We filed petition in SC (challenging VP Naidu’s dismissal of impeachment motion against CJI) yesterday & was to be heard today. But we were informed last evening that our petition will be heard by 5 judges. Who gave these orders? What were orders?: Kapil Sibal, Congress to Press

— Legal Desire (@legaldesire) May 8, 2018

Here’s copy of Petition: 

Attorney General KK Venugopal has questioned the maintainability of the petition. “Why have only two Congress MPs come? I will presume only the Congress is aggrieved. Other six parties have accepted (Rajya Sabha Chairman) Venkaiah Naidu’s decision,” he says.

Advocate Prashant Bhushan says it’s unfortunate that the court even refused to share a copy of the administrative order by which the five-judge Constitution Bench was formed to hear the matter. “It has never happened that a writ petition has been brought to a Constitution Bench before a judicial order is passed.”

Sibal, who is also one of the signatories of the impeachment notice, had on Monday mentioned the petition for urgent listing before a bench headed by Justice J Chelameswar. The bench, also comprising Justice SK Kaul, asked Sibal and advocate Prashant Bhushan to mention the matter before the CJI for urgent listing, citing a Constitution bench judgment on powers of master of roster.

Overnight, a five-judge constitution bench in the Supreme Court was constituted by the CJI on Monday to hear the matter on Tuesday. The list of business for the Supreme Court showed that the petition would be heard on Tuesday by a bench comprising Justices AK Sikri, SA Bobde, NV Ramana, Arun Mishra and AK Goel.

Significantly, the matter was not listed before the judges who are number two to five in the seniority—Justices J Chelameswar, Ranjan Gogoi, MB Lokur and Kurian Joseph—who had held a press conference on January 12 in which they had raised concerns about the independence of the judiciary.

On Tuesday, the the five-judge Constitution Bench headed by Justice AK Sikri did not agree to Sibal’s plea for a copy of the administrative order which led to the bench being set up on Monday, and asked Sibal to argue the main matter challenging Naidu’s order on merits. Sibal argued that the matter could be referred to a Constitution Bench only by a judicial order, and wondered how could it be done by an administrative order, Justice Adarsh Kumar Goel asked if there was a bar on directly referring the matter to a five-judge bench by the latter process.

“You (want) to challenge that (administrative order setting up five-judge bench) for what outcome?” Justice Sikri asked Sibal, who told the bench: “You must say who passed the order. I must have the copy of the order so that I can challenge it.”

The bench reminded Sibal that at the outset of the hearing he had said that he has no personal agenda and was for upholding the dignity of the court. “Will the dignity of the court be jeopardised if you give me that (administrative) order (constituting five judge bench). It is not a secret document under the National Security Act,” Sibal countered.

In the petition, the two MPs claimed that the reasons given were “wholly extraneous” and not legally tenable. While Justice Chelameswar had initially asked him to mention the matter before the CJI, the bench, also comprising Justice SK Kaul, later asked Sibal and Bhushan to “come back tomorrow”. Justice Chelameswar also said he was on the verge of retirement. Making his submissions, Sibal said Naidu cannot summarily reject the notice bearing signatures of 64 MPs and seven former members who had recently retired, on the ground that there was “no proved misbehaviour”.The bench asked Sibal and Bhushan to mention the matter before the Chief Justice of India for urgent listing, citing a Constitution Bench judgment on the powers of master of roster.

Earlier, Vice President rejected the Impeachment Plea in Rajya Sabha.

Naidu said, “I have applied my mind to all five charges made out in Impeachment Motion and examined all annexed documents. All facts as stated in motion don’t make out a case which can lead any reasonable mind to conclude that CJI on these facts can be ever held guilty of misbehaviour.”

“After having perused annexures to the Motion and having detailed consultations and having studied opinions of constitutional experts I am satisfied that admission of this notice of Impeachment Motion is neither desirable nor proper,” he said.

