PROCESS OF SERVICE OF SUMMONS IN INDIA UNDER THE HAGUE CONVENTION

PROCESS OF SERVICE OF SUMMONS IN INDIA UNDER THE HAGUE CONVENTION

The Hague convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters1 was signed on 15 November 1965.

The present convention would get attracted where the service of summons are to be affected by a foreign court and/or judicial authority

India acceded to The Hague Convention on 23rd November, 2006 and the Convention was entered into force in India on 1st August, 2007.2

The Hague Convention would get attracted where service of summons are to be affected by a foreign court and or judicial authority on any individual currently residing in India or in cases where Indian judicial authority orders for service of summons on a foreign national or a corporate entity having its office in a foreign country, such foreign country being party to the Hague Convention. Thus, the Hague Service Convention provides for a procedure for the transmission of judicial and extrajudicial documents from one signatory country to the other signatory country.

Prior to the enactment of the Hague Service Convention, the service of process was effected by means of Letters of Request/ Rogatory alone. ‘Letter Rogatory’3 denotes a formal communication in writing sent by a Court in which action is pending to the foreign Court/Judge requesting the service of summons or related acts.

As on date a round 68 countries have adopted the Hague Convention.

As regards the nature of the obligations under the Hague Convention and whether the provisions therein are mandatory, the Indian courts till date have still not laid down any precedent in that respect. However, the Supreme Court of the United States of America, in Volkswagenwer Aktiengesellschaft v. Schlunk4, observed through Justice Brennan that the terms of the Convention are “mandatory” with respect to any transmission covered thereunder.

Process of service of Summons in India:

In accordance with the convention, each signatory state is required to designate a Central Authority to undertake to receive the requests for service coming from the other contracting states.5 Accordingly, India has designated, the Ministry of Law and Justice, Department of Legal Affairs6 as the Central Authority under the convention.

The process of service of summons in India has to be effected in accordance with the steps contemplated under the Convention, which are as follows:-

  • The authority or the judicial officer competent under the law of the State of Origin, has to forward to the Ministry of Law and Justice, a request in the prescribed format7 along with the document to be served or a copy of the document to be served.
  • The request and the document have to be served in duplicate.
  • If the request is in the prescribed format, then the Ministry shall itself serve the document or shall arrange to have it served by an appropriate agency, either by a method prescribed by its internal law or by a particular method requested by the applicant, unless incompatible with the Indian domestic law.
  • Additionally, all requests for service of documents in India should be in English language or accompanied by an English Translation.
  • The part of the request which contains a summary of the document to be served is also to be served by the Law Ministry alongwith the document.
  • The Applicant would be required to pay or reimburse costs occasioned by the employment of a judicial officer or of a person competent under law, or costs arising out of the use of a particular method of service.
  • Upon completion of service by the Law Ministry, a certificate annexed to the Convention, would be forwarded to the Applicant which would state that the document has been served and would contain the method, the place and date of service and the person to whom the document was delivered.
  • If the service would not be complete, then the certificate would set out the reasons which would have prevented service.

Process of service of summons outside India:

The process of service of summons outside India is to be in accordance with the steps contemplated under the Convention, which are as follows:-

  • The authority or the judicial officer competent under the law of the State of origin, has to forward to the Central Authority of the concerned State, a request in the prescribed format along with the document to be served or a copy of the document to be served.
  • The request and the document have to be served in duplicate.
  • If the request is in the prescribed format, then the Central Authority shall itself serve the document or shall arrange to have it served by an appropriate agency, either by a method prescribed by its internal law or by a particular method requested by the applicant, unless incompatible with the law of the State addressed.
  • The Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed.
  • The part of the request which contains a summary of the document to be served is also to be served by the Central Authority alongwith the document.
  • The Applicant would be required to pay or reimburse costs occasioned by the employment of a judicial officer or of a person competent under law, or costs arising out of the use of a particular method of service.
  • Upon completion of service by the Central Authority, a certificate annexed to the Convention, would be forwarded to the Applicant which would state that the document has been served and would contain the method, the place and date of service and the person to whom the document was delivered.
  • If the service would not be complete, then the certificate would set out the reasons which would have prevented service.
  • When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge has the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and the defendant has disclosed a prima facie defence to the action on the merits. An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.
  • Each contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment.25 The said provision is applicable in India and an application for relief will not be entertained if filed after the expiration of one year following the date of the judgment.

