Get the balance right
Source: By Sudhanshu Ranjan: Deccan Herald
A better system needs to be evolved. But it must be ensured that the independence of the judiciary is not impaired.
Rajya Sabha, in the just concluded monsoon session, passed the 120th Constitutional Amendment Bill which seeks to change the present system of appointment of judges by the collegium of the Supreme Court. The bill could not be passed by Lok Sabha due to paucity of time though the government was keen on it. The bill did not face any major hurdle as the main opposition party supported it in principle that the system of judges appointing judges must go but made a token protest that it be referred to the standing committee, and facilitated the passage of the bill by staging a walk out. However, the Judicial Appointments Commission (JAC) Bill has been referred to the standing committee.
The bill proposes to delete Articles 124(2) and 217(1) which provide for the mode of appointment of judges of the Supreme Court and that of the high court respectively. Article 124(2) says that every judge of the SC shall be appointed by the President in consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary provided that in case of the appointment of a judge other than the Chief Justice, the Chief Justice of India (CJI) shall be always consulted. Similarly, Article 217 provides that the President shall appoint a high court judge in consultation with the CJI, the governor of the state and the CJ of the high court in case of appointment of a judge other than the CJ.
This system worked up till 1993 when a nine-judge Constitution Bench of the SC, in SC Advocates-on-Record v. Union of India, known as the Second Judges’ case usurped the power of appointment of judges to the higher judiciary from the executive by judicial interpretation that consultation with the CJI means his concurrence, and ruled that the appointment shall be made by the collegium of the Supreme Court comprising the CJI and the two senior most judges. It was expanded to five members (CJI and the four senior most judges) in the Third Judges’ case in case of appointment to the SC.
It was an outlandish interpretation having no constitutional basis and is regarded as the most dangerous judgment after the Habeas Corpus (ADM Jabalpur v. Shivkant Shukla) which upheld the government notification that the right to life was suspended during the pendency of the emergency. In fact, an amendment was moved in the Constituent Assembly by B Pocker Sahib to substitute the word ‘consultation’ with ‘concurrence’ but it was rejected. So, the intent of the founding fathers of the Constitution is quite clear. But the SC negatived the intent by assuming the power of appointing judges by way of interpretation.
No formal discussion
The judgment bristles with all the illegalities possible. There was no formal discussion amongst judges which was recorded in the dissenting judgment of Justice Punchhi, “This nine-judge Bench sat from April 7, 1993 to hear the momentous matter concluding the hearing on May 11, 1993, close to the onset of summer vacation. I entertained the belief that we all, after July 12, 1993, on the reopening of the court…would…hold some meaningful meetings, having a free and frank discussion on each and every topic…I was indeed overtaken....” Further, the judgment was never pronounced in the open court as is mandatory under law.
Ever since this judgment innovated the collegiums system, the executive has been smarting under the feeling of having been wronged by the SC which snatched its power and has been trying to rectify it. It could have been done simply by introducing an amendment to Articles 124(2) and 217(1) that ‘consultation’ does not mean ‘concurrence.’ However, now the government wants the executive to have a say by creating a new system of appointment by the JAC. It would be headed by the CJI and would have two senior most judges of the SC, the law minster and two eminent persons, and the law secretary would be the Member-Secretary.
The leader of the Opposition in Lok Sabha will be a member of the committee that will select two eminent persons. Apprehensions have been expressed by certain quarters that there is no guarantee that the constitution of the JAC will not be changed in future making the role of the CJI and other two judges insignificant as, according to the Constitution Amendment Bill, Parliament will decide the formation of the JAC. Therefore, any change in the JAC can be made by a simple majority in Parliament as it will not require a constitutional amendment. This is a genuine concern and must be addressed effectively. The Constitution Amendment Bill has to be passed not only by Parliament but has to be ratified by one-half of the state legislatures. So, it is still a long way to go.
It is true that the collegium system is not functioning properly.
Accusations have been made against its members that they indulge in bargaining and that its functioning is totally opaque even though the Second Judges’ case clearly ruled that all decisions should be in writing. But it does not happen. Recently, the CJ of the Gujarat high court, Justice Bhaskar Bhattacharya, openly accused the then CJI, Justice Altamas Kabir, of blocking his elevation to the SC as he had opposed the appointment of Kabir’s sister as a judge of the Calcutta high court when he was a member of the high court’s collegiums. Several kinds of allegations have been levelled and a better system needs to be evolved. But it must be ensured that the independence of the judiciary is not impaired. The CJI must have a crucial role.
