Judicial Appointment or Judicia Incest?

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By A. G. Noorani*


(This brief survey of the American, British, Indian and Pakistani experience seeks to demonstrate the perils of the first, the improvements in the second, the mess in the third and a worse mess in the hybrid in the last.

In India and Pakistan politicians in power had subverted the British system of judicial appointments which, for all its flaws, had served them well as it had Britain itself. In both countries, the judges hit back when they found the executive in flagrant breach of the Constitution, which they had sworn to uphold. They appointed themselves as the appointing authority for judges of the Supreme Court and High Courts. That is judicial incest.  Robert Stevens points out, “Judges choosing judges is the antithesis of democracy”. Author)

Nearly two centuries ago, when Britain’s Lord Chancellor Lord Lyndhurst was asked what considerations he weighed in the process of selecting judges, he replied “I look about for a gentleman and if he knows a little law so much the better”. This was a wise observation. A gentleman will not lapse into misconduct outside the Court, misbehave on the Bench or be rude and arrogant. But by what process do we find a member of this vanishing tribe?

The democratic world has, broadly, three methods for appointing judges to the superior courts – by the executive, with or without, consultation with judges; by the judges themselves, and by politicians who are in the legislature. India and Pakistan followed the first during British rule and for decades after independence.

On 6 October 1993 the Supreme Court of India ruled by a majority of 7 to 2 that the opinion of the Chief Justice of India on appointments “has primacy” and “No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in conformity with the opinion of the Chief Justice of India. In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. However, if the stated reasons are not accepted by the Chief Justice of India and the other Judges of the Supreme Court who have been consulted in the matter, on reiteration of the recommendation by the Chief Justice of India, the appointment should be made as a healthy convention.

“Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office.

“The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of transfers of High Court Judges/Chief Justices. Consent of the transferred Judge/Chief Justice is not required for either the first or any subsequent transfer from one High court to another. Any transfer made on the recommendation of the Chief Justice of India is not to be deemed to be punitive, and such transfer is not justiciable on any ground.

“In making all appointments and transfers, the norms indicated must be followed. However, the same do not confer any justiciable right in anyone.”

The CJI is only enjoined to take “into account the views of the two seniormost Judges of the Supreme Court”. But he is not bound by them. This cabal came to be called a “collegium”. Its numbers expanded at the whim of the Court later. (The Supreme Court Advocates – on Record Association vs. Union of India (1993) 4 Supreme Court Cases 44 at p.702 and 710 hereinafter referred to as “the Second Judges’ Case”).

The  Supreme Court of  Pakistan’s ruling in Al-Jehad Trust  vs. Federation of  Pakistan & Ors  (All Pakistan Legal Decisions 1996 Supreme Court 324; the Al-Jehad case) is based on that ruling explicitly; in what circumstances and for what reasons became known only in 2004 when the memoirs of the former Chief justice of Pakistan, Ajmal Mian, who had sat on the Bench which decided the case with the then Chief Justice Sajjad Ali Shah, were published (Ajmal Mian; A Judge Speaks Out; Oxford University Press; Karachi). He revealed : “In May or June 1995, I was in Quetta during court sittings, when I received a telephone call from Justice Sajjad Ali Shah who told me that the Indian Supreme Court had handed down a judgment recently, interpreting the word ‘consultation’ used in the relevant articles of the Indian Constitution, relating to the appointments of the judges of the superior courts. He wanted to examine the question in some pending cases and needed my help. I told him that my services were available at all times to the Supreme Court for its betterment, and for advancing the cause of justice. …. The status of Pakistan’s judiciary in July 1995, when the above constitutional petition was admitted, was not really commendable. There were seven ad hoc or acting judges working in the Supreme Court. The permanent Chief Justices of the High courts of Sindh and Lahore had been transferred to the Federal Shariat Court for a period of two years. Three out of the four High Courts in Pakistan had acting Chief Justices. There were a number of additional judges in all the High Courts. The public perception in Pakistan and abroad was that the judiciary in Pakistan was not independent and I thought this was an opportune time to salvage the image of the judiciary as the adjudicating scope of the petition mentioned was unlimited, as it was admitted to examine the provisions of the Constitution in relation to the working of the judiciary.” (pp. 176-77).

Sajjad Ali Shah took oath as Chief Justice of Pakistan on 5 June 1994, superseding three senior judges namely Justices Saad Saood Jan, Abdul Qadeer Chaudhry and Ajmal Mian in breach of a settled convention of 40 years. (Sajjad Ali Shah; Law Courts in a Glass House; An Autobiography; Oxford University Press, Karachi; pp. 195-196).

Justice Saad Saood Jan retired on 1 July 1996; Jusice Chaudhry, on 12 July 1994.

The Al-Jehad Trust case was decided on 24 March 1996. Later that year, the Third Volume of Constitutional Law of India (Fourth Edition, N.M. Tripathi P. Ltd.; Bombay) was published posthumously by one of the most erudite constitutional lawyers, H. M. Seervai. He wrote that the majority of the judgments (of 5 and 2 judges) in the Second Judges’ Case “bristle with almost every fault which can be committed in a judgment” (p. 2964). This conclusion was arrived at the end of a rigorous analysis from pages 2928 onwards. He also pointed out that the main judgment of five judges – in a Bench of nine – “became null and void for not following the mandatory provisions of Articles 145(4) and (5)” of the Constitution of India (p. 2936).

Revelations in Ajmal Mian J’s memoirs (pp. 176-191) reveal that the processes in which the judgments were prepared and signed were so irregular as to yield the same conclusion for this ruling which Seervai had formed for its Indian inspiration.