Non-applicability of the Hague Convention in India:

Under the Hague Convention, as agreed upon by India, the service of judicial documents in India is not permitted directly through the State of Origin’s diplomatic or consular agents unless the document is to be served upon the national of the State of Origin.26

Furthermore, India has opposed all modes of service under Article 10, which means that no service of documents shall be effected by postal channels, directly through judicial officers, officials, or other competent persons of India, through State of Origin or the persons interested in the Judicial proceedings. This implies that service only through the Central Authority, i.e. the Ministry of Law has been agreed to under the Convention. However, a United States Court has recognized service of summons in India vide facebook and e-mail saying that the same are not covered under Article 10 of the Hague Convention27 and as such India has not opposed such service.

In Anupama Sharma v. Union of India28, the summons issued by the New York Court was privately delivered to the Petitioner in the proceedings which were pending before the New York Court. The petitioner contended that the service of summons was contrary to Article 3 and 5 of the Hague Convention since the summons was served not by the U.S. Court to the Indian Government but privately delivered. The Petitioner also submitted that India had specifically opposed Article 10 of the said Convention, which permits service of summons or judicial documents by postal channels directly to the persons staying abroad. However, the Bombay High Court observed that it will not be possible for it to stay the service of summons while exercising its writ jurisdiction under Article 226 of the Constitution of India and the petitioner can take the said objection before the New York Court and if her contention is right, the New York Court may ask the respondent to serve the summons again, in terms of the provisions laid down under Article 3 and 5 of the Convention.

In addition to the above reservations, it is also open to the country to refuse to comply with the service where the compliance with the request for service would infringe its sovereignty or security.

In addition to the above, the Hague Convention would become inapplicable:-

  1. Where the address of the person to be served is not known;
  2. Where the case is not a civil or commercial matter;
  3. Where the document to be served is not a judicial or an extra-judicial document;

Certificate of Service:

Each Contracting State shall be free to declare that the Judge may give judgment even if no certificate of service or delivery from the Central Authority has been received, if all the following conditions are fulfilled:-

  1. The document was transmitted by one of the methods provided for in this Convention;
  2. A period of time of not less than six months, considered adequate by the Judge in the particular case, has elapsed since the date of the transmission of the document;
  3. No certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Footnotes

1. Hereinafter called the “Hague Convention”

2. The official website of Hague Conference on Private International Law, as seen on September 1,2015 at 3:55 pm (http://www.hcch.net/index_en.php?act=conventions.status&cid=17)

3. Union of India v. W.N. Chadha, AIR 1993 SC 1082

4. 486 U.S. 694 (1988)

5. Article 2, Hague Convention

6. The Ministry of Law and Justice, Department of Legal Affairs, 4th Floor, A-Wing, Shastri Bhavan, New Delhi, 110001,India

7. Prescribed model forms are available at the website of the Hague Convention at http://www.hcch.net/index_en.php?act=text.display&tid=47

8. Article 3, Hague Convention

9. Article 3, Hague Convention

10. Article 5(1), Hague Convention

11. Article 5(4), Hague Convention

12. Article 12, Hague Convention

13. Article 6, Hague Convention

14. Article 6, Hague Convention

15. Prescribed model forms are available at the website of the Hague Convention at http://www.hcch.net/index_en.php?act=text.display&tid=47

16. Article 3, Hague Convention

17. Article 3, Hague Convention

18. Article 5(1), Hague Convention

19. Article 5(3), Hague Convention

20. Article 5(4), Hague Convention

21. Article 12, Hague Convention

22. Article 6, Hague Convention

23. Article 6, Hague Convention

24. Article 16, Hague Convention

25. Article 16, Hague Convention

26. Article 8(2), Hague Convention

27. Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189. (PAE), 2013 WL 841037

28. W.P.(L) No.119 of 2014

29. Article 13, Hague Convention

30. Article 1, Hague Convention

31. Article 15, Hague Convention

SUING A FOREIGN ENTITY IN INDIA

SUING A FOREIGN ENTITY IN INDIA

With the increase in significance and promotion of foreign investment in India and the setting up of various agencies for this very purpose, multifarious moves towards deregulation and liberalization of the Indian economy have come to the fore. The government is taking various routes to facilitate and broaden Foreign Direct Investment inflows into India.

As far as foreign investors are concerned, India is definitely emerging as an attractive destination. However, a growing concern among the host country recipients is the recourse they might have against these investors.

The concern becomes graver, when the investors are foreign-state controlled investors and a thick veil of sovereign immunity protects them.

