Thursday 28 August 2014

Appointment of Chief Justice of India

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.
  Justice Katju

(Published in The Times of India on 28.08.2014)


  1. One thing is sure. Times are changing. Literacy rate improved tremendously from 1970s. Global economy demands competition, efficiency, merit, integrity and quality. In this new frontier, old convention of seniority is at odds with the demands of citizens.

  2. Subject :

    How Judges of the Supreme Court and Bombay High Court, connived and passed perverse orders, to help corrupt Judge Shri V L Achilya become a High Court Judge on 18.10.2013 and immediately next day on 19.10.2013, supporting MPID Court Judge passed orders for eviction of undersigned aged 66 from flat, which for he has paid Rs 51 lakhs to Banks in 2005. Presently homeless in Mumbai.

    Judges Involved :

    Justice Shri T S Thakur and Justice Smt Gyansudha Mishra of the Supreme Court, Justice Shri A M Khawilkar and Justice Shri A R Joshi of the Bombay High Court.

    Plea to the President of India against Judges of Supreme Court and Bombay High Court who lack human intelligence

  3. Mr. Sankaranayanan, you are so fond of seniority. I ask you 5 Questions.
    1. We, many are young people aged 25-30. Our issues are different. Why is that Ms. Jayalalitha Weath Case is taking 17 years and still not disposed of.
    2. Why is that a Kindergarten school in New Delhi could not reach amicable solution in school admissions in any forum less than of Supreme Court?
    3. Why is that how much to spend for my street light by the Panchayat is decided at a CM's office 300 miles away in Chennai? Is this democracy?
    4. Do you believe in Referendums? If so, do you agree or not agree with Jawaharlal Nehru denying a referendum after promising it to UN, after having completed first Referendum in Junagadh, which went in favor of India, out of two promised referendums?
    5. When majority of India feels, some provisions of Constitution is flawed, would you agree or not agree to support some Amendment?

  4. This comment has been removed by the author.

    1. Please write your story concisely. I mean it should not be more than 5 pages if you want others to help you. People, in my view, are not interested to read long documents. Thus you should specify how Chidambaram harasses you and what help do you need in less than 5 pages.


  5. Mr Sankarnarayanan could definitely do with some manners. Brevity is the soul of wit.

  6. time is not still..... if you go with timing u achieve many more Palm Hills


  8. Sir, thousands of articles have been written on political party functioning in India. Constitution covers the election of MLA, MPs as the starting point. Why didn't our founding fathers did not regulate the parties, rules governing them etc, that would have kept Parties under tight regulations. I totally frustrated with the party DMK, it almost a economic empire. The literacy rate in Tamil Nadu is over 80%. The bench mark for measuring the literacy rate has to be scaled up. At least, Corporate companies have regulations governing them. But, free ride is given for political parties. Why sir?


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  11. I would like the readers to look at the criticism of the issue as under:
    • The act of Mrs. Gandhi immediately after the judgment of Supreme court in KV Bharathi’s (1973) case (introducing the concept of basic structure theory imposing restrictions on the amending power of the parliament under article 368 of the constitution), wherein the Government appointed Chief justice Ray Superceeding of three judges to the Supreme court resulting in their resignation was a glaring act of executives interference in the independence of Judiciary. No one approved it. Intellectuals raised their strong protest. The imminent danger of dictatorial regime was exposed; however people of India the ultimate masters for all the institutions punished Mrs. Gandhi severely in the electoral battle.
    • From 1947-73, all the state organs were functioning within their domain and this was considered as the first assault on judiciary’s independence. Then came the SP Gupta’s case which is known as first Judge transfer case in 1982, the Supreme court went in for literal interpretation of the Article 124(2) and said it is the executive which is responsible for appointment of judges and said consultation does not mean concurrence. This view was expressed inspite of the actions of Mrs. Gandhi’s government.
    • As rightly said by Justice Katju that few judges cannot introduce new articles in the constitution by way of interpretation that was never the intention of the forefathers of our constitution- I would like to quote what Baba Saheb in the constituent assembly on the judicial review said- “we are therefore placed in two difficult positions. One is to give the judiciary the authority to sit in judgment over the will of the legislature and to question the law made by the legislature on the ground that it is not good law, in consonance with fundamental principles. Is that a desirable principle? The second position is that the legislature ought to be trusted not to make bad laws. It is very difficult to come to any definite conclusion. There is danger on both sides. For myself I cannot altogether omit the possibility of a legislature packed by party men making laws which may abrogate or violate what are regard as certain fundamental principles affecting the life liberty of an individual. At the same time, I do not see how five or six gentlemen sitting in the Federal or Supreme court examining laws made by the legislature and by the dint of their own individual conscience or their bias and prejudices be trusted to determine which law is good and which law is bad.
    • In the second and third judge transfer cases Supreme Court took over the power of appointing judges of higher Judiciary to itself, when that was never the intention of the constitution. Even there the same court made some changes realizing giving exclusive power to CJI is not the right thing. Even the judges who were instrumental in the collegiums system were on record saying that they thought this will produce forward looking judges but it resulted in producing looking forward judges resulting in corruption and total loss of confidence of public in the present Justice Administration system.


