27 April 2014

Facts History about Collegium system SC judges appointment procedure

Facts History about Collegium system SC judges appointment procedure

In Depth Know Supreme Court Judge Appointment Procedure Government Plans to bring JAC
and take over Judiciary Apex Court

Judiciary is one of the three wings of the State.

Though under the Constitution the polity is dual the judiciary is integrated which can interpret
and adjudicate upon both the Central and State laws.

The structure of the judiciary in the country is pyramidical in nature.

At the apex, is the Supreme Court. Most of the States have a High Court of their own. Some
States have a common High Court.

The appointment of Judges of the Supreme Court and their removal are governed by Article 124
of the Constitution of India.

Articles 125 to 129 provide incidental matters.

The appointment and removal of the Judges of the High Courts are governed by Article 217.

Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto.

Article 222 provides for transfer of Judges from one High Court to another.

So far as the subordinate judiciary is concerned, the constitutional provisions relating thereto are
contained in Articles 233 to 237.

These provisions are, of course, supplemented by the rules made by the respective Governors of
the States under the proviso to Article 309 of the Constitution.

Independence of the Judiciary:

Having regard to the importance and significance attached to the function performed by the
judiciary, the Constitution has consciously provided for separation of judiciary from the
executive.
This is the excellent feature of the Indian Judiciary, which has kept executive that is Politician
away from the Judiciary and have not given any power to Executive that is Politician.

Today Indian citizens have faith only in the Indian judiciary no one has trust in politicians.

Just because of fear no one says nothing, speaks nothing or even agrees or expresses anything.

Article 124 in the Constitution of India 1949

124. Establishment and constitution of Supreme Court

(1)
There shall be a Supreme Court of India constituting of a Chief Justice of India and, until
Parliament by law prescribes a larger number, of not more than seven other Judges

(2)
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand
and seal after consultation with such of the Judges of the Supreme Court and of the High Courts
in the States as the President may deem necessary for the purpose and shall hold office until he
attains the age of sixty five years:

Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice
of India shall always be consulted:

(a)
A Judge may, by writing under his hand addressed to the President, resign his office;

(b)
A Judge may be removed from his office in the manner provided in clause (4)

A practice had developed over the last several decades according to which the Chief Justice of
India initiated the proposal, very often in consultation with his senior colleagues and his
recommendation was considered by the President (in the sense explained hereinabove) and, if
agreed to, the appointment was made. By and large, this was the position till 1981.

Collegium of judges:
Year 1981 -82
S.P. Gupta vs. Union of India (AIR 1982 SC 149) - Judgement in this case created problems for
judiciary and Executive became Powerful

In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India
(AIR 1982 SC 149), the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled
further that the concept of primacy of the Chief Justice of India is not really to be found in the
Constitution.
It was held that proposal for appointment to High Court can emanate from any of the four
constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice
of the High Court.

This decision had the effect of unsettling the balance till then obtaining between the executive
and judiciary in the matter of appointment.

The balance tilted in favor of the executive.

Not only the office of the Chief Justice of India got diminished in importance, the role of
judiciary as a whole in the matter of appointments became less and less.

After this judgment, certain appointments were made by the Executive over-ruling the advice of
the Chief Justice of India.

Naturally, this state of affairs developed its own backlash.

Year 1993 - The Independence of Indian Judiciary was restored

In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-
on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision in
S.P.Gupta.

The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also
devised a specific procedure for appointment of Judges of the Supreme Court in the interest of
“protecting the integrity and guarding the independence of the judiciary.” For the same reason,
the primacy of the Chief Justice of India was held to be essential.

It held that the recommendation in that behalf should be made by the Chief Justice of India in
consultation with his two senior-most colleagues and that such recommendation should normally
be given effect to by the executive.

Elaborate reasons were are recorded in support of the proposition that selection of judges must
be in the hands of the judiciary in this country and how the systems prevailing in other countries
are alien to our constitutional system.