Sovereign Immunity in India

India, like all other countries in the world recognizes the maxim, “par in parem non habet imperium”, which translates to, “one sovereign state is not subject to jurisdiction of another state”.

India has signed the United Nations Convention on Jurisdictional Immunities of States and their Property on 12th January 2007. However, India has neither ratified nor accepted, approved or acceded to the said treaty. Hence, unlike other countries, such as UK and US, India has no separate legislation in this respect.

In India, the sovereignty of foreign states is generally recognized, but an exception is carved out under Section 86 of the Code of Civil Procedure, 1908 where any person may sue a foreign state in any court with the consent of the Central Government. The provision starts with the general rule, that no foreign state may be sued in any court, and then carves out the exception of the consent of Central

Government by a Certificate in writing by the Secretary of the State.

Another exception carved out is that a tenant of an immovable property may sue the foreign state from which he holds the property.

The section further goes on to discuss the conditions under which the Central Government may give permission, which are as follows:-

  • If the foreign state has instituted a suit in the court against the applicant.
  • If the foreign state, by itself or another, trades within the local limits of the Indian court.
  • If the foreign state’s immovable property, in respect of which the applicant want to sue is situated in India.
  • if the foreign state has waived privilege of Section 86.
    The bar in the section is not only against suing, but also against execution of any decree against the property of a foreign state.

The section further expands the scope of application of the immunity to ruler of a foreign state, an ambassador or envoy, High Commissioner of a Commonwealth Country, any such other member of staff of the previous category, as the Central Government may specify.

The section further bars the arrest of the aforementioned category of persons.

Further, following the principles of natural justice, the provision provides for giving a reasonable opportunity of being heard, in case a request is rejected under this Section.

To clarify the meaning of foreign state in the aforesaid section, Section 87A provides that a

“foreign state” means any state outside India recognized by the Central Government.

Jurisprudence on Section 86

One of the first cases to touch upon the law in Section 86 was the case of Mirza Ali Akbar Kashani vs. United Arab Republic and Anr.[1] In this case, a suit was filed against the United Arab Republic and the Ministry of Economy, Supplies, Importation Department of Republic of Egypt at Cairo, for recovery of damages for a breach of contract.

The court first and foremost discussed whether India recognizes the State or not and having answered the question in affirmative, moved forward to discuss the law.

The question discussed was whether the consent under Section 86 was required in this case or not. Having discussed the recognition of sovereign immunity of foreign states by the Indian Legislature, the court went on to hold that the provision of Section 86 indeed was required to be followed in this case.

As regards the nature of order to be passed by the Central Government in response to an Application under Section 86, it has been held that if a refusal is accorded, then the refusal should state cogently the reasons for such refusal. Merely citing vague reasons such as “unable to give permission on political grounds” will not suffice.[2] The Apex Court has further recognized that although an Order under Section 86 is in the nature of an administrative order, the order is required to follow the principles of natural justice because they decide the rights of the parties.[3] Such reasons are required to be clear and explicit.

In another case, where a government instrumentality of a foreign state was sued for recourse, without seeking permission under Section 86, the issue of the stage at which such objection should be decided was dealt by the Court. It was held that “the question whether a suit should be entertained, cannot be deferred till the stage of the final disposal of the suit …. the object of Section 86 is to save foreign states from being harassed … if the foreign state is required to file a Written Statement and to contest the said suit … the very object and purpose of Section 86 shall be frustrated.” The bar of Section 86 can be taken at the earliest opportunity and court concerned is expected to examine the same.[4]

Waiver of Privilege: When not to seek consent

In various cases, the Indian courts have recognized waiver of privilege by foreign state owned entities. This waiver may be express or implied.

The question of the applicability of Section 86 to the Ethiopian Airlines lay before the Hon’ble Supreme Court of India in case of Ethiopian Airlines vs. Ganesh Narain Saboo[5]. The proceedings had been filed under Consumer Protection Act, 1986 and the contentious issue was whether permission under Section 86 was required.

It was observed that the Consumer Protection Act, 1986 and the Carriage by Air Act, 1972 were specific statutes which would prevail over the general statute of Code of Civil Procedure, 1908. It was further observed that Carriage by Air Act, 1972 was passed to give effect to the Warsaw Convention, 1929, to which Ethiopia is also a party. In effect a reading of the Warsaw Convention, 1929 and the Carriage by Air Act, 1972 make it evident that these provisions apply to Airlines of any nationality.

