Judges Appointment Commission
Introduction:
This Bill is the 120th Constitutional Amendment Bill
If passed it would amend the Article 124 and 217 of the Constitution of India
and introduce a new article 124A
The Judicial Commission originally proposed in 1990 by the then law minister Dinesh Goswamy
and subsequently proposed by law ministers like Arun Jaitley were of different kind — those proposals were to incorporate the commission into the Constitution.
The 18th Law Commission had given a proposal for reconsideration of the three Judges case or passing a law to restore the primacy of the Chief Justice of India and the power of the executive to make the appointments.
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.
As explained below in
the Three Judges case the 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.
Supreme Court Judgements:
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.
On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India —— 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 Chief Justice of India 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."
The expression “consultation”, was interpreted. The majority of the nine-judge bench, speaking through Justice J.S. Verma said, “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure, but also by preventing the influence of political considerations in making the appointments.
It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the chief justice of the high court in Articles 124(2) and 217(1)”.
Third Judges case: (Special Reference No1. Of 1998) reported in (1998) 7 SCC 739. The President of India (K. R. Narayanan) who required clarification and light on the second judges case made a reference to the Supreme Court under Article 143 of the Constitution which consists of nine questions.
Questions Posed by the President Answers from the Supreme Court Bench
Whether “Consultation of with the Chief Justice of India in Articles 217(1) and 222(1) requires consultation with a plurality of Judges Consultation includes consultation with the plurality of Judges
Extent and scope of Judicial review in transfer of Judges Judicial review can be done only
if CJI has not consulted the other Judges or
the views of Chief Justice of High Court to which a Judge is transferred and the Chief Justice of High Court from which he is transferred is not obtained
Whether Chief Justice should consult only two seniormost judges only Two seniormost Judges – appointment to High Court
Four seniormost Judges – Judge of Supreme Court,
Transfer of Chief Justice or puisne Judge of a High Court
Can the Chief Justice of India act solely in his individual capacity CJI not entitled to act solely
Does consultation of CJI with Judges of the High Court include those Judges who have a different parent High Court It includes all the Judges of the said High Court, no exclusion.
If a Junior Judge is appointed overriding a senior Judge should “strong cogent reason” be recorded Positive reason for the recommendation alone has to be recorded
Whether the opinion of the other Judges should be recorded in writing and sent to the Government The opinion of the Judges should be recorded in writing and sent to the Government of India.
Whether CJI is not obliged to comply with the norms and requirement of the consultation process in making his recommendation to the government He is obliged to do so
And whether such recommendation is binding on the Government of India Those recommendations which do not comply with the norms and requirement are not binding on the Government of India
Articles relating to 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
What is the purpose of the Judicial Appointments Commission bill?
Recommending persons for appointment as Chief Justice of India
Other Judges of the Supreme Court
Chief Justices and Other Judges of the High Courts
Transfer of Chief justices and Judges of High Courts
What constitutes the Judicial Appointments Commission?
The Chief Justice of India – ex-officio Chairperson
Two other Judges of the Supreme Court (They should be next to the chief Justice in their seniority) – ex-officio members
Union Minister for Law and Justice – ex-officio member
Two eminent persons for a period of 3 years only nominated by Collegium – (collegium – Prime Minister +Chief Justice of India + Leader of the opposition in the House of the people)
Convener of the Commission – Secretary to the Department of Justice
It implies that all the organs of the state and the citizenry are represented
What is the procedure for appointment of Judges?
Views of the Governor + Chief Minister of the State + Chief Justice of the High Court should be received in writing
How will the commission come to know of the vacancies?
Central Government will inform the commission about the vacancies in the Supreme Court and the High Court
Vacancies should be intimated two months prior to the retirement term, death or resignation of Supreme Court and High Court Judge
Process to the followed:
Area of Concern:
Clause (2) of the proposed Article 124A provides that the Parliament has the power to legislate on the composition of the Commission, appointment, tenure, qualifications, conditions of service, functions and procedure of the Commission.
A residuary clause “such other matters as may be considered necessary” has been added.
This would give vast and unfettered power to the Parliament on Judicial appointments.
The area of concern is that the Parliament can amend the provisions of the law with a simple majority.
Further the proposed Constitutional provision, which
leaves the power to fix the salary, tenure, composition of members of the Commission, etc. to the ordinary law of the Parliament which undermines the independence of the Judicial Appointments Commission and the Parliament may at any time amend the law by simple majority as per its convenience.
