New Delhi: The row over the unaccounted-for cash allegedly found at the residence of a Delhi High Court judge, Justice Yashwant Varma, has reignited the discussion around a law struck down by the Supreme Court in 2015, which was meant to amend how judges are appointed.
Last week, it emerged that firefighters discovered cash at an outhouse in the residence of Justice Varma, while dousing a fire. The Supreme Court Collegium subsequently recommended his transfer back to his parent high court, Allahabad, raising questions over transparency and judicial accountability.
Earlier this week, Rajya Sabha Chairman Jagdeep Dhankhar raised the issue of the National Judicial Appointments Commission (NJAC)—a system that was meant to replace the existing collegium system of appointing judges to the higher judiciary.
On Tuesday, Dhankhar said that it was a “befitting occasion” for all of us to reiterate that the NJAC was a “visionary step endorsed by Parliament”, before convening an all-party meeting to ascertain the predominant view on the existing collegium system.
Speaking on the issue during Zero Hour in the Upper House, the Vice-President of India said, “Now before the nation, there are two situations—one which emanated from the Indian Parliament duly endorsed by state legislatures, sanctified by the President by appending signatures under Article 111. And second is a judicial order. Now we are at a crossroads.”
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A look at the judicial appointments law
Introduced on 11 August, 2014 by then-law minister Ravi Shankar Prasad in the Lok Sabha, the NJAC Bill was meant to bring greater transparency and more representation in the existing system of appointing judges to the higher judiciary.
Under this law, judges would be appointed by a six-member body composed of the Chief Justice of India (CJI), who would also be the ex-officio chairperson, two senior judges of the Supreme Court, the Union law minister, and any two ‘eminent persons’ from civil society.
These ‘eminent persons’ would be nominated by a committee composed of the CJI, the Prime Minister and the Lok Sabha Leader of Opposition. In case there was no LoP, then the leader of the single largest opposition party in the Lok Sabha would suffice. However, one of these ‘eminent persons’ would have to either be a member of the Scheduled Tribes (ST), Scheduled Castes (SC), or Other Backward Classes (OBC), or be a woman.
The representatives would be on the panel for three years and would not be eligible for renomination.
To bring the law, a new provision—Section 124A(3)—was to be inserted in the Constitution. It said, “No act or proceedings of the National Judicial Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.”
The NJAC also made provisions giving veto power to members. It said, “The NJAC shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation.”
The fact that the judiciary’s opinion could be overruled by other non-judicial members was one of the issues raised by the Supreme Court when it later struck down the law.
The Bill, which was passed by both Houses of the Parliament and received the President’s assent, was ultimately struck down by a five-judge bench by a 4:1 majority vote on 6 October, 2015.
Why SC struck NJAC down
The Constitution Bench, led by Justice Jagdish Singh Khehar and also comprised Justices J. Chelameswar, Madan B. Lokur, Kurian Joseph and Adarsh Kumar Goel, was primarily concerned with the possibility of the judiciary’s opinion being sidelined or overruled in the selection process.
In its judgment, it said that there was no question of “accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary (as also, in the matter of transfer of Chief Justices and Judges of High Courts, to other High Courts)”.
The court also noted that the NJAC was a system of appointing judges, not by other judges (as established convention dictates), but by a majority of the executive, given the presence of three non-judicial members on the panel. It noted that the two ‘eminent persons’ would also make up one-third of the NJAC’s composition.
By taking away the primacy of the judiciary’s power to appoint judges, the court said, the NJAC was damaging the basic structure of the Constitution, given that one of its key principles is the separation of powers between the legislature, judiciary and the executive.
“Article 124(2) of the Constitution as originally framed made it mandatory for the President to consult the Chief Justice of India in the appointment of judges,” the court said, while noting that the 99th Constitution Amendment Act, to establish the NJAC, completely did away with this mandatory consultation.
“The President is not expected to consult anybody in the appointment process – he/she is expected to act only on the recommendation of the NJAC. The authority that the President had to turn down a recommendation made by the collegium, if it was not unanimous, is now taken away from the President who is obliged to accept a recommendation from the NJAC even if it is not unanimous,” the court noted.
“This is a considerable whittling down of the authority of the President and a drastic change in the appointment process and in a sense reduces the President (as an individual) to a rubber stamp,” it said, while adding that a similar reduction in the CJI’s supremacy was evidence as he was reduced to “just another number”.
How judges are currently appointed
The procedure for the appointment of judges to the Supreme Court is outlined under Article 124(2) of the Constitution.
According to the law, every judge of the Supreme Court is 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”.
It also adds that “in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted”. The judges hold office till they reach the age of 65.
Similarly, the procedure for appointing judges of high courts has been outlined in Article 217, which says that high court judges shall be appointed by the President “in consultation” with the CJI, 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”.
The collegium system
Under the current system, which has evolved over many years, through the course of the First, Second and Third judges cases, the recommendations for the appointment and transfer of judges are made by a collegium or a body of judges.
The three rulings, individually, refer to the apex court’s judgments in S.P. Gupta vs. Union of India (1981); Supreme Court Advocates-on-Record Association vs Union of India (1993); and a 1998 ruling.
In the First Judges Case (1981), a seven-judge bench, first, gave the executive primacy over judicial appointments. This was then overruled by a nine-judge bench in 1993 to introduce the collegium system. Finally, in the 1998 ruling, the court expanded on the collegium system, saying that the CJI, in addition to the four senior-most judges would form part of the selection process.
The Supreme Court Collegium, which consists of the five senior-most judges of the Supreme Court, including the CJI, decides on appointments and transfers of judges to the top court and the high courts. These recommendations have to be approved and notified by the Centre.
On the other hand, high courts also have their separate collegium, which consists of the chief justice of that particular court, along with its two senior-most judges. Once the high court collegium forwards the names of judges to the Supreme Court Collegium, they are then relayed to the law ministry, which notifies these appointments.
The Centre has limited say in the process of appointing judges, with its tasks being confined to having inquiries conducted about certain lawyers to ascertain their eligibility for judgeship and raising objections and seeking clarifications about the collegium’s recommendations in practice.
(Edited by Sanya Mathur)
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