Collegium Complacency

(By P. Rajan, Advocate, Thalassery)

The present collegium system lacks transparency, accountability and objectivity. The trust deficit has affected the credibility of the collegium system as some times observed by the civic society- Justice Kurian Joseph in the NJAC judgement.

The Supreme Court’s judgement which struck down the Constitution (99th amendment) Act 2014 by which the Government established a National Judicial Commission to select members of the higher judiciary, approving the present mode of selection of Judges has drawn much flak from varying corners as the five judge bench by majority ruled against the amendment. Justice Chelameswar in his dissenting opinion observed in candid terms about lack of transparency in the Collegium System, unmerited appointments resultantly.

By this verdict the power over Judge’s appointments would again become a well kept secret, as a former Judge of the Apex Court observed and an in house affair. The vital rationale behind the majority opinion appears to be the independence of the judiciary considering the basic structure of the Constitution. By the 99th Amendment Union Law Minister and two eminent persons also would form the commission besides the Prime Minister and leader of the opposition. The Supreme Court expressed its dissent due to the induction of political persons in the commissions as political interests would be a guiding factor. Protection of judiciary from political persons is essential observed unanimously while striking down the bill. Politician bashing, the Supreme Court did according to many while deciding the issue involved. Supreme Court also decided earlier four cases relating to Judge’s appointments and in the fourth judge’s case, now delivered interpreted Article 124 and 217 of the Constitution regarding selection of Judges to the Supreme Court and High Courts. Primacy and independence of the judiciary are to be preserved even the Attorney General submitted before the bench, but the process of judges selecting judges rarely courted controversy as some of the judges’ performance was quite unsatisfactory. Attorney General even furnished data by naming persons relating to their dismal performance to annul the collegium system of selecting Judges.

Before the commencement of the hearing one of the lawyers requested in writing for recusal of Justice Khehar but dismissed the plea. It is ironical that Justice Dave who was a member of the bench earlier voluntarily recused from hearing the matter.

Member of a higher judiciary enjoys much privileges besides protection relating to service conditions and even regarding removal, on the twin grounds of misbehavior or incapacity procedure is cumbersome. Selection for a High Court Judge minimum 10 years standing at the bar and optimism of appreciable performance by the concerned plus some other mandatory pre-requisites pave way for elevation if the collegium endorses the appointment to be sanctioned by the President of India. Even in a small State like Kerala in the lower judiciary, which is one of the best in the country-opined several- to become a Munsiff/Magistrate or a District Judge directly, written tests besides personal interview are mandatory. As far as selection to the higher judiciary is concerned there is no test to satisfy the ability of the incumbent to perform duties of a judge except the nod of the collegium. In developed countries, with lesser population contra to India’s 120 crore, across the country more than 3 crore cases are pending, selection of Judges if compared process and procedure vary considerably. 

In the relevant judgement which is being discussed and criticised Justice Chelameswar’s observations invited acclaim as his views endorsed the need of the civil society. As Justice Kurian Joseph opined about the undeserving appointments which inturn affected the image of the judiciary needless to say the entire process deserves a structural alteration. When questions relating to professional education in private colleges arose, to achieve finality, the oft- debated TMA Pai case was heard by a 11 Judge bench. Much importance was given to the challenge made by Menaka Gandhi relating to fundamental rights issue, allowed to decide by a larger bench specially constituted. The collegium system by passage of time invited much criticism and the bench also endorsed its view regarding that. Having observed about the short comings by some judges, instead of striking down the recent amendment a revisit of the bill or further steps by the executive to make the commission more effective could have been done instead of scraping the amendment as such. A larger benches’ verdict would achieve finality by giving more directions in concurrence with the executive.

Is Not the Court Entitled to Order Further Investigation

De Hors Section 156(3) Cr. P.C. ?

(By V. Ramkumar, Former Judge, High Court of Kerala)

Towards the fag end of the trial faced by the husband of the deceased for an offence punishable under Section 498A of the Indian Penal Code, the learned Magistrate ordered further investigation by invoking the power under Section 173(8) of the Code of Criminal Procedure, 1973 (“Cr. P.C.” for short). The Magistrate directed that as against the ASP who originally conducted the investigation, the further investigation shall be entrusted by the District Police Chief to any competent officer under his control and that the investigation shall be conducted by the entrusted officer under the supervision of the District Police Chief. The accused challenged the above order before the Hon’ble High Court. As per the verdict in Prakash v. State of Kerala (2015 (3) KLT 528) the High Court allowed the petition filed under Section 482 Cr.P.C., holding inter alia that –

1.  the power of the Magistrate to order further investigation flows not from Section 173(8) Cr.P.C. but from Section 156(3) Cr.P.C. as per which the exercise of power ought to have been made at the pre-cognizance stage, and

2.  it was impermissible for the Magistrate to issue directions for further investigation to the District Police Chief as was done in the case.

2. The second proposition of law laid down in the above verdict that the Magistrate while directing further investigation under Section 173(8) Cr.P.C. cannot specify that such further investigation should be conducted by a particular superior police officer or a police officer of a particular rank, is unassailable, But I have some reservation about the other declaration of the law made in the said verdict. Regarding the second proposition, indeed, it is not within the province of the Magistrate while exercising power under Section 173(8) Cr.P.C to specify that a police officer other than the officer in charge of the police station (who is the S.H.O.) or any particular police officer by name or any police officer of or above a particular rank should conduct such further investigation. Besides Central Bureau of Investigation v. State of Rajasthan (2001 (1) KLT 563 (SC) = AIR 2001 SC 668) and Central Bureau of Investigation v. State of Gujarat (2007 (3) KLT SN 38 (C.No. 50) SC = (2007) 6 SCC 156) relied on by the learned Judge, we have also the authority in Hemanth Dhasmana v. C.B.I. (2001 (3) KLT SN 24(C.No. 33) SC = (2001) 7 SCC 536 = AIR 2001 SC 2721) taking the same view.

3. The learned Judge has, however, observed in the above verdict that the power of the Magistrate to order further investigation flows from Section 156(3) Cr.P.C. and not from Section 173(8) Cr.P.C. It is here that I beg to disagree. Placing reliance on the 3 Judge Bench decision of the Apex Court in Bhagwant Singh v. Commissioner of Police & Anr. ((1985) 2 SCC 537) the learned Judge had given the 3 options which are available to the Magistrate on receipt of an indicting police report under Section 173(2) Cr.P.C. Those options given are:-

(1) The Magistrate may accept the report and take cognizance of the offence and issue process, or

(2) The Magistrate may disagree with the report and drop the proceedings, or

(3) The Magistrate may direct further investigation under sub-section (3) of Section 156 Cr.P.C. and require the police to make a further report.