The Vice President had consulted Attorney-General KK Venugopal, former law officer K Parasaran, retired Supreme Court judge Sudarshan Reddy, former Secretary-General of the Lok Sabha Subhash Kashyap, former Law Secretary PK Malhotra and former Legislative Secretary of the Rajya Sabha Sanjay Singh while deciding on the impeachment motion, said news reports.

On April 20, the opposition parties led by Congress moved the impeachment motion in the Rajya Sabha, seeking the removal of CJI Misra under Article 217 read with article 124 (4) of the Constitution of India. The motion was signed by 64 sitting members of the House.

As per Article 124 (4), “A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”

The post CJI Impeachment Row: Petition withdrawn by Congress after SC refuses to give details of order forming Bench (Read Petition) appeared first on Legal Desire Media and Insights.

Read the Arguments Conversation here:

The post Heated SC Judges & Attorney General showdown over Judges appointment; Read Arguments appeared first on Legal Desire Media and Insights.

Kuttiyil Mathew Joseph is currently serving as the Chief Justice of Uttarakhand High Court.[1] Before his appointment as Chief Justice of the High Court of Uttarakhand on 31 July 2014, he had served as a Judge of Kerala High Court for more than 9 years. His father K. K. Mathew was a judge of the Supreme Court of India, and chairman of tenth Law Commission.

Today, CJI while responding to plea filed by 100 Lawyers said that, There is nothing wrong, the CJI said, if the Government wanted to reconsider Justice KM Joseph’s elevation to the SC recommended by the collegium. “If four names are sent for appointment and only two are cleared by the government, how can we say ‘you accept all or reject all’ ? How will courts function that way?” the CJI quipped.

Justice DY Chandrachud, according to reporters present in the court, said however that while it was against constitutional propriety to stop Indu Malhotra’s appointment, the question whether there is “cherry-picking” of names and whether it hampers judicial independence needs to be considered in-depth.

The Law Ministry writes to CJI in reply to turning down Justice Jospeh name for senority. The government’s ‘seniority argument’ however has been used “conveniently and inter-changeably, either cited as per initial appointment as a Judge or as a Chief Justice”, as an argument to push or nix names of judges. But after Chief Justice Altamas Kabir, other than Chief Justice M L Dattu, none of the Chief Justices were Judges who were Chief Justices in their Courts or seniormost by that yardstick when elevated.

Kapil Sibbal in a press conference said that,  “They are unwilling to accept the collegium’s recommendations but only want judges that are favourable to them.”

“The Collegium considers that at present Mr. Justice K.M. Joseph, who hails from the Kerala High Court and is currently functioning as Chief Justice of Uttarakhand High Court, is more deserving and suitable in all respects than other Chief Justices and senior puisne Judges of High Courts for being appointed as Judge of the Supreme Court of India,” the Collegium recorded in its signed resolution.

[embeddoc url=”http://legaldesire.com/wp-content/uploads/2018/04/j_apptt_supreme_court.pdf” height=”400px”]

The ALLEGED Pin Point

The bench headed by Justice Joseph had quashed the imposition of President’s Rule in 2016 by the Narendra Modi Led BJP government in the state of Uttarakhand restoring Congress leader Harish Rawat as the chief minister that time, nearly a month after he was ousted.

The court came down heavily on the central government for its March 27 move to dismiss Rawat under the much-contested article 356 that empowers the union cabinet to impose President’s Rule in a state.

The case “brings to the fore a situation where 356 has been used contrary to the law”, said the bench of Chief Justice K.M. Joseph and Justice VK Bist, adding the article should only be used as a last resort.

Here is what the bench headed by Justice Joseph said while quashing the plea for President Rule.

-The Governor is not an agent of the central government

-It is the first time in the history of India that a double whammy was being committed under article 356 of hitting the authority of the Governor and the speaker

-In no circumstances can a solitary instance be material enough for imposing article 356.

-There have been instances of thickly skinned governments in India lingering on. Besides the option of president rule, is the floor test not the best option to check whether they enjoy majority or not.

