Courage, Craft, and Contention: The Indian Supreme Court in the Eighties

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Carol J. David A. Eduardo J. Gerhard O. Ruggero J. Thomas R. Mcoy, Logic vs. Verma and Kusum ed. Read Free For 30 Days. Description: ILI Syllabus.

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Judicial Process an Instrument of Social Ordering. Jump to Page. Search inside document. Devika Suppiah.

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Aiman Hassan. Dinesh Chandramohan C. Doina Cuciurca. Bedanga Bhushan Saikia. Shweta Dhuri. More From Arul Muhammad. Similarly, in the case of a Judge of the High Court, the formal proposal emanates from the Chief Justice of the High Court and if that is accepted by the Chief Minister of the State, the Governor of the State, the Chief Justice of India and the Minister of Law and Justice, Government of India, the same is processed and submitted to the Prime Minister of India, who, if he approves the recommendation, advises the President to issue a formal warrant of appointment.

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The intervention of the Prime Minister of India is not merely formal. Cases are not unknown where even if the Minister of Law and Justice in the Govern- ment of India has accepted the recommendation, the same was not given effect to on account of the objections from the Prime Minister of India. Similarly, power of appointment of a person to-a post other than district judge in the judicial service of a State vests in the Governor of the State to be exercised in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to such State5.

The Law Commission has analysed in details the power conferred by articles and of the Constitution in its two earlier reports6 and, therefore, it is unnecessary to re-examine the aspect herein. The provisions, especially those dealing with recruitment to superior judi- ciary articles , and came in for a critical appraisal recently before :1 Bench of seven Judges of the Supereme Courtl. A clear cleavage of opinion surfaced in the course of arguments.

Two irreconcilable positions adopted were : 1 In the matter of appointment of Judges to High Courts and Supreme Court, the last word should be with the Chief Justice. This position, on deeper examination, was found to be unsus- tainable not only because of the langugc in which the provisions are couched but by also inviting an external aid to construction by referring to the relevant debates in the Constituent Assembly which in terms rejected such a proposition; 2 leaving last word with the executive in the matter of appointment to supeior judiciary is likely to permit the executive to pack the Judiciary with its own nominees which would not only destroy the independence of the judiciary but would be subversive of the independence of the judiciary.

Shorn of embellishment, the contention was that even though Chief Justice of India is one of the constitutional functionaries who is to be con- sulted in the matter of appointment, yet, by a process of interpretation with a View to consolidating the independence of judiciary, his View should be accorded primacy.

On the other handgthis submission was repelled by asserting that the court cannot, by a process of interpretation, read by implication, into the provisions something'which was expressly suggested and rejected. The majority, in the face of unimpeachable evidence. If the primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance, amount to concurrence, because giving primacy means that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, and that the Central Government must accept his opinion.

There is a body of opinion that the majority decision having undermined the position of Chief Justice of India in the matter of appointment to supeior judi- ciary, further inroads have been made in the insulated walls of independence of judi- ciary and, to some extent, there is perceptible erosion of independence of judiciary.

It would have been an interesting case study to examine and thread-bare analyse the approach of the Chief Justice of India in the matter of selection of persons for man- ing the superior judiciary; what was the yardstick employed; what criteria were de- veloped in reference to which the selection was objectively made or whether it was a wholly subjective process. In fact, spokesman for the Government of India, whenever an oc- casion arose, emphatically asserted and reiterated that every appointment was made by accepting the recommendation of the Chief Justice of India and no one has been appointed atleast to the Supreme Court of India who has not been recommended by the Chief Justice of India.

SCC But how such recommendationjs extorted needs indepth examination. He also referred to the post-retirement statement of a former Chief Justice of India which bears out his statement. There is no material available to evaluate the position of the Chief Justice of India prior to the decision in S. Gupta's case and subsequent thereto. State of Punjab.

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It says :. In practice, the last word in such a sensi- tive subject must belong to the Chief Justice of India, the rejection of his advice being ordinarily regarded as prompted by oblique considerations vitiating the order. However, the same learned Judge, three years after the extracted assertion, observed in this very context in the case of Union of India vs. SankalchandHimatlaI Sheth ' as under:. Ambedkar explained in the Constituent Assembly. A brief reference to the debates in the Constituent Assembly bearing on the topic would shed light onjthe mental processess of the Founding Fathers.

Courage, Craft, and Contention: The Indian Supreme Court in the Eighties

Winding up the debate on the articles concerning judiciary, Dr. Ambedkar observed that :. 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 he failings, all the sentiments and all the prejudices which we as common people have and I think to allow the Chief Justice practicallya 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. Pokhar Saheb, who had given notice of two different amendments Nos". This being the constitutional position as emerging from the debates, the primary source of information, the majority leaned in favour of it. The method of appointment to the "superior judiciary set out in the just preceding chapter has thus been in vogue for over four decades.

Has this system ' stood the test of time? Does it subserve the purpose for which it was devised?