In India and Pakistan politicians in power had subverted the British system of judicial appointments which, for all its flaws, had served them well as it had Britain itself. In both countries, the judges hit back when they found the executive in flagrant breach of the Constitution, which they had sworn to uphold. They appointed themselves as the appointing authority for judges of the Supreme Court and High Courts. That is judicial incest, “Judges choosing judges is the antithesis of democracy” as Robert Stevens points out. (The English Judges : Their Role in the Changing Constitution; Hart Publishing, Oxford; 2005, p.

144). A practicing barrister with high academic credentials, he quotes a senior Law Lord, Lord Binghan’s dictum, “the courts tend to be most assertive, active and creative when political organs of the State are least effective”.

In India nearly two decades after that ruling the country was shocked to find that two senior members of the Supreme Court Bar, Shanti Bhushan and Prashant Bhushan, alleged that out of the last 16 Chief Justices of the remaining two, a definite opinion cannot be expressed”. Contempt of Court proceedings were initiated against Prashant whereupon his father Shanti repeated the allegation and asked “to be added as a respondent to the contempt petition”.

In Pakistan three years after the ruling, military rule was imposed by General Pervez Musharraf on 12 October 1999 which the Supreme Court unanimously validated on 12 May 2000. Justice Iftikhar Muhammad Choudhry was a member of the Bench. In March 2007 President Musharraf sought to oust him from the office of Chief Justice of Pakistan and triggered off a chain of events which led to his own departure and fortified the Court in public esteem and in its own power.

While moves are afoot in India to override the Second Judges’ Case by amending the Constitution to set up a judicial Commission endowed with authority to appoint judges, in Pakistan politicians, viewing the situation with alarm, enacted the 18th  and the 19th  amendments to the Constitution which provide a role for both legislators and judges; a hybrid which combines defects of both systems.

Meanwhile the fount from which both once drank, Britain, forged ahead in 2005 with radical reform which is little noticed. This brief survey of the American, British, Indian and Pakistani experience seeks to demonstrate the perils of the first, the improvements in the second, the mess in the third and a worse mess in the hybrid in the last.

Judges of the United States Supreme Court did not refrain from political activity. One of the greatest of them Louis Brandeis was a Zionist leader (Philippa Strum; Louis D. Brandeis; Harvard University Press, 1984; Ch. 19 on “Isaiah’s Extrajudicial Activities” , pp. 372-405). In this his partner was Justice Felix Frankfurter (Bruce Allen Murphy; The Brandeis/Frankfurter Connection: The Secret Political Activities of Two Supreme Court Judges; oxford University Press; 1982).

Article II, Section 2, 2 of the U.S. Constitution endows the President with the “power, by and with the advice and consent of the Senate” to appoint Judges of the Supreme Court “provided two thirds of the senators present concur”.

In such a set up president Lyndon Johnson appointed his lawyer Abe Fortas to the Court. His “off-the-Bench actions” forced him to resign as judge but not before Johnson’s attempt to promote him as Chief Justice. (Henry J. Abraham; Oxford University Press, 1974; p. 261). To read the transcripts of Hearings in the Fortas Case before the Committee on the Judiciary United States Senate; 90th  Congress Second Session; 11 July to 11 September, Parts 1 and 2 is to discover how, for all the homework their aides put in, the members were motivated by their subjective predilections and political preferences.

The legislative check is no check on unworthy appointments. In 1991 Clarence Thomas was confirmed by the Senate despite grave and credible charges of misbehaviour by Anita Hill and the Judiciary Committee was split (7 – 7). He has emerged as an Uncle Tom on the Bench.

In the presidential election Case Bush vs. Gore (2000) the majority was so brazenly partisan towards George W. Bush that Justice John Paul Stevens delivered a rebuke which will never be forgotten. “The [per curiam] opinion by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today’s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is pellucidly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.” (At the last moment, one of Stevens’s clerks prevailed on him, just this once, to give up his favorite word – pellucidly – and substitute the more familiar perfectly, which is how the famous sentence now reads.)” (Jeffrey Toofin; The Nine: Inside The Secret World of the Supreme Court; Anchor Books, 2008; pp. 206-8).

Of right wing causes. One of the foremost scholars on constitutional law Prof. Ronald Dworkin wrote “Almost every recorded political statement John Roberts has made throughout his life, from adolescence to his nomination as chief justice, suggests that he has strong conservative political convictions and instincts, and many people naturally fear that he will use his great power on the Supreme Court in the service of his politics. He promised that he would not, but the Senate Judiciary Committee should have been more effective than it was in testing that promise. In fact it failed dramatically in its responsibility to do so.

“In his public career Roberts has opposed improving protection for the voting rights of minorities; held that it would be constitutional for Congress to strip the federal courts of their powers to supervise racial integration; denigrated efforts by a group of women legislators to reduce gender inequality in the workplace; referred to the right of privacy as “so-called”; signed a brief advising the Supreme Court to overrule Roe v. Wade; and described a Supreme Court decision outlawing a moment of silence that might be used for prayer in schools as ‘indefensible’.” (Judge Roberts on Trial; New York Review of Books; 20 October 2005).

The American system has produced great judges and some charlatans as well. The rake’s progress provides warning against emulating the example.

It is unnecessary to delve in detail on the British practice of old when the Lord Chancellor, the Law Lords, the Lord Justice’s of Appeal, the Lord Chief justice the Master of the Rolls, and the President of the Family Division were appointed by the Crown upon the advice of the Prime Minister while the Judges of the High Court and Circuit Judges were appointed upon the advice of the Lord Chancellor. The system rested on convention, not statute. (Shimon Shetreet; Judges on Trial; North-Holland Publishing Co; 1976; p. 47).

