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"Merit" in the appointment of judges*
by M.P. Singh**

Cite as : (1999) 8 SCC (Jour) 1

The background

Reporting on the appointment of Judges to the Supreme Court and the High Courts in its issue of 25-1-1999, India Today quoted the following noting of the President of India from the files concerning the appointment of Judges to the Supreme Court:1

"I would like to record my views that while recommending the appointment of Supreme Court judges, it would be consonant with constitutional principles and the nation's social objectives if persons belonging to weaker sections of society like SCs and STs, who comprise 25 per cent of the population, and women are given due consideration.

Eligible persons from these categories are available and their under-representation or non-representation would not be justifiable. Keeping vacancies unfilled is also not desirable given the need for representation of different sections of society and the volume of work the Supreme Court is required to handle."

It also reported the response of the Chief Justice of India to this noting in the following words:2

"I would like to assert that merit alone has been the criterion for selection of Judges and no discrimination has been done while making appointments.

All eligible candidates, including those belonging to the Scheduled Castes and Tribes, are considered by us while recommending names for appointment as Supreme Court Judges. Our Constitution envisages that merit alone is the criterion for all appointments to the Supreme Court and High Courts. And we are scrupulously adhering to these provisions. An unfilled vacancy may not cause as much harm as a wrongly filled vacancy."

The report generated wide-ranging comments from lawmen, publicists and public figures.3 Although the report gave an impression of a controversy on the issue between the President and the Chief Justice,4 by and large the comments which were received and published approached the noting of the President as well as the response of the Chief Justice with the respect and objectivity they deserved. There was no outright rejection of one position or the other. All commentators seemed to agree that while professional competence of the Judges was an important consideration in their appointment, the diversity of the Indian society must also be reflected in the superior judiciary. Both were important considerations. Neither could be ignored. Therefore, the issue was not taken or presented whether the President or the Chief Justice was right. Both of them were taken to be making valid statements in their respective ways and spheres.

In other words, the two were not saying different things or contradicting each other. As the top constitutional functionaries, they were both expressing their concern about the kind of judiciary the country should have. This concern is representative of the concern of the Members of the Constituent Assembly to which Dr Ambedkar responded in the following words:5

"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. And the question is how these two objects could be secured."

It seems that the same concern continues to dominate the debate on the appointment of Judges of the superior courts since the commencement of the Constitution.

The debate is not yet over and perhaps may never be. After considering all possible alternatives,6 the Constitution makers finally agreed that the formula laid down by them in Articles 124(2) and 217(1) of the Constitution will take care of their concern. Though, of course, ever since the commencement of the Constitution from time to time doubts have been expressed on the operation of the formula, no agreed alternative to it has yet been found. Therefore, the formula continues to survive as expressed by the Constitution makers. In view of the interpretation given to the formula by the Supreme Court in the Judges Case,7 the wisdom of its continuation underwent severe scrutiny and suggestions came either for the overruling of the interpretation of the formula or its replacement by a National Judicial Commission for recommending to the President appointment of the Supreme Court and High Court judges.8 Since the Court overruled the Judges Case in the Second Judges Case9 and recently has affirmed the overruling in the Third Judges Case10, no exercise to change the original constitutional formula is either in operation or under serious consideration.11 Although one of our foremost constitutional lawyers, late Mr H.M. Seervai, who had severely criticised the finding in the Judges Case and had asked for its overruling at the earliest, was equally critical of the Second Judges Case and would have perhaps criticised the Third Judges Case for the same reason,12 to me the law laid down in the last two Judges cases seems to be sound in principle and deserves a fair trial in practice.

Without repeating the law laid down in the last two Judges cases, the following propositions based on a close examination of constitutional provisions, their history, interpretation and application, and the problems faced and the solutions suggested in the course of their operation may briefly be put forward in support of it.

First, the Constitution makers did not want the appointment of Judges to be made exclusively by the executive.13 Second, doubts were expressed from the very beginning whether the formula for the appointment of Judges adopted in the Constitution will serve the purpose of establishing and maintaining an independent and competent judiciary which undoubtedly was one of the foremost objectives of the Constitution makers.14 Third, these doubts were confirmed with respect to the High Courts even before the commencement of the Constitution and soon after the commencement of the Constitution even with respect to the Supreme Court.15 Fourth, though the Constitution makers intended effective involvement of the Judges, particularly of the Chief Justice of India and the Chief Justices of the High Courts, in the appointment of Judges, they denied the Chief Justice of India the last word in the matter.16 Fifth, the Constitution makers did not agree to make the appointment of Judges subject to either the recommendations of any panel or approval of the legislature.17 Sixth, the Constitution makers sincerely believed that for the purpose of an independent and competent judiciary they could not do better than what they had provided in the Constitution for the appointment of Judges, that the provisions were the best possible and most suitable for India and that the high constitutional functionaries involved in the process will discharge their constitutional obligation with full responsibility.18 Seventh, time and experience has proved that the Constitution makers were not completely wrong in their estimation and that subject to occasional aberrations the provisions have worked as intended and expected.19 Eighth, the experience of giving primacy to the executive in the matter of appointment of Judges after the Judges Case had within a short period of less than a decade proved that the interpretation of the provisions in that case had gone against the expectations of the Constitution makers of providing an independent and competent judiciary.20 Ninth, until the Judges Case, which gave primacy to the executive in the matter of appointments, even though difficulties were faced in the appointment of Judges, the idea of a judicial appointments commission or other similar body outside the scheme already laid down in the Constitution was not seriously entertained at any level.21 Tenth, the Constitution provides for a consultative process among several constitutional functionaries and reasonably expects a consensual decision. Eleventh, practice of consultation by the Chief Justice of India and the Chief Justices of the High Courts with their colleagues before making their recommendation for appointment was prevalent and specifically recommended by the Law Commission to be observed as a rule.22 Finally, no clear consensus has either been sought, or has emerged or is in sight so far on the creation of an alternative arrangement for the appointment of the Judges replacing the one already provided in the Constitution.23 We must remember that the entire Constitution is the product of consensus, which has been hailed as a great achievement of the Constitution makers and is considered one of the main reasons for its success.24 The law laid down by the Court seems to represent that consensus at the moment.

