Deccan Chronicle

Advocates see no merit in judges appointments panel

Deccan Chronicle| j. stalin

Published on: November 18, 2013 | Updated on: Invalid date

Judges appointment panel may destroy the independence of judiciary, fears advocates.

Chennai: Advocates are up in arms against the National Judicial Appointments Commission (NJAC) bill, which aims to replace the existing collegium system of appointing members of the higher judiciary. Most of them have already sent their representations opposing the bill and would most likely attend the meeting convened by the parliamentary standing committee (PSC) of personnel, public grievances, law and justice, set up to hear the public grievances in respect of the bill, on November 20 at New Delhi.
They say that the proposed 120th Constitution amendment bill, 2013, and the Judicial Appointments Commission Bill, 2013, are comparable to a "tsunami". These bills, if passed, will engulf and destroy the judiciary and its independence. A non-independent judiciary with biased and partisan judges will result in the eventual destruction of the Constitution, denial of fundamental rights and overthrowing of democracy.
The Bar Council of India, which is the statutory body to regulate the legal profession and education, and representative of 17 lakh lawyers practising in India, has demanded that the Union ministry withdraw the bill immediately.
The NJAC bill proposes the formation of a commission comprising the Chief Justice of India (CJI), two senior judges of the Supreme Court, Union law minister and two eminent persons to be nominated by the collegium consisting of the Prime Minister, the CJI and the leader of opposition. The proposed bill will look into appointment of judges, their transfer and cases of misconduct, if any, against them.
In their representation, BCI chairman Manan Kumar Mishra and co-chairman S. Prabakaran said, "The proposed Bill is highly draconian. The creation of NJAC is interference with the independence of the judiciary. It is an attempt to change the basic structure of the Constitution. It is trying to usurp the powers and keep it with the executive domain. The existing collegium system is functioning well for the last 20 years. Instead of constituting NJAC, two advisory committees could be formed at the high court and Supreme Court level to aid and advise the existing collegium."
R.C. Paul Kanagaraj, president of the Madras high court advocates association, says, "Of course, we are not completely happy with the existing collegium system, which lacks transparency. But, at the same time, replacing it with NJAC will pave the way for politicians to have a say in the appointment of judges, which we cannot accept. We cannot allow either politician or executive to have control over the judiciary. Hence, we have formed a 14-member committee headed by senior advocate P.R. Mani, to prepare a report in consultation with the members of the bar and finalise it. I will place the final report on the bill before the parliamentary standing committee on November 20 in Delhi."
Madras bar association president R. Muthukumaraswamy said, "The proposed bill is like a surgery, through Article 368, by an expert surgeon, to amputate the head of the judiciary from the Constitution and leave it the general ward of parliamentary power under Article 107 for cosmetic facial. We say such an exercise will be fatal to the judiciary."
To expect an independent judiciary, when the power of appointment of judges vests with the executive, is illogical. The Central and state governments were parties before the courts in a large number of cases where the judiciary was the mediator. So, the framers of the Constitution could not have left the final authority to appoint judges of the Supreme Court and high courts in the hands of the executive, said S. Prabakaran, president of TN advocates association.
NEXT: Advisory committees suggested as solution
Advisory committees suggested as solution
Chennai: Demanding the immediate withdrawal of the National Judicial Appointments Commission bill, the Bar Council of India (BCI), a statutory body to regulate the legal profession and education in the country, suggests formation of two advisory committees to strengthen the existing collegium system, paving the way for transparency in the selection and appointment of judges to high courts and Supreme Court.
BCI chairman Manan Mishra and co-chairman S. Prabakaran say the collegiums should be equipped with two advisory committees: the central advisory committee (CAC) and state advisory committee (SAC), which would make the collegiums more transparent and fruitful.
The CAC may consist of the Prime Minister or his nominee or the Union law minister, the leader of opposition in either House of Parliament or his/her nominee, the attorney general or solicitor general of India, a representative of BCI (it may nominate any jurist or senior advocate of the country to represent it) and a representative of Supreme Court bar association.
This committee may be formed by the Supreme Court itself to aid and advise the Supreme Court collegium in the appointment of judges to the Supreme Court. The collegium should sit with the CAC, whenever any vacancy arises, the candidates should be thoroughly discussed, objections should be invited and then the collegium should make the final recommendation to the President of India. In case a name was rejected by the collegium, it should assign reasons and nothing should be kept secret, they added.
