Recently,
the statements made by the Law Minister and the Supreme Court regarding the
Collegium System have been in the news. But, this never-ending tussle between
the two independent institutions, i.e., the Government and the Judiciary in
relation to the appointment of the judges, can be dated back in history.
The
history of adverse suppression of Justice HR Khanna by Justice HM Beg at the
cost of standing for equality, justice, and good consciousness and other
similar incidents led to the introduction of the Collegium System,[i]
thereby giving independence in the hands of the Apex Court for decisions
pertaining to the appointment of judges and binding the Government to appoint
the judges recommended by the collegium. But the Government has never been
fully satisfied with the collegium system.
Recently, a private member bill was introduced by Member of Parliament of CPI(M)’s Bikash Ranjan Bhattacharya, Senior Advocate in Rajya Sabha to regulate the appointments of judges to the High Courts and the Supreme Court, i.e., National Judicial Commission Bill, 2022. It is to be noted that this is not the first attempt by the Government to regulate the appointment of judges. Previously, the National Judicial Appointment Commission was introduced via the 99th Constitutional Amendment Act 2014, which was declared unconstitutional by the Apex Court. Hence, it becomes pertinent to elucidate the key takeaways of the newly introduced National Judicial Commission Bill, 2022.
Key
Takeaways from the National Judicial Commission Bill, 2022
The
main purpose of the said bill is threefold, i.e., to regulate the appointment
procedure, transfer, and removal of judges.
Appointment
Procedure
The
bill provides that the Central Government within 30 days from the date of
coming into force of the said act; six months before the occurrence of any
vacancy, thirty days from the date of occurrence of vacancy due to death or
resignation of the judges of High Court and Supreme Court shall reference the
names of the judges to the Commission. The Commission shall mean National
Judicial Commission referred to in article 124A of the Constitution, i.e., the
Chief Justice of India, two senior-most judges of the Supreme Court, Union
Minister of Law and Justice and two eminent persons.[ii]
Concerning the selection of the Chief Justice of
India, the Commission shall recommend the appointment of the senior most
judge of the Supreme Court provided he is considered fit to hold office. The selection of the other judges of the
Supreme Court and High Court shall be based on ability, merit, and any
other criteria of suitability as may be specified by regulation and eligibility
as per Article 124(3)[iii]
and Article 217(2)[iv]
, respectively. On receiving the recommendation, the president shall appoint
the judges. In the case of re-consideration of the appointments, the bill gives
supremacy to the recommendation of the Commission.
Transfer
Procedure
The
bill provides that the transfer of the Chief Justices of the High Court and
other judges of the High Court shall be recommended by the Commission
Judicial
Standards
The
said bill provides for judicial standards that are to be followed by the judges,
which are as followings:
- No
judge must contest an election for any office of a club, society, or other
associations, irrespective of its connection with any court. In other words,
the judge shall not hold any other office.
- No
judge shall have close association and interactions with the members of the bar
who practise in the same courtrooms.
- No
judges shall allow immediate members of the family to appear before him or
decide any matter in which the parties are family members, relatives, or
friends.
- No
judge shall enter into public debates or express his opinion on a matter that
is sub-judice for the court of law.
Establishment
of Complaint Scrutiny Panel
The
bill provides for setting up a complaint scrutiny panel in the Supreme Court
and in every High Court to look into the complaint received against the judges.
The said panel shall consist of Former Chief Justice of the Supreme Court and
two judges of the Supreme nominated by the Commission, and in respect of the
High Court, the panel shall consist of a Former Chief Justice of that High
Court and two Judges of that High Court to be nominated by the Commission in consultation
with the Chief Justice of that High Court. While scrutinising the complaints,
the panel shall have all the powers of the civil court under the Code of Civil
Procedure.
Establishment
of Investigation Committee & Removal of the Judge
The
bill also provides for an investigating committee for the Commission to inquire
regarding the misbehaviour of the judges on the report recommended by the
Complaint Scrutiny Panel.
