A person who is not suitable to be appointed as a permanent judge, should not be continued as an Additional Judge - Supreme Court
"We have no hesitation in saying that a person who is not suitable to be appointed as a permanent Judge on the ground of unsuitability due to adverse factors on account of mental and physical capacity, adverse materials relating to character and integrity and other relevant matters, which are so paramount and sacrosanct for the functioning as a Judge, should not be continued as an Additional Judge. Even when an additional Judge is appointed as a permanent Judge, he does not become immune from action, if circumstances so warrant," said the Supreme Court in an important judgement delivered last week in a PIL filed by eminent lawyer and a former Law Minister Shanti Bhushan.
Judges, like Caesar's wife, should be above suspicion is the focal point in this petition.
How are High Court Judges appointed?
The Chief Justice and Judges of High Courts are to be appointed by the President under Clause (1) of the Article 217 of the Constitution. Appointments to the High Court should be made on a time bound schedule so that the appointments are made well in advance preferably a month before the occurrence of the anticipated vacancy.
When a permanent vacancy is expected to arise in any year in the office of a Judge, the Chief Justice will as early as possible but at least 6 months before the date of occurrence of the vacancy, communicate to the Chief Minister of the State his views as to the persons to be selected for appointment. Full details of the persons recommended, should invariably be sent. Before forwarding the recommendation, the Chief Justice must consult two of his senior most colleagues on the Bench regarding the suitability of the names proposed. All consultation must be in writing and these opinions must be sent to the Chief Minister along with the recommendations.
The Chief Justice while sending the recommendation for appointing an additional Judge as a permanent Judge must along with his recommendation furnish statistics of month wise disposal of cases and judgments rendered by the Judge concerned as well as the number of cases reported in the Law Journal duly certified by him. The information would also be furnished regarding the total number of working days, the number of days he actually attended the Court and the days of his absence from the Court during the period for which the disposal statistics are sent.
The proposal for appointment of a Judge of a High Court shall be initiated by the Chief Justice of the High Court. However, if the Chief Minister desires to recommend the name of any person he should forward the same to the Chief Justice for his consideration. Since the Governor is bound by the advice of the Chief Minister heading the Council of Ministers, a copy of the Chief Justice's proposal, with full set of papers should simultaneously be sent to the Governor to avoid delay. Similarly, a copy thereof may also be endorsed to the Chief Justice of India and the Union Minister of Law, Justice and Company Affairs to expedite consideration. The Governor as advised by the Chief Minister should forward his recommendation along with the entire set of papers to the Union Minister of Law, Justice and Company Affairs as early as possible, but not later than six weeks from the date of receipt of the proposal from the Chief Justice of the High Court. If the comments are not received within the said time frame, it should be presumed by the Union Minister of Law, Justice and Company Affairs that the Governor (i.e. Chief Minister) has nothing to add to the proposal and proceed accordingly.
The Union Minister of Law would consider the recommendations in the light of such other reports as may be available to the Government in respect of the names under consideration. The complete material would then be forwarded to the Chief Justice of India for his advice. The Chief Justice of India would in consultation with the two senior most judges of the Supreme Court form his opinion in regard to a person to be recommended for appointment to the High Court. The Chief Justice of India and the collegium of two Judges of the Supreme Court would take into account the views of the Chief Justice of the High Court and of those Judges of the High Court who have been consulted by the Chief Justice as well as views of those Judges in the Supreme Court who are conversant with the affairs of that High Court. It is of no consequence whether that High Court is their parent High Court or they have functioned in that High Court on transfer.
After their consultation the Chief Justice of India will in course of 4 weeks send his recommendation to the Union Minister of Law. Consultation by the Chief Justice of India with his colleagues should be in writing and all such exchange of correspondence with his colleagues would be sent by the Chief Justice of India to the Union Minister of Law. Once the names have been considered and recommended by the Chief Justice of India they should not be referred back to the State constitutional authorities even if a change takes place in the incumbency of any post. However, where it is considered expedient to refer back the names, the opinion of Chief Justice of India should be obtained. The Union Minister of Law would then put up as early as possible preferably within 3 weeks the recommendation of the Chief Justice of India to the Prime Minister who will advise the President in the matter of appointment.
The correspondence between the Chief Justice and the Chief Minister and the correspondence between the Chief Minister and the Governor, if any should be in writing and 21 copies of the correspondence should invariably be forwarded along with the Chief Minister's recommendations.
As soon as the appointment is approved by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice of the High Court who will obtain from the person selected (i) a certificate of physical fitness as in Annexure II signed by a Civil Surgeon or District Medical Officer and, (ii) a certificate of date of birth as in Annexure III. A copy of the communication will also be sent simultaneously to the Chief Minister of the State. The medical certificate should be obtained from all persons selected for appointment whether they are at the time of appointment in the service of the State or not. When these documents are obtained the Chief Justice will intimate the fact to the Secretary to the Government of India in the Department of Justice and also forward these documents to him.
As soon as the warrant of appointment is signed by the President, the Secretary to the Government of India in the Department of Justice will inform the Chief Justice and a copy of such communication will be sent to the Chief Minister. He will also announce the appointment and issue necessary notification in the Gazette of India.
Can a person appointed through this elaborate procedure be but good?
The last para of the Supreme Court judgement reads as,
Before saying "omega" it needs to be emphasized what Shakespeare wrote in Othello (Act III, Scene 3, 155)
"Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash; 'tis something, nothing; 'T was mine, 'tis his, and has been slave to thousands: But he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed." Again in "Richard II", Act 1, Sc. 1 said Shakespeare wrote: "The purest treasure moral times afford Is spotless reputation; that away, Men are but gilded loam or painted clay."
SHANTI BHUSHAN AND ANR Vs UNION OF INDIA AND ANR