If Holmes' proverbial remark holds good - that the law is not mere logic but also experience - then even if any difference between the text of the Constitution and its interpretation by the Court may be brought to light, the text has to be seen as an evolving phenomenon not to be twisted to suit any immediate gains but as part of a system which unmistakably provides for an independent and competent judiciary.25 The Court has performed that job without any offence to the text of Articles 124(2) and 217(1) but rather looking at it in its setting. It does not bring back the concurrence of the Chief Justice of India which had been rejected by the Constitution makers primarily because the Chief Justice of India - as an individual unaided by any one - could also err.26 Under the law laid down by the Court, the Chief Justice has to act in a collegium whose proceedings will be maintained in writing. Even while so acting his opinion may not always be given effect. In appropriate cases for adequate reasons it may still be rejected. But such rejection will now be effected only in consultation with him as a collegium and not at the will of the executive. The error element which was present in the minds of the Constitution makers has been taken care of by the Court. Nothing is available in the history of Articles 124(2) and 217(1) that the solution to the error element given by the Court was ever present in the minds of the Constitution makers or was ever suggested, much less considered, by the Assembly or any of its members. What would have been the reaction of the Constitution makers had it been suggested to them is anybody's guess. But such questions may legitimately be asked for determining the intent of the law-maker in deciding the difficult or hard cases.27 Greater justification exists for the application of this technique of interpretation in the case of a Constitution which has to exist indefinitely in changing times and situations. By its interpretation of Articles 124(2) and 217(1) in the Second Judges Case as clarified in the Third Judges Case10 the Court did not introduce any of the alternatives which had been considered and rejected by the Assembly. "In the appointment of Supreme Court and High Court justices", Austin notes, "the Assembly provided that the President should act neither in his discretion nor on the advice of his council of ministers but in consultation with the Chief Justice and other justices."28 The Court only restores, reiterates and clarifies that position.

Purposive interpretation of the Constitution, a well recognised technique and rule of interpretation, also justifies the interpretation of the Court.29 It is universally accepted that the Constitution does everything possible to ensure the independence of the judiciary. It is also accepted that the independence of the judiciary is a basic feature of the Constitution. The independence of the judiciary is a goal pursued not just for its sake but for ensuring the smooth functioning of the Constitution and for the realisation of its goal of a just and democratic society based on the rule of law. Any interpretation of the Constitution which comes in the way of the independence of the judiciary is, therefore, not consistent with the Constitution and is also not otherwise justifiable. The interpretation in the Judges Case giving primacy to the executive, as we have already noted, led to the appointment of at least some Judges against the opinion of the Chief Justice of India within less than a decade. This could never have been intended by the Constitution makers because it undermines the independence of the judiciary. If an interpretation such as that in the Judges Case receives widespread criticism and condemnation and the matter is again brought before the Court for reconsideration, the Court is under a duty to rectify the wrong and give an interpretation which is consistent with the purpose of the provisions and is also not inconsistent with their language. The Court did that job remarkably well in the Second Judges Case and the Third Judges Case.

Let us examine the noting of the President and the response of the Chief Justice against this background. Neither the President nor the Chief Justice has entertained any doubts about the constitutional position laid down by the Court. Both of them seem to be offering their clarifications in the application of the law so laid down.

Concept of reflective judiciary

As regards the noting of the President, in addition to the social justice aspect of the Constitution emphasised in it, it is also supported by the concept of representative or reflective judiciary. Even though reflective judiciary was not an issue either in the Second Judges Case or the Third Judges Case, one of the Judges in the former clearly spoke for it while the entire Court acknowledged its relevance in the latter. Nowhere did the Court speak against it in either of these two cases. Some of the Judges spoke clearly for it. Thus, in the Second Judges Case, Justice Pandian stated:30

"It is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group."

Clarifying that he was not asking for quota or reservation for anyone, he supported himself by examples drawn from the United States and the United Kingdom and reiterated:31

"Though appointment of Judges to superior judiciary should be made purely on merit, it must be ensured that all sections of the people are duly represented so that there may not be any grievance of neglect from any section or class of society."

