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This article is written by Shruti Pandey, a student of  Campus Law Center, University of Delhi.

A Brief History

An honest, efficient and independent judiciary is indispensable for the survival and functioning of our democratic system, for the protection of the fundamental rights and liberties of the people and for the unity and integrity of the country with moderate protection of the rights of the minorities. The system of appointment of judges has gone through various changes in order to attain such efficient judicial system. The Supreme Court has played an important role in making such changes.

The constitution was amended in the year 1976 by 42nd amendment.  The power of Judicial Review was put to an end and 2/3rd majority was mandated for striking down any legislation. Although it was later annulled by the Constitution (44th Amendment) Act, 1978. In 1981 the political executives again attempted to regain the power of the transfer of the High Court judges leading to the famous 1st Judge’s Case.

In S.P. Gupta v. Union of India the apex court laid down that the recommendation for appointment made by the Chief Justice of India is not pre-eminent and his recommendations can be turned down by the ruling politicians at the Center but only for ‘Cogent’ reasons. [First Judge’s Case]

Later in the year 1993 in Advocate on Record Association v. Union of India the Supreme Court rescinded the ruling laid down in S.P. Gupta Case and created the Collegium system under which appointments and transfers of the judges are decided by a forum of Chief Justice of India and two senior most judges of the Supreme Court. [Second Judge’s Case]

But in many cases, Chief Justice of India took unilateral decision without consulting the other two judges and the President became only an approver.

It would be pertinent to mention that earlier too when the Constitution was being drafted the Hon’ble member of Drafting Committee Mr. Mahboob Ali Baig Sahib had moved an amendment exactly on the same issue “That in the first proviso to clause (2) of Article 103, for the words ‘the Chief Justice of India shall always be consulted’ the words ‘it shall be made with the concurrence of the Chief Justice of India’ be substituted.” But the proposed amendment was rejected by the Constituent Assembly.

To deal with this inadequacy, in 1998, President K.R. Narayan issued a reference to the Supreme Court as to what the term “consultation” means in Article 124, 217 and 222 of the Constitution related to appointment and transfer of Supreme Court and High Court judges.
In answer to this Supreme Court laid down various guidelines for the transfer and appointment of judges and strongly reinforced the concept “primacy” of highest judiciary over the executive. [Third Judge’s Case]

Drawbacks of Collegium System

In Collegium system the judges were appointed on the basis of seniority and therefore merits and talent of junior judges and advocates were overlooked. Also there were critical issues of transparency relating to the appointments and transfers of judges.

Legislative initiative

Various steps were taken to remove the inadequacies of the Collegium system and to introduce equal participation of Judiciary and executive in making appointments in order to make the system more accountable.

The Constitution (98th Amendment) Bill was introduced in the Loksabha in the year 2003 seeking to create a National Judicial Commission.

The Law Commission in its 214th report suggested an equal role for judiciary and executive in selection and appointment of Supreme Court and High Court judges.

The Judicial Appointments Commission Bill, 2013 was introduced in Rajyasabha but the bill proved ineffectual and failed to become a law.

Finally, the National Judicial Appointments Commission was introduced in the Constitution (121st Amendment) Bill 2014 which was finally established in the Constitution (99th Amendment) Act. Together with the Constitutional Amendment Act the National Judicial Appointments Commission Act, 2014 was also after passed by the Loksabha and the Rajyasabha and subsequently assented by the President last year on 31st December 2014.

 The National Judicial Appointments Commission Act, 2014 has laid down the procedures for the selection of judges of higher judiciary.

Mechanism of Appointment of Judges at present

Who appoints judges of Supreme Court and high Court?

‘The judges of Supreme Court and high court are appointed by the President on the recommendations made by National Judicial Appointments Commission.’  Clause 2 of Article 124 and clause 1 of article 217 of constitution on India provides the power to President to make such appointments.

Who are the members of National Judicial Appointments Commission?

The National Judicial Appointments Commission consists of the Chief Justice of India (who shall also be the chairperson of the commission), two other senior judges of Supreme Court, the Union Minister in charge of law and justice, two eminent members nominated by the committee consisting of Prime Minister, the Chief Justice of India, the Leader of opposition in the Loksabha (where there is no such leader of opposition, then, the Leader of single largest opposition party in the Loksabha).

One of the eminent persons shall be nominated amongst the persons belonging to the Schedule Cast, the Schedule Tribes, Other backward class, Minorities or Women.

