PUCL Bulletin, Dec., 1981

The Judges' Case : The Issues Involved

For nearly four and a half months, a Seven-Judge Bench of the Supreme Court was deliberating on what came popularly to be known as the Judges' case. Des-cribed during the course of arguments as the "second most important case to come before the Supreme Court" (the first being the "Fundamental Rights" case), it was, in true sense, a case of public interest litigation. Eminent lawyers from many parts of the country devoted their time and energies to it.

The cases were filed by lawyers in their own names, as the Judges concerned would be expected to feel reluctant and embarrassed at taking their own matters to court. The Delhi case was filed by Mr. V.M. Tarkunde in his capacity as the President of the PUCL. The Bombay case was filed by Mr Iqbal Chagla and the Allahabad was filed on behalf of Mr S.V. Gupta. Cases pending in the High Courts of Bombay, Allahabad and Delhi, involving similar questions, were transferred to the Supreme Court, in order that a final and authoritative pronouncement may be made without delays. The Bar in Bombay spontaneously raised large funds to enable their leading counsel to come to Delhi and participate effectively in the case. It was one of the great historic cases to be argued before the Supreme Court.

Simplified, and leaving aside the intricacies of legal argument, the issues involved in this case were briefly these. The first related to the status of an Additional Judge of a High Court in the Constitutional Scheme. Every High Court has a sanctioned strength of per-manent judges, with as complete a security of tenure as it is possible to conceive. He can be removed from office only under the procedure provided for by Article 124(4) and (5) of the Constitution and an Act passed by Parliament known as the Judges (Inquiry) Act of 1968. The Judges (Inquiry) Act prescribes a detailed procedure whereby allegations of misbehaviour or incapacity against a Judge have to be made in the form of a motion in Parliament, supported by 100 members of the Lok Sabha or 50 members of the Rajya Sabha. This motion, if admitted, is then investigated by a com-mittee consisting of a judge of the Supreme Court, a judge of a High Court and a distinguished jurist. Definite charges must be framed, the judge concerned must be given a full opportunity to meet them, and if the charges relate to physical or mental incapacity, the report of a medical board must be obtained. If the committee, which consists essentially of judicial officers, records a finding that the judge concerned is not guilty of the charges, the motion is to be dropped and no fur-ther action can be taken upon it. A permanent judge is irremovable except under this procedure,
Article 224 of the' Constitution provides foi the appointment of additional judges. Article 224(1) reads:

Appointment of additional and acting Judges
"224.(l) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify,"

An additional 'Judge is, thus, to be appointed for a period not exceeding two years at a time. The question was, can the government drop an "undesirable" judge at the end of two years because he has given judgements unpalatable to those in authority? Can it use the provi-sions of Art. 224 to exercise a power of non-appoint-ment? Even assuming that an additional judge is either incompetent or corrupt, can Art. 224 be used as a means of easing him out of office without using the machinery of the Judges Inquiry Act?

Law Minister's Letter

The other question before the Seven Judges Bench of the Supreme Court related to the validity of a letter issued by the Minister of Law and Justice on 18 March, 1981 to the Chief Ministers of various States. This letter directed the Chief Ministers to ask the Chief Justices of their respective High Courts to obtain from their additional judges, within 2 weeks, the consent of such additional judges to be appointed as permanent judges to any one of three High Courts other than their own. The letter also made it clear that the preference ex-pressed by such judges would not be binding on the government and they could be appointed to any other High Court in the country. Such consent was to be obtained also from future appointees who were being considered for elevation as High Court judges.

Scope of Article 224

The original challenge of the petitioners was to the short-term extensions granted to additional judges. Although under Article 224, the maximum period for which an additional judge can be appointed is two years, a practice had developed whereby extensions of 3 months, 4 months or 6 months were granted to judges. This meant not only that an element of uncertainty was introduced in the career of the judge concerned, who could have no idea as to what his future was after these few months, but gave the government a further point at which a decision was to be made about the continuance or non-continuance of the judge. Furthermore, the decision of the authorities was communicated to the judge a day or so before the expiry of his term, and in one instance, three additional judges of the Nagpur Bench of the Bombay High Court took their oath at 10.30 p.m. at night as their term would have expired at midnight.

