Abstract
The independence of the Judiciary is a
cardinal principle of our Constitution. It is a dynamic concept that
encompasses independence from any pressure or prejudice. However, the concept
has remained a simmering issue between the executive and the judiciary,
especially regarding the appointment of Judges. The tussle mainly revolves
around the procedure for appointments to the higher judiciary. While the
Collegium system for judicial appointments is considered too opaque by the
executive, the Courts have repeatedly reiterated that the executive's inclusion
in the process would pave the way for politically partisan appointments. The
present paper compares the Collegium system and the National Judicial
Appointment Commission as methods for appointing judges. It elucidates how this
deadlock can be disentangled in the most democratically appropriate manner.
Key words: Collegium, Independence of
Judiciary, Judicial appointments.
“The
concept of independence of judiciary is a noble concept which
inspires the constitutional scheme and
constitutes the foundation on which
rests the edifice of our democratic polity.”
-Justice
P.N. Bhagwati.
Introduction:
The
principle of the Rule of Law runs through the entire fabric of our
Constitution, and it is the Judiciary that is entrusted with the task of
keeping every organ of the State within the limits of the law, thereby making
the rule of law meaningful and effective. For this purpose, the judiciary must
be free from executive pressure, and our Constitution-makers secured this
through elaborate provisions on the judiciary's independence. The
independence of the judiciary thus constitutes part of the basic structure of
our Constitution and is considered fundamental to democracy.
Judicial
independence and the transparent appointment of judges are interlinked. The selection
and appointment of judges is crucial to maintaining the independence of the
judiciary and the separation of powers between the Executive and the Judiciary.
Articles 124 and 217 of the Indian Constitution
deal with the appointment of judges to the Supreme Court and High Courts of the
country. The Constitution does not lay down a very definitive procedure for this
purpose, as it merely says that the President is to appoint Supreme Court
judges in consultation with the Chief Justice and such other judges of the
Supreme Court and High Courts as the President may deem necessary.
A bare reading of the provisions shows that the
Collegium system did not figure in the Constitution, that the final power to
appoint Judges rested with the Executive, and that the views of the Chief
Justice were not regarded as binding on the Executive. Moreover, it was also
not clear from the provisions as to whose opinion was finally to prevail in
case of a difference of opinion among the concerned persons. This controversy
over the term ‘consultation’ was finally laid to rest by the Supreme Court
itself in the case of Supreme Court Advocates-on-Record Association v. Union of
India. Considering the issue,
the Court pointed out that the provision for consultation with the Chief
Justice was introduced because of the realisation that he is best equipped to
assess a candidate's worth and suitability for appointment to the higher
judiciary. It emphasised that the opinion of the Chief Justice should carry the
greatest weight, and that the selection should be made through a participatory
consultative process, with the executive having the power to act as a mere
check on the Chief Justice's exercise of power, to achieve the constitutional
purpose. It further emphasised that
this primacy of opinion is necessary to ensure the independence of the judiciary
and to preserve democracy. This
assertion of independence has led to the evolution of the judicial appointment
mechanism from ‘consultation’ to ‘concurrence’ to ‘Collegium’ to the current
state of ‘constant conflict and confusion’.
The Collegium system:
The Collegium system was born out of years of
friction between the Judiciary and the Executive. This hostility was
exacerbated by instances of court-packing (the practice of changing the
composition of a court), the mass transfer of high court judges, and two
supersessions to the office of the CJI in the 1970s.
The Collegium
system is an extra-constitutional body comprising the judges, a brainchild of
the Supreme Court itself, meant to assist the Chief Justice of India in
selecting persons to be recommended for the appointment and transfer of judges
of the Highest Courts. Its legal basis is found
in three Supreme Court judgments — usually referred to as the ‘Judges Cases’ —
concerning the higher judiciary. In this light, it becomes necessary to
analyse the three judgments which paved the way for the Collegium system:
1.
S.P. Gupta v. Union of India (First Judges Case): This
judgment gave the Executive primacy over the Judiciary in judicial
appointments, by stating that CJI’s advice may be rejected for
cogent and convincing reasons however, it was also observed that the
President’s consultation with the CJI should be ‘full and effective’.