A better system needs to be evolved. But it must be ensured that the independence of the judiciary is not impaired.
Rajya Sabha, in the just concluded monsoon session, passed the 120th Constitutional Amendment Bill which seeks to change the present system of appointment of judges by the collegium of the Supreme Court. The bill could not be passed by Lok Sabha due to paucity of time though the government was keen on it. The bill did not face any major hurdle as the main opposition party supported it in principle that the system of judges appointing judges must go but made a token protest that it be referred to the standing committee, and facilitated the passage of the bill by staging a walk out. However, the Judicial Appointments Commission (JAC) Bill has been referred to the standing committee.
The bill proposes to delete Articles 124(2) and 217(1) which provide for the mode of appointment of judges of the Supreme Court and that of the high court respectively. Article 124(2) says that every judge of the SC shall be appointed by the President in consultation with such of the judges of the Supreme Court and of the high courts in the states as the President may deem necessary provided that in case of the appointment of a judge other than the Chief Justice, the Chief Justice of India (CJI) shall be always consulted. Similarly, Article 217 provides that the President shall appoint a high court judge in consultation with the CJI, the governor of the state and the CJ of the high court in case of appointment of a judge other than the CJ.
This system worked up till 1993 when a nine-judge Constitution Bench of the SC, in SC Advocates-on-Record v. Union of India, known as the Second Judges’ case usurped the power of appointment of judges to the higher judiciary from the executive by judicial interpretation that consultation with the CJI means his concurrence, and ruled that the appointment shall be made by the collegium of the Supreme Court comprising the CJI and the two senior most judges. It was expanded to five members (CJI and the four senior most judges) in the Third Judges’ case in case of appointment to the SC.
It was an outlandish interpretation having no constitutional basis and is regarded as the most dangerous judgment after the Habeas Corpus (ADM Jabalpur v. Shivkant Shukla) which upheld the government notification that the right to life was suspended during the pendency of the emergency. In fact, an amendment was moved in the Constituent Assembly by B Pocker Sahib to substitute the word ‘consultation’ with ‘concurrence’ but it was rejected. So, the intent of the founding fathers of the Constitution is quite clear. But the SC negatived the intent by assuming the power of appointing judges by way of interpretation.
No formal discussion
The judgment bristles with all the illegalities possible. There was no formal discussion amongst judges which was recorded in the dissenting judgment of Justice Punchhi, “This nine-judge Bench sat from April 7, 1993 to hear the momentous matter concluding the hearing on May 11, 1993, close to the onset of summer vacation. I entertained the belief that we all, after July 12, 1993, on the reopening of the court…would…hold some meaningful meetings, having a free and frank discussion on each and every topic…I was indeed overtaken....” Further, the judgment was never pronounced in the open court as is mandatory under law.
Ever since this judgment innovated the collegiums system, the executive has been smarting under the feeling of having been wronged by the SC which snatched its power and has been trying to rectify it. It could have been done simply by introducing an amendment to Articles 124(2) and 217(1) that ‘consultation’ does not mean ‘concurrence.’ However, now the government wants the executive to have a say by creating a new system of appointment by the JAC. It would be headed by the CJI and would have two senior most judges of the SC, the law minster and two eminent persons, and the law secretary would be the Member-Secretary.
The leader of the Opposition in Lok Sabha will be a member of the committee that will select two eminent persons. Apprehensions have been expressed by certain quarters that there is no guarantee that the constitution of the JAC will not be changed in future making the role of the CJI and other two judges insignificant as, according to the Constitution Amendment Bill, Parliament will decide the formation of the JAC. Therefore, any change in the JAC can be made by a simple majority in Parliament as it will not require a constitutional amendment. This is a genuine concern and must be addressed effectively. The Constitution Amendment Bill has to be passed not only by Parliament but has to be ratified by one-half of the state legislatures. So, it is still a long way to go.
It is true that the collegium system is not functioning properly.
Accusations have been made against its members that they indulge in bargaining and that its functioning is totally opaque even though the Second Judges’ case clearly ruled that all decisions should be in writing. But it does not happen. Recently, the CJ of the Gujarat high court, Justice Bhaskar Bhattacharya, openly accused the then CJI, Justice Altamas Kabir, of blocking his elevation to the SC as he had opposed the appointment of Kabir’s sister as a judge of the Calcutta high court when he was a member of the high court’s collegiums. Several kinds of allegations have been levelled and a better system needs to be evolved. But it must be ensured that the independence of the judiciary is not impaired. The CJI must have a crucial role.
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