Constitutional distortion of Second Judges case needs to be reversed, Parliamentary Committee report

The Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, has presented the Eighty-Seventh Report titled, “Inordinate Delay in Filling up the Vacancies in the Supreme Court and High Courts”..The report was prepared after hearing the views of eminent legal luminaries including Harish Salve, K Parasaran, Dushyant A Dave, Fali S Nariman and Indira Jaising. The Committee also heard the views of Bar Council of India and the Secretary of Department of Justice, Ministry of Law and Justice..Below are excerpts from the Report of the Committee..Consultation v. Concurrence.One of the first discussions in the report is with regard to the word “consultation” used in Article 124. The Committee has placed extensive reliance on the Constituent Assembly Debates for this purpose and concluded that the Assembly was not willing to give the Chief Justice of India “veto power” with regard to appointment of judges to Constitutional courts..“It is ironical that despite the fact that the Constituent Assembly rejected the amendment proposed viz., that the appointment of judge should be made with the concurrence of the Chief Justice of India, and only “consultation” was provided for in the Constitution, the Supreme Court has interpreted the word “consultation” in Article 124 as concurrence and the “Chief Justice of India” as a collegiums comprising the CJI and 4 senior-most judges of Supreme Court for appointment of judges to Supreme Court, and CJI and 2 senior-most judges of Supreme Court for appointment of High Court judges.”.Regarding the Collegium the report says the following:.“It is also observed that plain language of the Article shows that the word “Chief Justice of India” refers to “Chief Justice of India” individually and not as representing collective opinion of Judiciary for the Article empowers the President to consult with such of the Judges of the Supreme Court and the High Courts in the States as he deems necessary for the purpose.”.The report says that the founding fathers of the Constitution were in favour of independent and impartial judiciary, and for this purpose favoured role of multiplicity of Constitutional authorities in the appointment of judges..It blames the judgment in Second judge’s case for upsetting this delicate balance..“The Constituent Assembly deliberately preferred to use to use the word ‘consultation’ in place of the word ‘concurrence’ in Articles 124 and 217 of Constitution for judicial appointment. However, the delicate balance was upset by the Second Judges Case (1993) in which the Supreme Court interpreted the word ‘consultation’ as contained in Articles 124 and 217 as ‘concurrence’.”.Collegium system and Memorandum of Procedure.The Committee has referred to it as “judicial innovation” in its report..“The role of Collegium in judicial appointment is a byproduct of case laws. The judiciary through its power of interpretation under Article 141 expanded the term ‘the Chief Justice of India’ occurring in Articles 124 (2), 217 (1) and 222(1) to mean a Collegium of select Judges which was three in Second Judges Case(1993) and further expanded to five in the Third Judge Cases (1998).”.The Memorandum of Procedure is also described in the report as a “judicial innovation” which was drafted by the Ministry of Law and Justice (Department of Justice) as per the directions given by Supreme Court in the Second and Third Judges cases..Judge-Population ratio.The report has stated the following about the judge to population ratio in the country..“As per the latest data available, judge population ratio of France, USA, Australia, Canada, England and India are 124, 108, 40, 33, 22 and 18 per million, respectively 2 . While the neighbouring country China with highest population in the world, has more than two lakh judges, whereas in India despite being second largest populous country have only 21,320 Judges which is around 10 percent of China.”.Increase retirement age of judges.The Committee has stated that there is no rationale in having different retirement ages for judges of High Courts and Supreme Court. Relying on various reports submitted by Law commission and the Committee itself on previous occasions the report states:.“The Committee in its various Reports viz., Twentieth, Twenty-sixth, Thirty-ninth and Seventy-fifth Reports had supported the argument that if Judges can work upto 65 years of age in the Supreme Court, there is no rationale in the argument that at 62, a High Court Judge is too old to continue to work, but he can be entrusted to carry out the duties of a Supreme Court Judge for three more years. In that backdrop, the Committee had recommended the same while approving for a Constitutional Amendment Bill to raise the retirement age of Judges of High Courts from 62 to 65 to be at par with the retirement age of a Judge of the Supreme Court.”.High Court Collegium v. Supreme Court Collegium.The report then extracts submissions made by the Secretary of Department of Justice during his deposition before the Committee..And this is arguably the most interesting part of the report. As per the Secretary of Department of Justice, one of the major reasons for delay in filling-up of the vacancies is due to the Supreme Court Collegium’s rejection of candidates recommended by the High Court Collegium..