The threat to the independence of judiciary is linked with the two way of appointment of judges- one who are appointed for a temporary period i.e. Minimum of 2 years known as the additional judges or the ones who are appointed for a permanent period ie.uptill the retirement of those judges at the age of 62 years, and these appointments were done by the president. After the case of SP.Gupta it was recommended that the judges must be appointed by the Chief Justice of India, but here many said that the appointment through Chief Justice Of India will lead to ruling of the political parties as making a mark upon the appointments.
But all this was challenge in the nine- judge bench of Supreme Court of India in Advocates o Record vs. Union of India here they said no the political influence wont affect the appointment and so the one recommended by the Chief Justice of India shall be taken as final decision. But this could happen that the appointment of temporary or additional judges shall become a Supreme Court monopoly. But this concept when with a little change in the year 1998 that the appointment of judges through Chief Justice of India shall be done or checked by the device of Presidential reference.
Bt the S.P. Gupta’s case lead to the decision that the temporary judges will not be able to enjoy powers as that of permanent ones, and their conduct shall become subjective to the scrutiny by the Chief Justice Of High Court, the Governor, the Chief Justice of India and the President.
There was also a controversy going on that the test of constitutional validity of the 99th amendment was in question which introduced the NJAC replacing the Collegiums system. Also recommendations taken up by the Chief Justice is said to be a constitutional convention. As stated in the text of article 124 (2) that every judge of the supreme court shall be appointed by the President, 124(6) every person appointed to be a judge of the supreme court shall before he enters upon his office, make and subscribe before the president or any person appointed by him. And so then it was said that the convention is related to the concurrence of Chief Justice only.
The convention stated most importantly 3 things-
- Firstly- that the text of the constitution never stated that the judiciary was primary importance when one talks about the appointment of judges. As stated in the case of Mahesh Chandra Gupta vs. Union of India , which stated that the appointment of judges is a executive function of the President.
- Secondly- as the constitutional conventions are unwritten in Indian law as in the English law there is no express provision mentioned to judge its code of conduct.
- Thirdly- as in the Second judges’ case the convention was said to be unconventional as it was held binding as the nature of a convention is not that of a binding nature. So then it was said it is reasonable to assume that the concerned judge would ordinarily abide by the advice of the Chief Justice of India.
The crux of the debate after the Second Judges case before the court held that the convention in the matter of appointment of judges is the only way to maintain the independence of judiciary, and held 99th amendment void for violating the basic structure.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION AND COLLEGIUM SYSTEM
The National Judicial Appointments commission (NJAC) is a constitutional body proposed to supplant the present Collegiums arrangement of naming judges. What’s more, then again The Collegiums framework is one where the Chief Justice Of India and a gathering of four senior most judges of the preeminent court prescribe arrangements and exchanges of judges. This framework was developed through Supreme Court judgments in the Three Judges Cases in October 28, 1998.
The Supreme Court in order to get a more transparent view and to improve the collegiums system of appointment of judges in the higher judiciary to make it accountable by asking the centre to finalize a memorandum of procedure in consultation with the chief justice of India. The main aspects to be death with were eligibility criteria of judges, transparency in appointment process, setting up of secretariat for management of selection process, mechanism to deal with complaints against those who are being considered for appointment and to look into miscellaneous issues.
It was likewise thought at a meeting gathered by the law service with top law specialists, previous judges and the Law Commission executive. The Bill accommodates a period bound test against judges confronting assertions of inappropriate behavior and defilement.
The legislature has put off re-presentation of Judicial Standards and Accountability Bill, which was intended to manage grievances against judges, till the warning of the National Judicial Appointments Commission (NJAC). The two bills were a piece of an exhaustive legal changes plan of the NDA government to manage judges’ arrangement and how judges perform furthermore to speed up agreement of equity. The Accountability charge proposes to set up a five-part oversight board of trustees that would manage all grievances against judges and a test group that would research charges against a judge. Prior, every single discussion was sent to the Chief Justice of India.
The Supreme Court rejected the National Judicial Appointments Commission (NJAC) act and the 99th Constitutional Amendment which sought to give politicians and civil society a final say in the appointment of judges to the highest courts. The perception by the Constitution Bench of the Supreme Court, which is without further listening to the request testing the National Judicial Appointments Commission Act and the Constitution Amendment Act, that the collegiums framework was great however its usage was awful is the subject of much hypothesis in government circles. There is fear that the court might even strike down the two institutions on the ground that legal supremacy in the arrangement of judges has been done away with.
