The judiciary and the executive have been at loggerheads with each other over finalisation of a new Memorandum of Procedure (MoP) after NJAC was struck down by the Hon’ble Supreme Court. Will there be an end to the controversy? Here is a look at the history of appointments of judges in the higher judiciary and the debate which continues till day.
Recently in a clear chastisement to Intelligence Bureau (IB) for meddling with the selection of judges, the SC Collegium, said, “We are of the view that professional competence can best be determined by the members of the higher judiciary who have the opportunity to observe his (candidate’s) performance on a daily basis.” The Collegium dismissed the adverse report by the IB on the professional competence of four senior advocates for the selection of judges.
Appointment of judges has always been a controversial subject. Even as there is no expressed constitutional provision of separation of power, Indian constitution has devised ways to keep all organs of democracy in check. Thinkers have abhorred the idea of ‘the same man or same body exercising those three powers; that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.’ According to Madison, accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many is equal to a tyranny. So, the makers of the Constitution have created a system of checks and balances to control ‘end of everything’, as expressed by Mostequieu.
Since the Supreme Court of India has been vested with the power to decide on the constitutionality of any legislation, it commands a lot of power within the three legs of the governance. The Constitution says in the Article 131: “Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—
For the appointments of judges of the Supreme Court and High Courts, the Constitution has specific provisions.
Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
217(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.
The Constitution has given importance to the independence of judiciary but, the appointment of judges is not completely in their hands, as envisaged by the Constitution. It is a consultative process with the President who is a Constitutional head of the State as the final authority to select or reject a judge. However, the experts point out that Indian Constitution has given some sort of primacy to the judiciary in this case, but doesn’t give them absolute power to decide the appointment of judges in the Supreme Court and High Courts of India.
Initially, the appointment of judges took place as envisaged by the Constitution with no big conflicts between the legislature and the judiciary. According to Fali S Nariman, “Since the Constitution was adopted in 1950, the entire edifice on which judicial appointments had rested was the primacy of the Chief Justice of India. Accordingly by convention, the executive invariably accepted the advice of the CJI as to who should or should not be appointed as judges to the High Courts and Supreme Court and the system worked. No one bothered too much about the precise language used in the relevant article (124) of the Constitution.”
But in 1981, in S.P. Gupta vs President Of India And Ors, the Supreme Court bench consisting of A Gupta, D Desai, E Venkataramiah, P Bhagawati, R Pathak, S M Ali and V Tulzapurkar said that primacy of the CJI’s recommendation to the President can be refused for cogent reasons.
Examining the question that whether in the consultative process contemplated by Article 217(1), is there any primacy intended to be given to the views or advice rendered by the Chief Justice of India in the matter of appointment of a High Court Judge? The bench quoted from the Constituent Assembly debate and said:
“It must also be borne in mind that if the Government departs from the opinion of the Chief Justice of India it has to justify its action by giving cogent and convincing reasons for the same and, if challenged, to prove to the satisfaction of the Court that a case was made out for not accepting the advice of the Chief Justice of India…. Of course, the Chief Justice has no power of veto, as Dr. Ambedkar explained in the Constituent Assembly”
‘‘There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself. And the question is how these two objects could be secured… With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and an the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that, that is also a dangerous proposition.”
The judgment in SP Gupta led to the executive having primacy over the judiciary in judicial appointments, and so the system went on even as some instances of controversial appointments in the selection of judges for appointment and transfer cropped up. One such controversy happened when the day after the judgment in Keshavnandan Bharti case in 1973, three of the seven judges in the majority, including Justice Hegde, were superseded from the office of Chief Justice. The fourth in seniority, Justice A.N. Ray, was appointed Chief Justice. It led to the resignation of the three superseded judges.
After this in 1993, a nine-judge bench of the Supreme Court of India in Advocates-on Record Association vs Union of India case, called the Second Judges Case, overturned the First Judge judgment. The Court held: “In the choice of a candidate suitable for appointment, the opinion of the Chief Justice of India should have the greatest weight as he is best suited to know the worth of the appointee; the selection should be made as a result of a participatory consultative process in which the executive has the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.”
