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India is having a history of conventions that are being followed upon since her tryst in the year 1947. Following the path of other democratic nations such as the United Kingdom , Canada, France and the United States, conventions in India are given a status which is tantamount to the written laws of the Constitution. For example, a British Prime Minister is elected from the House of Commons; In France, if the President and the Prime Minister are from different parties, matters pertaining to Defense and Foreign Affairs are conducted by the President. Similarly, in India, inter alia, we have a system of Collegium in the Judiciary. Moreover, the Chief Justice of India is regarded as the ‘master of roster’- which gives them the preference in making administrative decisions over other judges.
Conventions in Judiciary have recently witnessed some tensions. Apart from the rifts in Collegium, last month, the four senior-most judges of the Supreme Court came out in open and made remarks against the incumbent Chief Justice. Incidents like this, besides serving as a bad precedent, contravene the established conventions of the topmost court of the Country.
The aim throughout this essay is to underscore the significance of conventions in Judiciary, and to present a critique on the rifts arising out of these conventions. Besides, suggestions and ways to resolve such disputes have also been talked about.
Constitutional conventions are the ‘unwritten maxims’ of the Constitution. According to O’Hood, Phillips and Jackson, conventions are rules of political practice which are regarded as binding by those to whom they apply but which are not laws as they are not enforced by the courts nor by the Houses of Parliament. More than a dozen historians, political theorists and lawyers have made their cumulative contributions prior to Dicey. Men such as John Locke, Edmund Burke, William Hearn and Edward Augustus Freeman- all expressed views on what the latter referred to as “a whole code of political maxims” which had grown up ‘without leaving among the formal acts of our legislature any traces of the steps by which it grew. Constitutional Conventions are assortments of various customs, practices, maxims and percepts. Along with statutes, they constitute the Constitutional Law of the land. A study of Constitution consisting of statutory laws without conventions would be incomplete and distorted.
The evolution of a Convention may be a slow process, but in order to determine whether a convention has become established, Professor Jennings suggested that three questions be asked: First, what are the precedents; secondly, did the actors in the precedent believe that they were bound by a rule; and thirdly; is there a reason for the rule?
A satisfactory answer to each of these questions establishes the existence of a convention. The ‘Jennings test’ has been described by Jaconelli as a ‘crude amalgam of precedents and reasons’. Moreover, conventions are not unique as they exist in states with written Constitution since ‘the greater the degree of constitutional rigidity, the greater is the need for the benefits of informal adaptations which conventions bring’.
The existence of a convention presupposes that there is a necessity for it, that the parties believe in the reason for the convention and consider it binding. In Re Amendment of the Constitution of Canada , the Supreme Court of Canada stated ” the main purpose of Constituional conventions is to ensure that the legal framework of the Constitution will be operated in accordance with the prevailing constitutional values or principles of the period”.
However in practice, conventions are not legally enforceable and so not legally binding. This has been confirmed by the courts in a number of cases; exempli gratia, in Att-Gen v Jonathan Cape Ltd, Lord Widgery noted that the convention of collective ministerial responsibility was an obligation in morals only and not binding in law. Though they may not be legally binding, it is commonly accepted that they are binding constitutionally.
No Constitution is flawless. It does not provide for every contingency that may come up in the future. Due to changes in the social, economic and political circumstances, new concepts and issues come to the fore. Laws that do not adapt and change according to the changing situations will soon become antiquated, outdated and stagnant. Conventions, hence, serve as means to bring about Constitutional developments without any formal amendments to the law.
The Indian Constitution is a very comprehensive document. Many conventions in the British Constitution serve as mandatory provisions of our Constitution. Nevertheless, there are many grey areas pervading the constitutional provisions which create confusion among the Jurists. Conventions serve as a means to resolve this.
Conventions have a significant role to play. Because of these, different yardsticks and practices are not applied by the successors which would otherwise have created a lot of chaos and confusion. Looking at why are conventions obeyed leads to a discussion of what happens if they are breached. There is no definitive rule or sanction for breach of a convention and as stated it is clear the court will not enforce a convention. Dicey however argues that breaches of some conventions could bring the offender into conflict with the law and that is why they are followed.