  12. • Honorable Supreme Court during the past few decades was very sensitive to the discussion on collegium system, but it is only because of justice katju, a person of proven impeccable credentials of integrity, honesty, forward looking, bold and a gentleman who zealously protected the fundamental rights guaranteed under the constitution as a judge of the high court expressing hid forthright views on the corruption in judiciary and the collegium system’s pitfalls that brought the intellectuals and common man of the nation to think about the relevance of this outdated system which is proving to be more a burden and a problem instead of being a solution.
    • Sankarnarayanan ji instead of indulging in baseless criticisms and passing unwanted comments on Justice Katju should have answered and countered the issues raised. He should have avoided talking about the chairmanship of press council because Justice katju is the best person available for this job. No one can deny it. It is unfortunate to think that by appointing him as the chairman or as the judge earlier, the Government has done a favor to him but I think the government has done great favor to the nation which is the only right thing amongst so many mistakes the previous government has committed.
    • I also fail to understand how the great lineage of Justice Katju can be considered for baseless criticism particularly when the issue is about interpretation of article 124(2). Even in Ramayan Lord Rama is praised for his lineage as he has come from Raghuvamsh known for upholding Dharma. I appeal to Mr. Sankarnarayanan to give constructive suggestions for speedy and efficient justice particularly for poor and down trodden, instead of indulging in personal criticism.


  13. Jailing SCI CRIMINAL CONTEMNOR Justice Dattu: “A time may come when all this may be sent for police verification.” CJI Lodha said Supreme Court alive to the demand for greater transparency in appointments. . . “People want to see you, know you. The public wants more diversity. Things have changed. They want to know more of your credentials or particulars,” said Lodha, who will be succeeded by justice HL Dattu.

    NEW DELHI: 08.09.2014: The Supreme Court is alive to the demand for greater transparency in appointments to the superior judiciary and possibly resigned to the inevitability of a change in the system. [ = Jailing SCI CRIMINAL CONTEMNOR Justices Dattu, Thakur, Gopal Gowda & K.L. Manjunath-ABOVE LAW-015:- = FB-867-DZ-CJI-Lodha-Dattu-Waghela-49]

    Chief Justice of India RM Lodha acknowledged as much on Friday when he said that change was in the air and a situation may arise in which applications would be invited from eligible persons for appointment as high court judges, as opposed to the internal process that currently prevails. In the so-called collegium system, the judiciary picks judges.

    Digvijay Mote shared Markandey Katju‘s status.Yesterday [08.09.2014]:- Defamation of Judiciary.
    A high judicial authority recently said that some people are trying to defame the judiciary. Perhaps he was alluding to me. So doing corruption by Judges does not defame the judiciary, but exposing such corruption defames it.
    This is a new definition of defamation !


    Legislative changes that await approval mean the executive will have a role in the matter through the establishment of a National Judicial Appointments Commission (NJAC).

    “People now want more transparency. They want to see you. A time may come when applications have to be filed for appointment as high court judges or a body like the Lokpal. What is the problem?” the CJI said, prompting speculation that the court may be resigned to the changes being pushed ahead aggressively by the Narendra Modi government.

    The chief justice seemed in a more philosophical frame of mind than in the past few weeks, when some of his statements seemed to reflect anguish about the executive getting more of a say in the appointment of judges. “With change of time, perception changes,” Lodha said.

    The comments alluding to the system of appointments by the proposed NJAC, which will invite applications from eligible persons for appointment as high court judges, mark the first such public acknowledgment by Lodha, who retires this month.

    “People want to see you, know you. The public wants more diversity. Things have changed. They want to know more of your credentials or particulars,” said Lodha, who will be succeeded by justice HL Dattu. “A time may come when all this may be sent for police verification.”

    The process may involve tracking matters such as how many traffic challans a person may have, past professional misconduct, defaults in appearing in cases etc, he said. With Lodha on the bench were Kurian Joseph and RF Nariman.