Collegium system opaque, needs improvement: 2 judges hearing NJAC case
- Bhadra Sinha, Hindustan Times, New Delhi |
- Updated: Oct 17, 2015 01:23 IST
The apex court also said it will consider the introduction of measures to improve the existing collegium system. The issue will be heard on November 3. (Mohd Zakir/ HT File Photo)
Two of the five judges of the constitution bench that struck down the new law to appoint judges criticised the collegium system the top court restored on Friday for lacking “transparency, accountability and objectivity”.
Under the collegium system created in the 1990s, the executive was excluded from the judicial appointment process and a few judges appointed other judges in complete secrecy in a bid to ensure judicial independence.
Over the years, the system was criticised for being “opaque” and vulnerable to favouritism, prompting the new law that gave the government a greater say in the appointment of Supreme Court and high court judges.
Justices J Chelameswar and Kurien Joseph mooted overhauling the system which excluded deserving candidates for “subjective reasons” and denied opportunities to the “less patronised ones”.
Justice Joseph said the collegium system “certainly” called for a deep introspection. “The dictatorial attitude of the Collegium is seriously affecting the self-respect and dignity, if not, independence of judges…,” he observed.
“... the Collegium system needs to be improved requiring a ‘glasnost’ and a ‘perestroika’, and hence the case needs to be heard further in this regard,” he said.
Justice Chelameswar, who authored a dissenting judgment to uphold the constitutional amendment on setting up the new judicial appointments commission, said the records of those appointed under the collegium were beyond the reach of any person, including an SC judge. He said the proceedings of the collegium were absolutely “opaque and inaccessible” to the people at large.
“Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country,” he said. According to him, one of the flaws in the collegium was that it sometimes went back on its decisions without giving a reason.
“There are also cases where the collegium of this court quickly retraced its steps having rejected the recommendations of a particular name made by the HC collegium …,” Justice Chelameswar noted.
Justice Joseph said the executive’s active silence in not preventing so-called “unworthy appointments” was one of the reasons for the failure of the system.
Also read:
http://www.hindustantimes.com/india/collegium-system-not-transparent-needs-improvement-njac-bench-judges/story-DUtK9IvgkVdVXpgVbP5zlM.html
| Saturday , October 17 , 2015 |
JUDGEHAMMER |
| R. Balaji and Our Bureau |
  New Delhi, Oct.16: The Supreme Court has struck down the legislation for picking judges, nonplussing the political class, fuelling fears of fresh friction between the judiciary and Parliament and exposing deep fault lines among parties that had once stood united. The court declared as “unconstitutional” the National Judicial Appointments Commission (NJAC) Act, which sought to replace the “collegium” system of appointing judges to the higher judiciary. The 99th constitutional amendment that allowed changes to the appointment process was also declared void. A five-judge bench ruled that the collegium system would revive automatically. This restores to the judiciary the upper hand in the appointment and transfer of judges. The collegium is made of only judges whereas the NJAC postulated a role for the Union law minister and two eminent persons. The six-member NJAC was also armed with a veto power as opposition from any of the two members could have derailed an appointment. Since the eminent persons would have been picked by a panel on which the political-executive had the upper hand, concern has been expressed that the law minister, along with two pliable “eminent persons”, could stall a name agreed upon by the remaining three members (the senior-most judges in the Supreme Court). The majority view of the five-judge bench today was that such a possibility would undermine the independence of the higher judiciary. One of the five judges did uphold the validity of the Constitution amendment but added that “in view of the majority decision, I do not see any useful purpose in examining the constitutionality” of the NJAC Act. The revival of the collegium system does not mean that it is insulated from ills of its own. The apex court bench admitted the need for improving the collegium system — described by the dissenting judge as “absolutely opaque” — and invited suggestions from the government and the petitioners. The Narendra Modi government said the verdict was a “setback to parliamentary sovereignty”. “While holding very dearly the principle of independence of judiciary, I regret to say that parliamentary sovereignty has received a setback today.... Questions have been raised on parliamentary sovereignty,” said telecom minister Ravi Shankar Prasad, who had piloted the NJAC bill in Parliament as the then law minister. D.V. Sadananda Gowda, the current law minister, expressed “surprise” at the verdict. Prasad said the government would decide its future course of action after reading the 1,030-page judgment. The government has few options, especially because of the sense of mistrust and acrimony sweeping the polity. The Congress, which had initiated the NJAC plan but without the veto power, was quick to blame the government and rule out any cooperation if the NDA regime planned to take the judiciary on. The bench commented not just on the constitutionality and legality of the controversial issue involved but also on the perception that fascist tendencies were emerging in the country. The court quoted BJP veteran L.K. Advani to articulate that “forces that could crush democracy were now stronger than ever before” in the post-Emergency era. Advani’s