-If corruption was to be taken into account, hardly any government would be able to complete its 5 year term in India

-It was said that speaker had taken partisan attitude in case of Arya.It was completely non-existential. We are shocked that in a matter which engages the council and the court was a blatant falsehood.

-”Sitting in Delhi, the union cabinet and President cannot rely on anything else than the Governor’s report. What is there in Governor’s report that is speaking of the urgency of imposing President rule”.

-”There is no absolutism, President is not King. The President can be an excellent person but he can be terribly wrong, judges can also be terribly wrong”.

At the end of hectic parleys between top BJP leaders including BJP chief Amit Shah and union ministers Arun Jaitley and Rajnath Singh in the capital, the government decided to move the Supreme Court to challenge the ruling of two-member bench of the High Court headed by Justice K.M. Joseph.

Justices taking Stand for Justice

Recently, two other members of the Collegium, Justices Ranjan Gogoi and Madan Lokur had written to the CJI, demanding that he call a “full court” to discuss “institutional issues” and the “future” of the court. Justice Gogoi is expected to succeed CJI Misra who demits office in October.

“It is apparent that this decision of Justice K M Joseph’s non-elevation has been influenced by pressure from the government, especially in light of Justice Joseph’s bold decision striking down the imposition of President’s rule by the Centre in the state of Uttrakhand last year,” the statement claimed and demanded that the full text of Justice Chelameswar’s dissenting note to the collegium should be put in public domain.

Besides Chief Justice J S Khehar, who chairs the collegium, its other members are Justices Dipak Misra, Ranjan Gogoi and M B Lokur.

As reported in The Indian Express, Justice J Chelameswar had written on March 21 to all judges of the Supreme Court, asking CJI Misra to call a full court on the judicial side to discuss the issue of government interference in the appointment of judges to the high courts.

On April 9, Justice Kurian Joseph, another member of the Collegium, had written a strongly worded letter to CJI Misra and all judges, asking him to set up a bench of seven most senior judges to hear the matter of the government’s silence on the recommendations of the Collegium for appointment of Justice Joseph and Indu Malhotra. He said that three months had passed since the Collegium made the recommendations but the government had not moved on it.

“Failure to discharge their duty by sitting over on the recommendations of the Collegium doing nothing, in administrative law, is abuse of power. More than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”, Justice Kurian Joseph wrote.

[1] As on 26/04/2018

The post The Controversy: Congress alleges silence over Justice K.M. Joseph’s elevation to SC Judge a NDA govt ‘Revenge’ for ‘unfavourable judgment’ in past appeared first on Legal Desire Media and Insights.

“For some time, our unhappy experience has been that the Government’s accepting our recommendations is an exception and sitting on them is the norm. Inconvenient but able judges or judges to be are being bypassed through this route,” most senior judge J Chelameswar wrote to the CJI.

Supreme Court judge Kurian Joseph, in his letter addressed to Chief Justice of India Dipak Misra, had recently questioned the government’s intent behind sitting over the recommendations.

In his letter dated April 9, Justice Joseph had cautioned the CJI that “dignity, honour and respect of this institution is going down day by day” because of the judiciary’s inability to get judges appointed.

In a strongly worded appeal, Justice Kurian Joseph said that “it is the first time in the history of this court where nothing is known as to what has happened to a recommendation after three months.” He urged the CJI to establish a bench of seven seniormost judges to suo motu take up the matter of the government sitting on the two names.

If this demand is accepted, it would, effectively, mean an open court hearing by seven seniormost judges of the Supreme Court who could pass orders asking the government to decide on the pending recommendations of the Collegium. They could even ask the government to issue the warrants for appointments of the judges within a stipulated time frame and failure to do so would make the government liable for contempt of court.

Serving a warning about the independence of the judiciary from the Executive, Justice Joseph — who is a member of the collegium — wrote that “more than anything else, it sends a wrong message which is loud and clear to all Judges down the line not to cause any displeasure to the Executive lest they should suffer. Is this not a threat to the independence of the judiciary?”