It is evidently from the words “further investigation” stated in the third option given above that the learned Judge was inclined to articulate further to hold that the power to order further investigation flows from Section 156(3) Cr.P.C and not from Section 173(8) Cr.P.C. As a matter of fact, Section 156 Cr.P.C. uses the expression “investigation” only and not “further investigation”. No doubt, where there was already an investigation culminating in a “police report” filed under Section 173(2) Cr.P.C and the Magistrate is passing an order for investigation under Section 156(3) Cr.P.C, it may really be a case of further investigation in the sense that there was already an investigation which preceded the police report. But Section 156(3) takes in not only a case culminating in a police report. It takes in a private complaint as well. Moreover, the occasion for the Court to order investigation for the first time arises only underSection 156(3) Cr.P.C. Hence it is not further investigation at that stage. At any rate, it is not “further investigation” as envisaged by Section 173(8) Cr.P.C which provision will be attracted only after a final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate. (Vide Sri. Bhagwan Samardha Sreepada Vallabha Venkata Vishwanadha Maharaj v. State of U.P. (AIR 1999 SC 2332). That apart, while the power of the court to order investigation under Section 156(3) Cr.P.C. can be exercised only at the pre-cognizance stage, it can soon be seen that the power of the court to trigger further investigation under Section 173(8) Cr.P.C. can be exercised both at the pre-cognizance as well as post cognizance stage but definitely after the final report under Section 173(2) Cr.P.C. has been forwarded to the Magistrate.

4. Further investigation which is comprehended under Section 173(8) Cr.P.C. is something which is the exclusive prerogative of the police. The right to conduct further investigation even after the filing of a police report is a statutory right of the police (Rama Chaudhary v. State of Bihar (2009 (2) KLT Suppl. 814 (SC) = AIR 2009 SC 2308); State of A.P. v. A.S. Peter 2008 (1) KLT SN 56 (C.No. 56) SC = AIR 2008 SC 1052) Sivamoorthy v. State ((2010) 2 SCALE 700). However, the Investigating Agency is expected to inform the Court concerned and seek formal permission for further investigation. (Vide Ram Lal Narang v. State (Delhi Admn.) AIR 1979 SC 1791). The Apex Court had hastened to emphasise that the express permission of the Court is not necessary for conducting further investigation. (Vide Nirmal Singh Kahlon v. State of Punjab (2009 (1) KLT Suppl. 262 (SC) = (2009) 1 SCC 441 Para 68; Rama Chaudhary v. State of Bihar (2009 (2) KLT Suppl. 814 (SC) = (2009) 6 SCC 346). The above said provision does not, in specific terms, mention about any power of the Court to order further investigation. What the Hon’ble Supreme Court has held is that in appropriate cases the said power of the police to conduct further investigation can be triggered into motion at the instance of the Court, ex debito justitia (Vide Hemant Dhasmana v. C.B.I. (2001 (3) KLT SN 24 (C.No. 33) SC = (2001) 7 SCC 536 = AIR 2001 SC 2721). Just as the Court can trigger into motion the power of the police to conduct further investigation under Section 173(8) Cr.P.C., the State Government by virtue of its power of superintendence under Section 3 of the Police Act, 1861 can also give a direction to a superior police officer for further investigation under Section 173(8) Cr.P.C. (Vide State of Bihar v. J.A.C. Saldanha (1980) 1 SCC 554 = AIR 1980 SC 326 (3 Judges); Nimal Singh Kahlon v. State of Punjab (2009 (1) KLT Suppl. 262 (SC) = (2009) 1 SCC 441. (Paras 44 to 53, 57, 58, 67).

5. Now the further question is whether further investigation under Section 173(8) Cr.P.C. can be ordered after the Court has taken cognizance of the offence. There is nothing inSection 173(8) Cr.P.C. to indicate that the police cannot conduct further investigation after the court has taken cognizance of the offence on the police report initially filed underSection 173(2) Cr.P.C. If by ordering further investigation, the court is only triggering into motion the power of the police to conduct further investigation, what is to be examined is whether there is any embargo or interdict on the police to conduct further investigation after the court has taken cognizance of the offences. There is sufficient precedential authority to show that the power to conduct further investigation can be exercised at the post-cognizance stage as well. (vide –

(1) Union Public Service Commission v. S. Papaiah (1997) 7 SCC 614 = AIR 1997 SC 3876) where the power of the Magistrate to direct further investigation after acceptance of the final report and closure of the case, was recognized.

(2) Sri. Bhagwan Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. (1999) 5 SCC 740 = AIR 1999 SC 2332) – where the power of the police to conduct further investigation even after taking cognizance of the offences by the court was recognised. The decision also held that the power of the court to direct the police to conduct further investigation after taking cognizance of the offence cannot have any inhibition and that the court is not obliged to hear the accused before making such direction.

(3) Hasanbhai Valabhai Qureshi v. State of Gujarat (2004) 5 SCC 347 = AIR 2004 SC 2078) where it was held that the police can conduct further investigation even if the court has taken cognizance of the offence.

(4) Zahira Habibulla N. Shaikh v. State of Gujarat (2004 (2) KLT SN 30 (C.No. 36) (SC) = (2004) 4 SCC 158) also recognised the power of the police to conduct proper further investigation even after the court has taken cognizance of any offence on a police report submitted earlier (para. 79). However, in view of the peculiar fact situation in that case the Apex Court directed fresh investigation/re-investigation in that case

(5) In Dinesh Dalmia v. C.B.I. (2007 (4) KLT SN 27 (C.No. 27) SC = (2007) 8 SCC 770 and in Ramchandran v. R. Udayakumar (2008 (4) KLT 211 (SC) = (AIR 2008 SC 3102) also the Apex Court held that the power of the police to conduct further investigation is not taken away because a charge sheet has been filed or because the court has taken cognizance of the offence.

(6) In Kishan Lal v. Dharmendra Bafna (2009 (3) KLT Suppl. 741 (SC) = (2009) 7 SCC 685 the Supreme Court held that it is permissible for the Magistrate to order further investigation even at the stage of trial (Paras 11, 14 and 15).

