Introduction:
Ø This
Bill is the 120th Constitutional Amendment Bill
Ø If
passed it would amend the Article 124 and 217 of the Constitution of India and
introduce a new article 124A
Ø The
Judicial Commission originally proposed in 1990 by the then law minister Dinesh
Goswamy and subsequently proposed by law ministers like Arun Jaitley were of
different kind — those proposals were to incorporate the commission into the
Constitution.
Ø The
18th Law Commission had given a proposal for reconsideration of the
three Judges case or passing a law to restore the primacy of the Chief Justice
of India and the power of the executive to make the appointments.
What is current practice for Appointment &
Transfer of Judges ?
The Collegium System which came into existence in
1993 was in response to the growing executive role in undermining the judicial
independence especially on matters relating to appointment of judges in the
higher judiciary. As explained below in the Three Judges case the Chief Justice
of India would consult the four senior most judges of the Supreme Court for
Supreme Court appointments and two senior-most judges for high court
appointments.
Supreme
Court Judgements:
The collegium system has its genesis in a series of three
judgments that is now clubbed together as the "Three Judges Cases".
Ø The S P Gupta case (December
30, 1981) is called the "First Judges Case". It declared that the
"primacy" of the CJI's recommendation to the President can be refused
for "cogent reasons". This brought a paradigm shift in favour of the
executive having primacy over the judiciary in judicial appointments for the
next 12 years.
Ø On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association
vs Union of India —— the "Second Judges
Case". This was what ushered in the collegium system. The majority verdict
written by Justice J S Verma said "justiciability" and
"primacy" required that the Chief Justice of India be given the
"primal" role in such appointments. It overturned the S P Gupta
judgment, saying "the role of the CJI is primal in nature because this
being a topic within the judicial family, the executive cannot have an equal
say in the matter. Here the word 'consultation' would shrink in a mini form.
Should the executive have an equal role and be in divergence of many a
proposal, germs of indiscipline would grow in the judiciary." The expression “consultation”, was interpreted. The
majority of the nine-judge bench, speaking through Justice J.S. Verma said, “It
was realised that the independence of the judiciary had to be safeguarded not
merely by providing security of tenure, but also by preventing the influence of
political considerations in making the appointments. It is this reason which
impelled the incorporation of the obligation of consultation with the Chief
Justice of India and the chief justice of the high court in Articles 124(2) and
217(1)”.
Ø Third Judges case: (Special
Reference No1. Of 1998) reported in (1998) 7 SCC 739. The President of India
(K. R. Narayanan) who required clarification and light on the second judges
case made a reference to the Supreme Court under Article 143 of the
Constitution which consists of nine questions.
|
Questions Posed by the President
|
Answers from the Supreme Court Bench
|
|
Whether
“Consultation of with the Chief Justice of India in Articles 217(1) and
222(1) requires consultation with a plurality of Judges
|
Consultation
includes consultation with the plurality of Judges
|
|
Extent and scope of
Judicial review in transfer of Judges
|
Judicial review
can be done only if CJI has not consulted the other Judges or the views of
Chief Justice of High Court to which a Judge is transferred and the Chief
Justice of High Court from which he is transferred is not obtained
|
|
Whether Chief
Justice should consult only two seniormost judges only
|
Two seniormost
Judges – appointment to High Court
Four seniormost
Judges – Judge of Supreme Court, Transfer of Chief Justice or puisne Judge of
a High Court
|
|
Can the Chief
Justice of India act solely in his individual capacity
|
CJI not entitled
to act solely
|
|
Does consultation
of CJI with Judges of the High Court include those Judges who have a
different parent High Court
|
It includes all
the Judges of the said High Court, no exclusion.
|
|
If a Junior Judge
is appointed overriding a senior Judge should “strong cogent reason” be
recorded
|
Positive reason
for the recommendation alone has to be recorded
|
|
Whether the
opinion of the other Judges should be
recorded in writing and sent to the Government
|
The opinion of
the Judges should be recorded in writing and sent to the Government of India.
|
|
Whether CJI is
not obliged to comply with the norms and requirement of the consultation
process in making his recommendation to the government
|
He is obliged to
do so
|
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And whether such
recommendation is binding on the Government of India
|
Those
recommendations which do not comply with the norms and requirement are not
binding on the Government of India
|
Articles
relating to appointment and transfer of Judges:
Ø
Appointment of supreme court judges ( other than
chief justice of India ) – Article : 124: Every Judge of the
Supreme Court shall be appointed by the President by warrant after consultation
with such of the Judges of the Supreme Court and of the High Courts in the
States.
Ø
Appointment of High court judges – Article: 217 Every Judge of a High Court shall be appointed by
the President by warrant under his hand and seal after consultation with the
Chief Justice of India, the Governor of the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the
High Court, and shall hold office, in the case of an additional or acting
Judge.
Ø
Transfer of judges from one high court to other –
Article 222The President
may, after consultation with the Chief Justice of India, transfer a Judgefrom
one High Court to any other High Court
What
is the purpose of the Judicial Appointments Commission bill?
Ø Recommending
persons for appointment as Chief Justice of India
Ø Other
Judges of the Supreme Court
Ø Chief
Justices and Other Judges of the High Courts
Ø Transfer
of Chief justices and Judges of High Courts
What
constitutes the Judicial Appointments Commission?
Ø The
Chief Justice of India – ex-officio Chairperson
Ø Two
other Judges of the Supreme Court (They should be next to the chief Justice in
their seniority) – ex-officio members
Ø Union
Minister for Law and Justice – ex-officio member
Ø Two
eminent persons for a period of 3 years only nominated by Collegium – (collegium
– Prime Minister +Chief Justice of India + Leader of the opposition in the
House of the people)
Ø Convener
of the Commission – Secretary to the Department of Justice
Ø It
implies that all the organs of the state and the citizenry are represented
What
is the procedure for appointment of Judges?
