india

Updated: Oct 18, 2019 03:08 IST

A nine-judge bench led by Chief Justice of India (CJI) Ranjan Gogoi held an in-chamber hearing on Thursday on a review petition seeking the recall of a historic 1993 ruling establishing the primacy of the CJI over the executive in appointing judges to the higher judiciary.

The petition filed by the National Lawyers Campaign for Judicial Reforms and Transparency (NLCJRT), an organisation that claims to work for reform in the judiciary, asked the top court to restore the pre-1993 position under which the final authority on appointments/transfers of judges of the Supreme Court and high courts vested with the Centre.

The other members of the bench are justices SA Bobde, NV Ramana, Arun Mishra, Rohinton Nariman, R Banumathi, UU Lalit, AMKhanwilkar and Ashok Bhushan.

The review plea sought an open court hearing of the matter, an issue that was discussed on Thursday by the judges.

An official order relating to the plea for an open court hearing of the review petition or on the merits of the plea had not been placed on the SC website until late in the evening. Review petitions are heard in closed chambers and lawyers are not allowed to appear during such a hearing.

In case the present nine-judge bench agrees to conduct an open court hearing, it would mean that he court is open to reviewing the appointment system. And if it accepts the review plea, the matter would have to referred to a larger 11- or 13-judge bench.

That is because if the present nine-judge bench believes the 1993 judgment, also delivered by a nine-member bench, needs to be reviewed, it has to go to an 11- or 13-judge bench; it cannot overrule the verdict delivered by a bench of similar strength.

Articles 124 and 217 of the Constitution empower the President, in “consultation” with the CJI, to appoint/transfer judges of the Supreme Court and high courts. The1993 verdict held that the expression “consultation” means the “concurrence” of the CJI.

Until the judgement was delivered, the executive had primacy in the appointment/transfer of judges. But the 1993 ruling accorded primacy to the CJI.

In 1998, on a Presidential reference, another nine-judge bench of the Supreme Court upheld the 1993 judgment and introduced the collegium system, empowering the CJI and the four senior-most judges of the Supreme Court to recommend the appointments and transfers of SC and HC judges.

In October 2015, a five-judge Constitution bench struck down as “unconstitutional” Parliament’s decision to set up the National Judicial Appointments Commission (NJAC) to replace the present collegium system.

NJAC, besides including the CJI and two senior-most judges among its members, would also have comprised the Union law minister as the Central government representative in deciding on the appointment and transfer of judges. It also envisaged the inclusion of two “eminent persons” as members of NJAC.

A former Supreme Court judge recently brought up the issue of NJAC and judicial appointment, alleging the government was trampling on judicial independence. In an op-ed published on Wednesday in The Indian Express, Justice Madan Lokur said the NJAC was struck down as unconstitutional but is effectively still in place “because of the Centre’s behaviour”.

Lokur cited cases in which the government rejected appointments made by the Supreme Court collegium. “The reasons indicated in the file are not known and it would certainly be in the interest of the institution if they are disclosed,” Lokur wrote, further asking: “If the judge was unfit or unsuitable for appointment as the chief justice of Andhra Pradesh, how did he become suitable for Gujarat?”