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Covered difference between njac and collegium system in detailed manner.
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TOPIC PAGE NUMBER CHAPTER 1 11 - 20 1.1 INTRODUCTION………………………………………………………………………. 11 - 12 1.2 STATEMENT OF THE PROBLEM………………………………………...................... 1.3 LITERATURE REVIEW ………………………………………………………………12 - 17 1.4 EXISTING LEGAL SITUATION………………………………………………………17 - 18 1.5 OBJECTIVE, SCOPE AND LIMITATIONS OF RESEARCH………………………… 18 1.5.1 OBJECTIVE………………………………………………………………………………. 18 1.5.2 SCOPE……………………………………………………………………………...……… 18 1.5.2 LIMITATIONS……………………………………………………………………………. 18 1.6 HYPOTHESIS……………………………………………………………………………….. 1.7 RESEARCH QUESTION………………………………………………………………….... 1.8 RESEARCH METHODOLOGY…………………………………………………………… 1.9 CHAPTERISATION………………………………………………………………………19 - 20 1.10 SOURCES…………………………………………………………………………………… CHAPTER 2 21 - 29
This is to declare that this dissertation tiled “A CRITICAL ANALYSIS OF THE SELECTION AND APPOINTMENT OF JUDGES OF THE HIGHER JUDICIARY IN INDIA WITH SPECIAL REFERENCE TO NJAC AND COLLEGIUM SYSTEM ” is submitted in partial fulfillment of the requirements for the completion of the degree of Master of Laws (LLM) of this university. It is a bona fide record of research carried out by me, under the guidance and supervision of Dr. Devaiah N G, Assistant Professor , Alliance School of Law, Alliance University, Bangalore. The dissertation has not been submitted for the award of any other Degree of this or any other university. AMRUTANSU PATTNAIK Registration No: 200401217018 Batch 2020 - 21 Alliance School of Law Alliance University, Bangalore, Karnataka
This dissertation would never have been possible without the inexorable hard work of everyone whose presence and supervision have helped me to produce this relevant piece of research. I offer my respectful gratitude to Prof. Kiran Gardner , Dean, Alliance School of Law, Bangalore. Madam, I am thankful to you for keeping all of us inspired throughout our time at Alliance School of Law. I would like to thank my guide, Dr. Devaiah N G, Assistant Professor for his constant support and invaluable guidance. This work would not have been possible without his constant supervision and pushing me to work timely. Most importantly, I am grateful to my parents for their unending support and belief in me. Finally, I would like to thank the university administration and the library staff for their cooperation and assistance in the completion of this work. At last, I am grateful to God for the constant watch he kept on my while over comingall the odds. AMRUTANSU PATTNAIK Registration No: 200401217018 Batch 2020 - 21 Alliance School of Law Alliance University, Bangalore, Karnataka
In India, the selection and appointment of judges of the higher judiciary has been a vital, delicate, and one of the most debated issues both inside as well as outside the legal fraternity. A collegium system was established to appoint judges of higher judiciary which was criticized of being dictatorial and opaque. To replace the collegium system the parliament created NJAC which was blamed for allowing the executive interference and for prohibiting the judiciary to enjoy absolute independence as a result of which the Act was struck down and the collegium system was reinstated. Delay in the appointment of judges, increased vacancies in the supreme court as well as in high courts, issues in the transfer and elevation of judges, rift between bar and bench and within the bench itself, etc are few of the problems among many which arose as the arguments stretched over the years. Through doctrinal research on the selected title the researcher mainly aims at highlighting issues in methods of both NJAC and the present collegium system and intends to explain that why neither of the two systems should be allowed to select, transfer, elevate and appoint judges. Moreover he wants to discuss in detail the process of selection and appointment of judges both by NJAC and the collegium system. Studying and analyzing the doctrine of separation ofpowers, independence of judiciary, doctrine of revival, doctrine of basic structure, etc he also aims to focus on important theories and principles upon which these processes were established. Keywords: Independence of Judiciary, Appointment of judges, separation of powers, Importance of Chief Justice of India, Basic structure of Constitution
Every sort of matter related to the judiciary these days somehow in one or other way at the end always results in bringing up the issue of the appointment of judges of the higher judiciary in India. This makes things more complicated between all the three organs of the government as with the question of the appointment of judges there always comes up the question of independence and supremacy of judiciary with other related issues. The issue of the appointment of judges of the higher judiciary in India that’s why has been a serious concern not only in the legal realm but outside of it too. This also has been a matter of discussion within legal scholars all around the world. The matter of appointment of judges of the higher judiciary if one can notice has in it the existence of many different principles and theories which are guaranteed under the Indian Constitution. These principles are essential not only because they have been existed for years and are thoroughly discussed and analyzed over the years by renowned jurists, teachers, and scholars but also because they have been applied to a variety of governmental systems and are enumerated in many different constitutions. These principles help the administration by guiding the process of judicial appointments. The appointment through either of the two systems namely collegium system and NJAC has strained the relationship of judiciary with two other organs of the government. Due to this it becomes difficult for the entire administration to function smoothly as it not only creates chaos and disturbances in the judiciary but also it makes difficult for the judiciary and the other two organs to agree on same thing. Plus there are a number of other problems as well which keeps happening due to the unclear and unsettled laws for judicial appointments. Due to the existing gap in literature, not many have properly tried to understand the problem and put forward necessary and more accurate solutions which the present system requires. In one hand the promise made to rectify the present system has not been fulfilled, not even partly due to which the entire judicial system is criticized till this day. Similarly the NJAC enacted also faced a lot of criticisms and was eventually struck down. It also didn’t solve any problem, but sadly created many more adding to the existing burden of judicial appointments. In this paper various principles and theories related to the judicial appointments have been studied and their process of implementation and consequences followed over the years after such implementations has been