From the above reading, the Apex Court had made it clear that the implication of the Convention and the Act were twofold:-

The Central government had already given consent under Section 86 by having enacted the Carriage by Air Act, 1972.
The Foreign State of Ethiopia had impliedly waived privilege by signing the Warsaw Convention, 1929.
The effect was that these acts being special provisions, no permission was required under Section 86 to sue the Ethiopian Airlines.

Interestingly enough, even though the statute does not deal with the commerciality of the transaction as being a factor for determining the Applicability of the provision, the Apex Court had gone a step further and said that the commercial nature of the transaction would itself make sovereign immunity inapplicable.

Similarly, the Bombay High Court[6] recognized a delay of 16 years in raising the plea of immunity under Section 86, as an implied waiver of the privilege.

Conclusion

To conclude, it may be said that with the increase in foreign investment, the interaction between foreign state immunity and the rights of citizens to enforce their remedies against the foreign state sponsored investors would gain much more importance, in which scenario, the jurisprudence on the subject is expected to develop and gain momentum.

(The author would like to thank Gunjan Chabbra , Senior Associate of the firm for the valuable assistance in researching for this article.)

[1] (1966) 1 SCR 319

[2] Veb Deautfracht Seereederei Rostock (D.S.P. Lines) vs. New Central Jute Mills Co. Ltd. and another AIR 1994 SC.[3] Shanti Prasad Agarwalla & Others vs. Union of India and Others AIR 1991 SC 814.[4] Harbhajan Singh Dhalla vs. Union of India AIR 1987 SC 9[5] AIR 2011 SC 3495[6] Kenya Airways vs. Jinibai B. Kheshwala AIR 1998 Bom 287

THE NATIONAL JUDICIAL APPOINTMENT COMMISSION – A CRITIQUE

THE NATIONAL JUDICIAL APPOINTMENT COMMISSION – A CRITIQUE

The National Judicial Appointments Commission Act, 2014 (“NJAC Act”) has been notified in the official gazette on the 13th of April, 2014. The Judicial appointment mechanism provided for in these Acts has become a subject of controversy raising fresh concerns about judicial independence and accountability.

Article 124A has been introduced in the Constitution of India, which provides for the National Judicial Appointments Commission (Hereinafter called “the NJAC”) consisting of the Chief Justice of India, two other senior Judges of the Supreme Court, the Union Minister of Law & Justice and two eminent persons nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition in the House of People, and if no such Leader is there then the Leader of the single largest Opposition Party in the Lok Sabha.

The NJAC Act regulates the procedure to be followed by the NJAC for recommending persons to be appointed as judges of the Supreme Court and the High Courts, along with their transfers. The recommendation for appointment of Judges has to be made on the basis of seniority, ability, merit and any other criteria of suitability as may be specified by regulations of the NJAC1[1]. Based on these recommendations, the President has to make the appointment.

Background

The Appointment of Judges of the Supreme Court and the High Court and the transfer of judges from one High Court to another had to be made in accordance with Articles 124, 217 and 222 of the Constitution of India. Prior to the NJAC, the appointment of judges was made by the President in consultation with the Chief Justice and other judges. Similarly, the transfers were made by the President in consultation with the Chief Justice.

Although it was not specifically provided for anywhere, the norm of seniority has always been followed in the appointment of Judges. In August, 1969, however, the elevation of Justice A.N. Ray to the post of Chief Justice of India created heated controversy when he was appointed as the Chief Justice of India superseding three senior judges.

The provisions of the Constitution dealing with appointment and transfer of judges again came up for review in S.P. Gupta Vs. Union of India[2] (First Judges Case). In the said case, it was held by the Apex Court that the opinion of the Chief Justice did not have primacy and the Union Government was not bound to act in accordance with the opinion of the constitutional functionaries as the Executive was accountable, and the Judiciary had no accountability.

However, the First Judges Case was overruled by the Second Judges Case[3], by a nine judge bench which held that in the event of disagreement in the process of consultation, the view point of judiciary was primal and the executive could appoint judges only if that was in conformity with the opinion of the Chief Justice. The Collegium system, now about 21 years old, was not only recognized in the Second Judges Case but also in the Third Judges Case[4]. Thus the Collegium system of appointment become the law of the land and has been followed ever since.

