01. Over the last few years, an opinion was
aired, that constitution of a National Judicial Commission would be the only solution
for ensuring transparency in the appointment of judges to the High Courts and for their
accountability. There was a lull for
some time; but once again the issue has begun to surface.
Constitution
(98th Amendment) Bill 2003.
02. In fact, the Constitution (98th
Amendment) Bill, 2003 was introduced in Parliament, which proposed to amend the
Constitution for establishing “National Judicial Commission” [NJC]. It was to be constituted with the Chief
Justice of India as the Chairman. The two senior most Judges of the Supreme
Court, Union Minister for Law and Justice and one eminent citizen, to be
nominated by President, in consultation with Prime Minister, were to be the
other four members. According to the proposed Article 147A, in case of
appointment of Judges to a High Court, the Chief Justice of that High Court and
the Chief Minister of that State were to be “associated” with the N J C.
03. Though
the said 98th Constitution Amendment Bill (2003), was not passed by
the Parliament, once again the proposal is being revived. If a National
Judicial Commission is to be established, on any day in future, its composition
would not be very much different from what was contemplated by the said 98th
Amendment Bill. Hence, an analysis of
that Bill would not be out of place.
Constitutional provisions:
04. The Constitution, in letter, mandates that
the President shall appoint a Judge of a High Court, after consultation with
the Chief Justice of the High Court, the Chief Justice of India and the
Governor of the State. ‘Consultation’ with the President and Governor
of the State, respectively, mean the ‘advice’
or ‘decision’ of the Council of
Ministers of the Union or the State. But
the said consultative process was modified by the Supreme Court exercising the
power under Art.141 read with Art.142 of the Constitution. It was substituted by
a “collegium” [ five
senior most judges of the Supreme
Court and in the case of a High Court ,the
three senior most judges]. By that process the role of executive was sought to
be
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completely excluded. Any
law ‘interpreted,’ including any law ‘made’, by the Supreme Court , to do
‘complete justice’, is a law “ declared
” by the Supreme Court and is binding on all Courts in India, and hence the law
of the land. [This proposition that law made
by S.C, is a law binding as law declared,
needs deeper analysis]
Proposed
Amendment:
05. Even
after the said judgment, the power and the privilege of the Chief Justice of
the High Courts, to initiate the process of recommending the names of persons
for such appointment, remained unaltered. But the proposed amendment to Article
217, if enacted, would obliterate that power of Chief Justices of High Courts, of
initiating the process of recommending the names for such appointment. Once the
proposed NJC is constituted, it would be possible for the NJC itself to
initiate the process of naming the persons to be appointed as Judges of any High
Court. Under such circumstances, the Chief Justice of a High Court of a State
cannot be expected to oppose the wishes/decision
of the Chief Justice of India and the two senior most Judges of the Supreme
Court, because, the Chief Justice of the High Court would always be from outside that State. Thus, one of the most important powers of the
Chief Justices of High Courts and the Governor of the States may no longer
exist. The words `associated with` are
susceptible for varied and divergent interpretations. The proposed amendment is
to transfer the power from the “collegium” to the NJC.
Inconsistent
with constitutional scheme:
06. Under the proposed Article 147-A (4)(d),
the National Judicial Commission would have the power to enquire suo motu or on a complaint or reference
other than those calling for the removal of the Judge. It shall, after enquiry, advice the Chief
Justice of India or the Chief Justice of the High Court appropriately. Possibilities for manipulating the circumstances
for initiation of such enquiries are enormous.
Complaints would be sent, from unexpected quarters. The prevailing healthy atmosphere, barring a
few aberrations, may adversely be affected.
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High
Courts made administratively subordinate:
07. As per the Constitution, High Courts enjoy
a status equal to that of the Supreme Court.
Except that a judgments of High Courts are appealable to the Supreme Court, under Articles 132 to 136 and
the judgments of the High Courts can be reversed or modified by the Supreme
Court, both have co-equal powers; in fact, according to
constitutional experts, the powers of High Courts are wider. That position would be altered by the
proposed amendment. The High Courts
would become administratively subordinate, de-jure
to NJC and de-facto to the Supreme
Court. That would convert India, “Union
of States”, into a “Unitary State”, even
with respect to judiciary.
Against
the scheme of the Constitution :
08. This process of bringing the High Court administratively
subordinate to the National Judicial Commission/Supreme Court is against the
scheme of the Constitution. Unlike the executive
and legislative powers, which are vested,
respectively, in the Council of Ministers and the Parliament / State Legislatures,
the judicial power is not vested
either in Supreme Court or in the High
Courts, by the constitution.
All India Seniority of H.C. Judges
unconstitutional:
09: It cannot be ignored that only Part V of
the constitution, relating to STATES, deals with ‘High Courts’ and ‘High Court Judges’. Each High Court is a
High Court of that State- an independent institution.
Parameters applied for appointment of judges of High Courts are different in
each State. Hence, judges of each High Court are a single unit or ‘cadre’. There
cannot be a common seniority among different units or cadres. That is an
axiomatic principle of any service jurisprudence. Therefore, maintaining an All India seniority list of High Court
Judges or following that for appointment as Chief Judges, of the High Courts,
does not appear to be in accordance with the Constitution. This practice is
contrary to the concept of federalism and also not in accordance with the provisions
of the Constitution.
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Transfer
of High Court Judges:
09: Transfer of High Court Judges could be
resorted to only under certain extraordinary and compelling circumstances; it
cannot be done to in a routine manner, as per the scheme of the Constitution.
