The Hindu : National : Law panel: Judiciary and Executive must have equal say

Online edition of India's National Newspaper
Saturday, Nov 22, 2008
ePaper | Mobile/PDA Version

National

National

Law panel: Judiciary and Executive must have equal say

J. Venkatesan

It’s time balance of power is restored in appointments

Reconsider judgments of 1982, 1993 and 1998 for clarity, consistency in appointments
Collegium not familiar with the antecedents of candidates

NEW DELHI: Even as a controversy is brewing over the elevation of three judges to the Supreme Court, the Law Commission of India has recommended an equal role for the Judiciary and the Executive in the selection and appointments to High Courts and the apex court.

The Centre returned the files on the recommendations made by the apex court collegium to appoint the Chief Justices of the Kerala, Madras and Patna High Courts, H.L. Dattu, A.K. Ganguly and R.M. Lodha, judges of the Supreme Court.

The collegium, reiterating its recommendations, sent the files to the Law Ministry for being forwarded to President Pratibha Patil for her approval.

In its 214th report submitted to Law Minister H.R. Bhardwaj, the Commission, headed by Justice A.R. Lakshmanan, has suggested that the three Supreme Court judgments of 1982, 1993 and 1998 be reconsidered to bring about clarity and consistency in the process of appointments.

The report, analysing the position in various countries, said: “It may be seen that in all other Constitutions either the Executive is the sole authority to appoint judges or the Executive appoints [judges] in consultation with the Chief Justice of the country. The Indian Constitution has followed the latter method. However, the ‘second judges case — Advocates on Record Association vs. the Union of India’ — of 1993 has completely eliminated and excluded the Executive and the opinion of the Supreme Court in the presidential reference of 1998 has reaffirmed this view with slight modifications.”

It said “the Indian Constitution provides a beautiful system of checks and balances under Articles 124 (2) and 217 (1) for the appointment of judges of the Supreme Court and the High Courts where both the Executive and the Judiciary have been given a balanced role. It is time the original balance of power is restored.”

The views of the parliamentary standing committee on Law and Justice recommending the scrapping of the present procedure was of great relevance, the Law Commission said. Referring to this report, Mr. Bhardwaj said the collegium system had failed as the decisions on appointments and transfers lacked transparency. The Minister said,

“We feel courts are not getting judges on merit and the government cannot be a silent spectator on such a serious issue.”

Government policy

The Law Commission pointed out that in every High Court the Chief Justice “is from outside the State as per the policy of the government. The seniormost judges who form the collegium are also from outside the State. The resultant position is that the judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information.”

“Alternatives”

Therefore, “two alternatives are available to the government. One is to seek a reconsideration of the three judgments before the Supreme Court. Otherwise, a law may be passed restoring the primacy of the CJI and the power of the Executive to make the appointments.”

Restoring the balance between the Judiciary and the Executive would improve the quality of selection and appointments, the report said.

Printer friendly page
Send this article to Friends by E-Mail

National