|Equivalent Citation||(2015) AIR 2015 SC 5457|
|Court||Supreme Court of India|
|Bench||Justice Jagdish Singh Khehar, Justice Chelameswar, Justice Madan B. Lokur, Justice Kurian Joseph, Justice Adarsh Kumar Goel|
|Petitioner||Supreme Court Advocates on Record Association|
|Respondent||Union of India|
|Act Referred||Constitution of India|
Supreme Court is the guardian of the constitution which preserves the fundamental rights and the basic structure of the constitution. The appointment, transfer, and removal of judges is one such area where the court has developed the procedures through its judgments. Supreme Court has played an active role in safeguarding the basic structure of the constitution as explained in the landmark judgement of Kesavananda Bharati v. State of Kerala.[i] Supreme Court Advocate on Record Association v. Union of India was one of the landmark cases which upheld the separation of powers and independence of the judiciary that forms the basic structure of the Constitution.
The Appointment of Judges of the Supreme Court and the High Court and the transfer of judges from one High Court to another had to be made in accordance with Articles 124, 217, and 222 of the Constitution of India. Prior to the National Judicial Appointments Commission Act, the appointment of judges was made by the President in consultation with the Chief Justice and other judges. Similarly, the transfers were made by the President in consultation with the Chief Justice. Appointment based on seniority was an unsaid norm. Justice A.N Ray was appointed as the Chief Justice of India already when there were three senior most judges. After this incident there was a series of cases that analysed the constitutional provisions of appointment, transfer of judges. In S.P. Gupta Vs. Union of India[ii], it was held by the Apex Court that the opinion of the Chief Justice does not have primacy, and the Union Government is not bound to act in accordance with the opinion of the constitutional functionaries as the Executive is accountable and the Judiciary has no accountability.
However, the First Judges Case was overruled by the Second Judges Case[iii], by a nine-judge bench whereby it was held that in the event of disagreement in the process of consultation, the viewpoint of the judiciary was primal and the executive could appoint judges only if that was in conformity with the opinion of the Chief Justice. The Collegium system, now about 21 years old, was not only recognized in the Second Judges Case but also in the Third Judges Case[iv] . Thus the Collegium system of appointment had become the law of the land and has been followed ever since. The Collegium system was sought to be done away right from 1990 onwards with the 67th Constitutional Amendment Bill. Thereafter it was followed by three 5 more attempts. Thereafter discussions took place and several recommendations were made by various committees emphasizing the need for changing the collegium system. Finally on 31st December 2014 the National Judicial Appointments Commission Act and the 121st constitutional Amendment Bill received the presidential assent.
The constitution Act 2014 amended Articles 124(2),127, and 128. The legislature inserted Article 124A, 124B,124C. Article 124(2) every judge of the Supreme Court shall be appointed by the president by warrant with a seal on the recommendation of the National Judicial Appointment Commission referred to in Article 124A. After the amendment, no consultation is required by the president with the Judges of the Supreme Court and the High court. The 99th amendment replaced the collegium system with the National Judicial Appointment Commission for the appointment of judges.
The issues before the court were
1) Whether the Constitution (Ninety-ninth Amendment) Act, 2014 was constitutionally valid?
2) Whether the National Judicial Appointments Commission Act, 2014 are violative of the ‘Principles of Separation Of Powers’ or not?
1) Article 124A
This provision provides for the constitution of the National Judicial Appointments Commission which consists of Chief Justice of India, two senior most judges of the Supreme Court, union minister in charge of law and justice, and two eminent persons nominated by the committee.
2) Article 124B
Article 124B provides the functions of the National Judicial Appointments Commission.
3) Article 124C
Article 124C regulates the procedure for appointment of Chief Justice of India and other Judges of the Supreme Court and High Court and also empowers to lay down the regulations for the same.
SP Gupta v. Union of India
This case is popularly known as the judges transfer case. The Supreme court in this unanimously agreed with the meaning of Consultation as explained in the case of Union of India v. Sankalchand Sheth.[v] The meaning of the word consultation in Article 124(2) of the constitution has the same meaning in Article 217 and Article 222 of the Constitution. The ultimate power to appoint judges was vested with the executive from whose dominance and subordination were sought to be protected. Bhagwati J in his judgement suggested for the appointment of a judicial committee for recommending names of persons for appointment as judges. He also said that it is unwise to entrust power to a single person however high or important maybe the office.