It is believed that the Central government is sitting on the name of Justice K M Joseph who had ruled in April 2016 against the Centre in the case of imposing President’s Rule in Uttarakhand.

Justice Chelameswar had also written to the CJI, expressing grave concern over the propriety of the law ministry writing directly to Karnataka High Court, despite the Collegium reiterating a name for elevation to the High Court. He had demanded a Full Court to discuss government interference in appointments to high courts.

Interacting with students of the Kerala Media Academy on Monday, Justice Joseph had spoken on the two “watchdogs” of democracy, the judiciary and the media. He said that “both the watchdogs have to be vigilant, barking for saving democracy, barking for when the owner’s property is in danger.”

In remarks which assume significance given this letter to CJI, Justice Joseph had said, “The barking is to alert the owner and if even the barking is not yielding the fruit of catching the attention of the owner and the threat continues, barking dogs will be left with no option but to bite. Such a situation is the exception to the old saying that barking dogs seldom bite.”

On January 10, the committee, formally called the collegium, had described Justice Joseph as “more deserving and suitable in all respects than other Chief Justices” and senior judges of High Courts for being appointed as Judges of the Supreme Court of India.

The recommendation sent to the government noted that the collegium had taken into consideration combined seniority on all-India basis of Chief Justices and senior judges of High Courts, apart from their merit and integrity.

But government sources told NDTV that this recommendation goes against the principle of seniority that the top court had, in two verdicts, decided should be the criteria for appointment of judges. Sources said Justice KM Joseph is 45 in the All India seniority of judges and at number 12 in the list of Chief Justices of the High Court.

CJAR, a body consisting of activists from various fields, has criticised the Supreme Court collegium for leaving out Chief Justice of the Uttrakhand High Court K M Joseph for elevation as a judge of the apex court, saying his omission was due to “pressure” from the government.

The Campaign for Judicial Accountability and Reforms (CJAR) has in a statement supported the reported stand of Justice J Chelameswar, one of the members of the collegium, that Justice Joseph has been sidelined.

“As a member of the Supreme Court collegium, while Justice Chelameswar has not disagreed with the names of the five other judges that have been proposed for elevation to the Supreme Court, his criticism that Justice Joseph has been sidelined, is right and justified,” the statement said.

UNDER PRESSURE after the letters from Justices Jasti Chelameswar and Kurian Joseph about the government’s role in stalling appointment of judges to the Supreme Court and high courts, Chief Justice of India Dipak Misra is understood to have informed two of his colleagues that he is working to address the concerns. Sources told The Indian Express that CJI Misra informally met Justices Ranjan Gogoi and Kurian Joseph on Wednesday and indicated that he was looking into the issues pertaining to the apex court. The meeting, which lasted for half-an-hour, followed the inauguration of the gymnasium in the Supreme Court premises by the CJI.

The Congress’s comments on judicial appointments came against the backdrop of Justice Kurian Joseph’s strongly worded letter to the CJI. Joseph had argued that the “very life and existence” of the Supreme Court is under threat and “history will not pardon us” if the court does not respond to the government’s unprecedented act of sitting on the collegium’s recommendation to elevate a judge and a senior advocate to the apex court.

Addressing a press conference, Sibal said the judiciary is at its nadir today. “The fact that one sitting judge, who is one of the senior most and part of the collegium, has to write to all the judges and say you form a bench of seven distinguished senior most judges to ensure that our recommendations are implemented especially in the context of Chief Justice K M Joseph and Indu Malhotra and the fact that the judiciary is not taking action on it is a matter of grave concern,” he said.

Arguing that no party should be allowed to interfere in the processes of appointment of judges to the Supreme Court from High Courts, he said: “If there is any attempt to block that recommendation, the Chief Justice of India and the senior most judges must not only resist it but ensure that their recommendation is implemented. If such steps are not taken, then it would amount to capitulation to the executive which is a very, very serious matter.”

Laughably short tenures

Finally, when the judiciary does manage to make its mind up over who to appoint, the retirement rules mean that some of the tenures end up being extraordinarily short. A recent example of this is apparent in Manipur and Meghalaya.

