The year 2021 will be remembered as a year of confrontation between the executive and the judiciary. Law Minister Kiren Rijiju reignited the debate over judicial appointments, even hinting that the Collegium system of appointments should be replaced.
In an interview last November, the Law Minister had remarked,
“You tell me under which provision the Collegium system has been prescribed...Never say that the government is sitting on the files, then don’t send the files to the government, you appoint yourself, you run the show…”
The Court took strong exception to these remarks, and orally observed,
“Let them give the power. We have no difficulty…I ignored all press reports, but what he says, that when somebody high enough says let them do it themselves, we will do it ourselves, no difficulty… It came from somebody high enough. Should not have. All I can say is, should not have happened.”
Earlier this week, Bar and Bench interviewed Senior Advocate Fali S Nariman regarding the Collegium system and the ongoing tussle between the executive and the judiciary. During this conversation, Nariman recalled a practice between former Bombay High Court Chief Justice MC Chagla and then Chief Minister Morarji Desai. According to Nariman, Chagla used to meet Desai once a month over tea or dinner to discuss any concerns they may have. When asked about the need for this practice, Chagla had responded that it was a great idea to be able to discuss their problems without the press or the media.
The interview highlighted the camaraderie shared by Chagla and Desai. However, there were many issues on which the two differed starkly, one of which being judicial appointments.
In this post, I narrate the stories of the times when the two disagreed with each other to argue, and show that the conflict between the judiciary and the executive over judicial appointments is not a new phenomenon and goes back to early years of the Constitution. However, the final word mostly remained with the judiciary.
Justice Chagla is considered one of the most remarkable Chief Justices of a High Court. It is well known that he turned down a seat at the Supreme Court and possibly the Chief Justiceship since he thought he was doing more useful work as Chief Justice of the Bombay High Court. However, many are unaware that his initial appointment as Chief Justice came in the form of a supersession.
Prior to independence, many of the High Courts were presided over by British judges acting as Chief Justices. The Chief Justice of Bombay at the time was Sir Leonard Stone, who thought that once India attained independence, the people would naturally expect the first Chief Justice of a High Court to be an Indian. Chagla wrote in his autobiography that Stone told him,
“It would not be right in a free India for an Englishman to be at the helm of affairs in a high court, and it was but right that an Indian should take his place.”
Stone resigned immediately after independence.
When the question of Stone’s successor came up, Prime Minister Jawaharlal Nehru, along with others, was convinced that Chagla should be the first Chief Justice of Bombay in free India. However, a hiccup to this appointment was the fact that Chagla was not the senior most puisne judge at the High Court. It was Justice KC Sen who would have had to be superseded. Justice Sen was aware that he was not the preferred choice, and hence expressed a desired that he may be appointed as Chief Justice for a short span of six months, after which he would willingly retire despite his tenure remaining.
Former Chief Justice of India PB Gajendragadkar (former Judge of the Bombay High Court) wrote in his autobiography that Sen approached him to make this request to then Chief Minister BG Kher. He writes,
“While making this proposal to me, he himself emphasised the fact that he was fully conscious that compared to Chagla he did not deserve to be the Chief Justice. But as he put it in his own honest and philosophic way: it is my vanity which prompts me to make this request to you.”
The government did not consider Sen’s request and Chagla was appointed as Chief Justice. In all fairness to Sen, he did not brew any bitterness towards Chagla and completed his tenure as a puisne judge of the High Court.
Gajendragadkar justified the supersession stating that the choice of the first Chief Justice required not just judicial merit, but other varied qualities that Chagla possessed. He wrote,
“Chagla was endowed with almost all the qualities necessary to make a brilliant lawyer, a successful judge, and then, as events proved to the satisfaction of everyone, a successful, efficient, powerful, popular and independent chief justice. He was a very good leader of his team, helped to create a democratic, friendly, cooperative atmosphere among his colleagues, tried his best and succeeded in carrying his colleagues with him in all major administrative decisions.”
When the Constitution was adopted, there existed no Collegium and judicial appointments were made as per the letter and spirit of Article 124/217 of the Constitution. The appointment of a judge to the High Court was made by the President in consultation with the Governor (effectively the state government) and the Chief Justice. The opinion of the Chief Justice was not binding and could be rejected (this of course changed later with the adoption of the Collegium system).