Therefore, he also held that "the Government which is accountable to the people, should have the right of suggesting candidates to the Chief Justice concerned for consideration but the Government has no right to directly send the proposal for appointments by-passing the Chief Justice concerned."32 None of his colleagues on the Bench has disagreed with these remarks. On the contrary, Verma, J. (later C.J.), who wrote the majority opinion, endorsed the opinion of Pandian, J. in these words: "I am grateful for your concurrence on the main points."33 Apparently the suggestion for the appointment of a jurist must come from the executive because the candidate has to be a distinguished jurist in the opinion of the President.

It has been noted that representation or fair reflection of the society was not an issue before the Court in these cases. What would have been the reaction of the Court if it had been an issue before it, cannot be stated with certainty. But in view of our constitutional provisions and practices which unmistakably provide for and observe representation of weaker sections, minorities and women in legislative and executive bodies and also in the civil services and lower judiciary, it may reasonably be expected that if the issue is addressed to the Court it will not disagree with the principle of fair reflection of the society in the higher judiciary.34 Of course in view of high legal qualifications and limited number of positions in the higher judiciary the Constitution does not specifically speak of representation of weaker sections in the judiciary, but that cannot be an argument for denying representation to them if qualified candidates are available among them. For the whole thrust of the Constitution is social justice and social transformation through the emancipation of the weaker sections of the society, particularly the Scheduled Castes and Scheduled Tribes and, to a lesser extent, also women.

Reflective judiciary should not be confused with provision for reservations or quotas. Nobody is asking or seems to have ever asked for quota or reservation in the appointment of Judges. The diversity of the Indian society, however, could not be ignored. How this diversity is to be dealt with is a complex and delicate issue on which opinions may sharply differ. But for the present purpose of achieving, maintaining and improving the quality of justice administered by the courts and for reposing greater faith of the people in them and thereby ensuring the independence and competence of the judiciary, the principle of reflection of the society should be observed. With the law laid down by the Court on the appointment of Judges greater justification lies for the observance of the principle. Earlier a representative executive was presumed to have a dominant role in the appointment of the Judges, while that role has now shifted to the Judges in whose appointments people apparently have no direct or indirect role. A heavy responsibility, therefore, lies upon the Judges to demonstrate that even though they are self-appointed, they represent their society and that they are not a closed group of people perpetuating their own rule. They must discharge that responsibility with broadmindedness, sagacity and foresight and must encourage and invite suggestions for appointment of Judges from different sources, including the executive, the bar and the legal luminaries. Now it primarily lies on them to create and establish a judiciary which is not only independent of the executive and the legislature but which is also competent to perform the unfinished task of social revolution - not merely reform - which the Constitution makers had envisaged for it.35

The Constitutional position in this regard is also supported by the general principles of the independence of the judiciary. Judiciary is one of the three organs of the Government. In a democratic Government, ideally speaking, the legislative and the executive powers are representative of the society.36 Such representation is necessary to justify the Government of the people which rules them by their consent. Perhaps at some point of time in the long past it could have been argued that the judiciary does not rule but simply applies the law in a dispute between two private parties. But it is no longer questioned that the judiciary not only makes laws but also participates in policy making, particularly when handling matters concerning the Government and its agencies. For the exercise of such powers in a democracy the judiciary must also have similar, if not the same, justification as the other two organs of the Government. Therefore, it must also in some way represent the people. Otherwise the laws and the policies laid down by it will have no democratic basis. "Judges are part of the democratic dialogue" and "are partners in the common endeavour of representative government."37 Therefore, "they must not be removed from the community and must not espouse to sic a narrow ideological philosophy of one part of the community but should reflect the broad cross-section of the society."38 For that end it is not necessary or even desirable that the judiciary must be elected in the same way as the other two organs of the Government. But it must in some way represent or, as Shetreet prefers, reflect the society in which it operates.39 To quote Shetreet:40

"An important duty lies upon the appointing authorities to ensure a balanced composition of the judiciary, ideologically, socially, culturally and the like. This is based on a doctrinal ground, which has been suggested: the principle of fair reflection. This doctrinal approach may be supported by additional arguments. The judiciary is a branch of the Government, not merely a dispute resolution institution. As such it cannot be composed in total disregard of the society. Hence, due regard must be given to the consideration of fair reflection. There are other grounds for ensuring well-balanced composition of the judiciary. First, the need to preserve public confidence in the courts. Secondly, the need to ensure balanced panels in appellate courts, particularly in cases with public or political overtones."

Pursuing the same theme at another place he says that:41

"Judges decide cases upon background understanding based on fundamental values of the system. Those understandings are Judge-made and are based on the interpretation of the Judge. If the judiciary is not reflective of society as a whole, the adjudication may be based on background understandings strongly coloured by a narrower set of values."

