By: Jivesh Jha
LLB Student at UTU, Dehradun
Abstract:
The
collegiums system of appointing the judges for the higher judiciary has almost
breathed its last, giving a new life to the newly notified JAC this year. With
the introduction of JAC at the hands of Narendra Modi-led ‘popular’ government,
the double decade history of collegiums system is all set to be thrown in cold
storage. However, the governments’ move to scrap to the collegiums system has
raised many eyebrows, leaving the huge media coverage in the wake of heated
argument among the considerable sections of society. The endorsement of present
JAC is a planned ploy of the incumbent government to foil the effective
administration of justice and moreover an attempt to play with the spirits of
the independency of judiciary. After going through this hotcake, I came to
learn that if the JAC takes a course, the Narendra Modi-led government would be
always remembered in history for a no good reason; but for calumniating
political interest in appointment of judges of higher courts, including the
highest court of land in India.
Acknowledgement:
I would like to
express my profound gratitude to my respected Teacher and Supervisor of this
mini-project Dr Sharafat Ali, for his scholarly and insightful supervision,
without which the accomplishment of the present mini-research work would have
been impossible. I would like to thank my respected teacher for his intuitive suggestions,
and regular lectures.
Subsequently, I
would also like to pay gratitude to the –google guru and Dr JN Pandey’s
commentary on Constitutional Law—for helping me to collect the data.
Once again I would
like to thank my teacher for his motivational lectures and regular classes. It
would have been an uphill task for me to complete this project had I not
attended the classes regularly.
Finally, I would
like to remember my Parents and almighty without whose blessings nothing would
have been possible.
Introduction:
The
collegiums system of appointing the judges for the highest court of the land in
India has almost become a thing of past. With the introduction of National
Judicial Appointment Commission (NJAC)-2014, the long stayed collegiums system
breathed its last, giving the life for the new notion to appoint the judges of
the Apex court.
The
Judicial Appointments Commission Bill defines the establishment of the proposed
body to recommend appointment and transfer of judges of the Supreme Court and
the high courts. It has been provisioned that the newly formed JAC will be
headed by the Chief Justice of India (CJI) and will have two Supreme Court
judges, the Law Minister and two eminent citizens - -to be selected by a panel
comprising the Prime Minister, CJI and Leader of the Opposition in Lok Sabha -
as its members. However, the Secretary of Justice in the Law Ministry will be
the convener of JAC.
Meanwhile,
echoing about the independency of judiciary as a need of hour, the disgruntled
judiciary pronounced in a contrary gesture. By adopting a hard-gloved tactics,
the honorable Supreme Court came with decisions, which more or less was an
apparent attack to the competent legislature. At a time when the legislative
body kept their eyes glued-on over the working nature of judiciary, the
pronouncements of the Apex court in a consecutive three cases made them bolt.
The legislative body was not much happy with the decisions of the court.
However, the judiciary was pledged to endorse such a framework which could
evaporate the extraordinary intervention of the legislative body and moreover
the say of union cabinet.
The
practice of appointing judges started after 1993, replacing the system of
government picking judges for higher judiciary comprising the Supreme Court and
High Courts. The move to set aside the 1993 Supreme Court judgement, which led
to the collegium system, required a constitutional status. In the case of Supreme Court
Advocates-on Record Association vs Union of India – 1993, a
nine-judge constitutional bench has held with the majority of 7:2 that the
president will always consult the CJI while appointing the judges for the Apex
court. More, the President will act or function in accordance with the
consultation of the CJI. It was further held that the CJI will recommend the
names of judges with suggestions of two seniormost judges. It was also held
that in order to appoint CJI, the president will always appoint the seniormost
judge as CJI.
Firstly the
union cabinet used to hold the absolute power in appointment and the transfer
of judges of the higher courts. However, with this pronouncement, the union
cabinets’ long stayed power went in vain. Nevertheless, the dissident union
cabinet took initiative to revive their energy by endorsing the controversial
JAC for appointing the judges. And, yes they succeeded in this regard. Though
its’ not a healthier symptom for the independency of judiciary, the popular
government led by Narendra Modi and Shiv Shankar Prasad as Union Law Minister
did not leave even a single stone unturned to make sure their victory.
