There are instances where judiciary has exercised its powers which vest with the legislature. Similarly, legislature has many times over-ruled those decisions made by the judiciary. There is an on-going battle between the legislature and the judiciary on who is vested with what power. This is the concluding part of the article.
The procedure of appointment of judges in India has been enshrined in Articles 124 and 217 of the Constitution of India for the appointment of the Supreme Court and the High Court Judges respectively. Although these provisions seem simple and clear theoretically, their practical implementation has been highly controversial.
To put it simply, Article 124 states that the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The Chief Justice of India has to be consulted in all appointments, except his or her own.
Further, Article 217 gives the power to the President to appoint the High Court Judge after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
Currently, the appointment of higher judges is based on a “Memorandum of Procedure for Appointment of Judges of the Supreme Court and High Courts” prepared in 1998 pursuant to the Supreme Court Judgment dated October 6, 1993 read with their Advisory Opinion of Apex Court delivered on October 28, 1998.
Before 1993, the executive played a vital role in the appointment of judges. In fact, in S.P. Gupta v. Union of India AIR 1982 SC 149, the Supreme Court, in a self inflicted blow, held that the opinion of the Chief Justice of India could be completely ignored in the matter of appointment of Supreme Court and the High Court judges. The majority in this case, held that ‘consultation’ cannot mean ‘concurrence’ and held that the concept of primacy of the CJI is not really to be found in the Constitution. This judgment shifted the balance in favour of the executive in the matter of appointments. However, the term ‘consultation’ was re-interpreted by the judiciary giving it a new meaning and shifting the power of appointments back to the judiciary.
Eventually, the judiciary realised its own mistake and over-ruled its decision in Supreme Court Advocates-on-Record Association v. Union of India. The Apex Court concluded that its role was to protect the integrity and guard the independence of the judiciary and to fulfil the same it. It devised a method for appointment of Judges.
Once again the focus was back on the power of the CJI to choose the Judges. It was decided that the result of the consultation of the CJI along with his two senior-most colleagues would result in such recommendation that should be given effect to by the executive immediately. Thus, the executive had the power to ask for reconsideration of the recommendation but if the same advice was reiterated then the executive was bound to make the appointment (National Commission to Review The Working of the Constitution (December 26, 2001). In short, the role of the executive was formal and the real power of appointment passed into the hands of judiciary.
In Re Presidential Reference, a nine-Judge Bench of the Supreme Court has unanimously held that in case of transfer of judges of a High Court, the Chief Justice of India must consult the four senior most judges of the Supreme Court and in addition to the collegium of four judges the CJI is required to consult the Chief Justice of the two High Court (one from which the Judge is being transferred and the other receiving him). The collegium should make the decision in consensus and unless the opinion of the collegium is in conformity with that of the CJI, no recommendation is to be made. The view taken in this case has re-affirmed the 1993 decision.
The collegium system officially came into being in 1993. The purpose of introducing this system was to ensure that there is no politics involved in the selection of judges. There had been various instances in the past where the judges were wrongfully appointed by the executive. One such example was the appointment of Justice A.N.Ray as the Chief Justice by Mrs. Indira Gandhi. He was appointed as the CJI though there were three more judges who were senior to him. To prevent such cases, where the political motive would supersede the interests of justice, the collegiums system was established. This system consists of a powerful clique of judges chaired by the CJI who has the absolute and irrefutable power if appointments of other judges in both the Apex as well as the High Courts.
At the same time, the Constitution (67th amendment) Bill, 1990 was proposed which laid the provisions for the formation of a National Judicial Commission. The purpose was to prevent any arbitrariness in appointment of judges and this Judicial Commission was based on the recommendations in the 121st Law Commission Report. Since the Bill was never passed, a similar proposal was made in the Constitution (98th amendment) Bill, 2003.
However, this set up of collegium systems by the judiciary was criticized, and in the 214th Law Commission Report in 2008, the Commission pointed out that the Judges constituting the collegium were not well versed with the names and antecedents of the candidates and the appointment would generally be the result of lack of adequate information. Further, there are two recommendations proposed by them to address this issue. One is to seek a reconsideration of the three judgments aforesaid before the Hon’ble Supreme Court, otherwise, a legislation should be enacted which gives primacy to the Chief Justice of India and the power of the executive to make the appointments.