On
a detailed investigation and inquiry by the investigating committee, if the Commission
is satisfied that the charges of misbehaviour or incapacity of the judge are
true, it shall request the judge to voluntarily resign. And in case it fails to
resign, the Commission shall advise the president to proceed with the removal
of the judge.
The
bill provides for a further motion to be passed in both houses of the
parliament, and if the report of the investigation committee is satisfactory,
the motion is adopted by each House of Parliament in accordance with Article
124(4)[v]
of the Indian Constitution.
Conclusion
After
looking at the brief overview of the said bill, it can be concluded that the
main objective of the said bill is to “lay down judicial standards and provide
for accountability of Judges, and establish a credible and expedient mechanism
for investigating into individual complaints for misbehaviour or incapacity of
a judge of the Supreme Court or a High Court and to regulate the procedure for
such investigation; and for the presentation of an address by Parliament to the
President in relation to proceeding for the removal of a Judge.”
Though the bill has
been introduced in the Rajya Sabha, the said bill was opposed by the Aam Aadmi
Party. According to the author, the reason for such opposition is reasonable.
Article 50 of the Constitution provides for the separation of powers between
the judiciary and executive indirectly, implying that independence for both
limbs of democracy is important. Hence, an independent judiciary without any
interference from politics will ensure the smooth functioning of the justice
delivery system. The judiciary and the Government need to walk on the thin
demarcation of non-interference and independence.
[i]
It is a five-member body consisting of four senior most judges of the Supreme
Court and the Chief Justice of India.
[ii]
These two eminent persons shall be nominated by the committee consisting of the
Prime Minister, the Chief Justice of India and the Leader of Opposition in the
House of the People or where there is no such Leader of Opposition, then, the
Leader of the single largest Opposition Party in the House of the People.
[iii] A person shall not be
qualified for appointment as a Judge of the Supreme Court unless he is a
citizen of India and —
(a)
has been for at least five years a Judge of a High Court or of two or more such
Courts in succession; or
(b)
has been for at least ten years an advocate of a High Court or of two or more
such Courts in succession; or
(c)
is, in the opinion of the President, a distinguished jurist.
[iv] (2) A person shall
not be qualified for appointment as a Judge of a High Court unless he is a
citizen of India and —
(a) has for at least ten years held a judicial
office in the territory of India; or
(b) has for at least
ten years been an advocate of a High Court 3 or of two or more such Courts in
succession;
[v] A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
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Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal.
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Recently, the statements made by the Law Minister and the Supreme Court regarding the Collegium System have been in the news. But, this never-ending tussle between the two independent institutions, i.e., the Government and the Judiciary in relation to the appointment of the judges, can be dated back in history.
The history of adverse suppression of Justice HR Khanna by Justice HM Beg at the cost of standing for equality, justice, and good consciousness and other similar incidents led to the introduction of the Collegium System,[i] thereby giving independence in the hands of the Apex Court for decisions pertaining to the appointment of judges and binding the Government to appoint the judges recommended by the collegium. But the Government has never been fully satisfied with the collegium system.
Recently, a private member bill was introduced by Member of Parliament of CPI(M)’s Bikash Ranjan Bhattacharya, Senior Advocate in Rajya Sabha to regulate the appointments of judges to the High Courts and the Supreme Court, i.e., National Judicial Commission Bill, 2022. It is to be noted that this is not the first attempt by the Government to regulate the appointment of judges. Previously, the National Judicial Appointment Commission was introduced via the 99th Constitutional Amendment Act 2014, which was declared unconstitutional by the Apex Court. Hence, it becomes pertinent to elucidate the key takeaways of the newly introduced National Judicial Commission Bill, 2022.
Key Takeaways from the National Judicial Commission Bill, 2022
The main purpose of the said bill is threefold, i.e., to regulate the appointment procedure, transfer, and removal of judges.