The argument of the petitioners was that under Art. 224 (which has been set out above), additional judges are to be appointed for dealing with a temporary in-crease in the business of the High Court or for dealing with arrears of work. It has argued that the exercise of the power of the President was conditioned by these two objective criteria, and as long as arrears continued, it was obligatory on the President to appoint the re-quisite number of judges commensurate with the volume of work. Consequently, it followed that once it was found that arrears of work continued, it was obligatory on the President to continue to grant a full two years extension to an additional judge, and appoint him as a permanent judge as soon as a permanent vacancy occurred.

It was not open to the Government to assess the per-formance of a judge to decide whether he was to be continued or not, as an additional judge was not on probation. An equal degree of care was taken in ap-pointing an additional judge as in the case of a per-manent judge, they possessed the same qualifications, performed the same functions, their salaries, privi-leges and other service conditions were identical to those of Permanent judges. There could be no "evaluation" of his judicial performance at the end of two years. Giving the powers to the Executive to evaluate the performance of a judge with a view to discontinue him, would be completely destructive of the principle of the independence of the Judiciary. Even as a matter of constitutional practice, additional judges were always appointed with the understanding on both sides of a permanent appointment as soon as a vacancy arose. Apart from seriously threatening the security of tenure of sitting additional judges, it would give rise to a situation where competent advocates, who were professionally successful, would become reluctant to accept an office which has traditionally been an office of great dignity.

The problems outlined above are sharply exemplified by the situation prevailing in the Delhi High Court. Out of the sanctioned strength of 27 judges in the Delhi High Court, 15 are permanent posts and as many as 12 are those of Additional judges. At the time when the Delhi petition was filed, there were three vacancies of permanent judges. However, the additional judges were merely being given further extensions without filling up the permanent posts. It was prayed that the three senior most additional judges, namely, Justice N.N. Goswami, Justice Sultan Singh and Justice O.N. Vohra be appointed as permanent judges. On 6-3-1981, Justice O.N. Vohra, Justice S.N. Kumar and Justice S. B. Wad had been given only 3 months extension each, a period which was to expire on 6-6-1981, when the Supreme Court was on vacation. Apprehending that some of these judges may not be re-appointed, the petitioner had prayed that a decision with regard to their re-ap-pointment be taken at least 10 days prior to 6-6-1981. An order in these terms was made by the Supreme Court. However, till 1-6-1981, no decision was communicated to the three judges concerned. An application was, therefore, made to the Vacation. Judge of the Supreme Court to direct the Government to communicate the decision to the judges. In response to this, the strange stand taken by the Government was that it was not obligatory on them to communicate the decision, as the Supreme Court had merely directed them to take a de-cision. It ultimately transpired that the government had token a decision not to continue Justice O.N. Vohra and Justice S.N. Kumar as judges of the Delhi High Court.

The case of Justice S.N. Kumar came to be argued at length before the Supreme Court, as the other judge, Justice Vohra, did not contest the proceedings. Here the issues simply put, were these

Issues in Justice Kumar's Case

The appointment of a judge of a High Court is to be made under Article 217 of the Constitution, by the President (which legally, and in fact, means the Union Executive) after consultation with the Chief Justice of India, the Governor of the state and the Chief Justice of the concerned High Court. Assuming that the conti-nuation of an additional judge was a fresh appointment, as contended by the state, the question was whether there had been an effective consultation bet-ween the three constitutional authorities, particularly between the Chief Justice of India and the Chief Justice of the Delhi High Court. The State made a strenuous plea that the documents concerned were privileged documents. This plea was rejected by the Bench of a majority of 6 to 1. The legal position was that consul-tation between the authorities must be effective consul-tation-that is, application of mind to identical facts. The question, therefore, was whether the allegations against Justice Kumar had been communicated to the Chief Justice of India, as the State had already disclos-ed that the Chief Justice of Delhi had advised against Justice Kumar's re-appointment and the Government had preferred the view of the Chief Justice of Delhi to that of the Chief Justice of India.