The
opacity of the collegium system and allegations of bias are fast losing its
support and the government of the day is striking while the iron is hot. The Constitutional
Amendment Bill gives a JAC the powers of appointing judges to the Supreme Court
and the High Courts.
JAC: Composition
* Chief Justice of
India (Chair)
* 2 senior most SC
judges
* Union Law Minister
* 2 people nominated by
collegiums, consisting of PM, CJI and Leader of Opposition in Lok Sabha
Yesteryears’ Collegiums
System
· The
judiciary used to hold absolute power
· A
five-member team, where 4 seniormost judges of SC as members plus CJI
· Seniormost
judges appointed as CJI by the President
The
present paper deals with an analysis on whether the the appointment of judges
in higher judiciary made by JAC is a healthier symptom for the independence of
judiciary or not. The first part of the paper would give introduction about the
newly notified Act-- JAC. The subsequent part of the paper would shade light on
the long stayed and much travelled road of collegiums system. Meanwhile, the
paper would also offer a vivid picture on the comparative analysis between the
yesteryears’ Collegiums system and newly notified NJAC. Finally, the paper
would give a conclusion, underscoring the call for of independence of judiciary
a need of hour.
JAC Bill: A Legislative
Approach
While
the PM Narendra Modi-led cabinet came up with a new Bill in the name of
securing so called transparency in appointing the judges of higher judiciary, a
large section of society raised their eyebrows. For some such move of the
government is healthier, while for some its’ a planned game to foil the
independency of judiciary. However, a large chunk of society remained skeptical
with the new Bill, expressing their serious concern over it.
The
Judicial Appointments Commission defines the establishment of the proposed body
to recommend appointment and transfer of judges of the Supreme Court and the
high courts.
The
proposed JAC will be headed by the Chief Justice of India and will have two Supreme
Court judges, the Law Union Minister and two eminent persons- to be selected by
a panel comprising the Prime Minister, CJI and Leader of the Opposition in Lok
Sabha - as its members.[1]
Secretary (Justice) in the Law Ministry will be the convener of JAC. According
to the bill, while new Article 124 A of the Constitution will define the
composition of JAC, Article 124 B will define its functions.[2]
In
a major political victory for the Narendra Modi government, the Rajya Sabha on
August 14, 2014 passed the “landmark” National Judicial Appointments Commission
Bill, 2014, which was unanimously cleared by the Lok Sabha. The Bill was passed
by a voice vote in Rajya Sabha following a detailed discussion on the
government`s proposal to scrap the existing collegium system for appointment of
judges in higher judiciary. A Constitution Amendment (121st) Bill to facilitate
the establishment of a Commission to appoint judges to higher judiciary was
also passed by majority in the Upper House.
The
two measures were taken up separately after questions were raised by members
over legislative competence of the House amid apprehensions that it could be
struck down by the judiciary as `ultra vires`. A determined government asserted
that Parliament is supreme and competent enough to enact laws and that it has
no intention of transgressing on independence of the judiciary through the new
law.[3]
The
Union Law Minister Ravi Shankar Prasad underlined that the new measure of
appointing judges to Supreme Court and High Courts will come into effect only
after ratification of the Constitution Amendment Bill by 50 percent state
assemblies. The process could take up to eight months. After ratification, the
government is supposed to send it to the President for his approval. With this
step, the collegium system of judges appointing judges will be changed with a
six-member Commission headed by Chief Justice of India making the appointments
and transfers. However, the Bill has already notified in April this year.
The bill was passed to replace the
existing collegium system for appointing judges.
A batch of petitions had been filed
by various bar associations, NGOs and individuals challenging the validity of
the commission on the ground that it affected the basic structure of the
Constitution, which had accorded primacy to the Chief Justice of India in the
appointment of judges to keep it free from political and executive influence.
In responding over the controversial
Bill, a three-judge bench of Justices A.R. Dave, J Chelameshwar and Madan B. Lokur,
however, had said last year that the whole thing looks like an unworkable
situation, particularly Section 5 of the NJAC Act on the appointment of the
future Chief Justice of India.[4]
According to Section 5(1), "the
commission shall recommend for appointment the senior-most judge of the Supreme
Court as the Chief Justice of India if he is considered fit to hold the office.
