Judges (Inquiry) Bill 2006, National Court of Appeal and Judicial Appointments Commission

The Judges (Inquiry) Bill 2006

From prsindia.org
The Bill was introduced in the Lok Sabha on December 19, 2006. The Standing Committee on Personnel, Public Grievances, Law and Justice (Chairperson: E. M. Sudarsana Natchiappan) presented its report to the Rajya Sabha on August 17, 2007.

Highlights of the Bill

• The Judges (Inquiry) Bill, 2006 establishes a National Judicial Council (NJC) to conduct inquiries into allegations of incapacity or misbehaviour by High Court and Supreme Court judges.
• The NJC shall consist of the 

>> Chief Justice of India, two Supreme Court judges and two High Court Chief Justices to investigate High Court judges; 

>> or the Chief Justice of India and four Supreme Court judges to investigate Supreme Court judges.

• The NJC shall investigate complaints submitted by 

1. any person, or 

2. upon receiving a reference from Parliament based on a motion moved by 50 Rajya Sabha or 100 Lok Sabha MPs. 

3. It may also entertain complaints from any other source.

• If the allegations are proven, the NJC may impose minor measures or recommend the removal of the judge. Removal of a judge shall be through impeachment by Parliament.
• A judge may appeal to the Supreme Court against his removal or against any minor measures imposed upon him.

Key Issues and Analysis

• The NJC, in consonance with recommendations of the Law Commission, is composed solely of serving members of the Supreme Court and High Court. The Standing Committee has stated that there should be wider participation in the process.

• The Bill allows a judge to appeal his removal before the Supreme Court after impeachment. The Standing Committee has observed that this would undermine the finality of a Presidential Order that should not be challenged.

• The Standing Committee cautioned against an open system of complaints by any person, and suggested an impartial Empowered Committee to filter all complaints before they were investigated by the NJC.

• The Law Commission had stated that the provisions of the Bill, including minor measures, would withstand constitutional scrutiny. While the Standing Committee agreed, it recommended a re-examination of its constitutional validity.

• The inquiry by the NJC is to be in camera, and not in an open court. The Supreme Court had held in a previous case that the judge being investigated had the right to request a public trial.

National Court of Appeal 

Supreme court on 28th Feb sought to know the response of Center and Ministry of Law on establishment of National Court of Appeal with regional branches to decide cases arising from High Courts.

History of the idea

In Bihar Legal Support Society Versus Chief Justice of India a five judge bench in its judgement in 1986 found the establishment of National Court of Appeal ‘most desirable’.

This idea has again come in news due to a PIL filed by Puducherry-based advocate V. Vasantha Kumar seeking direction for the Centre and departments concerned to consider his November 21, 2013 representation for consideration and implementation of the suggestions made by the apex court in a 1986 judgement.

Why are they needed?

1. Geographical proximity and financial status of citizens in the society : These two factors decide ease of access of the SC by citizens. 

Media Reports : of all the cases filed in the Supreme Court, the highest number are from the High Courts in the northern states — 12 per cent from Delhi, 8.9 per cent from Punjab and Haryana, 7 per cent from Uttarakhand, 4.3 per cent from Himachal Pradesh, etc. The lowest figures are from the High Courts located in the South of India- Kerala -2.5 per cent, Andhra Pradesh 2.8 per cent, and 1.1 per cent from Madras High Court.

2. Supreme Court becoming a mere Court of Appeal  = High burden of cases

One of the most eminent lawyers of the Country, Sri. K.K. Venugopal : Apex Court has strayed from its original character as a Constitutional Court and the Apex Court of the country by gradually converting itself into a mere Court of Appeal, ‘which has sought to correct every error which it finds in the judgments of the 21 High Courts of the country’ and mooted the idea of creation of intermediate courts to be created by an amendment to the Constitution for absorbing the vast volume of cases which the Supreme Court of India had been dealing with up till now.

So how will National Court of Appeal help?

1. 1986 judgement : National Court of Appeal would entertain appeals by special leave from the decisions of the High Courts and the Tribunals in the country in civil, criminal, revenue and labour cases and so far as the present apex court is concerned, it should concern itself only with entertaining cases, involving questions of constitutional law and public law. Benefits of this:

• this would lessen the burden on SC

• Would allow the eminent judges of SC to focus on important constitutional matters and that of public law 

• Regional branches of such a National Court of appeal would help in overcoming the geographical barriers issue.

1. SC can have more judges. But this would not solve the problem of geographical proximity.

2. Law Commission of India in its 229th report that four cassation benches be set up- one each in the north, south, east and west, to deal with all appellate work arising out of orders/judgments of the High Courts of the particular region, the request for a Bench of the Supreme Court in South India has not materialized till now. 

