CHAPTER -6

JUDICIAL ACCOUNTABILITY & JUDICIAL INDEPENDENCE:

TOUCHSTONE OF INDIAN DEMOCRACY

151

CHAPTER -6

JUDICIAL ACCOUNTABILITY & JUDICIAL INDEPENDENCE: TOUCHSTONE OF INDIAN DEMOCRACY

“The independence of the is therefore not the property of the judiciary, but a commo dity to be held by the judiciary in trust for the public. " Lord Baron Woolf

6.1 Introduction

Judicial independence and Judicial accountability are much debated issues in our country. Independence and accountability in judiciary go hand in hand which are complementary to each other. The idea of judicial independence has no fixed connotation, which has meant different things to different people.155 The concept of judicial independence is not defined in our constitution when the constituent assembly drafted it, but it means freedom from bias or influence, freedom in action or opinion, to act without fear or favor. It is not be understood to mean that independence should be absolute entitling a to act in an arbitrary manner in the manner he or she like. The judicial accountability is best guaranteed by an independent judiciary consisting of with integrity and commitment to the rule of in any democratic country throughout the world.

6.2 Independence of Indian judiciary

Independent judiciary can be said to be one of the cornerstones in the smooth functioning of the democracy. It not only protects the rights and interests of the people, but it also upholds the rule of law thereby protecting the fundamental rights. Cyrus Das is of the view that for the establishment of a strong independent judiciary everywhere in the commonwealth, it is pre-requisite for the rule of law to function and for human rights to be made a reality. 156It may be stated here that independence of judiciary must have effective balance for securing judicial impartiality in the justice delivery system.

Even though the origin of an idea of the independent judiciary is traced to medieval England, but the independence of judiciary is a gift given by the Indian Constitution to us which has been engrafted in the Constitution. It is to be seen that the Constitution has given protection to the judges against unwarranted criticism by the legislature except on a motion for removal from office. Although both of them are vital for observance of the rule of law, but sometimes their arises a conflict between them. Whenever there are allegations of misconduct against any judge, in that situation, there will be hue and cry for initiating action against the erring judge as in case of other organs of State or authority.

155 Sharma B.R “Judiciary on Trial:Appointment,Transfer,Accountability”at 111 Deep &Deep Publications New Delhi 156 Dr Cyrus Das in his opening address in a workshop on Independent Judiciary Universal Publishers at p 7 152

Judicial independence is not for protecting a judge from investigation and censure for a valid charge. No judge can be immune from the demands of justice for indulging in any type of misdeeds.157

It is important to note that the independence of the judiciary has been well recognized as a universal human right. Every person is entitled to equality for a fair and public hearing by an independent and impartial tribunal.158 As stated in the principles of independence of judiciary 1995 signed by thirty- four Chief Justices of Asia and the Pacific, judicial independence mandates that the judiciary shall decide cases strictly in accordance with impartial assessment of facts without improper influences from any source 159

Judicial independence ensues that neither no one is above law nor any one is below the law. As Lord Acton stated that power tends to corrupt and absolute power corrupts absolutely.160 To restrain unwarranted exercise of power, judges are required to be beyond the reach of those persons or authority who may transfer or remove them due to their lawful verdicts and ,there-fore, the requirement for judicial independence is not for judges or the judiciary per se, but for the people in a democracy. A great famous french philosopher namely Montesquieu had first of all gave us the idea regarding the independence of judiciary. He was strong believer in the theory of separation of powers of the three organs of the State i.e Legislature, Executive and Judiciary. He was of the view that judiciary which is neither having control over the purse nor having the sword is the weakest organ of the State. and there-fore, it can be strengthened by according complete independence in the justice delivery system. It is known fact that judicial independence is one of the main building blocks of the rule of law. Needless to say that there are three main features of an independent judiciary: They are: "Firstly, it is impartial uninfluenced by any person or authority. The verdicts are never by a judge's own personal interest in the outcome of a case Secondly, verdicts are always respected by all in the society. Thirdly ; the judiciary is free from interference in the discharge of its judicial functions. The Constitution had upheld the basic feature of federalism when it gave to the judiciary one of the most important characteristic i.e.- its independence from other organs of State. Dr. B.R. Ambedkar expressed his concern by way of uttering the following words regarding judiciary:

"There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent in itself. And the question is how these two objects can be secured".161

157 Das Cyrus and Chandra K,”Judges and Judicial Accountability” at 90 Universal Publishers Delhi 158 Universal Declaration of Human Rights, G.A res 217 Article 10 159 Principles of Independence of Judiciary originally adopted in Beijing China in the year 1995 160 Barrat”s Familiar Quotations 521:5 161 Constitutional Assembly Debates 153

The members of the Constituent Assembly were not only great visionaries but also architects of consummate skill and fidelity. They created a document which reflected an acute awareness on their part that it was incumbent to entrench the concept of rule of law into the Indian polity, given the possibility of conflicts of interests arising amongst various sections in a free developing society. Thus, judiciary in enjoys a very significant position since it has been made the guardian and custodian of the Constitution. 162

The main theme of this chapter relates to judicial independence and judicial accountability and thus, the ideal method is to analyse the role of a judge which is adjudicate the cases pending or which may be filed before him. So far as their work of judging is concerned, it is somewhat not easy task, but it is very essential so as to view the attempts to dress up the political in legal garb and to place them before the court. Some persons are of the view that the judges are too active in their work while others say that the judges are too self-restrained. It may be pointed out here that a judge must always look for the accepted values of the society. He must be capable to look at himself from outside for analyzing, criticizing and controlling himself. If a Judge thinks that he knows all and that his each and every opinion is right and proper and in a manner what is needed in a society. As the Judges are considered to be a part and parcel of a society, they should be influenced by it. It may be true that the judges sometimes stays in an Ivory tower, but he is nonetheless a contemporary creature.163

The corruption within the judiciary is not a small issue. It grows horizontally and vertically. There is no specific forum to submit complaints against the corrupt judges. The police cannot register an FIR against a judge on the charges of corruption without the CJI's permission. Indian judiciary is enjoying highest amount of independence but it is held least accountable. It does not mean that judiciary can be allowed to be an imperium in imperio. 'Be you ever so high, law is above you', so in case of any erosion of values in judiciary, law must come down heavily. Judges should be held accountable since depletion of values in judiciary is far more deplorable.164The independence and impartiality of the judiciary is one of the hallmarks of the democracy because an impartial and independent judiciary can only protect the rights of the citizens.Not only this, it can provide equal timely speedy justice without fear or favour to any person. It is only due to this reason that the Constitution made a provision under Article 50 intending thereby to achieve an independent judiciary free from all outside pressures. Giving of unfettered discretion to the executive to decide the philosophy of the judges is to make the judiciary subservient to the executive. Independent judiciary is a tributary of the doctrine of separation of powers for cooperation as well as co-ordination in particular amongst and between the organs of the government. But a realization is getting dawned on

162 Union of India Vs Sankalchand Himatlal Sheth AIR 1977 SC 2328 163 J.K.GBalakrishan “Judicial Accountability” Journal of Indian Legal Thought Vol 5 at 10 164 Harsawardhan “Judicial Accountability and Judges Enquiry Bill 2006 A.I.R 2008 Journal/4/iv 154 the legal luminaries, legal eagles and the people in general that, all is not well with the higher judiciary of India.165

