Independence of Judiciary at stake

Prof. Ashok G. Pawade ((Head, Dept. of Law, Yeshwant Mahavidyalaya, Wardha))and Dr. Ravishankar K. Mor ((Asst. Prof. Dept. of Law, Yeshwant Mahavidyalaya, Wardha)).

On 5th September 2013 Rajya Sabha passed the Constitution (One Hundred Twentieth Amendment) Bill, and the collegiums system as evolve by the Supreme Court is likely to come to an end. An attempt to analyse the said amendments is made to check if it is within the spirit of the constitution or not. Articles which are sought to be amended are reproduced below for reader’s convenience (as they stand today).

124. Establishment and constitution of Supreme Court
(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges
(2) 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 the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause ( 4 )

217. Appointment and conditions of the office of a Judge of a High Court
(1) 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, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years Provided that
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4 ) of Article

124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India
(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;

Explanation For the purposes of this clause
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an Advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;
(aa) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947 , within India as defined by the Government of India Act, 1935 , or has been an advocate of any High Court in any such area, as the case may be
(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final

222. Transfer of a Judge from one High Court to another
(1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court
(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963 , as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix

231. Establishment of a common High Court for two or more States
(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory
(2) In relation to any such High Court,
(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the Subordinate Courts are situate; and
(c) the reference in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat: Provided that if such principal seat is in a Union territory, the references in articles 210 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India

Lets now look into the amendments introduced and passed in the Rajya Sabha.

“ In article 124 of the Constitution, in clause (2),—
(a) for the words “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 the purpose”, the words, figures and letter “on the recommendation of the Judicial Appointments Commission as referred to in article 124A” shall be substituted;
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words “Provided further that”, the words
“Provided that” shall be substituted.
After article 124 of the Constitution, the following article shall be inserted, namely:—

“124A. (1) There shall be a Commission to be known as the Judicial Appointments Commission.
(2) Parliament may, by law, provide for—
(a) the composition of the Commission;
(b) the appointment, qualifications, conditions of service and tenure of office of the Chairperson and other members of the Commission;
(c) the functions of the Commission;
(d) the procedure to be followed by the Commission in discharge of its functions;
(e) the manner of selection of persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts; and
(f) such other matters as may be considered necessary

In article 217 of the Constitution, in clause (1), for the portion beginning with the words “after consultation” and ending with the words “the High Court”, the words “on the recommendation of the Judicial Appointments Commission referred to in article 124A” shall be substituted.
5. In article 222 of the Constitution, in clause (1), for the words “after consultation with the Chief Justice of India”, the words “on the recommendation of the Judicial Appointments Commission referred to in article 124A” shall be substituted.
6. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.

What was the intention of Constitution makers while inserting Article 124 in the Constitution is need to be discussed here?

Constituent Assembly Debates on Article 103 (Article 124 of existing constitution) speaks as under:-
Prof. Shibban Lal Saksena, proposes following amendment

“That for clause (2) of article 103, the following clauses be substituted:-
‘(2) The Chief Justice of Bharat, who shall be the Chief Justice of the Supreme Court, shall be appointed by the President subject to confirmation by two-thirds majority of the total number of members of Parliament assembled in a joint session of both the Houses of Parliament.’