The Bill does not mention about any amendment to Art. 124(3)(c) which states that, “A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and – (c) is, in the opinion of the President, a distinguished jurist”. Does the President have powers to recommend distinguished Judges to the JAC is a questioned answered.
How could the seniormost Judges sit for appointing the Chief Justice of India.
Arguments against the Bill:
Reaction from the Bar Council and Bar Associations:
The Chairman of the Bar Council of India is reported to have said that “we are totally against this National Judicial Appointment[s] Commission Bill because of the fact that in the process of appointment of judges, we do not want any interference from any outsider, including the executive”
Press release of the Bar Council of India says “…. lawyers of the country are not going to tolerate the replacement of the existing collegiums with the proposed Commission, without the representation of the Bar Counc ils and the (Bar) Associations.”
The President of the Supreme Court Bar Association is reported to have said that “loading the Commission with more members from the Executive
and including fewer members from the judiciary would curtail the independence of the judiciary” and
that “the cure should not be worse than the disease. The Bar will not agree to transfer the power of appointment to the executive.
The collegium system can be improved by making methods of selection more transparent”
A closed-door affair without a formal and transparent system (General Argument)
Judicial Appointments Commission in the United Kingdom:
In June 2003, the British Government announced a series of constitutional reforms, including the creation of a new Supreme Court and the establishment of a judicial appointments commission for England and Wales. A series of public consultation papers were then released on these and related constitutional reforms. Later a summary of responses and the individual submissions were released. On 24 February 2004, the Constitutional Reform Bill, which included proposals for judicial appointments, was introduced into the House of Lords.
The Commission will comprise 15 members, appointed by The Queen on the recommendation of the Minister.
The members will be drawn from the judiciary, legal professional and lay community
Under the Constitutional Reform Act 2005 the JAC has a responsibility to develop and implement its own selection processes. The key statutory responsibilities are:
• to select candidates solely on merit;
• to select only people of good character;
• to have regard to the need to encourage diversity in the range of persons available for selection for appointments.
For each vacancy,
Commissioners select one candidate to recommend to the Appropriate Authority (Lord Chancellor, Lord Chief Justice, or Senior President of Tribunals) for appointment.
The Appropriate Authority can accept or reject a recommendation, or ask for it to be reconsidered.
If he does so he is required to provide his reasons in writing to the Commission.
He can only exercise that power once for each candidate and cannot select an alternative candidate.
Statutory consultation:
Sections 88(3) and 94(3) of the Constitutional Reform Act 2005 (CRA) require the Commission, as part of the selection process,
to consult the Lord Chief Justice and another person who has held the post, or has relevant experience of the post, about those candidates the Commission is minded to select.
These 'statutory consultees' are asked to give a view on the suitability of each candidate so referred. The Commission will consider the statutory consultation responses, together with other information about a candidate.
They may decide not to follow the views expressed by the consultees, but must give reasons for doing so when making recommendations to the Lord Chancellor.
Selection decisions
Commissioners make the final decision on which candidates to recommend to the Lord Chancellor for appointment.
In doing so, they consider those candidates that selection panels have assessed as the most meritorious for the role,
having been provided with information gathered on those individuals during the whole process.
Report to Lord Chancellor
When reporting its final selections to the Lord Chancellor,
the Commission must reflect the comments of the statutory consultees and discuss any divergence of opinion.
Judicial Appointments Commission in South Africa:
All judges of the higher courts in South Africa are appointed by the President of the National Assembly on the advice of the Judicial Services Commission.
The Commission consists of 23 members.
The Commission prepares a list of nominees containing three more names than the number of appointments to be made.
The President then consults with the President of the Court and political party leaders. The President must advise the Commission with reasons if any of the nominees are unacceptable and any appointments remain to be made.
The Commission must then supplement the original list and the President must make the remaining appointments from that supplemented list.
The President also appoints the Chief Justice and Deputy Chief Justice after consulting with the Commission
The appointment process in South Africa is notable for its very open and public nature. In most jurisdictions that operate some form of commission, details of possible nominees are kept confidential until an appointment is made. Generally
the public is not informed of the names of candidates who have not been appointed and the details of interviews are kept confidential.
by Hepzibah Beulah
Reference:
Articles from The Hindu and Indian Express from the month of June 2013
http://jac.judiciary.gov.uk/
http://www.justice.gov.za/faq/faq-jsc.html
Supreme Court Case Laws
Judicial appointment Commission Bill 2013
Introduction:
This Bill is the 120th Constitutional Amendment Bill
If passed it would amend the Article 124 and 217 of the Constitution of India
and introduce a new article 124A
The Judicial Commission originally proposed in 1990 by the then law minister Dinesh Goswamy
and subsequently proposed by law ministers like Arun Jaitley were of different kind — those proposals were to incorporate the commission into the Constitution.
