Supreme Court Collegium A Comment upon

“Indian Constitution – Some Creative Mutations Mooted”

(2007(3) KLT Journal 17)

            ( By Bechu Kurian Thomas, Advocate, High Court of Kerala)

The learned author of the article in 2007(3) KLT Journal 17, in his inimitable style, rendered his illuminating thoughts in the article with the title ‘Indian Constitution – Some Creative Mutations Mooted’.  Though I fully endorse his views, on most aspects, certain thoughts, relating to appointment of Judges have been winched to the fore through the said article.

A handful of lawyers, mostly politically motivated and majority of the politicians have harangued at the concept of the ‘Supreme Court Collegium’ evolved in S.C. Advocates on Record Assn. v. Union of India (1993) 4 SCC 441) case (2nd Judges case).  It is surprising to note that even the learned author of the article in 2007(3) KLT Journal 17 too opposes the said concept.  But while opposing, the reasons remain the same.  None seems to have realized the reasons for evolution of this concept of Judges Collegium. The criticism that ‘there is no warrant in the Constitution’ is also not fully correct. 

Supreme Court is the final authority to interpret the law. Article 124 was interpreted in the 2nd Judges Case to mean that ‘consultation’ means ‘concurrence’, and also held that in the process of recommending, the opinion of Chief Justice shall have primacy. It was also held that opinion of Chief Justice shall be a collective opinion of a group called the Collegium. This judicial interpretation cannot be regarded as having no backing from the Constitution. A reading of Article 124 (2) alone would suffice and it reads as follows:

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 and shall hold office until he attains the age of 65 years.

In arriving at the concept of Collegium, the Supreme Court had referred to the recommendation of the Law Commission 121st report also, which emphasized a need for the change of the then existing system.  Instead of waiting for a legislative process, which alas, would never happen in the wake of our political scenario and in the light of political coldness to the judicial requirements, the Apex Court on a proper interpretation, by entering into the realm of original intention of Constitution, adopted a process that only ensured a palladium to protect the independence of judiciary.  It cannot be regarded as “without any warrant in the Constitution”.  

This concept of Collegium was again the subject of consideration by a 9 Judges Bench of the Supreme Court in In Re Special Reference No.1 of 1998 (1998) 7 SCC 739). In the said decision, the Apex Court reiterated and affirmed the principles evolved in the 2nd Judges case and unanimously opined to increase the number of the Collegium to 5 from the earlier 3. By the two judgements referred to above, primacy to the opinion of Chief Justice is made mandatory and this opinion of the Chief Justice is the opinion formed collectively. When such a dynamic interpretation was adopted by the Supreme Court about Article 124, how could it be regarded that there is no warrant in the Constitution?

The criticism owing from the likes of the Author of the Article in 2007 (3) KLT Journal 17 is also an irony. He himself is the beacon light for such dynamism in interpreting the law. Process of interpreting the laws found its elements in almost all the cases decided by the Author when he was a Judge of the Supreme Court. Instances like, Bhim Singhji Case (( 1981) 1 SCC 166) where it was stated that “There are no absolutes in law as in life and the compulsions of social realties must unquestionably enter the judicial verdict….”, Akhil Bharatiya Soshit Karamchari Sangh Case ((1981) 1 SCC 246) where also it was stated that “Constitutional questions cannot be viewed in vacuuo but must be answered in the social milieu which gives it living meaning. There must be a synthesis of ends and means, of life’s maladies and laws remedies, which is a part of the know how of Constitutional interpretation.” and to top it all, the Ratlam Municipality Case ((1980) 4 SCC 162). The judicial creativity embarked upon in the above quoted decisions are simply magnificent and  are classic examples of moulding the law to meet realities of life, woven out of experience. 

When critics criticize on the performance of the Collegium, little do they consider the performance of the appointment of Judges with the ‘aid and advice of the Council of Ministers'. How many times have Judges appointment been held back at the instance of political parties?  How many times have recommendations been made at the behest of politically motivated persons recommending candidates purely on the basis of their political affiliations?  There used to be instances when the political leaders insisted on the Judge candidate paying them visits so as to process their applications and there have been instances of able lawyers losing their Judgeship only because of their failure to make those visits. Are we to assume that such a system was preeminent?  It was undoubtedly an odious and invidious system that required change.  