On the other hand, from a closer perusing of the judgment in the Supreme Court Advocates on Record Association versus Union of India no doubt it may not be simple for the Constitution Bench to strike down these two laws on the ground that they demolish legal autonomy and therefore disregard the basic structure of the Constitution.
There is fear that the court might even strike down the two institutions on the ground that legal supremacy in the arrangement of judges has been done away with. But, the new judicial amendment act is clearly a better option than the collegiums framework and, truth be told, brings the consultative procedure up in the determination of judges to a practically philosophical level.
Facts of SP.Gupta vs. Union of India, AIR 1982 SC 149
- There were number of petitions filed which involved an important question of law regarding appointment of judges and the Independence of Judiciary.
- The challenged the validity of Central Government orders on appointments and transfer of judges.
- The petitions included the facts that corresponded between the Law Minister, the Chief justice of Delhi high court and Chief justice of India.
- The disclosure of those petitions was restricted and was said that the president cannot inquire about it stating them as the unpublished official records.
- There was a claim by the government regarding the disclosure of such documents.
The exchange of the Chief Justice of Patna High Court to the Madras High Court, the non-expansion of the term of a judge of the Delhi High Court, and a round of the Union Law Minister to all States. The legitimacy of the exchange, the non-expansion and the roundabout were altogether tested in court. The threat to Independence of Judiciary was marked.
Six noteworthy issues were tended to by the Supreme Court, including whether correspondence traded between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India on the arrangement and exchange of judges was shielded from exposure under the law.
JUDGEMENT:
The First Judges case, here the court gave the literal meaning of the word “consultation” which is stated in Article 124 and 217 of Constitution of India. court said that the opinion matters as that of the Chief Justice of India but the final decision in the matter of appointment of judges is with the central executive.
One can say that the appointments may have an impact as that of by the politicians that might hamper the Independence of Judiciary. Amendment made to this led to the making of primacy of the executive in appointment of judges. Wider approach has been made to Articles 124 and 217 in regards to the famous case of Advocates-on-record association vs. Union of India.
The Second judges case gave the opinion about the purpose that vest in Articles 124(2) and 217 (1) in which the appointment of judge of a Supreme court is said to be initiated by the Chief Justice of India.
The Third Judges case that was the nine judges bench elaborated and clarified the Second judges case and held that the Chief justice shall pronounce its opinion or shall e taken into consideration in regards to consultation with the collegiums, recommendations made in writing by the collegiums. But the collegiums system was faced criticism.
The case of S.P Gupta laid down that the 2 year appointment of judges can be made only when there is a temporary increase I the work and not for the purpose of permanent post sanction. The court said -an additional judge concerned will not be able to deal with matters as independently as a permanent judge can because the conduct of an additional judge would become the subject of scrutiny by the Chief Justice of high court, the Governor, the Chief Justice of India and the President in connection with his reappointment after two-years.
The Court concluded that no privilege could be claimed in respect of documents which constituted material for forming opinions in the matter of appointment and transfer of judges. Therefore, the correspondence was not protected from disclosure under the law. The right to know is fundamental in a democratic society; the right to know is part of the right to freedom of speech and expression in Article 19 of the Constitution . The correspondence in the present case was found not to be protected. It dealt with appointment and transfer of judges, a matter of great public interest, and its disclosure would not have been detrimental to public interest.
RESEARCH ANALYSIS:
SP GUPTA IN RELATION TO NJAC
The case involves the problem of constitutional interpretation and the judicial response upon it. And so for keeping the independence of judiciary in mind it was said to keep the judges some far away from the state in whose High court they work upon. It is the famous Judges Transfer case which dealt with appointment of additional judges of the High Courts.
There was writ petition (D.O.No 66/10/81-Jus Ministry of Law, Justice and Company Affairs, India New Delhi-110 001.) filed by Iqbal Chagla and others in the High Court of Bombay which involved the certain controversial issues between different parties and to which it’s constitutional validity was most crucial thing to be reproduced. For the same the appointment of Additional judges as Permanent judges in any other High court their consent and choice must be given certain importance, the person who referred those judges their consent to place them in different High courts plays an important role as well they said. But merely taking their consent upon the transfer does not imply towards a commitment by the government.
When one looks deep into the history of the famous case S.P.Gupta and others vs. Union of India , Since there was a circular letter sent by Law Minister to each High court’s chief justice in the interest of independence of judiciary but it was not withdrawn by the Law Minister through a writ petition in the High court of Bombay challenging its constitutional validity. The writ petition which was filed on 20th April, 1981 but after filling it the petitioners applied for a single judge sitting in the course of an interim relief by the High court of Bombay, but the interim relief restricted implementation of circular letter and acting in the manner consent given which arises from the circular letter.