The first woman Chief Justice of the Manipur High Court, Abhilasha Kumari, took oath on 9 February and will retire on 22 February, and Justice Tarun Agarwala, who took oath as the Chief Justice of Meghalaya High Court on 12 February, will end his term on 2 March, reported Hindustan Times. Both of them would have been in the top jobs for less than a month and their retirements will set off another round of judicial appointments which we have seen are not exactly straightforward.

The report further adds that seven other high courts — Telangana and Andhra Pradesh, Calcutta, Chhattisgarh, Delhi, Himachal Pradesh, Bombay and Jharkhand — are currently without chief justices.

With the enormous backlog of cases in the judicial system, these incidents only serve to cause further dismay in litigants.

The Allahabad high court has the highest number of pending cases, exceeding 900,000 cases in 2016 and 2017.

The number of pending cases has declined during 2017 by a slight margin in only three of 24 high courts.

In terms of increase in pending cases, Karnataka high court is the most stressed court with an increase in pendency of 36,479 cases followed by Hyderabad and Punjab & Haryana with 32,548 and 30,195 pending cases, respectively.

The working strength of judges has not changed for the three high courts of Jharkhand, Meghalaya and Sikkim.

The number of judges has declined in Calcutta (seven), Himachal Pradesh (three), Gujarat and Tripura (two) and Manipur and Orissa (one).

The working strength has increased in all other courts with Madras witnessing the maximum increase of 16 judges, followed by Bombay with 10 judges, and Patna, Rajasthan, Gauhati and Chhattisgarh with six judges each.

It is high time approach be taken to determine judicial strength and allocation of judges in different high courts. The appointment process needs to be made simpler, with specific timelines for each stage. Attempts must be made to disseminate information on judges’ appointments, which can help in tracking the average time taken in the entire process. A positive step towards these initiatives can go a long way in combating the problem of mounting vacancies.

The post Concern: Union Govt sitting on ‘Able’ Judges appointment by Collegium recommendations a norm now; Judiciary Suffering due to inability to get judges appointed appeared first on Legal Desire Media and Insights.

                                                                                                                          -Palak Khare

INTRODUCTION

The birth of the Indian constitution laid the separation of power between the legislature, executive and judiciary. The legislature and executive being the focused organ when it comes to accountability and transparency, the judiciary being regarded as the ultimate mainspring of justice never came into limelight. In a democratic setup, like India, where all the three organs play their roles jointly and severally, judiciary must not be excepted because Indian judiciary acts as guardian and protector of fundamental rights of the people. The common man puts his immense faith on the judicial system for his injured legal and moral rights. But due to the abuse of power and corruption, “values in the judiciary, from lower courts to Supreme Court are sliding and people are losing faith in the system.”[1]Therefore there is the pressing demand for greater institutional accountability in the Indian judiciary to thwart the decline in the standard of judges. Even the judges should be kept under the purview of scrutiny. Hence, the Judicial Standards and Accountability Bill, 2010 was introduced in the parliament which aims to increase accountability of the higher judiciary in India. The bill tries to lay down judicial standards, the procedure of removal of judges of Supreme Court and High Court and most importantly require the judges as well as their spouse and children to declare their assets.

Then, the other issue which became the need of the hour is a felicitous procedure of selection of the judges. “Opaqueness has been prevailing over the selection of judges in High Courts and Supreme Courts for the past two decades. There have been widespread allegations that relatives of judges were favored and promoted, instead of the deserving candidates”[2]There had been a prolonged tussle between the three organs for the selection of judges to the Supreme Court and high courts. To relax this tussle, the National Judicial Appointments Commission Bill, 2014 was introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill is also known as the 121^st  Constitutional Amendment Bill, 2014.This bill became National Judicial Appointments Commission Act,2014.This Act establishes the National Judicial Appointments Commission (NJAC) which contains the provisions regarding vacancies, procedure to be followed for selection of Supreme Court and High court judges and transfer issues.

