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Appointmen

t Of Judges
The
Judicial
Scenario in
INDIA
ITEMS TO BE DISCUSSED

Appointment Procedure
3 Judges Case Laws
Issues due to Collegium System
National Judicial Appointments
Commission
Reformation of Collegium and MOP
Comments and Opinions
JUDICIAL STRUCTURE
Separation of Powers Under Constitution of INDIA

Legislativ Executive Judiciary


e Supreme
Parliament At Central At State Court
Level Level Chief
President Governor
Justice of
Rajya Sabha Council of
Vice- India judges
Other
Ministers
President of Supreme
Council of Court
Lok Sabha Judges of
Ministers At Local
High Court
Attorney Level
The
Judges of
General Bureaucrats Lower Court
Civil
Structure of Indian Judiciary

Apex Level State


Level
Supreme High
Court
Highest Court of the land Courts
24 High Courts in
state & UTs
Inaugural Sitting on 26th
Bound by the
Jan, 1950
judgements of SC
Comprises CJI & 30 other (Art. 141) of High Cou
judges Jurisdiction
Jurisdiction of the Supreme
Original
Court Original (Art. 131 and Art. 32)

Appellate (Art. Appellate


132)
Advisory (Art. 143)
Special Leave Petition (Art.
APPOINTMENT OF JUDGES

Constitutional Provision relating to


Supreme Court:
Article 124(1)of Constitution of India says that, there
shall be a Supreme Court of India consisting of a Chief
Justice of India
Article 131 Subject to the provisions of this Constitution,
the Supreme Court shall, to the exclusion of any other
court, have original jurisdiction in any dispute.
Article 132(1) An appeal shall lie to the Supreme Court
from any judgment, decree or final order of a High Court
in the territory of India
Constitutional Provision relating to High Court:

1. Article 217(1) of the Constitution say that:


The Chief Justice and Judges of the High Courts
are to be appointed by the President.
The Judges of the Jammu & Kashmir High
Court are to be appointed by the President
under section 95 of the Constitution of J & K.
Appointments to the High Court should be
made on a time bound schedule so that the
appointments are made well in advance
preferably a month before the occurrence of
the anticipated vacancy.
Constitutional Provision relating to
District Court:
Article 233 of the Constitution says that
Appointments of district judges in any State
shall be made by the Governor of the State in
consultation with the High Court exercising
jurisdiction in relation to such State.
A person not already in the service of the Union
or of the State shall only be eligible to be
appointed a district judge if he has been for not
less than seven years an advocate or a pleader
and is recommended by the High Court for
appointment.
A district judge or Additional judge may be
removed from his office by the state
Government in consultation with the High court
Process for appointment of
High court judges
When a permanent vacancy is expected to arise in any year in the
office of a Judge, the Chief Justice will as early as possible but at
least 6 months before the date of occurrence of the vacancy,
communicate to the Chief Minister of the State his views as to the
persons to be selected for appointment.

Before forwarding his recommendation, the Chief Justice must


consult two of his senior most colleagues on the Bench regarding
the suitability of the names proposed. All consultation must be in
writing and these opinions must be sent to the Chief Minister
along with the recommendations.

The Chief Justice while sending his recommendation for appointing


an additional Judge as a permanent Judge, must along with his
recommendation furnish statistics of month wise disposal of cases
and judgments rendered by the Judge concerned as well as the
number of cases reported in the Law Journal duly certified by him.
The proposal for appointment of a Judge of a High Court
shall be initiated by the Chief Justice of the High
Court. However, if the Chief Minister desires to
recommend the name of any person he should forward
the same to the Chief Justice for his consideration.
The Chief Justice of India would, in consultation with the
two senior most Judges of the Supreme Court, form his
opinion in regard to a person to be recommended for
appointment to the High Court.
The Chief Justice of India and the collegium of two
Judges of the Supreme Court would take into account
the views of the Chief Justice of the High Court and of
those Judges of the High Court who have been
consulted by the Chief Justice as well as views of those
Judges in the Supreme Court who are conversant with
the affairs of that High Court.
After their consultations, the Chief Justice of India will in course
of 4 weeks send his recommendation to the Union Minister of
Law, Justice and Company Affairs.

