INTRODUCTION
Supreme Court Judges Appointment cases are also known as “Three Judges Cases”. Following are the cases :
1) S.P Gupta vs Union of India, AIR 1982 SC 149
2) S.C. Advocate on Record Association vs Union of India, (1993) 4 SCC 441
3) Re Presidential Reference, AIR 1999 SC 1
These cases are based on Article 124 of the Indian Constitution, which states “Appointment of Judges”.
HISTORY
Till 1993, the practice was to appoint the senior-most Judge of the Supreme Court as the Chief Justice of India. This practice had virtually been transformed into a convention and followed by the Executive without any exception.
In, 1956, the Law Commission headed by the then-Attorney General M.C.Setalvad had criticized this practice and recommended that in appointing the Chief Justice of India the experience of a person as a Judge, his administrative competence, and merit should be judged and seniority should not only be the main consideration.
According, to the resolution, the Government’s action was a blatant and outrageous attempt and undermining the independence and impartiality of the judicially and lowering the prestige and dignity of the Supreme Court[1].
JUDGMENT HIGHLIGHTS
- Judge’s Transfer Case: S.P.Gupta v. Union of India[2]
This case is popularly known as “Judge’s Transfer Case”, in this SC unanimously agreed with the meaning of the term ‘consultation’ as explained by the majority in Sankalchand Sheth’s case.
Here, SC held that the word “consultation” did not mean concurrence & the Executive was not bound by the advice given by the judges.SC had suggested for establishment of a Judicial Commission for recommending the of the Judges of the Supreme Court & High Court.[3]
- Judges Transfer Case II: S.C. Advocates on Record Association v. Union Of India[4]
9 judge bench of SC by 7: 2 majority overruled the earlier judgment in the Judges Transfer Case I and it held that in the matter of appointment of judges of Supreme Court and High Courts the Chief Justice of India should have primacy.
Even the majority held that the initiation of the proposal for appointment in case of the SC must be by the Chief Justice Of India and in the case of High Court by Chief justice of High Court.[5]
- Appointment and Transfer of Judges Case III: Re Presidential Reference[6]
The Court held that the appointment of the Judges of higher Courts can be challenged only on the ground that the consultation power has not been in conformity with the guidelines laid down in the 1993 judgment and as per the opinion given in 1999 decision i.e. without consultation four senior-most Judges of the Apex Court. The decision of the SC has struck a golden rule. It had made the construction process more democratic and transparent.[7]
This case is not a judgment but the opinion delivered by SC responding to a question of law regarding the collegium system.
CONCLUSION
These Three Judges Cases are the landmark cases that redefined the manner of appointment of judges, judicial independence, and separation of power between the three branches of government.
There is no mention of the collegium either in the original Constitution of India or in successive amendments. Although the creation of the collegium system was viewed as controversial by legal scholars and jurists outside India, the Parliament and the executive, both have done little to replace it. The Third Judges Case of 1998 is not a case but an opinion delivered by the Supreme Court of India responding to a question of law regarding the collegium system, raised by then President of India K. R. Narayanan, in July 1998 under his constitutional powers.[8]
Further, in January 2013, the court dismissed as without locus standi, public interest litigation filed by NGO Suraz India Trust that sought to challenge the collegium system of appointment. In July 2013, Chief Justice of India P. Sathasivam spoke against any attempts to change the collegium system.[10] On 5 September 2013, the Rajya Sabha passed The Constitution (120th Amendment) Bill, 2013, which amends articles 124(2) and 217(1) of the Constitution of India, 1950 and establishes the National Judicial Appointments Commission, on whose recommendation the President would appoint judges to the higher judiciary. The amendment was struck down by the Supreme Court for being unconstitutional on 16 October 2015. The constitutional bench of Justices J. S. Khehar, Madan Lokur, Kurian Joseph, and Adarsh Kumar Goel had declared the 99th Amendment and NJAC Act unconstitutional while Justice Chelameswar upheld it.[9]
The Lok Sabha on 13 August 2014 and the Rajya Sabha on 14 August 2014 passed the National Judicial Appointments Commission (NJAC) Bill, 2014 to scrap the collegium system of appointment of Judges. The President of India has given his assent to the National Judicial Appointments Commission Bill, 2014 on 31 December 2014, after which the bill has been renamed as the National Judicial Appointments Commission Act, 2014.
99th Amendment and NJAC Act both were quashed by Supreme Court by a majority opinion of 4:1, on 16 October 2015, Supreme Court struck down the Constitutional Amendment and the NJAC Act restoring the two-decade-old collegium system of judges appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where Parliament is not empowered to change the basic structure. However, the Supreme Court also acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/ improved by the Judiciary.[11]
[1] Reference book, Constitutional law of India, by Dr. J.N. Pandey, Edition 2014
[2]AIR 1982 SC 149
[3] Reference book, Constitution of
India, by Dr. J.N. Pandey, Edition 2014
[4] (1993) 4 SCC 441
[5] Reference book, Constitution of
India, by Dr. J.N. Pandey, Edition 2014
[6] AIR 1999 SC 1
[7] Reference book, Constitutional
law of India, by Dr. J.N. Pandey, Edition 2014
About the Author: This Case Brief is prepared by Ms. Sonakshi Verma, law graduate from Babu Banarasi Das University and is an Intern at MyLawman. She can be reached at sonakshiverma0403@gmail.com
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