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RSTV: IN DEPTH- CJI AND POWERS


RSTV: IN DEPTH- CJI AND POWERS


Introduction:

The 47th Chief Justice of India is all set to be sworn in on 18th November. President Ram Nath Kovind will administer the oath of office to Justice Sharad Arvind Bobde, after naming him the next Chief Justice of India on Tuesday. With a long stint of eight years as Supreme Court judge, Justice Bobde is expected to demit office on April 23rd, 2021. Justice Bobde will succeed present CJI Ranjan Gogoi, who initiated the process of appointment by writing a letter to the Centre recommending his name. Justice Gogoi will be retiring from his post on November 17th, a day before Justice Bobde takes oath.

 

Justice Bobde:

  • Sharad Arvind Bobde (born 24 April 1956) is a Judge of the Supreme Court of India.
  • He is a former Chief Justice of Madhya Pradesh High Court.
  • He is also serving as the Chancellor of University of Delhi and Maharashtra National Law University, Nagpur.
  • He is due to retire on 23 April 2021.
  • With a tenure of eight years in Supreme Court of India, he is in line to be Chief Justice of India (with effect from 18 November 2019) after superannuation of Justice Ranjan Gogoi.
  • On 18th Oct 2019, media reported that Justice Ranjan Gagoi has formally recommended Justice Bobde to be his successor.
  • He was appointed to be the next Chief Justice of India by President Ramnath Kovind and will take oath on 18 November 2019

 

Notable judgements

  • Aadhaar=A three judge bench of the Indian Supreme Court, comprising Bobde, Jasti Chelameswar, and Chokkalingam Nagappan, ratified an earlier order of the Supreme Court and clarified that no Indian citizen without an Aadhaar card can be deprived of basic services and government subsidies.
  • Pro-life=A two-judge bench of the Indian Supreme Court, comprising Bobde and L. Nageswara Rao in 2017, rejected a woman’s plea seeking termination of her foetus, based on the medical board’s report that the 26-week-old foetus had a chance of survival.
  • Religious feelings=A two-judge bench of the Indian Supreme Court, comprising Bobde and L. Nageswara Rao in 2017, upheld the ban by the Karnataka Government of a book by Mate Mahadevi on the ground that it outraged the religious feelings of Lord Basavanna’s followers.
  • Environment=A three-judge bench of the Indian Supreme Court, comprising Bobde, T. S. Thakur and Arjan Kumar Sikri in 2016, in relation to the extreme air pollution in the National Capital Region, suspended the sales of fire crackers in the region.

 

Appointment of Judges:

  • The judges of the Supreme Court are appointed by the president.
  • The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary.
  • The other judges are appointed by president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary.
  • The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

 

Conditions for Removal:

  • Retirement on completion of 65 years.
  • Resignation
  • Impeachment
  • Grounds for removal: proven misbehavior, incapacity

 

Controversy over Consultation

  • The Supreme Court has given different interpretation of the word ‘consultation’ in the above provision.
  • In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies exchange of views.
  • But, in the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence.
  • Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court.
  • But, the Chief Justice would tender his advice on the matter after consulting two of his seniormost colleagues.
  • Similarly, in the Third Judges case2 (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires ‘consultation of plurality judges’.
  • The sole opinion of the chief justice of India does not constitute the consultation process.
  • He should consult a collegium of four seniormost judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government.
  • The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process are not binding on the government.

 

The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 have replaced the collegium system of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC). However, in 2015, the Supreme Court has declared both the 99th Constitutional Amendment as well as the NJAC Act as unconstitutional and void. Consequently, the earlier collegium system became operative again. This verdict was delivered by the Supreme Court in the Fourth Judges case2a (2015). The court opined that the new system (i.e., NJAC) would affect the independence of the judiciary.

 

Appointment of Chief Justice:

  • From 1950 to 1973, the practice has been to appoint the seniormost judge of the Supreme Court as the chief justice of India.
  • This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges.
  • Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then senior-most judge.
  • This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

 

Qualifications of Judges:

  • A person to be appointed as a judge of the Supreme Court should have the following qualifications:
    • He should be a citizen of India.
    • He should have been a judge of a High Court (or high courts in succession) for five years
    • He should have been an advocate of a High Court (or High Courts in succession) for ten years
    • He should be a distinguished jurist in the opinion of the president. From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.

 

Oath or Affirmation

  • A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for this purpose. In his oath, a judge of the Supreme Court swears:
    • to bear true faith and allegiance to the Constitution of India
    • to uphold the sovereignty and integrity of India
    • to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of the Office without fear or favour, affection or ill-will
    • to uphold the Constitution and the laws.

 

Tenure of Judges:

The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:

  • He holds office until he attains the age of 65 years. Any question regarding his age is to be determined by such authority and in such manner as provided by Parliament.
  • He can resign his office by writing to the president.
  • He can be removed from his office by the President on the recommendation of the Parliament.

 

Jurisdiction & Powers Of Supreme Court:

The Constitution has conferred a very extensive jurisdiction and vast powers on the Supreme Court:

  • Original Jurisdiction: As a federal court, the Supreme Court decides the disputes between different units of the Indian Federation. More elaborately, any dispute between: (a) the Centre and one or more states; or (b) the Centre and any state or states on one side and one or more states on the other; or (c) between two or more states. In the above federal disputes, the Supreme Court has exclusive original jurisdiction. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal.
  • Appellate Jurisdiction: As mentioned earlier, the Supreme Court has not only succeeded the Federal Court of India but also replaced the British Privy Council as the highest court of appeal. The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads: (a) Appeals in constitutional matters. (b) Appeals in civil matters. (c) Appeals in criminal matters. (d) Appeals by special leave.
  • Advisory Jurisdiction: The Constitution (Article 143) authorises the president to seek the opinion of the Supreme Court in the two categories of matters: (a) On any question of law or fact of public importance which has arisen or which is likely to arise. (b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sanador other similar instruments.

 

What is the Collegium System?

The Collegium System is a system under which appointments/elevation of judges/lawyers to Supreme Court and transfers of judges of High Courts and Apex Court are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court.’ There is no mention of the Collegium either in the original Constitution of India or in successive amendments.

The recommendations of the Collegium are binding on the Central Government; if the Collegium sends the names of the judges/lawyers to the government for the second time.

 

How Collegium System Works?

  • The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigate the names and resends the file to the Collegium.
  • Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.

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