CJI's authority and the independence of judges

The two are inextricably linked together and the prime minister has rightly suggested to improve the quality of appointment to overcome the problem of corruption in the judiciary.

The controversy surrounding the proposed elevation of Justice D P Dinakaran, chief justice of the Karnataka high court, to the Supreme Court, is the latest body blow to the credibility of the judiciary. Justice Dinakaran met the CJI to rebut all the charges levelled against him. This raises the question whether the CJI is the ‘boss’ of other judges.

So, it will be desirable to examine the authority of the CJI vis-à-vis other judges of the higher judiciary as it has serious implications for the independence of the judiciary. Constitutionally speaking, the high court is not subordinate to the Supreme Court. It is right that high courts do not become subservient just because their orders can be challenged before the Supreme Court.

Even in the high courts, Letters Patent Appeals lie against the order of a single judge before a division bench of the same court. It does not mean that the single-judge bench is subordinate to the division bench. In the Supreme Court also, the larger bench overrules the smaller bench. It is a method of correction as individuals may go wrong.

However, the Supreme Court is not just the apex court in the normal hierarchy of courts, but is much more than that as it has original, appellate as well as advisory jurisdictions. Further, Article 144 clearly mandates that all authorities, civil and judicial, shall work in the aid of the Supreme Court. The term, judicial authorities, also covers high courts.

Moreover, the chief justice of the Supreme Court is called the Chief Justice of India (Art 24 of the Constitution). This nomenclature is meaningless if he is not the head of the judiciary. So, by convention, he is the paterfamilias of the judicial fraternity even though the Supreme Court has no supervisory jurisdiction over any court.

However, in matters of appointment and transfer of judges, the CJI plays the most crucial role. Under Articles 124 and 217, consultation with the CJI is a must for the appointment of judges. In 1993, the Supreme Court, in its controversial decision in the Second Judges’ case, ruled that the recommendation of the CJI would be binding, but clarified that the opinion of the CJI means the opinion of the collegium consisting of the CJI and two senior most judges.

Wrong move
The Third Judges’ case upheld most of the formulations of the Second Judges’ case but ruled that in case of appointment to the Supreme Court, the collegium would consist of four senior most judges besides the CJI. In fact, the snatching of power of appointment and transfer of judges from the hands of the executive and transferring it to the collegium by judicial interpretation has virtually made the high court judges subservient to the CJI and other members of the collegium as they have to keep them in good humour for getting promoted as chief justices of high courts and elevated to the Supreme Court. Justice Dinakaran has made the position of other judges more vulnerable by meeting the CJI to explain his position.

This is not a healthy trend for the judiciary. Fear of supersession is bound to affect the independence of judges. Here again comes the question of the independence of the judiciary which faces threat not only from without but also from within.

A high court judge has the same protection as the CJI under the Constitution. But the fear of being left out makes high court judges feel insecure. In the words of Milton, ambition is but the last infirmity of a noble mind. Judges also nurture the ambition of promotion and elevation.

The standing committee of parliament attached to the ministry of law and justice in its 21st report made many recommendations for making the judges of the Supreme Court and high courts accountable. But the members of the committee felt that for it the system of the appointment of judges to the higher judiciary has to be rectified first.

The committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till. In 2006, two parliamentary committees made the same recommendation to restore the pre-1993 position.

Justice J S Verma, who is the author of the majority judgment in the Second Judges’ case, recently wrote to the Chief Justice of India that the system of collegium had failed and a new system needed to be invented.

The Administrative Reforms Commission headed by Veerappa Moily has recommended the constitution of a National Judicial Council (NJC) for the appointment and removal of judges.

So the crux of the problem lies in the process of the appointment of judges. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay.