The Judiciary - Executive deadlock on judges appointment needs quick resolution

A fiercely independent Judiciary is the bedrock of Indian constitutional freedoms. Stresses are appearing as fundamental disputes remain unresolved.

Separation of powers and Judicial review

The Constitution of India has adhered to the principle of separation of powers between the legislature, the executive and the judiciary. However, on closer look it seems that the judiciary has been given a slight upper hand over the parliament and the executive, in the form of power of judicial review. The constitutional provisions which guarantee judicial review of legislations are articles 13, 32 131-136, 143, 145, 226, 246, 251, 254 and 372.

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Article 124 of the Indian Constitution states that the executive will conduct the appointment of judges in the higher judiciary. The 1990s witnessed a new phenomenon in India, which is unheard of in the echelons of global judiciary, when the Apex court (the Supreme Court), created a Collegium system of judicial appointments, where the judges themselves appoint judges. This was a new experience for all the three state organs! The Collegium system of judicial appointments is unique to India and is not found anywhere else. In view of this, the government went ahead and constituted the National Judicial Appointments Commission (NJAC), through a formal law-making process of the parliament (121st Amendment bill, that was passed as the 99th Amendment Act). However, the Supreme Court later declared the said Act as invalid and void, and dismissed it. It was left to the Central Government to now evolve a Memorandum of Procedure to replace the NJAC.

The Indian judiciary is one of the largest judicial systems of the world, and lakhs of cases are pending in the various courts of the country. Crores of people regularly wait for justice for years on end. At such a juncture, when there are hundreds of vacancies of judges in the various courts of the country, if the Executive and the Judiciary do not resolve this deadlock immediately and amicably, the justice-seekers will remain the hardest hit.

Legal experts and judicial commentators are of the opinion that this empasse should end soon. Both sides may have to retreat from firmly-held positions, to resolve the issue. The Supreme Court should look into the possibility to review the present position of the Collegium system and ensure that it becomes more open and transparent. Moreover, if it strengthens the system, why should there be an objection to the entry of people outside the judiciary to participate in the appointment of judges?

The NJAC controversy in a new form!

The candidature of Justice J S Khehar (Chief Justice swearing-in 04-Jan-2017, post retirement of Justice T.S. Thakur) faced an unexpected and interesting challenge when a civil writ petition filed in the Supreme Court by a lawyers’ organisation - National Lawyers’ Campaign for Judicial Transparency and Reforms - prayed that Justice J Chelameshwar, who is senior to Justice Khehar, be appointed as the 44th Chief Justice of India! The petition argued that Justice Khehar is harsh on the smallest of mistakes by lawyers and openly favours high-profile lawyers. A bench of the Court made of Justices R K Agrawal and D Y Chandrachud rejected the arguments that Justice Khehar, while heading a five-judge constitution bench that had struck down the National Judicial Appointments Commission (NJAC), and benefitted himself as the judgement had revived the collegium system for appointment of judges in the higher judiciary. The bench found it sufficient to mention that collegium not only consist of the CJI but also four other senior-most judges of the Supreme Court. The lawyers' body also claimed that judges in the higher judiciary were coming from “a few families only” and “it cannot be the exclusive domain of some persons”. Refer news here