The Union Minister of Law, Justice and Company Affairs would


then put up as early as possible, preferably, within 3 weeks, the
recommendation or the Chief Justice of India to the Prime
Minister who will advise the President in the matter of
appointment.

As soon as the appointment is approved by the President, the


Secretary to the Government of India in the Department of
Justice will inform the Chief Justice of the High Court.

As soon as the warrant of appointment is signed by the


President, the Secretary to the Government of India in the
Department of Justice will inform the Chief Justice and a copy of
such communication will be sent to the Chief Minister. He will
also announce the appointment and issue necessary notification
in the Gazette of India.
Appointment of district judges- Article 233

Appointments of district judges in any State


shall be made by the Governor of the State in
consultation with the High Court exercising
jurisdiction in relation to such State.
A person not already in the service of the Union or
of the State shall only be eligible to be appointed
a district judge if he has been for not less than
seven years an advocate or a pleader and is
recommended by the High Court for appointment.
A district judge or Additional judge may be
removed from his office by the state Government
in consultation with the High court.
Process for appointment of
district judges
The judges of subordinate courts are appointed
by the Governor in consultation with the chief
justice of the High Court of the concerned State.
A minimum of seven years of practise as a lawyer
at bar is a necessary qualification for direct entry
level to become a District Judge upon a written
examination and oral interview by a committee of
High court judges, the appointment of district
judges is notified by the state Government. This is
referred to as direct recruitment.
District judges are also appointed by way of
elevation of judges from courts subordinate to
district courts provided they fulfill the minimum
years of service.
Collegium System for
appointment and transfer Judges
As per the Constitution, as held by the court in
the Three Judges' Cases - (1982, 1993, 1998), a
judge is appointed to the Supreme Court by
the President of India on the recommendation
of thecollegium.
What is collegium - a closed group of the
Chief Justice of India, the four most senior judges
of the court and the senior-most judge hailing
from the high court of a prospective appointee.
This has resulted in a Memorandum of Procedure
being followed, for the appointments.
CASE LAWS
First judge Case
S.P. Gupta v. Union of India
Chief Justice of High Court
superintendence under the control of
supervision of Chief Justice of India
Primacy
Primacy not found in Constitution of
India
Power tilted in favour of Executives
Second judge Case

Supreme Court Advocates on


record Association v. Union of
India 1993
Independence of Judiciary

Primacy of the Opinion of the Chief Justice of


India
Over-ruled the decision in S.P. Gupta Case

Protecting the integrity and guarding the


independence of the Judiciary
Consultation with other two senior most
judges of the Supreme Court
Constitutional functionaries must act
collectively
Appointment of Chief Justice of India by
seniority only
No judge appointed by Union Government
without consulting Chief Justice of India
Third judge Case

S.P. BHARUCHA "In re Special Reference 1 of 1998"

Union of India filed case in a view that the


decision came in Second Judges case is overruled
Reiterate the decision
Sole individual opinion does not constitute
consultation
Chief Justice of India must make recommendation
to appoint/transfer judges in consultation with
four senior most judges
Views should be conveyed to the Government of
India
National Judicial Appointments
Commission (NJAC) Act, 2014

The NJAC Act and the 99th Constitutional


Amendment Act came into force on 13th
April, 2015 to replace the Collegium System
followed for appointment of Judges of
Supreme Court (SC) and High Courts (HC).
The NJAC Act provides for the procedure to
be followed by NJAC for recommending
persons for appointment and transfer of
Chief Justice of India and other Judges of SC
and Chief Justice and other Judges of HC.
PROBLEMS

IN JUDICIARY SYSTEM IN COLLEGIUM


SYSTEM
Pendency of Cases.
Independence.
Corruption. Integrity.
Lack of Transparency. Nepotism.
Accused under Trail. Favoritism
PROBLEMS IN COLLEGIUM
SYSTEM
The basic purpose is to introduced the collegium system is to govern
independence and separation of judiciary from executive can be
maintained. But now it seems as it is appointment for the judges.