In fact, a Division Bench of the Kerala High Court in Shaji v. State of Kerala (2003 (2) KLT 929) speaking through J.B. Koshy. J. exhaustively considered the whole gamut of “further investigation” under Section 173(8) Cr.P.C. and over-ruled the view taken by a learned Single Judge in Natarajan v. Sasidharan (2002 (1) KLT 499) to the effect that after taking cognizance of the offence and appearance of the accused, the Magistrate cannot order further investigation. The Division Bench had affirmed Joisy v. Sub Inspector of Police (2002 (3) KLT 172) wherein another learned Single Judge had held that even after taking cognizance of the offence the court can direct further investigation to be conducted under Section 173(8) Cr.P.C. The decision in Lonappan Nambadan v. Deputy Superintendent of Police (2003 (2) KLT 213) by yet another Single Judge of the Kerala High Court is also on the same lines as that of the Division Bench. Both Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 and Reeta Nag v. State of West Bengal & Ors. (2009 (4) KLT Suppl. 917 (SC) = (2009) 9 SCC 129) relied on by the learned Judge, do recognise the power of the investigating agencies to conduct further investigation under Section 173(8) Cr.P.C. even after the court has taken cognizance of the offence but proceed further to hold that at that stage the Court cannot suo motu order further investigation. If by doing so the court is only triggering into motion the power of the police under Section 173(8) Cr.P.C., the distinction drawn is really without any difference. Moreover, the restriction placed on the power of the Magistrate to suo motu order further investigation in Reeta Nag (supra) and Randhir Singh Rana (supra) was not approved by the Apex Court itself in Vinay Tyagi v. Irshad Ali @ Deepak & Ors. (2013 (1) KLT SN 69 (C.No. 57) SC = 2013 Crl.L.J. 754).

6. If the expression “further investigation” in Section 173(8) Cr.P.C. is interpreted to mean only investigation as is envisaged by Section 156(3) Cr.P.C., then, of course, such investigation can be conducted only at the pre-cognizance stage and it is not permissible for the court to order under Section 156(3) Cr.P.C. investigation at the post-cognizance stage. But with due respect, the further investigation which is envisaged by Section 173(8) Cr.P.C. is not confined only to the pre-cognizance investigation which is comprehended by Section 156(3) Cr.P.C. In my humble view the Division Bench in Abdul Latheef & Ors. v. State of Kerala (2014 (3) KLT 905) had laid down the law correctly and the verdict of the Division Bench was binding on the learned Judge who, in my opinion, was not justified in refusing to follow the same.

NOTABLE EXCERPTS

"Courts always lean in favour of advancing the cause of justice where a clear case is made out for so doing, since justice and reason is at the heart of all legislation."

 -- Rohinton Fali Nariman, J. in M.P. Steel Corporation, C.C.E., 2015 (2) KLT 996 (SC)

"If a species goes extinct, it's lost forever. Any aesthetic value it once had is gone. As Theodore Roosevelt said, "When I hear of the destruction of a species, I feel just as if all the works of some great writer have perished."

 -- Dr. A.K. Sikri, J. in Union of India v. Zavaray S. Poonawala (2015) 7 SCC 347)

"In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are the offences which suffocate the breath of life and sully the reputation."

 -- Dipak Misra, J. in State of M.P. v. Madanlal (2015 (2) KLT 125 (SC)

Vasantha And Another v. State of Kerala,
Yet Another Wrong Verdict

(By V. Ramkumar, Former Judge , High Court of Kerala)

1. It was with shock and indignation that I completed the reading of a verdict by a learned Single Judge of the Kerala High Court in Vasantha & Anr. v. State of Kerala(2015 (3) KLJ 352), a short note of which was reported in 2015 (3) KLT SN 44 (C.No.59).

2. To err, of course in good faith, once in a blue moon for the judicial personage may be a condonable wrong, having regard to the docket proliferation and the dispensation mechanism in vogue. But to err egregiously either disregarding or in blissful ignorance of the precedential authority on the point and then to consciously propagate the product of error through the medium of law reporting, is unpardonable. This is particularly so, since the evil spell of the erroneous verdict as a precedent will blindfold the robed brethren of the lower judiciary.

3. Now, to the meat of the matter. English being a foreign language, every possible allowance can be extended to the glaring grammar mistakes in the judgment. I, therefore, propose to confine this article only to the legal aspects of the matter.

4. The appeal, presumably under Section 449 Cr.P.C., before the High Court was by the sureties for the accused in an abkari offence before the Addl. Sessions Court, Neyyatinkara. Consequent on the failure on the part of the accused to appear before the trial court, proceedings were initiated against the sureties. If no notice, as contemplated by law, was given at all to the second surety before he was called upon to pay the entire penalty amount, then the order passed by the lower court is definitely unsustainable so far as it relates to the recovery of penalty is concerned. But the forfeiture of the bond being automatic consequent on the admitted non-appearance of the accused, the same would be binding on the second surety also even without a notice. However, in paragraph 7 of the verdict, the learned Judge would say that the illegality by way of absence of notice to the second surety is good ground to set aside the forfeiture as against the second surety.

5. After extracting sub-sections (1) and (2) of section 446 Cr.P.C., the learned Judge in paragraph 4 opened the discussion as follows:-

“The mandatory requirement of the principles of natural justice is that a person against whom an adverse order is passed must be given an opportunity of being heard. Therefore, before forfeiting the surety bond, the primary responsibility on behalf of the Court is to give notice to the surety to show cause as to why the surety bond be not forfeited”.

Thereafter, for the reason that the accused in the case subsequently appeared and took bail and was later acquitted by the trial Court, the learned Judge reduced the penalty of the 1st surety from `10,000/- (bond amount) to `1,000/- and set aside the forfeiture of the bond as against the 2nd surety.

6. The question as to whether consequent on the failure of the accused to appear before Court, the accused and the sureties are entitled to two notices, one before forfeiting the bond and the other before ordering penalty, is too well known to the Bench and the Bar in Kerala after the authoritative pronouncement by a Division Bench of the Kerala High Court in Thundichi v. State of Kerala (2009 (4) KLT 67). The Division Bench in that verdict had diffused the anxiety and confusion of the subordinate judiciary in this State by overruling the law declared by a learned Single Judge in Usman v. State of Kerala (2005 (4) KLT 348) and Geetha v. State of Kerala (2006 (3) KLT 960) to the effect that before forfeiting a bail bond for appearance, the Court is bound to give the surety and accused concerned an opportunity of being heard. (The fact that the very same learned Judge, in Rajan v. State of Kerala (2006 (4) KLT 429) and Mahesh v. State of Kerala (2010 (4) KLT 921) stuck to the very same personal view of the Judge as before is of little relevance after the reversal of Usman and Geetha).