“Major reasons for delay in filling-up of the vacancies are due to rejection of candidates recommended by High Court Collegium ranging between 30 to 80 percent by Supreme Court Collegium for various reasons, adverse Intelligence report, creation of 173 additional posts and halting of fresh selection between 13th April to 16th December, 2015 due to National Judicial Appointment Commission case in the Supreme Court.”.Regarding the finalisation of Memorandum of Procedure the Secretary deposed the following:.“The Government forwarded the draft MoP to the Chief Justice of India in March, 2016 and response of CJI were received in May and July, 2016, wherein they have accepted some minor proposals leaving aside major proposals dealing with transparency, accountability and objectivity, etc. (vi) There is a provision for Secretariat to the Collegium in the judgment of the Supreme Court; however, there is a disagreement over the composition, function and duties of the full time Secretariat between the Government and the Judiciary.”.Short tenure for Chief Justice.Another aspect which the Committee has dealt with in its report is regarding fixed tenure for Chief Justice of High Courts and Supreme Court..“…in last twenty years (since 1997), seventeen Chief Justices of Supreme Court have been appointed and out of those only three had tenure of more than two years. Many of them had tenure of even less than one year. One former CJI (Justice S. Rajendra Babu) had tenure of less than a month. Similarly, Chief Justice of High Courts in most cases are appointed for less than two years.”.The Committee has concluded that a short tenure has hampered substantial judicial reforms as it,.“does not provide Chief Justice adequate time to implement any major reform or long-term decisions. Thus with CJI getting frequently changed, no substantial judicial reforms, which may require his long term continuance seem possible.”.Recommendations/ Observations.Based on the above, the Committee has made a slew of recommendations some of which are as follows:.Regarding Article 124 and judicial appointments – Accordingly, the Committee is of the view that judicial appointments are shared responsibility of the Executive and the Judiciary to be exercised jointly with neither organ of the State having a primacy over the other. The Committee, accordingly recommends that the distortion in the original mandate of the Constitution arising from the judgments of the Apex Court in the Second Judges Case and subsequent cases needs to be reversed and the original Constitutional position needs to be respected in letter and spirit for which Government may take appropriate measures..Mechanism for appointment – The Committee recommends that an institutional mechanism should be evolved, so that retirement of a particular Judge and appointment against the resultant vacancy is simultaneously completed. Such a mechanism will be in the interest of the judicial administration and its efficacy. For this to happen the timelines for completion of various stages of appointment process in all Constitutional Courts should not only to be firmly laid in the Memorandum of Procedure but also needs to be scrupulously adhered to by all Constitutional authorities..Definition for “national security” and “larger public interest”– The Committee understands that Government on grounds of ‘national security’ and ‘larger public interests proposes to decline the Supreme Court Collegiums’ recommendations. Moreover, the Committee has learnt that those parameters are proposed as part of the revised MoP. The Committee apprehends that the Government may reject any name duly approved by the Supreme Court Collegium under the veil of those parameters. This would tantamount to giving veto power to the Government, which is not as per mandate of the Constitution. In order to avoid such a situation, the Committee recommends that the terms ‘national security’ and ‘larger public interest’ should, in no ambiguous terms be defined and circumstances/antecedents which fall within their purview listed..Transparency in rejection of candidates – At present, the reasons for rejection of a particular candidate by the Supreme Court Collegium are not disclosed. The Committee feels that in case a candidate’s name is rejected for any reason by the Collegium, the candidate must be informed of the grounds of rejection. The Committee also observes that the Government also rejects the names recommended by the Supreme Court Collegium without furnishing cogent reasons therefor. Such practices are against the principles of natural justice and leads to opaqueness in the appointment process. Therefore, the Committee feels that Glasnost in process of appointment of Judges is the need of hour..Increase retirement age of judges – The Committee, accordingly, recommends increase of retirement age of Supreme Court judge to 67 years and of High Court judge to 65 years..Read the full report below.