Journalists may soon need law degree to report on Supreme Court

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

Print and electronic media journalists will also need to have at least 7 years and three-and-a-half years of experience, respectively

Nikhil Kanekal in The MINT

New Delhi: New Supreme Court reporting norms, if enforced, will result in 80% of the journalists who have been covering proceedings being disqualified. The Supreme Court can bar any correspondent from coverage without offering any reasons under the new rules.

Issued by the court on Saturday, the norms require that permanent and temporary accredited print journalists have a professional law degree and at least seven years of experience. Electronic media reporters need, apart from the law degree, at least three-and-a-half-years of experience. The circular did not set a deadline for the norms to come into force. Court officials didn’t throw light on when the circular would come into effect, when asked on Tuesday.

The new norms follow instances in which faults were found in coverage.

Two of these arose from coverage of the Vodafone tax dispute. Vodafone lawyer Harish Salve complained to the Supreme Court that a Press Trust of India (PTI) report on 10 August had misquoted him. Salve had argued that Vodafone could “avoid” tax as tax avoidance was permissible under law. Indian income-tax authorities have alleged that Vodafone evaded tax by structuring its $11.2 billion transaction to buy out Hutchison’s Indian cellular business through tax-saving routes. Salve spent more than a day demonstrating to the bench the difference between tax avoidance and evasion, and that his client had acted in accordance with law.

The court sought a response from PTI on an application made by Salve after the agency’s report.

On 18 August, PTI’s lawyer Shyam Divan issued an unconditional apology to the court, Vodafone and Salve.

Chief Justice S.H. Kapadia’s three-judge bench asked PTI to file a detailed affidavit explaining whether its reporter was present in the court at the time Salve made his argument. The court reportedly observed that norms for journalists needed to be revisited in light of the incident and what it said were other recent inaccurate reports.

Previously, Kapadia had expressed displeasure at a 15 December news report in a national daily that said the judiciary wanted to retain 1% of the Rs. 2,500 crore deposit made by Vodafone to the court’s registry. The report suggested that a “cash-strapped” judiciary was trying to source funds from “novel” methods such as these. Kapadia had then said: “People write whatever they want.” But the court did not initiate any action against the reporter or the newspaper.

Different benches of the court have, in the past, pointed to inaccurate or sensational news reports. However, Mint could not immediately ascertain the immediate reasons for the revision of the norms.

A.I.S. Cheema, secretary general of the court, the senior-most official on the administrative side, did not have time to meet this reporter on Tuesday for clarity on reasons for revising the norms.

The court’s media officials said reporters could make representations that would be forwarded to decision makers.

Justice Dalveer Bhandari, the Supreme Court judge in charge of granting accreditation to journalists, could not be reached on phone. His staff said he would not be available to comment till later this week.

A media law expert said India has an open court system that inspires confidence among people on the judiciary’s functioning.

“In India, unlike in the US, the press has no independent right under the freedom of expression. The journalist exercises his right as a citizen of this country under Article 19 (1)(a) and also acts as a trustee of the public’s right to know. In certain situations, he might get more access than others, but technically under our open court system that shouldn’t be necessary,” said the expert, who did not want to be named.

“Everyone can have access as it’s meant to be a check on the judges. It’s a check on the system. What is to stop me if I go into a court as lay person and write about something which I think is worthy of sharing with the public? As long as I’m not distorting the proceedings, there should be no problem,” this person said.

The Supreme Court has expressed its appreciation for the role played by the press in its annual reports. “Supreme Court attached great importance to the role of media and complementary to that of judicial organ in a democratic polity. In order to strengthen this partnership, the court took certain initiatives for mutual benefit,” said the 2008-09 report as it elucidated programmes organized by it to train court correspondents.

A February 2002 report in Frontline magazine cited a Supreme Court judgement that contained a defence of the freedom of the press. “Public trial in open court is undoubtedly essential for the healthy objective and fair administration of justice. Trial held subject to public scrutiny and gaze naturally acts as a check against judicial caprice or vagaries and serves as a powerful instrument for creating confidence of the public in the fairness, objectivity and impartiality of the administration of justice.”

There are currently 14 permanent accredited correspondents in the Supreme Court and approximately 80 temporary accredited journalists, according to the court’s officials.

Editors react

Newspaper and television editors said the requirement for a law degree might be excessive and that the unilateral provision in the norms to withdraw a journalist’s accreditation was not desirable.

“Reporters need not have a law degree to report on the Supreme Court. They need to have strong news sense and an acquaintance of legal nuances,” said Arnab Goswami, editor-in-chief, Times Now.