These eminent persons shall be nominated for a period of three years and are not eligible for renomination. [Article 124A of the Constitution of India]

Procedure for selection of Supreme Court Judges

As laid down in section 5 of The National Judicial Appointments Commission Act, 2014:

* The NJAC shall recommend the senior most judge of the Supreme Court for the appointment as the Chief Justice of India provided he is fit to hold the office.

* Other judges of Supreme Court are appointed on the recommendation of NJAC on the basis of merit, ability and any other criteria of suitability if such person is eligible to be appointed as such under Clause 3 of Article 124 of the Constitution of India, which provides that:

“A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and—

(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist.

Explanation I.—In this clause “High Court means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.

Explanation II.—In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.”

Procedure for selection of High Court judges

As laid down in section 6 of The National Judicial Appointments Commission Act, 2014:

* The chief justice of High Court shall be appointed on the recommendation of NJAC on the basis of interse seniority of High Court judges and ability, merit and any other criteria of suitability as may be specified by regulations.

* Other judges of High Court are appointed on the recommendation of NJAC after seeking nomination from the Chief Justice of the concerned High Court and the views of Governor and Chief Minister of concerned state on the basis of ability, merit and any other criteria of suitability amongst the persons who are eligible to be appointed as such under Clause 2 of Article 217 of the Constitution of India, which provides that:

“A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;
Explanation for the purposes of this clause

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.”

Before making any such nomination the Chief justice of concerned High Court shall consult two senior most judges of and other judges and eminent advocates of that High Court as may be specified by regulations.

Safeguards

It is provided in The National Judicial Appointments Commission Act that if two members of NJAC do not agree, then the commission shall not make such recommendations. It is also provided in section 7 of the Act that the President may, if necessary require the commission to reconsider the recommendation. However, if the commission makes the unanimous recommendations on such reconsideration, then the President shall make the appointment accordingly.

Conclusion

An independent judiciary is the basic feature of our Constitution and absolutely essential safeguard against political excesses. The Constitutional 99th Amendment Act is the disenchantment with the secrecy in appointment and transfer of judges which was not on the basis of merit. But there are various flaws in the new appointment system as well which threatens the transparent and merit based appointment. Firstly the bill seeks to achieve the equal participation of Judiciary and executive to make the system more accountable and thereby increase the confidence of public in the institutions but it no where attempts to create an independent institution that will ensure the independence of the Judiciary and the process of appointment free from executive interference.

Secondly in National Judicial Appointments Commission Act the clause “fit to hold the office” in section 5(1) and “any other criteria of suitability as may be specified by regulations” in section 6(1) are vague, ominous and designed to rein in an independent judge. The manner in which the Bill is structured gives complete power to the executive and the legislature. Section 5 and 6 deal with recommendations for the Chief Justice of India as well as Chief Justice of the High Courts, this provision can be changed by parliament by ordinary law. Normally the senior judge should become Chief Justice of India which also be can be altered by parliament by an ordinary law. Similarly while appointing chief justices of the High Court the inter-seniority amongst High Court judges is considered, that too can be altered. Further central government has to appoint all the officers and treat the judicial appointments commission as the government department. Now if it is a government department there is no independence left at all.

Besides this, the Executive is the largest litigant in the country before any court with vital interest in judicial decisions and to allow it to sit in a committee which recommends the appointments and transfer of judges is unjustifiable.

An opportunity has been missed again to secure the independence of judiciary form the legislation and the executive. The highest judiciary is still open to post- retirement offices of profit under the Government. Such constitutional amendments were proposed by Hon’ble Drafting Committee member Mr. Jaspal Roy Kapoor and Prof. T.K. Shah but were rejected by the Constituent Assembly.

The idea of National Judicial Appointments Commission has been borrowed from the U.K. The Constitutional-Reform Act 2005 has curtailed the powers of the Lord Chancellor and the Act provided for establishment of a Supreme Court to hear Appeals. The Act also provided for establishment of an independent Judicial Appointments Commission. But there the changes have been made to implement the doctrine of separation of power and to ensure that the judiciary is independent of the executive and legislature unlike in our country where the objective is not to ensure the independence of judiciary but to make the decisions of the executive and the legislature dominant in the appointments and transfer of judges.

This mechanism will certainly have to stand the scrutiny of the Supreme Court in Judicial Review that is bound to follow.

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