NEWS

THE BALANCING ACT: JUDICIAL INDEPENDENCE WITHIN THE AMBIT OF THE EXECUTIVE

The constitution being an organic document must adapt itself to the needs of times. The recent revelations of irregularity in judicial appointments has drawn attention to the long drawn practice of collegium system of Judicial Appointments. In the said back ground, some   legally eminent minds in our country hold the view that while the judiciary enforces accountability of the political executive there is no mechanism to deal with errant judges. The tradition so far has been the composition of a non- political judiciary this explains the practice of seniority in appointment of the Supreme Court judges. The controversies surrounding judicial  appointments has raised doubts in the accountability of the  collegium and an opinion of a need for change seems to be making its way .Executive primacy gave way to the collegim system which has also failed. They therefore believe that time has come to reinvent it, while others reason that in India where every  institution seems to be politicised, it is better to let the judiciary remain free from this woe.

The paper focuses on the contentious issue of having a Judicial Appointment Committee comprising of representatives from the executive to have a say in judicial appointments while trying to   preserve the independence of the judiciary without weighing down the constitutionally acknowledged concept of separation of powers.

I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think , to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous.                                                                                          – Dr. B.R. Ambedkar.

 

IMPORTANCE OF AN INDEPENDENT JUDICIARY

The role of the judiciary in a country is of great importance it not only interprets the constitution  which is the supreme law of the land but also adjudicates upon disputes between private citizens and also between different states in the country.[1]

 Maintenance of the rule of law in the country is the chief function of courts which ensures that the government functions  in accordance with law established and followed. In a country like India which has a written constitution the courts have a additional responsibility of safeguarding the constitution which is considered the supreme law of the land by interpreting its provisions in such a manner that all authorities and the laws made by them are within the ambit of the supreme law of the land. A right is baseless without the mechanisms to enforce it and the judiciary gives value to the  fundamental rights provided by our constitution by playing  the important role of not only protecting but also enforcing the Fundamental Rights Guaranteed by Part III of the constitution .[2]

An independent Judiciary is the sine qua non of a vibrant democratic system. Only an impartial and independent Judiciary can stand as a bulwark for the protection of the rights of the individual and mete out even handed justice without fear or favour. The judiciary is considered to be the protector of the constitution and in performing this important duty may have to strike down executive , administrative and legislative actions of the centre or the states. Prevalence of  Rule of Law  seeks a strong existence of Judicial Independence .The Supreme Court being the highest Court in the country , it has to be ensured that it is enabled to work in an atmosphere of action and judgement which is free from all sorts of political pressures or executive influences.[3]

Independence of the judiciary ensures an effective discharge of the multifaceted functions that it performs. In a democratic society where the judiciary is the protector and enforcer of fundamental rights judicial independence is a pre requisite for the actual realisation and enjoyment of the guaranteed rights conferred on the citizens. The need for judicial independence becomes all the more necessary in India as judicial review is regarded as the Fundamental Feature of the constitution.

ORIGIN OF  AN INDEPENDENT  JUDICIARY

The framers of the Constitution were deeply concerned with maintaining independence of the judiciary , the main reason for  the framers of the constitution to secure  the same was that that independence of the judiciary from the executive and the legislature and the independence of each and every judge within the judiciary is a necessary pre condition for a free society and a constitutional democracy which our country has adopted. This ensures the rule of law and realisation of human rights and also the prosperity and stability of society[4]

It is a well-known fact that the independence of the judiciary is the basic requisite for ensuring a free and fair society under the rule of law. Rule of law that is responsible for good governance of the country can be secured through unbiased judiciary. For the prevalence of the rule of law Independence of the Judiciary is a basic necessity.[5]

While the constitution constantly emphasizes on judicial independence it does not provide a bare provision establishing the same however   the concept of judicial Independence is imbibed into the constitution through various Articles which establish and ensure Judicial Independence to  ensure that the Judges can work in an environment free from any kind of bias.