7. My mission at present is to make an attempt to bring in clarity in the legal position in case there is any lingering doubt persisting in this branch of law.

Is the word “bail” a noun or a verb and what is its meaning?

The word “bail” is used both as a verb and as a noun. As a verb it means to deliver an arrested person to his sureties upon their giving security for his appearance, at the time and place designated, to submit to the jurisdiction and judgment of the Court. As a noun the word “bail” means the sureties into whose custody the arrested person is delivered and who are considered as having control of the arrested person. As a noun it also means the privilege of release on bail.

Is it correct to say that bail is a form of detention?

Yes. Bail is a form of detention by means other than one in prison. Instead of being detained in prison the accused is transferred to the custody of his bail who are the jailers of his own choosing and the court still retains its inherent power to deal with him. The effect of granting bail is not to set the accused free, but to release him from the custody of law and entrust him to the custody of his sureties. The sureties may discharge themselves by handing him over to the custody of law. A person released on bail remains in the constructive custody of the Court through the surety and his liberty is subject to restraint. (See 8 Corpus Juris Secondum – Bail Section 31; Halsbury’s Laws of England –III Edition Volume 10, Page 371; Mahesh Chand v. State of Rajasthan (1985 Crl. L.J. 3001(Rajasthan (F.B.) para 26); Girdhari Lal v. State (1967 Crl.L.J. 118); Ishwar Chand v. State of H.P. (1976 Crl. L.J. 386) and Sul Fulchand Shah v. Union of India & Ors. (2000) 3 SCC 409).

The Mechanics of Execution and Subsequent Forfeiture of a Bail Bond

8. In the case of a bailable offence, the person in custody is entitled to bail as of right by virtue of Section 436 Cr.P.C. But in the case of a non-bailable offence, Section 437 Cr.P.C. indicates that it is within the discretion of the officer in charge of the police station or the Magistrate, as the case may be, to grant or refuse bail. There is a popular misconception that where the offence involved is a non-bailable offence, the police officer cannot grant bail and the jurisdictional Magistrate alone can grant bail. Both the police officer as well as the Magistrate can grant bail in such cases. The only exception is that if the case falls under clauses (i) or (ii) of Section 437 (1) Cr.P.C., the Court alone is given the power to grant bail by virtue of the first and second provisos to Section 437 (1) Cr.P.C.

9. When an arrested person is granted bail on his executing a bond for appearance with at least two sureties, it involves two separate agreements or undertakings, one by the accused to appear before the police officer or Court at the time and place specified in the bail order, and the other by each of the sureties undertaking that the accused person shall appear before the police officer or Court at the time and place specified without any fail. In the event of any default either by the accused in appearing before the officer or Court or by the sureties in ensuring prompt appearance by the accused, each of them will undertake to forfeit to the Government the amount specified in the bail order or bail bond. This is discernible from Form No. 45 of the Second Schedule to Cr.P.C. Form No.45 reads as follows:-

Form No. 45

Bond and Bail-Bond for Attendence before Officer in Charge of
Police Station or Court

(See Sections 436, [436-A), 437, [437-A], 438(3) and 441)

      I, ...................................(name), of ........................... (place), having been arrested or detained without warrant by the officer in charge of ........................... police station (or having been brought before the Court of .........................) charged with the offence of ..................., and required to give security for my attendance before such Officer or Court on condition that
I shall attend such officer or Court on every day on which any investigation or trial is held with regard to such charge, and in case of my making default herein, I bind myself to forfeit to Government the sum of rupees .................

      Dated, this ................................ day of ................... 20.....

                                                                                           (Signature)

I hereby declare myself (or we jointly and severally declare ourselves and each of us) sureity (or sureities) for the abovesaid ............... (name) that he shall attend the officer in charge of ................. police station or the Court of .............................. on every day on which any investigation into the charge is made or any trial on such charge is held, that he shall be, and appear, before such Officer or Court for the purpose of such investigation or to answer the charge against him (as the case may be),and, in case of his making default herein, I hereby bind myself (or we hereby bind ourselves) to forfeit to Government the sum of rupees .....................

      Dated, this ............................. day of ................. 20........

                                                                                           (Signature)

Even though the undertaking given by the accused to appear and the undertaking given by the surety to secure attendance of the accused, are executed in the same sheet of paper, each of such undertakings is distinct and separate and can be separately enforced. Similarly, forfeiture of the personal bond and cancellation of the bond of the accused is not a condition precedent for the forfeiture and consequential steps pertaining to the bond of the surety. (Vide Ramlal v. State of U.P. (1972) 2 SCC 192 = AIR 1979 SC 1498). It is also not a mandatory requirement of law that the bond executed by the accused and the bond executed by the surety should be on the same sheet of paper. (Vide Beckaru Singh v. State of U.P. – AIR 1963 SC 430).

Forefeiture of the Bond

10. The question which is baffling many, is the exact point of time when a bond for appearance is forefeited and how does the resultant forfeiture manifest itself. Section 446-A Cr.P.C. throws considerable light in this context. It reads as follows:-

“446-A.Cancellation of bond and bail bond – Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition –

(a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and

(b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:

Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, think sufficient.”

Thus, if the bail bond is one for appearance, and it is forfeited for breach of a condition, then there is a consequential and automatic cancellation of the bond of the accused and the sureties. Hence forfeiture is closely linked with the appearance or non-appearance of the accused and the undertaking under the bond will work itself out. But there can be instances of cancellation of bail due to violation of bail conditions with which we are not presently concerned. What is to be considered now is the question as to the point of time when the breach of the condition to punctually appear before the Police Officer or the Court takes place and whether the person bound by the bond should be given an opportunity of being heard before the bond is forfeited. When it is said that the bond has been forfeited, what is really meant is only that the person bound by the bond has become liable to forfeit the amount which he had undertaken to forfeit to the Government in the event of his default. Where the bond is for appearance, the breach of the condition to punctually attend the Court or the Police Officer is committed by the mere absence of the accused. Since the absence of the accused is perceivable by sight, that by itself constitutes breach of the condition and no other evidence or proof is necessary.

11. Interpreting Section 514 of the Code of Criminal Procedure, 1898 corresponding to Section 446 Cr.P.C., a learned Single Judge of the Kerala High Court in Kunju Mohammad v. State of Kerala (1959 KLT 1118) held as follows:-

“When a bond is taken for the appearance of the accused, there does not appear to be any need to conduct an enquiry or take evidence because, breach of the undertaking in the bond is evident from the absence of the accused in that trial. Therefore, the Magistrate is not bound to take evidence before forfeiting the bond”.