The Collegium system was sought to be done away right from 1990 with the 67th Constitutional Amendment Bill. Thereafter it was followed by three more attempts5[5]. Thereafter discussions took place and several recommendations were made by various committees emphasizing the need for changing the collegium system. Finally on 31st December, 2014 the NJAC Act and the 121st constitutional Amendment Bill received the presidential assent.

The Ailing Collegium and the Need for NJAC

The Collegium system of appointment, which professed to keep the judiciary absolutely independent from the executive suffered from several defects. The drawbacks of the Collegium system had been highlighted by eminent personalities, commissions and committees their objections maybe summarized as follows:-

  1. The Appointment of Judges by the Collegium system was completely opaque and there was no procedure for checking the reasonableness of appointment[6].
  2. There was a complete lack of accountability on the part of Judiciary. The Second Administrative Reforms Commission, under the Chairmanship of Mr. Verappa Moily, had also noted that, “Perhaps in no other country in the world does the judiciary have a final say in its own appointments. In India, neither the executive nor the legislature has much say in who is appointed to the Supreme Court or the High Courts.”[7]
  3. There was a lack of implementation, which was attributed as the major reason for the vacancy in the courts and in turn pendency of cases[8].
  4. The executive is thought to perform the function of knowing and informing about the antecedents of the candidates, which the Judiciary was thought incapable of doing as even the senior most judges constituting the collegium would be from outside the state[9].
  5. The collegium system was widely considered to be unconstitutional as the Constitution provided for the appointment by the President in consultation with the judiciary and not vice versa.

NJAC: The cure for the ailment?

The NJAC Act and the 121st Constitutional Amendment are already under challenge before the Supreme Court of India. The Public Interest Litigations[10] were initially before the bench of Justice Anil R. Dave, Justice Chelameswar, and Justice Madan B. Lokur. By way of an Order dated 7th April, 2015 the said bench had placed the matters before a larger bench as it involved “substantial questions of law as to the interpretation of the Constitution of India”, without passing any interim order as to the operation of the NJAC.

The real question which arises for consideration is whether the formation of NJAC really cures the ailments that the collegium system suffered from?

To begin with, the NJAC definitely cures the earlier allegations of unconstitutionality arising due to the executive’s opinion having no weight in comparison to the judiciary. The NJAC consists of three judicial officers and the Union Law Minister, along with the involvement of several political bodies.

The recommendation would finally be made to the President. Hence the NJAC gives much more primacy to the executive, rather than the judiciary. Secondly, to some extent it can also be said that the problem of judicial accountability may also have been solved as the judiciary would now be accountable to the executive in the matter of its appointments.

However, apart from the above, it does not score in any other way over the collegium system. It does not cure the lack of transparency. The considerations and procedure of appointment would still be shrouded in mystery. Along with the criteria of appointment specifically provided for, in the provisions of the NJAC Act, the words “any other suitable criteria” will continue to afford sufficient amount of nepotism and favoritism to the members of the NJAC.

Also, the provisions of the NJAC Act provide that amongst six members of the NJAC, a minimum of five persons have to agree with the recommendation, in absence of which the recommendation cannot be made. This majority is not only more than a simple majority (50%) but even more than a special majority (67%) as contemplated in the Constitution for passing of money bills.

Furthermore, the long procedure of continual debates and discussions ordinarily preceding the passing of legislation in the country has also not been followed in this case. The passing of the legislation in such a hurried manner has also been viewed with suspicion alleging lack of jurisprudential application.

Apart from these drawbacks of the collegium system which the NJAC Act fails to overcome, it has several loopholes and infirmities of its own.

The constitutionality of the NJAC Act and the 121st constitutional amendment is a subject of concern. The NJAC Act and the amendment leave the power of judicial appointments, in the hands of the executive almost in its entirety. Judicial appointments have always been associated with the independence of Judiciary, which has time and again been recognized to be part of the basic structure of the Constitution.

To give such major primacy to the executive in the appointment process dilutes the independence and can be said to shake the basic structure of the constitution.

Another perceived lacuna in the formation of the NJAC is the inclusion of “eminent persons” without any criteria of special knowledge. In other acts, such as the Consumer Protection Act, 1986 the criteria of “eminent persons” is laid down as having some special knowledge, background and standing. In absence of such a criteria being laid down the committee consisting of the Prime Minister, the Leader of Opposition and the Chief Justice shall be free to appoint persons without accountability of merits and other factors which will, in effect, lead to abuse of the provision.

Most importantly, there is no provision for stating the reasons for selection of either “eminent persons” mentioned in the act. Further there is no provision for stating reasons for recommendation of candidates. This can lead abuse of powers by the members.

