NEW DELHI: The vice president of India and the chairperson of the rajya sabha mr Jagdeep Dhanker sparked a controversy in his maiden speech at rajya sabha. Dhanker speech once again bought the heat in collegium system vs the govt of india debate .
Let us know about the Collegium system of india which appoints the judges of supreme court and high courts.
Collegium System:
It is the system of appointment and transfer of judges that has evolved through judgments of the SC, and not by an Act of Parliament or by a provision of the Constitution.
Evolution of the System:
First Judges Case (1981):
It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.
Second Judges Case (1993):
SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.
It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.
Third Judges Case (1998):
SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.
l The SC collegium is headed by the CJI and comprises four other senior most judges of the court.
l A HC collegium is led by its Chief Justice and four other senior most judges of that court.
l Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
l Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
l The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
l Intelligence Bureau (IB): It is a reputed and established intelligence agency. It is authoritatively controlled by the Ministry of Home Affairs.
l It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.
JAGDEEP DHANKER MAIDEN SPEECH AT RAJYA SABHA
In his address, Dhankhar said, “Democracy blossoms and flourishes when its three facets – the legislature, the judiciary and the executive – scrupulously adhere to their respective domains”, adding that the doctrine of separation of powers must be respected.
“We are indeed faced with this grim reality of frequent incursions. This House is eminently positioned to take affirmative steps to bring about congeniality among st these wings of governance. I am sure you all will reflect and engage in way forward stance,” the vice president said.
“This House needs to catalyse this wholesome environment to promote synergic functioning of constitutional institutions, emphasising need to respect Laxman Rekha,” he said.
Referring to the 99th Constitutional Amendment Act that entailed the formation of the NJAC, he said the “historic” parliamentary mandate on it was “undone by the Supreme Court on October 16, 2015 by a majority of 4:1 finding the same as not being in consonance with the judicially evolved doctrine of ‘Basic Structure’ of the Constitution”. There was “unprecedented” support for the Bill, he said.
“On August 13, 2014, Lok Sabha unanimously voted in its favour with there being no abstention. This House too, passed it unanimously on August 14, 2014, with one abstention. Rarely in parliamentary democracy, there has been such massive support to a constitutional legislation,” Dhankhar said.
There is no parallel to such a development in democratic history where a duly legitimised constitutional prescription has been judicially undone, he said.
This was a “glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people of which this House and the Lok Sabha are custodians”, the vice president said.
Dhankhar also noted that it is disconcerting that on “such a momentous issue, so vital to democratic fabric, there has been no focus in parliament, now for over seven years”.
“This House, in concert with the Lok Sabha, being the custodian of the ordainment of the people, is duty bound to address the issue, and I am sure it will do so,” he said.
THE NJAC(NATIONAL JUDICIARY APPOINTMENT SYSTEM).
The National Judicial Appointments Commission (NJAC) was a proposed body which would have been responsible for the recruitment, appointment and transfer of judicial officers, legal officers and legal employees under the government of India and in all state governments of India. The commission was established by amending the Constitution of India through the ninety-ninth constitution amendment with the Constitution (Ninety-Ninth Amendment) Act, 2014 or 99th Constitutional Amendment Act-2014 passed by the Lok Sabha on 13 August 2014 and by the Rajya Sabha on 14 August 2014The NJAC would have replaced the collegium system for the appointment of judges as invoked by the Supreme court via judicial fiat by a new system. Along with the Constitution Amendment Act, the National Judicial Appointments Commission Act, 2014, was also passed by the Parliament of India to regulate the functions of the National Judicial Appointments Commission. The NJAC Bill and the Constitutional Amendment Bill, was ratified by 16 of the state legislatures in India, and subsequently assented by the President of India Pranab Mukherjee on 31 December 2014 The NJAC Act and the Constitutional Amendment Act came into force from 13 April 2015.
l As per the amended provisions of the constitution, the Commission would have consisted of the following six persons:
ü Chief Justice of India (Chairperson, ex officio)
ü wo other of senior judges of the Supreme Court next to the Chief Justice of India - ex officio
ü The Union Minister of Law and Justice, ex-officio
ü Two eminent persons
ü These (two) eminent persons would have been nominated by a committee consisting of the
ü Chief Justice of India,
ü Prime Minister of India, and
ü Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes or OBC or minority communities or a woman. The eminent persons shall be nominated for a period of three years and shall not be eligible for re-nomination.
Law Minister Remarks on collegium system
'Collegium system is alien'Rijiju said on November 25 that the current mechanism to appoint Supreme Court and high court judges is “alien” to the constitution. The Supreme Court in its wisdom, through a court ruling, created the collegium, he said, noting that before 1991 all judges were appointed by the government.
Criticism of the collegium system.
1. Opaqueness and a lack of transparency.
2. Scope for nepotism.
3. Embroilment in public controversies.
4. Overlooks several talented junior judges and advocates.
My Opinion on Collegium System:
My opinion is the Judiciary should be independent in appointing of Judges.
The govt must not interfere in the judicial appointments, this can question the independence of the judiciary.
The Collegium system should exist instead of taking new commission NJAC.
If the Govt interfere in Appointments of Judges Then the Judicial pillar of the democracy will be weakened.
Ref : The Collegium system article( Dhristi IAS).
Ref : The NDTV report.