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/>"
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