Sunday, 17 April 2016
Thursday, 17 December 2015
"WE THE PEOPLE..."
How ‘We the People’ came to be the source of authority of the Constitution
This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional ‘autochthony.’
CONSTITUTIONAL AUTOCHTHONY
The etymological roots of ‘autochthony,’ which is not to be confused with ‘autonomy,’ are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.
This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.
On Kelsen’s account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.
Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the ‘source’ of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor’s Constitution. In such cases, it was thought that since there was no ‘revolution,’ one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal “so as to make up a revolution, however contrived.”
IRISH INFLUENCE
The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.
Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.
Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.
WHY DID IT MATTER?
This quest for autochthony is likely to come across to some as an abstruse quibble that shouldn’t concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely prudential reassurances to be precarious pegs to hang their nation’s independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the People so that an independent future could, albeit symbolically, be insulated from a troubled imperial past
Monday, 16 November 2015
The Supreme court's Dilemma
The Supreme Court by and large remains popular. Yet, if one digs a bit, beneath the surface is an institution that has strayed from its mission and may even be undermining the rest of the judicial system. By NICK ROBINSON
While Members of Parliament and top-level bureaucrats are regularly pilloried in the media for alleged corruption or sidestepping of their duties, the Indian Supreme Court has largely escaped systematic criticism. At least amongst the middle class, the court has remained relatively popular—often for good reason: its judges work hard, seemingly stay above the political fray, and have pushed the government to advance several popular causes (such as promoting transparency, targeting corruption and implementing social welfare programmes better). Yet, if one digs a bit, beneath the surface one finds an institution that many court-watchers believe has strayed from its mission and may even unintentionally be undermining the rest of the judicial system. For the general public, this far more gloomy assessment of the court is difficult to appreciate. Part of the reason why criticism is so muted may be that data about the institution’s operations are so difficult to come by. High-profile Supreme Court orders are reported in newspapers almost every day, but the bulk of the court’s work, which is far more mundane and technical, is not widely understood. It is this work, though, which takes up the majority of the court’s resources and arguably has become a misguided distraction.
Inequity in the court’s caseload
Quite simply, the court’s current 30 judges hear a staggering number of cases. Anyone can appeal a case to the Supreme Court that they feel was wrongly decided in a court or tribunal below. Two Supreme Court judges will hear each of these admission matters to determine whether the case deserves to be heard again at a longer regular hearing where it is decided on its merits. Although the court rejects most requests for a regular hearing, it allows many. In 2011, the court’s judges decided some 47,000 admission matters out of which 9,070 (or about 19 per cent) went on for regular hearing. Listening to all these cases requires a daunting amount of time and has contributed to the Supreme Court’s infamous backlog of pending matters. Given this backlog, it takes on average about four years for the court to reach a final verdict on a case—and sometimes much longer. For a litigant, it can routinely take over a decade to have a case first heard by a district court, reheard in the High Court, and then heard again in the Supreme Court.
Despite the relative ease with which the Supreme Court allows appeals, not all Indians can access its doors equally. Appeals come disproportionately from nearby Delhi and the wealthier States. The Delhi High Court is widely lauded as being one of the highest quality in the country, yet in 2011 approximately 12 per cent of the cases decided by the Delhi High Court were appealed to the Supreme Court. Compare this with Odisha or Jammu and Kashmir, where only about 1.2 per cent of High Court decisions were appealed. In the case of the Madras High Court, it was a mere 1.1 per cent.
This appeal pattern is difficult to characterise as fair. The likelihood that one will appeal one’s case to the Supreme Court is linked to one’s proximity to Delhi and relative wealth. The court has introduced electronic filing, a potential technological solution that allows litigants to easily file their cases from anywhere in the country. However, this does not really fix the underlying problem. One still requires a lawyer certified by the court, called an Advocate-On-Record, to actually file a case in the Supreme Court and a lawyer (who must be based in the capital or flown in) to argue the case before the judges. In the 1980s, the Supreme Court suggested eliminating certain categories of oral arguments, which would have made litigation at the court simpler and less expensive, particularly for litigants not situated in Delhi. In response, the Supreme Court Bar went on strike, and opposition to reducing the role of time-consuming oral argument continues to be fierce amongst practising lawyers as they charge their clients—often at astronomical rates—for each appearance they make before the judges.
