Supreme Court: India
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2014: Panel to pick judges
Jan 01 2015
The Supreme Court collegium system of appointing judges to the apex court and high courts got a burial with President Pranab Mukherjee giving his assent to the Judicial Appointments Commission Bill .
The bill has already been ratified by at least 17 states and many more are in the process of doing so, said a senior law ministry official. It is mandatory for a constitutional amendment bill after it is passed by both Houses of Parliament to be ratified by at least half of the states. This brings to an end a system which the apex court had put in place through a judgment in 1993 to do away with the earlier practice of the government appointing judges.
The process of replacing the collegium with a panel was initiated during the first NDA government through a bill in 2003 but it was never taken up by Parliament. After Modi took over, Ravi Shankar Prasad, law minister in the first NDA government, initiated the NJAC bill and pursued political parties to evolve a consensus. The government will shortly notify the new Constitutional amendment replacing the SC collegium with the National Judicial Appointments Commission (NJAC). After the notification, the process of setting up of the NJAC will begin as provided under an enabling legislation which has been passed by Parliament along with the Constitution amendment bill.
The enabling NJAC bill provides for a six-member commission headed by the chief justice of India and comprising two senior SC judges as its members besides two eminent persons and the law minister. The two eminent persons in the commission will be appointed by a panel comprising the CJI, the Prime Minister and the leader of the largest opposition party in Lok Sabha. The NJAC also has provision for a veto where it provides that no name opposed by two or more of the six-member body can go through. The two eminent persons will have a tenure of three years and one of them would be from one of the following categories: scheduled castes, scheduled tribes, women or the minority community .
After the NJAC is set up, a name recommended for appointment as judge to the SC or high courts can be returned by the President for reconsideration. Though an initial recommendation to the President for appointment can be made by a 5-1 majority , this would not suffice to re-recommend the same name.
If a name is returned for reconsideration, the committee can reiterate the name only if there is unanimity among the members after reconsideration.
Appointment of judges: superior courts
Whatever the process, men of character must pick judges
LEGALLY SPEAKING –
The Times of India Jul 29 2014
Till 1993, judges were appointed to the Supreme Court and high courts by the President, read the Union government, after consulting the Chief Justice of India. The CJI seldom disagreed with the executive.
Two significant judgments dramatically altered the process. In 1993, a nine-judge bench in Supreme Court Advocates on Record Association case took away the executive’s primacy in appointment of judges and gave it to the CJI. In 1998, another nine-judge bench answered a presidential reference by laying down an elaborate procedure – the CJI-headed collegium system – to select and recommend to the government persons to be appointed as judges of the SC and HCs.
The executive was given the option of returning a name for the collegium’s reconsideration. If the name was re-sent, the executive was bound to appoint him. For the last 16 years, this judge-appoint-judge system has been in operation. Markandey Katju has experience of both the systems. He was appointed a judge of Allahabad High Court by the executive in 1991. But his later appointments -chief justice of Madras HC and transfer to Delhi HC and later as judge of SC in April 2006 – happened under the collegium system.
He often gave vent to his intolerance towards corruption. In March 2007, while sitting with Justice S B Sinha, he had said, “Everyone wants to loot this country. The only deterrent is to hang a few corrupt persons from the lamp post.
The law does not permit us to do it, but otherwise we would prefer to hang the corrupt.” Katju, who would have preferred instant Taliban style justice in the absence of limitations of law, strangely remained tight lipped for nearly a decade on a ‘corrupt judge’ continuing in Madras HC. His revelations have stirred a fresh debate on what would be the ideal process for appointment of judges to the SC and HCs? Both systems had their share of questionable products.
Two famous judges – Y V Chandrachud and P N Bhagwati – were appointed by the executive. They capitulated to political pressure much more gravely than Justice R C Lahoti, who was taken in by the then wily law minister H R Bhardwaj in 2005 and granted extension of service to a ‘corrupt judge” despite the collegium unanimously deciding not to continue with his services.
On April 28, 1976, a five-judge bench pronounced judgment in the ADM Jabalpur case and buried all fundamental rights, including the most fundamental among fundamental rights – the right to life – under political pressure of the Indira Gandhi regime which wielded draconian powers during Emergency. How on earth could a country survive without its citizens having the right to life? But the famous four – then CJI A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati – capitulated. They gave primacy to selfpreservation over preservation of citizens’ life.