A very common convention that is being practised in the Judiciary is the system of Collegium. First of all, it needs to be known that what is a Collegium and how did it come into existence as a convention. Collegium is a system of appointment and transfer of judges. This system has evolved through judgments of the Supreme Court and not by an Act of Parliament or by a provision of the Constitution. The Collegium of the Supreme Court is headed by the Chief Justice of India and it comprises the Chief Justice along with four other senior- most judges of the court. Similarly, the Collegium of a High Court is headed by its Chief Justice and comprises the Chief Justice and four other senior-most judges of that court. The Collegium system is only responsible for the appointment of judges of the higher judiciary. The government has a role only after names have been decided by the Collegium.
This system for appointment and transfer of judges has its genesis in a series of judgments called the “Judges’ Cases”. It came into being through interpretations of pertinent constitutional provisions by the Supreme Court in the Judges Cases.
The First Judges’ Case: In S P Gupta v. Union of India, the Supreme Court, by a majority judgment, stated that the concept of primacy of the Chief Justice of India was not really to be found in the Constitution. It was held that the proposal for appointment to a High Court can emanate from any of the constitutional functionaries mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. Also, the Constitution Bench said that the term “consultation” used in Articles 124 and 217 was not “concurrent” — meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them. The judgment tilted the balance of power in appointments of judges of High Courts in favour of the executive. And, this situation prevailed for the next 12 years.
Second Judges Case: In The Supreme Court Advocates-on-Record Association v. Union of India, a nine-judge Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. The Apex Court maintained that it must act in “protecting the integrity and guarding the independence of the judiciary”, the majority verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments.
The role of the Chief Justice is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here, the word ‘consultation’ would shrink in a minimal form. “Should the executive have an equal role and be in divergence of many proposals, germs of indiscipline would grow in the judiciary,” it held. Ushering in the collegium system, the court said that the recommendations should be made by the CJI in consultation with his two senior-most colleagues, and that such recommendation should normally be given effect to by the executive. The Court added that although it was open to the executive to ask the collegium to reconsider the matter if it had an objection to the name recommended, if, on reconsideration, the collegium reiterated the recommendation, the executive was bound to make the appointment.
The Third Judges’ Case: In re Presidential Reference, President K.R. Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution which talks about advisory jurisdiction. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the functioning of the quorum for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This opinion lay down that the recommendation should be made by the CJI and his four senior most colleagues, instead of two. The case also held that Supreme Court judges who hailed from the High Court for which the proposed name came, should also be consulted. It was also held in this case that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
Critics argue that the system is non-transparent, since it does not involve any official mechanism or a secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. There is no public knowledge of when and how a collegium meets, or how it takes its decisions. Lawyers too are usually in the dark on whether their names have been considered for elevation as a judge.
The NDA government has attempted twice, unsuccessfully both times, to replace the collegium system with a National Judicial Appointments Commission (NJAC). The BJP-led government of 1998-2003 had appointed the Justice M N Venkatachaliah Commission to opine whether there was need to change the collegium system. The Commission favoured a change, and thus prescribed an NJAC consisting of the CJI and two senior-most judges, Law Minister, and an eminent person from the public, to be chosen by the President in consultation with the CJI. The NDA-2 regime had NJAC as one of its priorities, and the 98th Constitutional Amendment/ NJAC Act were cleared swiftly. However, subsequently, a clutch of petitions were filed in the Supreme Court, arguing that the said Act has undermined the independence of the judiciary, and the basic structure of the Constitution.
A five-judge Constitution Bench in 2015 declared the 98th Constitutional amendment unconstitutional. The Bench sealed the fate of the proposed system with a 4:1 majority verdict which held that judges’ appointments shall continue to be made by the collegium system in which the CJI will have “the last word”. “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary,” said the majority opinion. Justice J. Chelameswar, on the other hand, wrote a dissenting verdict, criticising the collegium system by holding that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks”.
The standoff with the government delayed the appointment of new judges to higher judiciary. At present. the Supreme Court, with a sanctioned strength of 31, is short of 6 judges and is battling a backlog of 60,000 cases. Across the country’s 24 high courts, as many as 413 judges’ posts are vacant. The October 3 resolution, Transparency in Collegium system, bears the signature of all its members – chief justice of India Dipak Misra and justices J Chelameswar, Ranjan Gogoi, Madan B Lokur and Kurian Joseph. “The decisions henceforth taken by the Collegium indicating the reasons shall be put on the website of the Supreme Court, when the recommendation(s) is/are sent to the Government of India, with regard to the cases relating to initial elevation to the High Court Bench, confirmation as permanent judge(s) of the High Court, elevation to the post of Chief Justice of High Court, transfer of High Court Chief Justices / Judges and elevation to the Supreme Court, because on each occasion the material which is considered by the Collegium is different,” the collegium note stated.
