Dc Readers
Dc Readers
Supplementary Study material for classroom program
73
Classes by Dipin Damodaran and Chandan Mittal
21. APPOINTMENT OF JUDGES 1. Recent developments a) SC in October 2015, declared both the constitutional amendment act and NJAC act as “unconstitutional and void” b) Govt notified NJAC in April 2015 2.What is the NJAC? The National Judicial Appointments Commission (NJAC) was a constitutional body proposed to replace the Collegium system of appointing judges. 3.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. The system was evolved through Supreme Court judgments in the Three Judges Cases A) S.P. Gupta case (December 30, 1981) or the First Judges Case B) Supreme Court Advocates on Record Association versus Union of India or the Second Judges Case(October 6, 1993) C) In Special Reference case of 1998 or the Third Judges Case (October 28, 1998). (Three judge case is explained under point no 5) 4. What does the Constitution actually prescribe? - Article 124 of the Constitution empowers the President to appoint judges of the higher judiciary. The relevant part of Article 124(2), inter alia, provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice shall always be consulted” by the President 5. Changing interpretation of the expression “...Shall always be consulted..” A) Interpretation in first judges case The S P Gupta case (December 30, 1981) is called the "First Judges Case". In this case SC 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. B) Changed interpretation - “CONSULTATION” became “CONCURRENCE” in Second and third judges case The First Judge case judgement was called in for reconsideration in what is called the ‘Second Judges Case’. The decision by a nine-judge bench in the Second Judges case in October 1993 led to the creation of 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 appointments. It overturned S P Gupta case, saying: “The role of the CJI is primal… because this being a topic within the judicial family, the executive cannot have an equal say. Third Judges case: In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down the guidelines for the functioning of the quorum for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. 6. Why is Collegium system being criticised? 1) The Central government has criticised it saying that it has created an imperium in imperio (empire within an empire) within the Supreme Court. 2) Judges are today chosen on undisclosed criteria in largely unknown circumstances. Justice Ruma Pal [a former woman Supreme Court judge] remarked that it is one of the best-kept secrets in the country 3) The current method of appointment is two decades old and there is little evidence that the #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Supplementary Study material for classroom program
Dc Readers
74
Classes by Dipin Damodaran and Chandan Mittal
change in the appointment process in the last two decades has enabled the higher judiciary to become a forum for principled rather than partisan decision-making or a meritocratic institution representative of India’s diversity 4) Against the principle of checks and balances 5) It is Unaccountable, and excludes the executive government from any substantive say 6) If you look at the list of various high court and Supreme Court judges who have been appointed over the last couple of decades, it indicates that mostly elite have been nominated to be appointed as judges. 7) The higher judiciary should reflect the social reality and diversity of the country to be able to understand the complex problems associated with women and minorities. 8) AG in SC argued that there were many incidents of “bad appointments” 9) Nowhere in the world a judiciary appoints its own brethren, yet it happens in India 10) It also resulted in inordinate delay in the disposal of cases and pendency of a large number of cases in the higher judiciary 7. How and when was the NJAC established? - The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] - Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. - The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015. 8. Who all were the Members of NJAC? - It consisted of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. - These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination. 9. If politicians are involved, what about judicial independence? - The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. - Once a proposal is vetoed, it cannot be revived. - At the same time, the judges require the support of other members of the commission to get a name through. Independence of Judiciary - Anything that destroy judicial independence violate the basic structure of the Constitution. 10.NJAC model- Advantages 1) It does not give primacy on the executive 2) Also no one individual or group has primacy 3) Gives independence to the appointments 4) Prevents nepotism 5) Principle of checks and balances 11. SC Judgement in Fourth Judges case 2015 “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” . The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.”
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Dc Readers
Supplementary Study material for classroom program
75
Classes by Dipin Damodaran and Chandan Mittal
12. Chief Justice of India OR Chief Justice of Supreme Court: Implication on NJAC - In the course of the hearing in the NJAC case, Justice Kurian Joseph, asked whether Chief Justice is Chief Justice of India or Chief Justice of Supreme Court. Constitution of India makes both the references at different places In Article 124 of the Constitution refers to ‘the Chief Justice of India’, while the ‘Form of Oaths and Affirmations’ in the Third Schedule uses the term ‘Chief Justice of the Supreme Court of India’. The new NJAC law has relegated CJ to one among six members of the Commission. The moot question is whether it has diminished the role of CJI to CJ of SC.
