8/11/2014 A case for two commissions | The Indian Express | Page 99

Follow Like 1.9m

MONDAY, AUG 11, 2014 OPINION

Home Opinion Columns HANGING IN BALANCE BUSINESS AS USUAL BY E.P UNNY

A case for two commissions

T R Andhyarujina | August 9, 2014 8:46 am Print

Family Law Made Easy

Fixed fee divorce from under 300. Up to 60% discount on hourly rates www.flme.co.uk
Ads by Google

8 0 Comments

SUMMARY

The judicial
appointment
commission has not
worked well in
other countries.
Tweet This

The Constituent Assemblys view at the time of enacting the constitutional provisions,
that the CJI should not be the final appointing authority, was disregarded by the court. In
no jurisdiction in the world do judges appoint judges.

There is now a consensus amongst judges, lawyers and legislators that

More From T R Andhyarujina
President And Precedent
Why Mulayam Is right
YOU MAY ALSO LIKE
Prashant
Bhushan
Mon Aug 11 2014
Lay down standards
of transparency
the present system of appointment of judges to superior courts by a
collegium of Supreme Court judges requires to be changed for a better
one. There are sound reasons for this move.
AUG 11: LATEST NEWS
First, the appointment of judges by the Supreme Court collegium has no
foundation in our Constitution. Article 124 of the Constitution provides North West is fascinated by my
that every judge of the Supreme Court is to be appointed by the beauty regime: Kim Kardashian
12:31 pm, Aug 11, 2014
president after consultation with the chief justice of the Supreme Court
and other judges of the Supreme Court and high courts. Similar power Watch video: Bangalore woman
is given by Article 217 to the president in consultation with the chief chases, kicks molester
12:31 pm, Aug 11, 2014
justice of India (CJI), the governor of the state and chief justice of the
high court for the appointment of judges to high courts.
Uproar in Rajya Sabha over
inconsistencies in government
In 1981, in what is known as the first judges case, the Supreme Court statement on WTO
held that the power of appointment of judges of the superior courts 12:31 pm, Aug 11, 2014
resided solely and exclusively in the president, that is, the Central
Pak claims 2 citizens killed in firing
government, subject to full and effective consultation with the
from across the LoC
constitutional functionaries referred to in Articles 124 and 217. However, 12:30 pm, Aug 11, 2014

Appointments commission
proposed by the UPA
suffered from vices of both
pre-1993 and existing
systems.
Julio Ribeiro
Mon Aug 11 2014
in 1992, the Supreme Court, in the second judges case, professing to
safeguard the independence of the judiciary, reversed the first verdict Will surprise people with Bhavesh
Joshi': Vikramaditya Motwane
and rewrote the constitutional provisions to hold that the primacy in the 12:28 pm, Aug 11, 2014
appointment of a judge of the Supreme Court was with the CJI, who
would make his recommendation to the president after consultation with
two of his senior judges. The president would only have the limited
power of expressing his doubts on the recommendation of the CJI. The