Similarly, for the purpose of appointment of judges of the high courts, in order to aid and advise the collegiums of the high courts, there should be SAC at the state-level consisting of the chief minister or his/her nominee or law minister of the state, the leader of the opposition in the state Assembly or his/her nominee, the advocate general of the state, one representative of the state bar council and one representative of the high court bar association of the state.
The CAC may also recommend the names of deserving candidates practising in the Supreme Court for appointment as high court judges, Manan Mishra and Prabakaran said.
NEXT: Judges selection process as per present system
 Judges selection process as per present system
ChennaiAs per the present system, the collegiums for appointment of judges selects and recommends the names for appointment of judges. The collegium for appointment of judges to the high court and Supreme Court consists of judges of the respective courts.
Three senior most judges, including the chief justice of every high court, form the collegium of the respective high court which will select persons for appointment to the post of judges.
In the high court, by convention, one-third of the vacancies are filled up by selecting subordinate judges and the remaining two-third are filled by selecting advocates who have a minimum of 10 years practice.As far as subordinate court judges are concerned, though merit is the criteria, normally seniority is given priority.
After preparing the list of names of persons to be appointed as judges, the collegium of the high court sends it to the governor for his recommendation. The list will also be sent to state and Central governments for comments.
Thereafter, the collegium of the SC, comprising the Chief Justice of India and two senior most judges, decide on the suitability of the candidates. While deciding this, they will take into consideration the Intelligence Bureau clearance, state and Central governments’ comments and comments from the judges who come from the high court.
Then, the collegium of the SC recommends the names to the PM through the law ministry. After the PM’s scrutiny, it goes to the President, who clears the names. Once, the names are cleared, it goes to the justice ministry for the purpose of preparing the warrant. Thereafter, the warrant is sent to the President, who signs it. Then the judge will be sworn in.
In the case of the SC, its collegium, consisting of five senior judges, including the CJI, recommends the names of judges to the President of India.
NEXT: Dissenting note of Madras bar association against NJAC bill
Dissenting note of Madras bar association against NJAC bill 
Chennai: The 150-year-old Madras bar association (MBA) has expressed its unequivocal dissent against the proposed 120th Constitution amendment bill and Judicial Appointments Commission Bill, 2013, which are likely to be introduced during the winter session of Parliament.
After going through the proposed Judicial Appointments Commission Bill, the MBA held discussions and sent a detailed report to the parliamentary standing committee pointing out the defects of the bill and their suggestions to cure it.
MBA president R. Muthukumaraswamy, in a representation, pointed out several objectionable portions in the bill, which include presence of Union law minister in the commission and calling for names for appointment as judges of high courts from Central and state governments.
He said the following provisions in the JAC bill were unacceptable:
The inclusion of the law minister of India, a political personality functioning under political and coalition compulsions, whose actions frequently come under judicial scrutiny before high courts and the Supreme Court.
The provision to include two ‘eminent persons’ in JAC without specifying the minimum qualification/guideline.
The designation of secretary to Government of India (justice) as the convenor of JAC and to authorise him to call for meeting and names for appointment, etc.
Provision to call for names for appointment as judges of high court from Central and state governments.
Demanding the removal of the Union law minister from JAC, he said the law minister was a political personality subject to constant public criticism in respect of onerous duties, which were frequently challenged in a high court and Supreme Court.
 He need not even be a degree holder, leave alone hold a law degree. He need not even be a member of either House of Parliament for a period of six months from the date of his appointment. He may himself and his actions, have suffered or may suffer adversely in present or in future judicial scrutiny from time to time. 
Therefore, it is inadvisable to place him in JAC along with the CJI and senior most judges of the apex court on a most important exercise of selecting judges.
On such exercise, they have to meet constantly in the Supreme Court in close quarters. Such a situation will not only be embarrassing but also undermine the independence of the Supreme Court.
Such frequent interactions between them will erode the confidence of the people besides giving room for undesirable acquisition against both with respective judicial decisions of the apex court in sensitive cases.
Referring to the provision to call for names for appointment as judges from the Central and state governments, he said the Central and state governments are under the control of one or more political parties. Hence, the name suggested by such government shall be of persons invariably with political party bias/orientation. 
Such persons will not be desirable to an independent judiciary. Hence, the words Central and state governments should be deleted and the chief justice of the high court shall alone recommend names after consulting with 10 senior most judges of the court.
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