13. What is the role of the Chief Justice in the appointment process. - The collegium was an institution in which the CJ’s consultative role was encapsulated. - If the NJAC, in which the Chief Justice and two senior-most judges represent the judiciary, while two ‘eminent persons’ and the Union Law Minister represent the executive, replaces the collegium, does the CJ lose his constitutional identity as a necessary ‘consultee’, and his role diminished to that of an ordinary member in a multi-member commission? 14. Ambedkar’s view He objected to give CJI veto power in the process of appointment 15. Suggestions for reform Suggestions by AP Shah( former Chief Justice, Delhi High Court, and Former Chairman, Law Commission) 1) Publishing clear selection rules and guidelines- This also entails abandoning the unwritten informal rules that presently hold sway. Under the informal “seniority” norm, in place since 1993, High Court Chief Justices are routinely elevated to the Supreme Court on the basis of seniority, rather than on merit or other objective qualifications, leading to mediocrity and a decline in judicial standards. Another unwritten rule — the minimum age for appointments to High Courts (45 years), and the Supreme Court (55 years) — has perpetuated the misconception that age and maturity are necessarily tied together. The Law Commission of India’s 14th Report (1958) on judicial reforms observed that young judges would bring a freshness and vigour to constitutional courts. The appointment of older judges, particularly in the Supreme Court, comes with shorter tenures, which threatens the Court with institutional incoherence and consequent ineffectiveness. 2)“zone of consideration” - Instead, the collegium could fix a zone of consideration while short listing candidates for elevation, for example, by considering the senior most five judges in High Courts. This “zone” should also apply for elevating district judges to High Courts. The notion of a legitimate expectation of a judicial career has no place in appointments to superior courts. Instead, merit should be the main criteria for selection, which will change the incentives for judges, and directly impact the quality, speed and efficacy of adjudication. 3) A consultative body as suggested by Justice Khehar would be useful, which could include distinguished jurists, leading lawyers, or judges outside the collegium, to assist the collegium in scrutinising potential candidates. 4) Make it representative - A truly democratic judiciary must represent the people it judges. Diversity is as also from backward important as merit and ability. This means not just representation from women, but classes and minorities. 5) The collegium must become fair, transparent and open, to counter allegations of opaqueness and lack of accountability. When a vacancy arises, the collegium must, in collaboration with the consultative body, shortlist candidates for interview. Guidelines must be laid down for consultation, acceptance of nominations, and the mechanism for shortlisting. #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Supplementary Study material for classroom program
Dc Readers
76
Classes by Dipin Damodaran and Chandan Mittal
The collegium must conduct interviews with the solitary objective of searching for the most meritorious and outstanding candidate. Provisional selections should be published to enable any material or adverse information to surface. Strict timelines must accompany the entire process from shortlisting to recommendation. 6) Other measures, such as making the collegium’s deliberations publicly available; and annual reporting of vacancies, appointments, number of candidates interviewed, time taken for appointments, and so on, are also important. This requires data management skills and administrative and logistical capacity, for which a secretariat could be established, to ensure that the appointments calendar and processes are strictly followed, and records are maintained and placed in the public domain in timely fashion. 7) Two other issues are important. First, the different retirement ages of judges in High Courts (62 years) and the Supreme Court (65 years) encourages sycophancy and unhealthy competition amongst prospective appointees. It must be removed, and brought at par (ideally, this may go up to 70). Second, many judges receive post-retirement appointments from the government (the largest litigant), thus incentivising sitting judges to favour with the government of the day. A 2-3 year cooling off period must be introduced, to ensure that judges are not independent only in fact, but are also seen as being independent of the executive. Ideally, such post-retirement appointments, say to a Tribunal or to a Commission, should be made by a panel specially constituted for this purpose. 16.Other suggestion 8) Introduction of the All-India Judicial Services (AIJS ) 17. Other countries UK - It consists of the SC President, his deputy and one member each appointed by the JACs of England Scotland and Northern Ireland. The JACs comprise lay persons, members of judiciary and the Bar. USA- Justices are nominated by the President and confirmed by the US Senate. Senate Judiciary Committee holds hearings and votes on whether nominations should go to the full Senate. South Africa- The South African Judicial Services Commission recommends the list of candidates to be appointecd as Supreme Court judges. All other judges are appointed on its advice.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Supplementary Study material for classroom program
73
Classes by Dipin Damodaran and Chandan Mittal
