With the Centre endorsing the plea for revisiting the 1993 nine-judge judgment, which paved the way for the collegium system of judicial appointments, the Supreme Court has asked the Registry to post before Chief Justice of India S.H. Kapadia a petition raising this issue for hearing by an appropriate Bench.
Under the system, the executive has no say in appointments as the recommendations of the collegium are final and binding on the government.
The Suraz India Trust, in its petition filed in 2010, sought reconsideration of the proposition of law settled in the judgment rendered in the case of the Supreme Court Advocates-on-record Association and others vs the Union of India and others in 1993, whereby the Supreme Court declared the primacy of the collegium in appointment of judges of the Supreme Court and High Courts.
During the resumed hearing before a Bench of Justices Deepak Verma and B.S. Chauhan on Monday, amicus curiae A.K. Ganguly referred to a note in which he said: “The 1993 decision needs to be reconsidered as the procedure adopted for appointment of judges therein is unworkable under the democratic set-up of this country and is contrary to constitutional foundation of democracy, separation of powers and checks and balances.”
Mr. Ganguly said: “The supremacy of the Chief Justice [of the Supreme Court or the High Court] as interpreted in the 1993 judgment has come to be perceived as encouraging lack of accountability in the entire system. The present system has resulted in an anomaly in as much as the executive no longer has to share any responsibility in filling up vacancies, the entire responsibility being that of the collegium of the Supreme Court.”
Pointing out the number of vacancies in the higher judiciary, Mr. Ganguly said: “The 1993 decision was a result of the perception of the judiciary that it required to be insulated from the interference from the executive. [But the] working of the system shows that independence can be secured through other measures.”
He said: “Although the word ‘consultation' appears twice in Article 124 (1), once in relation to the Chief Justice and secondly in relation to other judges, it is concluded that the word in its first use means primacy, but in its second form [it] does not; suggesting that the opinion of the Chief Justice symbolises the views of the entire judiciary, solely through the CJI, could not be the import of Article 124 (1) or 217 (1). There are inconsistencies between the ratio of the judgment and its summary.”
Mr. Ganguly requested the Bench to refer the matter for posting before a larger Bench.
Attorney-General G.E. Vahanvati, supporting the stand of the amicus curiae, said the government wanted to bring in a comprehensive Bill for a constitutional amendment on judicial appointments but it might take a long time. As the former CJI, J.S. Verma, author of the judgment, had also expressed doubts on the judgment, the court should revisit the 1993 judgment as the petition had raised serious issues, Mr. Vahanvati pointed out.
Keywords: judicial appointments
I totally agree with the part of Mr. Ganguly's referral that Collegium means the primacy of the Hon'ble Chiefs of High Court and Supreme Court. Having said this I want to support it with facts, we have a live example running in appointment of judges to the High Court of State of Uttar Pradesh, just two months back or so an honest judge was denied rather was not considered for High Court Allahabad and not because he was inefficient or he had any records of complaints but because he was honest enough to let judiciary take its take on it.
He plead the Honble members of Collegium to review the report given by the committee, but what else could we expect he has been denied even that, he has requested , represented and followed all ways he possibly could to make Indian Judiciary(comprising of Supreme Court and High Court) that injustice has been done to a Judge, he is not being heard.
And I am not talking just about any District Judge , he is the current District Judge of the Capital of Uttar Pradesh, and for 3 years he has been working towards making people believe that Indian Judicial System is impartial and over 17 years to UP Judiciary,with an unblemished career, and with judgements marked as Outstanding by his all Administrative Judges, do we still need a proof?? If yes then review it, and if not then we Indian Judiciary should atleast listen to a person who has been part of it for 1/3 of his own life.
If this is the kind of examples Hon'ble judges are setting for their own members, its high time someone like CJI and Collegium at Supreme Court starts closely monitoring every recommendation done by High Court,before people like him retire with this injustice in their hearts. Its worth hearing before its too late.
Referring to Mr. Ganguly' suggestion that the opinion of the Chief Justice symbolises the views of the entire judiciary, solely through the CJI or Chief Justice of High Court, could not be the import of Article 124 (1) or 217 (1).
This has been proved and very evident by the fact that the collegium held for appointments to UP High Court bypassed the District Judge of Lucknow (Highest District Authority of Judiciary for Capital of State of Uttar Pradesh) purely on lame grounds of judgements not being 'good enough'. And we have a reason to call it 'lame', since the same judgements were rated as outstanding and very good by his Administrative Judges through out his tenure. He has had an unblemished career and throughout his tenure as District Judge of Lucknow or otherwise there has been no complaints reported against him, but still he has been bypassed, any reasons anyone can suggest!!
Mentioning above, which is a very recent incident and the Judge in topic, I will also like to add that there has been efforts from his side to get the decision reviewed, which has been done earlier, but not this time, it has been denied to him. What message are we sending here,that Judiciary really needs the Executive to probe and do justice to one of its members? Can't the hierarchy of Judiciary review the decisions and recommendations passed by the subordinate courts and do the needful on priority basis.
Probably nothing would be ever answered and in the meanwhile there would be other Hon'ble Judges like aforementioned who would retire this month or year before they themselves are heard or given justice. For the efforts that honest people have put in to clean the dirty grounds and make common man believe in Indian Judiciary System, this is how the Apex Court repay!!
The matter seems important. However, I wish the report had supplied a little more context enabling readers like me to appreciate the ramifications of the move.The 'Suraz India Trust' is also unfamiliar, as would be to most of your readers. A Google search only reveals that it is based in Jodhpur, and 'The trust has been established to materialize the ideology of the chairman and has been set as a 'VENTURE FOR LEGAL RENASSAINCE' and working in the field of restoration of RIGHT OF PROSECUTION OF COMPLAINANT in India'. I hope to see more researched reporting.
The 1993 nine-judge judgment is well settled in law and no less than an article of faith to be vigilantly guarded against intrusion in haste or exasperation or with hidden agenda.The issue of vacancies of judges has little or no relevance to the appointment of judges by the collegium without prominent role of the executive.Given the humongous scams like 2-G spectrum, CWG etc, the lesser the role of the executive the better would be the functioning of the judiciary.It is common knowledge that a judge appointed by the influence of the executive would be naturally under obligation to it.How far the role of the executive is desirable may be inferred from the appointment of Mr P.J.Thomas for the post of the CVC.Hopefully the judges and lawyers would be able to see through the move and secure the independence of the judiciary.
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