In 1972 the Justice Sub-Committee, which reported on the judiciary, recommended that the Lord Chancellor should be helped in his task by an appointments committee. In his excellent work David  Pannick, now Lord Pannick, also suggested a Judicial Appointment Committee (Judges; Oxford University press; 1987; pp 67 and 69)

On 1 April 2006 the Constitutional Reforms Act 2005 come into force. Chapter 4 of the Act establishes a new Judicial  Appointments Commission (Sections 63 to 107). It comprises 15 members. The Chairman must be a lay member. 12 members including the Chairman are appointed through open Competition; the other three by the Judges’ Council. (5 must be judicial members, 2 professionals 1 barrister and 1 solicitor; 5 lay persons, 1 a tribunal member and 1 a lay justice member).

There is a new Supreme Court of Britain consisting of 12 judges, and the House of Lords stands shorn of judicial functions. The Lord Chancellor survives, but as a Minister of justice. Under the Act he need not be a lawyer. The Supreme Court will have a President, a Deputy President and ten other judges.

The Lord Chief Justice holds the office of president of the Courts of England and Wales and is Head of the Judiciary of these regions (but not of Scotland). The Act has some novel features. The Chief Justice of any part of Britain may lay before Parliament written representations on matters that appear to him to be “of importance relating to the judiciary or otherwise to the administration of justice” in that part of Britain. Section 3 (1) of the Act says; “The Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the administration of justice must uphold the continued independence of the judiciary.” Further, they “must not seek to influence particular decisions through any special access to the judiciary”. These provisions were inserted in a concordat between the PM and the Lord Chief Justice on which the Act is based. It lays down an elaborate procedure for selection and appointment of judges. No one likes to shed power. In this judges are no different from politician.

For long in Britain Judges resisted reform. On 10 March 2004, The Times, London, asked the Lord Chief Justice, Lord Woolf, to “make up his mind whether he is a liberal reformer or the shop steward for the only trade union in the country whose members wore wigs and not hard hats or cloth caps”. That members of a similar trade union in India and Pakistan wear none of these is irrelevant.

The obvious remedy began to attract support in Britain as it has in India. To meet criticism the Lord Chancellor’s Department published a pamphlet on judicial appointments describing the selection process. In 1999, Sir Leonard Peach submitted a report to the Lord Chancellor entitled ‘An Independent Scrutiny of the Appointment process of Judges and Queen’s Counsel’. The Lord Chancellor Lord Irvine set up an advisory body, the Commissioner for Judicial Appointments, chaired by Sir Colin Campbell.

But Irvine was not prepared to relinquish his powers. On June 12, 2003, PM Tony Blair sacked him and announced plans for the creation of a Supreme Court, a JAC and a Department for Constitutional Affairs. Robert Stevens carefully traces the debate that ensued, especially in the House of Lords.

Finally, on January 26, 2004, came a concordat between the Lord Chief Justice and the government. Its text is instructive. This paved the way for the enactment of the Constitution Reform Act. On appointments to the bench it preserves an even balance between the State and the judges. The Act of 2005 establishes a system of checks and balances without involving MPs.

It is well described in an erudite work. “When an appointment is to be made, the Commission (in the case of a High Court Judge or listed office-holder) or a selection panel appointed by it (in the case of the Lord Chief justice, head of Division or lord Justice of Appeal) decides upon the selection process to be applied and proceeds to apply it. Its selection of one person is presented in a report to the lord Chancellor. (What follows is described herein summary form : for the full details see sections 67-96 of the Constitutional Reform Act.).

“On receiving the report (stage 1) the Lord Chancellor has three options : (a) to accept the selection; (b) to reject it; (c) to require the Commission or panel to reconsider the selection. Following a rejection or requirement to reconsider, the Commission or panel must again make a selection. The lord Chancellor has then (stage 2) the same three options : to accept, reject or require reconsideration; but he may reject the selection only if it was made following a reconsideration at stage 1, and may require reconsideration of the selection only if it was made following a rejection at stage 1. Following a further selection after rejection or reconsideration  at stage 2, the Lord Chancellor must, at stage 3, accept the selection. If the Lord Chancellor rejects or requires reconsideration of a selection at stages 1 or 2, the Commission or panel in proceeding to a further selection may not select the person rejected, but following a reconsideration may select the person reconsidered. Selection by the Commission or a selection panel must be solely on merit; subject to this the Commission must in performing its functions ‘have regard to the need to encourage diversity in the range of persons available for selection for appointments’ (sections 63-64 of the act). The Judicial Appointments Annual Reports published by the Department for Constitutional Affairs are a useful source of information and can be found at www.dca.gov.uk.” (Colin Turpin and Adam Tomkins; British Government and the Constitution, Cambridge University Press; Sixth Edition; pp. 122-123).

India and Pakistan adopted the former British practice. Article 124 (2) of the Constitution of India says “Every judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose. … Provided that in the case of appointment of a Judge other than the Chief justice, the Chief Justice of India shall always be consulted”. For appointment of judges of the High Courts Article 217 (1) enjoins consultation with the CJI, the State’s Governor and the Chief Justice of the High Court.

Article 177 (1) of the Constitution of Pakistan says “The Chief Justice of Pakistan shall be appointed by the President, and each of the other Judges shall be appointed by the president after consultation with the Chief justice”. For the High Courts Article 193(1) says “A Judge of a High Court shall be appointed by the President after consultation – (a) with the Chief Justice of Pakistan, (b) with the Governor concerned, and, except where the appointment is that of Chief Justice, with the Chief Justice of the High Court”.