Under tremendous political pressure and threat, Justice H R Khanna held his head high to record a dissent note saying right to life could never be suspended. He stood tall among the five, and is still standing tall in court number two of the Supreme Court. Khanna too was a product of the same system which had appointed the other four. Khanna valued life. The rewards of capitulation went to Justice Beg, who was appointed CJI by the Indira regime. If the government thought of humiliating Khanna by superseding him, it failed. He tendered his resignation. Khanna showed that a man’s character shines brightest in times of pressure and adversity.
The SC realized this six years later and spoke out in S P Gupta case [1982 (2) SCR 365].
“Judges should be stern stuff and tough fire, unbending before power, economic or political and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you’,” it had said. Immortal words penned more than three decades ago, but seldom practiced.
Whatever process a political system devises for appointment of judges, it would lose its efficacy if it is manned by people who do not put country over self and place integrity above politics and posts.
As president of the Constituent Assembly, Rajendra Prasad, who went on to become the first President, had warned of this while moving for adoption of the Constitution in 1949.
He had said, “Whatever the Constitution may or may not provide, the welfare of the country will depend upon the men who administer it. If the people who are elected are capable and men of character and integrity, they will be able to make the best even of a defective Constitution. “If they are lacking in these, the Constitution cannot help the country, After all, a Constitution, like a machine, is a lifeless thing. It acquires life because of the men who control and operate it. And India needs today nothing more than a set of honest men who will have the interest of the country before them.”
Calcutta HC on contempt: SC
The Times of India, Sep 18, 2011
The Jalpaiguri district court was shut for a month by people demanding a Calcutta high court circuit bench there and the high court convicted 18 people, including the DGP of the West Bengal police, editor of a local daily, an ex-MP, an MLA and the district magistrate, for contempt. When they appealed against their conviction and six-month jail term, the tables were turned in the Supreme Court, which not only quashed the contempt proceedings but also faulted the high court for not taking timely action during the agitation to help keep the district court open.
The protesting public started the agitation on December 15, 2006 outside the main gate of the district court and requested the judicial officers not to go to court. It continued for a month till January 15, 2007. Abench of Justices P Sathasivam and B S Chauhan said the agitation was peaceful and the judicial officers were not forcibly prevented from attending the court. However, it reiterated that “the administration of justice should never be stalled at the instance of anyone including the members of the bar even for any cause.” The SC found that there was no request from the district judge or from the registrar general of the HC for removal of the rostrum put up in front of the gate and clearing of the protesters. It disagreed with the HC’s view that the DGP disobeyed the Chief Justice’s order for restoration of the district court’s functioning.
Late night hearings and judgements
The Times of India, Jul 31 2015
SC has answered two more midnight knocks
Mumbai serial bomb blasts convict Yakub Memon was not the first one to knock at the Supreme Court's door past midnight. What made Yakub's petition unprecedented was the one-and-a-half hour long postmidnight hearing that lasted till the crack of dawn. Earlier, the hearings after court hours were mainly held at the residence of the senior judge presiding over the bench.
On April 8, 2013, lawyers of condemned prisoner at Jabalpur Central Jail, Maganlal Barela, who was to be hanged at dawn on April 9 for killing his children, successfully moved the SC close to midnight. Barela averted the gallows, after all preparations were made to hang him, after rejection of his mercy petition by the President. The fax from the SC con veying the stay on Barela's hanging reached jail authorities just five hours before the scheduled hanging.
Similarly , Nithari rape-murder convict Surinder Koli was scheduled to hang on September 9, 2014. At the intervening night of September 8-9, his lawyers, led by Indira Jaising, woke up justices H L Dattu and A R Dave and placed before them Koli's petition seeking re-hearing of his review petition. A three-judge bench later stayed the execution and ordered open court hearing.
Landmark shifts of stance
Case studies: Supreme Court’s landmark shifts
The apex court is rightly hailed for its stellar role. But little has been written about its dramatic shifts on a range of key issues. TOI brings you the untold story
Manoj Mitta
Raising a toast for the establishment of the Supreme Court as India turned into a Republic, C K Daphtary, who went on to become the first solicitor general, said in January 1950, “A republic without a pub is a relic!”
Jokes apart, no appraisal of the 60 years of the Indian Republic can ignore the stellar role played by the Supreme Court in maintaining the constitutional scheme of checks and balances. Equally, no appraisal of the Supreme Court can be complete without delving into the vagaries of its rulings, for better or for worse — especially because the shifts in its position have not always been for reasons beyond its control.