The 18th Law Commission had given a proposal for reconsideration of the three Judges case or passing a law to restore the primacy of the Chief Justice of India and the power of the executive to make the appointments.
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.
As explained below in
the Three Judges case the 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.
Supreme Court Judgements:
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.
On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India —— 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 Chief Justice of India 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."
The expression “consultation”, was interpreted. The majority of the nine-judge bench, speaking through Justice J.S. Verma said, “It was realised that the independence of the judiciary had to be safeguarded not merely by providing security of tenure, but also by preventing the influence of political considerations in making the appointments.
It is this reason which impelled the incorporation of the obligation of consultation with the Chief Justice of India and the chief justice of the high court in Articles 124(2) and 217(1)”.
Third Judges case: (Special Reference No1. Of 1998) reported in (1998) 7 SCC 739. The President of India (K. R. Narayanan) who required clarification and light on the second judges case made a reference to the Supreme Court under Article 143 of the Constitution which consists of nine questions.
Questions Posed by the President Answers from the Supreme Court Bench
Whether “Consultation of with the Chief Justice of India in Articles 217(1) and 222(1) requires consultation with a plurality of Judges Consultation includes consultation with the plurality of Judges
Extent and scope of Judicial review in transfer of Judges Judicial review can be done only
if CJI has not consulted the other Judges or
the views of Chief Justice of High Court to which a Judge is transferred and the Chief Justice of High Court from which he is transferred is not obtained
Whether Chief Justice should consult only two seniormost judges only Two seniormost Judges – appointment to High Court
Four seniormost Judges – Judge of Supreme Court,
Transfer of Chief Justice or puisne Judge of a High Court
Can the Chief Justice of India act solely in his individual capacity CJI not entitled to act solely
Does consultation of CJI with Judges of the High Court include those Judges who have a different parent High Court It includes all the Judges of the said High Court, no exclusion.
If a Junior Judge is appointed overriding a senior Judge should “strong cogent reason” be recorded Positive reason for the recommendation alone has to be recorded
Whether the opinion of the other Judges should be recorded in writing and sent to the Government The opinion of the Judges should be recorded in writing and sent to the Government of India.
Whether CJI is not obliged to comply with the norms and requirement of the consultation process in making his recommendation to the government He is obliged to do so
And whether such recommendation is binding on the Government of India Those recommendations which do not comply with the norms and requirement are not binding on the Government of India
Articles relating to 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
What is the purpose of the Judicial Appointments Commission bill?
Recommending persons for appointment as Chief Justice of India
Other Judges of the Supreme Court
Chief Justices and Other Judges of the High Courts
Transfer of Chief justices and Judges of High Courts
What constitutes the Judicial Appointments Commission?
The Chief Justice of India – ex-officio Chairperson
Two other Judges of the Supreme Court (They should be next to the chief Justice in their seniority) – ex-officio members
Union Minister for Law and Justice – ex-officio member
Two eminent persons for a period of 3 years only nominated by Collegium – (collegium – Prime Minister +Chief Justice of India + Leader of the opposition in the House of the people)
Convener of the Commission – Secretary to the Department of Justice
It implies that all the organs of the state and the citizenry are represented
What is the procedure for appointment of Judges?
Views of the Governor + Chief Minister of the State + Chief Justice of the High Court should be received in writing
How will the commission come to know of the vacancies?
Central Government will inform the commission about the vacancies in the Supreme Court and the High Court
Vacancies should be intimated two months prior to the retirement term, death or resignation of Supreme Court and High Court Judge
Process to the followed:
Area of Concern:
Clause (2) of the proposed Article 124A provides that the Parliament has the power to legislate on the composition of the Commission, appointment, tenure, qualifications, conditions of service, functions and procedure of the Commission.
A residuary clause “such other matters as may be considered necessary” has been added.
This would give vast and unfettered power to the Parliament on Judicial appointments.
The area of concern is that the Parliament can amend the provisions of the law with a simple majority.
Further the proposed Constitutional provision, which
leaves the power to fix the salary, tenure, composition of members of the Commission, etc. to the ordinary law of the Parliament which undermines the independence of the Judicial Appointments Commission and the Parliament may at any time amend the law by simple majority as per its convenience.