In fact as Ambedkar himself stated quoting Thomas Jefferson that “Every generation is a new nation”, and the life of law being not logic but experience, it is that experience which made the new generation feel that the earlier system was crippling the concept of an independent and competent Judiciary. The Constitutional interpretation adopted by Supreme Court is based largely on a proper diagnostic insight of a new legal concept to make the Constitution serve the needs of the people without sacrificing its essential features and basic principles.  The new concept evolved by the Supreme Court shows the grandeur of law and also that it is not static and immutable but ever increasingly dynamic. Independence of Judiciary does not enure only subsequent to the appointment but also inheres even in the process of appointment and unless there is a total insulation from executive veto, there cannot be a Judicial System as envisaged by the founding fathers of our constitution. 

It may be fruitful to extract Dr. B.R. Ambedkar’s statement on the appointment process of Judges [Constituent Assembly Debates, Vol: VIII Page 258] 

“There can be no difference of opinion in the House that our Judiciary must be both independent of the Executive and must also be competent in itself”. 

Further, who else but the Judiciary themselves would have more competent and more reliable information about the ideal candidates suitable for the post.  Supreme Court and Chief Justice being the head of the Indian Judicial System and the repository of Constitutional Checks and balances, undoubtedly should enjoy the status of selecting the most suitable for that system. The Judiciary alone is bestowed with the ability to have knowledge of the persons fit to be on the Bench and most importantly of the qualities required for appointment.

For all those who advocate against the concept of Collegium, I could not come across a single substantial reason to decry the concept.  The author of article in 2007(3) KLT Journal 17, speaks about the Collegium as being inefficient. Is not a less efficient Collegium better than a corrupt/biased system? 

Even the votaries of National Judicial Council have not been able to point out any distinct advantages for that system.  If National Judicial Council comprises only of Judges, it would be a system that can be adopted, but what is the difference?  There is only a change in the nomenclature. Even in that scenario, what better could a National Judicial Council do that which the present Collegium can’t do?  

Three Judges More — I Welcome Them

(By V.R. Krishna Iyer)

I salute them, the three Addition new brethren on the Bench, in the optimistic expectation that they will reduce the avalanche of docket arrears, which are escalating despite the larger disposals by judicial speedsters and forensic activists. But robed brethren fail in their sublime function if they prefer speedy injustice to slow justice. “There are two things against which a Judge ought to guard precipitancy and procrastination.” (Quote It-I p-296).

The curial newly sworn-in trinity are an indubitable exception to the disparaging implications of Parkinson’s Laws and Peter Principle. When these legal luminaries were elevated I had received an invitation for the august function. Since I could not attend because of physical disablement I sent a letter to the Hon’ble Chief Justice expressing my grateful sentiments. I reproduce it here since I wish to share those ideas with the Bench and the Bar. The proper medium, of course, is the popular law journal KLT which has gracefully agreed to my request. Here is my letter:

I am thankful to you for inviting me for the swearing in ceremony of three Additional Judges of the High Court on the 1st August 2007. Under your leadership, this significant event will strengthen the administration of justice especially because heavy arrears of dockets and unhappy delays in delivery of judgment have become an incurable pathology in every State and also in the Supreme Court. I am sure the three new Judges will be an asset to the Bench in eliminating undue procrastination and promoting dignified performance, giving a sense of confidence to the people that socially sensitive justice, free from fear, influence and other prejudices will prevail. The foremost consideration is being the implementation of justice, social and economic, in the milieu of our Socialist Secular Democratic Republic. May the Kerala High Court be the paradigm of ubiquitous excellence in the judicial process with access to the humblest have-nots who hunger for justice according to law.

We have a High Court of Law and Justice because humanity is the end and legality is the means. My point is best expressed by Lord Justice Scrutton in an address delivered to the University of Cambridge Law Society on 18 November 1920.

Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labour man or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your own class.

Ever you the members of the Bench and the Bar, do ever remember the key words of the Preamble to our Constitution. We, the People of India, having solemnly resolved to constitute India into a (Sovereign Socialist Secular Democratic Republic) and to secure to all the citizens: Justice, social, economic and political.