Through this article the author discussed about the constitutional permissibility of making an alternate system other than the collegiums system for the appointment of judges and also discusses about the appointment and accountability of judges of higher judiciary in India. National Judicial Appointment Commission an Analysis of NJAC’s effect on judicial independence in India, Satyam Rathore and Ankita Ruturaj The authors doing a comparative analysis of judicial appointment in both U.S.A and India talked about the process and the system in the paper also talking about the need for judicial reforms and its implementation in the form of establishment of the commission in India. Moreover, the authors also talked about loopholes in the collegiums system, effects of NJAC on judicial independence and mentioned how the NJAC doesn’t interfere with the independence of the judiciary. Judicial Independence and Collegium System in India, Sunita Kaler Through this article the author discusses about the pros and cons of NJAC and Nature of Indian Collegium. Plus they threw light on the effectiveness of judicial appointment in maintaining judicial independence and public confidence in the judiciary. Judiciary in India, No longer Independent: A critical analysis In this article the author described the legal scenario of the appointment of judges before and after the NJAC coming into picture. This article is a comparative critical analysis asking whether the independence of judiciary is in danger or the NJAC bill has posed some serious threats to the judiciary by allowing the executive interference in the matters of judges. Debating the NJAC by Gautam Bhatia In a series of articles published in more than one site, the author engages the readers in lengthy exhaustive pieces of material where he tries to discuss the judgments and all the concepts involved in the appointment of judges in the higher judiciary visiting the cases related and discussing it from every angle giving the reader a thorough knowledge about the same. Appointment of judges in higher judiciary: An Interpretational Riddle by Neeraj Tiwari, NLU Delhi, NJA Bhopal, India, Hidayatullah National Law University, Indian Law Institute, New Delhi, papers.ssrn.com In this article the author discusses the constitutional framework for appointment of judges and also talks about the constitutionality of collegium system discussing about the three judges cases.
Appointment of Judges and Judicial Reforms: Need of the hour by Justice Yatindra Singh (Former Chief Justice of Chhatisgarh High Court), The Leaflet In this article, the author clearly states that there are reforms required in the judicial appointment system. He also highlights issues like retirement age, assignment after retirement, establishment of Indian Judicial Service, abolishment of collegiums system strongly stating that the chief justice should be selected on merit and not on seniority. Appointment of Judges to the Higher Judiciary during Pandemic – II, Economic and Political Weekly In this article the author talks about the recommendations made by the collegiums system to the union government and discusses on the fact of the number of recommendations implemented and the time it took for the implementation throwing light on the delay in the appointment of judges. Supreme Court of India Needs Transparency to Ensure Judiciary’s Credibility. In this article the author traces the question of judicial accountability citing important case laws and stresses on the need for a transparent system to deal with matters related to judicial misconduct. A battle of three A’s published in ‘Economic and Political Weekly, www.epw.in In this article the author talks about the appointment, autonomy and accountability of appellate courts. It also discusses the struggle of people of India for democracy, rule of law and justice which are at the grass root level. Over one-third of judges posts lie vacant in 12 high courts. So much for collegiums by Arvind Kumar, The Print. In this article the author focuses on the vacancy of judges in SC and HC’s. The author looks into the trends in vacancies and questions the responsibility for filling those vacancies. Recasting the Judicial Appointments Debate: Constitutional Amendment (120th^ Amendment) Bill, 2013 and Judicial Appointments Commissioner Bill, 2013, Centre for law and policy research In this article the author discusses judicial appointment and the weaknesses of bill also giving recommendations to overcome these weaknesses. The author in this article also explains the power of the president in the appointment of judges through recommendations. Centre, SC debate Timelines over Delay in Judge Appointments, www.ndtv.com
Here the author have well explained the problem that is happening with the present collegium system and also mentions how the NJAC was not given an opportunity at least to work. Plus, significant stress in this article was given to the Memorandum of Procedure and the urgent need to finalize it soon. Whether the judiciary delivers on its promise or not depends on who gets appointed as judges, The Leaflet, 21 December 2020 This is a remarkable article where the author mentions about the Justice Venkatachaliah’s famous regime where he transferred not less than fifty judges because their relatives were practicing on the said courts where the fellow judges were also present. Plus the author analyzes well the present situation and goes into the topic of whether the judges have delivered on their promises or not. Moreover from the lawyers present in the post independence era to this modern day of budding lawyers, she very well explains how these lawyers have shaped the law and contributed to Indian legal field in many different ways. This particular article according to me is a must read to understand