The judiciary needs to be independent of outside influence, particularly of political and economic entities such as government agencies or industry associations. But judicial independence does not mean that judges and court officials should have free rein to behave as they please. Indeed, judicial independence is founded on public trust and, to maintain it, judges must uphold the highest standards of integrity and be held accountable to them. Where judges or court personnel are suspected of breaching the public's trust, fair measures must be in place to detect, investigate and sanction corrupt practices.166The existence of an independent judiciary can be said to be the bulwark of governance. In a host of other rulings, the need for an independent judiciary free from the interference of unwarranted political processes has been advocated as the sine qua non of a democratic society.167

The confidence in the court depends on the fact that judges in their personal life as well as while on the bench, must, like, Caesar's wife, be above board.168 But any power derived from the constitution is necessarily be accountable. Jerome frank had insisted that every democratic institution (judiciary being one) must be transparent and accountable. The idea of judicial independence shares an inextricable relationship with judicial ethics of which accountability is one of the dimensions. It is often thought that the two are antithetical to each other and; hence, one cannot exist in the presence of the other. But as we have already discussed that accountability is a facet of judicial independence ,it cannot be viewed to have a separate existence because it is only in an accountable judiciary that the faith of the common people still exists in this institution Lord Woolf, the Chief Justice of England and Wales, in a recent article, said: "The independence of the judiciary is therefore not the property of the judiciary, but a commodity to be held by the judiciary in trust for the public.”

Independence of judiciary does not means independence in accountability from an outside body. It can be made accountable to a national judicial commission having vigilance powers against the judges. There is no reason as to why judiciary cannot be made accountable to such a body . Judicial independence is always in discordance with the judicial accountability. It relies upon the public approval of the judiciary as a just and clean institution free from corruption in any manner. It should diligently structure its enquiries for the purposes of reassuring its faith in public at large. Thus, an ethical stronghold and might of character alone can nurture judicial accountability and therefore judicial accountability is a facet of the independence of the judiciary; and the mechanism to enforce judicial accountability must also preserve the independence of the judiciary.

165 Harnish R Gadhia”Judicial Accountability-“Revisioning the Role of Judiciary” A.I.R March 2009 166 ”The Economist.Uncompromising globel perspective”.www.economist.com 167 S.P.Gupta Vs Union of India A.I.R 1982 S.C 149 14Bharat Co-op Bank Vs Employees Union (2007)4SCC 685

155

The Supreme Court in S.P Gupta v. Union of India 169 had held that - "the concept of independence of the judiciary is a notable concept which inspires the constitutional scheme and constitutes the foundation on which the edifice of our democratic polity rests. If there is one principle which runs through the entire fabric of Constitution, it is the principle of the rule of law under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of the law thereby making the rule of law meaningful and effective.” Sornnath Chartterjee, the former speaker of in Justice Ramswami case at one time said, "We hold the judiciary in high esteem.... Judges are assumed to be men of honesty and integrity and they discharge their duties and functions with a sense of fairness and independence without fear or favour ". So, Judges are expected to show highest form of standards in their conduct. But it is an undoubted fact in India that corruption has infected the Indian Judiciary also. Corruption brings disrepute to the institution of judiciary, reduces public confidence in courts, leads also to unpredictability of judicial decisions and undermines effectiveness of the institution. This in fact strengthens the importance of judicial accountability.170 Nowhere in the world is the Supreme Court as powerful as in India. The powers of courts in England to interpret law is not without limitations unlike the higher courts in India. The judges of U. S Supreme Court are appointed by Senate after nomination by the executive. In India, on the other hand, judges appoint other judges.171 A legal miscarriage of justice may be set right ,a moral miscarriage of justice can never be. What is morally wrong cannot be legally right.172 King Luthar has rightly said, "Morality cannot be legislated but behaviours can be regulated. 173Everyone must act according to Dharama (under concept of Rule of Law) to ensure human rights to all and for largest good of masses. "Dharma protects those who protect it, those who destroy dharma got destroyed. 174Specially the justice imparting agency should come out of all suspicions of impropriety and corruption besides brilliance and politeness. They must have one standard of honesty, justice, integrity and uprightness to remain trustworthy. 175Those who preach justice must do justice. Justice, must not only be done, it must appear to have been done. If judiciary wishes to retain public trust, it will have to devise some solutions to this vexed issue / to take

169 1982(2)SCC831 170 Harsawardhan “Judicial Accountability and Judges Enquiry Bill 2006” A.I.R 2008 Journal/4/iv 171 Parliament is not subordinate to Judiciary ;The Sunday Review Delhi Oct 27,1996 at p2 Col 7 172 Why not a code of conduct for judiciary as well.Legal News and views Vol 9 No 5 May 1995 173 The Times of India New Delhi May 11,1995 at p 10 174 Manu VIII-15 175 Also see speech delivered by CJI to judges and lawyers Dainik Bhasker Jan 17,2005 at 11 156 effective action against errant judges. The conduct of the judges should be free from impropriety, fearless of other power centers - economic or political as well as free from class bias. To protect the independence of judiciary, accountability of judges shall have to be ensured.176

6.3 The Precarious Balance Between Judicial Accountability and Excessive Independence

6.3.1. Establishment of Appointment Mechanism For Judges

David Kairys says:"The judiciary is a non-majority institution whose guiding lights are appointed rather than elected and, even when elected are not expected to express or implement the will of the people." The constituent assembly set out to make the provisions under which the judiciary shall function. The Judicial process was one of the most debated issue before the constituent assembly. Though it seemed to be a basic discussion on routine administration177 , it was done to prevent the court from being subject to external influence like influence of politics. The judges were the most important part of functioning of the judiciary and thus the appointment of these judges was of great importance. It is only due to this reason that all the arguments which took place during establishment of legal system were with respect to the appointment process of judges which is still going on in our country ever since we adopted the constitution.

6.3.2. Proposals for Appointment

It is pertinent to mention here that during the debates of the constituent assembly, three different proposals were formulated and made for the process of appointment of judges.178They are as under:

1. "Appointment of judges be made with the concurrence of .

2. Appointment be made by the which should be subject to confirmation of two-thirds majority by the parliament.

3. Judges should be appointed in consultation with the Council of States.

176 P.S.Lathwal “Good governance vis-a-vis Judicial Activism MDU Law Journal Vol 10 Part 1 2005 at 154 177 Glanville Austin,The Indian Constitution:Cornerstone of a Nation at 176 178 Constituent Assembly Debates Vol 8 at 258 157

The first proposal discussed by constituent assembly involved complete independence with the entire power of appointment vesting in the hands of a single person i.e the Chief Justice of India. The second proposal considered the involvement of both the Executive and the Legislature while the third proposal vested the powers in the hands of the only. Each suggestion was having its own merits and de-merits.

The Constituent assembly formed the unanimous opinion that the President of India must be involved who shall appoint the judges of the High Courts and Supreme Court. The Constituent assembly did not want to confer the entire powers in the hands of the executive on the ground that it would create the possibility of appointment being made on a political basis.179 Dr. B.R. Ambedkar remarked that: "It would be dangerous to leave appointments to be made by the President without any kind of reservation or limitation. Similarly, it seems to me that to make every appointment which the executive wishes to make subject to concurrence of Legislature is not a very suitable provision. Apart from its being cumbrous, it also involves the possibility of appointment being influenced by political pressure and political consideration.180The Constituent Assembly did not deem it proper to give sole power to the Chief Justice because it would give rise to possibility that external influence and prejudices would interfere notwithstanding his eminence.181 With regard to this, Dr. B.R. Ambedkar said:-

"With regard to the question of the concurrence of Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that that is also a dangerous preposition. The Constituent Assembly therefore adopted a system under which The President appoints the judges after consultation with people who are well qualified to give proper advice in matters

179 D.D.Basu 8th Ed at 5577 180 Supra note 30

158 of appointments. lt also does not import the influence of legislature which the Assembly thought was sufficient for the moment. Thus, the Assembly drafted the Procedure for appointment of judges which is present in the Constitution of India.182

6.3.3. Union Judiciary

Art. 124(2) provides that : "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.