A Division Bench of the Kerala High Court in Kapoor Raja v. State of Kerala (1973 KLT 45) summarised the position thus -          

“We may at once note the distinction between a bond for appearance before a Court on the one hand and a bond for keeping the peace or for good behaviour on the other. In the case of a bond for appearance before a Court, the cause for forfeiture thereof arises immediately on the failure on the part of the person bound by the bond to appear in Court at the appointed time or on the appointed day, as no further proof regarding the breach of the conditions is called for. In the case of a bond for keeping the peace or for good behaviour, the position is different for obvious reasons; proof becomes necessary for the Magistrate to satisfy himself that there has been breach of the conditions of the bond before an order forfeiting the bond could be passed”.

Thus, in the case of a bond for appearance, the Court by its own observation is able to see whether the person concerned is present or absent. No independent proof is necessary for this and it would be a meaningless formality to take evidence of an obvious fact. At this juncture it is important to note Form No. 48 of the Second Schedule to Cr.P.C. The said Form reads as follows:-

Form No. 48

Notice to Surety in Breach of a Bond

 (See Section 446)

      To ........................... , of ......................

      WHEREAS on the................ day of ............... , 20......., you became surety for ...................... (name) of ..................... (place) that he should appear before this Court on the ................. day of ................. and bound yourself in default thereof to forfeit the sum of rupees ................ to Government; and whereas the said ......................... (name) has failed to appear before this Court and by reason of such default you have forfeited the aforesaid sum of rupees .....................;

      You are hereby required to pay the said penalty or show cause, within .......... days from this date, why payment of the said sum should not be enforced against you.

      Dated, this ................................ day of ................... 20.....

      (Seal of the Court)                                                    (Signature)

This is the form of notice to a surety in the event of a breach of the bond executed by him. The notice states that the accused in the case has failed to appear and by reason of such default the surety has forfeited the agreed sum of money (which is the penalty that he has incurred) and the surety is called upon to pay the said penalty or show cause why payment of the said amount should not be enforced against the surety. Thus, consequent on the failure on the part of the accused to appear, the forfeiture of the bond automatically takes place and the surety is called upon by a notice to pay the penalty or to show cause why he should not pay the said amount. This is the only notice to a surety as contemplated by law and on receipt of this notice, he can show the Court the reasons why the bond amount should not be levied from him wholly or in part by way of penalty. Supposing the failure on the part of the accused to appear was due to the fact that he died after executing the bond or that he was arrested and was in judicial custody on the appointed day, such circumstances may constitute valid grounds for remission of penalty or for exempting the surety from penalty altogether. Form No. 3 of Appendix I of the Criminal Rules of Practice, Kerala, 1982 corresponds to Form No. 45 referred to above. Actually the Form which requires to be prescribed is the Form for notice to the accused on breach of his bond for appearance.

12. Section 446 Cr.P.C. comes into play only after the bond has been forfeited as the title of the section itself indicates. Section 446 reads as follows:-

“446. Procedure when bond has been forfeited.-- (1) Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited,

or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited,

 the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation --A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.

(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only.

(4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.

(5) Where any person who has furnished security under Section 106 or Section 117 or Section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.”

As mentioned earlier, Section 446 Cr.P.C. comes into operation only after the bond has been forfeited. All that sub-section (1) of Section 446 Cr.P.C. insists is that the Court has to record the grounds of proof in support of its satisfaction that the bond has been forfeited and issue a notice to the person concerned calling upon him to pay the penalty or to show cause why it should not be paid. The Show Cause Notice in Form No. 48 the contents of which have been extracted earlier, statutorily records the grounds of proof in this regard. But the forfeiture of the bond is automatic when the accused person bound by the bond fails to appear. One instance where absence of the accused does not result in the forfeiture of the bond is when the absence is justified due to the dispensation of the personal attendance of the concerned either under Section 205 Cr.P.C. while issuing summons or under Section 317 Cr.P.C. at any stage of the enquiry or trial. Those are instances when the accused voluntarily forfeits his right under Section 273 Cr.P.C. that all evidence in the course of a trial or other proceedings shall be taken only in the presence of the accused.

13. It was contrary to the statutory scheme under the Cr.P.C. that the learned Single Judge who decided Usman’s case and Geetha’s case (supra) held that before forfeiting the bond for appearance a notice and an opportunity of being heard should be afforded to the person concerned. Overruling the above verdicts the Division Bench in Thundichi’s case (supra) held that as soon as there is default by the accused in not keeping himself present in the Court on the date of trial the bond gets automatically forfeited. It is after the above authoritative and binding pronouncement by the Division Bench that the learned Judge in the verdict in question has unjustifiably resurrected Usman and Geetha. Reliance placed by the learned Single Judge on Ghulam Mehdi v. State of Rajasthan (AIR 1960 SC 1185) is really out of place. There the Hon’ble Supreme Court was emphasising the statutory mandate of a show cause notice on the forfeited bond before making the surety liable to pay the bond amount as penalty. In fact, Ghulam Mehdi had been considered by the earlier Division Bench in Kapoor Raja’s case (supra). Notice before imposition of the penalty is a must and if such a notice is given before the forfeiture of the bond that will not be proper compliance of the provision. (See Thundichi and Another v. State of Kerala (2009 (4) KLT 148).

The resultant position is that while there is no obligation for the Court to give notice or an opportunity of being heard to the accused or the sureties before forfeiture of a bail bond for appearance, a show cause notice before imposition of penalty is a must.

I Beg to Disagree with the Proposition of Law Laid Down in James George @ Basaliyos Marthoma Yakob - Pradaman v.
State of Kerala(2015 (4) KLT 310)

(By Justice V. Ramkumar, Former Judge, High Court of Kerala)

The first accused who had allegedly committed offences punishable under Sections 420, 468 and 471 read with Section 34 of the Indian Penal Code, was granted bail by the Chief Judicial Magistrate. Subsequently, the Sessions Judge was moved through a petition filed under Section 439 (2) Cr.P.C. for cancellation of the bail granted to the Ist accused. The said petition was allowed by the Sessions Judge. Aggrieved by the order of the Sessions Judge cancelling the bail, the Ist accused approached the Hon’ble High Court. As per the reported decision quoted above, a learned Judge of the High Court quashed the order passed by the Sessions Judge holding inter alia, as follows:-

“Much discussion is not required to conclude that the Court below, being a Sessions Court, has no power to “cancel the bail” by invoking the power under Section 439(2) Cr.P.C. The provisions contained under Sections 439(2) Cr.P.C. and 437(5) Cr.P.C. are not meant for cancellation of bail; whereas those provisions are meant for arrest of an accused who was enlarged on bail”.