Studies on judicial behaviour have long established that a Judge's background plays an important role in his decision making.42 For a fair representation of different backgrounds, Shetreet clarifies that not a numerical or accurately proportional representation but only a fair reflection of the society in the judiciary is expected. Such reflection is necessary for the independence as well as competence of the judiciary.43 He supports his argument by citing examples of countries which are known for the independence and competence of the judiciary such as United States, Canada, England, Germany and also several other countries practising a reflective judiciary either as a matter of statutory rule or convention.44 Shetreet is neither the inventor of the idea nor alone in pursuing it. Indeed he has summarised the views of many others including some international bodies. Notable among the conclusions of the international bodies are the Singhvi and Montreal declarations on the independence of justice which in identical language state:45

"The process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects."

As Henry Abraham noted: "Balancing 'representation' on bases of religion, geography, race, and sex has also played a major role in presidential choice of Supreme Court nominees" in the United States.46

Such practice is not unknown in India. In pre-independence India the Judicial Committee of the Privy Council included as a matter of law judges from India.47 Similarly, representation was provided to certain communities in certain High Courts in view of the strength of those communities within the territorial limits of those High Courts.48 To some extent these considerations have been taken into account since independence and care is normally taken to give representation to major communities and regions in the Supreme Court. Of course sometimes such practice has been criticised because it could come in the way of the ablest among the prospective candidates for judgeship in reaching the Bench.49 The criticism has, however, come without any attention or reference to the principle of reflective judiciary. On the contrary, time and again, the need for and fact of representation of different regions and minorities in the appointment of Judges, particularly in the Supreme Court, has been emphasised.50

Thus enough support in theory and practice is available for the noting of the President.

Concept of merit

Coming to the response of the Chief Justice, it may not be debatable that in the tradition of liberal constitutions the Constitution of India promotes merit with social justice. Therefore, apparently it may not be disputed that merit must be the consideration for appointment to, or holding of public offices. But it may also be remembered that merit is not a fixed or set standard.51 Generally speaking, merit means qualities relevant for the purpose of achieving certain goals and objectives. In the context of a public office it means the qualities relevant for achieving the goals of that office. Of course these qualities at least in some respects will differ from office to office because the goals of different offices will not be the same in all respects. Not only that, the goals of the same office may also differ from time to time and from society to society. Accordingly the content of merit desirable for that office will also change. For example, merit for a Judge in a pluralistic and diverse society will certainly require a few elements which may not be the same as merit for a Judge in a monolithic and homogenous society.52

Therefore, conceding that merit is the sole consideration in the appointment of Judges and was intended to be so by the Constitution makers and has been so held by the Court, nevertheless a definition of merit was not provided in the Constitution nor has it been given in any judicial decision. The Constitution lays down simply the qualifications for a Judge. The judicial decisions at places carry remarks by individual Judges about the additional qualities a Judge is expected to have. For example, in the Judges Case Bhagwati Judge (later CJ.), after quoting, among others, the following words of Krishna Iyer J.:53

"the choice of Judges for the higher Courts which makes and declares the law of the land, must be in tune with the social philosophy of the Constitution. Not mastery of the law alone, but social vision and creative craftsmanship are important inputs in successful justicing."


"What is necessary is to have Judges who are prepared to fashion the new tools, forge new methods, innovate new strategies and evolve a new jurisprudence, who are judicial statesmen with a social vision and a creative faculty and who have, above all, a deep sense of commitment to the Constitution with an activists approach and obligation for accountability, not to any party in power nor to the opposition nor to the classes which are vociferous but to the half-hungry millions of India who are continually denied their basic human rights. We need Judges who are alive to the socio-economic realities of Indian life, who are anxious to wipe every tear from every eye, who have faith in the Constitutional values and who are ready to use law as an instrument for achieving the Constitutional objectives. This has to be the broad blueprint of the appointment project for the higher echelons of judicial service."

In the same case, as part of a longer observation, Desai, J. says:55

"If value packing connotes appointment of persons otherwise well qualified as required by the Constitution but having the additional qualification of awareness of the high priority task of eradication of poverty, removal of economic disparity, destroying the curse of illiteracy, ignorance, exploitation feudal overlordship, coupled with conscious commitment to administering socio-economic justice, establishment of a just social order, an egalitarian society, then not only the value packing is not to be frowned upon nor thwarted by entrenched establishment prone people but it must be advocated with a crusader's zeal. ... While appointing each individual the Constitutional philosophy of each individual ought to be a vital consideration and if this is labelled as value packing, it is neither unethical nor unconstitutional nor a weapon to strike at independence of judiciary."

Looking differently, Venkataramiah J. (later CJ.) in the same case quotes a shloka which is rendered in English as follows:56

"Let men trained in ethics or morality, insult or praise; let Lakshmi (wealth) accumulate or vanish as she likes; let death come today itself or at the end of a yuga (millennium), men with discretion will not deflect from the path of rectitude."

In the Second Judges Case Verma J. (later CJ.) laid down the following qualities of a judge:57

"Legal expertise, ability to handle cases, proper personal conduct and ethical behaviour, firmness and fearlessness are obvious essential attributes of a person suitable for appointment as a superior Judge."

