.
4. Mr. Sankaranarayanan has referred to the supersession of the 3 seniormost judges of the Supreme Court by Mrs. Gandhi's government and appointment of Justice A. N.Ray, who was junior to them. as the CJI. I agree with him that this was totally improper, and an attempt to end the independence of the judiciary. But when I said that the CJI should be appointed on merit, not seniority, I did not mean that the assessment of merit should be done by the government. It should be done by a committee of eminent jurists ( which may include eminent senior lawyers of the Supreme Court and the High Courts, eminent retired Judges, and legal academicians of repute),and the members of this committee could be chosen by a panel consisting of the Chief Justice of India, the Union Law Minister, and the Chairman of the Bar Council of India. Alternatively, some other method of assessing merit by an independent body of jurists could be devised
5. As regards the repeated personal attacks on me in his article by Mr. Sankaranarayanan, ( e.g." Being the grandson of Dr. K.N. Katju and the son of Justice S.N. Katju one can safely assume that Mr. Katju was in possession of a radio in the summer of 1973", or " Critics could well argue that Mr.Katju himself ought to have been disqualified from taking a seat on the apex court or even being appointed to the Press Council ), I would not like to make any comment, except to say that Mr. Sankaranarayanan could do with a little manners.
(Published in The Times of India on 28.08.2014)