Three Judges Cases

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Collegium system of Supreme Court and High Courts of India, based on the precedence established by the "Three Judges Cases", is a legally valid system of appointment and transfer of judges in the Supreme Court of India (SC) and all High Courts of India (HC). The judges in lower courts below the level of HC are appointed by respective HC Collegium. SC and all HCs have their own separate collegium. Each collegium is composed of five people, including the Chief Justice of the relevant court who is also the head of collegium, and four senior most judges of that court. In this system of checks and balance, which ensures the independence of senior judiciary in India, the SC or HC collegium selects and recommends to Chief Justice of India (CJI) the names of judges to be appointed or transferred. CJI has the authority to reject or approve the recommended names. The names approved by the CJI are sent to the Government of India (GoI). GoI's role is restricted to undertaking character verification and national security clearance by the Intelligence Bureau (IB), or raising any objections and clarifications to CJI. If CJI ignores the objections by the GoI, and the same name is sent again to the GoI by the collegium after the re-approval by CJI, then GoI is legally bound to accept the name for the appointment or transfer. GoI sends the approved names to President of India who issues a warrant of appointment (authorisation). Finally, the GoI publishes a notice in weekly The Gazette of India. After this notification the order of appointment comes into legal effect. [1]

Contents

Collegium system developed gradually as a result of precedence established by three separate cases in the Supreme Court of India pertaining to this issue, i.e. it did not come into existence through an Act of Parliament or by a provision of the Constitution of India. [1] This closed door system with no published rules or eligibility criteria, no oversight by the parliament or the executive, and without independent review or appeal process, has been criticised for the lack of transparency, where often the lawyers aspiring to be appointed have no idea if their name was considered by the collegium or not. [1]

Members of Collegium

Current collegium system

History of "Three Judges Cases"

Following are the three cases:

  1. S. P. Gupta v. Union of India - 1982 [2] (also known as the Judges' Transfer case)
  2. Supreme Court Advocates-on Record Association vs Union of India - 1993 [3]
  3. In re Special Reference 1 of 1998 [4]

Over the course of the three different cases brought to the supreme court of India, the court evolved the principle of judicial independence to mean that no other branch of the state - including the legislature and the executive - would have any say in the appointment of judges. The court then created the collegium system, which has been in use since the judgment in the Second Judges Case [3] was issued in 1993. There is no mention of the collegium either in the original Constitution of India or in successive amendments. Although the creation of the collegium system was viewed as controversial by legal scholars and jurists outside India[ citation needed ], the Parliament and the executive, both have done little to replace it. The Third Judges Case of 1998 [4] is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.

Further, in January 2013, the court dismissed as without locus standi, a public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment. [5]

In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system. [6]

On 5 September 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the National Judicial Appointments Commission, on whose recommendation the President would appoint judges to the higher judiciary. [7]

The amendment was struck down by the Supreme Court for being unconstitutional on 16 October, 2015. The constitutional bench of Justices J. S. Khehar, Madan Lokur, Kurian Joseph and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it. [8]

Constitutional validity

The SC has upheld the legal validity of the current collegium system, and the Constitution of India has the following two Articles related to this issue: [1]

Article 124(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."

And Article 217:
: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.:

Judicial meaning of the word "Recommendation"

In judgement on the presidential reference, Supreme Court has dealt elaborately, the modality of rendering recommendation by a constitutional entity such as Supreme Court, President of India, etc, It is not at the discretion of the person consulted to render the recommendation but internal consultations with the peers shall be made in writing and the recommendation shall be made in accordance with the internal consultations. [4]

Failed attempts at reforming and replacing the collegium system

National Judicial Appointments Commission established

The Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 passed the National Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the collegium system of appointment of Judges. The President of India has given his assent to the National Judicial Appointments Commission Bill, 2014 on 31 December 2014, after which the bill has been renamed as the National Judicial Appointments Commission Act, 2014.

99th Amendment and NJAC Act quashed by Supreme court

By a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade old collegium system of judges appointing judges in higher judiciary. [9] [10] [11] Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure. However Supreme Court has acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/improved by the Judiciary.

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References

Citations

  1. 1 2 3 4 SC won’t review 1993 order that set up ‘collegium system’. What is it?, Indian Express, 7 November 2019.
  2. Bhagwati, P. "S. P. Gupta v. President of India". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  3. 1 2 Verma (for the majority), J S. "Supreme Court Advocates-on-RecorIndia". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  4. 1 2 3 Barucha, S. P. "In re Special Reference 1 of 1998". indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.
  5. Express News Service. "Apex court junks PIL to revisit collegium system". The Indian Express. Retrieved 15 January 2013.
  6. "No need to change collegium system : Justice Sathasivam". NiTi Central. 3 July 2013. Retrieved 16 July 2013.
  7. "Elders Clear bill to set up Judicial Appointment Commission". The Hindu. 5 October 2013. Retrieved 12 October 2013.
  8. "NJAC Act unconstitutional, collegium system to continue: Apex Court". The Hindu Business Line. Press Trust of India. 16 October 2015. Retrieved 26 October 2018.
  9. "SC declares NJAC unconstitutional; Chelameswar J dissents [Read Judgment]". 1, Law Street. 16 October 2015. Retrieved 3 November 2011.
  10. ""Supreme Court Advocates-on-Record - Association & Anr. v/s Union of India (WRIT PETITION (CIVIL) NO. 13 OF 2015)"" (PDF). Supreme Court of India. Supreme Court of India. Retrieved 17 October 2015.
  11. "SC Bench strikes down NJAC Act as 'unconstitutional and void'". The Hindu. 17 October 2015. Retrieved 17 October 2015.