The collegium system has faced opposition from many quarters. It is contended that the appointment of judges is dictated by extraneous considerations and merit and competency are overlooked. Also, it is believed that judges do not have the power of appointment as it takes away the power from the executive and is a direct interference by the judiciary. The decisions of appointing persons to prominent judicial positions have been criticism by the stakeholders on various accounts.
There have been instances where the decisions taken by the judges within the collegium system has been questioned by the judges as well as the executive. It is contended that under the present system the appointments are made behind closed doors and there are no explanations behind several appointments that have taken place in the past.
To put an end to this never ending tussle between the executive and the judiciary, the legislature proposed the Judicial Appointments Commission Bill, 2013 which seeks to scrap the existing collegiums system. The statement of objects of the Bill has emphasized that the Bill would ensure equal participation of judiciary and executive by making the system of appointments more accountable, and thereby increasing the confidence of the public in these prestigious institutions. The Article 124A is inserted to the Constitution and the proposed article reads-
“124A. (1) There shall be a Commission to be known as the Judicial Appointments Commission.
Thus, tables have been turned once again in the favour of the executive. The residuary clause which has included “other matters” has taken away whatever little power vests with the judiciary. This in essence gives vast and unfettered power to the Parliament on Judicial appointments. Similar changes are proposed in Article 217 and the new process will be based on the recommendations of the Judicial Appointments Committee. This Committee shall consist of the Chief Justice of India, the next two senior judges of the Supreme Court, the law minister, and two eminent persons. Furthermore, it will only take a simple majority of the Parliament to make any amendments to the Bill.
There are glaring flaws in the proposed system. Firstly, since the sitting CJI shall be in a position to elect the next CJI, there shall be a chance of bias. Since the ‘eminent persons’ who form a part of the selection committee include the Prime Minster, Leader of Opposition in the Lok Sabha and the Chief Justice of India, the committee’s decision will be hugely politicized. Lastly, there is absolutely no representation of the members of the Bar. The Bill comes as powerful blow against the hegemonic omerta of the collegiums system, an invaluable wedge against judicial tyranny.
The Bar Council Chairman expressed his displeasure, “The government is trying to interfere with the judiciary by appointing outsiders in the Commission for the obvious reason that the Supreme Court has expressed strong views in corruption cases involving politicians. Replacing the existing collegium is a vital issue that will change the basic structure of the Constitution.”
It is evident that there are glaring defects in both methods of appointment in the judiciary. When the power vested in the executive, it was used arbitrarily to make appointments of those judges which would pass judgments favouring the political climate of the country. On the other hand, though the aim of the collegium system was to prevent corruption in the judiciary, this system has also failed to accomplish its mission. Justice Verma, who was the architect of this system, has also voiced his displeasure on the misuse of this system.
“The government is trying to interfere with the judiciary by appointing outsiders in the Commission for the obvious reason that the Supreme Court has expressed strong views in corruption cases involving politicians. Replacing the existing collegium is a vital issue that will change the basic structure of the Constitution.”
Lastly, the purpose of the new Judicial Appointments Commission Bill is to ensure that there is a proper balance within the system for the appointment of the members into the judiciary. It all borders down to one thing- to impose a check and maintain a balance between the three prime organs of governance. However, time will only tell whether this Bill will be successful in building a satisfactory judicial structure.
In the words of Madison, “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, selfappointed or elective, may justly be pronounced the very definition of tyranny.”
Although prima facie it appears that the Constitution is based on the doctrine of separation of powers, the practical reality seems otherwise. Article 50 in the Constitution of India, 1950, makes a mere mention of keeping the executive and judiciary separate from each other. The two illustrations( first was made in part 1) in this article have been used to draw a line between the wings of the government.
However, it is evident that in a democracy like India, the system of checks and balances has been mis-used. On one hand, the legislature uses its power to enact the legislation; on the other hand, the judiciary can exercise its power to strike off those provisions which are unconstitutional. These powers have often been misused by both agencies. Thus, there is a constant never-ending tussle for power between them.
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