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Report No. 214

Part III


1. From what has been stated above it is clear that an entire reconsideration I, II & III judges cases - S.P. Gupta v. UOI reported in AIR 1982 Supreme Court 149, Supreme Court Advocates on Record Association v. UOI reported in 1993(4) SCC 441 and Special Reference 1 of 1998 reported in 1998(7) SCC 48739, is urgently and immediately called for in order to bring about clarity and consistency in the process of Appointment of Supreme Court and High Court Judges.

2. The Eighty Fifth Report on Law's Delays: Arrears in Courts has expressed the same view.

The same is extracted here below:

"The Committee is aware that for this state of affairs the Union Law Ministry is not blameworthy, as the entire process of initiation of proposal for appointment of new judges is no longer the responsibility of the Executive as a result of a decision of the Supreme Court. Though it was not contemplated in the Constitution, responsibility for judicial appointments now rests in the domain of the judiciary. The Union Law Minister is accountable to Parliament for the delay in filling up of the vacancies of judges but he has functionally no contribution to make.

The Supreme Court read into the Constitution a power to appoint judges that was not conferred upon it by the text or the context. The underlying purpose of securing judicial independence was salutary but the method of acquiring for the Court the exclusive power to appoint judges by the process of judicial interpretation is open to question. Against this backdrop the Committee recalls a recent discussion in the Rajya Sabha in which the Government was asked regarding alternate arrangements to fill up the vacancies and whether there was any scope for having a fresh review of the Supreme Court's judgment.

The position as it exists in different countries may be noticed at this stage. On a scrutiny of several constitutions of other countries it may be seen that in all other Constitutions either the executive is the sole authority to appoint judges or the executive appoints in consultation with the Chief Justice of the country.

The Indian Constitution has followed the latter method. However, the 2nd judges case Advocates on Record Association v. U.O.I. (1993(4) SCC 441), as we have seen in the discussion above, has completely eliminated and excluded the executive and the opinion of the Hon'ble Supreme Court in the Presidential reference (Special Reference 1 of 1998) has reaffirmed this view with slight modifications.

In America the State judges are elected. When they are not elected their appointment is subject to legislative concurrence. In the Supreme Court it is the President who nominates the Judges but the nomination has to be confirmed by the Senate. In Australia it is the executive that appoints judges. In Canada the Governor General makes the appointment of judges.

In New Zealand the Chief Justice is appointed on the recommendations of the Prime Minister by the President. The Prime Minister in turn consults the Attorney General; the A.G. informally consults the President of Court of Appeal and other judges.

As for High Court Judges, Chief Justice recommends after consulting other Judges and gives the list to the AG for scrutiny. AG scrutinizes the list, consults New Zealand Law Society and then candidate's consent is sought. Thereafter the Cabinet finally recommends the names to the Governor General who issues the appointment letter.

Recently, the judges from the Apex Court and the High Court of Kenya came to the Supreme Court and they addressed the Supreme Court Bar. They confirmed that they have a National Judicial Commission which undertakes the selection process. In this National Judicial Commission there is the Attorney General and the Chief Justice, two senior most judges of the Apex Court and an expert.

Thus it may be seen that in all the Constitutions, the executive has a role to play and in some countries a major and exclusive role. The Indian Constitution provides a beautiful system of checks and balances under Articles 124(2) and 217(1) for the appointment of Judges of the Supreme Court and High Courts where both the executive and judiciary have been given a balanced role. As already stated this delicate balance has been upset by the 2nd Judges case (Advocate on Record Association v. Union of India 1993(4) SCC 4412 and the opinion of the Supreme Court in the Presidential Reference (Special Reference No.1 of 1998). It is time the original balance of power is restored.