  • Security of Tenure: The judges of the Supreme Court and High Courts have been given the security of the tenure. Once appointed, they continue to remain in office until they reach the age of 65 years in the case of judges of Supreme Court Art. 124(2) and 62 years in the case of judges of the High Court  217(1) of the Constitution of India . They cannot be removed from the office except by an order of the President and the same can be only on the ground of proven misbehaviour and incapacity. A resolution has also to be passed to that effect by a majority of total membership of each House of Parliament and  also by a majority of no less than two third of the members of the house present and voting.[6]
  • Salaries and Allowances: The salaries and allowances of the judges is also a factor which ensures independence of judges . Their salaries and allowances are fixed and are not subject to a vote of the legislature. They are charged on the Consolidated Fund of India and state in respective cases of Supreme Court judges High Court judges. Their emoluments cannot be  altered to their disadvantage as provided Art. 125(2) of the Constitution of India except in the event of grave financial emergency.[7]
  • Powers and Jurisdiction of Supreme Court:Parliament can only add to the powers and jurisdiction of the Supreme Court but cannot curtail them. In the civil cases, Parliament may change the pecuniary limit for the appeals to the Supreme Court. Parliament may enhance the appellate jurisdiction of the Supreme Court.It may confer power to issue directions, orders or writs for any purpose other than those mentioned in Art. 32.  of the Constitution of India .Powers of the Supreme Court cannot be taken away this ensures the  independence of the judiciary.[8]
  • No discussion on conduct of Judge in State Legislature / Parliament: 211of the Indian Constitution provides that there shall be no discussion in the legislature of the state with respect to the conduct of any judge of Supreme Court or of a High Court in the discharge of his duties. A similar provision is made in Art. 121 which lays down that no discussion shall take place in Parliament with respect to the conduct of the judge of Supreme Court or High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the judge.
  • Power to punish for contempt:Both the Supreme Court and the High Court have the power to punish any person for their contempt. Art. 129 of The Constitution of India  provides that the Supreme Court shall have the power to punish for contempt of itself. Likewise, Art. 215  lays down that every High Court shall have the power to punish for contempt of itself.[9]
  • Separation of the Judiciary from the Executive:  50 of the Constitution of India contains one of the Directive Principles of State Policy and lays down that the state shall take steps to separate the judiciary from the executive in the public services of the state. The object behind the Directive Principle is to secure the independence of the judiciary from the executive. Art. 50 says that there shall be a separate judicial service free from executive control.[10]

 Apart from these constitutional provisions that ensure judicial independence the concept of Independence of the Judiciary has been inculcated into the constitution  through the numerous judgements of the Supreme Court where the Supreme Court has time and again emphasised on the need of preserving independence of the judiciary.

In S.P Gupta v. U.O.I[11] the Supreme Court, similarly in A.C. Thalwal v. High Court of Himachal Pradesh[12] ,  has held more than once that the independence of the judiciary is a basic feature of the Constitution and any attempt to curtail it directly or indirectly even by an amendment of the constitution is invalid. further in the case of State of Bihar v. Bal Mukund Shah[13] , the Supreme Court  states that the concept of “separation of powers” and independence of judiciary”, a fundamental concept have, now been ‘elevated to the level of the basic structure of the constitution and are the very heart of constitutional scheme.

The framers of the constitution ensured the independence of the judiciary while framing the constitution through  Article 124 which simply states

  1. Establishment and constitution of Supreme Court
  2. 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
  3. 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:
  4. a Judge may, by writing under his hand addressed to the President, resign his office;
  5. a Judge may be removed rom his office in the manner provided in clause ( 4 )[14]

The constitutional assembly debate over Article 124 debated on Tuesday, the 24th May, 1949 clearly indicates the intention of the framers of the constitution in upholding the Independence of the Judiciary which they believed was necessary as the Supreme Court would be the guardian of democracy and would ensure the guarantee of fundamental rights to the citizens of the Union. The Supreme Court for them would ensure that the fundamental rights are preserved and secured to every citizen and therefore they believed that the Supreme Court should be above all interference by the Executive. They also believed that the Supreme Court Judges should consist of men having experience and knowledge.

In order to understand how the current system of appointment of judges came into existence we need to revisit the jurisprudence of Judicial Appointments. The constitution does not lay down a definitive procedure for Judicial Appointment as it merely says that the President is to appoint Supreme Court judges in consultation with the Chief Justice   and such other judges of the Supreme Court  and High Court  as the President may deem necessary. The relevant article is simple in its language and content .The constitution does not confer absolute power on either the executive to influence the judiciary or the parliament in appointment of judges.

