The Author, Samarth Luthra is a 2nd year student of University School of Law and Legal Studies, GGSIPU Main Campus.
ABSTRACT
Collegium System is a system under which appointments and elevations of judges and lawyers to the Supreme Court and the High Courts, and also transfer of judges to High Courts and the Apex court are decided by a forum of the Chief Justice of India and 4 senior most judges of the Supreme Court. This Research Paper traces back to how this system came into place, as there is no constitutional provision(s) with regard to the appointment of judges vis-a-vis the collegium system, by going into the details of the famous ‘three judge cases’. Understanding the current situation of this system by discussing the merits such as the independence of the judiciary and demerits of this system such as the prevalence of inherent nepotism as also reiterated by the Law Commission of India. This paper also aims to evaluate this system of appointment of judges against systems followed in other countries and the critical analysis of another method of appointment, the 99th Constitution Amendment Act which entailed the National Judicial Appointments Commission (declared unconstitutional by the SC itself)(perhaps the Fourth Judge case).
Lastly, an understanding of the glaring, never-seen-before problem of the collegium system is sought.
The Collegium System in India - History, Status Quo and Alternatives
The Constitution of India has embodied the concept of Independence of Judiciary. However, the appointment of judges in the High Court and the Supreme Court has been left to the President, who works on the aid and advice of the council of ministers. The President shall act in accordance with such advice. Under initial scrutiny, it seems then that the Appointment of judicial seats is done by the Executive and the judiciary is left bereft of its independence. The only alternative that the President has in such a scenario is to sit over the decision of the council of ministers for indefinite period. However, an action like this would make the President vulnerable and open to Impeachment.
The constitution therefore, in this regard, also has another condition specific to the appointment of the judges in the high courts and the supreme court. Article 124 (2) mandates the President to consult the judges of the court before appointing a judge in the same court. The ‘consultation’ however did not bind the president in the same way he is bound by the council of ministers and the president’s power to appoint judges before 1973 was just a formality and the appointments were on behalf of the executive government.
The executive government showed the propensity to dissuade from the established practices from time to time. In 1973 when the 13 judge bench in the Keshvananda Bharati case pronounced the 7:6 verdict. The Indra Gandhi led Government moved away from the convention of appointing the senior most judge as the CJI and appointed Justice A.N. Ray as the CJI, superseding three other senior most judges. The three judges who were neglected were from the majority 7 compared to the minority 6. Justice Ray was from the minority 6, the side that favoured the Council of ministers so to say. The neglected judges resigned. Similarly, in 1977, Indra Gandhi led government appointed Justice M.U. Beg instead of Justice Khanna who was senior, primarily speculated to be because of Justice Khanna’s view in the ADM Jabalpur case. This has fortunately never happened since and the practice of appointing the senior most judge has been followed till now, the 47th CJI - Justice S.A. Bobde.
Questions regarding the potency of the terms like consultation have time and again found their way to the apex court. The landmark case laws herein are called the three judge cases.
The First Judge Case - S.P. Gupta v. Union Of India
The President had relied on the advice of the Chief Justice of the Delhi high court than the advice of the CJI and did not extend the term of an additional judge in the Delhi High Court. The question here was whether the President was bound by the advice of the CJI?
The court by 4:3 majority has held that the non-extension is valid and that there is no primacy of one authority over another, i.e., CJI’s advice is not more valuable than the High Court’s chief under Article 217.
The majority held that the meaning of the term, ‘consultation’ is not ‘concurrence’ and the power solely and exclusively lies in the President. (who as mentioned above, works on the behest of the Executive Government)
This judgment was critiqued as it took away the little independence that had developed by way of practice of consulting the CJI, Chief Justice of the High Court and the Governor.The counter-side was that the Executive is directly accountable to the people but the judiciary is not.
The Second Judge Case - Supreme Court Advocates-on-Record Association v. Union of India
In 1993, the following questions arose for consideration before a 9 member bench of the Supreme Court-
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Whether the opinion of the Chief Justice of India in regard to the appointment of judges in supreme court and high courts as well as in regards to transfer of high court judges, is entitled to primacy ?
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Whether the matter including the matter for fixation of the Judge-strength in the high court is justiciable?
The matter was brought before the court through a PIL writ petition for filling up judicial vacancies, the petitioners alleged that the executive is not able to fulfil the posts of the higher judiciary on time and also not competent enough to appoint the most qualified judges.