comments in June were interpreted as a sharp indictment of the Modi regime that is now facing flak for the growing tide of intolerance in the country. The sole consolation for the government, if any, was that the verdict was passed by a 4:1 majority in that Justice J. Chelameswar, the second senior-most judge on the bench, dissented from the majority view. The other judges on the bench were Justice Jagdish Singh Khehar, Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel. The verdict was delivered on a batch of appeals filed by the Supreme Court Advocates-on-Record-Association and several other individuals and organisations that questioned the constitutional validity of the NJAC. The Supreme Court accepted the powers of Parliament but issued a reminder on the riders to it. “Undoubtedly, it is open to Parliament… to provide for some other alternative procedure for the selection and appointment of judges to the higher judiciary, so long as the attributes of ‘separation of powers’ and ‘independence of the judiciary’, which are ‘core’ components of the ‘basic structure’ of the Constitution, are maintained,” the court said. The bench expressed deep concern at the inclusion of the law minister in the selection process. “Consequent upon the participation of the Union minister in charge of law and justice, a judge approved for appointment with the minister’s support may not be able to resist or repulse a plea of conflict of interest, raised by a litigant, in a matter when the executive has an adversarial role. It would have the inevitable effect of undermining the “independence of the judiciary” even when such a plea is repulsed, the court said. YOUR QUESTIONS • What is the immediate impact of the verdict? The original Article 124 (appointment of Supreme Court judges) and 217 (appointment of high court judges) are revived, restoring the collegium system. The NJAC would have been made up of the Chief Justice of India (CJI), the two other senior-most judges of the Supreme Court, the Union law minister and two eminent persons. Under the collegium system, a committee of the CJI and the four other senior-most judges would pick judges for the Supreme Court. For high courts, the CJI and the two other senior-most judges would form the committee. The collegium sends the names to the President through the law ministry to have the candidates’ antecedents checked through the intelligence machinery. In case of any adverse reports, the candidates are not selected. • Didn’t Parliament pass the NJAC law with a huge majority? Can a court overrule Parliament? Both Houses of Parliament passed the act in near-unanimity, cutting across party lines. The sole dissenting member was Ram Jethmalani, an eminent lawyer and a Rajya Sabha member. The act was also ratified by “one half of the states” as required under Article 368 of the Constitution. In this case, 18 states had ratified the amendment. Article 368 of the Constitution empowers Parliament to amend any provision of the Constitution. However, the apex court had been holding since 1965 that even Article 368 is subject to judicial review if the amendment violates any fundamental right and the basic structure theory. This was given the stamp of approval by a 13-judge Constitution bench that ruled in the Keshavananda Bharti case in 1973 that Parliament cannot amend any constitutional provision if such amendment violates the basic structure theory. The basic structure theory deals with the checks and balances that the original framers of the Constitution had evolved on the three wings of democracy — the executive, the legislature and the judiciary. Each has its own designated statutory and constitutional rights that ensure none can encroach upon on the domain of another. The apex court is of the view that since the NJAC encroaches into judicial independence, it violates the basic theory • What are the legal options before the government now? No option but to comply with the order. The plea for reference to a larger bench was also rejected by the apex court on Friday. However, there is a small window for the government to revamp the collegium system. The apex court admitted that certain aberrations in the existing system needed to be rectified. The five-judge bench said it would hear in the first week of November the suggestions of the government and various petitioners for improving the collegium system • What about a review petition? Attorney-general Mukul Rohatgi, who represents the Union government, said after the verdict that the government would not file any review petition. He said it was now for Parliament to take a decision whether it would bring a new act or not • Why has Kapil Sibal targeted Arun Jaitley and asked him to concentrate on the finance ministry? Jaitley is the finance minister but as a former law minister and a lawyer in his own right, a perception exists that it was he who had been “guiding” the legal strategy. Sources say that even the law officers are appointed at his behest. Jaitley was considered one of the champions of the NJAC Act and he had resolutely defended the bill although it was piloted by Ravi Shankar Prasad. It was rumoured in legal circles that Prasad, who is also a senior lawyer, had opted out of the law ministry as he did not want to play second fiddle to Jaitley. Two swords cannot co-exist in the same sheath, a lawyer said. |
http://www.telegraphindia.com/1151017/jsp/frontpage/story_48527.jsp#.ViGQT8UrLIU
#NJAC Unconstitutional ; Constitution Bench [4;1] [Read Judgment] [Updated]
By: Live Law News Network | October 16, 2015
The Constitution Bench of the Supreme Court declared National Judicial Commission (NJAC) Unconstitutional as it violates Basic Structure of Constitution of India by 4;1 Majority. Justices J S Khehar, MB Lokur, Kurian Joseph and Adarsh Kumar Goel declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.