The  birth of the present collegium system can be traced from a number of marathon judgments which interpreted the Art 124 and gave clear interpretation to the intention that the framers of the constitution had behind its implementation. The landmark judgements can be understood in two time  frames.

 This important question has been considered by the SC in several cases.[15] The development of the present system of appointment of Judges can be studied in two time frames: Pre 1993 Stage and Post 1993 stage, these two time frames clearly give us an idea of how the system of appointment has evolved from executive primacy to judicial primacy.

POSTITION BEFORE 1993:PRIMACY OF THE EXECUTIVE

Before the year 1993 the President’s power to appoint the Supreme Court judges was purely of a formal nature for he would act in this matter as in other matters on the advice of the concerned Minister, viz the Law Minister. The final power to appoint Supreme Court  judges rested with the Executive and the views expressed by the Chief Justice were not regarded as binding on the Executive.  The constitution does not lay any requirements for appointment of Supreme Court Judges. The law commission in 1958 in its XIVth report critiqued the sole criteria of seniority of appointing the Chief Justice and suggested that the Chief Justice should be a competent man who is able to deal with complex situations and also suggested the appointment of young lawyers who had vigour. However the executive with the fear of interfering with the independence of the judiciary did not act upon the law commissions suggestions and continued to follow the seniority rule in appointments which then established itself as a convention. For long the practice was to appoint the senior most judge as the Chief Justice whenever a vacancy occurred in the office however, in 1973 the Government departed from this prevailing practice and appointed as Chief Justice J.A.NRay thereby surpassing 3 more judges who were ranked higher in seniority. The senior judges resigned in protest. This incident caused a lot of havoc. The appointment was  challenged through a petition for quo warranto under Article 226 on various grounds. The court however dismissed the petition pointing out that the motive of the authority making the appointment was irrelevant in a quo warranto proceeding[16]. The Government justified its act on the pretext that it sought to implement the suggestions of the law commission however this move of the Government was seen as an ulterior motive and as an act of the Government to undermine the Judiciary. This history of 1973 was yet again repeated in 1977 when on retirement of Justice A.N Ray, Justice M.H Beg who was junior to Justice H.R Khanna who was next in line in order of seniority was surpassed. This act of the then Congress Government is seen as an outcome of the dissenting judgement of Justice H.R Khanna in A.D.M Jabalpur v. Shivkant Shukla[17] and an attempt of the Government headed by the then Prime Minister Mrs. Indira Gandhi to strike on the Independence of the Judiciary. Further in 1977 in the case of Union of India v. Sakhalchand Sheth [18] the court examined whether the President was bound by the opinion of the Chief Justice in appointment of judges under Art 124(2), after deliberation the court held that the President was not bound by the opinion of the Chief Justice and he had a discretion to accept the consultation of the three constitutional functionaries. The court held that the word “consultation” did not mean concurrence and the President is not bound by it. This stand of the judiciary gave the executive primacy over the judiciary and the same view was again re affirmed by the Supreme Court in the case of S.P Gupta v. Union of India,[19] which established that the ultimate power to appoint judges vested in the Executive . These two instances give a perfect example of executive influence and interference in the independence of the Judiciary  which is one of the basic feature of the constitution. It states the outcome that is likely to happen if the executive is allowed to meddle with judicial appointments which is likely to strike down Independence of the judiciary.

POSITION AFTER 1993:PRIMACY OF THE JUDICIARY.