Many times, the state government started the process and recommended names to the Chief Justice for her/his opinion. Chagla reversed this practice and persuaded the state government that the initiative should come from the Chief Justice and not the government. He believed that a strong and independent judiciary can only be established by restricting any possibility of pressure or influence in the choice of candidates. He writes,
“I told them frankly that the Chief Justice was in a better position to resist and withstand pressures than was the Government.”
He also told the government that in case recommendations of the Chief Justice were rejected, s/he should be asked to submit other names.
This new convention gave rise to severe disagreements between Chagla and Desai, as the latter served as both the Home Minister of Maharashtra, and later Chief Minister.
The first confrontation between the two was over the elevation of a senior district judge, Mr Lad. Chagla submitted the name of a district judge who was junior to Lad for elevation to the High Court. Desai questioned why Lad, being a senior district judge, had been passed over. Chagla responded that Lad has served as a legal remembrancer (an executive post), and hence, had been associated with the executive for many years. He was not in favour of appointing someone who was in the habit and outlook of an executive. Chagla wanted Lad to continue as a district judge before his claim could be considered.
Chagla’s response made Desai furious. The Chief Minister threatened that he would not recommend any judge for the pending vacancy until his suggestion was accepted. Chagla responded to the threat stating,
“I can afford to carry on with the existing strength of judges, but I will not yield on what is to me a matter of principle.”
The deadlock continued for a considerable period of time, and ceased only when Lad was appointed to the Government of India in some capacity.
The two again disagreed over the appointment of an assistant judge who Chagla wanted to recruit directly from the Bar. The concerned judge was a member of the Hindu Mahasabha, and Desai was uncomfortable with appointing a man sharing the ideology of the party. He expressed his surprise to Chagla, asking, “how has a man with such political complexion been recommended”?
Chagla responded that he was not concerned with the politics of the concerned judge and was only interested in his ability and efficiency as a judicial officer. He told Desai,
“A member of the Bar had every right to hold any political views he thought proper, provided they were not seditious or subversive. So long as the Judge did not carry his politics to the Bench, I should consider his political views as utterly irrelevant to his fitness as a judge.”
After a few back-and-forth exchanges, Desai finally conceded.
Once, while selecting assistant judges to the High Court, Chagla passed over a senior Muslim judge in favour of a non-Muslim judge. Desai saw it as an act of ignoring the claims of the minority community and came down heavily on Chagla, who responded that in matters of judicial appointments, communal considerations were irrelevant. He said,
“If I found that all civil judges who deserved to be promoted were Muslims, I would not hesitate to recommend all of them, but communal representation in the judiciary is something I refuse to accept.”
As per Chagla, communal representation as a principle in appointments would completely undermine the strength and status of the judiciary.
Later, when Desai resigned as Chief Minister, a function was organised in his honour which was presided by Chagla. During his speech, Chagla remarked that during Desai’s regime, they witnessed the remarkable spectacle of a Muslim Chief Justice opposing the appointment of a Muslim judge, and a Hindu Chief Minister strongly supporting it.
Chagla had a clear and sometimes a rigid vision about the judiciary which often collided with the wishes of the executive led by Desai. However, Chagla was mostly able to persuade Desai and have his way with judicial appointments. Despite their disagreements, their relationship portrayed a camaraderie between the judiciary and the executive. Chagla wrote,
“I must say that Morarji Desai made a first-class chief minister. He was a strong and able administrator. He was also completely free from communal prejudices, and although we had many differences of opinion and were not on very friendly terms with each other in the beginning, ultimately, we became great friends, and came to understand and respect each other’s point of view.”
Interestingly, there were also times when Desai supported the recommendations forwarded by Chagla. One such name was of a Principal Judge of the City Civil Court whose recommendation was supported by both Chagla and Desai. The concerned judge had started as a junior civil judge and risen from the ranks. Chagla thought that his appointment would give strong impetus to junior civil judges and make them aspire for the office. Unfortunately, this appointment was vetoed by Sardar Patel, who thought that the appointment was coming at the cost of a senior district judge who was a member of the Indian Civil Services (ICS). Patel thought that this was a disservice to the ICS and refused to yield despite the efforts of Chagla and Desai.
Incidents and quotes are from ‘Roses in December: An Autobiography’ by MC Chagla (2018: Bhartiya Vidya Bhawan) and ‘To the Best of My Memory’ by PB Gajendragadkar (2016: Bhavan’s Book University).
Swapnil Tripathi is an advocate and an author at The 'Basic' Structure.