Even the conference of “Judges of the Supreme Court and the Chief Justices of
High Courts” had decided, as early as 2002, to discontinue the practice of transfer of judges, and in principle w.r.t. the Chief Judges, to other High
Courts. But still the practice continues. In the Madras High Court, at one
point of time, the first six judges were from other States. Invariably the
first two judges are outsiders, by this process; the ‘local’ judges are brought below the judges from other States, and
the local judges are in minority in the Collegium in many of the High Courts. This
is alsos not in consonance with the federal principles.
Alteration
of Basic Structure of the Constitution:
10: According to Clause 5 of the proposed Article
147-A, the recommendations made by the Commission under Clause 4 shall be
“binding”. It is not made clear on whom
it is “ binding ”. If it is binding on
the Council of Ministers, then the National Judicial Commission would be
getting a status similar to that of the Parliament. If it is binding on the President of India, NJC
would get a status higher than the Council of Ministers of the Union Govt.,
which would be impermissible under the Constitution of India. If it is to be
binding on Chief Justice of India or the Chief Justice of a High Court, then it
may amount to interference with the administration of justice.
11. The ‘constitutional’
power of appointment of a Judge of the Supreme Court or the High Court, is
neither a legislative power nor a “judicial
power”. It is an executive power,
vested in the President. As per Article 74 of the Constitution, the
President, shall exercise the executive power vested in him in accordance with
the aid and advice of the Union Council of Ministers. This position would be
altered. The President would have to exercise
some of the executive powers of the Union, on the advice tendered by an
authority other than the Council of Ministers.
That is, with respect to the appointment of Judges, the President would
be bound to exercise his powers on the advice given by the National Judicial
Commission.
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This also amounts to
alteration of the basic structure of the Constitution. [This argument may equally apply to the ‘system of collegium’, now followed in
view of the judgment of the Supreme Court.]
12. Further, when an advice is given by the
Council of Ministers, the President has the right and power to request the
Council of Ministers to reconsider the advice.
When so requested, the Council of Ministers is bound to reconsider
it. But under the proposed amendment, even
this power to request for reconsideration of advice of the National Judicial
Commission would not be available. This not
only amounts to alteration of the basic structure of the Constitution, but also
goes against the basic concept that President of India, cannot be compelled by
any authority. As per the scheme of the Constitution, the President is not
subordinate to any authority. But the
amendments in the present form compel the President to act according to the
recommendation of NJC.
13. With respect to the proposed amendment to
Article 217, the powers of the Chief Justice of the High Court of a State and
the Governor are taken away. The Chief
Justice loses the power to recommend the names of persons for the appointment
of the Judges of the High Court. Initiation for appointment should emanate only
from the respective High Courts; only the local
judges have the best opportunity to evaluate the merit of such persons, taking
into account the local conditions and their performances. The NJC cannot have
those advantages. The Supreme Court ,
cannot substitute or include any name, even if any of such names is not
acceptable to it. That is because, the
High Courts are autonomous. It
appears that, for the selection of High Court Judges, a “National Judicial Service Commission” headed by a former Chief Justice if India, and a separate “ National Judicial Commission”
for the selection of judges of the Supreme Court , are in the anvil. The
selection process followed by the Service Commissions, as in the case of Indian
Administrative Services, cannot be adopted for the selection of High Court
Judges. This would result in far-reaching
consequences, and the judges of the High Courts would be relegated to that of
District Judges.
14. Under the scheme of the Constitution, the High Court of a State is an integral
part and an instrumentality of that
State. Under the Constitution of India ,
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Part - V - relates to
the Union, which contains provisions relating
to Parliament (including the President) and the Supreme Court. The provisions relating to the High Courts
are included in Part - VI, which relates to “States”. Under this Part, Chapter-II deals with
executive, Chapter-III deals with State Legislature and Chapter-V deals with
the High Court in the State and Chapter VI deals with subordinate courts. Thus, there is a clear demarcation of the
powers and functions between the Union and the States.
15. The proposed amendment, to Article 217,
would make the High Courts as an institution under the control of the National
Judicial Commission which is an organ of the Union to be created by Article
147-A in Part-V of the Constitution.
Therefore, the present position of the High Court, which is a State instrumentality, would become an instrumentality of the Union. This would not only alter the basic structure
of the Constitution of India but also militates against the concept of
federalism.
16. According to Constitution, the High Court
of a State is not subordinate administratively or otherwise to any other
authority in India (except under Article 141, where it is bound by the law laid
down by the Supreme Court). But that
position would be altered and the State Judiciary including the High Court
would be brought under the administrative control of the National Judicial
Commission/Supreme Court.
17. This may also affect, adversely, the
independence of the judiciary as a whole.
Every Judge of the High Court would be under a threat of “disciplinary
proceedings” by the National Judicial Commission. This power of holding enquiry could be used
to the detriment of the independence of judiciary.
Conclusion:
18. Thus, the National Judicial Commission as
proposed by the 98th Amendment of the Constitution and the above
said proposals in the anvil ( as ascertained by the media) would result in
far-reaching consequences, of adversely affecting the independence of judiciary
as a whole and also the principles of Federalism. Fortunately, the Bill was not passed. If, in future, a National Judicial Commission
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is to be constituted,
the above aspects should also be addressed.
Any such institution, if created in future, shall only be subject to the
authority and the control of the Parliament; which means the President of India, and the Union Council of
Ministers. The executive cannot be excluded completely, in the consultative
process for selection of judges of High Courts and the Supreme Court, as that
power of appointment of judges is only an executive function.
Chennai (Justice
Dr. A.K. Rajan)
29.12.2012 Former
Judge of Madras High Court (E- mail: justiceakrajan@yahoo.co.in)
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