Meanwhile, on 8th May, 1981 SLP was filed regarding the hearing before the single bench was filed. Further by the virtue of Article 139A of the Constitution it was directed that the first writ petitions be withdrawn by the Bombay High court as it already mentioned about the written briefs and affidavits to be placed by the judges and so the writ finally approached to the hearing of seven judges bench constituted by the Chief Justice of India.
There was second writ petition filed in the respect of the present matter by V.M. Tarkunde in the High Court of Delhi, challenging the circular letter issued by the Law Minister in relation to the appointment of additional judges of the High courts. In the present case the President has relied upon the advice of the Chief Justice of the Delhi High court that is not extending the term of additional judge Mr. S.N.Kumar of the Delhi High court. By the virtue of Article 224 of Constitution of India and in relation to the independence of judiciary, the writ (mandamus) petition was demanded to state the circular letter as unconstitutional and void. The petitioners questioned the validity and claimed to fill up the vacancies by the appointment of permanent judges. After the filing of the application it was further requested by the court to dispose an interim relief thereupon but it was said that relief upon oral applications laid upon on behalf of the petitioner on the ground that reply to the circular letter not sent indicated the preference so demanded. In accordance to this the application was communicated in regards to the continuation of the additional judges. There was a decline in accordance to the interim relief to be given, so based on Article 224 and 217 of Constitution of India the appointment of additional judge was a liability upon the matter. The writ petition was further placed for hearing before the bench of seven judges.
The third writ petition filed by J.L.Kalra and others in the High Court of Delhi granting the correct assessment as of the number of permanent and additional judges required in Delhi High Court, furthermore the other issues involved were something similar to the ones mentioned in the above two writs and so was heard by the seven judges bench along with those writ petitions.
The fourth writ petition was filed by S.P.Gupta in the High Court of Allahabad. The reliefs claimed were again regarding appointment of additional judges they requested to make Mr. Justice A.N.Verma and Mr. Justice N.N.Mittal to be made permanent judges for which warrants were issued to them also stating to state the circular letter as void. This writ petition was also heard along with the others in the seven judges bench.
Since four of the writ petitions was regarding the same issue there were additional judges appointed and the same was considered as one set of writs involved to be dealt with.
The fifth writ petition which was filed by Miss Lily Thomas challenged the transfer of Mr. Justice M.M. Ismail, Chief Justice of Madras High court as Chief Justice of Kerala High court. As in the case of Supreme Court Advocates-on-record vs. Union of India the nine judges bench had an opinion that no appointment of a judge of high court can be made unless it is in conformity with the opinion of Chief Justice of India.The order was stated inconsonance with Article 222(1) of Constitution of India which states transfer of judges from one high court to another after consultation of it with Chief Justice of India and order issued by the president, stating that the transfer shall take place only after the consent of said judge is obtained. As the writ was filed under their purview of Article 32 of Constitution of India it become of great importance and came before the bench saying maintainable on the ground that if rejected here it will be held maintainable under Article 226 of Constitution of India as it raised important question of law as stated in the case of L.Chandra Kumar vs Union of India judicial review being the basic feature of the constitution. The scope of 226 was further defined by the case of T.C.Basappa vs. Nagappa where the Supreme court held that 226 is covered in the style of words which confers power to the high court to give remedy to injustice wherever found. Also when the question arises as to the Locus Standi of a person it is said that a person whose constitutional or legal right is infringed can apply for a relief under 226, also in S.P.Gupta vs. Union of India it was held that the member of the public having sufficient interest can approach the court for enforcing constitutional and legal rights upon him.
The sixth writ petition was filed by A. Rajappa in the High court of Madras under Article 226 of Constitution of India challenging order of transfer of judges said in the fifth writ petition placed. The transfer thereof was stated unconstitutional and void on the ground that the transfer took effect without prior consultation with governors of the state and they said that the issues were substantially related to the fifth petition which was by that time laid pending in the court, and also as stated under Article 217(1) of Constitution of India no application in the case of transfer of judges or Chief Justice of High court shall take place without the warrant in the hands of president and so this petition was also referred to the bench of seven judges along with the fifth writ petition.
The seventh writ petition which was filed by P. Subramanian in the High Court of Madras under Article 226 of Constitution of India. The statements raised here was same as in the sixth writ petition and so this petition does not need any separate jurisdiction i.e. it will be same as the one in sixth petition.