Since Art. 217(1) of the Constitution mentions ‘consultation’
rather than ‘concurrence’, the Central Government was given the discretion to
override the view of the constitutional functionaries that must be consulted
and the final decision in the matter was left in the hands of the Executive.
After referring to Article 124(2) and 217 (1),
J. Bhagwati observed:
‘…It is clear on plain reading of these two
Articles that the Chief Justice of India, the Chief Justice of High Court and
such other judges of High Courts and Supreme Court as the Central Government
may deem it necessary to consult are merely constitutional functionaries having
a consultative role. The power of appointment resides solely and exclusively in
the Central government… It would therefore be open to the Central government to
override the opinion given by the constitutional functionaries required to be
consulted and to arrive at its own decision… the Central Government is not
bound to act in accordance with such opinion.
Thereby,
in giving primacy to the executive, the independence of the judiciary was
wrongfully curtailed. This majority ruling was, however, criticised in the
course of time by the Supreme Court in Subhash Sharma v. Union of India,
in which the Court also criticised the practice of the State sending up the
names for appointment to the High Court directly to the Central Government
instead of sending the same to the Chief Justice of the High Court concerned.
The Bench, therefore, suggested reconsideration of this aspect of the process
of appointment of judges by a larger Bench.
2. Supreme Court Advocates on Record v. Union of
India (Second Judges case): Through this judgment, primacy in the matter
of appointment was given back to the judiciary. The court observed that
‘the role of the CJI is primal in nature because, being a topic within the
judicial family, the executive cannot have an equal say in the matter’. The nine-judge bench held
that the word “consultation” in Article 124(2) should be read to mean
‘concurrence’ or agreement of the CJI. This led to the introduction of the
initial version of the Collegium, where the CJI would consult two of his
senior-most judges on appointments, and their collective opinion would have
primacy. Thus, the executive element in the appointment process was minimised. This was to make the
entire process more transparent, ensuring that neither political bias, personal
favouritism, nor animosity would play any part in the appointment of judges.
3. Re: Special Reference (Third Judges
case): Clarifying certain points arising out of the Second judge’s case,
the Supreme Court delivered an advisory opinion on a reference made by the
President under Article 143 and laid down that the CJIs should consult with a
plurality of the four senior-most Supreme Court judges for judicial
appointments and transfers. This is how the sphere of consultation was
broadened, and the Collegium, in its present form, came into existence.
Since its inception,
this system of appointment has often been criticised for being ‘alien’ to the
Constitution. The main criticism of the existing Collegium system is that it
has evolved through Supreme Court judgments and lacks Constitutional backing.
Apart from this, there are some apparent drawbacks in the existing system. The
First one is opacity. The Collegium system has allowed
its members to work in a cabal, completely free from accountability. They are
not required to justify their disregard for the seniority factor or their
rejection of a name in one meeting while accepting it in the other. There are
no rules to maintain even a hint of credibility and legitimacy in the
Collegium. This system is a well-kept secret with no written operating manual,
no prescribed qualifications for selection, and no publication of its meeting
records, giving its members an absolutely unbalanced power. Secondly,
the Collegium provides an avenue for nepotism and favouritism. Even the Law
Commission of India, in its 230th Report, has recognised a phenomenon known as
the ‘Uncle Judges Syndrome’, in which a person appointed as a High Court Judge
has kith and kin practising in the same court.
Thus, a system in which only judges select future judges is not in line with
the democratic principle of checks and balances emphasised in our Constitution.
National Judicial Appointment Commission (NJAC):
In 2014, Parliament passed the Constitution
(99th Amendment) Act, 2014, along with the National Judicial Appointments
Commission (NJAC) Act, 2014, which created an independent commission to appoint
judges to the Supreme Court and high courts, replacing the Collegium system. It
was an enlarged and improved form of the erstwhile Collegium system. The
objective of the Commission, as stated in the Act, was ‘to provide a meaningful
role to the Judiciary, the executive and eminent persons to present their
viewpoints and make the participants accountable, while also introducing
transparency in the selection process.’