The position after 1993 saw a paradigm shift from the executive having a primacy in judicial appointments to the Judiciary being given  primacy in judicial appointments and its Independence being restored  . After the retirement of Justice. Beg the question of the successor to Justice Beg once again resurfaced , the next  2 senior judges were Justice Chandrachud and Justice Bhagwati . In  1977 the Congress Party was defeated and the Janta Party won with a huge majority forming the Government at the Centre. The Prime Minister at that time was Morarji Desai and he  stuck to the principle of seniority and recommended to the president to appoint justice Chandrachud the senior most judge of the Supreme Court  as the Chief Justice who had the longest tenure as the Chief Justice of India, and since then the practice of appointing senior most judges as Chief Justice  has been followed till date. The Judiciary was given primacy and its  independence was ensured through three important judgments. Firstly in Subhash Sharma v. Union of India [20]the Supreme Court observed that the views of the majority in S.P Gupta’s case needed reconsideration and further observed that the opinion of the Chief Justice should be given a preponderant role  and be recognized as one of crucial importance in matter of appointments to the Supreme Court. This view taken by the court was further considered in Supreme Court Advocates on Record Association v. Union of India[21] in which a nine judge bench of the Supreme Court over ruled its decision in S.P Gupta’s case and observed that the opinion of the Chief Justice of India in the process of consultation must be given due primacy and also further held that the executive is bound by the recommendation of the Chief Justice in the matter of appointment of judges, it is in this case that the court upheld the convention of seniority in judicial appointment and re established the independence of the judiciary. In the last case in which the Supreme Court adjudicated on the question of judicial appointments was the Re:Presidential Reference[22]  in which the Supreme Court gave an advisory opinion on a reference being made by the President and provided for  establishing  a collegium system consisting of the Chief Justice of India and 4 senior most puisne judges  for appointment of judges of the Supreme Court and High Courts and transfer of judges of High Courts. The court also laid down guidelines in the manner the collegium should function. Thus the responsibility of making recommendations for appointment of supreme Court judges has been taken away from the executive and been placed on a collegium consisting of the Chief Justice and 4 senior most judges.

THE CURRENT SCENARIO

The current  issue for the need of a Judicial Appointment Commission has surfaced in the present day for a number of reasons. The need for a Judicial Appointment Committee  however can be traced back to the reports of the judicial Commission .

A look at the mindset of the framers of the Constitution   and the constitutional debates over Art 124 clearly indicates that the framers of the constitution were very clear on having a independent judiciary although a few members were reclusive to this fact however the majority were in favour of Judicial independence . The debates also spell out that though the members were in favour  of judicial independence the following words of Dr. Ambedkar clearly state that there was a speck of  thought in the minds of the framers of the constitution that complete independence of the judiciary was not possible and it would lead to a possibility of having some shortcoming or nepotism within the judges in the  judicial system of appointments.

The Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think , to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous”.                                                                         

Although the framers of the constitution have strongly enshrined independence of the Judiciary in the constitution however they were well aware of the possibilities of nepotism making its way into the system this can be interpreted further to make way for a possibility of having a system of checks and balances on the power of Judicial Appointment given to the Chief Justice along with the President hence they have also inculcated into the constitution a few provisions which also provide for a check on discrepancies of judges.

 Coming to the law commission reports, in order to trace the current need of having a JAC we need to look into the recommendations made by the Law commission through its reports. Time and again the Law commission since 1956 has expressed the need to have appointment of   judges based on their  calibre ,administration  and efficiency and someone who would be able to handle complex matters ,a person who could protect the independence of the judiciary like a watch dog, rather than mere seniority being the criteria, however it was only in the year 1987 in its 121st Report that the Law Commission spelled out in clear terms its need to have a Judicial Appointment Committee. Not only did it state the need of a Judicial Appointment Committee in appointment of judges but also gave the rules of its working and its composition.

THE  14TH  LAW COMMISSION REPORT

The XIV law commission report put forth by  M.C.Setalvad the former chairman of the law commission clearly states the need for surpassing the convention of seniority in the appointment of judges and states that the s responsibility of election of judges constituting  the Supreme Court which is of pivotal importance to the progress of the nation must  be exercised with great care and caution for the Constitution is required to win the confidence not only of the people but also the judiciary and the Bar as a whole therefore the court must consist of judges who as lawyers are men of vision, efficiency and capacity. The Law commission in its report also emphasised that prevalence of communal and regional considerations in the appointment of judges and the executive influence exerted has led to the Bench losing some best talents among the judges of High Court  who have never found their way to the Supreme Court. The law commission has also further stated its concern over the fact that even though the field of selection of judges to the Supreme Court  or High Court  is very wide however the practice of selecting judges who have very little time left for retirement leads to subduing the interest of the need for the approach to law to be certain and continuous. The law commission drew special attention to the need of also imbibing the practice of appointing young lawyers as judges as they have within themselves a vigour of freshness which can match with the requirement of maturity and experience. [23]

