DC debate: Will bill replacing collegium system ensure fair judge appointments?

Justice K. Ramaswamy vs Sitaram Yechury

Justice K. Ramaswamy: Bill provisions will empower executive

Since the law laid down by the Supreme Court is the law of the land, the Collegium system evolved by the Supreme Court had its run uninterrupted.

The National Judicial Appointment Commission Bill, passed by Parliament, replaces the Collegium system put in place by the Supreme Court by interpreting the Constitution (Interpolation). Article 124 of the Constitution of India envisages appointment of judges to the Supreme Court of India, and   High Court judges are appointed under Article 217 of the Constitution by the President. The Chief Justice of Supreme Court recommends the names of the judges. This system of appointment of judges had been in operation without any interruption.

In  a case in 1976, popularly known as first judge’s case, the Supreme Court interpreted that while the Supreme Court recommends the names for appointment as judges, the government also recommends the names to the President. In 1972, a Bench of seven judges of the Supreme Court, popularly known as second judge’s case, interpreted Article 124 saying that the President is required to send the state government’s recommendations to the Supreme Court for consideration. In neither of these cases, we find find any provision of constituting a Collegium. What Article 124 and article 127 envisage is that the Chief Justice of India, in consultation with senior judges, if he deems fit, recommends names for appointment.  

Since the law laid down by the Supreme Court is the law of the land, the Collegium system evolved by the Supreme Court had its run uninterrupted.
The Collegium system evolved by the Supreme Court had not, in fact, considered the inclusive social demography to recommend the names of the judges. Hence, I would extend my support to the three bills passed by Parliament, particularly giving Constitutional sanctity to such bodies by operation of Article of 124 (A). I suppose there will be provision in the Bills , which will give power to the executive to make rules.

As regards the qualification for appointment of judges of Supreme Court and High court,  the constitution itself prescribes the qualification for eligibility.
Unlike earlier, in the new rules, I hope, SCs, STs, BCs and women will not be eliminated from the list.

Sitaram Yechury - In present form, SC will strike down Bill

Independence of the judiciary, in which the CPM believes, means  institutional independence of the judiciary, rather than that of every individual judge.

The decision of the BJP-led NDA government to constitute National Judicial Commission would not survive judicial scrutiny. There is every possibility of it being struck  down by the Supreme Court as ultravires of the Constitution. As per the Constitution, Parliament does not have the right to enact a Bill for the creation of a Judicial Commission for appointments without amending the Constitution. Since the beginning, the CPM has been advocating for a larger ambit of a General Judicial Commission, which will take into account not only appointments but also the issue of acts of omission and commission etc., and various allegations that may come up. The CPM has been demanding a transparent, effective and independent judiciary for the country.

As a principle, our party is not against the Bill, but the procedure which was adopted in passing the Bill, will create a situation, where this proposal for creation of a Judicial Appointments Commission will become ultravires of the Indian Constitution. Our right to bring about a Bill to enact such a provision comes only after the Constitution Amendment Bill becomes effective. The amendment becomes effective after both the Houses pass, when, at least, one half of the state Assemblies approve and it is returned.

Only then the Constitution stands amended. Only then we have the right to pass or consider and adopt the Bill. On the above ground alone, the apex court is likely to strike down the Bill. During discussion in Rajya Sabha, eminent jurist K. Parasaran also expressed the same view that if the Constitution (Amendment) Bill alone is taken into consideration, there can be no objection. But, they cannot consider passing the Bill at this stage, because Article 368 of the Constitution contemplates two types of amendment to the Constitution.

Mr Parasaran also cautioned the House that “we should not fall into the trap of the Supreme Court taking it down as unconstitutional.” Independence of the judiciary, in which the CPM believes, means  institutional independence of the judiciary, rather than that of every individual judge. Making the Bill in a hurry will not serve the sole purpose of the Bill.