Here is the Conclusions of the Majority Judgment as narrated by Justice Kehar in PARA- 254-256 of the Judgment
“Article 124A constitutes the edifice of the Constitution (99th Amendment) Act, 2014. The striking down of Article 124A would automatically lead to the undoing of the amendments made to Articles 124, 124B, 124C, 127, 128, 217, 222, 224, 224A and 231. This, for the simple reason, that the latter Articles are sustainable only if Article 124A is upheld. Article 124A(1) provides for the constitution and the composition of the National Judicial Appointments Commission (NJAC). Its perusal reveals, that it is composed of the following: (a) the Chief Justice of India, Chairperson, ex officio; (b) two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio; (c) the Union Minister in charge of Law and Justice – Member, ex officio; (d) two eminent persons, to be nominated – Members. If the inclusion of anyone of the Members of the NJAC is held to be unconstitutional, Article 124A will be rendered nugatory, in its entirety. While adjudicating upon the merits of the submissions advanced at the hands of the learned counsel for the rival parties, I have arrived at the conclusion, that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of “independence of the judiciary”. I have independently arrived at the conclusion, that clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of “independence of the judiciary”, as well as, “separation of powers”. It has also been concluded by me, that clause (d) of Article 124A(1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the “basic structure” of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside. The same is accordingly hereby struck down in its entirety, as being ultra vires the provisions of the Constitution.
The contention advanced at the hands of the respondents, to the effect, that the provisions of the Constitution which were sought to be amended by the impugned constitutional amendment, would not revive, even if the challenge raised by the petitioners was accepted (and the Constitution (99th Amendment) Act, 2014, was set aside), has been considered under a separate head, to the minutest detail, in terms of the submissions advanced. I have concluded, that with the setting aside of the impugned Constitution (99th Amendment) Act, 2014, the provisions of the Constitution sought to be amended thereby, would automatically revive, and the status quo ante would stand restored.
The National Judicial Appointments Commission Act, 2014 inter alia emanates from Article 124C. It has no independent existence in the absence of the NJAC, constituted under Article 124A(1). Since Articles 124A and 124C have been set aside, as a natural corollary, the National Judicial Appointments Commission Act, 2014 is also liable to be set aside, the same is accordingly hereby struck down. In view of the above, it was not essential for us, to have examined the constitutional vires of individual provisions of the NJAC Act. I have all the same, examined the challenge raised to Sections 5, 6, 7 and 8 thereof. I have concluded, that Sections 5, 6 and 8 of the NJAC Act are ultra vires the provisions of the Constitution”.
In April 7, a three-judge bench of the apex court had referred the matter to a five-judge Constitution Bench, the batch of petitions challenging the validity of NJAC Act to replace the two-decade-old Collegium System. Under the old Collegium System, five top judges of the apex court used to recommend the transfer and elevation of judges to the Supreme Court and the 24 High Courts. The NJAC was signed into an Act by President Pranab Mukherjee on December 31, 2014. According to the new act, two eminent persons will be nominated to the NJAC as members by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in Lok Sabha or the leader of single largest Opposition party. The eminent persons will be nominated for a period of three years and will not be eligible for re-nomination.
Read the Judgment here.
See: http://bharatkalyan97.blogspot.in/2015/10/njac-unconstitutional-constitution.html