6.3.4. State judiciary

Art 217 provides that: "Every Judge of a shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court.”

6.4. Effect of First, Second and Third Judges Cases

6.4.1. First Judges Case

'S.P.Gupta v. Union of India'183 popularly known as First judges case is a significant pronouncement of the Apex Court which conferred over-riding powers upon the executive in the matters of appointing judges to the Supreme Court as well as High Courts in the country. The Apex court in this case examined and answered the interpretation as to what does the word 'consultation' mean for appointment of judges? The Apex Court placed reliance upon the interpretation given by it in the famous case titled Union of India Vs. Sankalchand.184 and held that the word 'consult' denotes a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct or at-least a satisfactory solution and thus the President must present information he possesses and course of action he wishes to take to the Chief Justice of India who in turn gathers data and in the interests of administrative justice gives the course of action he believes will be the most

182 Id at 259 183 A.I.R 1982 S.C 149 184 A.I.R 1982 S.C 149 159 efficient. It also re-stated the judgment given in Sakalchand's case. "Consultation is different from consentaneity. They may discuss the matter after which they may disagree. They may confer, but may not concur." The Apex Court further observed as to who has the final voice in the appointment of Judges of High Courts and the Supreme Court? It gave the interpretations which were completely based on the constitutional provisions i.e Art. 124 and Art. 217 and held that a plain reading of the respective articles shows that the final voice in the process of appointment of judges rested with the President, that is, the executive. The President may consult the judges, governor and chief justices of the high court as the central government may deem it necessary to consult, but it is only consultative role and the opinions offered would not be binding on the President and thus what if there is a difference of opinion between them? The Apex Court in answering this question said that the central government can override the opinion given by the constitutional functionaries required to be consulted and arrive at its own decision in regard to the appointment of a judge in the high court or the supreme court as long as such decision is based on relevant considerations and is not otherwise mala fide. It was further stated that the court did not think that the central government would proceed with the appointment of the judges if the constitutional functionaries have expressed opinions against the appointment in such a situation.

It was argued on behalf of the petitioners that whenever there is difference of opinion amongst the constitutional functionaries required to be consulted, the opinion of the Chief Justice of India should have primacy, but the Court refused to accept this argument on the grounds that the same issue had come up for discussion during the constituent assembly debates which had decided against this when constitution was enacted by our fore-fathers. One more clarification was sought regarding the 'primacy' of the opinions in the process of appointment of high court judges as there was no express declaration as to whose opinion would be taken into consideration in case of conflicting opinions during appointment process. The Apex Court answered this question by saying that no primacy can be attached to any of the consulates as they are all constitutional functionaries and there is no distinction between the functionaries. It was held that if primacy is to be given to the opinion of the Chief Justice of India, it would amount to concurrence because giving primacy would mean that his opinion must prevail over that of the chief justice of the high court and the governor of the state which means that the central government must accept his opinion. It is clear that the apex court gave the executive complete powers in the matter of appointment of judges and

160 the opinions expressed by the judiciary were made irrelevant, but this established process was changed again after the Second Judges case.

6.4.2. Second Judges Case

The Apex Court decision rendered in the First Judges Case did not solve the crucial issues about the appointment of judges which did not mark the end of controversies and ,there-fore, in case titled 'Subhash Sharma v. Union of India185 the judges took the view that a larger bench should consider the correctness of the decision given in 'S.P.Gupta v. Union of India' 186and ,there-fore, this case i.e S.C.Advocates-on-Record Association v. Union of India'187 was filed in which the judgment was summarized in the following manner :

1. "The process of appointment of judges to the Supreme Court and the High Courts is an integrated 'participatory consultative process' for selecting the best most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub- serving the constitutional purpose so that the occasion of primacy does not arise.

2. Initiation of the proposal for appointment in the case of the Supreme Court must be by the Chief Justice of India, and in the case of a High Court by the Chief Justice of that High Court; This is the manner in which proposals for appointments to the Supreme Court and the High Courts must invariably be made.

3. In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India and formed in the manner indicated has primacy

4. No appointment of any judge to the Supreme Court or any High Court can be made unless it is in conformity with the opinion of the Chief Justice of India.

5. In exceptional cases alone, for stated strong cogent reasons disclosed to the Chief Justice of India indicating that the recommended is not suitable for appointment that appointment recommended by the chief justice of India may not be made. However, if

31.1991Supp(1)SCC574 186 AIR1982SC149 187 (1993)4SCC441 161

the stated reasons are not accepted by the Chief Justice of India and the other judges of the Supreme Court who have been consulted in the matter on reiteration of the recommendation by the Chief Justice of India the appointment should be made as a healthy convention.

6. Appointment to the office of the Chief Justice of India should be of the senior most Judge of the Supreme Court considered fit to hold the office.

A new system called 'Collegium' for appointment of judges was evolved in this case. The opinion of the Chief Justice was made binding and for the formation of the opinion the Chief Justice may also ascertain the views of the two senior-most judges. However, if the opinions expressed by the senior-most judges is against the course of action suggested by the Chief Justice and is accepted by the President, then that person cannot be appointed. Similarly, in the case of appointment of Judges to the High Court, the opinion of the Chief Justice of the High Court conflicts the appointment suggested by the Chief Justice of India, the appointment would not take place. This new system evolved by the judiciary itself transferred the power of appointments to the judiciary which was popularly called a system where the judges appoint judges themselves. The President could not appoint any judge in the Supreme Court unless it was in conformity with the final opinion of the Chief Justice of India. This system created complete judicial independence in making the appointments.

6.4.3. Third Judges Case

The Apex Court judgment delivered in ‘S.P.Gupta v. Union of India' "188 was still not clear and ,there-fore, further clarification was sought by way of reference made by the President of India after which it was held that the Chief Justice of India should consult a collegium of four senior-most Judges of the Supreme Court before he puts forth his opinion. However, with respect to appointments of High Court Judges, the Chief Justice of India was required to consult only two senior-most judges. The consultation process required “consultation of plurality of judges” The sole opinion of the CJI does not constitute consultation process. It was further held that the decision of the collegium should be in consensus with the decision of Chief Justice of India failing which no recommendation is to be made. The majority decision of collegium would be taken into account, but if even two judges express strong views against appointment, then CJI would not press for appointment and all views were

188 AIR1982SC149 162 supposed to be obtained in writing. Apart from these clarifications, a new provision was made and it was held that a High Court Judge can be appointed as a Supreme Court Judge because of outstanding merit regardless of seniority. 189 The collegium appointment process evolved by the judiciary itself has totally failed because it is secretive meaning thereby that no information about a judges conduct or performance as perceived by the collegiums is ever given to the public at large before his name is recommended for appointment. The main reason for creation of this system was to appoint honest and persons with integrity so as to prevent corruption in the higher judiciary, but it had completely failed. It is a known fact that persons having political or judicial affiliations who are corrupt are still recommended for appointment. One can think that appointment of judges by the executive may have created some problems, but appointment of judges by the judges themselves further aggravated these problems which has shaken the faith of a common person these days. The judiciary must be held accountable to the public for all their actions in the justice delivery system. The judges must be appointed within public domain. Major changes in the process of appointing judges should be brought out for the making the judicial system more independent, transparent and accountable.