“The new norms seem overly restrictive and will make it more difficult for the media to cover the Supreme Court properly,” said Siddharth Varadarajan, editor of The Hindu. “While I share the concerns of the honourable judges that court proceedings are sometimes not reported accurately, the solution lies in proper editorial supervision by our newspapers and TV channels, rather than by specifying, with mathematical precision, the onerous qualifications court reporters must possess in order to be given access to a court room.”

“In the absence of access, there may actually be a greater likelihood of inaccurate reporting as journalists will be forced to rely on one-sided accounts of courtroom proceedings by lawyers representing their clients,” he said.

Sanjay Gupta, editor, Dainik Jagran, published by Jagran Prakashan Ltd, said: “As an editor, I will anyway not hire a fresher to report on Supreme Court judgements. However, I don’t think there should be a prerequisite for reporters to have a degree in law. If reporters have adequate experience and are reporting judgements intelligently, and if the editors don’t have an issue, I don’t think it’s fair for the court to then have stringent norms.”

“I don’t want to comment much on the revised norm to withdraw the accreditation without giving any reason. Withdrawal of accreditation should be a bilateral dialogue between the authority and the newspaper. The editors have a right to know when a particular legal correspondent’s accreditation is withdrawn,” he added.

Abhilasha Ojha contributed to this story.

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JAN LOKPAL BILL- ALL PARTY MEETING APPEAL TO SHRI ANNA HAZARE TO END FAST

Anna Hazare - Delhi

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This meeting of all parties in Parliament requests Shri Anna Hazare to end his fast. The meeting was also of the view that due consideration should be given to the Jan Lokpal Bill so that the Final Draft of the Lokpal Bill provides for a strong and effective Lokpal which is supported by a broad national consensus.

JAN LOKPAL BILL- Prime Ministers opening remarks at the All Party Meeting

Manmohan Singh, current prime minister of India.

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Following is the text of the Prime Minister Dr. Manmohan Singh`s opening remarks at the All Party Meeting on Lokpal Bill:

I welcome you all to this All Party Meeting on the Lokpal Bill, which is before the Standing Committee.  In our last meeting on July 3, we all had agreed that we must enact a strong Lokpal Bill which can deal with the menace of corruption.  During the meeting, two Lokpal Bills, one prepared by the official members of the Joint Drafting Committee, and the other, the Jan Lokpal Bill, were presented before you.  The consensus that emerged was that the Government should bring a strong and effective Lokpal Bill in the coming Session of the Parliament for enactment by following the established legislative procedure.

 The Government had accordingly prepared a Bill and introduced it in the Lok Sabha on 4 August, 2011.  The Bill was referred to the Standing Committee on Personnel, Public Grievances, Law and Justice and it is being discussed in that Committee. Meanwhile, Shri Anna Hazareji and his colleagues have continued to maintain their stand in support of the Jan Lokpal Bill.  Shri Anna Hazareji went on fast at the Ramlila Maidan from 16 August to press for their demands.

I have personally stated the Government’s position in public on more than one occasion.  We want a strong and effective Lokpal Bill.  Accordingly, we would like the Standing Committee to consider all points of view to evolve a broad based national consensus to create a strong institution of the Lokpal.The fast of Shri Anna Hazareji and his failing health are a matter of concern to all of us.  Yesterday, I felt that I should take a personal initiative to appeal to Shri Anna Hazareji to end his fast so that we may work together in a spirit of cooperative engagement to bring into existence a strong Lokpal.

Accordingly, I wrote to him requesting him to end his fast and reiterated Government’s intention to pass the best possible Lokpal legislation with inputs from civil society and on the basis of the broadest possible consensus.  I said that the  matter was with the Standing Committee and the Committee was entitled to consider not only the Bill introduced by the Government but the Jan Lokpal Bill and other versions like those prepared by Shrimati Aruna Roy as well. I said that our Government was prepared to request the Speaker of the Lok Sabha to formally refer the Jan Lokpal Bill also to the Standing Committee for their holistic consideration along with everything else.  I also said that the Government can formally request the Standing Committee to fast-track their deliberations to the extent reasonably feasible, subject to its discretion and the necessity to reflect deeply and spend adequate time on such an important Bill.

 Following this, Shri Anna Hazare agreed to hold discussions with the Government.  Accordingly, Shri Pranab Mukherjee and Shri Salman Khurshid met with three of his representatives to find a way out of the present impasse.  Broadly their position is that (a) the Government should withdraw the Bill introduced in Parliament (b) the Jan Lokpal Bill should be introduced with some changes in Parliament within four days and (c) this Bill should be discussed and passed during this session of Parliament by extending it if necessary, with minor amendments adopted by Parliament, and without referring the Bill to the Standing Committee.  If a written commitment can be given with timelines, then the representatives said they can hopefully persuade Annaji to stop his fast. I will ask Pranabji to brief us later in more detail on what transpired in the meeting.

