17 April 2013

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In Depth Know Supreme Court Judge Appointment Procedure Government Plans to bring JAC and take over Judiciary Apex Court

In Depth Know Supreme Court Judge Appointment Procedure Government Plans to bring JAC and take over Judiciary Apex Court

Judiciary is one of the three wings of the State.  
Though under the Constitution the polity is dual the judiciary is integrated which can interpret and adjudicate upon both the Central and State laws.

The structure of the judiciary in the country is pyramidical in nature.

At the apex, is the Supreme Court.  Most of the States have a High Court of their own.  Some States have a common High Court.

The appointment of Judges of the Supreme Court and their removal are governed by Article 124 of the Constitution of India.

Articles 125 to 129 provide incidental matters.

The appointment and removal of the Judges of the High Courts are governed by Article 217.

Articles 218 to 221 and 223 to 224A provide for certain matters incidental thereto.

Article 222 provides for transfer of Judges from one High Court to another.


So far as the subordinate judiciary is concerned, the constitutional provisions relating thereto are contained in Articles 233 to 237.

These provisions are, of course, supplemented by the rules made by the respective Governors of the States under the proviso to Article 309 of the Constitution.

 Independence of the Judiciary:

Having regard to the importance and significance attached to the function performed by the judiciary, the Constitution has consciously provided for separation of judiciary from the executive.

This is the excellent feature of the Indian Judiciary, which has kept executive that is Politician away from the Judiciary and have not given any power to Executive that is Politician.

Today Indian citizens have faith only in the Indian judiciary no one has trust in politicians.

Just because of fear no one says nothing , speaks nothing or even agrees or expresses anything.

Article 124 in the Constitution of India 1949

124. Establishment and constitution of Supreme Court
 

(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years:

Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:

(a) A Judge may, by writing under his hand addressed to the President, resign his office;

(b) A Judge may be removed from his office in the manner provided in clause ( 4 )

A  practice had developed over the last several decades according to which the Chief Justice of India initiated the proposal, very often in consultation with his senior colleagues and his recommendation was considered by the President (in the sense explained hereinabove) and, if agreed to, the appointment was  made.  By and large, this was the position till 1981.

Collegium of judges:

 Year 1981 -82
S.P. Gupta vs. Union of India (AIR 1982 SC 149) -   Judgement in this case created problems for judiciary and Executive became Powerful


  In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India (AIR 1982 SC 149), the majority held that ‘consultation’ does not mean ‘concurrence’ and ruled further that the concept of primacy of the Chief Justice of India is not really to be found in the Constitution.

It was held that proposal for appointment to High Court can emanate from any of the four constitutional functionaries mentioned in Article 217 – and not necessarily from the Chief Justice of the High Court.

This decision had the effect of unsettling the balance till then obtaining between the executive and judiciary in the matter of appointment.

The balance tilted in  favor of the executive.

Not only the office of the Chief Justice of India got diminished in importance, the role of judiciary as a whole in the matter of appointments became less and less.

After this judgment, certain appointments were made by the Executive over-ruling the advice of the Chief Justice of India.


Naturally, this state of affairs developed its own backlash.

Year 1993 -  The Independence of Indian Judiciary was restored 

 In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441) over-ruled the decision in S.P.Gupta.

The nine-Judge Bench (with majority of seven) not only overruled S.P. Gupta’s case but also devised a specific procedure for appointment of Judges of the Supreme Court in the interest of “protecting the integrity and guarding the independence of the judiciary.”  For the same reason, the primacy of the Chief Justice of India was held to be essential.

It held that the recommendation in that behalf should be made by the Chief Justice of India in consultation with his two senior-most colleagues and that such recommendation should normally be given effect to by the executive.

Elaborate reasons were are recorded in support of the proposition that selection of judges must be in the hands of the judiciary in this country and how the systems prevailing in other countries are alien to our constitutional system.

One of the judges relied upon Article 50 of the Constitution, which speaks of separation of judiciary and executive and excluded any executive say in the matter of appointment to safeguard the “cherished concept of independence.”

It held at the same time that it was open to the executive to ask the Chief Justice of India and his two colleagues to reconsider the matter, if they have any objection to the name recommended but if, on such reconsideration, the Chief Justice of India and his two colleagues reiterated the recommendation, the executive was bound to make the appointment.

In short, the power of appointment passed into the hands of judiciary and the role of the executive became merely formal.

The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739] in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference being made by the President under Article 143 of the Constitution.

All the basic conclusions of the majority in the 1993 decision were reaffirmed.  There was, however, some variation.

It was held that the recommendation should be made by the Chief Justice of India and his four senior-most colleagues (instead of the Chief Justice of India and his two senior-most colleagues) and further that Judges of the Supreme Court hailing from the High Court to which the proposed name comes from must also be consulted.