Answers to questions such as the efficacy of the implementation, and whether the Right to Information Act, 2005 would be applicable to the NJAC, could be revealed after the NJAC Act comes into full effect and the regulations and rules thereunder are formulated. As of now, no certain answer to these queries can be found.

Conclusion

To conclude, it may be said, that the NJAC, may be a step ahead of the collegium system in terms of judicial accountability, but the fact remains that there is a very thin line between judicial accountability and dilution of the Independence of the Judiciary.

Although no other country in the world leaves judicial appointment solely to the judiciary, there are several methods and balances to protect the Independence of the Judiciary.

In France, a constitutional body of Conseil Superieur de la Magistrature makes recommendations to the President on the basis of which the appointments are made[11]. However the body consists of the President, Minister of Justice, and 16 members out of which only four are prominent public figures. Out of the remaining twelve, half deal with recommendations of sitting judges and half deal with recommendations for public prosecutors. The first half is composed of 5 sitting judges and one public prosecutor. Thus the primacy of judiciary in the appointment procedure can be clearly seen. Similarly, in the United Kingdom[12], for appointments to the Supreme Court, the Lord Chancellor has to convene a commission which consults judges and heads of jurisdiction. On the basis of the recommendation of the commission, the Lord Chancellor notifies this selection to the Prime Minister.

In Australia, judicial commissions invites the “expression of interest” from the members of the Bar through public advertisements to enable the appointment of judges in a transparent manner. In the United States as well, the President’s nominees go through confirmation hearings in the Senate and are subjected to public scrutiny in relation to their professional lives and political views. These processes encourage transparency in the procedure for appointment.

The Indian NJAC Act can also take inspiration from these processes abroad. A good way forward could be to continue with the collegium system, make it more transparent by call for expressions of interest and publications of reasons including the criteria as well as executive inputs regarding antecedents etc.

There is a provision for formulation of various regulations by the NJAC. One can only hope that the regulations made finally provide for these contingencies and bring in more transparency.

More recently, the Chief Justice of India, Hon’ble Justice H.L. Dattu has also refused to be a part of the NJAC till a verdict of the Supreme Court is arrived on the issue. His refusal to follow a statute fully in force is a discussion for another day.

It seems that at least the present mechanism endeavored to be set into motion, forgets the humiliation which the judiciary has faced at the hands of the executive. It appears that the toying of Mrs. Indira Gandhi in the emergency period has been wiped away as a distant past, which is surely no way of moving to the future.

In the words of Mr. Soli Sorabjee[13]:-

“Please remember no system can be perfect. You cannot ensure independence, you cannot legislate independence. A judge must be independent even of himself, of his biases, prejudices, predilections, preconceptions. But the thing is, on the whol, it is a human system, it is not a perfect system. I think I would rather go with the collegium system, make it broad based, it to be taken into consideration in appointment of judges rather than scrap it altogether. I would rather trust the judges than the executive.

(The author would like to thank Gunjan Chabbra, Associate of the firm for the valuable assistance in researching for this article.)

[1]  Section 5 of the NJAC Act provides for the procedure for selection of Judge of Supreme   Court and Section 6 of the NJAC Act provides for the procedure for selection of Judge of the High Court.

[2]  1982(2)SCR365

[3] Supreme Court Advocates on Records v. Union of India, 1993

[4] In re Special Reference 1 of 1991

[5] See 82nd Constitutional Amendment Bill in 1997, 98th Constitutional Amendment Bill in 2003 and the 120th Constitutional Amendment Bill in 2013.

[6] 21.10.2008, “The Hindustan Times” quoting the then Law Minister, Mr. H.R. Bhardwaj, had reported “Collegium system has failed. Its decisions on appointments and transfers lack transparency and we feel courts are not getting judges on merit”.

[7] Page 50, Fourth Report, ‘Ethics in Governance’, Second Administrative Reforms Commission.

[8] 26.09.2014, “The Times of India”, quoting the then Union Law Minister, Mr. Sadananda Gowda.

[9] Page 59, 214th Report of the Law Commission of India.

[10] Supreme Court Advocates-On-Record Association and Anr. v. Union of India, Writ Petition (Civil) No. 13 of 2015 being lead matter.

[11] Article 34 of the French Constitution

[12] Constitutional Reform Act, 2005 (UK)

[13] November, 2013, as quoted by “the FIRM”