The majority consisting of J.S. Verma, Yogeshwar Dayal, G.N. Ray, Dr. A.S. Anand and S.P. Bharucha, JJ. held that the opinion of the CJI has primacy in the matter of appointment of the High Court and the Supreme Court Judges and no appointment could take place under these provisions unless the conformity with the opinion of the CJI is present. The opinion of the CJI, here, is the opinion formed by the CJI collectively after taking into account the views of two senior most judges. The court also held that the CJI should be the senior most judge of the Supreme Court considered fit to hold the office.
It also held that the strength of high court judges can be fixed.
Another landmark decision in this case was that the proposal for appointment in this case of judges in Supreme Court should be made by the Chief Justice of India and in the case of a high court, by the Chief Justice of the High Court, and for the transfer of chief justice of the high court the proposal should be initiated by the CJI.
The rationale was that the article 74(1) was circumscribed by the consultations under 124(2) and 217(1) and all of them had to be read together and that giving exclusive powers to the council of ministers would frustrate the consultation prescribed. Therefore, interaction and harmonisation of 74(1) with 124(2) and 217(1) is done.
This follows from the 1991 case of Subhash Sharma v. Union of India. wherein the Supreme Court observed that the opinion of the CJI should have a preponderant role and that the procedure followed till then had been an oversimplification of the Constitutional Mechanism.
The second judge case was widely celebrated as it overruled the effects of the First Judge case which limited the independence of the judiciary.
Third Judge case - Re Presidential Reference
In 1998, the then President K.R. Narayan issued a Presidential Reference for the word ‘consultation’ in Article 217(1) and 222(1). The question was whether the consultation with the CJI was enough or the CJI and other judges be consulted for the process of consultation to be complete.
A nine judge bench held that the word consultation meant consultation with the plurality of judges including the CJI, the sole opinion of the CJI does not suffice and encompass the term consultation under these articles.
Many believe that the Supreme Court took this opportunity presented to them by the President to further extend their Independence. This is seen as both boon and bane. The said case evolved the concept of what is today known as the Supreme Court Collegium.
The Apex court held that the CJI shall consult a collegium, which consists of 4 other senior most judges. The Composition then becomes, CJI + 4 senior most judges of the Supreme Court. It was also held that if two of these other 4 judges give adverse opinion to the CJI, then the CJI shall not recommend the names to the government. Other condition was that the Collegium must include the next CJI as well, which as mentioned above is based on seniority and fitness to hold office.
In cases of transfer of a judge of a high court to another high court, the judicial review only lies (save for exceptions) when the other 4 judges have not been consulted by the CJI or the Chief Justice of any High Court concerned is not consulted. Concerned High Court here means the High Court where the transfer takes effect from and the High court to where the transfer is sought.
This way the Judiciary strengthened its powers and limited the executive’s interference. However, the same has been criticised on many grounds.
LIMITATIONS OF THE COLLEGIUM SYSTEM
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When Judges appoint Judges, the essence of democracy is endangered.
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Had the Constitution makers found for the merits in this system, they would have expressed it in the Constitution. But the collegium is a concept that has evolved from the judiciary for the judiciary itself.
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Law Commission’s Report iterates that the Collegium System is an organisation inflicted with rampant nepotism and personal patronage. That a favour is done in exchange of a favour and inevitably, a judge’s son ends up becoming a judge.
Recent landmark judgment addressing these concerns
In a major step to counter these denunciations, the Supreme Court has recently upheld a Delhi High Court Judgment in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal, wherein the CJI’s office has been declared a public authority under the RTI act. The CJI’s office has also been said to be the same as the office of the Supreme Court.
The Supreme Court said that Transparency does not undermine Judicial Independence. It also said that Judicial independence and accountability go hand in hand. Now, the apprehension and limitations regarding an unaccountable judiciary are done away, to an extent that public interest test and privacy tests have to be done undertaken in providing the details of the ‘inputs’, as characterised by Justice Khanna.
While the information will only be divulged after counting for a plethora of factors, this judgment does put the Supreme Court office in the public eye. This is a sigh of relief only in terms of transparency, and the effectiveness and the overhauling independence still remain a concern.
This unique position of law is only found in India. In the UK, which is known as mother of democracy the Judicial Appointments Commission (JAC) an Independent Commission looks after the process of selection of candidates for judicial office in courts and Tribunals. The JAC consists total 15 members; out of those 3 members will be from Judges Community, and remaining 12 members (including Chairmen) are appointed through open competition. Besides JAC there is another authority known as “Judicial Appointments Conduct and ombudsman” to look into the Complaints regarding appointments by JAC and Judicial discipline or Conduct.
In South Africa, which is following the footsteps of great people like Mahatma Gandhi and Nelson Mandela, the president nominate the judges after consulting the “Judicial Services Commission” consisting of 23 members. The Judicial Services Commission consists Judges, Advocates, Legal Professors, members of Parliament and eminent persons nominated by the president as its members. The members of the committees will continue during the pleasure of the parliament.