 Our common objective is to build a strong and independent institution that will deal effectively with corruption, which is a major challenge that confronts our democracy and our nation. Recent developments have raised issues, related to the functioning of our Parliamentary democracy, that concern all of us.  I, therefore, thought it appropriate to convene this meeting to brief you on these developments and seek your guidance on the way forward.”

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Justice Verma writes to Prime Minister on the Jan Lokpal Bill

JUSTICE J S VERMA IN THE INDIAN EXPRESS

I write this letter with some hesitation about a matter of great national significance, succumbing to the constant pressure of many eminent citizens with the background of considerable public service and experience of governance at the highest level. Naturally, they are disturbed as I am, as you must be most of all, by the urgent need to prevent the clear and present danger of the prevailing unrest crossing a Rubicon, by taking steps to end the imbroglio.

As the head of the government, you alone can, and have to, perform this onerous task. With the commitment of “We, the People of India” to a democratic polity, I am sure, the people also clamour for a peaceful solution.

The nation is focused on the urgent need to combat corruption at all levels, which most affects the common man in every aspect of daily life. The demonstration of their anger on the streets is sufficient evidence that remedial measures cannot be delayed. The rule of law, which is the bedrock of democracy, is in peril. No referendum is needed to know that the nation is unanimous on the necessity of taking prompt remedial measures, which is the prime responsibility of the government, to be discharged with the aid of citizens doing their duty. The people’s participatory role in governance is the justification for the public outcry against corruption and the inordinate delay in taking remedial steps.

The prime need of your government, therefore, is to convince the people of the government’s equal commitment on this behalf. This can be done only by you, and none else! The malaise of a lack of political will and an erosion of individual rectitude, which is the foundation of national character, has to be arrested and reversed. This, too, can be done only by you!

Anna Hazare has rendered yeoman national service by mobilising public anger against corruption, and by identifying the causes of the malaise that needs to be cured. The next important step now is to decide on the way forward, and to move in that direction. Not merely curative or punitive, but preventive measures also have to be taken. Obviously, this can be done only in a congenial environment, with the government engaging with all sections of civil society, and donning a thinking cap. It is the government’s responsibility to create this environment by gaining the confidence of all of civil society.

No one has, rightly, doubted that the final act of enacting legislation has to be performed by the legislature; and then the law has to be faithfully implemented by the executive under constant public gaze and judicial scrutiny. This is, undoubtedly, our constitutional scheme, to which everyone is committed.

What is the way forward now, at this stage?

It is unnecessary, in this context, to reiterate my views on some of the contentious issues relating to the jurisdiction of the proposed Lokpal and the contents of the existing drafts of the bill. Substantially, they are already in the public domain. I confine this letter to my suggestions for your consideration about the way forward. These suggestions have crystallised after due reflection, and also consideration of the responses of some equally concerned eminent citizens. These are stated hereafter.

Mr Prime Minister, after your government constituted a joint committee with a few members of the civil society to draft the Lokpal bill, the logical corollary of that decision has to be accepted. This means that the views of the entire civil society must be presented by your government, along with the government’s draft, to Parliament for consideration during the debate on the bill. In an “inclusive” democracy, which undoubtedly our republican democracy is, every section of civil society, and every individual, has a participatory role in governance, including policy-making. The demand of Anna Hazare to send to Parliament the draft bill prepared by his team cannot, therefore, be denied. This I say, notwithstanding my differences with some points in that draft, and the mode of his protest.

This procedure has to be equally applied to the views and drafts of other sections of civil society, including individuals, if any, offering any serious suggestions. I am also of the view that the government needs to hold a few national consultations to give all sections of civil society an opportunity to participate in the exercise by offering their views for due consideration during the debate in Parliament. This exercise must be performed within a reasonable time.

Accordingly, the drafts already prepared by sections of civil society and in the public domain, namely, those by the Anna Hazare team, the Aruna Roy team and the Jayaprakash Narayan team may be presented to Parliament as the first step in this direction, to end the imbroglio. The additional views, offered in national consultations, can follow. This is the logical corollary of your government’s decision to involve civil society in the preparation of the draft Lokpal bill. Having commenced that process, it cannot be arrested midway or after part performance.