The Stalemate - complete series of events

  • In 1970s, the concept of "Basic Structure of Constitution" was evolved by the Supreme Court to highlight those areas which the Parliament and political executive could not tamper with at all.
  • The "Three Judges Cases" were a series of cases - (1) S. P. Gupta v. Union of India - 1981 (also known as the Judges' Transfer case), (2) Supreme Court Advocates-on Record Association vs Union of India - 1993, (3) In re Special Reference 1 of 1998 - over the course of which the Supreme Court evolved the principle of judicial independence.
  • The Supreme Court created the "Collegium system", in use since the judgment in the Second Judges Case, 1993.
  • The third case of 1998 (above) was not a case but an opinion delivered by the Supreme Court while 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.
  • It came to mean that no other branch of the state (Legislature or Executive) would have any say in the appointment of judges. 
  • The Law Commission of India in its 230th report (submitted August 2009) suggested measures for judicial reforms. [ ##link##  Download report from Bodhi Resources page]
  • The government of the day in 2012 mentioned in the Parliament that "With a view to correct the situation, judicial standards are being prescribed for the judges in the Judicial Standards and Accountability Bill, 2012 which has been passed by Lok Sabha already". (PIB release here) 
  • In January 2013, the court dismissed a PIL filed by NGO Suraz India Trust that sought to challenge the Collegium system of appointment.
  • In July 2013, then Chief Justice of India P. Sathasivam spoke against any attempts to change the Collegium system of appointments.  [ Running updates - Current Affairs, here]
  • 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 assented to it on 31 December 2014. 
  • It was renamed the National Judicial Appointments Commission Act, 2014.
  • On 16 October, 2015, the Supreme Court struck down the constitutional amendment and the NJAC Act restoring the Collegium system of "judges appointing judges" in higher judiciary. The logic given was "NJAC is interfering with the judiciary's autonomy which is a tampering of the basic structure of the constitution".
  • But the SC agreed to improve the system, and invited public suggestions.
  • The huge number of suggestions received indicated impropriety against some judges in High Courts, most notably the phenomenon of "uncle judges, father judges or brother judges" which tarnish the Judiciary's image.
  • The Supreme Court asked the government (Executive) to draft a Memorandum of Procedure (MoP) to guide the process to be used in Collegium. The government tried to secure for itself a limited privilege of rejecting a name if "national interest" was at stake.
  • The S.C. rejected that MoP. It returned the draft MoP twice to the government.
  • On 28th Oct, 2016, the Supreme Court lost patience, yet again, and reprimanded the government's slow speed in preparation of the Memorandum of Procedure (MOP), threatening to summon top bureaucrats to the Court for an explanation if things did not take shape soon. The government replied that the fresh Memorandum of Procedure (MoP) draft sent by government to the Supreme Court on August 3 is yet to receive a reply. 
  • In the second week of November 2016, the government told that it had cleared 34 out of 77 names recommended by the collegium for appointment in High Courts. The remaining 43 names have been returned to the collegium. 
  • On 18-Nov-2016, the Supreme Court refused to accept rejection of 43 names and has sent back all 43 names for reconsideration. 
  • On Constitution Day (26 November - formerly called Law Day) when the Law Minister and the CJI came together on a stage, they reminded each other of a "Laxman Rekha" (inviolate line) that no one should cross!
  • December 2016 - A petition is filed by a lawyers' association alleging that Justice Khehar benefitted from the NJAC judgement, and hence should not be appointed CJI. It was dismissed. (See detailed writeup below.)
  • 19 names were recommended by collegium for appointment as judges to Allahabad HC. The government had sent the names back. Then the Supreme Court collegium had resent the names ('reiterated'), and it was assumed they will be appointed. But on 02 Jan 2017, sparks flew in SC when the Attorney General (appearing for Centre) informed that the reiterated names were again returned to the collegium, citing procedural deficiencies. The MoP is still pending.
  • Senior Advocates Yatin Oza and Ram Jethmalani moved a petition in SC alleging that even transfer recommended by collegium had not been carried out. Oza referred to a certain HC and said "it has gone to the dogs" as judges deemed close to the government were not being transferred!
  • Justice J.S.Khehar appointed Chief Justice of India on 04 Jan, 2017, after CJI Justice T.S. Thakur retired.
  • March 2017 : Reports started appearing in media that a resolution to the long-pending MoP stalemate has been achieved. We present the various shades of that story below.

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Signs of a final resolution

It emerged in March 2017 that perhaps the situation has been resolved. Here is a detailed update.