The judgment noted that in the appointment of judges the executive cannot have an equal say. It would lead to divergence if the legislatures were to have the same role in the matter. It further said: “The opinion given by the Chief justice of India in the consultative process has to be formed taking into account the views of the two senior most Judges of the Supreme Court and the opinion of the Chief Justice for the purposes of Articles 124 (2) and 217(1), has primacy. In case of appointment of a Supreme Court Judge the proposal is to be initiated by the Chief Justice of India and in the case of a High Court Judge by the Chief Justice of that High Court.”
In a total of five judgments delivered in the Second Judges case, Justice Verma spoke only for himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But, Justice Ahmadi showed dissent and Justice Punchhi had the view that the CJI can consult any number of judges if he wants to and not just two.
This led to the creation of a Collegium with two judges which appointed candidates with the consultation and final approval of the President of India.
However, in 1998, when President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction), the SC constituted a nine judges’ bench and held:
These nine guidelines for the functioning of the coram for appointments and transfers of judges constituted the Collegium and has been prevalent ever since. According to Nariman, “The judgment in the Third Judges Case also recorded a significant statement of the then Attorney General of India, made on behalf of the Union of India, that the Union was not seeking a review or reconsideration of the judgment of the court in the Second Judges Case (1993). By express acquiescence of the executive, the collegium system was to stay.”
However, the decisions of Collegium have been criticised by many from time to time. Some of the experts have expressed, that the Collegium in most of the occasions do not abide by the guidelines set by the Supreme Court. In late 2016 Justice J. Chelameswar of the Supreme Court accused the Collegium of not recording or communicating the views of its members to the government and for not even maintaining the minutes of its own meetings. It also said that the views or dissent of its members are not recorded or communicated to the government and the views of the Chief Justices of the High Courts are also not informed to the government. So, clearly the Collegium system has been criticised for their appointments by many in judiciary itself.
The BJP-led government after coming to power in 2008 appointed the Justice M N Venkatachaliah Commission to find out whether there was a need to change the Collegium system. The Commission recommended in 2002 for the establishment of a commission for appointing judges and prescribed a National Judicial Appointment Commission Act (NJAC). It consists of Law Minister, the Chief Justice of India, two senior most judges, and an eminent person from the public to be chosen by the President in consultation with the Chief Justice of India. In December 2013, Constitution (120th Amendment) Bill, 2013 and the Judicial Appointments Commission (JAC) Bill, 2013 were introduced in the Rajya Sabha. The Standing Committee submitted its report on the JAC Bill, 2013 in December 2013. However, The Constitution (120th Amendment) Bill, 2013, which was passed by the Rajya Sabha, lapsed with the dissolution of the 15th Lok Sabha. The JAC Bill, 2013 was withdrawn on August 11, 2014.
When the BJP came to power again in 2014, The National Judicial Appointments Commission Bill, 2014 was prepared and introduced in the Lok Sabha on August 11, 2014 by the Minister of Law and Justice, Mr. Ravi Shankar Prasad. The Bill provided for the procedure to be followed by the NJAC for recommending people for appointment as Chief Justice of India and other Judges of the Supreme Court (SC), and Chief Justice and other Judges of High Courts (HC). The Parliament passed National Judicial Appointment Commission Bill by amending the Constitution [Constitution (Ninety-Ninth Amendment) Act, 2014] and NJAC Act. The Constitutional Amendment Act came into force from April 13, 2015 giving politicians and civil society a final say in the appointment of judges to the highest courts.
But in 2015, a five-judge Constitution in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as unconstitutional and void. It held that the Collegium system, as it existed before the NJAC, would again become operative. Justice Khehar who headed the Constitution bench said: “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 as yet sufficiently evolved. 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.”
The majority opinion in the judgment unequivocally said, “There is no question of accepting an alternative procedure, which does not ensure primacy of the judiciary in the matter of selection and appointment of judges to the higher judiciary.”
Since then, there has been a debate which refuses to die down. The judiciary and the executive have been at loggerheads with each other. However, the 2015 ruling led to a process of creation of a new Memorandum of Procedure (MoP) to guide the appointments of judges to the higher judiciary so that concerns regarding lack of eligibility criteria and transparency could be redressed. But the MoP has been mired in controversy. It has remained a bone of contention between the judiciary and the Government. MoP is still to be finalised owing to lack of consensus on the issue of public interest and national security. The government wants to have ‘public interest’ and ‘national security’ as grounds for rejection of names, which the Supreme Court wants to be struck down once again.
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