Disclosure of the documents showed that relatively minor allegations against Justice Kumar, i.e. a slow rate of disposal and pronouncing of certain judgements on the original side of the High Court while sitting on the Appellate side, had been communicated to the Chief Justice of India. He had asked Justice Kumar for this explanation and had been satisfied with it. But there was another letter written by the Chief Justice of Delhi on 7th May, 1981 to the Law Minister, making serious allegations of corruption against Justice Kumar. This letter was never shown to the Chief Justice of India and there was a noting by the Law Minister that the Chief Justice of Delhi had himself requested him not to show this letter to the Chief Justice of India. Accordi-ngly, a letter was addressed by the Law Minister to the Chief Justice of the Delhi High Court informing him that pursuant to his wishes, the letter had no been shown to the Chief Justice of India. Whether this amounted to an effective consultation between the two Chief Justices was one of the important issues to be pro-nounced upon by the Supreme Court. Another aspect was Justice Kumar never being apprised of these serious allegations against him, whether his non-conti-nuance was contrary to the principles of natural justice which require a man to be heard before any adverse action is taken against him. Further questions which arose ate whether such charges ought not to be dealt with under a proper procedure such as that provided by the Judges (Inquiry) Act, so that unverified and unsubstantiated allegations do not result in the removal of an innocent man. Again, if the two Chief Justices take divergent views, is it open to the Govern-ment to choose the views of one as against the other? And lastly, if the non-continuation of Justice Kumar is not found to be in accordance with law, can the Supreme Court issue a Writ of Mandamus to the Union Executive to reappoint him? Related to this were questions such as, whether it is open to the Government to keep a large number of judges as additional judges when the work load requirement of the High Court clearly indicates that a larger number of permanent judges are required? If there are genuine suspicions of misconduct against a judge, is it obligatory upon the Government to still re-appoint him and then proceed to hold an inquiry?

The decision of the Supreme Court on these matters Was to be a momentous and crucial one for the indepen-dence of the judiciary, as it will determine the scope of control exercised by the Executive on the higher judicial officers.

The second major question argued was the validity of the circular letter of the Law Minister dated 18th March 1981. In an earlier case, which had come before the Supreme Court, Union of India Vs. S.M. Seth, it had been held that each transfer must be considered individually and on its own merit, and that policy transfers on a wholesale basis were impermissible. It had also been laid down that consultation with the Chief Justice of India on the question of transfer of a particular judge had to be real and effective, with all materials in respect of a proposed transfer being placed before him. If the opinion of the Chief Justice was ignored without any cogent reasons, the validity of such a transfer could be gone into in a court of law.

Circumventing rules

It was argued by the petitioners that the letter of the Law Minister was merely an attempt to circumvent the conditions of transfer laid down by the Supreme Court. An additional Judge or a future appointee, being uncertain of their tenure, could be coerced into giving their consent, and the Executive would be able to present a fait accompli to the Chief Justice of India. It was argued that consent must mean free consent, not consent induced by threat or duress. It was also argued that consent to a transfer could not be given in a vacuum, it must be in a particular fact situation. The tone of the letter, which required such consent to be obtained within a fortnight, and which made it clear that the government would not be committed to honour the preference shown by the judge, did not exhibit a high degree of courtesy for the judges. To select only additional judges and future appointees for this pur-pose would mean that their consent could be induced on an implicit threat of non-confirmation or non-ap-pointment.

One of the justifications given by the State for the circular was that this was a policy to promote national integration, as the 14th and 80th Law Commissions had recommended that one-third of the Judges on a High Court should as far as possible, be from outside the state. It was argued by the petitioners that the con-cept of national integration was an amorphous one; if it was to be achieved, it could be done by requesting a particular appointee initially to accept office at another place, instead of keeping the sword of a transfer to which he had already agreed hanging on his head.

Another reason given for this policy was that it would combat narrow parochial tendencies bred by caste, kinship and local links. The question was whether the power of transfer could be used by way of punishment and whether if a judge had proved himself unworthy of judicial office he should be inflicted on another High Court.

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