Supreme Court advocates on record association v. Union of India
This case is popularly known as the second judges’ transfer case where the majority overruled SP Gupta case and held that the in the matter of appointment of judges of the Supreme Court and high court Chief Justice of India should be given importance. The court also laid down detailed guidelines governing the appointment and transfer of judges and ruled that chief justice of India should be appointed based on seniority. The Supreme Court had clearly held that no appointment of any judge to the Supreme Court or any High Court can be made unless it is in conformity with the opinion of Chief Justice of India.
1) The judicial responsibility in the matter of appointment of Judges is the most important trusteeship,could not be permitted to be shared, with either the executive or the legislature.
2) The “independence of the judiciary” had been seriously compromised, through the impugned constitutional amendment
3) Non-disclosure of reasons, why the existing procedure was perceived as unsuitable, depict that the object sought to be achieved by the legislature was to dilute the primacy earlier vested with the Chief Justice of India (based on a decision of a collegium of Judges), provided for under Articles 124 and 217, as originally enacted.
4) The Constitution (99th Amendment) Act, and the National Judicial Appointments Commission Act, had done away with, the responsibility vested with the Chief Justice of India, represented through a collegium of Judges (under Articles 124 and 217 – as originally enacted). Accordingly, it was submitted, that till the system adopted for selection and appointment of Judges, established and affirmed, the unimpeachable primacy of the judiciary, “independence of the judiciary”could not be deemed to have been preserved.
- There was no provision in the Constitution of India either when it was originally drafted, or at any stage thereafter, which contemplated, that Judges would appoint Judges to the higher judiciary
- It was emphasized, that only if five of the six Members of the National Judicial Appointments Commission recommended a candidate, he could be appointed to the higher judiciary. It was submitted, that the afore stated safeguards, postulated in the amended provisions, would not only ensure transparency, but would also render a broad based consideration.
- Enacting the Constitution (99th Amendment) Act, and the National Judicial Appointments Commission Act, the Parliament had discharged a responsibility, which it owed to the citizens of this country, by providing for a meaningful process for the selection and appointment of Judges to the higher judiciary.
- The composition of the National Judicial Appointments Commission introduced through the Constitution (99th Amendment) Act, according to him, meets with all constitutional requirements, as the same is neither in breach of the rule of “separation of powers”, nor that of “the independence of the judiciary”. It was contended, that the impugned provisions preserve the “basic structure” of the Constitution.
The Supreme Court with a majority of 4:1 gave the judgement in favour of petitioners and held that Article 124A is the most important article of the 99th amendment. If Article 124A is struck the entire amendment would be undone. The Court found that clause a and b of Article 124A do not provide adequate representation to the judicial component of the National Judicial Appointments Commission which is insufficient to preserve the primacy of judiciary and hence violative to the independence of the judiciary which forms the basic structure of the Constitution. Similarly Article 124A (c) and (d) are ultra vires of Constitution due to the inclusion of union minister in charge of law which violates the separation of powers which forms the basic structure of the Constitution. The Supreme Court held that the 99th Constitution amendment Act 2014 and the national judicial appointment commission act 2014 as unconstitutional and void. The system of appointment of judges to Supreme Court, High Court, and appointment of Chief Justice of India and transfer of judges should be carried according to the position prior to the 99th amendment. All five judges gave separate judgement and Justice Chalemeswar upheld the validity of the amendment.
It is very clear from this case that the appointment of judges will be in the manner prior to 99th amendment that is
- The appointment of judges to the Supreme Court under Article 124(2), the chief justice of India should consult the four senior most judges forms who form the collegium.
- President should appoint the judges according to the recommendation made by the collegium. If there is no consensus no recommendations should be made.
- The appointment of judges can be challenged only on the ground that the consultation power has not been in conformity with the guidelines.
Now the position for the appointment of judges is very clear and the judiciary has played an active role in protecting the basic structure of separation of powers and independence of the judiciary. Later in 2016 the supreme court of India in the case of Supreme court advocates on record association v. Union of India[vi] the court gave a detailed guideline of factors that has to be considered while the appointment of Judges.
[i]AIR 1973 SC 1461
[ii]AIR 1982 SC 149
[iii]Supreme Court Advocate on Record Association v. Union of India, 1993 4 SCC 441
[iv]re Presidential Reference, AIR 1999 SC
[v]AIR 1977 SC 2328
[vi]AIR 2016 SC 117