THE 121ST LAW COMMISSION REPORT

The Law Commission in its 121st Report stated the need to have a Judicial Appointment Committee and also gave reasosns that have led to the failure of the existing collegium system . The Law commission stated that a period of 40 years was sufficient to evaluate whether the perfomance of a model had worked or failed. It stated that if a conclusion had to be drawn that the system had failed then there would be a need to establish a new system to counter the reaons of failure in the functioning of the current system. The law commission gave a few reasons for the failure in the functioning of the Collegium system it stated that the foremost reaosn was  the dealy in filling in the vacancies in the judiciary , the power of the Presidnet to appoint is coupled with a duty , the president cannot act on his own he has to act on the advice given by either the Cabinet or the concerned Mnister therefore it becomes necessary duty of the Government to make recommendations  after consulting all the consitiutional functionaries and appointments must be made in reasonable time, however the current system of appointment of judges is time consuming and causes an inordinate delay in fililing vacancies.Vacancies are not filled and when additional man power is sanctioned the same is kept at abeyance for a couple of years . The whole process of of selecting personell is carried out in serecy so it cannot be pointed out where exactly the dealy occurs besides the opnions of non appointment of some recommendations inspite of concurrence of opinions .

Besides these there are a number of instances to state where the Former Chief Justices them selves have admitted that the collegium system has completed its course and has failed and thus there is a need to have a new meachanism for appointment of Judges. A few notable instances which highlight the need for a Judicial Appointment Committee are:

During the raging controversies following the 1973 supression a convention of the Bar of the whole country held on August 11 and 12, 1973 , through a resolution adpoted a criteria for apponitment of Chief Justices and other judges in which they laid down the need for a committee for making recommendation in appointments.

Again in the year 1977 at the instance of the then Prime Minister  of India, Secretary , Ministry of Law and Justice and Company Affairs requested the Law Commission to examine the question of appointment of Judges of High Court  and Supreme Court . Law Commission undertook the task and recommended that in appointing judges a consultation must be made by the Chief Justice to his two senior colleagues .

In a seminar organised by the Bar Council of India at Ahmedabad to examine the ramifications of the question of judicial Appointments and transfers the seminar was of the opinion that the role of executive in appointments as provided must be minimized and it also requested for a collegium for appointments to the Supreme Court.

Shri Y.V. Chandrachud, Chief Justice of India (1978 – 85) while inaugurating a seminar at Patna on February 26,1983 confessed that the present procedure for appointment and selection of judges to superior judiciary is “outmoded” and should be “given a decent burial”[24].

THE RECENT CONTROVERISES, WHICH  HAVE RESURFACED THE NEED FOR JUDICIAL APPOINTMENTS

 The recent controversies over revelations put forth by former Chief Justice of India , Markandey Katju  on the exposure of corruption within the judiciary has raised a dire need to have a Judicial Appointment Committee. The shocking influence of the executive in judicial appointments have raised a doubt in the minds of the eminent personalities of the country in the fact whether the current collegium system truly appoints creditworthy judges or are the judicial appointments a mere political vendetta. Since the Supreme Court is the sole protector of Fundamental Rights of the citizens it has established the strong need of having a judiciary devoid of external influences from any source. The revelations in the Katju Blogs about corruptions and allegations in  the judiciary have finally led to the introduction of  Judicial Appointment Commission bill 2014,

A judicial commission is  seen as the need of the hour as it would constitute a permanent body that has the machinery to identify candidates assess their legal talents , character antecedents, and also their persona. Above this, there could be a constitutional body with a mix of ex officio judges, political executive and eminent Indians to select from the short listed candidates. This constitutional mechanism could deal with the appointment  , transfer and removal of judges.

The Judicial Appointment Commission Bill 2014 would be a constitutional Amendment Bill and would alter Article 124 of the constitution by inserting 124(A) which would define the composition of the commission and 124(B) that would define its functions and Art 124(3) defines the power of the Parliament to make laws to regulate the procedure of appointment of judges and to empower the commission to lay down regulations to carry its functions. The Judicial Appointment Commission would constitute of the Chief Justice of India as the  Chair person, two other judges of the supreme court next to the Chief Justice of India in seniority, Members ex officio, , the Union Minister in charge of law and justice, two eminent persons to be nominated by the collegium consisting of the Prime Minister, Chief Justice of India and the leader of opposition. Amongst the two eminent persons one of them will be nominated from persons belonging to Sc/ST’s, OBS’s, minorities or women. Thus making the process of judicial appointment more democratic, transparent and participatory.

