Vijender Jain

New Delhi: The appointment of Justice Vijender Jain as Chief Justice of the Punjab and Haryana High Court took place under contentious circumstances. According to an appointment file noting by President A.P. J. Abdul Kalam, these included "divided opinion at the level of the [recommending Supreme Court] collegium"; a collegium that was expanded, in the first instance, from three to four members "in departure from" para 5.1 of the relevant Memorandum of Procedure; "dissenting" and "deprecatory" written remarks against the appointment by three Supreme Court judges; and reservations expressed by the President, who returned the file to the political Government for reconsideration.

However, these hurdles were fairly quickly overcome and the notification for Mr. Justice Jain's appointment came on November 27. He was sworn in as Chief Justice of the Punjab and Haryana High Court on November 28.

Third Judges case

The law relating to the appointment of superior judges was settled in October 1998 by the Supreme Court in what is known as the Third Judges case. This came by way of a special reference by the President under Article 143 of the Constitution. The apex court reiterated its earlier ruling that the Chief Justice of India should make a recommendation for appointments to a High Court "in consultation with the two senior-most puisne Judges of the Supreme Court." This collegium of three "would in making their decision take into account the opinion of the Chief Justice of the High Court which `would be entitled to the greatest weight,' the views of other Judges of the High Court who may have been consulted and the views of colleagues on the Supreme Court Bench `who are conversant with the affairs of the High Court concerned.'" All these views were to be expressed in writing and conveyed to the Government of India along with the recommendation. The court goes on to add: "if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed."

In light of this ruling, the collegium in the present Supreme Court can comprise only Chief Justice Y. K. Sabharwal, Justice K. G. Balakrishnan, and Justice B. N. Agrawal. There can be no fourth deciding member in this legal process.

After examining the original appointment file carefully, President Kalam discussed the case, "having regard to these exceptional features," with Prime Minister Manmohan Singh. On Dr. Singh's advice, he held consultations with the Chief Justice of India and re-studied the file. Still not satisfied, he returned the appointment file to the political Government for reconsideration (as reported by The Indian Express on October 25, 2006). This was essentially because of the "divided opinion" in an expanded collegium and the negative remarks recorded by three judges during the consultation process.

Credibility issue

President Kalam noted on the file: "It is well recognised that the image of a Judge and his credibility with the public are of utmost importance. The deprecatory remarks of three brother judges against Shri Vijender Jain therefore become significant." Pointing out that he was "not jumping to any conclusions," he requested the Prime Minister to go into the matter further in view of the "recorded observations."

According to a high-placed Government source, "we used these [presidential] objections to force open the issue again" and made the CJI "follow the correct procedure." The second time, according to this source, the collegium, that is, the CJI and the two senior-most judges, "reiterated its views more forcefully." After this the Department of Justice returned the appointment file to the President who, under the Constitution, had no option but to sign it. But he had made a point.

A privileged Supreme Court source contacted by The Hindu disputed President Kalam's reading of the facts and the procedure followed in this case. The suggestion was that in reading the appointment file the President had mixed up membership of the deciding collegium with the wider consultation process involving some other judges.

At a time when there is active discussion of issues of judicial accountability and transparency and Parliament is getting ready to debate the Judges (Inquiry) Bill, this development is likely to stir fresh controversy on the way the higher judiciary handles appointments.

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President Kalam's file noting on Vijender Jain appointment

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