6.5. Separation of Powers

6.5.1. Meaning of Separation of Powers

Baron de Montesquieu was a French political philosopher who invented the phrase “separation of powers” in his 1748 treatise “The Spirit of the ”. Montesquieu in the treatise discussed about how the political power could be divided up amongst three different branches of a legislative body, to create a government that was not headed up by a single monarch or ruler. The Separation of Powers is a model to govern the democratic states. There are three branches of the government, i.e. the legislative, the executive and the judiciary, have separate activities through which the “will” of the people are stated. The function of the legislature is to make laws, the executive must enforce them and the judiciary applies them in particular cases cropping up from the breach of law. Therefore, this model is also called as “Trias Politica”, which means “separation of duties”.

The supporters of the separation of powers considers that it “protects democracy and forestalls tyranny”. However, there are overlap of powers in a parliamentary form of

189 In re:Presidential reference AIR1999SC1 163 democracy. Doctrine of Separation of Powers is similar to any other system which has both merits and demerits. Thus, there is no democracy across the world with absolute separation of powers or fully devoid of it. According to Brajeshwar Prasad190, “This doctrine (of separation of powers) has got not only relevance to the question of separation of judiciary from the legislature and the executive, it has got a vital bearing upon the whole question of federalism".

According to Lord Acton, “Power corrupts, and absolute power corrupts absolutely." Separation of power is a means of controlling the power in the hands of any group or party, thus preventing it from misuse. “The premise behind the separation of powers is that when a single person or group has a large amount of power, they can become dangerous to citizens.”191 Thus, Separation of powers sets the limit of the unlimited exercise of power by the branches of government. This doctrine checks the corruption and any illegal activity against public interest whom the government has promised to serve. Each organ while performing its activities often interferes in the working of another organ because a rigid line of separation is not always possible. Thus, there tends to be overlapping of functions when working within their domain of power. Each organ imposes ‘checks and balances’ on the other.

6.5.2. History

The history of jurisprudence shows that a few scholars gave the idea of separation of powers indirectly, but they were unable to elaborate the concept in the manner as done by Montesquieu. Though Aristotle mentioned about the three organs of State , yet he was unable to explain their relations inter-se . A Roman writer Cicero went on to praise the Roman Constitution to a great extent followed by another writer namely Polybius. The adoption of the principles of checks and balances was the main reason for the success of the said constitution. During glorious revolution, a few leaders expressed the view that the power to enact legislation and then to implement or execute the same must not be given in the hand of one organ of State so as to avoid the despotic and arbitrary rule in the society. John Locke in his book titled “Civil Government “ emphasized about the need to keep legislature and executive separate in the exercise of powers by them. Similarly , Montesquieu had also remarked that “Whenever and wherever the two powers i.e legislative and executive are entrusted to one person, in that situation liberty would not be there as apprehension would

190 Shri Brajeshwar Prasad, was an MP 191 Available at: http://www.importanceofphilosophy.com/Politics_SeparationPower.html 164 arise in the minds of the people that the said person or monarch or senate would make tyrannical laws for execution in an unwarranted manner .Similarly, if the judiciary is not separated from legislature and executive ,there will be no liberty for the masses.

6.5.3. Separation of Power in India

Indian Constitution is similar to the American Constitution, where the executive power of the Union and the State is vested in the President and the Governor192, but there is no corresponding provision vesting the legislative and judicial powers in an organ. Therefore, there is no strict separation of powers. Apparently, the Constitution is based on the doctrine of separation of powers. Judiciary is independent and there is no interference by the executive or the legislature in the judicial functions. The Constitution does not allow any discussion on the behavior of the judges in the parliament. The High Courts and the Supreme Court have the power of judicial review and so they can declare any law after review as unconstitutional passed by parliament. Article 50 of the Constitution puts an obligation on the state to separate the judiciary from the executive, but, since it is a of state policy, it was unenforceable.

Certain constitutional provisions provide powers, privileges, and immunities to the MPs, like immunity from judicial scrutiny into the proceedings of the house, etc. Such provisions make legislature independent. The Constitution provides conferment of executive power on the President. His powers and functions are described in details in the Constitution. The President and the Governor enjoy immunity from civil and criminal liabilities.

In India, the doctrine of separation of powers has not been accepted in a strict form. The executive is a part of the legislature. Therefore, they are responsible to the legislature for the actions and derives authority from the legislature. Since, India, has a parliamentary form of government, it is closely related to the legislature and the executive. The executive power bestows on the President who is only a formal head but, the actual head is the Prime minister along with his cabinet. The executive head must work in line with the support and guidance given by the cabinet193. The legislature is the source of legislative power, but, during certain circumstances President is authorized to exercise legislative functions. For example, issuing an ordinance, framing rules and regulations related to public affair, formulation of law while declaring an emergency etc. President often performs judicial functions, but under certain

192 Articles 53(1) and 154(1) 193Art. 74(1) of the Constitution 165 circumstances parliament exercises judicial functions too. It can decide on the violation of its privileges, and during impeachment both the houses take active participation and decide the allegations. Judiciary too can exercise administrative power when it supervises the subordinate courts. It has legislative powers which is exercised in formulating rules and regulating their procedures for the conduct and disposal of cases So, it is obvious from the constitutional provisions that being a parliamentary democracy, it does not always follow an absolute separation. Rather it is based on fusion of powers, where close coordination amongst the principal organs is not possible and the constitution itself describes it. Thus, the doctrine has not been given a constitutional status. Every organ of the government must perform all the three functions. Each organ, in some or the other way is dependent on another organ which checks and balances it. The cause of the interdependence is mainly due to parliamentary form of government followed, but this does not mean that the doctrine is absent in India.

Except in cases, the Constitution has vested power in a body and the principle that one organ should not perform functions which only belongs to other is followed. The Supreme Court in the Delhi Laws Act case made this observation, where a majority of 5:2 held that the separation of powers was not part and parcel of the Constitution. Except in cases like Art. 123, Art. 357, it is obvious that the Legislature shall exclusively exercise the powers of legislation. As Kania, C.J., observed: “Although in the constitution of India there is no express separation of powers, it is clear that a legislature is created by the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-are not intended to discharge legislative functions?”.

In India, a separation of functions is followed instead of separation of powers. Hence, it is not so rigid. An example is, in the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions. Article 74(1) provides an advantage over the executive by making their support and guidance compulsory for the formal head. The executive, derived from the legislature is dependent on it for legitimacy. The Supreme Court observed this in “Ram Jawaya v. State of Punjab194”. The Supreme Court. in “Kesavanandan Bharati” case held that amending power is the basic features of the Constitution. Hence, any amendment tampering these key features would be termed as unconstitutional. J. Beg added that separation of powers is the basic structure of the Constitution. This feature cannot be

194AIR 1955 SC 549, 1955 2 SCR 225 166 changed by resorting to Art. 368 of the Constitution. There were several attempts made by the legislature to dilute the principle, to the level of usurpation of judicial power.