21. APPOINTMENT OF JUDGES 1. Recent developments a) SC in October 2015, declared both the constitutional amendment act and NJAC act as “unconstitutional and void” b) Govt notified NJAC in April 2015 2.What is the NJAC? The National Judicial Appointments Commission (NJAC) was a constitutional body proposed to replace the Collegium system of appointing judges. 3.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. The system was evolved through Supreme Court judgments in the Three Judges Cases A) S.P. Gupta case (December 30, 1981) or the First Judges Case B) Supreme Court Advocates on Record Association versus Union of India or the Second Judges Case(October 6, 1993) C) In Special Reference case of 1998 or the Third Judges Case (October 28, 1998). (Three judge case is explained under point no 5) 4. What does the Constitution actually prescribe? - Article 124 of the Constitution empowers the President to appoint judges of the higher judiciary. The relevant part of Article 124(2), inter alia, provides that “in the case of appointment of a judge other than the Chief Justice, the Chief Justice shall always be consulted” by the President 5. Changing interpretation of the expression “...Shall always be consulted..” A) Interpretation in first judges case The S P Gupta case (December 30, 1981) is called the "First Judges Case". In this case SC 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. B) Changed interpretation - “CONSULTATION” became “CONCURRENCE” in Second and third judges case The First Judge case judgement was called in for reconsideration in what is called the ‘Second Judges Case’. The decision by a nine-judge bench in the Second Judges case in October 1993 led to the creation of 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 appointments. It overturned S P Gupta case, saying: “The role of the CJI is primal… because this being a topic within the judicial family, the executive cannot have an equal say. Third Judges case: In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down the guidelines for the functioning of the quorum for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. 6. Why is Collegium system being criticised? 1) The Central government has criticised it saying that it has created an imperium in imperio (empire within an empire) within the Supreme Court. 2) Judges are today chosen on undisclosed criteria in largely unknown circumstances. Justice Ruma Pal [a former woman Supreme Court judge] remarked that it is one of the best-kept secrets in the country 3) The current method of appointment is two decades old and there is little evidence that the #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Supplementary Study material for classroom program
Dc Readers
74
Classes by Dipin Damodaran and Chandan Mittal
change in the appointment process in the last two decades has enabled the higher judiciary to become a forum for principled rather than partisan decision-making or a meritocratic institution representative of India’s diversity 4) Against the principle of checks and balances 5) It is Unaccountable, and excludes the executive government from any substantive say 6) If you look at the list of various high court and Supreme Court judges who have been appointed over the last couple of decades, it indicates that mostly elite have been nominated to be appointed as judges. 7) The higher judiciary should reflect the social reality and diversity of the country to be able to understand the complex problems associated with women and minorities. 8) AG in SC argued that there were many incidents of “bad appointments” 9) Nowhere in the world a judiciary appoints its own brethren, yet it happens in India 10) It also resulted in inordinate delay in the disposal of cases and pendency of a large number of cases in the higher judiciary 7. How and when was the NJAC established? - The NJAC was established by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] - Alongside, the Parliament also passed the National Judicial Appointments Commission Act, 2014, to regulate the NJAC’s functions. Both Bills were ratified by 16 of the State legislatures and the President gave his assent on December 31, 2014. - The NJAC Act and the Constitutional Amendment Act came into force from April 13, 2015. 8. Who all were the Members of NJAC? - It consisted of six people — the Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. - These eminent persons are to be nominated for a three-year term by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha, and are not eligible for re-nomination. 9. If politicians are involved, what about judicial independence? - The judiciary representatives in the NJAC -- the Chief Justice and two senior-most judges – can veto any name proposed for appointment to a judicial post if they do not approve of it. - Once a proposal is vetoed, it cannot be revived. - At the same time, the judges require the support of other members of the commission to get a name through. Independence of Judiciary - Anything that destroy judicial independence violate the basic structure of the Constitution. 10.NJAC model- Advantages 1) It does not give primacy on the executive 2) Also no one individual or group has primacy 3) Gives independence to the appointments 4) Prevents nepotism 5) Principle of checks and balances 11. SC Judgement in Fourth Judges case 2015 “It is difficult to hold that the wisdom of appointment of judges can be shared with the political-executive. In India, the organic development of civil society, has not as yet sufficiently evolved. The expectation from the judiciary, to safeguard the rights of the citizens of this country, can only be ensured, by keeping it absolutely insulated and independent, from the other organs of governance,” . The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” It held that the collegium system, as it existed before the NJAC, would again become “operative.”
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Dc Readers
Supplementary Study material for classroom program
75
Classes by Dipin Damodaran and Chandan Mittal
12. Chief Justice of India OR Chief Justice of Supreme Court: Implication on NJAC - In the course of the hearing in the NJAC case, Justice Kurian Joseph, asked whether Chief Justice is Chief Justice of India or Chief Justice of Supreme Court. Constitution of India makes both the references at different places In Article 124 of the Constitution refers to ‘the Chief Justice of India’, while the ‘Form of Oaths and Affirmations’ in the Third Schedule uses the term ‘Chief Justice of the Supreme Court of India’. The new NJAC law has relegated CJ to one among six members of the Commission. The moot question is whether it has diminished the role of CJI to CJ of SC.
