This article simplifies and summaries the Judicial appointments commission bill 2013.
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.
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.
The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.
Following are the three cases:
1. S. P. Gupta v. Union of India – 1981
2. Supreme Court Advocates-on Record Association vs Union of India – 1993
3. In response to Special Reference 1 of 1998 by president of INDIA
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 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 collegium
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.
- Unfortunately, judges simply don’t have the time, they are so overworked in court.
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.
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.
In January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment.
In July 2013, newly appointed Chief Justice P. Sathasivam spoke against any attempts to change the collegium system.
On the 5th of September, 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary.
- The Judicial Appointments Commission Bill, 2013 was introduced in the Rajya Sabha on August 24, 2013 by the Minister of Law and Justice, Mr. Kapil Sibal.
- The Bill has been introduced in conjunction with the Constitutional (One Hundred and Twentieth Amendment) Bill, 2013, which inserts Article 124A, providing for the setting up of a Judicial Appointments Commission, and is pending before Parliament.
- The Bill provides for the composition, functions and procedure of the Judicial Appointments Commission. The Commission is sought to be established for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, and Chief Justice and other Judges of High Courts.
- The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective.
- Establishment and composition of Commission
- The Commission shall be chaired by the Chief Justice of India (CJI) and shall comprise of two other senior most Judges of the Supreme Court, the Union Minister for Law and Justice and two eminent persons to be nominated by the collegium.
- The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re nomination.
- The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission.
- Functions of Commission
- The Commission seeks to perform functions that relate to appointment, transfer and quality of candidates.
- Those include (i) recommending persons for appointment as Chief Justice of India; judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts; (ii) recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court; iii) ensuring that the person recommended is of ability, integrity and standing in the legal profession. The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing. This shall be in accordance with procedure specified by regulations made by the Commission.
- Reference to Commission for filling up of vacancies
- Upon the arising of a vacancy in the High Court and Supreme Court, references to the Commission shall be made by the Central Government.
- Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
- In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
- In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.
Procedure for short listing of candidates
• Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.
• The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.
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