 THE JUDICIAL STANDARDS AND ACCOUNTABILTY BILL, 2010

Accountability and transparency are the fundamentals of the democratic form of government. To be accountable is, to be reasonable, answerable and to take responsibility of one’s own function not to oneself but to some other external body.  Article 235 of the Indian Constitution talks about control over subordinate court that is lower courts are accountable to the high court of their respective states and on the other hand also enjoys the privileges to work independently away from the interference of any other organ or institution of the government[3].But in the higher judiciary there is no such provision they are independent and not accountable to anyone .The only way through which higher judiciary is accountable  is through the Impeachment under Article124(4) of the Indian constitution states that “ a judge of the supreme court shall not be removed from his office except by an order of the president passed by each house of parliament supported by a majority of the total membership of that house and by a majority of not less than two –third of the members of the house present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior and incapacity. ”[4]But this procedure is so complicated to be followed and therefore to fill up this lacuna a need arises for urgent enactment of provisions through which the higher judiciary should be made accountable, like all other organs of the government.

The Judicial Standard and Accountability Bill was introduced in parliament to bring accountability and transparency and laid down standard for the higher judiciary. The present bill replaces the Judges Inquiry Act, 1968. The judiciary claims that any outside body having disciplinary power over them who compromise their independence so they have set up an in-house mechanism   for investigating corruption this was proposed by the Judges Inquiry Act Amendment Bill, 2006.[5] The main purpose of this bill is to constitute a mechanism which would enquire into the acts of misbehavior and incapacity of the judges of the Supreme Court and high courts.[6]The problem which arises in this in-house procedure is that the judges regarded themselves as close brotherhood and therefore are unwilling to take any step against them. What is objectionable is that section 33 which says that not to disclose any information relating to the complaint to any person in any proceeding except when directed by council. This will make it impossible to publicize the charges. The only positive feature of this bill is that it initiates an inquiry against the allegation of misconduct of a judge. [7]

Key features of the bill- [8]

• This bill replaces the Judges (Inquiry) Act, 1968

           It seeks[9]–

• to lay down judicial standards and to provide for accountability of the Judges
• to establish credible and expedient mechanism for investigating into individual complaints for misbehavior or incapacity of a Judge of the Supreme Court or of a High Court
• to regulate the procedure for such investigation
• for providing of the presentation of an address by the Parliament to the President of India for removal of a Judge, and
• To provide for connected or incidental matters.

Judicial standard: – The bill set out the certain standard of conduct, under chapter II which should be followed by the judges. This clauses have been derived from a full bench meeting in the Supreme Court on 7^th may, 1997 entitled Reinstatement of Values of Judicial Life.[10] The grounds on which complaints can be made against the judges are non-compliance with the standard mentioned under chapter II of this bill, other activities such as corruption, willful abuse of power persistent failure to perform duties.

Judicial Accountability:-To make judiciary accountable the provisions inserted by the judiciary are as follows-

• Under chapter IV section 4 judges shall be made declaration of his assets and liabilities and also that of their spouse and dependent children of which they are jointly or severally, owner and beneficiaries.
• Under chapter V and VI of the bill three committees are established namely National Judicial Oversight Committee, Scrutiny Panel Committee, and Investigation Committee .Under section 7 any person can make a complaint against any judge on the ground their misbehavior and incapacity to the over sight committee.
• Under section 33 the oversight committee may recommend stoppage of assigning judicial work to the concerned judge in the interest of fair and impartial scrutiny of complaint.
• Under section 29 inquiries shall be conducted in camera and the investigation committee shall complete the inquiry within a period of six months from the date of receipt of complaint and the further extension of six months can be given by the oversight committee.
• Under section 53, if any complaint found to be frivolous or vexatious or made with the intent to scandalize or intimidate the judge then such person shall be punishable with simple imprisonment which may extend to one year and also with fine which may extend to 50,000 thousand rupees.

