Memorandum of Procedure for Appointment of Judges

After the judgement in the Second judges case was rendered in 1993, and the advisory opinion of this Court was tendered to the President of India in 1998, the Union of India then framed a Memorandum of Procedure on 30.6.1999 for the appointment of Judges and Chief Justices to the High Court and the Supreme Court in consonance with the above two judgements. Later on, three judgements of the Supreme Court were reviewed by the Law Commission of India in its Reports titled ‘Proposal for Reconsideration of Judges cases I, II, III – S.P. Gupta Vs.UOI reported in AIR 1982 SC 149, Supreme Court Advocates-on-Record Association vs. UOI reported in 1993 (4) SCC 441 and Special Reference 1 of 1998 reported in 1998 (7) SCC 739 dated 21 st November, 2008. The Report recommended that two alternatives are available to the Government of the day. One is to seek a reconsideration of the three judgements aforesaid before the hon’ble Supreme Court. Otherwise a law may be passed restoring the primacy of the Chief Justice of India and the power of the executive to make the appointments. After a gap of almost 6 years in the year 2014, a Constitution Amendment Bill followed by a the Parliamentary legislation titled the National Judicial Appointment Commission Act, 2014 were enacted by the Parliament. The Validity of the Constitution Amendment Act and of the NJCA was challenged by the Supreme Court Bar Association and others.

The question which arose for consideration related to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and also that of the National Judicial Appointments Commission Act, 2014. The core issue that arose for consideration related to the validity of the process of selection and appointment of Judges to the higher judiciary (i.e., Chief Justice and Judges of the High Courts and the Supreme Courts), and transfer of Chief Justices and Judges of one High Court to another.

The Constitution (Ninety-ninth Amendment) Act, 2014 added new Articles 124A, 124B and 124C after Article 124 of the Constitution. An enabling legislation titled National Judicial Appointments Commission Act, 2014 was also enacted. It is significant to note that the Statement of Objects and Reasons appended with the Bill stated, inter alia, that the proposed Bill seeks to broadbase the method of appointment of Judges in the Supreme Court and High Court, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Court. However, no reference in the Statement of Objects and Reasons was given of the recommendation contained in the Report 214 dated 21 st November, 2208 of the Law Commission of India as the said report has its basis in various recommendations of the Parliamentary Standing Committees and law of foreign jurisdiction like America, Australia, Canada and Kenya, where the executive is the sole authority to appoint Judges or the executive appoints in consultation with the Chief Justice of the Country and the reference of the same could have provided better understanding for the enacted of the Constitution (Ninety-ninety Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014. The following paragraph of the Report 214 of the Law Commission of India is most relevant which reads as under:

‘Indian Constitution provides a beautiful system of checks and balances under Articles 124 920 and 217 (1) for the appointment of Judges of the Supreme Court and High Court were both the executive and judiciary have been given a balanced role. As already stated, this delicate balance has been upset by the 2nd Judges case (Advocate on Record Association vs. Union of India 1993(4) SCC 4412 and the opinion of the Supreme Court in the Presidential Reference (Special Reference No. 1 of 1998) It is time the original balance of power is restored’.

The newly inserted Article 124A(1) provided for the constitution and the composition of the National Judicial Appointments Commission and as per the Constitution (Ninety-ninth Amendment) Act, 2014. The composition provided was as under:

(a) The Chief Justice of India, Chairperson, ex officio;

(b) Two other senior Judges of Supreme Court, next to the Chief Justice of India – Members, ex officio;

(c) The Union Minister in charge of Law and Justice- Members, ex officio

(d) Two eminent persons, to be nominated – Members.

In the Supreme Court Bar Association and Others vs. Union of India (7) The constitution bench of five judges speaking through Justice Khehar held that clauses (a) and (b) of Article 124A(1) do not provide an adequate representation to the judicial component in the NJAC and clauses (a) and (b) of Article 124A (1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of chief Justice and Judges, from one high Court to another),hence ,the same were held violative of the principle of “independence of the judiciary” Justice Khehar further observed that clause (c) of Article 124A(1) is ultra vires the provisions of the constitution because of the inclusion of the Union Minster in charge of Law and justice as an exofficio Member of the NJAC. Clause (c) of Article 124(1), in view of the court , impinges upon the principles of “independence of the judiciary” as well as, ”separation of powers” .it was further held that clause (d) of Article 124(1) which provides for the inclusion of two “eminent persons” as Members of the NJAC is ultra vires the provisions of the constitution, for a variety of reason and one of them being as violative of the “basic structure” of the constitution .Thus, clause (a) to(d) of Article 124A(1) were set aside by the court and were struck down. one effect of striking down of Article 124(1) was that the entire constitution (99th Amendment) Act, 2014 was set side and struck down in its entirety, as being ultra vires the provisions of the Constitution.