One of the judges relied upon Article 50 of the Constitution, which speaks of separation of
judiciary and executive and excluded any executive say in the matter of appointment to
safeguard the “cherished concept of independence.”

It held at the same time that it was open to the executive to ask the Chief Justice of India and his
two colleagues to reconsider the matter, if they have any objection to the name recommended but
if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the
recommendation, the executive was bound to make the appointment.

In short, the power of appointment passed into the hands of judiciary and the role of the
executive became merely formal.
The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion rendered
by a nine-Judge Bench of the Supreme Court on a reference being made by the President under
Article 143 of the Constitution.

All the basic conclusions of the majority in the 1993 decision were reaffirmed. There was,
however, some variation.

It was held that the recommendation should be made by the Chief Justice of India and his four
senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues)
and further that Judges of the Supreme Court hailing from the High Court to which the proposed
name comes from must also be consulted.

In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred
to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.

Appointment of Judges to High Courts –

Procedure for appointment of Judges of High Courts:

The procedure for appointment of Judges of the High Courts is slightly different from the one
concerning the appointment of Judges of the Supreme Court.

Clause (1) of Article 217 says that “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, as provided in Article 224, and in any other case, until he attains the age of sixty-two
years”.

A reading of this clause shows that while the appointment is made by the President, it has to be
made after consultation with three authorities,
Namely,
The Chief Justice of India,
The Governor of the State
And the Chief Justice of the High Court.

(Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice
is not required).

Just as the President is the constitutional head, so are the Governors.

However, according to the practice, which had developed over the last several decades and
which was in vogue till the aforementioned 1981 decision of the Supreme Court (S.P.Gupta), the
Chief Justice of the High Court used to make the recommendation which was considered by the
Governor of the State (Council of Ministers headed by the Chief Minister) who offered his
comments for or against the recommendation.

The matter then went to the Central Government.

At that stage, the opinion of the Chief Justice was sought and based upon such advice, the
appointment was either made or declined, as the case may be.

It may be noted that even clause (1) of Article 217 uses the expression ‘consultation’ and not
‘concurrence’.

The decision of the Supreme Court in S.P. Gupta on the meaning of ‘consultation’ applied
equally to this Article. After the decision in S.P. Gupta, the executive made quite a few
appointments to the High Courts which gave rise to a good amount of dissatisfaction among the
relevant sections including the Bar leading to the nine-Judge Constitution Bench decision of the
Supreme Court in 1993 aforementioned.

The decision laid down that the recommendation for appointment to the High Court shall be
made by the Chief Justice of the concerned High Court in consultation with his two senior-most
colleagues.

The opinion of the Chief Justice of India was given primacy in the matter and was to prevail over
that of the Governor of the State or even that of the High Court, if inconsistent with his view.

The President was of course to make the formal appointment just as in the case of a Judge of the
Supreme Court. This position was affirmed in the Third Judges case (1998 (7) SCC 139).

Why above all the laws were added in the Indian Constitution?

Why Constitution gave the importance to the Supreme Court of India?

The reason is very simple that time our politicians like Dr. Ambedkar, Alladi Krishnaswami
Ayyar and K.M. Munshi, the great political leaders did not trust the executive they knew and
understood the Indian situation.

Today also Indian situation is same nothing has changed not a 1% change has happened in India
everything is same

The requirement of consultation with not only the Chief Justice of India but with certain other
Judges at the Supreme Court and High Court level in Article 124 is an added indication of the
concern the founding fathers had with the independence of the judiciary.

Evidently, they did not trust the Executive in India to make proper appointments and hence
‘entrenched’ the requirement of ‘consultation’ in the Constitution itself expressly.

It is, therefore, perfectly consistent with the Constitution, for the Supreme Court to say, in its
1993 and 1998 decisions referred to hereinbefore, that the Chief Justice of India occupies a pre-
eminent position and that the “consultation” contemplated by the said Articles should be a real
and full consultation and further that since the Judges would be in a better position to judge the
competence and character of the prospective candidates, their opinion should prevail in the
matter of appointment.