To replace the system, which received criticism over the
years for its lack of transparency, the Constitution (99th Amendment) Act
introduced three key Articles- 124 A, B, and C and amended clause 2 of Article
124. Article 124-A created the National Judicial Appointments Commission
(NJAC), a constitutional body to replace the Collegium system, Article 124-B
vested in this NJAC the power to make appointments to both the Supreme Court
and the various high courts, and Article 124-C accorded express authority to Parliament
to make laws regulating the NJAC’s functioning. The NJAC was to be composed of:
a.
The
Chief Justice of India as the ex
officio Chairperson.
b.
Two
senior-most Supreme Court Judges as ex
officio members.
c.
The
Union Minister of Law and Justice as an ex officio member.
d.
Two
eminent persons from civil society (to be nominated by a committee consisting
of the Chief Justice of India, Prime Minister of India and the Leader of
Opposition in the Lok Sabha; one of the eminent persons to be nominated from
SC/ST/OBC/minorities or women).
It was to be a broad-based organisation that sought to
abolish the Judiciary's exclusive power to appoint judges. Though the Act did
not make any changes in the basic qualifications for appointment as judges,
however, with a view to bring about improvement in the quality of judges, it
provided that the Chief Justice of India and Chief Justices of the High courts
were to be recommended by the NJAC based on ‘seniority’ while SC and HC judges
were to be recommended based on ‘ability, merit, and other criteria specified
in the regulations’.
The Act also empowered any two members of the NJAC to veto a recommendation if
they disagreed with it.
A
detailed reading of both the 99th Amendment Act and the NJAC Act of
2014 reveals several factors that could undermine the primacy of the Judiciary
in matters of appointment and transfer. The first and foremost amongst them is
the Pre-dominance of the Executive, by
insertion of Article 124-C in the Constitution, which states that Parliament
shall be the one to regulate the process of appointment of the Chief Justice of
India and other Judges of the Supreme Court and Chief Justices and other Judges
of High Courts by enacting statutory provisions and it shall empower the
Commission to lay down by regulations the procedure for the discharge of its
functions, the manner of selection of persons for appointment and such other
matters as may be considered necessary by it.
The
second factor is the Initiation of the
Appointment Process by NJAC. By Section 4 of the National Judicial
Appointment Commission Act, the Commission was made the initiator of the
proceedings of the appointment of judges, which, since the times of the
Constituent Assembly Debates, was the prerogative of the Chief Justice of
India, with the consultation of other Judges.
The third factor is the Composition of
the Commission under Article 124- A.
The precedent set by the 2nd Judges case and then reaffirmed by the
Presidential reference of 1998 had laid down the formation of a Collegium of 5
senior-most puisne judges of the Supreme Court, including the Chief Justice of
India. The Executive's infiltration is evident from the fact that the NJAC
consists of only 3 members, including the Chief Justice of India, out of a
total of 6. Not only does the Committee that would nominate the two eminent
members to the Collegium have only one representative from the Judiciary, and
that is the Chief Justice of India. The paradigm shift in the balance of power
between the Executive and the Judiciary is imminent.
The Fourth factor concerns the Second
proviso to Section 5 and Section 6(6) of the National.
Judicial Appointment Commission Act, 2014, which states that the recommendation
shall not be made if any two members of the Commission do not concur. In other words,
if the three members of the Collegium and the Law minister recommend as to the
suitability of a prospective judge, the other two eminent members (who may be
from a non- law background) may neutralise the recommendation. Such extralegal
or nonjudicial members could potentially dominate the judicial process of
appointing judges through this veto.
Finally, on October 16, 2015, the
five-judge Bench in Supreme Court Advocates on record Association v. Union of
India, with a 4:1 majority, held that the NJAC was unconstitutional and
violated the basic structure of the Constitution. In the judgment of more than 1000
pages, former CJI Justice J.S. Khehar penned his majority opinion, followed by
separate concurring opinions by Justices Madan B. Lokur, Kurian Joseph, and
A.K. Goel. Justice J. Chelameswar was the only dissenter in the Bench.
Justice J.S. Khehar observed that: ‘It is
difficult to hold that the wisdom of appointment of judges can be shared with
the political executive. In India, the organic development of civil society has
not yet reached sufficient maturity. The expectation from the judiciary, to
safeguard the rights of the citizens of this country, can only be ensured by
keeping it absolutely insulated and independent from the other organs of
governance.’