The Constituent Assembly of India set up an “ad hoc Committee on the Supreme Court.” Its members were persons of the eminence of Mr. Justice S. Varadachariar, a former judge of the Federal Court, Sir Alladi Krishnaswami Ayyar, Sir B. L. Mitter, K. M. Munshi and Sir B.N. Rau. Paragraph 14 of their Report dated May 21, 1947, dealt with the qualifications and mode of appointment of Judges. It read thus : “The qualifications of the judges of the Supreme Court may be laid down on terms very similar to those in the Act of 1935 as regards the judges of the Federal Court, the possibility being borne in mind (as in the Act of 1935) that judges of the superior courts even from the States which may join the Union may be found fit to occupy a seat in the Supreme Court. We do not think that it will be expedient to leave the power of appointing judges of the Supreme Court to the unfettered discretion of the President of the Union. We recommend that either of the following methods may be adopted: one method is that the President should, in consultation with the Chief Justice of the Supreme Court (so far as the appointment of puisne judges is concerned), nominate a person whom he considers fit to be appointed to the Supreme Court and the nomination should be confirmed by a majority of at least 7 out of a panel of 11 composed of some of the Chief Justices of the High Courts of the constituent units, some members of both the Houses of the Central Legislature and some of the law officers of the Union. The other method is that the panel of 11 should recommend three names out of which the President, in consultation with the Chief justice, may select a judge for the appointment. The same procedure should be followed for the appointment of the Chief Justice, except of course, that in this case there will be no consultation with the Chief Justice. To ensure that the panel will be both independent and command confidence, the panel should not be an ad hoc body but must be sone appointed for a term of years”. [B. Shiva Rao; The Framing of India’s Constitution; Select Documents; Vol. II pp. 589 to 591].

When the Draft Constitution was being discussed, the Chief Justice and the other Judges of the Federal Court and the Chief Justices of the High Courts met in conference in March 1948, to consider the provisions affecting the judiciary. The Conference authorized the Chief Justice to submit a memorandum embodying its views which he did. The memorandum recommended that appointment of judges of the High Court should be made by the President of India “on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.” (ibid., Vol. IV, p. 195).

The memorandum observed that “We do not think it necessary to make any provision in the Constitution for the possibility of the Chief Justice of India refusing to concur in an appointment proposed by the president. Both are Officers of the highest responsibility and so far no case of such refusal has arisen although a convention now exists that such appointments should be made after referring the matter to the Chief Justice of India and obtaining his concurrence. The foregoing applies mutatis mutandis to the appointment of the judges of the Supreme Court and Article 103(2) may also be suitably modified.”

These recommendations did not meet with the approval of the Founding Fathers, however, though they fully shared the objectives which the recommendations sought to achieve. Speaking in the Constituent Assembly on May  24, 1949, Jawaharlal Nehru, asked the Assembly to consider “What rules to frame so that we can get the best material from the Bar for the High Court or Federal Court Judges. It is important that these judges should be not only first-rate, but should be acknowledged to be first-rate in the country and of the highest integrity, if necessary, people who can stand up against the Executive Government and whoever may come in their way.” (Constituent Assembly Debates, Vol. VIII p. 247).

The Chairman of the Drafting Committee, Dr. B. R. Ambedkar addressed the Constituent Assembly on the same day and observed : “There can be no difference of opinion in the House that our judiciary must both be independent of the Executive and must also be competent in itself”. However, Dr. Ambedkar felt that the requirement of the concurrence of the Chief Justice of India to be unnecessary.   Instead, he provided for consultation with the head of the country’s judiciary. He rejected categorically the suggestion for election of the judges. Since it is the consultative provisions which were eventually adopted by the Constituent Assembly, it is important to note Dr. Ambedkar’s explanations for adopting them. They reveal clearly the intentions of the Founding Fathers. He said that, “the draft article, therefore, steers a middle course between concurrence and elections. It does not make the President the supreme and the absolute authority in the matter of making appointments. It does not also import the influence of the Legislature. The provision in the article is that there should be consultation of persons who are ex hypothesi, well qualified to give proper advice in matters of this sort, and my judgement is that this sort of provision may be regarded as sufficient for the moment”. (C.A.D. Vol. VIII p. 258).

It is important to note the tentativeness underlying the adoption of the provisions for consultations. Dr. Ambedkar regarded them only as being “sufficient for the moment.” There is another aspect. In the situation of  1949  Dr. Ambedkar made  the  following observations; “The judiciary decides cases in which the Government has, if at all, the remotest interest in fact no interest at all. The judiciary is engaged in deciding the issue between citizens and very rarely between citizens and the Government. Consequently the chances of influencing the conduct of a member of the judiciary by the Government are very remote.”

We live in times when, as the Union Minister of Law, Mr. P. Shiv Shankar, told the Rajya Sabha on December 4, 1980, “as the Government, I may tell you, we are the greatest litigants in the Supreme Court because in every case the Government is the party on either side” (Rajya Sabha Debates December 4, 1980, Col. 270).

Articles 124 (2) and 217 (1) were adopted by the Constituent Assembly on the basis of the assurances given by the Chairman of its Drafting Committee, Dr. B. R. Ambedkar.

It is extremely important to bear in mind that the Draft Constitution published in February 1948 did not contain any provision for the transfer of High Court Judges from one State to another at all. Nor was there any such provision in the Government of India Act, 1935. The provision for transfer of High Court Judges in the Constitution. Article 222, was proposed by the Constituent Assembly’s Drafting Committee only at final revision stage in November 1949. A singularly unfortunate result of this belated insertion of a novel and highly consequential provision was that the Conference of the Judges of the Federal Court and the Chief Justices of the High Court, which had met in March 1948 to offer its comments on the Draft Constitution in so far as it affected the judiciary, was deprived of the opportunity of offering its comments on this provision.

Dr. Ambedkar was fully aware of the possibilities of abuse of power of transfer. He assured the Constituent Assembly on November 16, 1949, that “We also took into account the fact that this power of transfer of judges from one High Court to another may be abused. A Provincial Government might like to transfer a particular judge from its High Court because that judge had become very inconvenient to the Provincial Government by the particular attitude that he had taken with regard to certain judicial matters, or that he had made a nuisance of himself by giving decisions which the provincial Government did not like. We have taken core that in effecting these transfers no such considerations ought to prevail. Transfers ought to take place only on the ground of convenience of the general administration. Consequently, we have introduced a provision that such transfers shall take place in consultation with the Chief Justice of India, who can be trusted to advise the Government in a manner which is not affected by local or personal prejudices” (C.A.D. Vol. XI p. 580).