"Provided that a member of the commission, whose name is being considered
for recommendations, shall not participate in the meeting."
At the time of discussion the then
Justice Chelameshwar pointed out that a peculiar situation might arise. If the
senior-most judge is not considered fit to be the CJI, the next judge in
seniority will have to be considered for elevation. But then even that second
senior-most judge -- because of the provision in Section 5 -- cannot be a
member of the NJAC since his own appointment is under consideration. In the
process, the fourth and fifth senior-most judges will have to be inducted in
the NJAC. The whole thing looks like an unworkable situation, Justice
Chelameshwar further said.[5]
However, the government had already
asserted that the appointment of judges to the high courts and the Supreme
Court by the NAJC would strengthen the independence of judiciary, rather than
weakening it. Nevertheless, their claim has raised many eyebrows as it is
expected that it would certainly invite political intervention in judiciary in
a broad daylight. Moreover, it may invite collision between judiciary and
legislature.
After going through the heated
arguments, what I felt that to some extent it’s a war between cat and rat for a
meal. The government in the name of mandate wants to make provisions as fit for
their ideology, while the dissident judiciary sings a different music.
The
Validity & Practicality of NJAC
The considerable section of society
is divided over the new Act. The jurists, eminent media persons, judges, academia
and among others don’t share unanimity of opinion in this regard. For some it’s
a noble idea, while for some it’s a planned ploy to put the independency of
judiciary in suspended animation.
Confident of ensuring the Act as the
best platform for appointing judges in higher judiciary, the Union Law Minister
Shiv Shankar Prasad had said that the government favours independence of
judiciary but the "sanctity" and "supremacy" of Parliament
is equally important as it reflects aspirations of the people.
The government on April 13, 2015
notified a law and a constitutional amendment establishing the National
Judicial Appointments Commission (NJAC), bringing an end to the collegium
system that has allowed a small group of judges to appoint judges to higher
courts for over two decades.
The development came just two days
before the Supreme Court is to begin hearing the constitutional validity of the
law and the amendment—the NJAC Act and the related constitutional amendment—on
15 April.
A three-judge bench of the apex court on
7 April referred several petitions challenging the constitutionality of the
government move to a five-judge bench. It said that the petitions had raised
“substantial questions of law as to the interpretation of the Constitution”
that needed to be heard by a constitution bench of five judges.
But it refrained from ordering a stay on
the law, although the petitioners had claimed the move to establish NJAC
represented an attack on the independence of the judiciary. However for the former
law minister and Member of Parliament Ram Jethmalani NJAC
is “a fraud on the Constitution.” Under the collegium system, neither the
legislature nor the executive had any role in the appointment of judges to high
courts and the Supreme Court. Instead, the matter was decided by small
groups—or collegiums—of judges, a system that finds no mention in the
Constitution.
“The notification has happened. The
court will test the laws. But one thing is clear—as of today, the collegium
system comes to an end,” said attorney general Mukul Rohatgi[6].
On
the contrary, Centre for Public Interest Litigation (CPIL), on 13th February 2015,
had filed a PIL in the Supreme Court challenging the latest
Constitutional Amendment creating National Judicial Appointments Commission for
the appointment of Supreme Court and High Court Judges. CPIL has argued that it
violates the basic structure of the Constitution since only a full-time body
which functions with transparency can make proper appointments. The current
NJAC is neither full time nor transparent.[7]
Likewise, the
petitioners, including the Supreme Court Advocates-on-record Association and
the Bar Association of India, have challenged the national judicial
appointments commission law because it compromises the independence of the
judiciary. Interestingly, the Supreme Court Bar Association, which also sought
to be made party to the case, was in favour of the new commission, and said
that it was a “brilliant mixture” of the judiciary, executive and civil
society.
The
government is confronting what has been described as a "constitutional
stalemate," with the Chief Justice of India telling Prime Minister
Narendra Modi that he will not be a part of the new system of appointing judges
until the Supreme Court decides on its validity.