In this amendment Prof. Saksena have provided that the Chief Justice of the Supreme Court shall be appointed by the President, but it shall be confirmed by at least two-thirds majority of both the Houses. At present, clause (2) provides that the president shall appoint the Chief Justice of the Supreme Court, which means that the Prime Minister or the Executive shall appoint him. The Chief Justice of the Supreme Court should be completely independent of the Executive and it is this principle which he want to introduce in the Constitution assembly. He said, At present he shall be a creature merely of the executive and the President shall appoint him on the advice of the Prime Minister. This will take away some independence of the Supreme Court. We are here providing for the highest tribunal of justice in our country. This tribunal should be above suspicion and no executive should be able to have any influence upon him. If the Chief Justice is appointed by the President or the Prime Minister then his independence is compromised. I therefore want, Sir, that the Chief Justice shall be appointed by the President of course, but at least two-thirds members of the Parliament shall approve his name. This means that the President shall and will be the prime mover in the appointment but if the name he chooses is not one which can be approved by the members of Parliament by at least two-thirds majority, then that name shall be changed and another name shall be changed and another name shall be proposed which shall be acceptable to two-thirds majority of both Houses. In this manner, there is some initiative to the President also. He will be the man who will give the names, but the name will only be accepted if two-thirds majority of both the Hoses support him, so that the President shall have the initiative, but the man chosen will be such who shall enjoy the confidence of both the Houses of Legislature. This method has two advantages; it gives the executive the right of choosing the person who they think will be proper, but it will not exercise that right in a party spirit but shall decide it in a manner that all the members of both the Houses, or at least a two-thirds majority of them, shall approve that name.
Therefore, Sir, I think that the provision which I am suggesting will be a far better provision than the one contained in the draft already. At present, Sir, the judges also have not to be appointed on the advice merely of the Chief Justice of the Supreme Court, but they are appointed in consultation with the Supreme Chief Justice, which means even in their appointments the Executive has got the major hand. I think, Sir, that this should not be. Every judge of the Supreme Court should be appointed on the advice merely of the Supreme Judge of the Supreme Court, so that they may advice merely of the Supreme Judge of the Supreme Court, so that they may derive their authority from the Chief Justice and not from the Executive. This, I think, Sir, is a very important thing and should be incorporated in our Constitution. We have all along said that we want an independent judiciary; that is the pride of many peoples and that is the pride of the United States of America. I think we too want that our Chief Justice and the Supreme Court should be above suspicion. These should be completely independent, so that a man can feel that they shall be absolutely independent of the Executive. To my mind my amendment is very important and I therefore, hope that the Members here will see that they make some changes so that the Chief Justice of the Supreme Court does not become a creature merely of the Executive, and the President appoints him on his recommendation.

Another Hon’ble member from Madras, Mr. B. Pocker Sahib proposes following amendment in the Draft Article 103 (Article 124 in existing Constitution)

“That for clause (2) and the first proviso of clause (2) of article 103, the following be substituted:-

(2) Every judge of the Supreme Court other than the Chief Justice of India shall be appointed by the President by warrant under his hand and seal after consultation with the judges of the Supreme Court and Chief Justice of High Courts in the States and with the concurrence of the Chief Justice of India; and the Chief Justice of India shall be appointed by the President by a warrant under his hand and seal after consultation with the judges of the Supreme and the Chief Justice of the High Court in the States and every judge of the Supreme Court shall hold office until he attains the age of sixty-eight years.'”

While speaking for the amendments
He said “Sir, in giving this amendment, I wanted to see that the appointment of the judges of the Supreme Court is not in any way affected by political influences. It is with that view that this amendment has been given and in that view. I am very strongly supported by the opinions given by the Federal Court and the Chief Justices of the various High Courts, which have been submitted to this body. That memo has been circulated to the honourable Members of this House. Sir, you will permit me to read only some of the sentences from that memo. This is what it says:

“It appears that a certain provincial Government has issued directions that the recommendations of the Chief-Justice, instead of being sent to the Premier, should be sent to the Chief-Secretary, who, in some instances, has asked the Assistant Secretary to correspond further with the High Court in the matter. Thus, there seems to be a growing tendency to treat the High Court as a part of the Home Department of the province. With a view to check this tendency which is bound to undermine the position and the dignity of the High Courts and lower them in the estimation of the public, the Judges assembled in conference were unanimously of option that a procedure on the following lines must be laid down for the appointment of High Court Judges:

“The Chief Justice should send his recommendation in that behalf directly to the President. After consultation with the Governor, the President should make the appointment with the concurrence of the Chief Justice of India.

This procedure would obviate the need for the Chief Justice of the High Court discussing the matter with the Premier and the Home Minister and justify his recommendations before them. It would also ensure the recommendation of the Chief Justice of the High Court being always placed before the appointing authority, namely, the President. The necessity for obtaining the concurrence of the Chief Justice of India would provide a safeguard against political and party pressure at the highest level being brought to bear on the matter.”

It is said later on that mutatis mutandis, the very same principles apply to the appointment of the Judges of the Supreme Court. The same memo points out:

“It is therefore suggested that article 193 (1) may be worded in the following or other suitable manner. ‘Every Judge of the High Court shall be appointed by the President by a warrant under his hand and seal on the recommendation of the Chief Justice of the High Court after consultation with the Governor of the State and with the concurrence of the Chief Justice of India.'”
Further, it is stated:

“The foregoing applies mutatis mutandis to the appointment of the Judges of the Supreme Court. Article 103 (2) may also be suitably modified.”

