I n India, the Constitution is supreme and it provides for an independent judiciary, which cannot be altered, as it is a part of the basic structure. In order to ensure smooth functioning and avoidance of unfettered power an efficacious system of checks and balances exists throughout the Constitution. While treating the Constitution as the gospel with passage of time a unique and unintended construction has been given to Article 124(2) and 217(1). The plain reading of Article 124(2) lucidly involves the President in the process of ‘consulting’ when appointing Supreme Court judges, where as Article 217(1) goes a step ahead and involves the President, Chief Justice of India, Governor and the Chief Justice of the respective High Court in the process of ‘consulting’ when appointing judges to High Courts. After examining the whole process of appointment one can deduce that the idiom ‘consulting’ viz a viz the executive and the judiciary has been enigmatically shrouded by ‘concurrence’ of the judiciary (as can be witnessed in the constituent assembly debates where after due consideration the word ‘consultation was chosen instead of ‘concurrence’). India is the only democratic country in the world where its judiciary (collegium) appoints judges. A further astounding fact is thatnowhere does the Constitution contain the word ‘collegium’.
There are a set of landmark cases, which by dint of judicial interpretation have created the collegium system. The ball was set rolling in the S.P. Gupta (judges 1) case (AIR 1982 SC 149) where the apex court ruled that the opinion of the Chief Justice of India would not have primacy over judicial appointments instead the Union Government/Executive would have the final word on it considering its accountability towards the people which is absent in the case of he judiciary. The aforementioned case was over ruled in Supreme Court Advocates on Record Association v Union of India (judges 2 case) (1993) 4 SCC 441 where the apex court saidthat the chief justice is best equipped to know and assess the worth of a candidate and his suitability of appointment as a superior judge. In the event of disagreement during the consultation process the view of the judiciary would attain primacy unless certain cogent reasons were given by the executive, which could not be ignored. It is here, that the apex court for the very first time, lays down that the opinion of the Chief Justice must be formed after ascertaining the views of at least two senior most judges. This ruling gave birth to the collegium, which now consisted of 3 members (the Chief Justice and two senior most judges). The ratio of this judgment was later affirmed in AshishHanda v Chief Justice of Punjab and Haryana and others (1996) 3 SCC 1445 which reiterated the primacy of the opinion of the Chief Justice. The Supreme Court subsequently, altered the size of the collegium to 5 members (Chief Justice and 4 senior most judges) in a presidential reference in 1998 which is also known as the judges III case (1998) 7 SCC 73. The last significant ruling on this issue came from Ashok Tanwar v State of Himachal Pradesh (2005) 2 SCC 105 where it affirms the logic in the judges 2 case. Resultantly, the appointment of judges till today is through the body of the collegium, which has virtually eliminated the role of the executive in the participative process under the guise of interpretation.
A phrase, which is used as a leitmotiv in the aforementioned judgments, is ‘Independence of Judiciary’. The concept of which is stressed and emphasized but, is over pitched due to the current form Article 217(1) and 124(2) have acquired. There is a certain level of opacity and uncanalized discretion in the appointment of judges, which has been widely criticized by retired justices and learned jurists. The inconsistency is affirmed by Justice J.S. Verma, the author of the judges II case, “my judgment in 1993 has been misunderstood and misused. Therefore, some kind of rethink is required … my judgment says that the appointment process of High Court and Supreme Court judges is basically a joint or participatory exercise between the executive and the judiciary both taking part in it”. Repeated grievances regarding favoritism and narcissism among the judges of the collegium have been reported as recently as 2013 where members of the bar in Punjab and Haryana High Court wrote letters to the Chief justice of India alleging elevation of the kith and kin of the judges.
The Government of India Act, 1935 (section 220(2)), which existed prior to the Constitution of India, also prescribed a process of appointment by the executive. The method of appointment of judges inthe UK (from where we have inherited our jurisprudence) solely vested with the executive (i.e. the Lord Chancellor) prior to 2006, Whereas, now aspirants can apply for judicial slots and then short-listed by a judicial appointment committee on the basis of merit. Thereby, making it a neutral process of equal opportunity and immense transparency. Other democratic countries like Australia, South Africa, Russia, Japan, etc. also evidence the power of the executive to appoint judges.
Parliament has moved two bills on the 24th of August 2013 to undo the current collegium system. The first one seeks a Constitutional Amendment and is the Constitution (one hundred and twentieth amendment) Bill, 2013, which amends Article 124, 217 and adds 124-A which creates a judicial appointments commission. The second one is the Judicial Appointments Commission Bill, 2013, which gives flesh to the judicial appointments commission by stating its composition, powers and functions.
The Judicial Appointments Commission Bill, 2013 strikes a harmonious balance of 3:3 where the chief justice of India along with 2 senior most judges will represent the judiciary where as, the union minister of law and justice along with two eminent personalities (nominated by the Primeminister, Chief Justice of India and the leader of opposition) will represent the executive. The report from department related parliamentary standing committee on personnel, public grievances, law and justice tabled before parliament rightly points out that while the judiciary will be in a position to gauge the legal acumen and talent, the executive will be able to detect the character and integrity of the candidate. Thereby, creating a paradigm of accountability and transparency.
This bill also endeavors to tackle one of the biggest vices of our judicial machinery: the number of vacancies (approximately 275) in Supreme Court and the High courts. The central government is duty bound to intimate the commission about the existing vacancies and the future vacancies two months prior to the date of superannuation of the judge.
The objects and reasons of the bill specify the three judges cases and how the interpretation of the constitution in the judges II case is wrong albeit, it fails to provide a solution to a very pertinent question raised in S.P Gupta’s case where there was doubt as to whose opinion would have primacy in case of a conflict or a tie. The bill constitutes a 6-member commission but doesn’t address the issue on who would have the last word, which is why the existing collegium consisting of anodd number (earlier 3 and now 5) of members to avoid the probability of a tie.
The Constitution (one hundred and twentieth amendment) Bill, 2013 substitutes the ‘consultation’ process mentioned in Article 124(2) and 217(1) by the judicial appointments committee that will leave little to conjecture on. But a pertinent observation which must be highlighted is that since the Judicial Appointments Commission Bill if passed would be a statute, gives the legislature the right to amend and alter it as and when they please with a simple majority (evading the arduous procedure of a Constitutional Amendment in Article 368). The reason why this is alarming is that the composition, powers and functions of the Judicial Appointments Commission (which would be a body under the constitution of India) can be tinkered according to the will of the parliament. Resultantly, the legislature if deems appropriate may include or exclude the participation of any organ while appointing judges. In other words, the independence of judiciary would be pegged to the will of the legislature, which is apparently ominous to the basic structure doctrine. Therefore, a preemptive argument against this would be to include the Composition of the Commission in the Constitutional Amendment itself.
In my opinion the Bills herald a positive change, which aim at firstly, crystallizing the conundrum of the collegium, secondly, tackling the vacancies that is inextricable linked to the pendency in courts and finally, striving to elevate the best possible legal minds and snub elevations by oblique motives. In conclusion the bill passes muster and answers the rhetorical question, “who will guard the guardian?” with conviction.
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