The possibility of abuse of power by the Central Government was remotest in his reckoning. During the “emergency” (1975-77) there was a wholesale transfer of 16 Judges as a punitive measure. The First Judges’ Case was heard by a Bench of 7 Judges of the Supreme Court (S.P. Gupta & Others Vs. Union of India and others (AIR 1982 S.C. 149). By a majority of 6-1 (Mr. Justice Bhagwati), it was held that judge of a High Court can be transferred even without his consent. The majority added, however, that a condition precedent to the transfer was full and final after effective consultation between the President and the Chief Justice of India. Further, the power to transfer must be exercised only in the public interest and not as a punitive measure.

Two features of this ruling deserve particularly to be noted. One is that 4 of the 7 Judges expressed the view that the opinion of the Chief Justice of India had no primacy in regard to the appointment ofHigh Court Judges. Secondly, the Court advisedly refrained from pronouncing on the transfers as  a matter of policy.

A most constructive suggestion was made by Mr. Justice P. N. Bhagwati in his judgement. “There must be checks and controls in the exercise of every power, particularly when it is a power to make important and crucial appointments and it must be exercisable by plurality of hands rather than be vested in a single individual. That is perhaps the reason why the Constitution-makers introduced the requirement in clause (2) of Article 124 that one or more Judges out of the Judges of the Supreme Court and of the High Court should be consulted in making appointment of a Supreme Court Judge. But even with this provision, we do not think that the safeguard is adequate because it is left to the Central Government to select any one or more of the Judges of the Supreme Court and of the High Court for the purposes of consultation. We would rather suggest that there must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge. The recommending authority should be more broad-based and there should be consultation with wider interests.”

The idea of a collegium gained ground thereafter. On February 6, 1983 more than 60 Judges of the High Courts and the Supreme Court and several leaders of the legal profession suggested a collegium of Judges for recommending appointments to the higher judiciary.

It will be noticed that the framers of the Constitution deliberately did not provide for the concurrence of the CJI. That was stipulated by the Supreme Court’s ipse dixit (7 – 2) a decade later on 6 October 1993 in the Second judges’ Case noted earlier. The majority view conferred a veto on the CJI and his two colleagues on appointments to the Bench or transfers.   He became the only authority in the democratic world whose decision was exempt from judicial review. A judicial ruling which makes such an assertion proclaims its lack of moral sanction and legal force. Article 145 (4) and (5) of the Constitution says that “no judgement shall he delivered by the Supreme Court save in open Court” and “no judgment … shall be delivered by the Supreme Court save with concurrence of a majority judges present at the hearing of the case….”

In his dissent, Justice Punchhi made a startling revelation : “This nine-judge bench sat from 7 April 1993 to hear this momentous matter, concluding its hearing on 11 May 1993, close to the onset of the summer vacation. I entertained the  belief that we all, after 12 July 1993, on the reopening of the Court, if not earlier, would sit together and hold some meaningful meetings, having a free and frank discussion on each and every topic which had engaged our attention, striving for a unanimous decision in this historic matter concerning mainly the institution of the Chief Justice of India, relatable to this Court. I was, indeed, overtaken when I received the draft opinion dated 14 June 1993 authored by my learned brother J.S. Verma, J for himself and on behalf of my learned brethren Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ. The fait accompli appeared a stark reality, the majority opinion, an accomplishment. The hopes I entertained of a free and frank discussion vanished. But then came the opinion dated 24 August 1993 of my learned brother Ahmadi, J like a pebble of hope hewn out of a mountain of despair, followed by the opinions of my learned brethren Kuldip Singh and Pandian, JJ dated 7 September 1993 and 9 September 1993, respectively. No meaningful meeting thereafter was  possible as the views bys the time seemed to have been polarized.” (p. 711).

He went on to add “As stated in the outset we did not have the benefit of a discussion inter se on which the desirability of going into these aspects may have been gone into. The majority has expressed views thereon without alerting counsel appearing and others concerned. A lot can be said against such views of the majority but for the present the comment be kept reserved. I would rather desist conviction on the subject and prefer to remain advised. So in my view, on this aspect, the opinion is obiter. Consideration on these points was wholly unnecessary on the rigid terms of reference”. (p. 727).

We would not have known of this were it not for Justice Punchhi’s the dissent. The Court was to reopen on 12 July 1993. The majority chose to give its joint judgment on 14 June, during the summer vacations. Nor was this all. After these concurring judgments were given, ‘supplementary judgments’ were given by the five justices in the majority, irregularly.

It is a measure of Seervai’s learning that he traced the genesis and raison d’etre of Art. 145 (4) and (5) to a settled practice for over a century. He set out in paras 25.466 to 25.472 of pages 2936 to 2939, the irregularities in the preparation and delivery of the judgments that were signed by five judges during the vacation and circulated to the other nine. The judgment of J.S. Verma J. for himself and 4 others was dated 14 June 1993. Kuldip Singh J’s concurring judgment was signed on 7 September. Ahmadi J and Punchhi J’s dissents were signed on 24 August and 9 September, respectively. There was no discussion among them before they were delivered, in open Court on 6 October. Seervai cited rulings which establish “that it is not a mere technicality that judgments should be delivered only after all judgments are ready and have been read by all the judges” (p. 2936). He rightly characterized the majority rulings as “null and void”.