The eighth writ petition was filed by D.N.Pandey and Thakur Ramapati Sinha in the High court of Patna under Article 226 of Constitution of India. They challenged the validity of the orders of transferring of judges. Here also the prayers made are same as the on mentioned in the fifth, sixth, seventh writ petitions therefore the jurisdiction point of view remains the same except the fact that these writ petitions were placed under Article124A of Constitution of India and the order transferring him as Chief Justice of the Madras High Court was passed by the President by way of punishment and it was based on irrelevant and insufficient grounds and was not in public interest and in any case, it was not preceded by full and effective consultation with the Chief Justice of India.
Similarly as the first four petitions were said to be in one single group here also, the last four writ petitions will be taken into one single group and shall be said as the second group of writ petitions.
The court finally widened the scope of Chief Justice of India in accordance to its consultation and held that the consultation is to be adopted by CJI under Articles 217(1) and 222(1). After the evolution of the 99th amendment the judges of the high courts were said to be appointed by the President through a warrant in his hand, but now since the constitution’s 99th amendment has been declared unconstitutional and the position it stood prior to this amendment stands revived i.e. now the judge of high court shall be appointed by the President in consultation with the Chief Justice of India and Governor of the state concerned. Finally, in All India Judges’ Association vs. Union of India the three judge bench announced the extended retirement age of the judges, benefits and eligibility criteria for qualifications in judicial posts.
LACUNA AND LEGISLATION
The Constitution of India plays an important role in drafting the transfer policies of the judges, moreover it defines the laws made by the statute which needs to be executive in accordance with one of the Basic Feature of Indian Constitution that is Independence of Judiciary.
In the case of S.P .Gupta the laws made applicable on were Article 32 and 226 on the basis of what the 8 writs were filed for ascertaining the maintainability of the said writs in the court. The case involves the impact of the most important article related to the matter which is Article 222 which states Transfer of a Judge from one High Court to another and its first clause it states that- The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
Secondly one of the most important laws mentioned under this case is Article 217 which talk about the appointment of judges Appointment and conditions of the office of a Judge of a High Court. In its first clause it states- Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years.
The next most important article which is used in the context of this case is about Article 224 which tells about Appointment of additional and acting Judges it talks about the temporariness that an additional judge holds upon the matters and what a permanent judge holds, it further states the areas where the President plays an important role.
This is case is related to many cases in the history such as the famous Supreme Courts Advocates-on-records case in relation to the supremacy or rather the importance the Chief Justice has when it comes to the consultation or recommendation given by him in appointment of judges.
Secondly the famous case of L. Chandra Kumar is also linked in this case which says that the independence of judiciary and the power of Judicial review must vest with the hands of Judges keeping them away from the place where the high court in which they work is situated so that no political and external aspect binds the executive power of the law makers.
When we talk about the validity of the traditional Collegiums system it was as when the Chief Justice of India ad four senior most judges of Supreme court recommended appointments or transfers of the judges. But when the case of S.P. Gupta evolved it said though recommendation can be made by the Chief Justice of India but transfers can be sustained for the cogent reasons.
Further it was stated that it gave the judiciary a executive view point, however the collegiums principle was upheld and sought to be annulled by the NJAC Act and the 99th amendment in case of appointment of judges. Even after withstanding the validity of the collegiums system the executive power remains for the appointment of judges marking the judicial independence.
Conclusion
Through the span of the three cases, the court developed the rule of legal freedom to imply that no other branch of the state – including the governing body and the official – would have any say in the arrangement of judges. The court then made the collegiums framework, which has been being used since the judgment in the Second Judges Case was issued in 1993.
There is no say of the collegium either in the first Constitution of India or in progressive revisions. Despite the fact that the production of the collegium framework was seen as disputable by lawful researchers and law specialists outside India her nationals, and outstandingly, Parliament and the official, have done little to supplant it. The Third Judges Case of 1998 is not a case but rather a sentiment conveyed by the Supreme Court of India reacting to an issue of law with respect to the collegium framework.
The higher executive power in the hands of judiciary is important to regulate upon the Judicial review on each cases that threatens the basic structure of the constitution and support and promotion of the Independence of Judiciary by proper fair appointments of judges whether additional judges or permanent judges.
The NJAC Act supports Article 124 and 217 to get a more clear view upon the appointment of judges for the higher judiciary. The consultation with the Chief justice plays an important role and shall never be struck down in order to maintain the independence of judiciary. The passing of NJAC bill introduced the power of parliament to make laws in future to regulate the procedure of appointment of judges. The amendments made under Articles 124 A, B and C makes the NJAC amendment valid.