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120th Amendment - Judges Appointment
120th Amendment - Judges Appointment
Introduction:
The Collegium System which came into existence in 1993 was in response to the growing
executive role in undermining the judicial independence especially on matters relating to
appointment of judges in the higher judiciary. As explained below in the Three Judges case
the Chief Justice of India would consult the four senior most judges of the Supreme Court for
Supreme Court appointments and two senior-most judges for high court appointments.
The collegium system has its genesis in a series of three judgments that is now clubbed
together as the "Three Judges Cases".
The S P Gupta case (December 30, 1981) is called the "First Judges Case". It
declared that the "primacy" of the CJI's recommendation to the President can be
refused for "cogent reasons". This brought a paradigm shift in favour of the executive
having primacy over the judiciary in judicial appointments for the next 12 years.
Views of the Governor + Chief Minister of the State + Chief Justice of the High Court
should be received in writing
Central Government will inform the commission about the vacancies in the Supreme
Court and the High Court
Vacancies should be intimated two months prior to the retirement term, death or
resignation of Supreme Court and High Court Judge
Process to the followed:
Area of Concern:
Clause (2) of the proposed Article 124A provides that the Parliament has the power to
legislate on the composition of the Commission, appointment, tenure, qualifications,
conditions of service, functions and procedure of the Commission. A residuary clause
“such other matters as may be considered necessary” has been added.
This would give vast and unfettered power to the Parliament on Judicial
appointments. The area of concern is that the Parliament can amend the provisions of
the law with a simple majority.
Further the proposed Constitutional provision, which leaves the power to fix the
salary, tenure, composition of members of the Commission, etc. to the ordinary law of
the Parliament which undermines the independence of the Judicial Appointments
Commission and the Parliament may at any time amend the law by simple majority as
per its convenience.
The Bill does not mention about any amendment to Art. 124(3)(c) which states that,
“A person shall not be qualified for appointment as a Judge of the Supreme Court
unless he is a citizen of India and – (c) is, in the opinion of the President, a
distinguished jurist”. Does the President have powers to recommend distinguished
Judges to the JAC is a questioned answered.
How could the seniormost Judges sit for appointing the Chief Justice of India.
The Chairman of the Bar Council of India is reported to have said that “we are totally
against this National Judicial Appointment[s] Commission Bill because of the fact
that in the process of appointment of judges, we do not want any interference from
any outsider, including the executive”
Press release of the Bar Council of India says “…. lawyers of the country are not
going to tolerate the replacement of the existing collegiums with the proposed
Commission, without the representation of the Bar Councils and the (Bar)
Associations.”
The President of the Supreme Court Bar Association is reported to have said that
“loading the Commission with more members from the Executive and including
fewer members from the judiciary would curtail the independence of the judiciary”
and that “the cure should not be worse than the disease. The Bar will not agree to
transfer the power of appointment to the executive. The collegium system can be
improved by making methods of selection more transparent”
A closed-door affair without a formal and transparent system (General Argument)
Judicial Appointments Commission in the United Kingdom:
In June 2003, the British Government announced a series of constitutional reforms, including
the creation of a new Supreme Court and the establishment of a judicial appointments
commission for England and Wales. A series of public consultation papers were then released
on these and related constitutional reforms. Later a summary of responses and the individual
submissions were released. On 24 February 2004, the Constitutional Reform Bill, which
included proposals for judicial appointments, was introduced into the House of Lords.
Under the Constitutional Reform Act 2005 the JAC has a responsibility to develop and
implement its own selection processes. The key statutory responsibilities are:
For each vacancy, Commissioners select one candidate to recommend to the Appropriate
Authority (Lord Chancellor, Lord Chief Justice, or Senior President of Tribunals) for
appointment. The Appropriate Authority can accept or reject a recommendation, or ask for it
to be reconsidered. If he does so he is required to provide his reasons in writing to the
Commission. He can only exercise that power once for each candidate and cannot select an
alternative candidate.
JAC receives vacancy request from Her Majesty's Courts and Tribunals
service or the Ministry of Justice
Sections 88(3) and 94(3) of the Constitutional Reform Act 2005 (CRA) require the
Commission, as part of the selection process, to consult the Lord Chief Justice and another
person who has held the post, or has relevant experience of the post, about those candidates
the Commission is minded to select. These 'statutory consultees' are asked to give a view on
the suitability of each candidate so referred. The Commission will consider the statutory
consultation responses, together with other information about a candidate. They may decide
not to follow the views expressed by the consultees, but must give reasons for doing so when
making recommendations to the Lord Chancellor.
Selection decisions
Commissioners make the final decision on which candidates to recommend to the Lord
Chancellor for appointment. In doing so, they consider those candidates that selection panels
have assessed as the most meritorious for the role, having been provided with information
gathered on those individuals during the whole process.
When reporting its final selections to the Lord Chancellor, the Commission must reflect the
comments of the statutory consultees and discuss any divergence of opinion.
All judges of the higher courts in South Africa are appointed by the President of the National
Assembly on the advice of the Judicial Services Commission. The Commission consists of 23
members.
The Commission prepares a list of nominees containing three more names than the number of
appointments to be made. The President then consults with the President of the Court and
political party leaders. The President must advise the Commissionwith reasons if any of the
nominees are unacceptable and any appointments remain to be made. The Commission must
then supplement the original list and the President must make the remaining appointments
from that supplemented list.
The President also appoints the Chief Justice and Deputy Chief Justice after consulting with
the Commission
The appointment process in South Africa is notable for its very open and public nature. In
most jurisdictions that operate some form of commission, details of possible nominees are
kept confidential until an appointment is made. Generally the public is not informed of the
names of candidates who have not been appointed and the details of interviews are kept
confidential.
by Hepzibah Beulah
Reference:
Articles from The Hindu and Indian Express from the month of June 2013
http://jac.judiciary.gov.uk/
http://www.justice.gov.za/faq/faq-jsc.html
Supreme Court Case Laws
Judicial appointment Commission Bill 2013