Justice Ajmal Mian’s memoirs expose what transpired preceding the delivery of the judgment in the Al-Jehad Trust case on 24 March 1996. “After the conclusion of the arguments, I had prepared a handwritten draft of the proposed short order covering all the points, including the point that the senior-most judge of a High Court and the senior-most judge of the Supreme Court could legitimately expect to be considered for the appointment of the Chief Justice of the respective courts. In the absence of any concrete and valid reasons put forward by the President or the Executive, the senior-most judge was entitled to be appointed as the Chief Justice of the court concerned. …

“On 17 March 1996, we assembled at the scheduled time at the Supreme Court rest house. Justice Mir Hazar Khoso did not turn up.

Justice Sajjad Ali Shah initiated the meeting by remarking that he had prepared a draft of the proposed short order, which he would like to read out. He did and it contained a few introductory paragraphs which became paragraphs 1 to 5 of the short order announced. However, the operative portion of the draft of the proposed short order contained adjudication on the two points, namely, (i) that the President had the discretion to appoint any of the judges of the Supreme Court as the Chief Justice irrespective of the seniority, and (ii) that the opinion of the Chief Justice of Pakistan in the Consultative process under the relevant articles of the Constitution had primacy over the opinion of other consultees, including the President or the Prime Minister.

“After justice Sajjad Ali Shah had finished reading out his draft of the proposed short order, I remarked that it would be the first time in judicial history that a Chief justice of the highest court in the land constituted a bench of his choice, presided over it and decided constitutionally about his own appointment. After that, with the permission of Justice Sajjad Ali Shah, I read out my draft of the proposed short order, which covered all the points, including the appointment of the senior-most judge of the Supreme Court as the Chief justice. On conclusion of the reading Justice Sajjad Ali Shah remarked that he would not like to become Prophet Ibrahim, and would not agree to the portion relating to the legitimate expectation of the senior-most judge of the Supreme Court to becoming the Chief justice of Pakistan. I corrected him, saying that Prophet Ismail was to be sacrificed on the commandment of Almighty Allah and not Prophet Ibrahim. I tried to impress upon him that Justice Saad Saud Jan had then still a little over three months to retire and that the proposed short order would redress his grievance to some extent. I also pointed out to him that by adopting the above course, he would go down in judicial history as the only Chief Justice who handed down a judgment against himself and would also lend credibility to the proposed judgment. I further pointed out that if my draft of the proposed short order was to be adopted on all other points except the office of the Chief Justice of Pakistan, he would not be able to justify his continuation as the Chief justice of Pakistan. Justice Sajjad Ali Shah said that at no cost would he give up his office. I told him that I would announce my proposed order even if I stood alone. The meeting ended without any decision……..”

It would be tedious and forbiddingly lengthy to reproduce the unseemly procedure adopted by CJ Sajjad Ali Shah to keep open the validity of his own appointment to the office of CJ. Suffice it only to say that no real discussion took place among the judges. Justice Ajmal Mian adds “On 3 April 1996, I was in my chamber in Lahore when Mr. Said, Justice Sajjad Ali Shah’s private secretary, brought a judgment by Justice Sajjad Ali Shah and asked me to sign it. I was taken by surprise as this was contrary to his repeated promises that he would sign my judgment. I enquired whether Justice Sajjad Ali Shah had made any reference to my judgment (the copy of which he had received on 23 March 1996 and which he had promised to sign). He replied in the negative. I was stunned to see that all my hard work for the court had been rewarded by its Chief Justice in such a cavalier fashion. … I contacted Justice Fazal Ilahi Khan at the rest house, as by then he had left the court, and informed him what Justice Sajjad Ali Shah had done. I told him that he could send his judgment to him also for signature. His reply was that as he had already signed my judgment on 24 March 1996, he would not sign the judgment by Justice Sajjad Ali Shah and that he had already told this to him. I recorded the following note on the judgment by Justice Sajjad Ali Shah after obtaining the concurrence of Justice Fazal Ilahi Khan : ‘I had recorded my separate reasons, copy of which sent to H.C.J., HJ (5) and then HJ (6). The latter two agreed with me and signed the same with me on 24.3.1996. I adhere to my above reasons.’

Justice Sajjad Ali Shah also sent for Justice Manzoor Hussasin Sial and got his signature on his judgment on 3 April 1996, though legally he had ceased to be a judge of the Supreme Court at midnight on 24 March when he retired on attaining the age of superannuation, i.e. 65 years. After having ceased to be a judge he had become functus officio and therefore could not sign any judgment on 3 April 1996. …

“Following this reasoning, the so-called dissenting judgment of Justice Mir Hazar Khan Khoso released to the press on 26 May 1996 and reported in the Dawn of 27 May 1996 was also a nullity in law, as he, having ceased to be an ad hoc judge of the Supreme Court on the pronouncement of the short order in the Judges’ Case on 20 March 1996, had also become functus officio …

“In the evening of 3 April 1996, I met Justice Fazal Ilahi Khan, as he was staying in a room adjacent to my room in the Supreme Court rest house, Lahore. I was shocked to discover that though he had told me in the afternoon that he would not sign the judgment of Justice Sajjad Ali Shah, as he had already signed my judgment on 24 March 1996, he had subsequently signed it, stating, ‘I also agree with the above reasoning’ without even reading it. His explanation was that Justice Sajjad Ali Shah had sent M.A. Farooqui, the judicial deputy registrar to the rest house after he had talked to me on the telephone and insisted that he sign it as it was the desire of the Chief Justice. I asked him whether he had read it, as there was some inconsistency between my judgment and that of Justice Sajjad Ali Shah on certain points.   His reply was that he had no time to read it before signing it. In my opinion, once he had agreed with my judgment unconditionally and signed it on 20 March 1996, he should not have signed another judgment on 3 April 1996. The whole exercise was futile in law.” (pp. 190-191).