The Bill does not mention about any amendment to Art. 124(3)(c) which states that, “A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and – (c) is, in the opinion of the President, a distinguished jurist”. Does the President have powers to recommend distinguished Judges to the JAC is a questioned answered.
How could the seniormost Judges sit for appointing the Chief Justice of India.
Arguments against the Bill:
Reaction from the Bar Council and Bar Associations:
The Chairman of the Bar Council of India is reported to have said that “we are totally against this National Judicial Appointment[s] Commission Bill because of the fact that in the process of appointment of judges, we do not want any interference from any outsider, including the executive”
Press release of the Bar Council of India says “…. lawyers of the country are not going to tolerate the replacement of the existing collegiums with the proposed Commission, without the representation of the Bar Counc ils and the (Bar) Associations.”
The President of the Supreme Court Bar Association is reported to have said that “loading the Commission with more members from the Executive
and including fewer members from the judiciary would curtail the independence of the judiciary” and
that “the cure should not be worse than the disease. The Bar will not agree to transfer the power of appointment to the executive.
The collegium system can be improved by making methods of selection more transparent”
A closed-door affair without a formal and transparent system (General Argument)
Judicial Appointments Commission in the United Kingdom:
In June 2003, the British Government announced a series of constitutional reforms, including the creation of a new Supreme Court and the establishment of a judicial appointments commission for England and Wales. A series of public consultation papers were then released on these and related constitutional reforms. Later a summary of responses and the individual submissions were released. On 24 February 2004, the Constitutional Reform Bill, which included proposals for judicial appointments, was introduced into the House of Lords.
The Commission will comprise 15 members, appointed by The Queen on the recommendation of the Minister.
The members will be drawn from the judiciary, legal professional and lay community
Under the Constitutional Reform Act 2005 the JAC has a responsibility to develop and implement its own selection processes. The key statutory responsibilities are:
• to select candidates solely on merit;
• to select only people of good character;
• to have regard to the need to encourage diversity in the range of persons available for selection for appointments.
For each vacancy,
Commissioners select one candidate to recommend to the Appropriate Authority (Lord Chancellor, Lord Chief Justice, or Senior President of Tribunals) for appointment.
The Appropriate Authority can accept or reject a recommendation, or ask for it to be reconsidered.
If he does so he is required to provide his reasons in writing to the Commission.
He can only exercise that power once for each candidate and cannot select an alternative candidate.
Statutory consultation:
Sections 88(3) and 94(3) of the Constitutional Reform Act 2005 (CRA) require the Commission, as part of the selection process,
to consult the Lord Chief Justice and another person who has held the post, or has relevant experience of the post, about those candidates the Commission is minded to select.
These 'statutory consultees' are asked to give a view on the suitability of each candidate so referred. The Commission will consider the statutory consultation responses, together with other information about a candidate.
They may decide not to follow the views expressed by the consultees, but must give reasons for doing so when making recommendations to the Lord Chancellor.
Selection decisions
Commissioners make the final decision on which candidates to recommend to the Lord Chancellor for appointment.
In doing so, they consider those candidates that selection panels have assessed as the most meritorious for the role,
having been provided with information gathered on those individuals during the whole process.
Report to Lord Chancellor
When reporting its final selections to the Lord Chancellor,
the Commission must reflect the comments of the statutory consultees and discuss any divergence of opinion.
Judicial Appointments Commission in South Africa:
All judges of the higher courts in South Africa are appointed by the President of the National Assembly on the advice of the Judicial Services Commission.
The Commission consists of 23 members.
The Commission prepares a list of nominees containing three more names than the number of appointments to be made.
The President then consults with the President of the Court and political party leaders. The President must advise the Commission with reasons if any of the nominees are unacceptable and any appointments remain to be made.
The Commission must then supplement the original list and the President must make the remaining appointments from that supplemented list.
The President also appoints the Chief Justice and Deputy Chief Justice after consulting with the Commission
The appointment process in South Africa is notable for its very open and public nature. In most jurisdictions that operate some form of commission, details of possible nominees are kept confidential until an appointment is made. Generally
the public is not informed of the names of candidates who have not been appointed and the details of interviews are kept confidential.
by Hepzibah Beulah
Reference:
Articles from The Hindu and Indian Express from the month of June 2013
http://jac.judiciary.gov.uk/
http://www.justice.gov.za/faq/faq-jsc.html
Supreme Court Case Laws
Judicial appointment Commission Bill 2013
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