http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/99/ 1/4
8/11/2014
The Paraskar syndrome
Only cadre officers, that is,
those who have been
absorbed into the IPS, can
hold certain jobs like SPs
in the districts.
How to manage uncertainty
RBI has touched some
critical areas to improve the
functioning of the financial
markets and support the
liquidity conditions for
banks.
Subhash C.
Kashyap
Mon Aug 11 2014
Leave it to the House
The LG should ask the
Delhi Assembly to elect its
leader by secret ballot.
http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/99/
A case for two commissions | The Indian Express | Page 99
presidents doubts would not however prevail if the CJI reiterated his
recommendation on the appointment of the judge. In a later judgment,
known as the third judges case, the Supreme Court diluted the primacy
of the CJI, and gave the power of appointment to a collegium of the CJI
and four of his senior-most colleagues.
The judgments in the second and third judges cases are an
extraordinary tour de force in the name of securing the independence of
the judiciary. The court has rewritten the provisions of the Constitution
for the appointment of judges. The executives function in the
appointment process has for all practical purposes been eliminated and
reduced to the formal approving of a recommendation made by the CJI
and his collegium. Consultation with the CJI in the Constitution has
been transmuted into an original power to appoint by the CJI and a
collegium. The Constituent Assemblys view at the time of enacting the
constitutional provisions, that the CJI should not be the final appointing
authority, was disregarded by the court. In no jurisdiction in the world do
judges appoint judges.
Even if the collegiums method for the appointment of judges has no
foundation in the Constitution, it could have been excused had the
system worked satisfactorily, but unfortunately, for over 20 years, it has
not. In the first instance, the collegium system lacks transparency and is
secretive. The public is not aware of the selection of a judge until his
name is forwarded to the government by the collegium. Second, there
have been instances of judges being selected or not selected due to
favouritism or prejudice of members of the collegium. Third, selection on
competitive merit of the appointees is discarded and judges are
generally appointed to the Supreme Court on their seniority in ranking in
the high courts. The late Justice J.S. Verma, principal author of the
second judges judgment, later admitted that the collegium system had
failed.
Should the earlier system of the exective appointing judges after proper
consultation be restored? Paradoxically, from 1950 to 1973, some of the
most outstanding judges of our Supreme Court were appointed through
this system. Eminent judges like Michael Kirby of the Australian High
Court are strongly in favour of restoring the old system, with control over
it by Parliament. It was only during the period of the Emergency that this
system was subverted, which led to the judiciary appropriating the
power in the second judges case. Even today, in Australia and Canada,
it is the executive that appoints judges after proper consultation.
To introduce a Judicial Appointments Commission (JAC) in India is a
fundamental change in the Constitution. Such a change requires careful
consideration and evaluation of the system. It is important to know that,
except for the judicial appointment commission of the UK introduced by
the Constitutional Reform Act, 2005, such commissions have not been
successful elsewhere. The South African constitution provides for a
judicial appointment commission, but its working is far from satisfactory
and at times appointments have been influenced by the government.
The same is true of judicial appointment commissions in other states in
Africa.
If the JAC is to be introduced in India, its composition should be made
part of the Constitution itself and not left to ordinary legislation by
Parliament. There should be proper representation of members,
including of the legal profession, in the JAC. The JAC will be over-
stressed and overworked if it has to make appointments for 31 judges to
the Supreme Court and over 800 judges to the 24 high courts. The CJI
and two senior-most judges, who are to be part of the commission,
would have to work in the commission to the neglect of their primary
judicial duties of hearing and deciding cases. There ought to be two
separate judicial commissions, therefore, one for the Supreme Court
and the other for the high courts. The JAC for high courts ought to
be composed of retired judges of the Supreme Court or high courts, in
2/4
8/11/2014 A case for two commissions | The Indian Express | Page 99
Express Specials Exclusive Reports FlighttoMH17
addition otherCrash India tour
members. of England
In the Dynamic
UK, there Timeline: Jadeja-Anderson
are separate selecting spat E-Paper Today's Paper Astrology
NATION WORLD
bodies BUSINESS
for high CITIES
court and SPORTS court.
for supreme ENTERTAINMENT LIFESTYLE
The overriding TECHNOLOGY
factor will be OPINION PHOTOS VIDEOS ALL SECTIONS
the merit of the candidate, but the commission, as in the UK, should
consider diversity, namely, appointment of women judges and judges of
various regions without of course sacrificing merit.

Overall, the creation of a JAC requires careful consideration and

extensive consultation with all sections of the public, including the CJI.
The present law minister, Ravi Shankar Prasad, rightly convened a
meeting on July 28 of judges and lawyers and jurists to discuss the
changes to be made. It is to be hoped that such consultations will be
continued before a legislation is introduced. The collegium system has
not worked, but we should not have a situation where we jump from the
frying pan of the collegium to the burning fire of a chaotic National
Judicial Commission.

The writer is a senior advocate of the Supreme Court and

former Solicitor General of India

TAGS: Appointment Of Judges Collegium Supreme Court Collegium Supreme Court Judges

PHOTOS

Meet The Bengali Superman A Glimpse Of The Ramp Brides: Kangana How Hrithik Roshan,
And Tam-Brahm Hulk Supermoon worldwide Ranaut, Nargis Fakhri, Priyanka Chopra
Esha Gupta Celebrated rakhi

0 Comments Indian Express Login

Sort by Newest Share Favorite

Start the discussion

Be the first to comment.

ALSO ON INDIAN EXPRESS WHAT'S THIS?

Renewal on August 15 Those who lost polls still engaging in

3 comments 2 days ago
Anil Natesan Superb article. I hope the
PM reads it and understands what ordinary
Indians want in their lives. You
vote-bank politics: PM Narendra Modi
5 comments 2 days ago
RIP Commie Dude .. come out of your
commie views.... and start seeign good
everywhere.. TO turnaround economy

Kumar Sangakkaras 10th double puts Mapping my India: How costly is my

Sri Lanka on top state?
1 comment 2 days ago 1 comment a day ago
sam This guy will beat Sachin Sangeeth Kannan Good to see Tamil
nadu at 5.1 without much support from
central

Subscribe Add Disqus to your site

http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/99/ 3/4
8/11/2014 A case for two commissions | The Indian Express | Page 99

INDIA WORLD SPORTS LIFESTYLE ENTERTAINMENT TECHNOLOGY

Uproar in Rajya Sabha over US 'fully supports' Iraq's Tsonga's week of upsets Add punch to rakhis with Akshay Kumar's Astrum Elete Tpad BT: Good
'inconsistencies' in new president: Psaki ends with Rogers title chocolate, cookies and 'Entertainment' earns over wireless keyboard option,
government statement on quilling Rs.20 crore in 2 days but for Windows
WTO

The Express Group Expressindia The Indian Express The Financial Express Loksatta Jansatta Exims Ramnath Goenka Aw ards
Express Tow ers Business Publication Division Express Pharma Express Healthcare Express Hospitality Express Travelw orld Express Computers
Privacy Policy Advertise w ith Us Contact Us Subscribe

Copyright 2014 The Indian Express ltd. All Rights Reserved

http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/99/ 4/4