Justices J. Chelameswar and Kurian Joseph, in their opinions, pointed


out that the collegium system lacks transparency, accountability and
objectivity.

in May 2013, the judges of the Punjab and Haryana High Court
protested the elevation of nine advocates as judges of the high
court.They alleged that the independence and integrity of the
judiciary has been put at stake by the Collegium while giving
recommendations because the decisions of the Collegium seem to
have been based on considerations other than merit and integrity of
the candidate.
Contd
These judges further wrote that it has now become a matter
of practice and convenience to recommend advocates who
are the sons, daughters, relatives and juniors of former
judges and Chief Justices. Nepotism and favouritism is writ
large.

The implications of such degradation are that the judges are


selected on criteria such as caste, religion, office affiliations,
political considerations and even personal interests
andquid pro quo.

The result of this is the poor quality of judges and


judgements. It resulted indelay in the judgement delivery,
lack of clarity and clear reasoning in judgements, lack of
knowledge of even basic principles of law and lack of ability
and willingness to learn, ghost writing of judgements.
PROBLEMS IN JUDICAIRY
SYSTEM
A) Pendency of Cases
)One of the primary issues with the Indian judicial system is the
pendency of cases. If the vacancies are filled, pendency would go
down and make the justice delivery system efficient. According to a
report of 2015, there were close to 600 vacancies for the post of
judges in the 24 High Courts of the country. The pending number of
cases in the Supreme Court has amounted to around 61,847 out of
which 11,405 matters which are not listed in Honable Supreme
Court as per December 2016 Supreme court Site.

)Cases Pending around 25-30 millions in various courts in India.

)By the most conservative estimates, the Scheme for National Court
Management Systems (NCMS) formulated in 2012 by the Supreme
Court predicts that the number of cases in Indian courts will increase
to 15 crores by 2040, requiring the creation of 75,000 courts.
Contd
Budget Allocation for the judiciary is around 0.2% of the
GDP.

Ratio of 10-11 Judges per million , rather it should be


around 50-55 Judges, While Australia has 58 per million,
Canada has 75 per million, USA has 130 per million and
UK has 100 per million.

In the case of White Industries v. Republic of India , An ICC


Tribunal found that the Indian Supreme Courts inability to
hear an Australian investors appeal for over 5 years
amounted to a breach of Indias obligation to provide
investors with effective means to enforce their rights
under the India Australia Bilateral Investment Treaty. India
was asked to pay a hefty sum of AUS$4.85 million to White
Industries.
Contd

B) Corruption

In 2011, Soumitra Sen, a former judge at theCalcutta High


Courtbecame the first judge in the India to be impeached by
theRajya Sabhaalleged for misappropriation of funds.

There has not been established any system of accountability. In


the case of judicial processes, even the media is unable to give
a proper and clear picture of the corruption scenario. The media
seems to be more focused on exposing corruption in other
fields, especially the executive. A minister taking a bribe or
distributing money during elections may become a headline,
but a courtroom clerk taking a bribe and altering the date of
the trial remains unnoticed.
Contd

C)Lack of Transparency

There has not been established any system of


accountability. In the case of judicial processes, even the
media is unable to give a proper and clear picture of the
corruption scenario. The media seems to be more focused
on exposing corruption in other fields, especially the
executive. A minister taking a bribe or distributing money
during elections may become a headline, but a courtroom
clerk taking a bribe and altering the date of the trial
remains unnoticed.

According to the SC, the bar council was invited to amend


the NJAC saying that the committee must comprise of the
Chief Justice of India and four senior judges of the supreme
court.
Contd

