supreme court advocate record on Association vs union of india


 

Symbiosis Law School, NOIDA

SUBMISSION of ‘ICE Mode I: PROJECT’ for “constitution case analysis”

KHUSHI BAJPAI

PRN: 21010224159

Programme:BBA.LLB.

Division: C

Semester:III

Year:2ndYear

Batch: 2021-26

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

 

Topic Assigned:supreme court advocate record on

Association vs union of india

 

Submitted to:

Dr. SakshiParashar

 Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

(August-September2022

 


 

“Supreme court advocates on record association v. Union of India”

Citation:“(2015) AIR SC 5457”

Bench:

·       “Justice Jagdish sigh Khehar

·       Justice Chelameswar

·       Justice Madan B. Lokur

·       Justice Kurian Joseph

·       Justice Adarsh Kumar Goel”

Case description:

“The Supreme Court is the protector of the Constitution, upholding both its core principles and structure. The court has developed the procedures in one area through its judgements is the appointment, transfer, and dismissal of judges”. According to the historic decision in Kesavananda Bharati v. State of Kerala, the Supreme Court actively participated in protecting the fundamental principles of the constitution. One of the famous cases that reaffirmed the Constitution's fundamental principles of the “separation of powers and the independence of the judiciary was Supreme Court Advocate on Record Association v. Union of India”.

“Judges had to be appointed to the Supreme Court and the High Court as well as transferred from one High Court to another in accordance with Articles 124, 217, and 222 of the Indian Constitution”.Before the National Judicial Appointments Commission Act, the Chief Justice and other judges were consulted before the President made a judicial appointment. Similar to that, the President decided on the transfers after speaking with the Chief Justice. Seniority-based appointments were the unspoken rule. “When there were just three senior most judges”, “Justice A.N. Ray was already named as India's Chief Justice”.When there were only three senior judges, Justice A.N. Ray was already named as the Chief Justice of India. Following this episode, a number of cases examined the constitutional provisions governing the nomination and transfer of judges. “In S.P. Gupta Vs. Union of India, the Supreme Court ruled that the Chief Justice's opinion does not take precedence and that the Union Government is not required to act in accordance with constitutional officials' opinions since the Executive is answerable but the Judiciary is not”.

The “Second Judges Case[iii]”, whi


ch was overturned by a “nine-judge bench”, said that the executive may only appoint judges if it did so in conformity with the Chief Justice's ruling and that the judiciary's opinion was essential in the event of a disagreement during the consultation process.“Both the Second Judges Case and the Third Judges Case[iv] acknowledged the Collegium system”, which is currently roughly 21 years old. As a result, “the Collegium system of appointment had been established as the law of the kingdom”.The 67th Constitutional Amendment Bill attempted to abolish the Collegium system starting in 1990. After that, three to five more efforts were made. Following the discussions, different committees submitted numerous ideas emphasizing the need to change the collegium system. “On December 31, 2014, the president signed into law the National Judicial Appointments Commission Act and the 121st Constitutional Amendment Bill”.

Facts of the case:

The 2014 constitution act made changes to “Articles 124(2), 127, and 128. The legislature inserted Articles 124A, 124B, and 124C to the Constitution”.“Article 124(2) states that on the proposal of the National Judicial Appointment Commission referred to in Article 124A”, the president shall appoint each Supreme Court judge by warrant under seal. [1]“The president is no longer compelled to confer with the judges of the Supreme Court and the High Court following the change. The 99th Amendment created the National Judicial Appointments Commission to replace the collegium method for choosing judges”.

Issues raised:

·       How constitutionally sound was the “Constitution (Ninety-ninth Amendment Act)” of 2014?

·       Why Is the “National Judicial Appointments Commission Act of 2014” in conflict with the "Principles of Separation of Powers"?

Contention of the parties:

Appellant:

·       The legislative or the administration cannot be allowed to share the judicial responsibility for appointing judges, which is the most significant trusteeship.