The collegium has been making recommendations for appointments and transfer of judges. However, the 2015 ruling had also paved way for a new Memorandum of Procedure (MoP) to guide future appointments so that concerns regarding lack of transparency and eligibility criteria could be redressed. The Bench had asked the government to draft a new MoP after consultation with the CJI. But more than a year later, the MoP is still to be finalised owing to lack of consensus on several respects between the Judiciary and the Executive. Since the new MoP is not in place, the government has been slow in clearing the appointments, which has also become a matter of judicial decision after a clutch of petitions were filed in the Supreme Court against the delay in making appointments.
The revolt by four Supreme Court judges against Chief Justice of India Dipak Misra may have proved beyond doubt that the Indian judicial system needs an urgent overhaul. Besides the issue about the CJI being the master of roster( which has been dealt with in the next section), they also touched upon the need to revisit the process of appointment of judges. The coming out in open of the four judges has highlighted the need for bringing about judicial reform and tinkering with the collegium system for appointment of judges. The four sitting judges in their letter to Chief Justice Dipak Misra referred to a ruling of July 4, 2017 in which a bench of seven judges of the Supreme Court decided on Justice CS Kannan’s case. “In that decision (referred to in RP Luthra), two of us observed that there is a dire need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment,” the four judges said.
The four judges ruled that no observation was made by any of the seven learned judges with regard to the Memorandum of Procedure. Today’s judicial crisis has handed the present NDA government an opportunity to initiate the process to modify the appointment procedure, be it through the National Judicial Appointment Commission (NJAC) or some other measure. As the four judges asked the nation to “protect” the judicial institution, it is time for the government to bring in judicial reforms. The two-tier process of selection of judges through the collegium system seems to be crumbling. A need has arisen to re-implement the National Judicial Appointments Commission.
The Chief Justice of India heads the Judiciary. It is a well-practised convention to appoint the senior-most judge of the Supreme Court as the Chief Justice. However, this convention has been broken twice in the history of India- one, during the year 1973, when Justice A.N. Ray was appointed as the Chief Justice of India, after superseding three senior-most judges. During the second time, in 1977, Justice H.R. Khanna, who was known for his judgment in the infamous Habeas Corpus case during Emergency, was superseded by Justice Beg who was next to him in seniority. All the Judges who were superseded, resigned in protest.
As the head of the Supreme Court, the Chief Justice of India (CJI) exercises powers for the allocation of cases and appointment of cases that deal with substantial question of law. In matters of administration, the Chief Justice is responsible for carrying out the following functions- maintenance of roster, appointment of officials in the Court and miscellaneous matters that revolve around supervision and functioning of the Supreme Court. Because the Chief Justice of India has the prerogative of allocating cases to different judges on his discretion, he is regarded as the “master of roster”. This convention is not going quite well with the Judges in recent times.
On January 12, 2018, the four senior-most judges (after the Chief Justice) broke the convention and held a press conference to “convey to the nation” that things were “not in order” in the apex court. Among other things, they had questioned Chief Justice Dipak Mishra’s style of administration. The press conference was a break in tradition, without precedent.
The four Judges namely- Justice Jasti Chelameshwar, Kurien Joseph, Ranjan Gogoi and Madan B. Lokur, said that politically sensitive cases were being assigned to handpicked benches consisting of junior judges. They had reportedly told the CJI about their reservations regarding the case of Justice B.H. Loya’s death (Before he died, allegedly of cardiac arrest, Loya had been hearing the Sheikh Sohrabbudin fake encounter case, in which BJP President Amit Shah was an accused.) The case was assigned to a bench led by Arun Mishra, a junior Judge. The four judges maintained that the case should have been heard by a senior judge. However, the CJI stood his ground. The four judges left, and hence, the press conference.