the role of lawyers and the contributions they made to this country. India’s higher judiciary lacks professional diversity. It’s now a monopoly of lawyer-judges by Rangin Pallav Tripathy, The Print, 11 June 2021 Here the author focuses on important underrated matters which are often ignored while such as lack of professional diversity, shortened tenure, and professional homogeneity. The author tells us how all this has led to not having more judges in Supreme Court who have experience in subordinate courts and also focuses on things which should be taken into consideration while appointing judges to the higher judiciary. Why High Court Judges Are Transferred: Justice Chelameswar’s Account by Kaushik Vaidya, Bloombergquint Here the author brings to light the views of Justice Chelameswar in an interview with Bloombergquint where the author states how the author being even a former member of collegium didn’t get why the transfers of High Court judges happen and how there are no strict established procedures. Why Is it So Hard to Fill up the Judicial Vacancies in Our Courts? By Madan B Lokur, THE WIRE Here the author tells us why it is getting difficult to bring lawyers from Bar to Bench giving many reasons which he felt necessary to immediately looked into by the judiciary advising the it to do something in regard to fill up vacancies and bring more good lawyers to accept the judgeship when offered. Collegium split over selection of woman judge to Supreme Court by Dhananjay Mahapatra, The Economic Times, 18 March 2021
Here the author informs regarding the possible appointment of a lady judge into the Supreme Court who would able to become the 1st^ female Chief Justice of India but it didn’t happened that way because of obvious Supreme Court Collegium’s decision and seniority and other factors which stopped it from happening. Justice Arun Mishra’s tenure reflects deep systemic problems in the Supreme Court by Sruthisagar Yamunan, Scroll.in It is a remarkable article where the author has done extremely well in giving a detailed account of what went when the Justice was on the bench of the top most court in the country and how his tenure was marred with controversy. Appointment of judges to Supreme Court, high courts often wracked by controversy by Prabhu Chawla, INDIA TODAY Here the author focuses on a series of judicial appointments to the higher judiciary which were made were surrounded by controversies and speculations and many of which were made favoring political parties. Former Supreme Court judges discuss the influence of caste in judicial appointments by Avinabh Chandrachud, The Caravan It is one of the best articles one might come across if one wants to know the appointments made to the higher judiciary which were thought by many to be based on caste system. The author here gives a very clear description of what’s really going on behind the back doors of Supreme Court Collegium and gives a descriptive account of how some contented that the caste based appointments were prevailing in the higher judiciary from a very long time while other denied anything sort of that happening – based on the statements given by former judges who came forth and revealed almost everything what went during their tenure with a series of interviews with late Professor Gadboi. The Standards Of Basic Structure: Questioning The Master Of The Roster by Ashit Srivastaba and Shaileswar Yadav, The Leaflet Not many talk about the job of the Chief Justice of India as Master of Roster which is one of the powerful powers given to the Chief Justice. But thankfully the authors here brought the issues associated with the very position under the microscope and analyzed very well how Chief Justice Dipak Misra as Master of Roster faced a lot of criticisms and also described how the other Chief Justices before him had dealt with such an important power.
The research only focuses on the cases, principles, findings, reports, provisions under any particular law and any other laws which only deal with the process of judicial appointments. Anything not related to judicial appointments is not at all entertained in this paper.
This study hypothesize that the huge errors in both the systems frustrate any modifications to be done to either of them which in result requires the establishment of an entire new system for the appointment of judges of the higher judiciary in India.
The researcher has adopted a doctrinal research method where the primary and secondary sources were thoroughly looked into and important parts/sections which are helpful to prove the researcher point of view and to answer the question posed by this paper were taken out and brought under the light.
The research work is divided into various chapters focusing on key parts which are again further divided into many small essential parts whose study is necessary to get the result that the research paper aims to get. Chapter 1 – In this chapter the researcher throws light on the introduction, research problem, literature review, existing legal situation, objectives, scopes, limitations, research questions, and hypothesis and research methodology. Chapter 2 – In this chapter the researcher analyzes in detail the entire working of the collegium system and NJAC. Moreover in this chapter the principles adopted and merits and demerits of both the system were discussed. Chapter 3 – In this chapter the problems which arose due to the conflict within the bench, between the bar and bench, between the executive and judiciary as well as the issues which arose as a result of the decisions of the collegium and many other problems is discussed.
Chapter 4 – In this chapter the researcher highlights and analyses in detail the cases and throws light on various important remarks and findings made by learned advocates, judges, scholars and jurists regarding the judicial appointments. Chapter 5 – In this chapter the researcher concludes his research by overall summarizing the research work and gives suggestions to solve the problem.
The primary and secondary sources have been taken into consideration for conducting the research work. Constitution, cases and rulings of the judges have been looked into while also giving attention towards many articles in different journals. Moreover important contents of certain books which were written by famous authors and jurists on the given subject matter were widely discussed in this paper.
