Government Disagrees with SC Verdict Giving Primacy to the CJI

The Centre recently said that the 1993 judgment of the Supreme Court, which led to the creation of the Collegium System for appointment of judges to the higher judiciary, was not correct as it created an empire within an empire.

What has the Attorney General said?

  • The Attorney Genreal representing the centre has said that 1993 majority judgment (Second Judges case) by a nine-judge Bench managed to upset the delicate equilibrium achieved by the Constitution makers by giving the CJI primacy over judicial appointments.
  • He also argued that the Second Judges case and the Presidential Reference of 1998 (popularly called the Third Judges case) effectively made the CJI the final word on judicial appointments.

Arguments regarding the Primacy given to CJI:

  • The AG has said that the nine judge-bench judgment then was based on wrong premises since neither the Constitution nor the Constitution framers ever intended to give primacy to the CJI in appointment of judges or make it a part of basic structure. Collegium was never envisaged under the Constitution. While independence of judiciary forms the basic structure, primacy of the CJI does not.
  • Since the 1993 Judgement needs reconsideration, the A-G said a larger Constitution Bench should hear the batch of petitions challenging the National Judicial Appointments Commission law replacing the Collegium system.

Observations made by the Supreme Court:

  • Calling it a dangerous proposition, the Supreme Court has questioned the government for demanding a reconsideration of its two-decade-old judgments, which had established collegium as the system for appointing judges and gave primacy to the Chief Justice of India.
  • The Bench also said that it would be dangerous to let the Centre seek review of a verdict now and told the AG the real test was going to be whether the new system was better and whether it ensured independence of judiciary.

What is Collegium System:

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.

  • It has no place in the Indian Constitution.

What the Constitution says?

  • Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
  • Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

Evolution of the Collegium System:

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.

  • First Judge Case: The S P Gupta case is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”.
  • Second Judge Case: However, after 12 years in 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The verdict said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter.
  • Third Judge Case: In 1998, President issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 of the Constitution. In reply, the Supreme strongly reinforced the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

Sources: The Hindu, IE, Wiki.

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