Meanwhile, Justice Chelameshwar pointed out in
his dissent that ‘transparency was a vital factor in constitutional governance
and the Collegium proceedings were absolutely opaque and inaccessible to the
public and history.’ He further observed that
the ‘assumption that the primacy of the judiciary in the appointment of judges
was a basic feature of the Constitution was flawed and that the absolute
exclusion of the Executive was violative of the basic feature of checks and
balances.’
However, the Bench also admitted the fact that all
was not well even with the Collegium system of ‘judges appointing the judges’,
and that the time was ripe to improve the system of judicial appointments,
inviting the government to work on improving the Collegium system altogether.
Way forward to disentangle the deadlock:
The key outcome of the
Constitution Bench judgment on NJAC was the restoration of the Judiciary's
ultimate authority over its selection and appointment. This has made judicial appointments a centre of
impasse between the Government and the Supreme Court. Since the
duly elected Executive is denied a meaningful legal-institutional role in the
appointment process, the Collegium's decisions often face prolonged delays from
the Executive.
Time and again, it has
been questioned how the judiciary could have struck down a constitutional
provision that was passed unanimously and reflected the will of the people. The
Collegium has been attacked for creating an ‘imperium in imperio’ (empire
within an empire) within the Supreme Court, for nowhere else in the world does a
system exist in which judges appoint judges.
A
close perusal of the pros and cons of both systems of higher judicial
appointments reveals that neither is flawless. Therefore, it would not be wrong
to say that the usage of the Collegium is neither impermissible nor unjustified
until a more suitable alternative is devised, as government interference in
judicial appointments would potentially undermine the independence of the judiciary. If the final power in
this respect is left with the executive, the executive can subvert the
judiciary's independence by appointing pliable judges. In fact, the executive
overreach in the 1970s and 1980’s has given rise to the Collegium system, which
is often criticised as a product of ‘Judicial activism’. However, a cloistered judiciary also raises suspicions of
nepotism, as politics could easily play a role in appointments made behind the
closed doors of the Collegium. This was the reason that the need for NJAC was
felt. But what is required is not necessarily a re-composition of the
Collegium to include external members, such as in the NJAC, or even a wholly
independent body altogether. If the method of appointment is properly
regulated, it would not matter who appoints the judges. Therefore, the solution
lies in increasing transparency and establishing explicit criteria for
appointment.
In this regard, guidance
can be drawn from the United Kingdom's Constitutional Reform Act 2005, which
established a framework for judicial appointments by creating an independent Judicial Appointments Commission (JAC). According
to the Act, appointments are to be made ‘solely on merit’ and only once the
selecting body is convinced that the candidate is ‘of good character’. The JAC
follows five stipulated merit criteria when choosing candidates. These include
intellectual capacity (appropriate knowledge of law and expertise in the chosen
area), personal qualities (including professionalism, decisiveness, ability to
work constructively with others and objectivity), an ability to understand and
deal fairly (to treat everyone with respect regardless of their background, and
a willingness to listen patiently), communication skills (including the ability
to explain and justify decisions succinctly and maintain authority when
challenged), and lastly, efficiency (involving the ability to work under
pressure and to produce scrupulous judgments swiftly).
For sure, it cannot be said that the Collegium is so perfect
that there is no scope for any improvement. The criticism of the Supreme
Court’s system for selecting judges is fair to an extent, but it warrants more
nuanced deliberation. Both the executive and the
judiciary need to engage in meaningful institutional dialogue to achieve a fine
balance without compromising judicial independence. It would be better for the Judiciary to agree to a process of reforms in
the way the Collegium functions, especially about expansion in the range of
consultation and widening of the zone of consideration, so that the
consultation is more diverse and representative of all sections, and the
Executive also needs to understand that ‘answer to judicial dominance is not
executive dominance, a path we have gone down. It is, rather, a balanced
process that considers all stakeholders’ interests. But at present, there is no
such proposal on the table.’
_____________
However, the Bench also emphasised that the
appointment of judges was a ‘participatory constitutional function, and certain
constitutional functionaries were collective repositories. The joint venture of
all the constitutional functionaries will help to transcend the concept of
primacy between them’. See Supra note 13
Gautam Bhatia, ‘Criticism
of judiciary needs more nuance’, published in the Hindustan Times on 16 Nov.
2022.