D) Accused under Trail

Another drawback that arises from the above-stated drawbacks is the


under trials of the accused. Precisely, for those who have committed
a crime, it is OK, but is it fair for an innocent to spend more time in jail
just for waiting for his trial? The Indian jails are full of people under
trials; they are confined to the jails till their case comes to a definite
conclusion. Mostly, they end up spending more time in the jail than
the actual term that might have had been awarded to them had the
case been decided on a time and, assuming it was decided against
them. Moreover, all the expenses, pain and agony that are used by
them to defend themselves in courts are worse than serving the
actual sentence. Under trials are not guilty till convicted. On the other
hand, the rich and powerful people can bring the police to their sides,
and the police can harass or silence inconvenienced and poor
persons, during the long or deals in the courts.
Constitution (Ninety-ninth
Amendment) Act, 2014
Amend Article 124(2) of the Constitution to
provide constitutional status.
Article 124A provides for composition of NJAC
consist of :-
i. Chief Justice of India (Chairperson)
ii. Two senior most SC judges
iii. The Union Minister of Law and Justice
iv. Two eminent persons (nominated by a
committee consisting of CJI, PM and Leader
of opposition in the Lok Sabha) the eminent
person is nominated for period of 3 years
and not eligible for re-nomination.
Article 124B define the functions of NJAC :-
i. Recommend the person for the appointment of CJI,
Judges of SC, Chief Justice and other Judges of HC,
ii. Transfer of Chief Justice and other Judges of HC,
iii. Ensuring recommended persons are of ability and
integrity
)Article 124C enables parliament to make laws to
regulate the procedure, functioning and manner of
selection of persons for appointment.
)The members of NJAC have veto power in selection
of other judges of SC and HC.
)The NJAC shall not recommend a person for
appointment if any two of its members do not agree
to such recommendation.
Challenges to the
Constitutionality of NJAC
The validity of the Constitutional Amendment act
and the NJAC Act were challenged by certain
lawyers, lawyer associations and groups before
the SC through Petitions due to which the NJAC
hadnt taken up its mandate.
On October 16, 2015 the five-member
constitutional bench of SC headed by the Justice
J.S. Khehar with 4:1 majority has declared the
NJAC Act and the Constitution (Ninety-ninth
Amendment) Act are unconstitutional and void
and Collegium System has declared to be
operative.
Reasons for Opposing NJAC Act,
2014
Non-Independence of Judiciary.

Violation of basic structure of the


Constitution.
Breach of principle of separation of powers.

Not guaranteeing primacy to the judiciary in


appointment of judges.
Introduction of MOP
Court proposed NJAC Act, 2014 by
way of 99th Constitutional
Amendment Act, 2014
Judiciary opposed the formation of Committee and NJAC
Act, 2014.

To remove the conflicts among Government and Judiciary,


a mid way was found out and that is reformation of
Collegium System.
The government agreed on the reformation of Collegium
and accordingly SC requested the Government to draft
Memorandum of Procedure for appointment of Judges.

This lead to formation of document in form of


Memorandum of Procedure.
MOP and Reformation of Collegium
Memorandum of Reformation Of
Procedure: Collegium:
It is a document of For re-formation of
procedure in which Collegium, Special bench
judiciary invites the requested to consider
suggestions* from the following points specifically:
Government of India
regarding appointment 1. Eligibility Criteria
and transfer of judges 2. Measures of
Transparency
Suggestion can be in form 3. Secreteriat or
of order or changes in Commission
existing provision 4. Complaint Mechanism
MOP has been placed many times
before the Parliament but each time
changes were sought to be made in it
Stand off on MOP
Points to be kept in mind before appointing
Judges
Seniority & Merits

Write their Reasons Down

Having a committee to vet


candidates
Suggestions What has not been
accepted by accepted?
Government:
A. Lifting of proposed Power to reject any
cap on the number candidate as referred
of jurists and lawyers by Collegium for being
propose to be appointed as Judge will
appointed as judges still be lying in hands of
B. Considering Government
Seniority as main
condition RECENT
DEVELOPEMENTS
Areas requiring Ways to improve the
immediate Action: working of current
Collegium System:
a. Disclosure of relationship
a. Vacancies in SC and HC
between appointing and
b. Persons of doubtful retired Judge
integrity has to be b. Minimum eligibility
weeded out Criteria
c. Infrastructure of Courts is c. Uniform Retirement Age
required to be improved for Judges of SC and HC
Conclusion

Constitutional Provisions and Procedure for


appointment of judges
Actual practices followed for appointment-
Collegium System
Issues arising with the System
Introduction of NJAC Act, 2014
Oppositions for it, Reformation of Collegium
by following MOP
Current Scenario
THANK YOU
QUESTION & ANSWERS