2. With due respect, the above proposition of law, although literally correct on the wording of Sections 437(5) and 439(2) Cr.P.C. does not reflect the true legal position. It is indeed true that there is no express provision in the Cr.P.C. to cancel bail. But the power of the Court (other than the High Court or a Court of Session) which had granted bail to a person, to cancel the same, has always been traced to Section 437(5) Cr.P.C. The said sub-section reads as follows:-

“ 437.       (1)

          (2)

          (3)

          (4)

          (5) Any Court which has released a person on bail under sub-section (1) or
sub-section (2), may, if it considers necessary so to do, direct that such person             be arrested and commit him to custody”.

Likewise, Section 439(2) which has always been understood as the source of power for the High Court and the Court of Session to cancel bail, reads as follows:-

“439.        (1)

          (2) A High Court or Court of Session may direct that any person who has been    released on bail under this Chapter, be arrested and commit him to custody.”

3. The word “bail” is used both as a verb as well as a noun. As a verb it means to deliver an arrested person to his sureties upon their giving security for his appearance at the time and place designated and to submit to the jurisdiction and judgment of the Court. As a noun the word “bail” means the “sureties” into whose custody an arrested person is delivered. As a noun it also means “the privilege of release on bail”. When a Court of justice grants bail to a person in custody such person is released from the custody of law and entrusted to the custody of his sureties (bail) who are jailers of his own choosing. In the case of a bailable offence, the person under arrest is entitled to bail as of right and the Police Officer or the Court granting him bail is not entitled to impose any condition. In the case of a non-bailable offence, the Police Officer or the Court enlarging the accused person on bail can impose conditions which are known as “bail conditions”. By virtue of Section 441(2) Cr.P.C., such bail conditions are to be incorporated in the bail bond executed by the person in custody.

4. In the case of bailable offences, it may be noted that there is no provision in
Section 436 Cr.P.C. (unlike Section 437(5) Cr.P.C.) entitling the Court to cancel the bail already granted. This appears to be illogical because the Court (i.e. the Magistrate) which has granted bail for non-bailable offences involving relatively graver crimes is given the power under
Section 437(5) Cr.P.C. to cancel the bail. But the Court (i.e. the Magistrate) which has granted bail in a case involving bailable offences which are relatively minor crimes, is not given the power to cancel the bail already granted. If the justification for this is that in the order granting bail involving bailable offences no condition can be imposed and, therefore, the question of violating the bail conditions and consequently cancelling the bail will not arise, the same does not stand to reason. This is because, as can be seen later, the cancellation of bail is not only for violation of the bail conditions alone but also for other reasons. If so, the absence of a provision in this regard is a casus omissus (a situation not provided for by the statute) and it is doubtful whether the Court can supply or remedy the omission. (Vide Sangeetha Singh v. Union of India (2006 (1) KLT SN 66 (C.No. 94) SC = (2005) 7 SCC 481 = AIR 2005 SC 4459; Union of India v. Rajiv Kumar (2003 (3) KLT SN 37 (C.No.52) SC = (2003) 6 SCC 516 =
AIR 2003 SC 2917); Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc.
((2012) 9 SCC 552). But the words “who has been released on bail under this Chapter” occurring in Section 439(2) Cr.P.C. are wide enough to clothe jurisdiction in the Court of Session and the High Court to cancel the bail granted under Section 436 Cr.P.C. involving a bailable offence.

5. There seems to be some confusion in some quarters regarding what is called “bail condition” and a “condition in the bond”. A bond executed by a person under the provisions of the Cr.P.C. is usually one for appearance or for production of property. In the case of a bond for appearance, the only concern of the Court is to ensure whether the accused is present in Court or is absent. If the accused is absent in a case where the bond was for appearance, the Court is interested only in penalising his absence by forfeiting the bond and imposing the penalty (bond amount) which such person or his surety had undertaken to forfeit to the Government in the event of a breach of the condition for prompt appearance. There cannot be any forfeiture of the bond or levy of penalty for any breach of the other bail conditions such as reporting before the Investigating Officer, prohibiting the commission of offences while on bail etc. which get incorporated in the bond by virtue of the statutory direction in
Section 441(2) Cr.P.C. Where the bail bond is for appearance and the Court has imposed certain conditions like reporting before the investigating officer or that the person shall not commit any offence while on bail, it is impermissible for the Court, in the event of a default, to treat the bail bond as forfeited and proceed to recover the bond amount as penalty by recourse to Section 446 Cr.P.C. The Court can invoke Section 446 only upon the non-appearance of the accused who had executed a bond for his appearance. For a breach of the other bail conditions (excluding the condition for appearance) the remedy available to the Court is to cancel the bail. Without cancelling the bail, it is not possible for the Court to order arrest of the person who is on bail.

6. As already stated, a person who is on bail in a case is in the constructive custody of the Court through the surety. A Police Officer is not entitled to meddle with the liberty of such a person or even arrest him on the ground that he has committed breach of the bail conditions. It is only the Court which granted him bail which can under Section 437(5) Cr.P.C. or a superior Court under Section 439(2) Cr.P.C. direct that such person shall be arrested and shall be committed to judicial custody. Such an order pre-supposes an order cancelling the bail and that too after hearing him on the alleged ground including breach of the bail conditions. Even in the case of a bail granted by a police officer in a non-bailable offence, if the accused commits any mischief warranting cancellation of the bail, it is not open to the police officer either to arrest the accused or to take any other action against the accused for the breach. The Court alone can take action for the same. For cancelling the bail, we have only the Judge-made grounds enumerated through judicial decisions. Some of the well accepted grounds are;-

a)  The accused who was enlarged on bail, has misused the freedom granted to him by indulging in similar criminal activity.

b)  The accused has disobeyed the bail conditions which were imposed by the Court.

c)   The accused has interfered with or imperiled the smooth course of investigation.

d)  The accused has attempted to tamper with the evidence or has attempted to influence or intimidate the prosecution witnesses.

e)  The accused is likely to escape into another country.

f)   The accused attempts to make himself scarce by going underground or by becoming unavailable to the Investigating Agency.

g)  The accused attempts to place himself beyond the reach of his sureties.