 Loopholes in the present bill:-

• The documents and records of proceeding related to complaint are exempted from the purview of Right to Information Act 2005; only the report of investigation and the order of oversight shall be made public.
• The bill fails to have any provision regarding the appeal to the Supreme Court that is whether the judge concerned having right to appeal to the Supreme Court against the order of the removal issued by the president after parliament finds him guilty of misbehavior.

THE NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014

There is a broad perception among most stakeholders that the present collegium system has not performed well and needs radical change. The controversial collegium system came into existence mainly by three significant cases i.e., S. P. Gupta v. Union of India – 1981 (also known as the Judges’ Transfer case) which declared that the “primacy” of the CJI’s recommendation on judicial appointments and transfers can be refused for “cogent reasons.” The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years, Supreme Court Advocates-on Record Association vs. Union of India – 1993(also known as the second judges case) in which the majority verdict gave back CJI’s power over judicial appointments and transfers. It says the CJI only need to consult two senior-most judges. “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,” the verdict reasoned. The President is reduced to only an approver. Lastly, Special Reference case of 1998 or the Three Judges Case (October 28, 1998)which on a reference from former President K.R. Narayanan, the Supreme Court laid down that the CJIs should consult with a plurality of four senior-most Supreme Court judges to form his opinion on judicial appointments and transfers.[11]But, the worrying concerns continued relating to appointment of unsuitable candidates and selection based on favouritism and nepotism, influential connections and personal likes and dislikes.[12]Considering such flaws, the Law Ministry in 2014 sought to put an end to the collegium system of judges appointing judges. So, they took a step to make such a body which could bring transparency in judicial appointments.

The National Judicial Appointments Commission Bill, 2014 was introduced by Lok Sabha on11.08.2014. The Constitution amendment bill requires ratification by at least 50 percent of the state legislatures. As many as 16 out of 29 states have already ratified the bill. It was passed by both the houses in August and cleared by the Presidenton 31 December 2014. As the Constitution is the Law of the Land, therefore, the Constitution itself had to be first amended before any such Commission could be put into place. Amendments are made to Articles 124 (2) and 217 (1) of the Constitution that deals with the appointment of judges in the Supreme Court and the High Courts, respectively and some words in other articles are also been substituted. Therefore, new Articles, i.e., Article 124A, 124B and 124C are been inserted in the CONSTITUTION (NINETY-NINTH AMENDMENT) ACT, 2014.  The newly inserted Article 124A and 124B establishes and gives to the National Judicial Appointments Commission constitutional status, while at the same time describes its composition, functions and powers. Through Article 124C, the NJAC Act, confer upon both the Central Government as well as the Commission itself, with rule making power to further define the manner in which appointments are to be made.

The NJAC will now serve as a constitutional body like the Election Commission, Comptroller and Auditor General Etc.The Act holds to put in place the new mechanism to select Supreme Court and High Court judges.The Act will lead to the establishment of the National Judicial Appointments Commission, which will appoint and transfer judges to the Supreme Courts and the 24 High Courts. The headquarters of the Commission shall be at Delhi. As per the amended provisions of the constitution, the Commission’s composition would comprise of the Chief Justice of India who will be the chairperson, and next to him would be two other senior most judges of Supreme court, along with the Union law minister and two other eminent members to be jointly chosen by the Prime Minister, the Law Minister and the Leader of Opposition, one of which is to belong to the category of Scheduled Castes, Scheduled Tribes, Other Backward Classes, minorities or women. [13]

The Commission shall on the basis of ability, merit and any other criterion of suitability will nominate and also recommend persons for the appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers. Before any nomination of Judges of High Courts, the Chief Justice of the concerned High Court shall consult two senior-most Judges of that High Court and such other Judges and eminent advocates of the High Court. The Commission shall elicit in writing the views of the Governor and the Chief Minister of the State concerned before making such recommendation in such manner as may be specified by regulations. Further, if any two members do not agree, then the Commission shall not make such recommendation. In such a case, the President may ask the Commission to reconsider the recommendation and then make the appointments accordingly. Thus, this Act will provide a significant role for the judiciary, the executive and the eminent persons by being the part of the commission.[14] It will introduce a transparent selection procedure and thereby replace the collegium system of judges choosing judges.