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    •  Is the MoP stalemate resolved? Various aspects of the story 
      • March 2017 : The MoP Finalisation stalemate seems to have ended half-way. The collegium has now (March 2017) rejected many of the suggestions made by the Centre resulting in a year-long impasse of the Memorandum of Procedure (MoP) for higher judiciary appointments. The collegium consists of Chief Justice J S Khehar and four seniormost judges - Justices Dipak Misra, J Chelameswar, Ranjan Gogoi and M B Lokur - in its recommendations sent to the Centre. ##chevron-right## Issue of National Security : The five-Judge collegium led by CJI Khehar, in its final meeting on March 10, 2017 unanimously rejected the recommendation by Centre that “national security” ought to be a part of the criteria to determine eligibility for appointment as Judges. But there was a breakthrough after both sides ceded some ground to the other. While the collegium accepted the government’s demand to include a clause on national security in the MoP, the government agreed that the former would have the last word. So, the Collegium has reserved the right to reiterate a judicial name in case it is not satisfied with the government’s reasons for vetoing it. ##chevron-right## Only when the MoP is published, the exact nature of the procedure agreed will be known. It appears that (1) The government's right to object to the recommendation on the ground of national security is accepted, and (2) The government will have to record specific reasons. No abstract objection shall be valid. ##chevron-right## Intelligence Vetting : Even before this MoP, every name recommended was probed by the Intelligence Bureau and its reports were obtained by the government. Details about the general character, public opinion, political affiliations etc of the judge recommended were available to the government. If something really anti-national or criminal was reported and brought to the notice of the collegium, the name was sure to be dropped. No notion of supremacy would come in the way. Now the government wants a specific mention. ##chevron-right## Secretariat : Rejection also seems to have happened of the suggestion to set up a permanent secretariat for “vetting and screening” appointments to the higher judiciary. ##chevron-right## Age limits : The Supreme Court collegium has agreed to Centre’s suggestion of having a minimum and maximum age for advocates to be considered for appointment as high court judges. Collegium has said that no lawyer below the age of 45 and above the age of 55 should be considered for appointment as judge of a high court. In the case of district and sessions judges being elevated to high courts, the collegium has recommended a maximum age of 58 and a half years. However, the age of the judge at the time the vacancy arose would be considered. Articles 124 and 217 of the Constitution, which deal with appointment of judges to the Supreme Court and high courts, do not have any age bracket as eligibility criteria. ##chevron-right## Centre's insistence : The Centre has been insisting upon an age clause in the MoP on the grounds it would ensure uniformity and transparency in the appointment process and also rule out the possibility of members of the collegium adopting divergent (read preferential) yardsticks while recommending names. The Centre had contended that the clause would also end discretion, which too leads to possible cases of favouritism.   ##chevron-right## Representation to All : Among the other government suggestions rejected by the collegium, it is revealed now, is the proposal to have some fixed representation for women and marginalised sections. In its recommendations to the Centre, the collegium has only conceded that, as far as possible, representation would be given to women and marginalised sections. ##chevron-right## Constitutional Provisions : Articles 124 and 217 do not provide for reservation for any caste or class of persons, but successive governments have been requesting the judiciary to appoint more persons from these groups, in view of the “inadequate representation of various sections of people, lower percentage of Judges belonging to SCs, STs and women”. ##chevron-right## Appointments for Vacancies : Regarding the vacancies in High Courts and delays in appointing judges due to the MoP tussles, the Collegium said that 25 per cent of the Judges’ strength had been increased recently.  A few steps had already been taken — Judges had been appointed in the top court as also CJs in High Courts. There was no move to increase the number of posts of High Court judges till all the existing judicial vacancies were filled. The sanctioned strength of judges across the 24 High Courts is 1,079. ##chevron-right## Roundup : The government and the judiciary had been at loggerheads over judicial appointments ever since a Constitution Bench in October 2015 declared the NJAC Act, which gave some say to the executive in the Judges’ appointment, as unconstitutional. The exact road ahead will be clear only by 2018 when all dust settles down, hopefully! 

In some articles in leading publications, analysts have criticised the slow speed with which the Supreme Court has taken up cases affecting the fundamental rights of citizens. The petitions challenging mandatory Aadhaar requirements (a violation of right to privacy) is pending since 2013 for final hearing, and the demonetisation related petitions (a violation of many basic freedoms) too are being heard slowly. Critics say that unless such cases which affect everyone 'today and now' are expeditiously heard, the Court's moral standing is denuded. 

[इस बोधि को हिंदी में पढ़ें, यहाँ ##link##]

Vacancies Status :

Supreme Court : 10% vacant (3 #), All High Courts : 43% vacant (464 #)

The issue remains unresolved till date. Indians hope for an amicable solution, for justice to prevail in the country. After all, justice delayed is justice denied!,,

Satyamev Jayate!

[Solve Bodhi Prashn ##question-circle##]

This Bodhi will be regularly updatedKeep visiting. And do share your thoughts in the Comments thread.

  • [message]
    • Bodhi Links (for deeper study; Caution: some may be external links, some large PDFs)
      • ##chevron-right## Law Commission of India website here  ##chevron-right## Questionnaire : Uniform Civil Code pdf here  ##chevron-right## Genesis of Collegium system here ##chevron-right## PIB release 2012 here ##chevron-right## N J A C here  ##chevron-right## 121st Amendment Bill pdf here  ##chevron-right## NJAC launch pdf here  ##chevron-right## Supreme Court strikes down NJAC pdf here  ##chevron-right## Dashboard - Case Status - Indian district courts here  ##chevron-right## Case Status - comprehensive govt. site here  ##chevron-right## All Indian Courts here  ##chevron-right## Supreme Court expresses discontent over slow speed of MOP here ##chevron-right##  Signs of escalating tension between Centre and S.C. here ##chevron-right## Judiciary and Legislature remind each other of Laxman Rekha here  ##refresh## Running updates - Current Affairs here

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Bodhi Booster: The Judiciary - Executive deadlock on judges appointment needs quick resolution
The Judiciary - Executive deadlock on judges appointment needs quick resolution
A fiercely independent Judiciary is the bedrock of Indian constitutional freedoms. Stresses are appearing as fundamental disputes remain unresolved.
Bodhi Booster
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