In
a significant move from the Apex Court on April 25, 2015 the Chief Justice of
India (CJI) HL Dattu has told PM Modi in his letter on Saturday that until
there is a court ruling, he will not attend meetings of the Commission, which
replaces the two decade-old collegium system of judges appointing judges and
widens the process to include the government. The chief justice has also
refused to be in the panel to select two eminent persons who are to be in the
six-member commission.
"In
response to the invitation from your office to attend meeting to select two
eminent persons, I have to say that it is neither appropriate nor desirable for
me to attend the meeting or part of National Judicial Appointments Commission
till the Supreme Court decides its validity," Justice Dattu wrote to PM
Modi.[8]
Reports
suggest that if the top judge does not change his mind, then at least 12 judges
could be out of a job within the next two months. In the Supreme Court on April
20, Attorney General Mukul Rohatgi, arguing on behalf of the government, said
the Constitution bench must direct the chief justice to attend the meetings.[9]
After Justice Dattu's letter, the new
commission would be caught in a constitutional stalemate, he pleaded. The
appointments commission, Mr Rohatgi added, can function even without the two
eminent members. The other four members of the Commission are the Chief
Justice, two senior Supreme Court judges and the Law Minister[10]. The
constitution bench said that since the tenure of one of the judges ends in May,
the court may pass orders if the new commission doesn't function because of the
Chief Justice's refusal to join it.
Meanwhile,
in a similar breath, the Attorney Genral of India Rohtagi said last year in an
open group discussion that appointing judges by the NJAC will strengthen the
independence of the judiciary, rather than weakening it.[11]
Nonetheless, in contrary gesture, the
Supreme Court judges came down heavily on the government’s claim. Expressing
their dissatisfaction over the Bill, some of the justices openly criticized the
government’s strategy. Among them, justice Chelameshwar was skeptical over the
practicality of the said Bill. He said last year that the whole thing looks
like an unworkable situation.
Similarly, the opposition parties had
condemned the move of the government. They are of the view that it would offer
collision between judiciary and legislative body. The political parties have
clarified that the Narendra Modi-led government has come up with such Bill to
influence the working nature of judiciary.
After the bill becomes law and takes
a course, the government will have a say in the appointment of Supreme Court
and High Court judges after 21 years. Once the Commission is formed, 266
vacancies for judges in 24 High Courts are likely to be filled expeditiously.
The Supreme Court, which has a sanctioned strength of 31, also has one vacancy.
The appointment of new judges is also expected to speed up the backlog of legal
cases in courts across the country.
Collegium
System: A Judicial Approach
Though as soon the JAC Bill becomes the law, the collegiums
system of appointing judges in higher courts become a thing of past, it is of
worth to study it. It used to be comprised of as many as five members,
including CJI plus 4 seniormost SC judges. Such a competent platform used to
appoint the judges in higher judiciary.
The highest court of the land in India had observed
contrary views in the three leading cases in this heated debate.
·
First
Judges' Case: Executive has primacy
·
Second
Judges' Case: CJI has primacy
·
Third
Judges' Case: Designed collegium system
In
the case of Sakal Chand Seth Case (AIR 1997), the Apex court had held
that the word used under Article 124 (ii) has no effect that the President will
work as per consultation. The President was not held to be bound to work in
accordance with the consultation.
However,
in SP Gupta v. Union of India (AIR 1982), the Apex court of a
constitutional bench unanimously held that the judges will be appointed by the
President with the aid and advice made by the council of ministers. Moreover,
the scenario changed afterwards.
In
the case of SC Advocate on Record Association v. UOI (AIR 1993), a
nine-judge constitutional bench of the SC had held with a majority of 7:2 that
the President will always consult the CJI while appointing the judges for the
Apex court. Moreover, the CJI will recommend the names of judges with the
suggestions of the two seniormost judges. It has also been held that in order
to appoint the CJI, the President will appoint the seniormost judge of SC as
CJI.
Firstly,
cabinet used to hold an absolute control over appointing the judges of the SC.
However, with the pronouncement of the above case, the absolute power on
appointing judges of the higher judiciary shifted in the judiciary itself.
Similarly,
in Re reference case (1999), popularly known as Judges Transfer Third Case,
the nine-judge bench of SC unanimously held that a collegiums consisting of
four seniormost judges plus CJI would have a role while recommending the names
for the SC judges. The recommendation must come in writing form from the
judges. It has also been held that as soon the recommendation of four judges
out of five, including CJI, made it is sent to the President for nod.