In Italy which is one of the ancient imperial states, the Federal Constitutional Court is their highest court, which consists of a total of 15 members. Out of the 15 judges, 1/3rd will be appointed by the President of the country, 1/3rd by the parliament in joint session and 1/3rd by highest instance ordinary and administrative courts.
All the judiciaries in other prominent countries, seem to be enveloped by the Executive’s interference. In India, it seems that the issue with the appointment of judges are the existing judges themselves.
The parliament of India felt that the collegium system lacked accountability and transparency, as such through the 99th amendment to Indian constitution brought NJAC (National judicial appointments commission) in the year August, 2014. The NJAC consists of a total of 6 members, the Chief Justice of India will be its Chairmen, two other senior most judges of Supreme court are also appointed as its members, the Central Law minister acts as ex officio member and Two eminent persons hail from India (selected by a committee consisting CJ of Supreme court, Prime minister of India and Opposition leader in Lok Sabha) will be other members. Executive asserts that the judiciary had no jurisdiction to assume to itself, the role of appointment of Judges to the higher judiciary. It was pointed out that it is the Parliament alone, which represents the citizenry and the people of this country, and has the exclusive jurisdiction to legislate on matters.
Mr. Justice M.N. Venkatachaliah, who headed the National Commission to review the working of the Constitution, had also recommended a five-Member National Judicial Commission, whereby, a wide consultative process was sought to be introduced, in the selection and appointment of Judges.
Justice V.R. Krishna Ayer while writing forwards to “Story of a Chief Justice” expressed the collegium failed to select best judge’s available, similar view expressed by Justice Rumal Paul, Justice S.S. Lodhi and Sir Nariman. Justice Varma who headed the bench of 9 judges which propounded the popularly known Second judge Case also changed his view and expressed that it is time to review upon the Collegium System.
NJAC Case - Supreme Court Advocates on Records Association v. Union of India
The above mentioned NJAC’s constitutionality came into question and the 4:1 decision held the NJAC unconstitutional. The majority view was that the issue of appointment has direct nexus with the independence of the judiciary envisaged in Article 50 and throughout the constitutional history and working of the Republic of India.
Independence of judiciary and separation of powers were held to be the two major reasons by J. Kehar as to why the NJAC was struck down. J. Kurian Joseph concurred and held the view that ‘things should not be multiplied unless necessary’ - Entia Non Sunt Multiplicanda Sine Neccessitate.
The dissenting view of J. Chelameswar does not consider the 99th Constitutional Amendment Act as violative of the constitution, as it does not invest absolute powers to the president to appoint or transfer judges. Furthermore, the NJAC ensures that no unworthy candidate shall be appointed as long as 2 members of the commission view that the candidate is incompetent. He further added that the presence of the union law minister does not in anyway undermine the legitimacy and the independence of the judiciary but his exclusion would severely undermine the say of a democratic government chosen by the people and would be destructive to the basic feature of checks and balances.
Modern Problem requiring Modern Solutions
The collegium system was again considered to be operational and the NJAC struck down. However, a new never-seen-before problem is now seeping into the system. An Article penned down by a Retired Judge of the Supreme Court J. Madan B Lokur for the Indian Express states that, “It seems to me that the unconstitutional NJAC is rearing its head and is now Frankenstein’s Monster. The advice of 2 eminent persons postulated by the NJAC is no longer required.”
The CJI wrote letters to the Union law Minister that many of the recommendations made by the collegium were still pending and the vacancies in the High courts were as mammoth as 37% and it was also reported that the collegium is yet to decide on some recommendations because it was yet to receive some information from the Government. The article then states that it is because of such fallacies in the system that the Union government now seems to be the one calling the shots.
The collegium also recommended that one additional judge of the Allahabad High Court be made a permanent judge, the Union in this regard rejected the reports and recommendations of the collegium. The natural reaction would have been filing a writ of quo warranto, but instead no one protested - not a single word. This silence has vested the Executive with an unwarranted power.
A problem like this has only arisen because the enthusiasm of the judiciary while deciding all the aforementioned cases has not been met by equivalent action later.
Conclusion
Whether the situation improves after the RTI - CJI judgment remains to be seen, but it is evident that there is no accountability in the appointment of judges. The people who run the appointments are bereft of proper responsibility and accountability. The judiciary has not only failed in the implementation of the collegium system but aren’t even culpable for it. The Union Government, on the other hand, seems to be running point currently and the interference is back. The Indian Constitution is suffering and awaiting immediate attention.
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