      (vide Devidas v. State of Kerala – (1979 KLT 642); Raghubir Singh v. State of Bihar ((1986) 4 SCC 481 = AIR 1987 SC 149); Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) KLT 812 (SC) = (2004) 2 SCC 362 = AIR 2004 SC 2890)

I know of more than three dozens of rulings by the Apex Court itself where either
Section 437(5) or 439(2) Cr.P.C. was invoked for “cancellation of bail”. The following decisions may be seen:-

1.   Bashir v. State of Haryana (1977 KLT SN 25 (C. No. 66) = (1977) 4 SCC 410 = AIR 1978 SC 55).

2.   Mohan Singh v. U.T., Chandigarh ((1978) 2 SCC 366 = AIR 1978 SC 1095) (3 Judges).

3.   State (Delhi Administration) v. Sanjay Gandhi ((1978) 2 SCC 411 = AIR 1978 SC 961)
 (3 Judges).

4.   Bhagirathsingh v. State of Gujarat (1984 KLT SN 11 (C.No.21) SC = (1984) 1 SCC 284 = AIR 1984 SC 372).

5.   Dolat Ram v. State of Haryana ((1995) 1 SCC 349).

6.   Kashmira Singh v. Duman Singh ((1996) 4 SCC 693 = AIR 1996 SC 2176).

7.   State of Bihar v. Akhlakh Ahmed ((1998) 8 SCC 743).

8.   R.Rathinam v. State (2000 (2) KLT SN 24 (C.No. 27) SC = (2000) 2 SCC 391 =
AIR 2000 SC 1851) (any number of the public can move the Court).

9.   Puran v. Rambilas ((2001 (2) KLT SN 80 (C.No.102) SC = (2001) 6 SCC 338 =
AIR 2001 SC 2023) (any number of the public can move the court).

10. Mohant Chand Nath Yogi v. State of Haryana ((2003) 1 SCC 326=AIR 2003 SC 18).

11. State of Gujarat v. Salimbhai Abdulgaffar Shaikh (2003) 8 SCC 50 = AIR 2003 SC 3224.

12. Samarendra Nath Bhatacharjee v. State of West Bengal (2004) 11 SCC 165 =
AIR 2004 SC 4207 (3 Judges).

13. Ramcharan v. State of M.P. (2004) 13 SCC 617.

14.             Mehboob Dawood Sheikh v. State of Maharashtra (2004 (2) KLT 812 (SC) =
 (2004) 2 SCC 362.

15. Biman Chatterjee v. Sanchita Chatterjee ((2004) 3 SCC 388 = AIR 2004 SC 1699).

 16.            P.K.Shaji v. State of Kerala ((2005) 13 SCC 283 = AIR 2006 SC 100).

17. Gurdev Singh v. State of Bihar ((2005) 13 SCC 286).

18.             Nityanand Rai v. State of Bihar ((2005) 4 SCC 178 = AIR 2005 SC 2339).

19. Samya Sett v. Shambhu Sarkar (2005 (4) KLT SN 19 (C.No.24) SC = (2005) 6 SCC 767 = AIR 2005 SC 3309).

20. State of U.P. v. Amarunari Tripathi ((2005) 8 SCC 21 = AIR 2005 SC 3490).

21. Dr. Narendra K. Amin v. State of Gujarat ((2008) 13 SCC 584).

22. Pandit Dnyanu Khot v. State of Maharashtra ((2008) 17 SCC 745).

23. Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel ((2008) 4 SCC 649 =
AIR 2008 SC 2675)

24. Dinesh M.N. (SP) v. State of Gujarat (2008 (3) KLT Suppl. 1024 (SC) = (2008) 5 SCC 66 = AIR 2008 SC 2318 (3 Judges).

25. Subodh Kumar Yadav v. State of Bihar (2009 (3) KLT Suppl. 627 (SC) = (2009) 14 SCC 638.

26. Devender Kumar v. State of Haryana (2010 (2) KLT Suppl. 173 (SC) = (2010) 6 SCC 753).

27. Gurucharan Singh v. State (Delhi Admn.) ((1978) 1 SCC 118 = AIR 1978 SC 179).

28. Raghubir Singh v. State of Bihar ((1986) 4 SCC 481 = AIR 1987 SC 149).

29. Rajnikant Jivanlal v. Intelligence Officer, Narcotic Control Bureau ((1989) 3 SCC 532 = AIR 1990 SC 71).

30. Aslam Babalal Desai v. State of Maharashtra ((1992) 4 SCC 272 = AIR 1993 SC 1)
(3 Judges).

31. Sant Ram v. State of Haryana (1994 Supp. (2) SCC 205).

32. Subhendu Mishra v. Subrat Kumar Mishra (AIR 1999 SC 3026).

33. Panchanan Mishra v. Digambar Mishra (2005 (1) KLT 673 (SC) = (2005) 3 SCC 143 =
AIR 2005 SC 1299).

34. Arvind Mohan Johri v. State of U.P. ((2005) 4 SCC 634) (3 Judges).

35. Rajiv Ranjan Singh “Lalan” (VIII) v. Union of India ((2006) 6 SCC 613).

36. Narcotic Control Bureau v. Ghashiram Kanhyalal Solanki ((2007) 15 SCC 655).

37. Rizwan Akbar Hussain Syyed v. Mehmood Hussain ((2007) 10 SCC 368).

38. Ashok Kumar v. State of U.P. (2009 (2) KLT Suppl. 1609 (SC) = (2009) 11 SCC 392 =
AIR 2009 SC 1921).

39. Ram Babu Tiwari v. State of M.P. ((2009) 12 SCC 471).

40.             Manjit Prakash v. Shobha Devi (2008 (3) KLT SN 71 (C.No. 87) SC = (2009) 13 SCC 785 = AIR 2008 SC 3032).

41. Savitri Agarval v. State of Maharashtra (2009) 8 SCC 325 : AIR 2009 SC 3173).

Hence, the proposition of law laid down in the reported decision does not appear to be correct. Section 439(2) Cr.P.C. invoked by the Sessions Judge for cancelling the bail of the Ist accused was indeed the correct provision of law to be invoked. Of course, the question whether the cancellation of the bail was justified or not in the case under the consideration of the High Court, is a different question.

Was NJAC Ever A Solution ?

(By Liju V. Stephen, Advocate, High Court of Kerala)

“The seat of justice is the seat of God”

                                                                   -- Mahavir Tyagi

 The Supreme Court’s verdict declaring “The National Judicial Appointment Commission Act of 2014” as unconstitutional had aroused mixed sentiments among the citizens of India. The anxiety of the citizens is well founded, for the reason that in a democracy the higher judiciary which is the ultimate repository of justice for any citizen has to be competent and independent. However on a larger perspective one would be constrained to think whether replacement of the Collegium System with that of NJAC would address the core issue in the selection process.