This somewhat awkward aspect has however received little attention, perhaps because of the reverence reserved for the higher judiciary. Here is an attempt to focus exclusively on the judicial shifts made by the Supreme Court through the 60 years of its existence on a range of key issues.
Somersault on due process
The first major constitutional issue decided by the Supreme Court came out of the preventive detention of communist leader A K Gopalan, in whose honour the headquarters of CPM is named. The issue was whether somebody’s detention could be justified merely on the ground that it had been carried out “according to the procedure established by law,” as stipulated in Article 21 of the Constitution. Or, would that procedure be valid only if it complied with principles of natural justice such as giving a hearing to the affected person?
In the A K Gopalan case of 1950, the Supreme Court, taking a narrow view of Article 21, refused to consider if the procedure established by law suffered from any deficiencies. Fortunately, three decades later, it took a 180 degree turn on this issue in the Maneka Gandhi case of 1978. The provocation was the arbitrary law that had allowed the Janata Party government to take away Maneka’s passport without any remedy. Importing the American concept of due process, the Supreme Court ruled that the procedure established by law for depriving somebody of their life or personal liberty had to be “just, fair and reasonable”.
Reduction of Parliament’s power to amend the Constitution
Validity of the very first constitutional amendment was challenged mainly because it had inserted the Ninth Schedule to insulate agrarian laws from being tested in courts. The issue facing the Supreme Court was to determine the extent to which Parliament could go while exercising its amending power under Article 368. This is how SC shifted its position more than once on this crucial issue.
First, in the Shankari Prasad case of 1951, it ruled that since no limits had been spelt out in Article 368, the power to amend the Constitution included abridgement of even fundamental rights.
Next, in the Golaknath case of 1967, it betrayed second thoughts on trusting Parliament with such unfettered discretion under Article 368. Since Article 13 stipulated that every law enacted by Parliament had to comply with fundamental rights, the Supreme Court read that limitation into constitutional amendments as well.
Finally, in the Kesavananda Bharati case of 1973, the SC held that the condition prescribed by Article 13 of complying with fundamental rights applied only to ordinary laws, not constitutional amendments. Taking the middle path, it said the only limitation on Article 368 was that a constitutional amendment could not alter the “basic structure” of the Constitution (such as the sovereignty of the country or its secular character).
Enlarging the scope of judicial review
For decades, the most abused provision of the Constitution was the sweeping power conferred on the President — in other words, the Central government — to dismiss a duly elected state government. The validity of actions taken under Article 356 of the Constitution went before the Supreme Court for the first time in 1977 when the then newly elected Janata Party government at the Centre had dismissedCongress governments in states for no reason other than the fact that it wanted to hold early elections.
But the Supreme Court, in what is known as the State of Rajasthan case of 1977, declined to intervene, ostensibly to avoid entering the political thicket. The President’s satisfaction that the state concerned could not be carried on in accordance with the provisions of the Constitution was, it said, not subject to judicial review. The apex court however reversed its stand in the S R Bommai case of 1994, where it held that a proclamation under Article 356 could be struck down if it was “found to be mala fide or based on wholly irrelevant or extraneous grounds”. Subjecting the President’s satisfaction to judicial review, the Bommai verdict clarified that the power conferred by Article 356 was a conditional one, not absolute.
Changing conception of compensation
Many a legal battle has been fought on the vexed issue of compensation payable to affected parties when a property has been acquired by the government. The question of interpreting the compensation promised by the Constitution arose for the first time in the Bela Banerjee case of 1954 involving a West Bengal law which sought to pay off the owners on the basis of the market value of their land on some distant date in the past. Rejecting the socialistic arguments of the state, SC laid down that the compensation should be “a just equivalent of what the owner has been deprived of”.
In a bid to get over the effect of the Bela Banerjee case, the Nehru government amended the Constitution stipulating that no law dealing with the manner in which compensation was to be given “shall be called in question in any court on the ground that the compensation by that law is not adequate”. This in turn triggered a chain of a vacillating judgments and another constitutional amendment on the compensation issue. It culminated in the shift from the categorical “just equivalent” in the Bela Banerjee case to a limp admission in the Kesavandanda Bharati case of 1973 that the amount need not be equivalent, so long as it was “not illusory”.