However, there is no doubt the collegium system has developed serious flaws. In direct reference to these flaws, the NJACB, 2014 is littered with words such as “ability” and merit”. The appointment and rejection of judges through the collegium system had been marred by personal preferences and rivalries of those selecting/appointing the judges. Justice Markandey Katju, current Chairperson of the Press Council of India, highlighted elevation of alleged corrupt judge Justice S. Ashok Kumar as a Madras High Court judge under the pressure of the Dravida Munnettra Kazhagam, a Tamil political party and an alliance partner of the previous United Progressive Alliance (UPA) government at the center. If certain Chief Justices had failed to stand up to pressure of the UPA Government, which itself was under pressure from the DMK, for the elevation of Justice S. Ashok Kumar, it is unlikely that in future, members of the National Judicial Appointments Commission shall be able to stand up to any government.[15]This Act will mark the start of the executive encroaching upon the judiciary and will threaten the independence of judiciary.

Thus, though the Act aims at making the judicial selection more transparent but it has to ensure that the members of the commission are accountable and not bias and thereby make such a selection which will not hamper the judicial system.

CONCLUSION

The focus of this article is basically upon how does the National Judicial Appointments Commission Act, 2014 and Judicial Standard and Accountability Bill, 2010 work and how in near future these legislations will help in bringing transparency in the judicial system. As no Act and Bill are without being confronted to debates and contradiction, so they are also facing certain criticism. Many issues are yet not explicit.

So far as the transparency is concerned, as the composition of the National Judicial Appointments Commission Act, 2014 and Judicial Standard and Accountability Bill, 2010 do not solely consists of members of judiciary but also includes the role of executive in the appointments, so this will make higher judiciary more accountable and responsible.

Thus, in the end to give impetus to the duty of higher judiciary and judges, it can be quoted through the words of Justice Sabyasachi Mukherjee, during the controversy regarding the impeachment of Justice V. Ramaswami, stated: “… The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and Judges must, therefore, be obliged to live according to law ….”[16].

References:-

[1] Kadapa District Justice C.V. Nagarjuna Reddy; http://zeenews.india.com/news/nation/people-losing-confidence-in-judicial-system-legal-experts_838590.html

[2]AkhilBharatheeyaAdhivakthaParishad, National Secretary Adv K SrinivasaMoorthi; http://www.newindianexpress.com/cities/kochi/Judiciary-has-Key-Role-in-Safeguarding-People%E2%80%99s-Faith/2014/08/27/article2400596.ece

[3] http://www.ijlass.org/data/frontImages/gallery/Vol._2_No._7/14.pdf

[4] P.M. Bakshi, The Constitution Of India,Eleventh Edition,2011

[5] http://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf

[6] http://www.pucl.org/Topics/Law/2006/judicial_council.html

[7] http://ccs.in/internship_papers/2011/247_judicial-accountablity-in-india_isha-tirkey.pdf

[8]http://orfonline.org/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=31932&mmacmaid=31933

[9] Ibid

[10] https://indialawyers.wordpress.com/2009/11/12/restatement-of-values-of-judicial-life-1999-code-of-judicial-ethics/

[11] http://www.thehindu.com/news/national/the-validity-of-the-collegium-system/article6148870.ece

[12] http://www.thehindu.com/opinion/lead/making-judiciary-more-transparent/article6277602.ece

[13]Reference made from National judicial appointment commission Act,2010

[14]ibid

[15]http://www.achrweb.org/Review/2014/242-14.html

[16] http://www.thehindu.com/opinion/lead/making-judiciary-more-transparent/article6277602.ece

Authors:-

PALAK KHARE (B.A. LLB 4^th year)

SHINI JAIN (B.A. LLB 4^th year) 

Bharati Vidhyapeeth Deemed University, New Law college, Pune

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