When one examines the type of cases the court hears, one sees further evidence that those with more resources unequally capture the institution’s attention. As the chart on page 5 shows, on an average over the last five years service matters involving government employees made up about 16 per cent of the court’s decisions, while direct or indirect tax matters made up another 13 per cent. Land acquisition matters constituted about 9 per cent, while criminal matters, which dominate the workload of lower courts, made up 21 per cent of its disposals.
Perhaps even more tellingly, tax, company law, land acquisition and service matters all have considerably higher acceptance rates for regular hearing than criminal, ordinary civil, or personal law matters. For example, a company law matter is more than twice as likely to be accepted for regular hearing as an ordinary civil law matter. These matters that have a higher acceptance rate tend to involve wealthier litigants or government employees. Perhaps these litigants can afford more effective, higher-priced lawyers to press their cases before the judges. Alternatively, many tax and service matters are not decided by High Courts, but tribunals. The high acceptance rate of matters appealed from tribunals may be a sign that the court is wary of the decisions of these forums. Whatever the explanation, the end result is the same: the court disproportionately spends thousands of hours hearing the cases of wealthier litigants situated in and around Delhi and from more affluent States. These cases are certainly important to the litigants, but for the most part they involve issues that are of trivial significance to the nation.
A distracted court
Meanwhile, important Constitution Bench cases are simply not being heard. The Constitution requires that five or more judges must hear any “substantial question” of constitutional law. Most of the seminal cases of the Supreme Court, whether they involved limiting Parliament’s ability to amend the Constitution or rulings on the constitutionality of caste-based reservation, have been decided by these larger Constitution Benches. In the 1960s, it was common for the court to decide over 100 such cases a year. However, with the court being distracted by so many smaller cases, in the past 10 years it has averaged fewer than eight Constitution Benches a year. Dozens of vital pending Constitution Bench matters have been waiting to be heard for years or even decades. For instance, for many years the court has failed to hear a pending Constitution Bench case to examine the definition of “industry” in a key piece of labour legislation, creating uncertainty for employers and millions of workers.
An increase in the number of appeals has distracted the court not only from deciding Constitution Benches but also from hearing writ petitions. The Constitution, which was drafted by founders who had personally experienced the brutality of government power, allows any Indian who believes their fundamental rights have been violated to approach the Supreme Court directly for a remedy through a writ petition, entirely bypassing the lower courts. Yet today fewer than 2 per cent of admission cases involve writ petitions, mostly because judges have discouraged such litigants from approaching the Supreme Court, directing them to the High Courts instead. Indeed, although a reader of a newspaper might believe most of what the Supreme Court does is spend its time on public interest litigation, which is a type of writ petition, in fact, on average only about 1 per cent of the court’s decisions relate to PIL. On a typical day, the court is far more likely to be found spending its time discussing the intricacies of tax law than intervening on behalf of the poor or the marginalised.
A court that centralises and creates uncertainty
Supreme Court judges frequently justify hearing so many appeals by arguing that they should correct injustices being done by the lower courts. To respond to the manpower needs of such a stance, the maximum number of judges on the court has increased from eight at Independence to 31 today. On any given day, two-judge panels might be hearing appeals in 13 or 14 different courtrooms at the Supreme Court. This creates a clear coordination problem. Any given panel of Supreme Court judges interprets the law slightly differently from another on issues ranging from when to apply the death penalty to how liberally to read consumer protections. These differences between judges generate uncertainty in the law, with distressing repercussions for both litigants and the lower courts.
Between 2005 and 2011, the number of matters disposed of by the High Courts grew by 33 per cent. Yet, the number of matters appealed to the Supreme Court grew by 45 per cent and the number of admission matters the Supreme Court accepted for regular hearing (that is, the appeals the court thought had merit) grew by a whopping 74 per cent. More and more litigants have decided that it makes sense to appeal to the Supreme Court since its judges have decided to rehear more and more appeals.
In these circumstances, if one loses one’s case in the High Court and has the resources, why not take one’s chance in the Supreme Court? One might end up before a panel of two judges at the Supreme Court that is more favourable to one’s arguments. If one can afford a high-priced lawyer who is known for his/her ability to tailor his/her arguments to specific judges or move one’s case to a Bench that is likely to be more sympathetic, all the better.