Again he said, Sir, the views expressed by the Federal Court and the Chief Justice of the various High Courts assembled in conference is entitled to the highest weight before this Assembly, before this provision is passed. It is of the highest importance that the Judges of the Supreme Court should not be made to feel that their existence or their appointment is dependent upon political considerations or on the will of the political party. Therefore, it is essential that there should be sufficient safeguards against political influence being brought to bear on such appointments. Of course, if a Judge owes his appointment to a political party, certainly in the course of his career as a Judge, also as an ordinary human being, he will certainly be bound to have some consideration for the political views of the authority that has appointed him. That the Judges should be above all these political considerations cannot be denied. Therefore, I submit that one of the chief condition mentioned in the procedure laid down, that is the concurrence of the Chief Justice of India in the appointment of the Judges of the Supreme Court, must be fulfilled. This has been insisted upon in this memo. and that is a very salutary principle which should be accepted by this House. I submit, Sir, that it is of the highest importance that the President must not only consult the Chief Justice of India, but his concurrence should be obtained before his colleagues, that is the Judges of the Supreme Court, are appointed. It has been very emphatically stated in this memo that it is absolutely necessary to keep them above political influences. No doubt, it is said in this procedure that the Governor of the State also may be consulted; but that is a matter of minor importance. It is likely that the Governor may also have some political inclinations. Therefore, it is that my amendment has omitted the name of the Governor. That the judiciary should be above all political parties and above all political consideration cannot be denied. I do not want to enter into the controversy at present, which was debated yesterday, as to the necessity for the independence of the judiciary so far as the executive is concerned. It is a matter which should receive very serious consideration at the hands of this House and I hope the Honourable the Law Minister will also pay serious attention to this aspect of the question, particularly in view of the fact that this recommendation has been made by the Federal Court and the Chief Justice of the other High Court assembled in conference. I do not think, Sir, that there can be any higher authority on this subject than this conference of the Federal Court and the Chief Justices of the various High Courts in India.