Ø Views
of the Governor + Chief Minister of the State + Chief Justice of the High Court
should be received in writing
How
will the commission come to know of the vacancies?
Ø Central
Government will inform the commission about the vacancies in the Supreme Court
and the High Court
Ø Vacancies
should be intimated two months prior to the retirement term, death or
resignation of Supreme Court and High Court Judge
Area
of Concern:
Ø Clause (2) of the proposed Article 124A
provides that the Parliament has the power to legislate on the composition of
the Commission, appointment, tenure, qualifications, conditions of service,
functions and procedure of the Commission. A residuary clause “such other
matters as may be considered necessary” has been added.
Ø This would give vast and unfettered power
to the Parliament on Judicial appointments. The area of concern is that the
Parliament can amend the provisions of the law with a simple majority.
Ø Further the proposed Constitutional
provision, which leaves the power to fix the salary, tenure, composition of
members of the Commission, etc. to the ordinary law of the Parliament which
undermines the independence of the Judicial Appointments Commission and the
Parliament may at any time amend the law by simple majority as per its
convenience.
Ø The Bill does not mention about any
amendment to Art. 124(3)(c) which states that, “A person shall not be qualified
for appointment as a Judge of the Supreme Court unless he is a citizen of India
and – (c) is, in the opinion of the
President, a distinguished jurist”. Does the President have powers to
recommend distinguished Judges to the JAC is a questioned answered.
Ø How could the seniormost Judges sit for
appointing the Chief Justice of India.
Arguments
against the Bill:
Reaction from
the Bar Council and Bar Associations:
Ø The
Chairman of the Bar Council of India is reported to have said that “we are
totally against this National Judicial Appointment[s] Commission Bill because
of the fact that in the process of appointment of judges, we do not want any
interference from any outsider, including the executive”
Ø Press release of the Bar Council of India says “….
lawyers of the country are not going to tolerate the replacement of the
existing collegiums with the proposed Commission, without the representation of
the Bar Councils and the (Bar) Associations.”
Ø The President of the Supreme Court Bar Association is
reported to have said that “loading the Commission with more members from the
Executive and including fewer members from the judiciary would curtail the
independence of the judiciary” and that “the cure should not be worse than the
disease. The Bar will not agree to transfer the power of appointment to the
executive. The collegium system can be improved by making methods of selection
more transparent”
Ø A closed-door affair without a formal and transparent system (General
Argument)
Judicial
Appointments Commission in the United Kingdom:
In June 2003, the British Government announced a
series of constitutional reforms, including the creation of a new Supreme Court
and the establishment of a judicial appointments commission for England and
Wales. A series of public consultation papers were then released on these and
related constitutional reforms. Later a
summary of responses and the individual submissions were released. On 24 February 2004, the Constitutional
Reform Bill, which included proposals for judicial appointments, was introduced
into the House of Lords.
The Commission will comprise 15 members,
appointed by The Queen on the recommendation of the Minister. The members will
be drawn from the judiciary, legal professional and lay community
Under the Constitutional Reform Act 2005 the JAC
has a responsibility to develop and implement its own selection
processes. The key statutory responsibilities are:
- to select candidates solely on merit;
- to select only people of good character;
- to have regard to the need to encourage diversity in the range of persons
available for selection for appointments.
For each vacancy, Commissioners select one candidate to
recommend to the Appropriate Authority (Lord Chancellor, Lord Chief Justice, or
Senior President of Tribunals) for appointment. The Appropriate Authority can
accept or reject a recommendation, or ask for it to be reconsidered. If he
does so he is required to provide his reasons in writing to the
Commission. He can only exercise that power once for each
candidate and cannot select an alternative candidate.
Statutory
consultation:
Sections 88(3) and 94(3) of the Constitutional Reform Act 2005 (CRA) require the Commission, as part of the selection process, to consult the Lord Chief Justice and another person who has held the post, or has relevant experience of the post, about those candidates the Commission is minded to select. These 'statutory consultees' are asked to give a view on the suitability of each candidate so referred. The Commission will consider the statutory consultation responses, together with other information about a candidate. They may decide not to follow the views expressed by the consultees, but must give reasons for doing so when making recommendations to the Lord Chancellor.
Commissioners make the final decision on which candidates to recommend to the Lord Chancellor for appointment. In doing so, they consider those candidates that selection panels have assessed as the most meritorious for the role, having been provided with information gathered on those individuals during the whole process.
When reporting its final selections to the Lord Chancellor, the Commission must reflect the comments of the statutory consultees and discuss any divergence of opinion.
Judicial
Appointments Commission in South Africa:
All judges of the higher courts in South Africa are appointed by the
President of the National Assembly on the advice of the Judicial Services
Commission. The Commission consists of 23 members.
The Commission prepares a list of nominees containing three more names
than the number of appointments to be made. The President then consults with
the President of the Court and political party leaders. The President must
advise the Commissionwith reasons if any of the nominees are unacceptable and
any appointments remain to be made. The Commission must then supplement the
original list and the President must make the remaining appointments from that
supplemented list.
The President also appoints the Chief Justice and Deputy Chief Justice
after consulting with the Commission
The appointment process in South Africa is notable for its very open and
public nature. In most jurisdictions that operate some form of commission,
details of possible nominees are kept confidential until an appointment is
made. Generally the public is not informed of the names of candidates who have
not been appointed and the details of interviews are kept confidential.
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