While there was rapid growth in the Supreme Court’s workload between 2005 and 2011, the disposal of cases by the lower courts grew at a much lower rate (by only 7.8 per cent). If they can, litigants seem to want to have their cases heard first by the High Courts and then appeal up to the Supreme Court. Part of their concern may be the quality of the lower courts, but it is also a realisation that for many types of matters the case will not be truly settled until the Supreme Court has decided it. Such an extremely active Supreme Court demoralises High Court and lower court judges, who now have difficulty determining what the law actually is, and exasperates litigants, who can now expect that any given case will be appealed to the Supreme Court, which means squandering years and money in the process.
Looking forward: A process for reform
The Supreme Court has centralised judicial authority in Delhi, micromanaging the decisions of the rest of the judicial system, with seemingly counterproductive results. By taking on so many cases, the Supreme Court instead of clarifying precedent has confused it. Instead of making the system more accessible, it has normalised an expensive layer of appeal that the wealthy and those closer to Delhi are best positioned to navigate. The current arrangement has enriched Supreme Court lawyers but arguably weakened the health of the rest of the judicial system.
Responding to these concerns, several proposals have been put forward to reform the court in recent years. To tackle geographic inequity in those who approach the court, in 2009 the India Law Commission recommended creating regional Benches of the Supreme Court in Mumbai, Chennai, Kolkata and New Delhi. The Commission also suggested creating a separate Constitution Bench in New Delhi to hear the backlog of pressing Constitution matters. Recently, the Senior Advocate Rajeev Dhavan proposed that the court stay in Delhi in largely its current structure, but specific courtrooms only hear criminal, civil, or constitutional matters (currently some Benches only hear one type of matter–for example, tax matters).
As the Supreme Court’s judges themselves pointed out when rejecting the Law Commission’s call for regional Benches, such a reform would likely only exacerbate coordination challenges amongst the court’s different Benches. It is difficult enough creating a cohesive jurisprudence amongst Benches in Delhi, let alone if they sat in other parts of the country. Dhavan’s proposal to further specialise Benches of the Supreme Court would likely help unify precedent in different areas of law but do little to halt the swarm of appeals that come to the court or the inequities in their make-up. A permanent Constitution Bench is a useful suggestion, but the details of who would sit on it and its relationship to the rest of the court need to be addressed with care.
To really tackle the challenges created by the current system of appeal, the court simply needs to hear fewer cases. In 2011, the Supreme Court decided some 6,002 regular hearing matters. It probably could have decided a third as many matters (or far fewer) and still dealt with all the cases that involved important questions of law, while checking the worst excesses of government power or neglect. Such a reform would then free up thousands of hours for Supreme Court judges to undertake tasks like sitting on larger Benches to clarify precedent or making targeted interventions to strengthen the lower judiciary. For the judicial system to work most effectively and fairly, the vast majority of cases should be decided in the lower courts without the prospect of endless appeal hanging over the heads of litigants.
Whatever the final remedy, it should come through a process that involves active debate over the court’s activities by all stakeholders, including judges, the government, the Bar, academics, and the Indian public. How accessible should the court be (and to what kind of litigant)? How cohesive should its jurisprudence be? How involved should it be in public interest litigation? How closely should it follow the founders’ vision of the Supreme Court, or should it refashion a new one? There are very real trade-offs involved in answering these questions. For example, the more open the court becomes to litigants, the less likely it is that it can maintain uniformity in its precedent. Unfortunately, the Supreme Court has at times hampered debate over its functioning. It has produced no publicly available annual report since 2008-09 and does not generally release data about its inner workings beyond basic statistics concerning its overall backlog or the number of instituted or disposed of matters. Such figures do not provide enough information for an outsider to judge properly the costs and benefits of how the court operates currently. Nor does the information made available shed any light on the criteria by which the current collegium of judges picks new Supreme Court judges or takes other internal governance decisions.
In response to criticism, the Supreme Court has often shown itself to be thin-skinned by repeatedly pulling up journalists before it when it has found their reporting inaccurate.
Even if the court was justified in each of these cases, it has had a broader dampening effect on debate. Journalists and editors routinely err on the side of caution when reporting on the court so as not to risk contempt. In order for the broader public to be actively involved in shaping a vision for the court’s future, its faults must be carefully scrutinised along with its strengths. The Supreme Court’s history is too fabled and its future is too important for anything less.