Diversity on quotas
Caste-based reservations in jobs and educational institutions are another contentious issue on which the Supreme Court has had to change its position in keeping with the times. Its initial response was completely adverse. In the Champakam Dorairajan case of 1951, the Supreme Court slammed caste-based reservations as a violation of the Constitutional prohibition of discrimination. It was however forced to take a more accommodative view of social justice once the Nehru government responded with the first constitutional amendment stipulating that the general prohibition of discrimination could not prevent the state from making any special provision for the advancement of SCs, STs and OBCs.
Having reconciled to the imperative of quota, the Supreme Court, in the M R Balaji case of 1963, imposed a cap of 50% on the extent of reservations for all the categories taken together, in a bid to ensure that the exception did not exceed the general rule of non-discrimination. Following the Mandal controversy, the Supreme Court, in the Indra Sawhney case of 1993, upheld the introduction of quota for OBCs in Central government jobs subject to the exclusion of the “creamy layer” (candidates whose parents are relatively wealthy or better educated).
Seasonal change on economic policy
True to its reputation of giving precedence to individual liberty over socialistic schemes, the Supreme Court, in the Bank Nationalization case of 1970, displayed no inhibition in probing the allegations that the Indira Gandhi’s government’s economic policy was discriminatory and deficient on compensation. As a corollary, it even struck down the nationalisation law.
But post-liberalisation, the SC, in the Balco case of 2001, upheld the Vajpayee government’s disinvestment policy by adopting the principle that “in the case of a policy decision on economic matters, the courts should be very circumspect in conducting any inquiry and must be most reluctant to impugn the judgment of the experts.”
Turning consultation into concurrence
This shift has earned the Supreme Court the opprobrium of turning the judiciary into a “self-perpetuating oligarchy”. For, all that the Constitution has prescribed in the appointment of judges to the Supreme Court is that the Chief Justice of India “shall always be consulted”.
Considering political fallout
When Supreme Court considered the political fallout of its verdict
Dhananjay Mahapatra The Times of India Jan 07 2015
The political fallout of a judicial decision has seldom bothered the judiciary, but it appears that in 2012 the Supreme Court delayed the judgment on the CBI's probe into disproportionate assets cases against the Samajwadi Party chief and his sons to await completion of assembly elections.
On March 1, 2007, just before the assembly elections, an SC bench headed by Justice A R Lakshmanan had ordered the CBI to probe into alleged disproportionate assets of Mulayam Singh Yadav and his sons on a PIL filed by Vishwanath Chatur-vedi. Justice Lakshmanan retired on March 21, 2007 and was immediately appointed as chair man of the Law Commission.
Yadavs filed petitions seeking review of the March 1, 2007 judgment questioning the jurisdiction of the SC to order CBI probe without the consent of the state government on a politically motivated petition.The review petitions were heard by a bench of Justices Altamas Kabir and H L Dattu, which reserved its judgment on February 17, 2011.
Internal communication between Justice Kabir and Justice Dattu, accessed by TOI, shows, among other things, the ground for delay in pronouncing the judgment was the possible political fal lout of its decision in this case.
In June 2012, Justice Kabir wrote to Justice Dattu: “I deliberately waited till after the UP elections to pronounce the judgment so that the level playing field was not disturbed.“ The UP Assembly elections were held between February 8, 2012 and March 3, 2012. SP swept the polls and Akhilesh Yadav became the chief minister.
Just days before the verdict on December 13, 2012, Justice Kabir sent the draft judgment to Justice Dattu for his approval. In the note attached to the draft judgment, Justice Kabir had referred to the CBI's flip-flops in the case and said, “This dual stand in the submissions of the highest investigating agency cannot be appreciated by this court.“
Justice Dattu agreed with Justice Kabir, who had by then become the Chief Justice of India, that the CBI stand had been confusing.However, he clarified that “while making submissions (on behalf of the CBI) it has been highlighted that substantial prima-facie elements are there to conduct an investigation“.
He also felt that there was no substantial evidence against Dimple Yadav and no further investigation needed to be carried out against her.But Justice Dattu was firm against quashing the entire proceedings regarding disproportionate assets. Justice Dattu wrote back: “As discussed with you, quashing of the entire proceedings regarding disproportionate assets, which is evident on the face of records, will not only be doing injustice but also create a political turbulence. We are directing only CBI probeinvestigation and not holding them guilty . If nothing is found, they are acquitted. But in fitness of things a thorough investigation is needed.“
The judgment on the review petitions was pronounced on December 13, 2012. The court held that the CBI probe into alleged disproportionate assets of Mulayam, Akhilesh, and Prateek Yadav as ordered by the SC on March 1, 2007 was justified.