·       The contested constitutional change had significantly compromised the judiciary's "independence."The legislature's goal was to weaken the primacy that had previously been granted to the The reasons why the present method was thought to be unsatisfactory were not made public, but the “Chief Justice of India (based on a decision of a collegium of Judges) was appointed in accordance with Articles 124 and 217 as originally constituted”.

·       [2]“The Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act abrogated the duty placed in the Chief Justice of India, who was represented by a collegium of judges (under Articles 124 and 217 – as originally enacted)”.

·       Accordingly, it was argued that "independence of the judiciary" could not be regarded as having been protected unless “the method employed for selection and appointment of Judges, established and affirmed, the unimpeachable supremacy of the judiciary”.

Respondent:

·       “When the Indian Constitution was first drafted and at all subsequent stages, there was no clause that anticipated judges appointing judges to the higher judiciary”.

·       It was highlighted that a candidate may only be nominated to the higher judiciary if he received the recommendation of five out of the commission's six members. It was argued that the aforementioned protections, proposed in the modified regulations, would not only promote transparency but also provide a broad-based analysis.

·       • By establishing a thorough selection and appointment mechanism for judges in the higher judiciary, “the Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act were passed by the Parliament to fulfill a duty to the nation's citizens”.

• In his opinion, neither the "separation of powers" rule nor the "independence of the judiciary" are violated by the “National Judicial Appointments Commission's structure, which was formed by the Constitution (99th Amendment) Act. It was asserted that the disputed parts maintain the "basic framework" of the Constitution”.

“Judgement”:

The Supreme Court ruled in favor of the petitioners by a margin of 4:1 and declared that “Article 124A” is the most significant provision of the “99th Amendment”. The entire amendment would be reversed if Article 124A were to be removed. The National Judicial Appointments Commission's judicial component is not adequately represented under clauses a and b of Article 124A, which is insufficient to maintain the judiciary's primacy and, as a result, violates the independence of the judiciary, which is the foundation of the Constitution. Similar to how “Article 124A (c) and (d) violate the Constitution” by putting the union minister in control of legislation, which goes against the fundamental principle of the separation of powers. [3]“The Supreme Court invalidated the National Judicial Appointments Commission Act of 2014 and the 99th Constitution Amendment Act of 2014.The method for appointing judges to the Supreme Court, High Court, Chief Justice of India, and for transferring judges should be implemented in accordance with the situation that existed before to the 99th Amendment. In a judgement that was reached independently by each of the five judges, Justice Chalemeswar backed the constitutionality of the change.”

Statue referred:

·       “Article 124A: This clause establishes the National Judicial Appointments Commission, which would be made up of the Chief Justice of India, the two senior-most Supreme Court justices, the union minister in charge of law and justice, and two distinguished individuals recommended by the committee.”

·       “Article 124B: The duties of the National Judicial Appointments Commission are laid out in Article 124B.”

• “Article 124C: This provision regulates the appointment procedure for the Chief Justice of India and other Supreme Court and High Court justices. It also confers the power to make regulations for the procedure”.

Cases referred:

·       “SP Gupta v. Union of India, AIR 1982 SC 149”

·       “Union of India v. SankalchandSheth, AIR 1977 SC 2328”

·       Re Presidential Reference, AIR 1999 SC

·       “Supreme court advocates on record association v. Union of India, 1993 4 SCC 441”

·       “Supreme court advocates on record association v. Union of India, AIR 2016 SC 117”

·       Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461



[1]Manupatrafast.com. 2022. Manupatra - An Online Database for Legal Research. [online] Available at: <https://www.manupatrafast.com/>"

[2]Manupatrafast.com. 2022. Manupatra - An Online Database for Legal Research. [online] Available at: <https://www.manupatrafast.com/>"

[3]Scconline.com. 2022. SCC Online® | The Surest Way To Legal Research. [online] Available at: <https://www.scconline.com/>"

Post a Comment

0 Comments