Historic - SC to get permanent five-judge constitution bench: Will Hear Cases Involving Statute & Complex Laws

Source: Times of India dated 21.09.2019

Dhananjay Mahapatra - New Delhi
For the first time in its nearly 70-year-long history, the Supreme Court is set to realise the dream of the Constitution-framers by creating a permanent five-judge Constitution bench, to be available round the year to adjudicate complex constitutional questions and interpret laws.

Starting with a strength of eight judges in 1950, including the Chief Justice of India, the judges’ strength is now 34, with a recent amendment by Parliament after CJI Ranjan Gogoi wrote to Prime Minister Narendra Modi outlining the urgent need for an increase in SC judges’ strength in proportion to the increase in litigation.

This gave CJI Gogoi freedom to decide that from October 1 onwards, the SC will have a permanent five-judge bench. As per earlier practice, a two-judge bench, if it found an important question of law in a case, referred the issue to a three-judge bench, which referred certain select important cases for adjudication by a Constitution bench.

The CJI then used to weigh pendency of cases, engagement of judges in other important cases which are at a stage of being partly heard and then select five judges who could take up Constitution bench matters without disturbing the rate of disposal. Over last three decades, setting up of five-judge benches has been a challenging task for successive CJIs, given the exponential increase in filing of cases, triggered by numerous SC decisions expanding the writ jurisdiction to create the instrument of PIL and widening the span of fundamental rights.

As head of collegium, CJI appointed 14 SC judges

The SC also has 164 matters referred by two-judge benches to three-judge benches. CJI Ranjan Gogoi has decided to set up five permanent three-judge benches to take up these long pending 164 cases. Till now, only one or two threejudge benches functioned daily. But, with routine workload assigned to these benches, it prevented them from devoting adequate time to hear detailed arguments in these cases.

PILs raising important questions of law, scams and human rights violations have been consuming significant judicial time making it difficult for successive CJIs to disengage judges from such issues and include them in Constitution benches, a process that would block five judges for a long period.

In the US and certain other countries, all the judges of the Supreme Court sit together and decide those petitions which are certified by the full court to be of constitutional importance. Nearly 90% of the cases filed in US SC are rejected at the threshold and never heard by the court.

CJI Gogoi, as head of the collegium, would be credited for appointing a record 14 judges to the SC. During his tenure as CJI, the SC twice achieved its full strength—of 31 judges in May this year and again of 34 judges now. With four new judges scheduled to take oath on Monday, the CJI worked out a scheme by which SC would truly discharge its duties as a constitutional court with a permanent fivejudge bench.

There are 37 matters pending for adjudication by Constitution bench. The Ayodhya issue had been gathering dust since 2010 and CJI Gogoi decided to take it up despite the option of keeping pending a case that is termed as most important in judicial and national history. Even during the hearing of the Ayodhya issue, the CJI had to squeeze out an hour daily to ensure that chambers for the new judges got ready prior to them taking oath to ensure that a full strength SC functioned smoothly. With the setting up of a permanent five-judge Constitution bench and five three-judge benches, as many as 20 of 34 benches would be engaged in adjudicating constitutional questions and important matters.

Justice Kureshi case: Govt asserts role in judge appointment

Source: Times of India dated 29.08.2019

(Pradeep Thakur) New Delhi:

Asserting its role in judicial appointments, the Centre has asked the Supreme Court collegium to consider Justice Akil Abdulhamid Kureshi, who has been recommended to be appointed as chief justice of Madhya Pradesh High Court, for some other HC instead.

The law ministry made the suggestion in a letter to the CJI, sources said. The SC collegium had earlier given the government a deadline of August 14 to offer its view on appointing Justice Kureshi as chief justice of Madhya Pradesh High Court.

CJI Ranjan Gogoi said he would place the Centre’s letter before the collegium for a decision. Justice Kureshi is currently a judge of Bombay HC. His parent bench is Gujarat HC where he was first appointed as additional judge in 2004. He will serve as a judge of the HC till 2022.

The SC collegium recommended to the Centre on May 10 to appoint Justice Kureshi as chief justice of MP HC along with three other recommendations for appointment of chief justices in the high courts of Telangana, Himachal Pradesh and Delhi.

The government appointed the other three chief justices as per the recommendations of the collegium, except for Justice Kureshi. While the collegium’s recommendation on Justice Kureshi was pending, the government went ahead and notified appointment of Justice Ravi Shanker Jha as acting chief justice of MP HC on June 10.

After the government withheld the recommendation on Justice Kureshi, the Gujarat HC Bar Association filed a petition in the SC seeking a direction to the Centre to implement the collegium’s resolution. The government told the SC on August 2 that it would take a decision after the Parliament session to which the SC kept the petition pending with a direction to the Centre to make the appointment by August 14.

In his first comments after taking charge of the law ministry on June 3, Ravi Shankar Prasad had said he should not be treated as a post office. The minister’s remarks were in reference to appointments to higher judiciary recommended by the Supreme Court collegium.

An opaque bench

Article in the Indian Express dated January 18, 2019 regarding the Elevation of judges by the Collegium by Ajit Prakash Shah. Link to this article:

http://epaper.indianexpress.com/c/35877699

The collegium system isn’t foolproof

Source: The Hindustan Times dated 16.01.2019

Article by Rajiv Nair (Rajiv Nayar is a senior advocate. The views expressed are personal.)

The supersession of three senior Delhi HC judges exposes a chink in the process of appointment of judges.