Doctors vis-a-vis Industrial Law

(By Justice K.P.Radhakrishna Menon)

Can a doctor who in legal parlance is called a professional, be termed as a workman under the Industrial Law?

This question no more is res integra in view of the authoritative rulings of the Apex Court; (1) Workmen D.T.E. v. Manager D.T.E. (AIR 1958 SC 353) wherein the Supreme Court has declared the law thus: “In the case before us, Dr.K.P.Banerjee was not a workman. He belonged to the Medical or technical staff - a different category altogether from workmen; and (2) the latest pronouncement in Muir Mills Unit of NTC (U.P.) Limited v. Swayam Prakash Srivastava and another, reported as Case No.31 in Short Note Part of 2007 (1) KLT at Page 25. Relevant part of this ruling reads: “Furthermore if we draw a distinction between occupation and profession we can see that an occupation is a principal activity (job, work or calling) that earns money (regular wage or salary) for a person and a profession is an occupation that requires extensive training and the study and mastery of specialized knowledge, and usually has a professional association, ethical code and process of certification or licensing. Classically, there were only three professions: Ministry (theology), Medicine and Law. These three professions each hold to a specific code of ethics, and members are almost universally required to swear some form of oath to uphold those ethics, therefore “professing” to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value and importance of its particular oath in the practice of that profession........... A member of a profession is called professional ............Therefore it is clear that respondent No.1 (Legal Assistant) herein is a professional and never can a professional be termed as a workman under any law”.

It is trite knowledge that a doctor is bound to take Hippocratic oath that he will observe the code of professional ethics and behaviour. Not only that a doctor shall obtain the prescribed license before he/she starts practice. They can be proceeded against for professional misconduct.

The inference irresistible from the dictum of the Supreme Court and the discussion just above is that a doctor is a professional and as such he cannot be termed as a workman within the meaning of Section 2(s) of the Industrial Disputes Act or any other law.

However, the Kerala High Court in Mar Baselius Medical Mission Hospital v. Joseph Babu (2007 (1) KLT 783) has held that “a doctor who performs the duties of examining patients, diagnosing their diseases, prescribing medicines, whatever designation by which he is called, would certainly be doing work of a ‘skilled and technical’ nature and therefore would be a workman as defined in Section 2(s) of The Industrial Disputes Act”. This conclusion is based on the finding namely: “The only duties he performs in the hospital is of examining the patients, diagnosing their diseases and prescribing medicines for them. This would certainly come within the ambit of the words “skilled and technical”. Going by this finding even judicial functionaries who belong to the noble profession ‘Law’, can be said to be doing work of a skilled and technical nature as they are hearing the cases, issuing interim orders and pronouncing judgments which judgments are nothing but legal opinions, however enforceable because they bare the stamp of approval of the sovereign, and hence workmen.

While holding so, the learned Judge explained and distinguished the ruling of the Supreme Court in A.Sundarambal case ((2005) 3 SCC 510) where the Supreme Court has found that teachers employed by educational institution, whose main function is imparting of education “cannot be considered as skilled or unskilled manual work, or supervisory work or technical work and as such ‘workmen’. Similarly the declaration of the law discernible from the ruling in In Re S.K.Maini ((1994) 3 SCC 510), that Legal Assistant is not a workman also, the Judge has explained and distinguished to enter the finding that a doctor is a workman.

Restating the legal principles discernible from the above rulings In Re A.Sundarambal and S.K.Maini, the Supreme Court in Re Muir Mills' case (reported as Short Notes in 2007 (1) KLT page 25) has held that “classically, there were only three professions Ministry, Medicine and Law. These three professions, each hold to a specific code of ethics and members are almost universally required to swear some form of oath to uphold those ethics, therefore “professing” to a higher standard of accountability. Each of these professions also provides and requires extensive training in the meaning, value and importance of its particular oath in the practice of that profession. A member of a profession is termed a professional....... and never can a professional be termed as a workman under any law”.

The ruling of the learned Judge, it is submitted, therefore warrants review or reconsideration.