Supreme Court could apply to the Kesavananda rule regarding the non-amendment ability features of the Constitution and adhere to the doctrine of separation of powers. In “Indira Gandhi v. Raj Narain195”, where the dispute regarding Prime Minister election was pending in the S.C, held that adjudication of disputes is a judicial function and parliament cannot exercise it, even after constitutional amending power. The amendment was held “ultra-vires” and that the constituent body declared the election of Prime Minister will not be void. It discharged a judicial function according to the principle of separation which it should not have done.

In India, strict separation of powers like U.S.A is not followed but, the principle of ‘checks and balances’, is a part of the doctrine. None of the three organs can usurp the essential functions of the organs, which is the “basic structure” by not even amending the constitution and if any such amendment is made, the court will term it as unconstitutional.

In India, the doctrine of separation of powers has not been accorded a constitutional status. Aside from the directive standard set down in Article 50196, which enjoins separation of judiciary from the executive, the constitutional plan does not represent any formalistic and dogmatic separation of powers197. As a general arrangement, parliament is given powers to make the law for the union. The executive is given duty of execution of laws and the judiciary is given the powers to interpret the laws under the Constitution of India

There have been a few historic judgements that have changed the face of the doctrine of separation of powers in India. The main legitimacy of the doctrine of separation of powers is in the sense that one organ ought not accept the basic functions of the other. This was the viewpoint of the Supreme Court in “Ram Jawaya Kapur v. State of Punjab198”. It was held that the Constitution has not perceived the precept of separation of powers in its supreme rigidity, however the functions of the diverse parts or branches of the government have separated and thus it is said that the Constitution does not consider assumption, by one organ

1951975 AIR 2299 196Article 50 puts an obligation over the state to separate the judiciary from the executive. However, Article 50 falls under the Directive Principles of State policy (DPSP) and hence is not enforceable. 197Massey I.P, “Administrative Law”, Eastern Book Company, Lucknow, 2012, p 40. 198AIR 1955 SC 549 167 or part of the State, of functions that belongs to another199. After the “Kesavananda Bharti v. State of Kerala200”, and the judicial articulation of the principle of fundamental and basic structure of the Constitution, the separation of powers is spoken as a structural basis of the constitutional system and cannot be destroyed by any amendment201. The doctrine puts less emphasis on organizational pattern, and looks to impact the progressively functional division. In Delhi Laws Act case202, Justice, H.J. Kania203, noted that although in the Constitution, there is no express separation of power, , it is clear that a legislature is created by the Constitution and detailed provisions made a legislature pass laws204.

Accordingly, the functions of various organs are clearly earmarked with the goal that one organ does not usurp the functions of another. In Indira Nehru Gandhi v. Raj Narain, Ray CJ.205, noted that in the Indian Constitution, there is separation of power in the broad sense only. Justice Beg206, stated that basic structure also embodies the separation of power principle and none of the supports of the Indian Republic can take over the other functions, even under Article 368. Justice Chandrachud207, held that this doctrine is helpful as a method of checks and balances in a political set up. For instance, the judiciary should shy away from the politics of the parliament and the latter should revere the decision of the Courts208. On an informal glance at the provisions of the Constitution of India, one might be leaning to say that the doctrine of broad division of the power of the state has been acknowledged under the Constitution of India. In “Golaknath v. State of Punjab209”, Chief Justice Subba Rao210 stated that the Constitution brings existence different constitutional entities, like, the Union, the States, and the Union Territories. It makes three noteworthy instruments of power, specifically, the Legislature, the Executive and the Judiciary. It differentiates their jurisdiction and expects that it will carry out respective powers without overstepping their limits. They should function within the circles assigned to them. In “Bandhuva Mukti Morcha v. Union of India211”, Justice Pathak212, stated that the Constitution envisages a wide division of the

199Supra note 5, p 40. 200AIR 1973 SC 1461 201Supra note 3, p 20. 202AIR 1951 SC 332 203Justice Sir Harilal Jekisundas Kania was the first Chief justice of India 204Jain M.P & S. N Jain, “Principles of Administrative Law”, Wadhwa & Company, Nagpur, 2007, p26. 205AIR 1975 SC 2299 206Mirza Hameedullah Beg was the 15th Chief Justice of India. 207Dhananjaya Yeshwant Chandrachud is the present sitting judge of the Supreme Court. 208Kesari U.P.D, “Lectures on Administrative Law”, Central Law Publications, Allahabad, 2005, pp 23,24. 209AIR 1967 SC 1643 210Koka Subba Rao was the ninth Chief Justice of India 211AIR 1984 SC 802 168 power of the State between the legislature, the executive and the judiciary. Although the division is not definitely demarcated, there is general acknowledgment of its limits. The limit is gathered from the written text of the Constitution, from conventions and constitutional practice, and from a whole array of judicial decisions213.

Fundamental functions were characterized in “Mallikarjuna v. State of Andhra Pradesh214”, when the Andhra Pradesh Administrative Tribunal directed the State Government to evolve appropriate and sound technique of determination of seniority among the veterinary surgeons in the matters of promotions to the next higher rank of Assistant Director of Veterinary Surgeons. The Supreme Court quashed the previously direction and observed that the power of the Constitution to frame rules is the legislative power which must be practiced by the President or the Governor of the State215. The High Court or Administrative Tribunals cannot issue an order to the State Government to legislate on any matter. Along with these lines the principle of restriction keeps any organ of the State from getting better than others. Similarly, in “Supreme Court Employees' Welfare Association v. Union of India216”, it was held that no court can issue a direction to the legislature to enact a specific law, neither it can direct an executive authority to enact a law which it has been empowered to do under the delegated legislative authority217.

It is submitted that absolute separation of powers between the three organs of the State is not well justified because it is neither possible nor practicable in good governance in any country. If we make endeavour for absolute separation of powers, in that situation, many obstacles will be there which will come in the way of the government, whose working will be adversely effected. Though Montesquieu was in favour of separation of powers. but not absolutely. He simply wanted to put some restrictions upon the unfettered powers of the king at that time as the French king Louis XIV had assumed very vast powers in his hands during his time. Likewise, Blackstone was also of the firm view that absolute separation of powers is as much dangerous as its concentration in one hand. Taking this view of the matter, it can be concluded that absolute separation of powers is not good which is not practicable in any

212Raghunandan Swarup Pathak was the 18th Chief Justice of India. He was the son of Gopal Swarup Pathak, former . 213Upadhaya J.J.R, “Administrative Law”, Central Law Agency, Allahabad, 2006, p 40. 214AIR 1990 SC 1251 215Article 309 of the Indian Constitution, 1949 216AIR 1990 SC 334 217 ibid, p 42. 169 country. Thus the principles of separation of powers had not been adopted in India but the functions of the three organs of State have been separated by the Constitution.

6.6 Functional Overlap

• The legislature other than exercising law-making powers, it exercises judicial powers in cases of breach of its privilege, impeachment of the President and the removal of the judges.

• The executive may additionally influence the functioning of the judiciary by making appointments to the office of Chief Justice and other judges.

• Legislature exercising judicial powers in the case of amending a law declared ultra vires by the Court and revalidating it.

• While discharging the function of disqualifying its members and impeachment of the judges, the legislature discharges the functions of the judiciary.

• The legislature can penalize for for exceeding freedom of speech in the Parliament; this falls under the powers and functions of the Parliament. While practicing such power it is fundamental that that it should be in conformity with due process.

• The heads of each governmental ministry is an associate of the legislature, in this manner, making the executive an important part of the legislature.