Over the establishment of the Judicial Appointment Commission  there has been a panorama of opinions opined by eminent senior counsels, advocates, academicians, learned jurists and the like. A analysis of these opinions gives us an idea of the vacuum that the Judicial Appointment Committee Bill 2014 is likely to fill and the shortcomings that it may bring along with it. Although the Judicial Appointment Commission  is a welcome change in the Judicial Appointments however, this constitutional amendment may be regarded as a fundamental change in the basic structure of the constitution besides the long followed custom of the collegium system will be questioned ultimately questioning the judiciary and its Independence. Will a collegium system amount to tampering judicial independence ?  or has the collegium system  really failed and is in need of a new experiment in this crucial time where our judiciary is the only organ of the Government which is playing a crusaders role in protecting our rights in the country and the only organ in which the people who are guaranteed their small part of rights place immense trust in? These are  questions that need due consideration.

For God’s sake do not shake people’s confidence in the judiciary. If there is a concerted campaign to bring the judiciary to disrepute and defame it then it is a big disservice to the nation” anguished chief justice remarked.[25]

The collegium system has been etched into the walls of the constitution of our country , it has been followed as a convention for almost 4 decades now and it has firmly entrenched on constitutional grounds. The  abovementioned statement of the Chief justice rightly points out to the idea that the current campaign of implementing a Judicial Appointment Committee creates an idea of the judiciary being disreputed and defamed. The Collegium system takes hundreds of decisions all over the country. The Chief Justice of India also stated in the abovementioned interview that if the collegium system is deemed to have failed and needs replacement with a new mechanism then its products must also be considered a failure, however this seems not to hold true considering some eminent and distinguished jurists that it has given to name a few  Hon’ble Justice Rohinton Fali Nariman, Hon’ble Justice Markandey Katju, Hon’ble Justice G. S. Singhvi, Hon’ble Justice H.S Kapadia, Justice Y.K Sabharwal,  who have set such historical judgments and time and again restored the sovereignty  and supremacy of the constitution in the face of arbitrary executive action.  A look at the mindsets or the intentions of the  framers of the constitution can be gathered through the constitutional assembly debates that truly give an idea behind each provision in the constitution after having considered the debate over Art 124 of the constitutional assembly the framers were crystal clear in their idea of having an independent judiciary completely devoid of executive control and political influence that it was likely to assert if given an upper hand at the same time the framers also assured that the judiciary isn’t given the sole power in appointment for which the President as a member of the executive was also made a part of judicial appointments. The framers of the constitution also never intended to give a veto power in appointment to the Chief Justice and therefore also gave the executive power in appointment.  Independent and impartial judges was the intention of the framers of the constitution. They intended the judiciary to  be independent of the executive and also competent in itself.

The hue and cry raised over the Judicial Appointment Committee Bill 2014 has got a lot of criticism some criticisms from a few eminent personalities should be considered. Justice Katju ,who himself was a product of the collegium system and one of the eminent products  is of the opinion that the collegium system has outlived its utility and must pave way for a more transparent system and a broad based process. Eminent lawyers such as Ram Jethmalani, CS Vaidyanathan and Raju Ramchandran have stated that although judges talk about transparency in decision making there is a lack of the transparency in the collegium system of appointment of judges which ends up being a bane of the system, they also pointed out that in the system of appointment of judges also seems to have no assessment of merit and only technical competence is considered without regard to a person’s outlook to social philosophy and belief system. They also stated their favour in having a broad based , properly constituted National Judicial Commssion.[26] Another eminent lawyer  Adv. Harish Salve also expressed his favour in having a Judicial Appointment Commssion which would identify suitable candidates , assessing their legal talents, character antecedents and also their person. On the contrary Advocates such as Biswajit Bhattacharya  rightly stated in his column that in India where 50% of cases are filed by the Government it would be dangerous for the same litigants to appoint and transfer judges[27]. This  will directly strike at the doctrine of separation of powers and severely compromise the independence of the Judiciary.