The above recommendation for the need for an urgent and immediate review of the present procedure for appointment of judges is further fortified by the views expressed by Justice J.S. Verma, who wrote the lead judgment in Advocates on Record v. Union of India 1993(4) SCC 441, by his fortright views expressed in an interview in the Front Line Magazine dated 10.10.1998. The relevant portion is reproduced below:

When asked "you said in one of your speeches that judicial appointments have become judicial disappointments. Do you now regret your 1993 judgement? Justice Verma stated "My 1993 judgement, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable.

Therefore, some kind of rethink is required. My judgement says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it. Broadly, there are two distinct areas. One is the area of legal acumen of the candidates to adjudge their suitability and the other is their antecedents. It is the judiciary, that is, the Chief Justice of India and his colleagues or, in the case of the High Courts, the Chief Justice of the High Court and his colleagues (who) are the best persons to adjudge the legal acumen.

Their voice should be predominant. So far as the antecedents are concerned, the executive is better placed than the judiciary to know the antecedents of candidates. Therefore, my judgement said that in the area of legal acumen the judiciary's opinion should be dominant and in the area of antecedents the executive's opinion should be dominant. Together, the two should function to find out the most suitable (candidates) available for appointment."

The views of the Parliamentary Standing Committee on Law & Justice recommended the scrapping of the present procedure for appointments and transfers by Supreme Court and High Court Judges are of great relevance in this context. As reported in the Hindustan Times of 20.10.2008 "the Law Ministry has agreed to review the 15-year-old system after the Parliamentary Standing Committee on Law & Justice recommended doing away with the committee of judges (collegium). Presently, the collegium decides the appointments and transfer of judges. Interestingly, the recommendations come close on the heels of recent cases of corruption against judges of the top courts in the country.

Law Minister H.R. Bhardwaj told Hindustan Times that the House Committee's recommendation had been accepted, and an action-taken report prepared by the Ministry would now be placed before Parliament. "Collegium system has failed. Its decisions on appointments and transfers lack transparency and we feel courts are not getting judges on merit.(......) The government cannot be a silent spectator on such a serious issue", Bhardwaj said. The House Committee had said:

"Through a Supreme Court judgement in 1993, the judiciary wrested the control of judges appointments and transfers. The collegium system has been a disaster and needs to be done away with". H.R. Bhardwaj, Minister for Law & Justice, said "It is the right time to review this important matter".

"There was no problem till 1993 when the judiciary tried to re-write the Article of the Constitution dealing with appointments. They created a new law of collegium which was wrong. In a democracy, the primacy of Parliament cannot be challenged", he said.

The Chairman of the Departmental Related Parliament Standing Committee of Personnel, Public Grievances Law and Justice in its 28th Report presented to the Hon'ble Chairman of Rajya Sabha on August 2008 has stated thus:-

"I would like to conclude by saying that the Government should expeditiously see to it that appointment of Judges in High Courts and Supreme Court are done in a transparent way. We have recommended in two ways:

One is, we have to see to it that the collegium system has to be done away with, since appointments will be delayed, we have said that from the very beginning of identifying the eligible persons, the various places of recommendations, be it at the level of the High Courts, or, at the Governor's level or at the level of the Departments, and finally be the Supreme Court, should be transparent, and this should be put up in the web site then and there so that the person, who is going to occupy the Constitutional place, is known to the public, and their background should be allowed to be discussed by the public and, finally, it has to go through the process of issuing warrant by the President of India.

But, what is happening presently is that from the day one of identifying the person till the issuance of the warrant, nothing is known to anybody except to the persons who are involved in it. Even the persons, who are identified and who are going to be made as judges of the High Court or of the Supreme Court, may not know about it. This type of secrecy is not good for democracy".

It may be noted in this context that in every High Court the Chief Justice is from outside the State as per the policy of the Government. The senior most Judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.

Two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgments aforesaid before the Hon'ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.

Proposal for reconsideration of Judges Cases I, II and III - S.P. Gupta v. UOI reported in AIR 1982 SC 149, Supreme Court Advocates-On-Record Association v. UOI and Special Reference 1 of 1998 Back

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