13. What is the role of the Chief Justice in the appointment process. - The collegium was an institution in which the CJ’s consultative role was encapsulated. - If the NJAC, in which the Chief Justice and two senior-most judges represent the judiciary, while two ‘eminent persons’ and the Union Law Minister represent the executive, replaces the collegium, does the CJ lose his constitutional identity as a necessary ‘consultee’, and his role diminished to that of an ordinary member in a multi-member commission? 14. Ambedkar’s view He objected to give CJI veto power in the process of appointment 15. Suggestions for reform Suggestions by AP Shah( former Chief Justice, Delhi High Court, and Former Chairman, Law Commission) 1) Publishing clear selection rules and guidelines- This also entails abandoning the unwritten informal rules that presently hold sway. Under the informal “seniority” norm, in place since 1993, High Court Chief Justices are routinely elevated to the Supreme Court on the basis of seniority, rather than on merit or other objective qualifications, leading to mediocrity and a decline in judicial standards. Another unwritten rule — the minimum age for appointments to High Courts (45 years), and the Supreme Court (55 years) — has perpetuated the misconception that age and maturity are necessarily tied together. The Law Commission of India’s 14th Report (1958) on judicial reforms observed that young judges would bring a freshness and vigour to constitutional courts. The appointment of older judges, particularly in the Supreme Court, comes with shorter tenures, which threatens the Court with institutional incoherence and consequent ineffectiveness. 2)“zone of consideration” - Instead, the collegium could fix a zone of consideration while short listing candidates for elevation, for example, by considering the senior most five judges in High Courts. This “zone” should also apply for elevating district judges to High Courts. The notion of a legitimate expectation of a judicial career has no place in appointments to superior courts. Instead, merit should be the main criteria for selection, which will change the incentives for judges, and directly impact the quality, speed and efficacy of adjudication. 3) A consultative body as suggested by Justice Khehar would be useful, which could include distinguished jurists, leading lawyers, or judges outside the collegium, to assist the collegium in scrutinising potential candidates. 4) Make it representative - A truly democratic judiciary must represent the people it judges. Diversity is as also from backward important as merit and ability. This means not just representation from women, but classes and minorities. 5) The collegium must become fair, transparent and open, to counter allegations of opaqueness and lack of accountability. When a vacancy arises, the collegium must, in collaboration with the consultative body, shortlist candidates for interview. Guidelines must be laid down for consultation, acceptance of nominations, and the mechanism for shortlisting. #8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
Supplementary Study material for classroom program
Dc Readers
76
Classes by Dipin Damodaran and Chandan Mittal
The collegium must conduct interviews with the solitary objective of searching for the most meritorious and outstanding candidate. Provisional selections should be published to enable any material or adverse information to surface. Strict timelines must accompany the entire process from shortlisting to recommendation. 6) Other measures, such as making the collegium’s deliberations publicly available; and annual reporting of vacancies, appointments, number of candidates interviewed, time taken for appointments, and so on, are also important. This requires data management skills and administrative and logistical capacity, for which a secretariat could be established, to ensure that the appointments calendar and processes are strictly followed, and records are maintained and placed in the public domain in timely fashion. 7) Two other issues are important. First, the different retirement ages of judges in High Courts (62 years) and the Supreme Court (65 years) encourages sycophancy and unhealthy competition amongst prospective appointees. It must be removed, and brought at par (ideally, this may go up to 70). Second, many judges receive post-retirement appointments from the government (the largest litigant), thus incentivising sitting judges to favour with the government of the day. A 2-3 year cooling off period must be introduced, to ensure that judges are not independent only in fact, but are also seen as being independent of the executive. Ideally, such post-retirement appointments, say to a Tribunal or to a Commission, should be made by a panel specially constituted for this purpose. 16.Other suggestion 8) Introduction of the All-India Judicial Services (AIJS ) 17. Other countries UK - It consists of the SC President, his deputy and one member each appointed by the JACs of England Scotland and Northern Ireland. The JACs comprise lay persons, members of judiciary and the Bar. USA- Justices are nominated by the President and confirmed by the US Senate. Senate Judiciary Committee holds hearings and votes on whether nominations should go to the full Senate. South Africa- The South African Judicial Services Commission recommends the list of candidates to be appointecd as Supreme Court judges. All other judges are appointed on its advice.
#8860211234. #100, opposite subway, Old Rajendra Nagar Market, New Delhi