Friday, 6 November 2015
NJAC
The Supreme Court strikes down an amendment made by Parliament seeking to dilute judicial primacy in the appointment of judges to the higher judiciary, bringing to the fore the serious trust deficit between the judiciary and the government. By V. VENKATESAN
In India’s constitutional history, it is only in a few cases that the Supreme Court has struck down constitutional amendments on the grounds that they damaged or destroyed the basic structure of the Constitution. What distinguishes the Supreme Court’s ruling on October 16 striking down the 99th Constitution Amendment Act, 2014, and the National Judicial Appointment Commission (NJAC) Act, 2014, from its earlier ones is that four members of the five-judge Constitution Bench that delivered the verdict comprehensively articulated the trust deficit between the government and the judiciary while enunciating the legal reasons for its ruling.
Both the 99th Constitution Amendment Act and the NJAC Act were products of peculiar circumstances in the evolution of Indian democracy. Legislation aimed at reforming the appointment of judges by setting up a commission has a long history dating back to 1990. The laws brought forward earlier by coalition governments with uncertain majority support in Parliament could not result in their passage and so lapsed. The Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) came to power in 2014 with a clear majority in the Lok Sabha, and this helped it hasten the passage of the pending legislation with changes considered suitable by the government.
Despite having reservations about the provisions of the Bills, which seemingly conflicted with the principle of the primacy and independence of the judiciary, all political parties in Parliament and in most of the State Assemblies supported them and ensured their passage because they believed in the government’s stated aim of bringing transparency and efficiency in the appointment process.
Thus, the Lok Sabha passed the Bills with 367 members voting in favour and none against. Thirty-seven MPs belonging to the All India Anna Dravida Munnetra Kazhagam (AIADMK) abstained from voting. The Rajya Sabha passed the Bill with 179 members voting in favour. The eminent advocate Ram Jethmalani was the lone member who abstained from voting. Jethmalani, however, was successful as counsel for an intervener in challenging the constitutional validity of the two Acts in the Supreme Court.
After the Amendment Bills were ratified by more than half of the State Assemblies, they duly received the President’s assent on December 31, 2014. The Acts came into force on April 13 this year. The hasty passage of the Bills in Parliament and in the State Assemblies without any serious debate raised doubts about the quality of the will of the people as reflected in these representative bodies. Balaji Srinivasan, counsel for Nagaland in the Supreme Court, resigned his brief in the midst of the hearing of the NJAC case before the Supreme Court in protest against the State Assembly’s resolution supporting the amendment without holding a debate and overruling his advice that it was against the independence of the judiciary. Nagaland’s Advocate General Balagopal also quit around the same time to register his protest against the move.
Legal observers said the criticism that the Supreme Court had gone against “the will of the people” by striking down the two Acts as unconstitutional betrayed a lack of understanding of the duty of a constitutional court while testing the validity of a piece of legislation. The extent of support enjoyed by a piece of legislation during its passage cannot help a court judge its constitutional validity or its compliance with the basic structure requirements laid down by the court in the Keshavananda Bharati case (1973).
Yet, in deference to Parliament’s wisdom, the Supreme Court refused to grant an interim stay on the operation of the two Acts despite pleas by the petitioners who challenged their constitutionality. But the NJAC was a stillborn child, with the Chief Justice of India (CJI) H.L. Dattu refusing to participate in the three-member Selection Committee to select two eminent members for the six-member NJAC. The other two members of the committee were the Prime Minister and the Leader of the single largest party in the Lok Sabha. Justice Dattu had said that he would not participate in the selection until the Constitution Bench set up to hear the petitions challenging the Acts heard and delivered its verdict. The respondents to the petitions had then described Justice Dattu’s action as unconstitutional. He now stands vindicated.
The background
Judges of the Supreme Court and the High Courts are appointed under Articles 124 and 217 respectively. Under Article 124, the President appoints every judge of the Supreme Court after consultation with such of the judges of the Supreme Court and the High Courts as he/she may deem necessary for the purpose. The provisions make it mandatory for the President to consult the CJI for the appointment of judges other than the CJI.
Judges of the Supreme Court and the High Courts are appointed under Articles 124 and 217 respectively. Under Article 124, the President appoints every judge of the Supreme Court after consultation with such of the judges of the Supreme Court and the High Courts as he/she may deem necessary for the purpose. The provisions make it mandatory for the President to consult the CJI for the appointment of judges other than the CJI.
Article 217, on the other hand, makes it mandatory for the President to consult the CJI, the Governor of the State, and in the case of appointment of a judge other than the Chief Justice, the Chief Justices of the respective High Courts.
