By: Mr. Suchak Patel
Why there is need of Amendment ?
Judicial Appointment Commission ( which come in after amendment ) would provide a meaningful role to the executive and judiciary to present their view points and make the participants accountable while introducing transparency in the selection process.
It would enable equal participation of Judiciary and Executive in appointment of Judges in higher judiciary and make the system of appointments more accountable and thereby increase the confidence of the public in the institution of judiciary.
What constitution said for Appointment and transfer of judges ?
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.
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.
Transfer of judges from one high court to other – Article 222
The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court
Establishment of Common high court – Article 231
Parliament can establish a common high court for two or more state And for 2 or more state and union territory. article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
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.
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.
What are the arguments against the collegium system?
* 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.
A short history behind Current practice :-
First Judges Case- S.P.Gupta 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.
Second judge case Advocates-on Record Association vs Union of India case – On October 6, 1993, came a nine-judge bench decision in the Supreme Court on case , it gave primacy to CJI in case of appointments , 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.
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 quorum for appointments/transfers.
Third Judges Case :– 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.
What will be the new system ?
By 120th constitutional amendment , Parliament clear the way for judicial commission appointment bill 2013 .
In doing so , added a new article 114A which calls for Judicial Appointments Commission.
Article 124 A
Parliament may, by law, provide for—
(a) the composition of the Commission ( In following part I write the importance of this clause 1)
(b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Commission;
(c) the functions of the Commission;
(d) the procedure to be followed by the Commission in discharge of its functions;
(e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and
(f) such other matters as may be considered necessary.
Amending article 217 & 222
In both cases new article use word “on the recommendation of the judicial commission of appointment instead of chief judge of high court and CJI in case of the appoint of new judge in high court and transfer of judge from one high court to other.
change in Article 231
In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted. Which is subject to the set up of high court between two or more state and union Territory.
What are the arguments against the New (judicial commission appointment) system?
Whole media publish the Forming of Judicial commission as :- ( but it’s for Today, later day this can be changed )
– Chief justice of India (head)
– two senior-most judges of the Supreme Court
– two eminent persons as members
– Secretary (justice) in the law ministry ( Convener)
But this is the part of Judicial commission bill 2013 ( Act) , and this can be replace by simple majority of both parliament by amending this act.
So, on later date, there may be a chance of the full power of executive in appointment of judges by amending Judicial commission Act 2013 by simple majority, no need of constitutional amendment ( by 2/3rd majority) cause by amending constitution by article 114A , parliament empower themselves to change the system with the help of simple majority ( 50% ) [ here is the reason that I highlighted Article 114A ,clause 1 ]
Which matter untouched in new system related to Judges and courts ?
* Article 224 – Appointment of additional and acting Judges
*Article 229 – Officers and servants and the expenses of High Courts
* Article 143 – Power of President to consult Supreme Court If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it.