Not only are these remarks diverse but some of them also come very close to the infamous debate just before and during the emergency in the mid-1970s about the kind of Judges and judiciary we should have.58 We may say that the dangers inherent in that debate have been taken care of by the new interpretation of Articles 124(2) and 217(1). To a great extent that may be true. But at the same time these remarks clearly establish that no unanimity or agreement exists - and indeed no attempt has ever been made to reach agreement - on the meaning or definition of merit for the appointment of a Judge in the Supreme Court or the High Courts. If there is any unanimity or agreement among the Judges in the last two Judges Cases about the qualities of a Judge it is that the seniormost Judge of the Supreme Court must be appointed as the Chief Justice of India and that the seniority among the High Court Judges is an important consideration for appointment to the Supreme Court. But as regards the latter the Court in the Third Judges Case clearly says that merit is the predominant consideration and meritorious persons can be appointed without regard to their seniority.59 By this it establishes that merit is different from seniority. But what merit is, is not yet decided.

The difficulty of laying down the meaning of merit for Judges is not only our problem. It is universal. For example, Abraham cites Frankfurt according to whom a Judge of the US Supreme Court must have the qualities of a philosopher, historian and prophet to which Brennan J. added: "inordinate patience".60 He also quotes Holmes having said that a Judge should be a "combination of Justinian, Jesus Christ and John Marshall".61 Further he quotes the following words of Judge Learned Hand:62

"I venture to believe that it is as important to a Judge called upon to pass on a question of Constitutional law, to have bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigue, and Rabelais, with Plato, Bacon, Hume, and Kant as with books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him. The words he must construe are empty vessels into which he can pour nearly everything he wills. Men do not gather figs or thistles, nor supply institutions from Judges whose outlook is limited by parish or class. They must be aware that there are before them more than verbal problems; more than final solutions cast in generalisations of universal applicability. They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined."

McKay quotes Maimonids as having laid down: "Wisdom, humility, fear of God, disdain for money, love of truth, love of fellowmen, good reputation" as the qualifications for a Judge.63

Even the international documents and declarations in this regard do not go beyond stating that the persons chosen for judicial office should be individuals of integrity and ability, well trained in the law and its application.64

In view of this wide variety and flexibility in the concept of merit for a Judge we cannot say that the Chief Justice was necessarily saying something different from what the President was saying. Acknowledging such a congruence in the views of the two, we may amicably settle on the qualities of the Judges. We have already noted that the Constitution makers had expected a social revolution from our Judges. The representation of the down-trodden and weaker sections of the society in the decision-making bodies and process was one of the most explicit goals of that revolution. As under the new interpretation on the appointment of Judges the Chief Justice and his collegium have taken the responsibility of appointing the superior judiciary, it is an integral part of their task of bringing about the social revolution or transformation that they must give adequate representation to such sections of the society.

Social revolution may not be the only goal to be achieved through the judiciary. But undoubtedly in our Constitution, which is the basis of our polity and aspirations, we have agreed upon a democratic society based on justice, liberty, equality and fraternity under the rule of law. The Judges are not only the interpreters but also the makers of the law. No less than the legislature and executive they are expected to ensure justice, liberty, equality and fraternity through law. They may not be able to satisfy that expectation unless - like, but not exactly as, the legislature and executive - they represent the society. Representation, as we have already noted, does not mean numerical or proportional representation. But definitely the Judges must represent to the extent of fair reflection of the diversity of society in all its major aspects including ideological. Not only is such representation consistent with the Constitution but it is also very much required by it. It need not be emphasised any more that the law must also be in close touch with social reality so that it does not lose its character as law. That touch can be best ensured if the law-makers are representative of social reality in some way.

It may also be added that the law must serve different interests in the society. Those interests are best served if their subjects are equal participants in the law making. Definitely, therefore, as far as possible participation of different interest groups must be ensured in the judiciary. In any case as regards the interest of the weaker sections of the society - particularly of the Scheduled Castes, Scheduled Tribes and women - sufficient support is available in the Constitution that they must be served through their participation in the lawmaking.


This brief note on an issue of national importance may be concluded with the observation that though the Constitution requires merit to be the criterion in the appointment of Judges, it does not define it. Nor has the Court defined it. Perhaps it never had the occasion or opportunity to define it. Its closest expression on some kind of definition is the seniority rule for the appointment of the Chief Justice of India and other Judges of the Supreme Court. It goes no further. It does not apply to appointments of High Court Judges. It also fails to apply if appointments to the Supreme Court are made from the bar or from amongst the jurists. Thus, in any case, in a wide variety of situations merit for the appointment of Judges remains undefined and undiscussed. It does not mean that a fair idea of what merit is and must be is totally absent. But it is true that merit needs to be discussed, debated and determined. Merit should not be left completely to the determination of the appointing body, particularly when the appointing body is small and its deliberations are secret. No doubt the appointing body consists of the highest Constitutional functionaries and we should have faith in them. But when those functionaries themselves differ in their perception of merit, there is enough justification for its determination.