The product reflects the process. The CJ Sajjad Ali Shah’s Judgment spread over pages 367 to 410 (PLD. 1996 S.C. 324) received the concurrence of Fazal Ilahi Khan and Manzoor Hussain Sial (p. 411). Justice Ajmal Mian’s judgment (pp. 411 to 522) also received the concurrence of Fazal Ilahi Khan and Manzoor Hussain Sial JJ (p. 522) though Sial JU appended a short judgment separately. Justice Mir Hazar Khan Koso dissented. The record supported Ajmal Mian J’s censures of the unprecedented dual concurrence by two judges.

The Short Order made on 20 March 1996 “for reasons to be recorded later” is common ground. Its 13 conclusions are followed by 6 directions. The crux of the matter is the conclusion that “the opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/ Executive.

“That if the president/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution.

“That the permanent vacancies occurring in the offices of chief justice and judges normally should be filled in immediately not later than 30 days but a vacancy occurring before the due date on account of death or for any other reasons, should be filled in within 90 days on permanent basis.

“That no ad hoc Judge can be appointed in the Supreme Court while permanent vacancies exist.

“That in view of the relevant provisions of the Constitution and established conventions/practice, the most senior Judge of a High Court has a legitimate expectancy to be considered for appointment as the Chief justice and in the absence of any concrete and valid reasons to be recorded by the President/ Executive, he is entitled to be appointed as such in the Court concerned.

“An Acting Chief Justice is not a consultee as envisaged by the relevant Articles of constitution and, therefore, mandatory Constitutional requirement of consultation is not fulfilled by consulting an Acting Chief justice except in case the permanent Chief Justice concerned is unable to resume his functions within 90 days from the date of commencement of his sick leave because of his continuous sickness.” The “legitimate expectancy” of the most senior Judge of the Supreme Court to be considered for appointment as Chief Justice of Pakistan was left open for reasons Justice Ajmal Mian records.

Sajjad Ali Shah wrote “We have to make reference to India time and again for the reason that before the partition it was one country, hence the problems which we are facing today in the present era, are more or less common” (para 70, p. 399). Why did he need to follow on an Indian innovation nearly 50 years after the partition ?

In both countries judges usurped power that did not belong to them and usurped it to rule against the trend in Britain on whose legal system theirs is based. So strained is the reasoning that absence of any debate on the use of the word “consultation” in the Constituent assembly is regarded as ground enough to construe it as “concurrence”.

In India the 1993 judgment had a predictable sequel. When he became CJI Justice M. M. Punchhi recommended transfer of five High Court Judges in breach of the rules and five High Court Judges for appointment to the Supreme Court without consulting the two judges next senior to him but two others. The president resolved the problem by a reference to the Supreme Court for its advisory opinion. The Court’s opinion, delivered on 28 October 1998 increased the number of the consultees from two to four (Special Reference No. 1 of 1998, Re : (1998) 7 SCC 739). It was based on the Second judge’s Case. The immediate crisis was resolved by imposing one judicial ipse dixit by another. There is nothing to prevent the Court from enlarging the charmed figure to twenty.

Chief Justice Stone of the U.S Supreme Court wisely said in 1936 ‘… while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check of our own exercise of power is sour sense of self-restraint’. (297 US 1 at 78 (1936). That quality has been none too evident in the Supreme Court in recent years. The Second and two Judges’ cases are, in the words of Lord Simonds, “a naked usurpation of the legislative function under thin disguise of interpretation.” (Magor and St. Melons Rural District Councils Newport Corporation (1951), 2 AUER 839; (1952) AC 189 at 191.). A far greater judge, Lord Diplock, a confirmed judicial activist, pointed out in 1980 that : “It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statues which experience of their operation has shown to have had consequence that members of the court, before whom the matter comes, consider to be injurious to the public interest.” (Duport Steels Ltd. v. sus (1980), IWLR 142 at 157).

In Pakistan Justice Ajmal Mian seemed to have developed second thoughts in his memoirs. “On the basis of more than twenty-one years of experience as a member of the superior judiciary, I can say without any fear of contradiction that none of the governments in Pakistan during my tenure wanted an independent judiciary. They preferred pliable judges over independent judges. The governments sometimes attempted to use the judiciary to suppress their opponents. The politicians, when in the opposition, want an independent judiciary, but when in power, they want a pliable judiciary. Unless we change this attitude, there will be no prospect of democratic governance and rule of law in our country, which are sine qua non for its economic progress and development.

“The judiciary also needs revamping. Though the judgment in the Judges’ Case has eliminated political interference in the appointment of judges in the superior courts, and has accorded primacy to the views of the chief Justices, this is still susceptible to misuse by an unscrupulous Chief Justice. In my opinion the demand of the Pakistan Bar Council and other Bar associations for a commission for judicial appointments, as also suggested by the late Justice Dorab Patel in one of his interviews with the press, needs serious consideration by competent authorities.” (p. 347).

Hamid Khan a senior lawyer writes in his erudite work that the Al- Jehad judgement “suffered from the inherent defect of being passed in a case where the judges were interested in its outcome” (Hamid Khan; Constitutional and Political History of Pakistan; Oxford University Press; Second Edu; p. 599).

The 18th Amendment to the Constitution of Pakistan inserted Article 175A which envisages a Judicial Commission of Pakistan for making the appointments, comprising the Chief Justice of Pakistan; two of the most senior Judges of the Supreme Court; a former Chief Chief Justice or a former Judge of the Supreme Court of Pakistan to be nominated by the Chief Justice of Pakistan, in consultation with the two member Judges, for a term of two years; the Federal Minister for Law and Justice; the Attorney-General for Pakistan; and a Senior Advocate of the Supreme Court of Pakistan nominated by the Pakistan Bar Council for a term of two years. (The Composition is varied for appointing High Court Judges).