May I also suggest, in all humility, that this plan of action (if approved by you) needs to be conveyed by you directly to the nation in a broadcast through the active 24×7 media, which is busy these days disseminating information only on this issue, for its due impact.

The writer is a former Chief Justice of India  express@expressindia.com

The government against satyagrahas, then and now

Though Gandhi never called himself a Hindu nat...

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ERA SEZHIYAN IN THE HINDU

The events that marked the supreme authority of the British regime in India are now being blatantly followed by the United Progressive Alliance government. But time is running out.The term ‘satyagraha’ (satya is truth, and agraha is firmness) was coined by Gandhiji to designate his struggle of ‘passive resistance.’ He initiated it in South Africa during his agitations from 1894 onwards against the oppressive British regime there.

As president of the Congress in 1924, Gandhiji transformed the party into a fighting organisation, and launched several satyagraha agitations to involve people in constructive programmes. The Calcutta Session of the party (in December 1928) gave an ultimatum to the British government that unless Dominion status was given to India by December 31, 1929, the Congress would launch a Civil Disobedience Movement. When no favourable response was received, at midnight on December 31, 1929, the Indian National Congress issued the Declaration of Independence, or Purna Swaraj. The party’s Working Committee gave Gandhiji the responsibility to launch the first act of civil disobedience.

Salt satyagraha

Gandhiji chose to begin with a satyagraha against the Salt Tax imposed by the British. The Salt Act of 1882 gave the British the monopoly on the manufacture of, and collection of tax on, salt. Several leaders including Jawaharlal Nehru, the Congress president at that time, had felt that there were more important issues to be taken up as a part of the demand for full independence. But Gandhiji felt that the salt tax was a richly symbolic choice since salt was something that was used by nearly everyone in India. He believed that the protest would dramatise the demand for Purna Swaraj in a way that would be meaningful to even the least Indian.

On March 2, 1930, Gandhji wrote to Lord Irwin, the Viceroy, offering to stop the march if 11 demands were met, including a reduction in land revenue assessments, an end to the enormous exploitation of the people, and the misuse of public funds by the British. Gandhiji added: “If my letter makes no appeal to your heart, on the eleventh day of this month I shall proceed with such co-workers of the Ashram as I can take, to disregard the provisions of the Salt Laws. As the Independence Movement is essentially for the poorest in the land, the beginning will be made with this evil tax.”

The Viceroy’s reply simply expressed the opinion that Gandhiji was “contemplating a course of action which is clearly bound to involve violation of the law and danger to the public peace.” Gandhiji selected the first batch of 78 satyagrahis, all members of the Sabarmati Ashram. On March 6, Sardar Vallabhbhai Patel set out to make arrangements in the villages and regions through which the Dandi March would pass. On March 7, Sardar Patel was arrested as he was about to address villagers at Kheda; he was sentenced for three months. There was speculation that Gandhiji and the satyagrahis too might be arrested.

On March 12, at 6.30 a.m., Gandhiji started off with his satyagrahis on the Dandi March. After covering 241 miles in 24 days, they reached Dandi on April 5. A large number of journalists from India and abroad had camped there. For them, Gandhiji wrote a short note: “I want world sympathy in this battle of Right against Might — Dandi, M.K. Gandhi.” On the morning of April 12, Gandhiji raised a lump of salt in his hand and declared: “With this, I am shaking the foundation of the British Empire.” He then boiled it in sea water, producing salt illegally. Gandhiji’s satyagraha became a mass satyagraha throughout India. Then, the government resorted to repressive laws. Jawaharlal Nehru was arrested on April 14, and was sentenced to six months’ imprisonment under the Salt Act. On April 28, C. Rajagopalachari was arrested, to be sentenced to six months’ rigorous imprisonment after he and his satyagrahis entered the Coromandel coast at Vedaranyam.

While these leaders were being arrested, Gandhiji was going to other places near Dandi to defy the salt law. The climax of the campaign came when Gandhiji was arrested on May 4, 1930. He was resting at the Karadi Camp three miles from Dandi. At midnight, the District Magistrate, along with several police officers armed with pistols and 30 policemen bearing rifles, entered the room. Gandhiji asked about the charges under which he was being arrested. The Magistrate said it was under Regulation 28 of 1927 which allowed imprisonment without trial. At 1.20 a.m. the police put him in a lorry on the way to Yerwada Jail in Poona.

Gandhiji’s arrest and internment led to hartals and strikes across in India, and there were sympathetic demonstrations all over the world. On May 12, a second batch of satyagrahis led by Abbas Tyabji was arrested. On May 21, Sarojini Naidu and Manilal Gandhi were arrested; some 2,500 satyagrahis being led by them were beaten ruthlessly by 500 policemen commanded by British officers. In this action, four persons were killed; more than 300 persons were hospitalised with severe injuries. Still the satyagrahis observed absolute non-violence and discipline.