Under the Government of India Act of 1919 and 1935, the appointments of judges of the Federal Court and the High Courts were in the absolute discretion of the Crown or, in other words of the Executive. Under Articles 124 and 217 of the Indian Constitution the President of India was empowered to appoint Judges of the Supreme Court and High Court after consultation with such of the Judges of Supreme Court and High Courts and other Constitutional functionaries.

The concept of a Collegium System commences from the 1993 “Advocate-on-Record” case (AIR 1994 SC 268) popularly known as the Second Judges case. Thereafter in Third Judges case a 9 Judges Bench of the Supreme Court (AIR 1999 SC 1) held that in the matter of appointment of Judges to the High Court and Supreme Court, the Chief Justice of India is entitled to have primacy. The said decision was an epoch making event in the Indian judiciary, whereby a Judicial Collegium System, the only kind of its own, came into existence. The Supreme Court in the above decision expressed the view that the proposal for appointment of Judges to Supreme Court should emanate from the Chief Justice of India, and for appointment of Judges to High Court the same should emanate from the concerned High Court. Thus under the Collegium System the Chief Justice of the respective High Court along with two other Senior most Judges would draw up a panel of prospective candidates. The Supreme Court Collegium may eitherapprove or reject the names so sent. If the Collegium approves the names, they are sent to the President of India and thereafter the President is to appoint the Judges.

Now after two decades of the Collegium System, the 99th Constitution Amendment has been brought to amend Article 214 and Article 217 of the Indian Constitution, and also for the incorporation of Article 124A for creating a National Judicial Appointment Commission to replace the Collegium System.

By The National Judicial Appointment Commission Act of 2014 the Collegium System is to be replaced by a Judicial Appointment Commission consisting of six persons i.e. the Union Law Minister, the Chief Justice of India and two senior most judges and two eminent persons. Whether the amendment for creating the Judicial Appointment Commission is to regain the power and primacy of the Executive or whether it is a fusion of the Judiciary and the Executive is not certain. But it is certain that the evolvement and the changes that had been happening in the systems is definitely nothing but the lack of transparency in either of the systems.

The Supreme Court of India observed in the Second Judges case that the ultimate constitutional purpose of these selection process is to get the best among the suitable persons to be appointed as Judges of superior Courts. If that be so the larger issue is not who the selecting body is, but who are to be selected. The two vital aspects in any appointment to a public office are;

(1) Transparency in the mode of selection and

(2) The right of every eligible and competent candidate to be considered.

The three bench of the Supreme Court in All India Judges Association v. Union of India (1993 (2) KLT 581(SC) =(1993 (4) SCC 288) observed that Judiciary exercise sovereign Judicial function of the state and holds public office as one among the three pillars of the State.

The Supreme Court and the High Courts in India had time and again held in a number of decisions that appointment to Public Offices has to observe these vital principles. The same is nothing but based on the basic principle of the fundamental right guaranteed under
Article 16(1) of the Indian Constitution that

“There shall be equality of opportunity for a citizen in matters relating to employment or appointment to any office under the State”.

The said principle of law had been interpreted and laid down by the Supreme Court of India that no person has a fundamental right to claim to be appointed to a public office but a person has a right to be considered for selection to a public office, if he is eligible to be considered. It is an undisputed fact that the selection of Judges to the Constitutional Courts in India are not done by any public intimation or notification calling from among all the competent and eligible candidates. But the procedure being followed subsequent to the judges case and even prior to that was pick and choose of candidates by the forwarding authority itself and the names of prospective candidates are finally selected from the said drawn list made by the forwarding authority.

It is a constitutional right that every eligible person has a right to be considered for any post under the State. Hence unless and until the said principle of law is laid and implemented in letter and spirit the best among the deserving candidates to these paramount post will never be considered nor selected.

Hence it is not the replacement of the selecting body that would resolve the main issue. As long as there is a transparent mode of selection by any of the selecting authority the first issue would be resolved. But the vital issue yet to be resolved is the considerations of all the deserving candidates to these posts are also to be resolved.

The Indian legal system has much been indebted to the English legal system, and NJAC is also not an exception. The British Parliament had enacted the Constitutional Reforms Act 2005 and the appointment of the Judicial Appointment Commission has removed the appointment of High Court Judges from the political arena, and the High Court Judges in England and Wales are appointed by a commission of 15 members. The applications are invited from eligible candidates by way of public notification and the short listed candidates are interviewed on five core qualities;

*   Intellectual capacity.

*   Personal qualities (integrity, independence, judgment decisiveness, objectivity, ability and willingness to learn).

*   Ability to understand and deal fairly.

*   Authority and communication skills.

*   And efficiency.

 Majority of the states of U.S.A are following the Missouri non partisans court plan of 1940 by which superior court judges are appointed by merit and open selection procedure and the same had been followed by countries such as Australia, South Africa etc.

Coming to the Indian scenario both the collegium system as well as the previous system has contributed very eminent Judges to the Indian judiciary. Definitely collegium system when compared to Executive appointment deserves acceptance for the reason that merit and integrity of a lawyer can be best assessed and judged by the Judges where the Lawyers perform their duty as in the case of teacher assessing the capability of his student and also for the reason of primacy. It is may be a fact that degeneration happened to the Collegium system also as in the case of any other Institutions. And the same can be due to the lack of transparency in the selection process. What can be the transparency in a system in which selection are made from a community of lawyers alone who has requisite experience in the field as mandated by the Indian Constitution. In the said system transparency is nothing but the consideration of all the eligible and competent.

It is pertinent to note that selection of Senior Advocates as contemplated under the Advocates Act and Rules are that an eligible person can apply or judges can suo moto consider deserving names and the selection is made by secrete voting by all the Judges in the concerned High Court. Thus all eligible and competent persons can be considered in such a process. Similarly the names so selected can be sent for consideration before the collegium which would make the system more transparent than the present system.

Thus transparency in public appointment can be achieved only by Public notification and selection of the best from among all the competent and eligible persons, and the true spirit of Article 16 of our Constitution is nothing other than this. Hence unless and until a transparent mode of selection exists and more importantly the consideration of all the eligible candidates NJAC or any other selecting body would only be a mere numerical replacement of the existing selecting bodies. The real need of the hour is not the replacement of any selecting body but the process of selection from the most suitable and competent among all the eligible.