Additional judges and acting judges for the High Courts are appointed under Articles 224 and 224A. Transfers of High Court judges and Chief Justices of one High Court to another are made under Article 222. The 99th Constitution Amendment Act amended all these provisions and even made consequential changes in other related provisions in order to introduce the NJAC.
Articles 124 and 217, despite what the constitutional text may say, have been understood in the manner they are interpreted and declared by the Supreme Court under Article 141. The court’s interpretation of Articles 124 and 217 emerges principally from the judgments of its three Constitution Benches.
The first judgment was given by a majority of 4:3 by a seven-judge bench in the First Judges case in 1981. This bench had held that the word “consultation” in Articles 124 and 217 did not mean “concurrence” of the CJI, and if there was a disagreement between the President (who acts on the aid and advice of the Union Council of Ministers) and the CJI, the opinion of the former would prevail.
The second judgment was rendered by a nine-judge bench by a 7:2 majority in the Second Judges case in 1993. This bench overruled the judgment in the First Judges case.
In the Third Judges case, decided in 1998, another nine-judge bench reiterated the judgment delivered in the Second Judges case while answering a reference from the President under Article 143 seeking clarifications about the 1993 judgment.
After the judgments in the Second and Third Judges cases, the word “consultation” began to be understood as “concurrence” under Articles 124, 217 and 222, whereas the court had interpreted “consultation” to mean that primacy must rest with the CJI.
The CJI’s opinion to fill the vacancies in the Supreme Court, according to the 1993 judgment, was to be formed through a unanimous recommendation finalised at a meeting of a collegium comprising the CJI and two senior most judges, and this must be conveyed to the government in writing in order to be binding. The 1998 judgment expanded the size of the collegium to the CJI plus four senior most judges of the Supreme Court.
For appointment to the High Courts, the Supreme Court held in the Third Judges case that the CJI should consult two senior most judges of the Supreme Court and those judges of the Supreme Court who have the High Court concerned as their parent High Court or who have occupied the office of a judge or Chief Justice of that High Court on transfer.
The Supreme Court held in the Second Judges case that in exceptional cases the government could refuse to accept a recommendation for appointment after providing strong and cogent reasons to the CJI. But, it said that if the CJI and the other judges of the Supreme Court who had been consulted on the matter unanimously refused to accept the stated reasons and reiterated their recommendation, the government was bound to make the appointment.
In the Third Judges case, the court held that the CJI’s recommendations, without complying with the norms and requirements of the consultation process as stated in the two judgments, were not binding upon the Central government.
The amendment
The 99th Constitution Amendment Act and the NJAC Act introduced drastic changes in the appointment process by replacing the collegium with the six-member NJAC. The NJAC was to consist of the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister, and two eminent persons.
The 99th Constitution Amendment Act and the NJAC Act introduced drastic changes in the appointment process by replacing the collegium with the six-member NJAC. The NJAC was to consist of the Chief Justice of India, two senior most judges of the Supreme Court, the Union Law Minister, and two eminent persons.
The eminent persons were to be chosen by a three-member selection committee comprising the CJI, the Prime Minister and the Leader of the Opposition or the Leader of the single largest party in the absence of a recognised opposition party in Parliament. The eminent persons were to hold office for a term of three years, while the other members of the NJAC were to be ex-officio.
During the hearing of the case, the government wanted the court to experiment with the NJAC just as it had experimented without a collegium for the first 43 years of the Republic and then with the collegium for the next 22 years. But the majority judges in the Constitution Bench were suspicious of several provisions, which, the petitioners alleged, could be abused by a government which wanted a captive judiciary.
For instance, the Amendment Act does not define the “eminent persons” to be nominated by the selection committee. The government claimed that these eminent persons would have a non-legal background and would be lay persons having no connection with the judiciary and even the profession of advocacy. The bench wondered how such persons could evaluate the suitability of candidates for the posts of judges in the higher judiciary. It did not get a satisfactory answer from the government for this poser.
On the contrary, Maharashtra and Gujarat, through their counsel, differed with the Attorney General, Mukul Rohatgi, on this issue and said the “eminent persons” should be chosen from among eminent lawyers, jurists, and retired judges or the like who have an understanding of the working and functioning of the judicial system. So, the bench struck down Article 124A(1)(d), which was inserted through the amendment for leaving “eminent persons” category in the NJAC vague and undefined.