In fact, the Chief Justice of India and his four senior-most colleagues are now generally referred to as the ‘Collegium’ for the purpose of appointment of Judges to the Supreme Court.

Appointment of Judges to High Courts –

Procedure for appointment of Judges of High Courts:

The procedure for appointment of Judges of the High Courts is slightly different from the one concerning the appointment of Judges of the Supreme Court.

Clause (1) of Article 217 says that “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, as provided in Article 224, and in any other case, until he attains the age of sixty-two years”.  

A reading of this clause shows that while the appointment is made by the President, it has to be made after consultation with three authorities,
Namely,
The Chief Justice of India,
The Governor of the State
And the Chief Justice of the High Court.

(Of course, in the matter of appointment of Chief Justice, the consultation with the Chief Justice is not required).

Just as the President is the constitutional head, so are the Governors.

However, according to the practice, which had developed over the last several decades and which was in vogue till the aforementioned 1981 decision of the Supreme Court (S.P.Gupta),  the Chief Justice of the High Court used to make the recommendation which was considered by the Governor of the State (Council of Ministers headed by the Chief Minister) who offered his comments for or against the recommendation.

The matter then went to the Central Government.

At that stage, the opinion of the Chief Justice was sought and based upon such advice, the appointment was either made or declined, as the case may be.

It may be noted that even clause (1) of Article 217 uses the expression ‘consultation’ and not ‘concurrence’.

The decision of the Supreme Court in S.P. Gupta on the meaning of ‘consultation’ applied equally to this Article.  After the decision in S.P. Gupta, the executive made quite a few appointments to the High Courts which gave rise to a good amount of dissatisfaction among the relevant sections including the Bar leading to the nine-Judge Constitution Bench decision of the Supreme Court in 1993 aforementioned.

The decision laid down that the recommendation for appointment to the High Court shall be made by the Chief Justice of the concerned High Court in consultation with his two senior-most colleagues.

The opinion of the Chief Justice of India was given primacy in the matter and was to prevail over that of the Governor of the State or even that of the High Court, if inconsistent with his view.

The President was of course to make the formal appointment just as in the case of a Judge of the Supreme Court.  This position was affirmed in the Third Judges case (1998 (7) SCC 139).

Why above all the laws were added in the Indian Constitution?

Why Constitution gave the importance to the  Supreme Court of India?

The reason is very simple  that time our politicians like Dr. Ambedkar, Alladi Krishnaswami Ayyar and K.M. Munshi, the great political leaders  did not trust the executive they knew and understood the Indian situation.

Today also Indian situation is same nothing has changed not a 1% change has happened in India everything is same

The requirement of consultation with not only the Chief Justice of India but with certain other Judges at the Supreme Court and High Court level in Article 124 is an added indication of the concern the founding fathers had with the independence of the judiciary.

Evidently, they did not trust the Executive in India to make proper appointments and hence ‘entrenched’ the requirement of ‘consultation’ in the Constitution itself expressly.

 It is, therefore, perfectly consistent with the Constitution, for the Supreme Court to say, in its 1993 and 1998 decisions referred to hereinbefore, that the Chief Justice of India occupies a pre-eminent position and that the “consultation” contemplated by the said Articles should be a real and full consultation and further that since the Judges would be in a better position to judge the competence and character of the prospective candidates, their opinion should prevail in the matter of appointment.

Indeed, as pointed out hereinafter, this is also the policy adopted by the Constitution with respect to the appointment of members of the subordinate judiciary.

They are selected by the High Court; only the formal orders of appointment are issued by the Governor/ Government.

The above concept has given us Judges who gave excellent judgement in 2G scam, Coal Scam

Now to make the Judiciary a weak organ in Indian Democracy Government of India is planning to change the process of appointment of Judges.

The law ministry has proposed that the setting up of a Judicial Appointments Commission
The proposed Judicial Appointments Committee (JAC) will be presided over by the

1)  
Chief  Justice of India

2)  
two sitting Supreme Court Judges

3)  
One eminent jurists appointed by the President of India [ politician controlled ]

4)  
Second eminent jurists appointed by the President of India [ politician controlled ]

5)  
the Union Law  Minister [ politician controlled ]

6)  
Secretary - Department of Law and Justice. [ politician controlled ]

The cabinet note says the inclusion of the Leader of the Opposition  on the JAC

In the above format you can see that majority is controlled by Politicians thus after one or two strict judges all future judges may be appointed who will praise the Politicians.

Thus we will never get to see the judgement like 2G scam, Coal Scam etc.

Just like CBI Supreme Court of India and High Court Position will became they will become similar.

Suggested Reading –

Indian Judges will obey and will be under politicians – On the name of Judges appoint bill Government will take control of Judiciary


Reality views by sm –

Wednesday, April 17, 2013

Tags – Judges Appointment Change Plan JAC  


2 comments:

MEcoy April 17, 2013  

another great post sm