Additionally there will be a Parliamentary Committee comprising four members each from the Senate and the National Assembly in which the Treasury Benches and the Opposition will be equally represented. The Judicial Commission will nominate one person to the Committee for each vacancy.

The Commission sends its nomination to the Committee which may either confirm it by a majority of its total membership or reject it by a three fourth majority of its total majority in which case the Commission will send another nomination. The Committee forwards the nominee confirmed to the President. The validity of the 18th  Amendment was challenged in the Supreme Court, particularly Article 175 A, as an attack on the independence of the judiciary. Hearing began on 24 May 2010 before a full Court of 17 Judges.

The Court gave a ruling on 21 October, after reserving judgment on 30 September. Some 22 petitions were heard. It said : “The Court at this stage would not like to express its opinion on the merits of the issues raised and arguments addressed and would rather, in the first instance, defer to the parliamentary opinion qua Article 175A on reconsideration by it in terms of this order. We would thereafter decide all these petitions adverting to all the issues raised therein.”

It was concerned at the fact that “The inclusion of the executive members in the afore-referred bodies has not only minimized the role of the judiciary in the appointment process but is likely to politicize the entire exercise and thereby impinge on the constitutional guarantees provided to ensure its insularity and to restrict the legislative and executive control over it. The issues of elevation of a Chief Justice of a High Court or Judge of the said Court to the Supreme Court, if brought before the Parliamentary Committee and discussed is likely to be violative of Article 68 of the Constitution, which stipulates that : “No discussion shall take place in [Majlis-e-Shoora (Parliament)] with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties’.”

The Court held “Article 175A shall be given effect to in the manner as under : (i) In all cases of an anticipated or actual vacancy a meeting of the Judicial Commission shall be convened by the Chief Justice of Pakistan in his capacity as its Chairman and the names of candidates for appointment to the Supreme Court shall be initiated by him, of the Federal Shariat Court by the Chief Justice of the said Court and of the High Courts by the respective Chief Justices. (ii) The Chief Justice of Pakistan as head of the Judicial Commission shall regulate its meetings and affairs as he may deem proper. (iii) The proceedings of the Parliamentary Committee shall be held in camera but a detailed record of its proceedings and deliberations shall be maintained. The Parliamentary Committee shall send its approval of recommendations of the Judicial Commission to the Prime Minister for onward transmission to the president for necessary orders. If the Parliamentary Committee disagrees or rejects any recommendations of Judicial Commission, it shall give specific reasons and the Prime Minister shall send copy of the said opinion of the Committee to the Chief Justice of Pakistan and the same shall be justiciable by the Supreme Court.

“All cases of fresh appointments of Judges of the Supreme Court, of the Federal Shariat Court, of the High Courts and of Additional Judges of the later Courts shall be processed forthwith under Article 175A.

“To enable the Parliament to proceed and re-examine the matter in terms of the observations made above, these petitions were adjourned to a date in the last week of January, 2011.”

This is not a case of suggesting reconsideration but of demanding amending legislation on pain of striking down a constitutional amendment for the first time in Pakistan’s history. The judgment bristles with errors. Discussions by a Parliamentary Committee of a judge’s fitness for appointment is not a case of discussion of “conduct” of a sitting judge by Parliament in violation of Art. 68 of the Constitution. The Committee’s decision on the nominee is inherently not susceptible to judicial review on the merits. It cannot be “justiciable” since the assessment will be based on a host of factors, including intelligence reports. Finally, it is well settled that no Court can ask Parliament to legislate in a particular manner just as Parliament cannot ask a court to decide a case in a given manner.

Fundamentally, the framers of the 18th Amendment were wrong in giving politicians in Parliament any voice on judicial appointments The Al-Jehad case, as well the Advocates on Record case in India, deserve an unceremonious burial. Both are totally devoid of validity in law or sanction in moral worth. The Supreme Court of Pakistan’s exertions on the 18th  Amendment were based on the slippery foundation of the Al-Jehad Trust Case. India’s Law Minister Veerappa Moily is at work on a suitable amendment. But the discourse in India on a Judicial Commission never includes politicians or MPs. (Repeated from earlier article to provide continuity).

However on New Year’s Day 2011 the President of Pakistan gave his assent to the 19th  Amendment which sought to meet the Court’s concerns expressed in its Order of 21 October 2010.

Membership of the Judicial Commission,  to be headed by the Supreme Court Chief Justice and meant to nominate candidates for appointments to the apex court and high courts, is raised to nine from seven and of the senior-most judges of the same court as its members to four from two, besides a former judge of the apex court to be named by the Chief justice, the federal law minister, the attorney-general and a senior lawyer to be nominated by the Pakistan Bar Council, for whom the new amendment fixed 15 years as the minimum experience.

An eight-member parliamentary committee – with equal membership  from  the  treasury  and  opposition  benches  and  from both house of parliament – must finally approve nominations by the Judicial Commission. It would hold its meetings in camera but record its proceedings and send its approval or rejection of nominations to the prime minister rather than the president, who is to finally notify an appointment. The body would be exempted from the constitutional bar on discussing the conduct of judges in parliament.

The  Chief  Justice  will  consult  other  members  of  the  Judicial Commission in the appointment of ad hoc judges.

The committee did not agree to suggestions in the Supreme Court order to make rejection of a Judicial Commission nomination justiciable, or subject to the jurisdiction of the Supreme Court, and that a re- nomination of a rejected nominee be considered final.

Politicians’ excesses led to Al-Jehad Trust. The Judges’ excess has led to parliamentary intrusion into the process of judicial appointment. In India as in Pakistan the balance is yet to be attained. Meanwhile the polity suffers as does the judicial process. So does justice itself. What will happen if, in the future, a strong government enjoying popular support in both countries rejects those rulings as null and void ? Rest assured – the Courts will submit. As Stevens wrote “Judicial hubris is always followed by judicial tears”.