The recent decision of the Collegium of the Supreme Court on January 10, 2019, in recommending the names of Justices Dinesh Maheshwari and Sanjiv Khanna to the Court has evoked strong reaction inasmuch as Justice Khanna’s appointment will entail the supersession of Justices Pradeep Nandrajog, Gita Mittal and S Ravindra Bhat of the Delhi High Court. Suppose, for example, we were in the pre-collegium regime, such a decision would have been described as being arbitrary and whimsical because all of the three proposed to be superseded are fine judges and are neither lacking integrity nor judicial competence.

This decision once again exposes a chink in the process of appointment of judges, a process arrogated to itself by the Supreme Court (in the Supreme Court of Advocates on Record case, 1993), where it was laid down that with regard to the appointment of judges, the opinion of the Chief Justice of India (CJI) would not only have primacy but would be determinative in the matter.

The 1993 and 1998 verdicts also gave birth to the collegium system, which comprised of the Chief Justice of India and the senior most four judges of the Court after the CJI.

This is not the first time that the collegium system has inflicted injustice. Justice AP Shah was kept out of the Supreme Court because Justice SH Kapadia was averse to him. Take a more recent example. One of our finest judges, Justice Sanjay Kishan Kaul, suffered the ignominy of not making it to the Supreme Court in time, because he had happened to incur the wrath of Justice TS Thakur, while he was in the Delhi High Court. Several years later, Justice Thakur refused to recommend his name. He made it to the Supreme Court eventually but lost out in being made a Chief Justice of India.

The subjectivity and the inconsistency of the collegium system makes one wonder whether there should be a relook at the process of appointment of judges and the National Judicial Accountability Commission should be re-introduced in some form or the other. Although the NJAC Act, 2014, meant to replace the collegium system of judges, was struck down on October 16, 2015, by a majority of 4 - 1, it may be opportune that the reconstituted Parliament after the upcoming Lok Sabha elections, should bring a legislation so as to bring about a greater transparency and objectivity in the process of appointment of judges. Now take the case in hand. The collegium on December 12, 2018, had apparently recommended the names of Justices Menon and Pradeep Nandrajog to the Supreme Court. The fact that the recommendations were not sent cannot detract from the fact that the proposal to appoint these judges to the Supreme Court had been effectuated. On January 10, 2019, with the departure of Justice Madan B Lokur, (who would have never countenanced any supersession), Justice R Menon, one of the finest chief justices the Delhi High Court has known for a long time, and Justice Nandrajog’s names were recalled by the newly constituted collegium, deeming it appropriate to have a fresh look at the matter allegedly in the light of the additional material that had become available.

What was the additional material that had become available to the collegium justifying the non-appointment of these two judges to the Supreme Court, recommending the appointment of Justice Maheshwari when on October 30, 2018, the collegium itself had overlooked his name? In the past, and certainly under the pre-collegium system, appointments in derogation of the seniority principle would have evoked strong reactions. There were aberrations by the executive but such instances were rare and insignificant. The proposed recommendations are inconsistent with the judicial view of the Supreme Court in the Second Judge’s case, 1993, wherein it had been laid down that:

“Inter-se seniority amongst Judges in their High Court and their combined seniority on all India basis is of admitted significance in the matter of future prospects … It is, therefore, reasonable that this aspect is kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court … this would also lend greater credence to the process of appointment and would avoid any distortion in the seniority between the appointees drawn even from the same High Court.”

Supersession, as a rule, must never be encouraged unless there are grave and compelling circumstances. In the present case, none appear to be so. The government itself had delayed the appointment of justice KM Joseph to the Supreme Court on the ground that there were other judges more senior to him. Justice Maheshwari is ranked 21st and justice Khanna 33rd in the All India Seniority List. It is not as if there is anything against these two judges but why should they not await their turn? Let us see what “sixer” (to borrow the expression of the law minister) the government hits.

Disquiet in section of court over way in which Collegium changed judge choices for SC

Article in the Indian Express dated January 15, 2019 regarding the Elevation of judges by the Collegium by Seema Chishti. Link to this article:

http://epaper.indianexpress.com/c/35808802

How to Choose a Judge

To read an article about How to choose a Judge and the Collegium system in the Indian Express dated 26.12.2013, click on the following link:
http://epaper.indianexpress.com/c/2121635

Judges appointment: Govt to replace existing system

Judges appointment: Govt to replace existing system

Pradeep Thakur TNN

Source: The Times of India dated 27.07.2013

New Delhi: The government is going ahead with the proposed Judicial Appointments Commission (JAC) which will replace the collegium system of appointing judges to high courts and the Supreme Court.
    Sources said the JAC Bill prescribes that the law secretary, who will be the convenor of the commission, will lay procedures to be followed and that would include recording of minutes of the panel’s meetings. In the present collegium system, proceedings are not recorded and no minutes are kept of the discussions.
    The government’s move is important given the recent controversy where Gujarat HC Chief Justice Bhaskar Bhattacharya had alleged that rejection of his candidature for SC was motivated and the then CJI Altamas Kabir had personal reasons to do so.
    There is no record of any discussion on what transpired in the collegium when the candidature of Justice Bhattacharya came up. TOI had earlier reported that the proposed JAC will be headed by the CJI and will include the two seniormost judges of the SC, two jurists and the law minister as members. The government is open to the idea of including the leader of opposition as a member but in that case, the commission will have only one jurist to keep the panel strength at six. 

Conference of Chief Ministers and Chief Justices of HCs this weekend

To read an article about the various legal issues to be discussed in the conference of CMs and CJs of HCs this weekend, go to the following link:
http://epaper.indianexpress.com/c/950167