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Prakash Yedhula (Lawyer)     02 November 2010

Executive may get a say in judges appointment

 

The collegium system of appointment of judges to HCs and the SC may be on its last legs. For, the government has commenced the drafting process for a constitutional amendment to inject transparency in selection of candidates for appointment as judges to the higher judiciary, and more importantly give the executive an equal say in the process. 

 

"The government has decided to put in place a system on appointment of judges for HCs and the Supreme Court which is more objective and transparent. It is better to put a system under the Constitution rather than have two Supreme Court judgments as the guiding force on such a sensitive and important field," law ministry sources told TOI. 

 

The present system, termed by critics as a process of "judges appointing judges", had evolved after two constitutional Bench rulings of the apex court in 1993 and 1998 completely sidelining the executive in selection and appointment of judges for HCs and the SC. The collegium, headed by Chief Justice of India (CJI) and comprising the four senior-most judges of the apex court, has the sole prerogative to select and recommend names to the government for their appointment as judges of higher judiciary. 

 

This "judges appointing judges" system, unique to a large democracy like India, has been criticised time and again by jurists, including some retired SC judges who were part of the constitutional Benches responsible for the 1993 and 1998 judgments. 

 

The government first weighed the option of moving the Supreme Court with a petition seeking review of the two judgments. But it concluded that the better approach would be to either draft a law on the lines of the Judicial Standards and Accountability Bill, 2010 which proposes to lay down comprehensive statutory guidelines for inquiry against errant judges, or go for an amendment to the Constitution on appointment of judges. 

 

Through the 1993 judgment, the SC had vested primacy in the CJI with regard to appointment of judges, altering the constitutional provision which conferred power on the President to appoint judges in consultation with the CJI. In the 1998 judgment, the SC went a step further and said the entire appointment process of judges to HCs and the SC would be controlled by the collegium system headed by the CJI and comprising four senior-most judges of the apex court, reducing the role of President, that is the executive government, to a mere rubber stamp.

 

Source:TOI



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 14 Replies


(Guest)

"Appointment" is a purely "Establishment Matter".  It doesn't mean that "Executive" may say the final word on it.  Executives have to execute the constitutional provisions for appointments and nothing more.  It is their "WORK", If they do any malpractice or any anti-constitutional action or any procedural lapse occurred in appointments, as usual, the court will always say the final interpretation.  Dealing the clerical work of appointments is not at all the work of any court.

RAJ KISHORE VAISH (TEACHER CITIZEN OF INDIA)     02 November 2010

Actully we have lost our characer ..............Here is problem.

RAJ KISHORE VAISH (TEACHER CITIZEN OF INDIA)     02 November 2010

plz. read 'character' inplce of 'characer'.

Avnish Kaur (Consultant)     02 November 2010

VERY GOOD . ALSO LET THREM MAKE RESERVATION FOR ALL POLITICAL PARTIES. FOR EXAMPLE  50% CONMGRESSI JUDGES, 20% BJP JUDGES , 10% LALOO JUDGES AND SO ON. THIS IS A STEP TO MAKE JUDICIARY MORE CORRUPT.

N.K.Assumi (Advocate)     02 November 2010

It is nothing but poisoning the Judiciary by the Executive.


(Guest)

 

It is a "JUST RIGHT MOVE" and "RECTIFYING THE MISTAKE".  Please try to understand THE SYSTEM OF DEMOCRACY to avoid BECOMING THE DICTATOR.  Everyone should be within their jurisdiction.  What is the WORK OF JUDICIARY? and the answer is here.  


So sorry for another posting here, but since felt necessary.  All the best.

Deepesh Mittal (student)     03 November 2010

It is not a good step. If Executive start having their say in the appointment of judges, then the Judges are going to be politicians only. It is not at all going to help in our judicial system. As far as Judicial Standards & Accountability Bill is concerned, Parliament has not been able to pass it, the question of amendment does not comes into picture.

The selection of candidates for a very Honorary post of High Court and Supreme Court judges shall be made by Judges only and not by any type of recommendation of Executive at all. We need to develop our Judicial System and not to destroy our Judicial System.

RAJ KISHORE VAISH (TEACHER CITIZEN OF INDIA)     03 November 2010

Rightly said by Avinsh Kaur. It would be better than present. There will no GUTALA. This will cut the expenditure on inquire.

Deepesh Mittal (student)     03 November 2010

I don't think that it is going to cut down the expenditure.....It is going to increase the expenditure with Executive.


(Guest)

Collegium can not be termed as Judge. It is a body entrusted to discharge a collective function of deciding suitability of individual to function as a Judge.Prme Minister and Chief Ministers who are politicians also used to appoint other politicians as Minister and other political dignatories amongst politicians. Nothing strange if a body of judges recommends the suitability for appointment of Judge.It is cleverly  not made clear in the present problem  what the term,'Executive' mean in the context. Executive power of Union vested in President of India under Artcle 53 of the Constitution who is responsible for Appointment of Supreme Court Judge under Artcle 124(2) and Hifgh Court Judge under Artcle 217 of the Constitution. Judicial officers for subordinate judicial service are appointed by Governor on recommendation of Public Service Commission and High Courts of State . Governor is also vested with Executive power of State. Government servants either of Union or States are not 'Executive' they are " Executing machinery " only The problem lies  in grabing the power of appointment for misuse and nothing else.

Mugundhan (Lawyer)     03 November 2010

The govt is moving more and more towards executive interference in judiciary. The following are a few examples:

1. The industrial disputes amendment act which provides for appointment of assistant labour commissioners as labour court judges.

2. The proposed land titling bill which tries to remove the jurisdiction of the civil court to a great extent.

swatirswatir (learning law)     06 November 2010

mr dubey said

only The problem lies  in grabing the power of appointment for misuse and nothing else.

dubey ji this is not the problem. this is the only purpose of this amendment.


(Guest)

Judges are appointeed after Intelligence and other executives clearences which are above 80 in number.


(Guest)

DELETED --SAME AS ABOVE.


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