The next issue of contention was the principle of “special majority” introduced in Section 6(6) of the NJAC Act, by which any two members of the NJAC could reject a recommendation made by others. The bench, including Justice J. Chelameswar who dissented from the majority, feared that the two eminent persons chosen by a committee in which the CJI was in a minority could favour the political class by blocking the recommendations of the three judicial members. K.K. Venugopal, counsel for Madhya Pradesh, agreed with the bench even as the Attorney General tried to allay the bench’s concerns on the matter.
But the response of the bench to this fear of veto by two eminent persons was divided. While the majority found this provision inconsistent with the independence of the judiciary, Justice Chelameswar felt it could be neutralised by insisting that the Supreme Court judges would choose, through secret vote, the two eminent persons from a panel of six names to be recommended by the selection committee. But the question that remained was: what if the CJI was outvoted by the other two members in the selection committee in recommending even the six names?
The bench also found another provision in the Amendment Act seriously flawed. Section 5(1) of the Act required that the NJAC shall recommend for appointment the senior most judge of the Supreme Court as the CJI if he was considered fit to hold the office. The bench noted that the Act carried no definition of “fitness” and the oral explanation of the Attorney General that it meant only mental and physical fitness and nothing else failed to convince the bench.
More than anything else, the inclusion of the Law Minister in the NJAC and the prospect of having to interact with him frequently during meetings appear to have influenced the bench’s decision that the composition of the NJAC militated against judicial independence. Under the collegium system, the “consultation” with the government happened through correspondence and file notings. This was bound to change under the NJAC with face-to-face consultations between the Law Minister and the collegium. The majority judges were rightly concerned whether such interaction would prove to be unhealthy, especially when the government was the biggest litigant before the High Courts and the Supreme Court and many cases involving the distribution of natural resources by the state and scams involving political leaders were before the courts.
The core issue that divided the government from the bench was whether the independence of the judiciary begins after or before the appointment of a judge. The government contended that the independence of a judge has to be safeguarded after his appointment, while the bench believed even the process of appointment must be safeguarded from the influence of the executive.
Trust deficit
More than anything else, a serious lack of trust in the government appears to have forced the majority judges to strike down the Acts as unconstitutional. Justice J.S. Khehar referred to the resignation by 13 State Governors and one Lieutenant Governor of a Union Territory after the NDA came to power in 2014. Saying that each one of them would be eligible for nomination as an ‘eminent person’ in the NJAC, he wondered whether all the resignations were voluntary.
More than anything else, a serious lack of trust in the government appears to have forced the majority judges to strike down the Acts as unconstitutional. Justice J.S. Khehar referred to the resignation by 13 State Governors and one Lieutenant Governor of a Union Territory after the NDA came to power in 2014. Saying that each one of them would be eligible for nomination as an ‘eminent person’ in the NJAC, he wondered whether all the resignations were voluntary.
“It would be of utmost importance, therefore, to shield judicial appointments from any political-executive interference to preserve the “independence of the judiciary” from the regime of the spoils system,” he observed. Justice Khehar, to justify his defence of an independent judiciary, quoted senior BJP leader L.K. Advani’s remark that an Emergency-like situation could happen in India.
Justice Madan B. Lokur, for instance, wondered whether a person with a different sexual orientation would be found eligible for judgeship if the political class had an edge over the judiciary in the NJAC. Similarly, he described as tyrannical the likely intention of the government to make appointments without consulting the CJI using the vacuum created by the court’s ruling striking down the two Acts, if the court had not simultaneously restored the collegium. These are strong observations that convey a deep distrust of the political class. The majority judges felt constrained to dwell on the prevailing political situation in the country because it was well settled that while analysing the objectives of an impugned piece of legislation the court was well within its powers to consider the circumstances under which it was enacted to determine its constitutionality.
The court has reiterated the legal position that the primacy of the judiciary in the appointment process is an essential ingredient of the independence of the judiciary, which is the basic feature of the Constitution, and therefore, beyond the realm of amendment by Parliament. But while doing so, it has given vent to its distrust of the political class and the maturity of civil society. In the coming days, India’s democratic institutions will have to display the necessary maturity to overcome the trust deficit
how "WE THE PEOPLE" in indian constitution came to being
How ‘We the People’ came to be the source of authority of the Constitution
This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional ‘autochthony.’
CONSTITUTIONAL AUTOCHTHONY
The etymological roots of ‘autochthony,’ which is not to be confused with ‘autonomy,’ are to be found in the Greek autos (self) and chthon (earth). The goal of constitutional autochthony is to deliver an indigenous Constitution, the source of whose ‘authority’ can be located in the new state’s own soil. The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it.