No ready-made solution or formula is at hand for such determination from which guidance may be sought. This much may, however, be generally said that our Constitution sets certain broad goals to be achieved through the process of law. One such goal is not only the protection of the weaker sections of the society, particularly of the Scheduled Castes, Scheduled Tribes and women, but also their representation and participation in the law-making process. Merit in the appointment of Judges must, therefore, take account of this goal.

* This paper is a continuation to an unfinished longer work on the independence of the judiciary a part of which shall be appearing in 10 Indiana International & Comparative Law Review in June 2000. Return to Text

** Professor of Law, University of Delhi, currently Visiting Professor, Max Planck Institute for Comparative Public law and International law, Heidelberg, Germany. I am grateful to the University of Delhi for granting me sabbatical leave and to the Max Plank Institute for the funds and facilities to conduct research on this and other subjects. I am also grateful to Shailendra Singh, Advocate for his assistance in the preparation of this paper and to Professor Rahmatullah Khan and Dr. Peter Macalister-Smith for their comments. I remain responsible for all errors. Return to Text

  1. India Today, 25-1-1999, p. 22. Return to Text
  2. Id. at 22 & 23. Return to Text
  3. See e.g. Rajeev Dhavan, The Hindu, "The criterion of 'merit' has never been founded on some skewed concept of knowledge of black letter law... Legal competence is a baseline. Experience is not just judicial experience but a capacity to understand the 'felt necessities' of all people of this complex nation." Elsewhere he has said: "Written into the concept of merit is the capacity to uphold interests of the disadvantaged. Hence to guarantee merit you need representation from weaker sections and social justice. Otherwise, merit is very elusive. ... The President is reminding that appointments to the judiciary should take into account the social and plural diversity of the country - it bolsters faith in the judiciary." Quoted in R. Ramachandran, "The Conflict that never was", The Hindustan Times, New Delhi, p. 12, col. 7-8, 24-1-1999. Another prominent lawyer, Venugopal, also supports it when he says "every democracy, including the US, attempts to provide representation to all sections of society, especially the minorities, in the judiciary. 'Any suggestion regarding induction of unrepresented sections of the community, including women or minorities and weaker sections, is consistent with the democratic basis of the Constitution' ". (HT, id.) Also examples given by judge Sukumaran of the representation of Muslims in Calcutta and Christians in Cochin. (HT, id.) Similarly Nariman admitting that "the President has a point" illustrates: "In the United States there has been a 'Jewish seat' in its Supreme Court, and in Australia there had been for many years a 'seat' in the High Court for a Judge professing the Catholic faith." (HT, id.) Senior Congress leader V.N. Gadgil supporting the President's stand says: "It is only proper that fair representation is given to Dalits in the judiciary". (HT, id.). Also the Communist Party of India (CPI) has pointed out that "the under-representation of Scheduled Castes and Tribes in judiciary was 'very much a matter of concern' ". Supporting the President, Chandrabhan Prasad (Dalit Shiksa Andolan) says: "At least one Dalit judge could be appointed to give a boost to the rest. It would help as a confidence-building measure."(Sunday Pioneer, 17-1-1999). The idea seems to have been further appreciated by the lawyers when they felt that "the superior judiciary had little interaction with the people at the grass root level, hence judges were ignorant about the peoples' aspirations."(The Times of India, 23-1-1999) Nariman said "the process of appointment of judges has to be more broad-based since it was not possible for the Supreme Court judges sitting in the Capital to know what was happening across the country."(TOI, ibid.). Return to Text
  4. The title of the report was: "Courting Controversy". Return to Text
  5. Constituent Assembly Debates, vol. VIII, p. 258. Return to Text
  6. See, G. Austin, The Indian Constitution : Cornerstone of a Nation, 164 ff. (1966); B. Shiva Rao, The Framing of India's Constitution : A study, 480 ff. (1968) and the connected volumes I -VI with the same title. Return to Text
  7. S.P. Gupta v. Union of India, 1981 Supp SCC 87. Return to Text
  8. See, e.g., H.M. Seervai, Constitutional Law of India, 2505 (3rd Edn., 183-84) and Law Commission of India, One Hundred Twenty-First Report (1987). Return to Text
  9. S.C. Advocates-on-Record Assocn v. Union of India, (1993) 4 SCC 441. Return to Text
  10. Special Reference No. 1 of 1998, Re, (1998) 7 SCC 739. Return to Text
  11. See, however, the statement of Ram Jethmalani, Law Minister, Union of India in The Times of India, 11-6-1999 favouring the setting up of a national judicial commission which was not possible at the moment because it will require an amendment of the Constitution. Return to Text
  12. See, above, No. 8, p. 2927ff. (4th Edn., 1991-96). Also P.C. Rao, Use and Abuse of the Indian Constitution, 58 Zeitschrift fuer auslaendisches Recht und Voelkerrecht, 799, 837 (1998). Return to Text
