Proposals for Reconsideration of Judges Cases

The Law Commissions submits its 214th Report on Proposals for Reconsideration of Judges Cases THE REPORT EXAMINES THE PROCEDURE FOR APPOINTMENT OF JUDGES OF SC AND HC The Law Commission of India submitted to the Government of India, its 214th Report on “Proposal for Reconsideration of Judges cases I, II and III – S.P. Gupta Vs UOI reported in AIR 1982 SC 149, Supreme Court Advocates on Record Association Vs UOI reported in 199(4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739”. The Hon’ble Chairman of the Commission, Dr. Justice AR. Lakshmanan, former Supreme Court Judge, forwarded the said Report to the Hon’ble Union Law Minister, Dr. Hans Raj Bhardwaj, today (21st November, 2008) in his Office/ at his residence. The subject of appointment of Judges of the Supreme Court and of the High Courts is contained in Articles 124 and 217 of the Constitution of India. According to Article 124, every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose. In case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 217 provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. After the judgement in the case of Supreme Court Advocates on Record Association v UOI (1993), the Collegium system came into being in 1993. A nine-judge Bench of the Supreme Court in Supreme Court Advocates on Record Association case by majority overruled S.P. Gupta’s case which had eroded the primacy of Chief Justice of India in the appointment of Supreme Court and High Court Judges. Further, in Special Reference 1 of 1998, the Supreme Court not only strongly reinforced the concept of “primacy” of the Chief Justice of India’s opinion but also increased the number of judges the Chief Justice of India must consult before providing his opinion, and laid down a detailed set of guidelines on the procedure to be followed in arriving at the Chief Justice of India, opinion to which “primacy” was attached. The said procedure in effect transferred the “primacy” from the Chief Justice of India to the group of Judges to be consulted. Since then controversy against the said collegium system is going on. In view of the above, the Law Commission had, suo motu, undertaken the study on the subject. The Commission examined the law on the subject, various recommendations of Parliament Standing Committees and law of foreign jurisdiction like America, Australia, Canada and Kenya where the executive is the sole authority to appoint the Judges or the executive appoints in consultation with the Chief Justice of the Country. The Commission observed that the Judges constituting the collegium are not conversant with the names and antecedents of the candidates and more often than not, appointments suffer from lack of adequate information. The Commission has recommended two alternatives. One is to seek a reconsideration of the three judgements aforesaid before the Hon’ble Supreme Court. Otherwise, a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments.

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