 CONCLUSION:

The unanimous cry for the Judicial Appointment Commission is reflected in calling for some transparency in judicial appointments and making the Judiciary a role model and the most democratic and accountable and dependable organ of the state. The point that all the  academicians, jurist, lawyers, senior advocates, judges seem to make is in line with bringing about transparency within the judiciary thus clearing all doubts of likely presence of  unfairness and arbitrariness in the judicial appointments . It cannot be ignored that the current system of judicial appointments does suffer from certain infirmities which have been duly discussed and debated by eminent personalities a few of the shortcomings which are commonly raised by many is that the collegium system lacks the capacity to examine the character antecedents of the judges and that it lacks scope for transparency . Besides, it is also stated that it does not bring about a broad based orientation. Another flaw that is pointed out in the Collegium system is that the criteria of seniority are the only decisive factor of appointment. These infirmities hold true however as rightly said by the Chief Justice of India that the judiciary is very much concerned about its integrity and its image and that the society or its persons are not perfect and neither can  a judge be considered to have perfection[28]. There is always scope for improvement in any system and these infirmities that have come to surface as shortcomings of the judiciary can be duly addressed and remedied through a Judicial Appointment Committee as suggested by the law commission, the eminent jurists, Legal personalities , members of the Bar and the present government. In constituting a Judicial Appointment Committee, the point of importance to be considered and kept on a high pedestal is the Protection of Independence of the judiciary that cannot be put to stake. Constitution of a Judicial Appointment Committee may be the need of the hour but the Independence of the Judiciary on whom the protection of the fundamental rights of the constitution rests is the soul of the supreme constitution   and must be protected in all regards. The collegium system will bring about the transparency and accountability of the judiciary that everyone seems to be wanting , but the debates and the discussions although are directed to have a representation of the executive and the legislature in the collegium however there is always an emphasis of  avoiding dominance of the executive and giving the judiciary an upper hand in selection of candidates. The judicial Appointment Committee may be brought into force but to truly bring about a strong and accountable judicial system the Government must also empower it with adequate funds, create infrastructure and fast track all courts thus making the judiciary self sufficient within itself as well.

“Study the past if you would define the future.” – Confucius .  Criticisms galore but the words of  Confucius surely has a bearing on the issue around the Judicial Appointment Bill 2014.  Past executive primacy and its influence on the judicial appointments have thought us a good lesson to be  learnt. This experience must be of paramount consideration in bringing about a change in the existing system and every attempt should be made to avoid a conflicting war between the two wings which may lead the executive to politicize the selection   of judges. The whole idea of bringing about judicial accountability and change in the current system must be kept away from political malady and it should work towards strengthening the independence of the judiciary and the rule of law and making the judiciary truly self sufficient and transparent.

[1] M.P JAIN,Indian Constitutional Law (5ed.2007.)

[2] Id.

[3]  Supra N. 1

[4]   M.P SINGH Securing the Independence of the judiciary the Indian Experience,Indian International  Administration CLR 245 (2000)

[5]  http://mulnivasiorganiser.bamcef.org/?p=48,(last updated on August 24th , 2014).

[6] http://mulnivasiorganiser.bamcef.org/?p=482( last updated on 10th September 2014)

[7] Id.

[8] Supra N.6

 [9]Supra N.6

[10] Supra N.6

[11] AIR 1982 SC 149

[12]  (2007) 7 SCC 1

[13]  AIR 2000 SC 1296

[14]  The Constitution of India, Art 124

[15]  Supra N.1

[16]  P.L Lakhanpal .v Ajit Nath Ray, AIR 1975 Del 66

[17]  AIR 1976 SC 1207

[18]  2328 SC AIR (1977)

[19]  AIR 1982 SC  149

[20]  AIR 1993 SC 631

[21] SC AIR 1994

[22] AIR 1999 SC 1

[23] http://lawcommissionofindia.nic.in/1-50/index1-50.htm  (last updated on  September  7th, 2014)

[24]  http://lawcommissionofindia.nic.in/1-50/index1-50.htm  (last updated on  September 7th,  2014)

[25] Times of India August 12, 2014, A1

[26]  Economic Times July 24, 2014 ,A3

[27]  Economic Times  July 27, 2014 ,A6

[28]  Times Of India  August 12, 2014, A1

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s