• The council of ministers on whose guidance the President and the Governor acts are elected members of the legislature.

• Legislative power that is being vested with the legislature in specific conditions can be practiced by the executive. If the President or the Governor, when the legislature is not in session satisfied that conditions exist that require immediate action, may promulgate an ordinance which has the similar force of the Act made by the Parliament or the State legislature.

• The Constitution permits, the Legislature at the Centre and in the States, the authority to make rules for regulating their respective process and conduct of business subject to the

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provisions of the Constitution. The executive additionally exercises law making power under a designated legislation218.

• The tribunals and other quasi-judicial bodies which are a part of the executive also discharge judicial functions. Administrative tribunals which are a part of the executive also discharge judicial functions.

• Higher administrative tribunals must have a member of the judiciary. The higher judiciary is deliberated with the power of supervising the working of subordinate courts. It also acts as a legislature while making laws regulating its conduct and rules with respect to disposal of cases.219.

Other than the functional overlapping, the Indian system likewise does not have the separation of personnel among the three departments. Applying the doctrines of constitutional limitation and trust in the Indian situation, a framework is made where none of the organs can usurp the functions or powers which are allotted to another organ by express or necessary arrangement, neither would they be able to divest themselves of basic functions which have a place with them as under the Constitution. Further, the Constitution of India explicitly provides a system of checks and balances to keep the arbitrary or capricious utilization of power got from the said supreme document220. Despite the fact that such a framework seems dilatory of the tenet of partition of the doctrine of separation of powers, it is fundamental so as to empower the fair and equitable functioning of such a constitutional framework. By giving such powers, a system for the control over the activity of the constitutional powers of the individual organs is built up. This plainly demonstrates the Indian Constitution in its arrangement does not provide a strict separation of powers. Rather, it makes a framework comprising of the three organs of Government and gives upon them both exclusive and overlapping powers and functions. Along these lines, there is no absolute separation of functions between the three organs of Government221”

218Article 118 and Article 208 of the Indian Constitution 219Doctrine of separation of powers in India, 22nd September 2017, http://www.civilsdaily.com/blog/doctrine-of- separation-of-powers-in-india/ 220Indian Constitutional Law and Philosophy,2017: Available at: https://indconlawphil.wordpress.com/tag/separation-of-powers/ 221Indian Constitutional Law and Philosophy,2017: Available at: https://indconlawphil.wordpress.com/tag/separation-of-powers/ 171

6.7. Doctrine of Checks and Balances These principles are very useful in the smooth functioning of the government in the sense that if one mistake is committed by one branch, the other branch can rectify and balance it. The U S President has special ways to check the Congress, who is also having special means to check the President. The President can check the congress, when he veto a bill while the congress can check him with 2/3 majority votes to override his veto. Similarity, the executive can veto bills from the legislative branch, but the legislative branch can over-ride the veto override the veto. Furthermore, the judicial branch can check the other two branches by declaring the laws or executive action as unconstitutional, if they contravene the Constitution. Likewise, the President shall appoint the federal judges while the legislative branch shall approve the said appointments made by the President. The Senate shall approve the treaties made by the President and the legislative branch may investigative the actions of the executive branch. Checks and balances differ from separation of powers. Separation of powers is the separation of branches under the Constitution ie. Legislature, Executive and Judiciary. The checks and balance generally play the role of the three branches of government. Provision for this system has been made so that no one branch may have over- riding powers over the other. Separation of powers are the direct powers incorporated in the Constitution so as to prevent accumulation of powers in one branch ignoring the other two branches. Checks and balances are the powers which have been distributed among the branches of government allowing each to limit the application of power of the other branches and to prevent expansion of powers of any branch.

The principles of the checks and balances is one of the main features of the Constitution of United States of America. It was included in the Constitution during the year September 1787 having the sole objective of limiting the capabilities of the three branches of government to control or to take over the other branches as well as the government of U.S.A. This is one of the most important principle of government in pursuance of which all the three organs of State have been made competent to prevent any action of the other branches, who in turn, are induced to share the powers. However, it is to be applied only in case of constitutional government in which each and every branch of the government is having some sort of influence over the other branches of the government and, therefore, in this manner, one branch of government can block the procedures of the other branches. This principle is generally applied so as to keep the government from becoming too much powerful in one branch. For example, the executive branch can veto bills from the legislative branch, but the

172 legislative branch can override the veto. With Checks and balances, every branch of government can limit the powers of the other branches in the excuse of their functions and no branch can become too much powerful as compared to the others. The underlying principle is to maintain equally in the govt. This system plays a important role in United States of America, where each branch checks and controls the powers and functions of the other branches of State to make it sure that all the branches of State enjoys equal powers under the U.S. Constitution. No one branch can dominate the other branches and thus this system prevented all the branches from assuming too much powers with them.

The separation of powers is based on the guideline of “trias politica”. Separation of powers came into existence since the times of the "Magna Carta222". Although Montesquieu was under the wrong impression that the foundations of the British Constitution depend on the principle of separation of powers, it found its origin in the American Constitution. Montesquieu had a feeling that it would be an answer to good governance yet it had its own disadvantages. An entire separation of power without sufficient checks and balances would not have been good for any constitution "Separation of Powers" is set in the Indian Constitution as one of its essential feature. Constitution is the fundamental law of the land.

Separation of powers envisages a tripartite framework where the Constitution has assigned powers to the three organs, and defined their jurisdiction. The position in India is that the principle of separation of powers has not been conferred a constitutional status. During the constituent assembly debates, there was a proposal to include this doctrine in the Constitution, but it was not acknowledged and dropped. Apart from the directive standards mentioned in the Article regarding the separation of judiciary from the executive, the constitutional scheme does not make any formalistic and dogmatic division of powers223.

The three organs can for all intents and purposes not be segregated into three indisputable compartments because of their inter-dependence on each other to guarantee effective governance. Hon'ble Chief Justice Balakrishnan expressed that, "the Constitution sets out the structure and characterizes the limits and demarcates the part and function of each organ of the State, including the judiciary and establishes up standards for their inter relationships, checks and balances." Therefore, all the three organs are required to work in accord as opposed to giving significance to only one of the organs.

222Magna Carta Libertatum also known as Magna Carta is a charter agreed by King John of England. The myth of Magna Carta was to protect personal liberties persisted after Glorious Revolution. 223Article 50 of the Indian constitution, 1949 173

According to Montesquieu “When the legislative and executive powers are united in the same person, or in the same body or , there can be no liberty. Again, there is no liberty if the judicial power is not separates from the legislative and executive powers. Where it joined with the legislative power, the life and liberty of the subject would be exposed to arbitrary control, for the Judge would then be the legislator. Where it joined with the executive power, the Judge might behave with violence and oppression. There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

After the framing of the constitution, the executive and the judiciary separated and adopted as a directive principle of state policy. The complete separation of powers between all the three organs of the government was not included in the constitution in its absolute form. Prof. K.T. Shah224 suggested to incorporate this doctrine under Art. 40-A of the Constitution but, it was rejected. The directive principles laid down in Article 50 enjoins separation of judiciary from the executive. But the constitution does not embody any formalistic and dogmatic division of powers.225