In paragraph 5 of the order of the court dated 16th October, 2014, it was decided to consider the incorporation of additional appropriate measures, if any, for an improved working of the “collegiums system”. In the Supreme Court Advocates-on-Record Association and Anrs vs. Union of India dated December 16, 2015. Broad suggestions for consideration and supplementing the Memorandum of procedure for the faithful implementation of the principles laid down in the Second Judges case and the Third Judges case were made by the constitution bench of five judges to the Union Government. Thus, a fresh Memorandum of procedure is to be brought into place, so that new appointment to the higher judiciary could be made.

Hopefully, the fresh Memorandum for Appointment of Judges would be based on the conclusion, inter, drawn by the majority view that the process of appointment of judges to the supreme court and the High Court is an integrated ‘ participatory consultative process’ for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision. Thus , for selecting the best and most suitable persons, it is hoped that the fresh Memorandum of Appointment will contain elaborate mechanism.

125.Salaries , etc .of judges:

(1) There shall be paid to the judges of the supreme court such salaries as may be determined by the Parliament by law and, until provision in that behalf is so made , such salaries as are specified in the Second Schedule.

(2)Every judges shall be entitled to such privileges and allowances and to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by the parliament and , until so determined, to such privileges , allowance and rights as are specified in the Second Schedule:

Provides that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantages after his appointment.

COMMENTS

Judges of the Supreme court are paid salaries and other allowances as determined by an ACT of the parliament .the supreme court judges (salary and condition of services) ACT,1985 has been amended from time to time and more recently in 2015. With effect from January 1, 2006, the salaries shall be as follows:

Chief justice of India – from Rs 33,000/pm to Rs 1,00,000 /pm;

(b) Judge of supreme court –from Rs 30,000/pm to Rs 90,000pm;(c) Chief justice of high court-from Rs 30,0000/pm to Rs 90,000/pm and (d) Judges of High Court- from Rs 26,000/pm to Rs. 80,000/pm.

129. Supreme Court to be a court of record:

The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

COMMENTS

The meaning of the word ‘contempt’ has often come up for its interpretation before the courts. According to the Black’s Law Dictionary, ‘Contempt’ is defined as “Conduct that defies the authority or dignity of a Court or legislature.’ It also adds that” because such conduct interferes with the administration of justice it is punishable.”

The Supreme Court in the following cases observed on power of the contempt as under:

(a) In the case of Aligarh Municipal Board vs. Ekka Tonga Mazdoor Union, court said that it is the seriousness of the irresponsible acts of the contemnors and the degree of harm caused to the administration of justice, which would decisively determine whether the matter should be tried as a criminal contempt or not.

(b) In the case of L.D.Jaikwal vs. State of U.P., Court held as under:

“6. We do not think that merely because the appellant has tendered his apology, we should set aside the sentence and allow him to go unpunished. Otherwise all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on, tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule and not as an exception we would in fact be virtually issuing a “licence” to scandalize courts and commit contempt of court with impunity....."

(c) In the case of M.B. Sanghi Advocate vs. High Court of Punjab & Haryana, the court cautioned against the growing tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure desired orders. While observing that it was high time that such tendency is to be nipped in the bud, this Court said, “ Such Causes raise larger issues touching the independence of not only the concerned Judge, but also the entire institution… It is high time that we realize that the much cherished judicial independence has to be protected not only from the executive or the legislature, but also from those who are an integral part of the system.”

(d) In Re: Vinay Chandra Mishra it was held that the power of the Supreme Court to punish for contempt was not limited by any statute. In this case, the court awarded exemplary punishment and observed:

“The facts and circumstances of the present case justify our invoking the power under Article 129 read with Article 142 of the Constitution to award to the contemnor a suspended sentence of imprisonment together with the suspension of his practice as an advocate as directed herein. The contemnor shall stand suspended for practicing as an advocate for three years.”

The decision of debarring from practice was challenged by the Supreme Court Bar Association and the only question before the constitution bench of five judges was whether the punishment for established contempt of Court committed by an Advocate can include punishment to debar the concerned advocate from practice by suspending his licence (sanad) for a specified period, in exercise of its power under Article 129 read with Article 142 of the Constitution of India. The Court held as under:

“We are of the opinion that this court cannot in exercise of its jurisdiction under Article 142 read with Article 129 of the Constitution, while punishing a contemnor for committing contempt of court, also impose a punishment of suspending his licence to practice, where the contemnor happens to be an Advocate. Such a punishment cannot even be imposed by taking recourse to the appellate powers under Section 38 of the Act while dealing with a case of contempt of court (and not an appeal relating to professional misconduct as such). To that extent. The law laid down in Re: vinay Chandra Mishra ,(1995)2 S.C.C. 584 is not good law and we overrule it.”