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.

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