  13. See the history of the constitutional provisions in Austin, above, No. 6, p. 164ff. and Shiva Rao, above, No. 6, p. 480ff. and the speech of Dr. Ambedkar in the Constituent Assembly made on 24-5-1949, CAD, vol. VIII, 258. Return to Text
  14. See the two writings quoted in the preceding note respectively at 179-80 and 490ff. and the deliberations in the Constituent Assembly on the day and volume cited in that note. Return to Text
  15. See, Shiva Rao, above, No. 6, vol. IV at 193ff.; Law Commission of India, Fourteenth Report, 33ff. and 69ff. (1958) and Eightieth Report, 18 (1979). Return to Text
  16. See the history of the provisions in the materials cited above in No. 13 and also in the Judges Case and the Second Judges Case. Return to Text
  17. See the materials cited above in No. 13. Return to Text
  18. See the materials cited above in No. 13 and also the speech of Dr Rajendra Prasad, President of the Constituent Assembly, on 26-11-1949 preceding the motion to adopt the Constitution, CAD, vol. XI, 498. Return to Text
  19. For the aberrations see Seervai, above, No. 8, 2484ff. (4th Edn., 1991-96). Return to Text
  20. Although the Judges Case was decided on 30-12-1980 and was overruled by the Second Judges Case on 6-10-1993, according to an affidavit from the Government in the latter case seven appointments were made against the opinion of the Chief Justice between 1983 and 1991 - five in 1983, one in 1985 and one in 1991. Return to Text
  21. For example, the Law Commission in its Eightieth Report (1979) examined the issue in detail in the background of emergency and supersession of Judges, it did not suggest any change in the existing provisions. The idea of judicial appointments commission was entertained in the Judges Case and was later recommended by the Law Commission in its One Hundred Twenty-first Report (1987). Also see, Surya Deva, Procedure for the Appointment of Judges of Higher Judiciary: A Theoretical Perspective (LL.M. Dissertation, University of Delhi, 1998). Return to Text
  22. Law Commission of India, Eightieth Report, 32 (1979). Return to Text
  23. Of course after the Second Judges Case and later after the experience with the working of the law laid down in that case in 1982 and 1990 respectively Constitution amendment Bills were introduced in Parliament. While the first of these Bills provided for a five member commission consisting of distinguished jurists the second provided for a commission consisting of the Judges almost exactly on the lines laid down in the Second Judges Case. Neither of these amendments was seriously pursued. Return to Text
  24. See, Austin, above, No. 6 at 311ff. Return to Text
  25. On this also see, H.J. Berman, Law and Revolution (1983), particularly at p. 16 where he says that the legal institutions and procedure, legal values, and legal concepts and rules "derive their meaning in part from their history." Return to Text
  26. See the speech of Dr Ambedkar cited above, No. 5 and quoted in the Judges Case and the Second Judges Case in which he rejected the idea of the concurrence of the Chief Justice because in spite of his eminence, impartiality and soundness of judgment he was also a human being subject to all the failings, sentiments and prejudices which we as common people have and therefore not to repose in him the faith which we were not ready to repose in the President. Unlike the President of India who acts on the aid and advice of a Council of Ministers responsible to Parliament the Chief Justice of India is not required to act on the aid and advice of anyone and is also not accountable to any one. For the view that the Second Judges Case brings back the "concurrence" of the Chief Justice of India which was rejected by the Assembly, see Seervai, above No. 8 at 2945ff., 2951ff. (4th Edn.); P.C. Rao, above, No. 12. Return to Text
  27. See, R. Dworkin, A Matter of Principle, 9ff. (1986), particularly his counterfactual argument for determining the intentions of the law-maker. Also at 119ff. Return to Text
  28. Austin, above, No. 6 at 129. Return to Text
  29. On the application of purposive interpretation of a constitution see the decision of the court of Final Appeal of Hong Kong in Ng Ka Ling v. Director of Immigration, Final Appeal No. 14 of 1998, decided on 29-1-1999. For its application to the Constitution of India see Seervai, above, No. 8 at 186 ff. (4th Edn.). Return to Text
  30. (1993) 4 SCC 441. Return to Text
  31. Ibid. Return to Text
  32. Ibid. Return to Text
  33. Ibid. Return to Text
  34. The Constitution specifically reserves seats in Parliament and State legislatures for Scheduled Castes and Scheduled Tribes as well as for Anglo Indians and in the municipalities and panchayats also for women. It makes special provision for women, children, Scheduled Castes, Scheduled Tribes and other sections of the society. See, M.P. Singh, Affirmative Protection of Minorities in India, in G. Alfredson & P. Macalister-Smith (eds.), The Living Law of Nations, 301ff. (1996). Return to Text
  35. For this see, Austin, above, No. 6 at 164ff. Even the title of the chapter "The Judiciary and the Social Revolution" is striking. Also see generally on the revolutionary role of the Judges, B. Ackerman, We the People : Transformations (1998) Return to Text
  36. See generally, B. Manin, The Principles of Representative Government (1997). Return to Text
