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Take a look at the essential concepts, terms, quotes, or phenomena every day and brush up your knowledge. Here’s your knowledge nugget for today.
(Relevance: In the 2017 General Studies II paper, a question was asked to critically examine the Supreme Court’s judgment on the National Judicial Appointments Commission Act, 2014. In the 2019 Prelims, a question was asked on the impeachment of judges. Sometimes, UPSC does not focus directly on the news in current affairs but on an aspect related to it. This makes both mentioned topics very important for your Prelims and Mains examination.)
Amid allegations of cash recovery from the residence of Delhi High Court judge Justice Yashwant Varma, the National Judicial Appointments Commission (NJAC) Act, which Parliament passed in 2014, came up in Parliament last Friday. Addressing the Rajya Sabha, Vice-President Jagdeep Dhankhar said it bothered him that “the incident happened and did not immediately surface”. He then referred to the NJAC Act, which was meant to overhaul judicial appointments but was struck down by the court.
The NJAC Act, declared unconstitutional, was passed by the Parliament in 2014 through the 99th Constitutional Amendment Act to replace the Collegium. Collegium is the system of appointment of Judges of the higher judiciary, which evolved through a series of Supreme Court judgments known as “Judges Cases.” Let’s look at the Three Judges Cases that led to the formation of the collegium system.
1. First judges case: In ‘SP Gupta Vs Union of India’, 1981, a seven-judge Bench gave the Executive the last word on the appointment of judges. It held that the proposal for appointment to a High Court could emanate from any of the constitutional functionaries mentioned in Article 217, and not necessarily from the Chief Justice of the High Court.
2. The Constitution Bench also held that the term “consultation” used in Articles 124 and 217 did not mean “concurrence” – therefore, although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
3. The judgment in the First Judges Case tilted the balance of power in appointments of judges of High Courts in favour of the executive. This situation prevailed for the next 12 years.
4. Second judges case: In ‘The Supreme Court Advocates-on-Record Association Vs Union of India’, 1993, a nine-judge Constitution Bench overturned the decision in ‘SP Gupta’, and devised a specific procedure called the ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. It also said that the CJI would make decisions along with two senior-most judges of the court, who would form the collegium.
5. Third judges case: In 1998, then President KR Narayanan issued a Presidential Reference to the Supreme Court under Article 143 of the Constitution (advisory jurisdiction) over the meaning of the term “consultation”. The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”.
6. In response, the Supreme Court laid down that the recommendation should be made by the CJI and his four seniormost colleagues — instead of two, as laid down by the verdict in the Second Judges Case. It also held that Supreme Court judges who hailed from the High Court from which the proposed name came should also be consulted.
The issue of the appointment of judges through the Collegium has often been criticised for being non-transparent, since it does not involve any official mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms regarding eligibility criteria or even the selection procedure. To address these issues, the Executive introduced the NJAC Act.
1. The Justice M N Venkatachaliah Commission, appointed by Prime Minister Atal Bihari Vajpayee in 2000, recommended the creation of a National Judicial Appointments Commission (NJAC) to replace the collegium.
2. In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014, and the National Judicial Appointments Commission (NJAC) Act, 2014. These two laws provided for an independent commission to appoint judges to the SC and High Courts, replacing the collegium system.
3. The NJAC was to comprise the Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges as ex officio members, the Union Minister of Law and Justice as ex officio member, and two eminent persons from civil society — one of whom would be nominated by a committee consisting of the CJI, Prime Minster and the Leader of Opposition in the Lok Sabha, and the other would be nominated from the SC/ST/OBC/minority communities or women.
The laws were repealed in October 2015 after the Supreme Court struck them down.
In the ongoing case against Justice Varma, the Allahabad High Court Bar Association has said that the CJI “should immediately recommend to the government to draw impeachment proceedings against Justice Yashwant Varma”.
1. The process of impeachment of a judge of the Supreme Court is laid down in Article 124(4) of the Constitution of India. Article 218 says the same provisions shall apply in relation to a judge of the High Court as well. Article 124(4) states that a judge can be removed by Parliament through a laid-down procedure on only two grounds: “proved misbehaviour” and “incapacity”.
2. A Judge of the SC or HC is removed from office when at least two-thirds of those “present and voting” in both Lok Sabha and Rajya Sabha vote in favour of removing the judge. The number of votes in favour must be more than 50% of the “total membership” of each House. If Parliament passes such a vote, the President will pass an order for the removal of the judge.
3. Since independence, there have been six attempts at impeaching a judge. Only in two instances — involving Justices Ramaswami and Sen — have the committees of inquiry returned a guilty finding. The first impeachment proceedings were initiated against former Supreme Court judge Justice V Ramaswami in 1993 on grounds of financial impropriety.
Post read question
Consider the following statements: (2019)
1. The motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.
2. The Constitution of India defines and gives details of what constitutes incapacity and proved misbehaviour’ of the Judges of the Supreme Court of India.
3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, 1968.
4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of total membership of that House and by not less than two-thirds of total members of that House present and voting.
Which of the statements given above is/are correct?
(a) 1 and 2 only
(b) 3 only
(c) 3 and 4 only
(d) 1, 3 and 4 only
| Answer key |
| (c) |
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