6.8. Principle of checks and Balances 6.8.1. U.S.A

James Madison quoted as “ambition must counteract ambition”. In 2009, the President appointed judge Sonia Sotomayor226 is an example. The Founding Fathers empowered the judiciary to convict a President of impeachment, so as to stop the judiciary from being obedient to the executive. The legislature initiated and conducted the impeachment trial of Bill Clinton in 1999. These provisions stop one branch from exercising unnecessary power and prevent “tyranny”. The Founding Fathers did not want a King like political situation and these checks and balances control such things. Checks and balances are focused on the executive but the legislature has restraints. In 2015 Keystone Pipeline, the President vetoed the legislation from the legislature. However, in 2008, Bush’s Farm Bill Veto, the legislature overturned a presidential veto. The legislature confirms the appointments of executive to the judiciary and the executive branches. The judiciary declare laws unconstitutional from the legislature and there is no process of appeal. In contrast, the legislature initiates a

224 Prof. K.T.Shah, was the representative of Bihar and an active member of Constituent Assembly. 225 Upadhyaya : Administrative law, (Central Law Agency,8th edition) p.48 226 Sonia Maria Sotomayor is an associate judge in US Supreme Court. 174 constitutional amendment that disproves a Supreme Court decision227. The above evidence of the checks and balances exist in the US government system. These checks and balances are not revoked because they have constitutional sovereignty and encourage co-operation and negotiation. The branches of government will be cautious in enacting certain decisions if they fear consequences from other branches. For example, Nixon resigned with the fear of impeachment in a 1974 Senate. To summarize, the principle of checks and balances in US prevents one branch from interfering and dominating the other branches.

6.8.2. The Indian Outlook of the Principles of Checks and Balances

The doctrine of separation of powers is an essential feature of the Indian Constitution despite the fact that it isn't particularly specified in it. Consequently, no law and amendment can be passed violating it. The arrangement of checks and balances is basic for the best possible functioning of the three organs of the government. Different organs of the State shall impose checks and balances on the other. Our Constitution is based on 3 pillars i.e the legislature, executive and the judiciary with clearly defined functions for each pillar to be performed by them. However, there are certain provisions in the Constitution as well as in the judgements of the various courts which provide for checks and balances on the functioning of each organ in the democratic set up. Some of them are as under:

Legislature: 1. The legislature has been entrusted the task of enacting the by way of working within the basic features of the Constitution. All laws enacted by it after Keshwananda Bharti judgment delivered in the year 1973 are subject to the test of judicial review by virtue of Article 13 (Supreme Court) and Article 216 (High Court).

2. The legislatures are required to work within the framework of the rules and regulations of the parliamentary norms of the democracy.

3. The laws which are passed by it in the discharge of its functions are put under scrutiny of the judiciary so as to ensure that they do not infringe the basic features of the Constitution . Many laws have been declared illegal and null and void / unconstitutional from time to time as they violated the basic features of the Constitution

227 The sixteenth amendment that mandating income tax following the Supreme Court decision in Pollock vs. Farmers Trust and Loan Company in 1895. It was a landmark case for US S.C. in which the unapportioned income taxes on interest, dividends, and rents imposed by the Income Tax, were direct taxes and unconstitutional because it violated the provision that direct taxes could be apportioned. 175

4. The executive also frames the agenda and schedule by way of fixing the dates for summoning the assembly sessions after deciding as to what bills are required to be put up before it to keep a check on the legislature

Executive:

1. The executive is the implementing organ of the State which is always kept in check through parliamentary process i.e zero hour, question hour, adjournment motion , censure motion, no confidence motion etc during which important questions of national and international importance are asked by the members.

2. All the members can ask questions from the executive so as to make them accountable to the house as well as the public

3. By means of issuing writs and exercising the power of judicial review of the laws passed and implemented by the executive , the judiciary always keeps a check on the executive at all times.

4. Use of Article 142 also make judiciary to keep check on executive and defines rules and laws which are otherwise ignored by the executive

Judiciary:

1. The power to remove a Judge of High Court and Supreme Court through impeachment lies with the parliament ,who exercises its control and check the judiciary whenever there are allegations of misconduct against the judges

2. Parliament has the power to determine the number of judges in the judiciary

3. President being the head of the executive appoints judges and also seeks its opinion on any important issue.

4. Important Acts like NJAC also keep a check on the judiciary for overreaching their powers

5. Parliament can enact laws which can nullify judgments or orders of courts if they fall within the ambit of judicial overreach

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It is clear from the above discussion that the separation of powers within the Indian Constitution is now clearly defined and demarcated. It is on the wisdom of the respective organs to keep effective checks and balances on the other organs of State so that democracy may become more strong and flourish in India.

6.9 NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT 2014:

National Judicial Appointments Commission was proposed to be set up for the purposes of making appointments of judges to the High Courts and Supreme Court with further powers to order the transfers of Judges from one High Court to the other in the country. With this objective, Constitution (99 the Amendment) Act was passed by the both houses of parliament to replace the existing system of appointing the judges through collegiums system created by the apex court through its decisions rendered in First, Second and Third Judges cases. When the Constitutional Amendment Act was introduced in the parliament, at the same time, the National Judicial Appointments Commission Act 2014 was also introduced and passed for the purposes of regulating the powers, functions and duties of this commission in the matter of appointment of judges. Both of them came into existence w.e.f April 13,2015,

The salient features of the Act are as under:

1.This is an Act which was passed by the parliament so as to regulate the criteria and method to be taken into consideration for the purposes of making recommendations regarding the appointment of Chief Justice and other judges of the Apex Court as well as High Courts with further powers to effect the transfers of High Court judges through out country.

2. The Union Government is required to inform the commission about the current vacancies within one month w.e.f the date this Act came into force

3.The Union Government is required to intimate 6 months in advance about any vacancy to the commission for its recommendation which is likely to fall vacant due to the completion of term of any judge. Likewise, it shall intimate within one month as and when any vacancy has fallen vacant due to death or resignation of any judge

.4.The Commission is to recommend the name of senior most judge of apex court for appointment as Chief Justice of India, if found fit in all respect. However, any member whose name is being considered at the relevant time ,he or she will not join the proceedings.

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5.The Commission is to recommend the names after considering the caliber of a person for appointment as a Judge of Supreme Court who fulfills the requirements as per Article 124(3) of the constitution .So far as a High Court Judge is concerned, over all ability and capability shall also be taken into consideration apart from his seniority at that time.

6.No recommendation about any name will be made ,where any two members disagree.

7.The Commission will be at liberty to frame its own procedure and may lay down any conditions for making its recommendations.

8.The Commission will recommend the name of any Judge for appointment as Chief Justice in a High Court as per the seniority after considering his/her caliber.

9.The Commission will invite nomination from the concerned Chief Justice of a High Court. It may also select some name for elevation who fulfill the requirements of Article 217 of the constitution after which it shall sent that name to the concerned Chief Justice for his comments who in turn shall seek the opinion of two senior most judges of that High Court as well as the views of any other judge and seasoned lawyers before forwarding his comments.

10.The Commission, after receipt of comments may sent the recommendation about any name if found fit, but no such name shall be sent where two members disagree.

11.The Commission will also call for the comments of Governor and of the concerned State before recommending the name.

12.The President shall make all the above appointments as per the recommendations made by the Commission. However, the President can sent back any recommendation for reconsideration and in that situation, if after reconsideration the commission again make the same recommendations , the President shall appoint him as such.

13.The Union Government after due consultation with the commission shall appoint other supporting staff for its smooth functioning under the Act. Secretary to the Govt Of India, Department of Justice will be its convener.

14.The Commission from time to time shall also order for the transfers of High Court Chief Justice and Judges from one to the other in India.

