2nd Judges Case
In the Supreme Court Advocates on Record v. Union of India, 1993, or more simply known as the 2nd judges case, the Court specifically concluded, that the term “ consultation ” expressed in Articles 124, 217 and 222 had to be read as vesting primacy with the opinion expressed by the Chief Justice of India, based on a participatory consultative process. In other words, in matters involving Articles 124, 217 and 222, primacy with reference to the ultimate power of appointment (or transfer) was held, to be vesting with the judiciary. Under article 74, where “ aid and advice ” of the council of minister is binding upon the president, similarly, “ consultation ” in 124, 217, 222 is also a process of “aid and advice” and can be binding and mandatory.
The “ primacy of the judiciary ”, explained in the Samsher Singh vs State of punjab, Sankalchand Himatlal Sheth v union of india , and the Second Judges case, wherein the Court while interpreting Article 74 along with Articles 124, 217 and 222, in conjunction with the intent of the framers of the Constitution gathered from the Constituent Assembly debates , and the conventions adhered to by the political-executive authority in the matter of appointment and transfer of Judges of the higher judiciary, arrived at the conclusion, that “primacy of the judiciary” was a constituent of the “independence of the judiciary” which was a “basic feature” of the Constitution.
The attorney general argued that collegium system doesn’t provide for checks and balances from the other two pillars. To this, Justice Khehar said, that the participation of the executive, with reference to the consideration of a candidate recommended by the Chief Justice of High Court, continues further at the level of the Government of India. The matter of suitability of a candidate is also independently examined at the hands of the Union of Minister for Law and Justice. The Ministry of Law and Justice has a standard procedure of seeking inputs through the Union Ministry of Home Affairs. Such inputs are made available by the Union Ministry for Home Affairs, by having the integrity, social behaviour, political involvement and the like, examined through the Intelligence Bureau.
After receiving such inputs, and the examination of the proposal at the hands of the Union Minister for Law and Justice, the file proceeds to the Chief Justice of India, After the Chief Justice of India, in consultation with his collegium of Judges recommends the concerned candidate for elevation to the High Court, the file is processed for a third time, by the executive. On this occasion, at the level of the Prime Minister of India. During the course of the instant consideration also, the participation of the executive is not an empty formality.
Based on the inputs available to the Prime Minister, it is open to the executive, to yet again return the file to the Chief Justice of India, for a reconsideration of the proposal, by enclosing material which may have escaped the notice of the Chief Justice of India and his collegium of Judges. There have been occasions when the file returned to the Chief Justice of India for reconsideration, has resulted in a revision of the view earlier taken, by the Chief Justice of India and his collegium of Judges.
It is therefore clear, that there is a complete comity of purpose between the judiciary and the political-executive in the matter of selection and appointment of High Court Judges. And between them, there is clear transparency also. As views are exchanged in writing, hence nothing happens secretly, without the knowledge of the participating constitutional functionaries.
The court in the NJAC case, relying on Dr. BR Ambedkar’s statement given in the assembly while discussing the matter of appointment of judges, wherein he emphasized that “there is no doubt that the House in general, has agreed that the independence of the Judiciary, from the Executive, should be made as clear and definite as we could make it by law…”, held that that the appointment of Judges to the higher judiciary has a direct nexus to the issue of “independence of the judiciary”.
Hence, it was held that “primacy of Judiciary” in the appointment of judges to the higher judiciary is a “ basic structure ” and can’t be amended. The two eminent persons, or one of the eminent person along with Union law minister, could veto the recommendation, therefore the 99th amendment, and the NJAC Act was held to unconstitutional as it undermined the primacy of Judiciary.
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