Beruflich Dokumente
Kultur Dokumente
Introduction:
This Bill is the 120th Constitutional Amendment Bill
If passed it would amend the Article 124 and 217 of the Constitution of India and
introduce a new article 124A
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.
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".
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.
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).
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
Whether Consultation of with the Chief
Justice of India in Articles 217(1) and 222(1)
requires consultation with a plurality of
Judges
Extent and scope of Judicial review in
transfer of Judges
Area of Concern:
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.
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.
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.
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
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.
JAC receives vacancy request from Her Majesty's
Courts and Tribunals service or the Ministry of Justice
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.
Selection decisions
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.
Report to Lord Chancellor
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 Commission with 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.
by Hepzibah Beulah
Reference:
Articles from The Hindu and Indian Express from the month of June 2013
http://jac.judiciary.gov.uk/
http://www.justice.gov.za/faq/faq-jsc.html
Supreme Court Case Laws
Judicial appointment Commission Bill 2013