Appointment Procedure
The bill provides that the Central Government within 30 days from the date of coming into force of the said act; six months before the occurrence of any vacancy, thirty days from the date of occurrence of vacancy due to death or resignation of the judges of High Court and Supreme Court shall reference the names of the judges to the Commission. The Commission shall mean National Judicial Commission referred to in article 124A of the Constitution, i.e., the Chief Justice of India, two senior-most judges of the Supreme Court, Union Minister of Law and Justice and two eminent persons.[ii]
Concerning the selection of the Chief Justice of India, the Commission shall recommend the appointment of the senior most judge of the Supreme Court provided he is considered fit to hold office. The selection of the other judges of the Supreme Court and High Court shall be based on ability, merit, and any other criteria of suitability as may be specified by regulation and eligibility as per Article 124(3)[iii] and Article 217(2)[iv] , respectively. On receiving the recommendation, the president shall appoint the judges. In the case of re-consideration of the appointments, the bill gives supremacy to the recommendation of the Commission.
Transfer Procedure
The bill provides that the transfer of the Chief Justices of the High Court and other judges of the High Court shall be recommended by the Commission
Judicial Standards
The said bill provides for judicial standards that are to be followed by the judges, which are as followings:
Establishment of Complaint Scrutiny Panel
The bill provides for setting up a complaint scrutiny panel in the Supreme Court and in every High Court to look into the complaint received against the judges. The said panel shall consist of Former Chief Justice of the Supreme Court and two judges of the Supreme nominated by the Commission, and in respect of the High Court, the panel shall consist of a Former Chief Justice of that High Court and two Judges of that High Court to be nominated by the Commission in consultation with the Chief Justice of that High Court. While scrutinising the complaints, the panel shall have all the powers of the civil court under the Code of Civil Procedure.
Establishment of Investigation Committee & Removal of the Judge
The bill also provides for an investigating committee for the Commission to inquire regarding the misbehaviour of the judges on the report recommended by the Complaint Scrutiny Panel.
On a detailed investigation and inquiry by the investigating committee, if the Commission is satisfied that the charges of misbehaviour or incapacity of the judge are true, it shall request the judge to voluntarily resign. And in case it fails to resign, the Commission shall advise the president to proceed with the removal of the judge.
The bill provides for a further motion to be passed in both houses of the parliament, and if the report of the investigation committee is satisfactory, the motion is adopted by each House of Parliament in accordance with Article 124(4)[v] of the Indian Constitution.
Conclusion
After looking at the brief overview of the said bill, it can be concluded that the main objective of the said bill is to “lay down judicial standards and provide for accountability of Judges, and establish a credible and expedient mechanism for investigating into individual complaints for misbehaviour or incapacity of a judge of the Supreme Court or a High Court and to regulate the procedure for such investigation; and for the presentation of an address by Parliament to the President in relation to proceeding for the removal of a Judge.”
Though the bill has been introduced in the Rajya Sabha, the said bill was opposed by the Aam Aadmi Party. According to the author, the reason for such opposition is reasonable. Article 50 of the Constitution provides for the separation of powers between the judiciary and executive indirectly, implying that independence for both limbs of democracy is important. Hence, an independent judiciary without any interference from politics will ensure the smooth functioning of the justice delivery system. The judiciary and the Government need to walk on the thin demarcation of non-interference and independence.
[i] It is a five-member body consisting of four senior most judges of the Supreme Court and the Chief Justice of India.
[ii] These two eminent persons shall be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of the single largest Opposition Party in the House of the People.
[iii] A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and —
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
[iv] (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and —
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court 3 or of two or more such Courts in succession;
[v] A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
Arshnit Sandhu has completed her LLM in Corporate and Commercial Law from the National University of Study and Research in Law (NUSRL), Ranchi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal.
Readers may submit his/her blog for publication. Click Here to submit your Manuscript.
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National Judicial Commission Bill: Key Takeaways
The statements made by the Law Minister and the Supreme Court regarding the Collegium System have been in the news. But, this never-ending tussle between the two independent institutions, i.e.,. read more…
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