1. A very good morning to all of you. I am extremely honoured to be here for the Justice Krishna Iyer memorial lecture of 2016, and I would like to thank Justice Ramakrishnan and Mr Sahasranaman for having invited me on behalf of the memorial trust.
2. Justice Krishna Iyer is so familiar to all of you, that I am quite sure that anything I might have to say about him has been heard by you already. So, instead of reeling off his many wonderful accomplishments, I would like to speak about how he influenced me and my work. It was around 1978 or ‘79, when, as a young lawyer, I visited the Supreme Court. My work had nothing to do with Justice Krishna Iyer, but I ended up sitting almost all day in his court. I was mesmerised. His humility, compassion, his treatment of lawyers was very different from what I had ever seen before or since. Although I met him formally only once, he left an indelible impression on me. His judgments and writings have had great influence on my work. For instance, the judgments I delivered on slum demolition, the right to shelter, displacement, health (especially mental health), homosexuality and section 377 of the IPC, the right to information – all these decisions have been greatly influenced by his thinking and his social philosophy. Indeed, our reading of the right to dignity in the Naz Foundation/Section 377 judgment borrowed liberally from ideas first voiced by Justice Krishna Iyer.
3. When I was made the chairperson of the Law Commission of India, there was an initial trepidation on my part, because Justice Krishna Iyer had served as a member of that illustrious body, and rendered some very distinguished/important contributions. The Twentieth Law Commission’s final report on the death penalty was essentially inspired by his writings on the subject, and we extensively quoted him in the report as well.
4. In today’s talk, I seek to examine the issue of judicial appointments, which has had a chequered history dating to the creation of the Indian republic itself.
5. The inaugural session of the Supreme Court of India, on 28^th January 1950, promised a judiciary that would be the third pillar in the Indian constitutional framework, to counterbalance the legislature and the executive; and its independence from the other two institutions was of particular importance. The constitutional process for “appointment” of judges lay at the heart of the ideal of an independent judiciary. Speaking at the occasion, Harilal J. Kania, the first Chief Justice of India, presciently remarked –

“….political considerations should not influence the appointments to the bench.”

6. Judicial appointments have been bitterly contested between the constitutional functionaries ever since. To understand the entire issue, it is useful to begin with the original intent of the constitutional framers, which I discuss in Part I of this talk. In Part II of this talk, I will discuss the four seminal cases of the Supreme Court of India pertaining to judicial appointments which form the basis of the existing “collegiate system” of appointment of judges, including the NJAC case. In Part III , I will discuss the subsequent debate around preparing the draft memorandum of procedure for appointment of judges, and the bitter struggle around the primacy of the judiciary in the matter of appointments. In Part IV, I conclude with a discussion on the way ahead, after all this water has flown under the bridge.

THE ORIGINAL INTENT

7. The Constituent Assembly debates on appointments in the higher judiciary were so brief, that they lasted no longer than a week. There was no significant discussion on criterion to appoint judges to the Court. But there was distinct consensus on identifying judges who, in Nehru’s words, would be of the “highest integrity” and who would be “[persons] who can stand up against the executive government and whoever might come in their way.” The assembly agreed that the judiciary’s “independence” was important, but not its “insulation”.
8. Echoing this view, Dr. B.R. Ambedkar strongly criticized a proposal to make the opinion of Chief Justice of India in the matter of appointing judges binding on the executive, in a speech that accurately captures the dangers of this move –

“It would be dangerous to leave the appointments to be made by the President, without any kind of reservation or limitation, that is to say merely on the advice of the executive of the day. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to the concurrence of the Legislature is also not a very suitable position… With regard to the questions of the concurrence of the Chief Justice , it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all that, the Chief Justice is a man with all the failings and all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore think that is also a dangerous proposition.”

9. These debates saw fruition in the form of Articles 124 and 217 (for appointment of Judges to the Supreme Court and High Court respectively) that embody a consultative system of appointment of judges – one where the power, although residing with the executive was exercisable only after consultation with the Chief Justice of India for Supreme Court appointments, and the Chief Justice of the High Court for High Court appointments. It was felt that a multiplicity of high constitutional authorities, some of whom were apolitical, would ensure that judges of the highest quality would be appointed.

THE CONSTITUTIONAL PRACTICE AND ADJUDICATION

10. In its initial years, the system of appointing judges remained without controversy or conflict. A collaborative system had emerged between constitutional functionaries. Despite political pressure, Presidents did not act except with the concurrence of the Chief Justice of India in appointments. Granville Austin, in fact, went so far to proclaim that the Chief Justice of India during Nehru’s tenure as a Prime Minister, owing to convention and the strength of his character “virtually had a veto power over appointment decisions.” From the 1970’s onwards however, Indian constitutional framework changed in response to political actions, ultimately resulting in the Supreme Court seizing the power to appoint judges (in the 3^rd Judges Case discussed later), in effect, accepting the proposal rejected by the Constituent Assembly. This usurpation of the power by the judiciary coincided with the weakening of political power at the Centre and happened in several important steps.

The Disintegration of An Independent Judiciary

11. Between 1950 and 1973, four confrontations took place between the executive and the judiciary, and with each confrontation, the court grew increasingly estranged from the executive. In Sri Sankari Prasad Singh Deo in 1951, and Sajjan Singh v Rajasthan in 1965, the Court accepted the Parliament’s power to amend the Constitution. But, in Golak Nath, an 11-Judge Bench of the Supreme Court ruled by a narrow majority of six to five that Part III of the Constitution, containing the Fundamental Rights, could not be curtailed in any way. Rumours spread that the government intended to pack the Court to have the Golak Nath decision over-ruled. This paved the way for the fourth and most momentous confrontation in 1972-73 in Kesavananda Bharati v State of Kerala, where an unprecedented 13-Judge Bench of the Supreme Court held, by a slim seven to six majority, that the Constitution had an ‘unamendable’ or entrenched ‘basic structure’. The very next day, All India Radio announced that the next Chief Justice would be AN Ray, the fourth most senior judge of the Supreme Court at the time, effectively demolishing the convention of seniority followed by the Court since its inception.

Read more at: http://www.livelaw.in/appointment-judges-balancing-transparency-accountability-independence-full-text-justice-vr-krishna-iyer-memorial-lecture-2016-justice-ap-shah/