Till now everything was from news paper articles. Now my thoughts on the issue(you all can also suggest in comments section)There can be some other solutions such as:

2. SC can have benches in other regions. This would not solve the problem of SC deciding petty issues.

So if we can have more judges in SC + SC benches in other regions + having a strong mechanism to filter out petty cases = problem solved and we won't need:

1. Such a big constitutional amendment to introduce entirely new type of courts.

2. A whole lot of new institutions would be needed.

The Judicial Appointments Commission Bill, 2013

Highlights of the Bills

• The Constitution (120th Amendment) Bill, 2013 amends provisions related to appointment and transfer of judges to the higher judiciary.
• It establishes a Judicial Appointments Commission (JAC) to make recommendations to the President on appointment and transfer of judges to the higher judiciary.  It empowers Parliament to pass a law providing for the composition, functions and procedures of the JAC. 

• The JAC Bill, 2013 states that the JAC shall comprise: 

• The functions of the JAC include making recommendations for appointments of the CJI, SC judges, Chief Justice and other High Court (HC) judges, and transfer of HC judges.

• The current method of appointments has been examined by various bodies including the Law Commission and the Parliamentary Standing Committee.  They vary in the role of the executive and judiciary in making appointments of judges.

• The composition of the JAC has not been included in the Constitution, but has been left for Parliament to decide by law.  This implies that modifying the composition of the JAC would not require a constitutional amendment, but may be altered by a simple majority in Parliament.

• The Standing Committee examining the JAC Bill has recommended that 

• Long delay in delivering, 

• inability to organize time effectively and manage their board efficiently, 

• lack of clarity and clear reasoning in judgments, 

• lack of knowledge of even basic principles of law and 

• lack of ability and willingness to learn, 

• ghost writing of judgments … 

(i) the Chief Justice of India (CJI), 

(ii) two other senior most judges of the Supreme Court (SC), 

(iii) the Union Minister for Law and Justice, and 

(iv) two eminent persons to be nominated by the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.
Key Issues and Analysis
(i) the JAC be composed of three eminent persons, 
(ii) the broad parameters for short listing of candidates for HC appointments be laid down in the Bill, and 
(iii) the centre also consider the setting up of state level appointments commissions comprising the Chief Minister, the Chief Justice of HC and the Leader of Opposition.

Source prsindia.org

During my mains preparation I had writtten one answer regarding this. Sharing it with you all:

Q : Does the collegium system of appointment of judges failed in its purpose ?? Discuss in light of Judicial Appointments commission bill ?

Judicial Appointments Commission bill has been put forward by government to scrap the collegium system of appointing judges to Supreme Court and High Court citing it would allow more say for the executive and would also provide much needed transparency in appointments. But we need to evaluate the need and performance of collegium system in order to conclude whether such replacement is needed or not.

Collegium system was adopted in order to prevent attempts by executive to muzzle the judiciary in emergency and post-emergency era. It was to check the erosion of independence of judiciary during that time. But 20 years after the collegium experiment it has been realized that appointment of judges “by the judges” is being perceived as appointment “for the judges”. There is growing evidence that the current system has resulted in incompetent, inefficient, ethically compromised individuals being appointed as judges. Nepotism and favoritism is seen at large. Recently Madras High Court Advocates Association pointed out that the list of names forwarded by collegium appears to be based on extraneous criteria such as caste, religion, office affiliations, political considerations and even personal interests and quid pro quo.

Consequences of appointment of poor quality judges are many: 

This has resulted in eroding respect and confidence in the judicial process.

But it must also be pointed out that independence of judiciary has been put to good use in various cases. It has allowed vigorous judicial scrutiny and oversight of executive misdemeanors in the 2G scam and Coalgate litigations.

Now if we consider the appointment committee being proposed by government then it consists of CJI as its head, two senior-most judges of the Supreme Court, the Law Minister, two eminent jurists nominated by the CJI, PM and the Leader of the Opposition as its member. There are apprehensions that such a committee will again give upper hand to executive and we will regress back to the same situation as before the collegium system.

The real issue thus is not who appoints judges but how they are appointed. Irrespective of whether it is the executive, the judiciary or a Judicial Commission that appoints judges, as long as the process is opaque and appointments are made on personal considerations, we will have variations of the same problem of favoritism, nepotism and appointments on criteria other than merit and capability. The crucial need, therefore, is to evolve objective criteria to assess a candidate and make appointments on the basis of assessments against such stated criteria. We can also think of expanding the catchment area to all three categories given in Article 124(3) as there has never been appointment of distinguished jurists as SC judge whereas countries like US appoint law professors as judges of SC.