This proposition found doctrinal support in the influential theory propounded by the legal philosopher, Hans Kelsen, which had it that it was inconceivable for a legal system to split into two independent legal systems through a purely legal process. One of the implications of Kelsen’s theory was that the basic norm (grundnorm) of the imperial predecessor’s Constitution would continue to be at the helm of the legal system of the newly liberated former colony despite the legal transfer of power, precisely because the transfer of power was recognised as ‘legal’ by the Constitution of the imperial predecessor.
On Kelsen’s account, only an ‘unlawful’ or ‘revolutionary’ act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.
Such break in legal continuity is automatically achieved where a former colony’s independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted ‘legally’ by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is ‘legally’ granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament’s enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the ‘source’ of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor’s Constitution. In such cases, it was thought that since there was no ‘revolution,’ one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new Commonwealth Constitutions took great care to do something illegal “so as to make up a revolution, however contrived.”
IRISH INFLUENCE
The Irish were the pioneers in conceiving the idea of a benign legal revolution geared towards constitutional autochthony. Ireland was granted independence under the Irish Free State Constitution Act, 1922 enacted by the British Crown-in-Parliament which also authorised the Irish Constituent Assembly to draft a Constitution for the newly liberated state. Thus, the Irish Constitution of 1922 was not autochthonous.
Though it was drafted by an indigenous Constituent Assembly, its chain of legal validity could be traced to an imperial statutory grant. With a view to changing this state of affairs, in 1937 the Irish Parliament amended the Constitution by deliberately violating the procedure for amendment stipulated in the 1922 Constitution and put the amended Constitution for acceptance in a referendum. Going one step further, the Irish Parliament also repealed the Irish Free State Constitution Act, 1922 enacted by the British Parliament, though it was not empowered to do so. It is widely accepted that this successfully severed the chain of validity with the Crown-in-Parliament and ensured a truly autochthonous Constitution. The framers of the Indian Constitution appear to have rehearsed the Irish route to autochthony to the extent possible in Indian conditions.
Independence was formally granted to India by the Crown-in-Parliament’s enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.
The framers introduced two deliberate procedural errors in the enactment of the Constitution of India in violation of the Independence Act: a) They did not put the Constitution to the approval of the either the British Parliament as envisaged by the Cabinet Mission Plan or the Governor-General as envisaged in the Indian Independence Act 1947; b) Following the Irish precedent, Article 395 of the Constitution of India repealed the Indian Independence Act — something the Constituent Assembly did not have the authorisation to do. In doing so, the framers not only repudiated the source which authorised them to enact the Constitution but it was also a denial, albeit symbolic, of Indian independence being a grant of the imperial Crown-in-Parliament. This ensured that the chain of constitutional validity did not extend all the way to the Crown-in-Parliament, thus delivering a completely autochthonous Constitution. In this fashion, We the People, through the members of the Constituent Assembly, came to be the ‘source’ of authority of the Constitution, rather than the authority being traceable to the Indian Independence Act enacted by the British Crown-in-Parliament.
WHY DID IT MATTER?
This quest for autochthony is likely to come across to some as an abstruse quibble that shouldn’t concern anyone other than the most pedantic legal theorists. There were, however, two reasons why the framers of new Commonwealth Constitutions felt constrained to pay such close attention to it. Firstly, it was feared that the British Crown-in-Parliament could, however improbably, reassert its authority over the newly liberated state by repealing the statute of independence and abrogating the new Constitution. There was, of course, no immediate apprehension of the British taking such a step. All the same, the framers of new Commonwealth Constitutions would have found, as Geoffrey Marshall notes, merely prudential reassurances to be precarious pegs to hang their nation’s independence on. Secondly, for sentimental considerations, the framers would have been loath to let the new Constitution be grounded in an imperial grant or be assented to by the British Crown. They would have wanted the new Constitution to be truly autochthonous, stemming from the authority of We the People so that an independent future could, albeit symbolically, be insulated from a troubled imperial past.
Monday, 2 November 2015
Tuesday, 27 October 2015
Collegium system vs NJAC
Facts History about Collegium system SC judges appointment procedure
Facts History about Collegium system SC judges appointment procedure
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.
This Post is a combination of my two old post which I wrote in the pas
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.
This Post is a combination of my two old post which I wrote in the pas
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