The other matters of contention reportedly include the Aadhaar case, which was originally heard by a bench that included Justice Chelameshwar, before it was referred to a nine-judge bench to decide on whether privacy was a fundamental right. The bench, last August, ruled that it was. However, when CJI Mishra constituted a five-judge bench to hear other Aadhaar-related cases, he did not include Chelameshwar.
Also, there was a case which challenged the appointment of IPS officer Rakesh Asthana as special director of the Central Bureau of Investigation (CBI). The matter was before a bench of Justice Gogoi and Justice Navin Sinha. But Justice Sinha recused himself from the case, and the matter was later listed before a bench headed by Justice R.K. Agrawal. However, on the same day, Justice Gogoi was on a bench with Justices R.F. Nariman and Sanjay Kishan Kaul, and the matter could have been listed before them.
Then there was the referral of a PIL seeking a court-monitored investigation into the 2G-scam to the court of Arun Mishra, a junior-judge. It was first listed in Justice Chelameshwar’s court, but was moved to the court of the Chief Justice the following day. Yet another was a case of extrajudicial killings in Chattisgarh, which was being heard by Justice Lokur, which was later moved to the court of Chief Justice. However, the last straw for the judges seemed to be the Loya case, since it dealt with the suspicious death of a member of their fraternity.
The recent rift among the top judges in the Supreme Court has plunged India into a state of judicial crisis. The prestige of the top court has taken a hit. It clearly sets out a wrong precedent. Supreme Court judges stepping out to hold a news conference is unprecedented. The criticism is not constructive. The issue relates to distribution of judicial business within the court; about which judge should hear what matter. It is an issue that the Supreme Court judges can themselves sort out. There is no role for any outside agency here. It is not even called for and would be unwarranted.
The four dissenting judges are all experienced, outstanding and wise people, and they have the capacity to resolve the matter. They resolve contentious and the most complicated of issues brought to them from different segments of society. So, there is no reason why they cannot resolve their own issues. If a news conference on such issue is allowed to happen, there will be no end to it. There are always differences in any system and it is quite natural in a dynamic system, where everyone is free to have their individual viewpoint. Having differences with the Chief Justice is a healthy sign. But, if there are differences within the Supreme Court, differences can even exist in High Courts, and the judges in the High Courts could also say that they should be allowed to express their grievances in public. Hence, this sets a bad precedent.
Moreover, the manner in which the judges dissented is clearly violative of the codes mentioned in a Charter called the “Restatement Of Values Of Judicial Life”, 1999. The resolution is a complete code of judicial ethics, which states, among other things, “A Judge shall not enter into public debate or express his views in public on political matters or on matters that are pending or are likely to arise for judicial determination.” It also violates the rule that “every Judge must at all times be conscious that he is under the public gaze and there should be no act or omission by him which is unbecoming of the high office he occupies and the public esteem in which that office is held”.
The citizens put utmost faith and confidence on the justice system. When incidents like this arise, they would raise doubts on the credibility of the Judiciary- and this would lead to adverse repercussions in the long run. The four judges have expressed certain reservations, and they might be entirely right. But, the effort should be to find out a solution within the judicial system, as communicating about the internal problems to the entire nation would not help. This is not the first incident of discord among the judges of the Court. In earlier instances, when there was dispute regarding appointment of the Chief Justice, where Justice AN Ray had superseded 3 senior-most judges to become the Chief Justice, the judges who were being superseded did not come to the public to talk about the matter. They resigned from their post rather than coming before the Press- just to ensure that the public’s faith on the Justice System was maintained.
The Chief Justice of India and the Chief Justice of High Courts must inspire the confidence of brother judges through their independence, ability and leadership. The Chief Justice has to try and restore their confidence, and address their misgivings and apprehensions. He has to talk to them and make his stand clear.
Constitutional And Administrative Law’ (8th edn (London: Sweet & Maxwell, 2001).
Parpworth, Neil; Constitutional and Administrative Law, 8th Edition, Conventions, pp-267
Giussani, Elizabeth; Constitutional and Administrative Law, 1st Edition, Non-Legal sources; pp- 39.
ADM Jabalpur v. Shiva Kant Shukla, 1976 AIR 1207 1976 SCR 172 1976 SCC (2) 521.
Restatement of Values of Judicial Life (1999) – CODE OF JUDICIAL ETHICS.
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