  37. N. Redlich, Judges as Instruments of Democracy, in S. Shetreet (Edn.), The Role of Courts in Society, 149,156 (1988). Return to Text
  38. S. Shetreet, Judging in Society: The Changing Role of Courts, in S. Shetreet (Edn.), id. at 479. Return to Text
  39. Ibid. He says: "I preferred the term 'reflective' to the term 'representative', since the Judges, unlike legislators or elected executives, do not represent. Likewise, the courts should not be numerically representative; 'reflective', therefore, is a more appropriate term to indicate this idea." Return to Text
  40. S. Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in S. Shetreet and J Deschenes (eds.), Judicial Independence: The Contemporary Debate, 594, 635 (1985). Return to Text
  41. S. Shetreet, above, No. 37 at 480. He repeats that "the judiciary must be fairly reflective of the society it judges in terms of ideological inclinations, geographical distribution, cultural traditions and ethnic compositions". For similar views also see, M.L. Friedland, A Place Apart : Judicial Independence and Accountability in Canada, 246 (1995). Return to Text
  42. See e.g., B.N. Cordozo, The Nature of the Judicial Process (1941); H.J. Abraham, The Judicial Process (7th Edn., 1998); T. Freyer & T. Dixon, Democracy and Judicial Independence , 261, 263 (1995) Return to Text
  43. Shetreet, above, No. 38 at 633; also J.B. Wefing, The New Jersey Supreme Court 1948-1998 : Fifty Years of Independence and Activism, 29 Rutgers Law Journal, 701, 710 (1998). Return to Text
  44. S. Shetreet, above, No. 38 at 633-34. Return to Text
  45. Draft Universal Declaration on the Independence of Justice ("Singhvi Declaration") para 11(a) reproduced in CILJ Bulletin No. 25-26, p. 38 at 41 (April-Oct. 1990) and the Universal Declaration on the Independence of Justice (Montreal Declaration) para. 2.13 reproduced in Shetreet and Deschenes, above No. 38 at 447, 451. Return to Text
  46. Above, No. 40 at 67. He says that a woman, black, Jewish and Roman Catholic seat - one each - is almost an unwritten rule in the Court appointments. For a similar demand in England see, R. Stevens, The Independence of the Judiciary, 177ff. (1993). Return to Text
  47. See e.g., the Judicial Committee Act 1833 providing for two Indian Judges as assessors, the Appellate Jurisdiction Act 1908 providing for full members of the Judicial Committee up to two Judges from India. For names of some of the Indian native Judges who sat on the Judicial Committee of the Privy Council, see M.P. Jain, Outlines of Indian Legal History, 394, No. 2 (3rd. Edn., 1972). Return to Text
  48. See the examples of Calcutta and Cochin High Courts providing for representation to Muslims and Christians respectively in The Hindustan Times, p. 2 cols. 3-4, 24-1-1999. Return to Text
  49. See, e.g. Law Commission of India, above, No. 13, p. 34, para 6, p. 55, para 52(1) and p.105, para 82(8) (1958). Also Eightieth Report, above, No. 13, p. 23 para 6.9. Return to Text
  50. See, e.g. Law Commission of India, above, No. 13, p. 23 para 6.9 and p. 30 para 7.10 (1979) and One Hundred Twenty First Report, above, No. 8, p. 19 para 3.14; Third Judges Case; (1998) 7 SCC 739 at 767. Return to Text
  51. For an insightful discussion on this issue see, C. McCrudden, Merit Principles, 18 Oxford Journal of Legal Studies 543 (1998). He notes down and discusses five different conceptions of merit. Also see, R. Fallon, To Each According to His Ability, From None According to His Race: The Concept of Merit in the Law of Antidiscrimination, 60 Boston University Law Review 815 (1980) and several writings cited by McCrudden in his above writing in No. 6; and also M.P. Singh, Jurisprudential Foundations of Affirmative Action: Some Aspects of Equality and Social Justice, 10 & 11 Delhi Law Review 39 (1981-82). Return to Text
  52. Speaking to the students of the Faculty of Law, University of Delhi in the spring of 1997 one of the most prominent former Chief Justice of India, Justice P.N. Bhagwati narrated how his perception of the Constitution and law took a turn after he visited some of the rural areas in Gujarat after becoming the Chief Justice of that High Court. Similarly, speaking to the same audience at another occasion one of the most progressive former Judges of the Supreme Court, Justice V.R. Krishna Iyer narrated that when in a petition of a Naga tribal in the Supreme Court opposite counsel raised the question of merit in the petition, his (Iyer's) response was that the fact that the petitioner was a Naga and had come all the way to approach the Supreme Court for justice was itself the merit of the petition. Return to Text
  53. 1981 Supp SCC 87 at 222. Return to Text
  54. Id. at 222-23. Return to Text
  55. Id. at 592-93. Return to Text
  56. Id. at 917. Return to Text
  57. (1993) 4 SCC 441 at 696. Return to Text
  58. For the debate and literature on it see Seervai, above, No. 8. Return to Text
  59. (1998) 7 SCC 739 at 766. Return to Text
  60. Abraham, above, No. 40 at 56, also No. 94 on the same page. Return to Text
  61. Ibid. Return to Text
  62. Id. at 61. Return to Text
  63. R.B. McKay, Appointments and Disappointments : Judicial selection in the Federal Courts, in S. Shetreet (Edn.), above, No. 35 at 212. Return to Text
  64. See CILJ Bulletin, above, No. 43 at 19, 41 and 60.Return to Text
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