Meanwhile,
in the matter of transfer of judges of one High Court to another, the
collegiums of SC will consist of:
·
CJI plus 4 judges of SC
·
Chief Justice of one HC
·
Chief justice of another HC, where the
judges is going to be transferred
For
example, if one of the Allahabad High Court judges wishes to get transferred
into Madras HC, there would be consultation among CJI & four seniormost
judges of SC, Chief Justice of Madras HC, and Chief Justice of Allahabad HC;
and afterwards he will be transferred.
Collegiums
System and NJAC Act: A Comparative Analysis
The
collegiums system has a history of two decades in appointing the judges of the
higher courts in India. Though this system vested a blanket power under the
judiciary to appoint the judges of the higher courts, including Apex Court, it
raised many controversies—especially about the corruption within the judiciary
in performing their duty. However, it was free from political intervention—both
at appointment level and at decision making level.
Nevertheless,
the newly enforced NJAC envisages that there shall be six members commission
for appointing the judges of the higher courts. It is also provisioned that the
CJI shall head the commission and the incumbent Union Law Minister shall be
also a member there. In one way or the other, the commission as such is highly
dominated with political interest of the ruling party. There would greater
possibility political intervention in appointment and transfer of judges of the
higher courts. If the NJAC prevails over the collegiums system, it cannot be
ruled out that a day would not come when the judges of the higher courts pronounce
verdicts in the line with political direction—in an apparent bid to appease the
political establishment of the country. So as a law student, what I firmly
believe that NJAC is disastrous for the judicial accountability and
transparency.
Defending
the government action, Attorney General Mukul Rohatgi told a three-judge bench:
“I dare say that the job of the judges is to decide cases. It is not their job
to appoint their brethren. It cannot be said to be a facet of the independence
of judiciary that judges must appoint fellow judges.[12]”
Earlier
he had argued that collegiums system gave a blanket power to judiciary and
under exercising their power under it they became corrupt in many pretexts,
which is evident before all.
However,
it can be argued that the AG is echoing the voice of the government and it can
also be claimed that he is working at the behest of the ruling party and their
popular government. The corruption is like a worm, it has no identity as such
and it does not breed with the name or technicalities. It breeds anywhere and
at anytime. Not only in judiciary, corruption is everywhere. So in the name of
ending corruption, how many new Acts would government bring to replace the
earlier ones? Could government forecast for sure that there would be no
corruption and political intervention within the judiciary after the
enforcement of the NJAC?
Moreover,
I am not giving a clean chit to collegiums system. Neither I am advocating for
the things of past. However, I have strong reservation over the NJAC Act which
is sponsored ploy of the Narendra Modi-led government to influence the
judiciary in a broad daylight.
Even
as the senior advocate Ram Jeth Malani has expressed his reservation
over the government’s move, saying it as a fraud on judiciary. He had also
claimed that NJAC would certainly politically influence the judiciary. However,
the Union Law Minister sing a different music.
According
to the government, the judges should be appointed in the line with political
mandate and the incumbent government should also have a say. He has argued that
parliament is supreme as it represents the will of the people. However, his
claim was misplaced as it was just like a tree with hollow trunk. In India,
constitution is supreme. However, in England, parliament is supreme. His claim
could best fit in England had he been in the same portfolio there.
In
one way or the other, the collegiums system of appointing the judges is a road
more travelled in India. It limited the influence of politics by taking
absolute control over the whole process. However, the alarmist NJAC is road on
which both the judiciary and union cabinet travel in a parallel manner, leaving
a chance of confrontation. The judiciary is not place where the political
ideology is welcomed and nurtured; its’ a place where the justice is secured in
a reasonable, just and out of good faith manner.
There
is greater of possibility of the Act getting struck-down by the Apex Court
sooner or later. However, if the Act prevails, a day would come when the
judiciary would run its business under remote control of the Union
Cabinet.
Conclusion:
The
NJAC is all set to succeed the long stayed collegiums system. The collegiums
has become a thing of the past. The NJAC is a legislative approach for
appointing the judges in higher judiciary, including the highest court of land
in India. The move of competent legislature to endorse such Act has raised many
eyebrows as a considerable chunk of society takes it as alarmist.