Reports on Gandhiji’s campaign during the Dandi March appeared each day in 1,350 newspapers across the world. Time magazine declared him Man of the Year, commenting on his march to the sea “to defy Britain’s salt tax as some New Englanders once defied the British tea tax.” The Press Ordinance promulgated by the Irwin regime caused 67 Indian newspapers and 55 printing presses to be shut down. Over 80,000 Indians were jailed without trial under the Salt Law.

The civil disobedience movement continued until early 1931. The rest is part of the political history of India — from the Gandhi-Irwin Pact leading to the Second Round Table Conference, to the Quit India Movement, and the emergence of independent India.

The Salt Satyagraha challenged the very existence of the British regime in India. Sir Charles Innes, who was a provincial Governor, wrote thus about the events of 1930 struggle: “England can hold India only by consent. We cannot rule it by sword.” It is true that the 1930 Salt Satyagraha was not successful with respect to many of its aims and demands. However, it was a historic turning point: thereafter every political move on the part of the Congress was to assert Purna Swaraj as the basic demand.

Hazare’s satyagraha

The events that marked the supreme authority of the British regime in India — and the stupid atrocities committed by it — are now being blatantly followed by the United Progressive Alliance government.

Anna Hazare’s movement has become a symbolic protest against the most corrupted government of free India. At least, Lord Irwin’s government arrested Gandhiji under a primitive Salt Act after the event. The high lords of the UPA government, living in the ivory towers of power and authority, sent the police to arrest a person who was planning to observe a peaceful agitation — without rhyme or reason. It was a mockery of governance to arrest a person in the morning and to order him to go out 12 hours later.

While Gandhiji invited openly the press in India and abroad to support his ‘battle for Right against Might,’ the UPA government, creating crisis after crisis, blames the media for every discord that is created.

Demand for ombudsman

During the Lok Sabha Debates on Demands for Grants of the Ministry of Law on April 3, 1963, Law Minister A.K. Sen said on the demand for an Ombudsman in India that it was a matter for the Prime Minister to decide. However, he observed: “In this country, my own view is that to make it effective, a constitutional provision should be made, as of the Election Commissioner or of the Comptroller and Auditor General. I think that if you really want to set up an effective organisation like Ombudsman with over-riding powers and spreading over the entire field of governmental activity, you will have to give him some constitutional position.”

The Lokpal Bill was introduced in May 1968. When it was considered on August 13, 1969 in the Lok Sabha, S.M. Joshi said: “Prime Minister Jawaharlal Nehru speaking at the AICC at Jaipur on 3 November 1963 said that the system of Ombudsman fascinated him; for the Ombudsman had overall authority to deal with charges even against the Prime Minister and confidence of all.”

As far as I know, that is the only remark on the subject recorded in Parliament Debates. None from the government side contradicted that statement.

While it is desirable to establish Lokpal as a constitutional authority, I feel that the government and the civil society team should come around to some sort of a bill. Hitherto the members of the public who have been supporting Anna Hazare have been non-violent and disciplined. In the event of a critical situation arising, things could turn ugly. After some time, amendments could be brought in to make the legisaltion more effective.

If UPA-II is certain of the support of Parliament and the people to its position on the issue, let it go to the electorate, or conduct a referendum on the specific issue of the Lokpal Bill.

(Era Sezhiyan is an eminent parliamentarian and author.)

http://www.thehindu.com/opinion/op-ed/article2389518.ece

The Collegium Controversy

Supreme Court of India

KRISHNADAS RAJAGOPAL IN THE INDIAN EXPRESS

What is the collegium system?

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

What does the Constitution actually prescribe?

Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.

Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

How and when did the other system evolve?

The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges (as mentioned in the ruling) and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions without consulting two colleagues. Besides, the President became only an approver.

What was done to deal with the confusion?

In 1998, President K R Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium (see box).

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

What are the arguments against the collegium system?

Experts point to systemic errors such as:

The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

A closed-door affair without a formal and transparent system;

The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission in its 214th Report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:

To seek a reconsideration of the three judgments before the Supreme Court.

A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.

What is the suggested alternative to the collegium?

A National Judicial Commission remains a proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister. The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.

SC guidelines on appointments

1 The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2 The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3 Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4 The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5 The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6 Recommendations by the CJI without [such compliance] are not binding upon the government.

7 The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8 The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9 The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court .