The combined effect of the amendments proposed by Hon’ble members of the Constitution Assembly was that, the Chairman of Drafting Committee, Hon’ble Dr. Babasaheb Ambedkar accept to reconsider the draft of Article 103, accordingly President, Dr. Rajendra Prasad sent Article 103 for redraft in the light of proposed amendments. The present Article 124 is what drafting a committee submits to the Constitution Assembly after redraft in which even the approval of two third majority in the parliament was considered as interference with the independence of the judiciary.
Now let us have look at the judicial opinion in this regards,
The constitutional bench of nine judges was constituted in Supreme Court Advocates-on-Record Association and another vs. Union of India ((AIR1994SC268)), to decide one of the questions:
“Primacy of the opinion of the Chief Justice of India in regard to the appointments of Judges to the Supreme Court and the High Court, and in regard to the transfers of High Court Judges/Chief Justices”;
This question was considered in the context of the independence of the judiciary, as a part of the basic structure of the Constitution, to secure the ‘rule of law’ essential for the reservation of the democratic system, the broad scheme of separation of powers adopted in the Constitution, together with the directive principle of ‘separation of judiciary from executive’ even at the lowest strata, provide some insight to the true meaning of the relevant provisions in the Constitution relating to the composition of the judiciary. The construction of those provisions must accord with these fundamental concepts in the constitutional scheme to preserve the vital and promote the growth essential for retaining the Constitution as a vibrant organism.
Court referred to certain observations by a Constitution Bench in Subcommittee on Judicial Accountability v. Union of India and Ors ((AIR1992SC320))., as under :-
… it is necessary to take a conspectus of the constitutional provisions concerning the judiciary and its independence. In interpreting the constitutional provisions in this area the Court should adopt a construction which strengthens the foundational features and the basic structure of the Constitution. Rule of law is a basic feature of the Constitution which permeates the whole of the constitutional fabric and is an integral part of the constitutional structure. Independence of the judiciary is an essential attribute of rule of law.
In S.P. Gupta the concept of independence of the judiciary to be kept in view, while interpreting the relevant provisions of the Constitution, was summerised by Bhagwati, J. (as he then was), thus :
Judges should be stern stuff and tough fire, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you.” This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.
Pathak, J. (as he then was) in S.P. Gupta under the topic ‘The Rule of Law and the administration of justice’, stated thus : … While the administration of justice draws its legal sanction from the Constitution, its credibility rests in the faith of the people. Indispensable to that faith is the independence of the judiciary. An Independent and
impartial judiciary supplies the reason for the judicial institution, it also gives character and content to the constitutional milieu. …In fashioning of the provisions relating to the judiciary, the greatest importance was attached to securing the independence of the judges, and throughout the Constituent Assembly debates the most vigorous emphasis was laid on that principle… the framers of the Constitution took great pains to ensure that an even better and more effective judicial structure was incorporated in the Constitution, one which would meet the highest expectations of judicial independence….
This perception of the concept of independence of the judiciary is in harmony with the ‘Basic Principles on the independence of the Judiciary’ forming a part of the universal ‘Human Rights in the Administration of Justice’ envisaged by the Seventh United Nations Congress at Milan and endorsed by the U.N. General Assembly in 1985, which provide inter alia as under :
Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives….
Promotion of judges, wherever such a system exists, should be based on objective factors, in particular ability, integrity and experience ((Human rights – A Compilation of International Instruments (1988) at p.267)).
Mathew, J. in Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr (([1975]3SCR854)). said after indicating that the rule of law is a part of the basic structure of the Constitution, apart of the basic structure of the Constitution, apart from democracy, as held in Kesavananda Bharati ((1972CriLJ1526))proceeded to succinctly summarise the modern concept of the rule of law, as under :
…’Rule of law’ is an expression to give reality to something which is not readily expressible. That is why Sir Ivor Jennings said that it is an unruly horse…. Dicey’s formulation of the rule of law, namely. the absolute supremacy or predominance of regular law, as opposed to the influence of arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide discretionary authority on the part of the government has been discarded in the later editions of his book. That is because it was realized that it is not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends, discretion begins and the exercise of discretion may mean either beneficence or tyranny, either justice or injustice, either reasonableness or arbitrariness…. It is impossible to find a government of laws alone and not of men in the sense of eliminating all discretionary powers. All governments are governments of law and of men….
Another definition of rule of law has been given by Friendrich A. Hayek in his books : “Road to Serfdom” and “Constitution of Liberty”. It is much the same as that propounded by the Franks Committee in England : The rule of law stands for the view that decisions should be made by the application of known principles or laws. In general such decisions will be predictable, and the citizen will known where he is. On the other hand there is what is arbitrary. A decision may be made without principle, without any rules. It is therefore unpredictable, the antithesis of the decision taken in accordance with the rule of law. If it is contrary to the rule of law that discretionary authority should be given to government departments or public officers, then there is no rule of law in any modern State…it is impossible to enunciate the rule of law which has as its basis that no decision can be made unless there is a certain rule to govern the decision.
Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embody the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four comers of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from
the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. Maybe, the other articles referred to do the same duty.
It is, therefore, realistic that there has to be room for discretionary authority within the operation of the rule of law, even though it has to be reduced to the minimum extent necessary for proper govenance; and within the area of discretionary authority, the existence of proper guidelines or norms of general application excludes any arbitrary exercise of discretionary authority. In such a insituation, the exercise of discretionary authority in its application to individuals, according to proper guidelines or norms, further reduces the area of discretion; but to that extent discretionary authority has to be given to make the system workable. A further check in that limited sphere is provided by the conferment of the discretionary authority not to one individual but to a body of men, requiring the final decision to be taken after full interaction and effective consultation between them, to ensure projection of all likely points of view and procuring the element of plurality in the final decision with the benefit of the collective wisdom of all those