Amid
widening political intervention in every sector, the Narendra Mod-led
government didn’t leave even a single stone unturned to make sure their victory
by drizzling political influence even under the judiciary. The independence of higher
courts is maintained on the bedrock of free and fair judiciary. However, the
claims made by the Narendra Mod-led cabinet that people’s representative should
also have their say in judiciary as the parliament is supreme is a misplaced
reality—having remotest possibility of connection with truth. In fact,
constitution is supreme in India—not necessarily parliament.
While
underlining the JAC Bill last year, the Union Law Minister Shiv Shankar Parsad
reiterated that parliament is supreme in India as it represent the mandate and
hence on this absolute ground the legislative body should have a say in
appointment of judges in judiciary. However, his argument could be rightly
tuned in England, where parliament is supreme—had he been in the same portfolio
as of India. More, in India constitution is supreme. So his claim is deviated
from reality and does not reflect a complete picture.
The
small group of judges’ collegiums system breathed its’ last with the
introduction of the Judicial Appointments Commission (JAC), which defines the
establishment of the proposed body to recommend appointment and transfer of
judges of the Supreme Court and the high courts. It has been provisioned that
the newly formed JAC will be headed by the Chief Justice of India (CJI) and
will have two Supreme Court judges, the Law Minister and two eminent citizens -
-to be selected by a panel comprising the Prime Minister, CJI and Leader of the
Opposition in Lok Sabha - as its members. However, the Secretary of Justice in
the Law Ministry will be the convener of JAC.
From
the above paragraph, a vivid picture comes in our mind that the to be-JAC would
be fully dominated with politics and the interest behind it. No doubt it’s a
sponsored ploy to harm the independency of judiciary in a broad daylight. It
would be iron to claim that there was cent percent honesty in appointment and
transfer of judges in yesteryears. However, it is of worth claiming that in
yesteryears there was no political intervention as such.
After
going through the heated arguments, what I felt that to some extent it’s a war
between cat and rat for a meal. The extraordinarily clever government in the
name of mandate wants to make provisions as fit for their ideology, while the
dissident judiciary sings a different music. In nutshell, the introduction of
NJAC is an attack on the independency of judiciary at the hands of parliament.
References:
http://indianexpress.com/article/india/india-others/judges-job-to-decide-cases-not-appoint-brethren-govt-to-sc/
(Retrieved on 24th April 2015, Time: 16:45)
http://judicialreforms.org/latest-news-menu/813-pil-in-sc-challenging-national-judicial-appointments-commission.html
(Retrieved on 20th April 2015, Time: 19:45)
http://www.ndtv.com/india-news/as-chief-justice-writes-to-pm-modi-judges-appointment-panel-in-trouble-758487
(Retrieved on 30th April 2015, Time: 14:45)
http://www.livemint.com/Politics/3yoMmFXwyC7I4I3Nj60HZM/National-judicial-appointments-Act-notified-collegium-syste.html
(Retrieved on 25th April 2015, Time: 21:45)
http://www.telegraphindia.com/1150311/jsp/frontpage/story_8054.jsp
(Retrieved on 24th April 2015, Time: 16:45)
http://www.ndtv.com/india-news/collegium-system-of-appointing-judges-here-to-stay-551675
(Retrieved on 30th April 2015, Time: 17:45)
http://zeenews.india.com/news/nation/parliament-approves-bills-to-scrap-collegium-system-of-appointing-judges_954475.html
(Retrieved on 30th April 2015, Time: 16:45)
http://www.ndtv.com/india-news/collegium-system-of-appointing-judges-here-to-stay-551675
(Retrieved on 30h April 2015, Time: 16:55)
http://zeenews.india.com/news/nation/parliament-approves-bills-to-scrap-collegium-system-of-appointing-judges_954475.html
(Retrieved on 30th April 2015, Time: 21:45)
[2] Ibid
[3] http://zeenews.india.com/news/nation/parliament-approves-bills-to-scrap-collegium-system-of-appointing-judges_954475.html
[5] Ibid
[10] Ibid
[11] Ibid