15.The Commission shall frame its own rules and regulations for its smooth functioning.

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16.The Union Government is competent to frame rules regarding all matters as per the object of this Act.

17.The Commission may also frame its own rules regarding the selection, appointment and transfers of judges.

18.All the rules and regulations framed under this Act will be put up before the parliament for approval/changes/modification etc. The Union Government is competent to remove any difficulty after due deliberation with the commission. However, time limit for such order is only 5 years w.e.f the commencement of this Act. Any order if passed is to be put up in both the houses of parliament for their consideration.

6.8 A Critical study of Supreme Court Advocates on Records Vs Union of India etc. decided on October 16,2014

The legality of this important Act passed by the parliament was challenged in the Supreme Court by few lawyer’s associations etc on various grounds including the ground that passing of this Act has impaired the independence of judiciary by way of damaging the basic structure of the constitution and thus this Act is unconstitutional. The Supreme Court after hearing the concerned parties struck down the NJAC Act 2014 as unconstitutional thereby upholding the existing collegiums system as valid vide its judgment dated October 16, 2015.

The Apex Court however decided to consider the incorporation of additional appropriate measures for an improved working of the “collegium system” and’, there-fore, A two- member committee was constituted who was requested to make a compilation of the suggestions received from all the stake- holders in the four categories, i.e., Transparency, Collegium Secretariat, Eligibility Criteria and Complaints. It is important to note that the compilation of the written suggestions placed was in the nature of a summary prepared out of views expressed in the judgment.

It was pointed out that the formulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain. It was submitted that the Apex Court neither had the expertise nor the wherewithal for proposing amendments in the existing Memorandum of Procedure (drawn on 30th June, 1999 by the ), for improving the collegium system. The learned Attorney General referred to the following observations recorded in paragraph 478 of the Second Judges case[1].:

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“478. ….(13) On initiation of the proposal by the Chief Justice of India or the Chief Justice of the High Court, as the case may be, copies thereof should be sent simultaneously to all the other constitutional functionaries involved. Within the period of six weeks from receipt of the same, the other functionaries must convey their opinion to the Chief Justice of India. In case any such functionary disagrees, it should convey its disagreement within that period to the others. The others, if they change their earlier opinion, must, within a further period of six weeks, so convey it to the Chief Justice of India. The Chief Justice of India would then form his final opinion and convey it to the President within four weeks, for final action to be taken. It is appropriate that a memorandum of procedure be issued by the Government of India to this effect, after consulting the Chief Justice of India, and with the modifications, if any, suggested by the Chief Justice of India to effectuate the purpose. ….” (emphasis supplied) It was submitted that even the nine-Judge Bench had left the task of drawing up the Memorandum of Procedure to the Government of India.

It was the further submission of the learned Attorney General that the views expressed by this Court, while disposing of the main controversy would enable the Government of India, to introduce amendments and to redraw the existing Memorandum of Procedure with the object of considering the criteria/benchmark for the appointment of Judges of the higher Judiciary, including widening the zone of consideration; to introduce transparency in the matter of appointment of Judges to the higher judiciary, as would be appropriate, keeping in mind the sensitivity of the issue; to make the present procedure broad based, by introducing supporting measures, whereby candidates can be screened and evaluated, and complaints against them are evaluated through a Secretariat constituted for the said purpose, under the control of the Chief Justice of India, as supplemental (and not as a substitute) to the process contemplated through the Second Judges case and the Third Judges case[2]. as well as our judgment on merits.

The introduction of the above changes are broadly in tune with the majority of the suggestions. These were also referred by the committee under the category of “transparency”, “secretariat”, “eligibility criteria” and “complaints”.

The Apex Court held that the Government of India may finalize the existing Memorandum of Procedure by supplementing it in consultation with the Chief Justice of India. The Chief Justice of India will take a decision based on the unanimous view of the collegium comprising the four senior most Judges of the Supreme Court. They shall take the following

180 factors into consideration: Eligibility criteria The Memorandum of Procedure may indicate the eligibility criteria, such as the minimum age, for the guidance of the collegium (both at the level of the High Court and the Supreme Court) for appointment of Judges, after inviting and taking into consideration the views of the State Government and the Government of India (as the case may be) from time to time. Transparency in the appointment process The eligibility criteria and the procedure as detailed in the Memorandum of Procedure for the appointment of Judges ought to be made available on the website of the Court concerned and on the website of the Department of Justice of the Government of India. The Memorandum of Procedure may provide for an appropriate procedure for minuting the discussions including recording the dissenting opinion of the Judges in the collegium while making provision for the confidentiality of the minutes consistent with the requirement of transparency in the system of appointment of Judges. Secretariat In the interest of better management of the system of appointment of Judges, the Memorandum of Procedure may provide for the establishment of a Secretariat for each High Court and the Supreme Court and prescribe its functions, duties and responsibilities. Complaints The Memorandum of Procedure may provide for an appropriate mechanism and procedure for dealing with complaints against anyone who is being considered for appointment as a Judge. Miscellaneous The Memorandum of Procedure may provide for any other matter considered appropriate for ensuring transparency and accountability including interaction with the recommendee(s) by the collegium of the Supreme Court, without sacrificing the confidentiality of the appointment process.

It was made clear that the guidelines mentioned above are only broad suggestions for consideration and supplementing the Memorandum of Procedure for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case.

It is respectfully submitted that the main factors which weighed with the apex court are that making of appointments for Judges in High Courts and Supreme Court is the main facet of independence of judiciary in India and it also forms part of the basic features and structure of the constitution of India. Secondly. primacy of collegiums manned by judges themselves for making recommendations for appointments also falls within the basic structure propounded by the Supreme Court in the year 1973.Thirdly: the collegiums system adopted by judiciary had allowed the participation of executive wing of government while keeping primacy of

181 judiciary through its collegium framework. Lastly :the setting up of NJAC had infringed the basic structure of our constitution as it had dispense with the primacy of judiciary by way of making certain veto provision that if two members disagree over any name ,he/she shall not be recommended for appointment.

With due respect to the Supreme Court, it is submitted that the establishment of NJAC would not impinge upon the judicial independence in any manner what-so-ever it may be. The Supreme Court in its judgment had not clarified anywhere as to why the collegium system consisting of judges is an essential feature of independence of judiciary .It is to be seen here that the apex court had raised the presumption itself that the method of making judicial appointments is bound to affect its independence which in fact comes within the narrow definition of judicial independence in our democratic set up .So far as other democracies of the world are concerned, political bosses have major say in appointment matters of the judges which is not detrimental to the independence of judiciary .For example, if we see United Kingdom, there the President along with the Deputy President sit for Supreme Court and Lord Chancellor approve the candidature. Likewise, the U.S. President after consulting the members of senate appoint the federal judges. The Governor General in Canada appoints after having consultations with the Privy Council. Similarly, in South Africa, the President appoints in consultation with the Chief Justice on the recommendations made by the Judicial Service Commission South Africa. It is very much clear from these countries that they have not thought at any point of time that the collegiums system as in force in our country is essential to maintain the independence of judiciary. The procedure adopted by the afore-said countries is such that they strike a balance between the three organs of government in the matter of judicial appointments in their countries.

The Apex Court itself conceded that all is not well, even with the Collegium System and this is an ideal opportunity to enhance it. The Supreme Court welcomed the government to offer assistance to the judiciary to enhance and improve the framework.

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