Indeed, as pointed out hereinafter, this is also the policy adopted by the Constitution with respect
to the appointment of members of the subordinate judiciary.

They are selected by the High Court; only the formal orders of appointment are issued by the
Governor/ Government.

The above concept has given us Judges who gave excellent judgement in 2G scam, Coal Scam

Now to make the Judiciary a weak organ in Indian Democracy Government of India is
planning to change the process of appointment of Judges.

The law ministry has proposed that the setting up of a Judicial Appointments Commission
The proposed Judicial Appointments Committee (JAC) will be presided over by the

1)
Chief Justice of India

2)
Two sitting Supreme Court Judges

3)
One eminent jurists appointed by the President of India [politician controlled]

4)
Second eminent jurists appointed by the President of India [politician controlled]

5)
The Union Law Minister [politician controlled]

6)
Secretary - Department of Law and Justice. [Politician controlled]

The cabinet note says the inclusion of the Leader of the Opposition on the JAC

In the above format you can see that majority is controlled by Politicians thus after one or two
strict judges all future judges may be appointed who will praise the Politicians.

Thus we will never get to see the judgement like 2G scam, Coal Scam etc.

Just like CBI Supreme Court of India and High Court Position will became they will become
similar.
This Post is a combination of my two old post which I wrote in the past

Reality views by sm –

Sunday, April 27, 2014

Tags – Judges Appointment Procedure

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of
the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no
place in the Indian Constitution.
What does the Constitution actually prescribe? Article 124 deals with the appointment
of Supreme Court judges. It says the appointment should be made by the President after
consultation with such judges of the High Courts and the Supreme Court as the President
may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
Article 217 deals with the appointment of High Court judges. It says a judge should be
appointed by the President after consultation with the CJI and the Governor of the state. The
Chief Justice of the High Court concerned too should be consulted.
How and when did the other system evolve? 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.
How did the judiciary come to get primacy? On October 6, 1993, came a nine-judge bench
decision in the Supreme Court Advocates-on Record Association vs Union of India case —
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 CJI
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.”
How final was this? Justice Verma’s majority judgment saw dissent within the bench itself
on the individual role of the CJI. In a total of five judgments delivered in the Second Judges
case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice
Kuldip Singh went on to write individual judgments supporting the majority view. But Justice
Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself
to just two judges (as mentioned in the ruling) and can consult any number of judges if he
wants to, or none at all.
For the next five years, there was confusion on the roles of the CJI and the two judges in
judicial appointments and transfers. In many cases, CJIs took unilateral decisions without
consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion? In 1998, President K R Narayanan issued a
presidential reference to the Supreme Court as to what the term “consultation” really means
in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if
the term “consultation” requires consultation with a number of judges in forming the CJI’s
opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In
reply, the Supreme Court laid down nine guidelines for the functioning of the coram for
appointments/transfers; this came to be the present form of the collegiums.
Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of
the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of
the highest judiciary over the executive. This was the “Third Judges Case”.
What are the arguments against the collegium system?
Experts point to systemic errors such as:
* The administrative burden of appointing and transferring judges without a separate
secretariat or intelligence-gathering mechanism dedicated to collection of and checking
personal and professional backgrounds of prospective appointees;
* A closed-door affair without a formal and transparent system;
* The limitation of the collegium’s field of choice to the senior-most judges from the High
Court for appointments to the Supreme Court, overlooking several talented junior judges and
advocates.
What moves were taken to correct these?
The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I,
II and III’ recommended two solutions:
* To seek a reconsideration of the three judgments before the Supreme Court.
* A law to restore the primacy of the Chief Justice of India and the power of the executive to
make appointments.
What is the suggested alternative to the collegium?
A National Judicial Commission remains a proposal. The Constitution (98th Amendment)
Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the
constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the
Supreme Court as its members. The Union Law Minister would be a member along with an
eminent citizen to be nominated by the President in consultation with the Prime Minister.
The Commission would decide the appointment and transfer of judges and probe cases of
misconduct by judges, including those from the highest judiciary.