involved in the process. The conferment of this discretionary authority in the highest functionaries is a further check in the same direction. The constitutional scheme excludes the scope of absolute power in any one individual. Such a construction of the provisions also, therefore, matches the constitutional scheme and the constitutional purpose for which these provision were enacted.
It is also useful to refer to certain observations of the referring Bench in Subhash Sharma, the significance of which cannot be doubted. It was observed therein, as under :
In India, however, the judicial institutions, by trading, have an avowed apolitical commitment and the assurance of a non-political complexion of the judiciary cannot be divorced from the process of appointments.
Constitutional phraseology of “consultation” has to be understood and expounded consistent with and to promote this constitutional spirit. These implications are, indeed vital…. The appointment is rather the result of collective, constitutional process. It is a participatory constitutional function. It is, perhaps, inappropriate to refer to any ‘power’ or ‘right’ to appoint Judges. It is essentially a discharge of a constitutional trust of which certain constitutional functionaries are collectively repositories…. What Endmond Bruke said is to be recalled. :
All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master, Author and Founder of Society.
It is well known that the appointment of superior Judges is from amongst persons of mature age with known background and reputation in the legal profession. By that time the personality is fully developed and the propensities and background of the appointee are well known. The collective wisdom of the constitutional functionaries involved in the process of appointing superior Judges is expected to ensure that persons of unimpeachable integrity alone are appointed to these high offices and no doubtful persons gain entry. It is not unlikely that the care and attention expected from them in the discharge of this obligation has not been bestowed in all cases. It is, therefore, time that all the constitutional functionaries involved in the process of appointment of superior Judges should be fully alive to the serious implications of their constitutional obligation and be zealous in its discharge in order to ensure that no doubtful appointment can be made. This is not difficult to achieve.
After considering all the contesting arguments and assistant provided by the eminent lawyers and jurist amongst whom Mr. Kapil Sibbal was also one, who introduces the present Bill, in Supreme Court Advocates on Record case majority of S.P. Gupta’s case was reversed and establishes absolute supremacy of Chief Justice in the matters of appointment of judges of the superior judiciary, as follows:
“The primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India who, as earlier stated, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. However, if conflicting opinions emerge at the end of the process, then only the question of giving primacy to the opinion of any of the consultees arises. For reason indicated earlier, primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very goods reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable”.
In the light of above mentioned decisions and extract from Constituent Assembly Debates
Following points are raised for consideration of informed readers:
1. The system of Collegiums as developed by Hon’ble Supreme Court under Article 124 has worked well in furtherance of Constitutional object of Independence of Judiciary.
2. Executive enjoys enough say in the existing arrangements as judges are appointed by the President.(Council of Ministers headed by Prime-Minister is always there for his aid and advice)
3. This system of appointed Judges of Higher Judiciary has propelled enough strength and feeling of independence in the Judiciary, which can be witnessed from the decisions against bigwigs in the matters of 2G scam, Commonwealth Games scam, Coalgate Scam, Adarsh society scam, debarring convicts from contesting elections, etc.
4. Government being largest litigant in India, any say in the appointment of judges beyond threshold limit (as existing) will be looked upon with suspicion by the people in general.
5. If amendments as proposed are being carried out, very basics of distribution of powers between legislature, judiciary and executive is likely to be disturbed by placing executive over and above the judiciary.
6. Such amendments may not stand the test of judicial scrutiny as violative of basic structure theory as evolve by Hon’ble Supreme Court in Keshwananda Bharati’s case.
7. There is absolutely no pressing need for making such changes in the constitution as power to remove judges on proved misbehavior pre-exist with the parliament.
8. It is crystal clear from the constitution assembly debates that constitution makers never have had intentions to confer this much powers on the executive. An amendment to have say of the parliament in the appointment of judges, whereby every appointment shall have approval of two third majority was not accepted by the constitution assembly.
9. Whatever problems may have been crop up in the system of collegiums they can be corrected by suitable limited amendments but the amendments suggested are wide enough to rob the judiciary of its independence and will subserve the judiciary to the executive.
10. As attempt is made to swept the constitution of its authority to give direction as to appointment of apex judicial body of the country by introducing parliamnetery power to pass a law for judicial appointment, to cover up this robbery composition of first judicial appointment commission seems to be very well in tune with existing constitutional arrangements but anyone with little bit of legal knowledge can see and tell that, this is purely parliamentary authority under the law and they can very well change the composition of commission as per there sweet will or whim.
11. It is expected that in a Rule of law state, each authority is to work within the authority of law, including judiciary. Judiciary is sometime criticized on the ground of excessive judicial activism, for their decisions in the matters of gender justice, protective discriminations, giving guidelines for executive, this criticism is mostly leveled by so called constitutional experts and described this as transgression of power by the judiciary. Common man however does not look this as transgression of power rather considers it social judiciary and welcome it. Whenever judiciary shows activism verdicts are applauded by the media and common men. While executive always treat it as serious interference with their powers and many a times laws are passed or constitutional amendments are carried out to reverse the decisions of Supreme Court. The argument put forth by the judiciary on the record and off the record for this activism is that, when other two organs of the government fails in performing their constitutional responsibility, it is constitutional imperative for them to give such decisions.
This is the crux of situation which prompted legislature to table the bill for scarping long tested system for appointment of judges by replacing it with a judicial appointment commission with unlimited power to decide the composition as well as powers and functions of this commission. Whereby attempt is made to “pack the judiciary” just like the attempt made in 1937 in the America by then president Roosevelt.
In the light of above facts and circumstances the proposed system seems to be highly objectionable and devoid of constitutional sanctity.

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