Collegium (n.) – “A group whose members pursue shared goals while working within a framework of mutual trust and respect.” The Constitution of India guarantees the independence of the judiciary which cannot be altered. In order to ensure the smooth functioning of the judiciary and avoid challenges to its powers, an efficacious system of checks and balances exists throughout the Constitution. While treating the Constitution as the gospel, with the passage of time a unique and unintended construction has been given to Articles 124(2) and 217(1).
Article 124 (2) lucidly involves the President in the process of ‘consulting’ at the time of appointing Supreme Court judges. However, Article 217(1) goes a step ahead and involves the President, the Chief Justice of India, Governor of a said state and the Chief Justice of the respective High Court in the process appointing a judge to the High Court.
After examining the 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. This can be witnessed in the constituent assembly debates where after dueconsideration 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 that nowhere 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 the judiciary.
The aforementioned case was overruled in the Supreme Court Advocates on Record Association vs Union of India (Judges 2 case) (1993) 4 SCC 441 where the apex court said that 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 theexecutive, which cannot be ignored. It is here that the apex court, for the very first time, ruled that the opinion of the Chief Justice must be formed after ascertaining the views of at least two senior judges. This ruling gave birth to the ‘collegium’, which the consisted of three 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 five 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’. This concept is stressed and emphasized but is over-pitched due to the current forms 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 in the UK (from where we have inherited our jurisprudence) solely vested with the executive (i.e. the Lord Chancellor) prior to 2006. Now, however, aspirants can apply for judicial slots and are then shortlisted by a judicial appointment committee on the basis of merit. This has made 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.
The Parliament moved two Bills on August 24, 2013, to undo the current ‘collegium’ system. The first seeks a Constitutional Amendment and is the Constitution (one hundred and twentieth amendment) Bill, 2013, which amends Articles 124, 217 and adds 124-A which creates a judicial appointments commission. The second isthe Judicial Appointments Commission Bill, 2013, which gives teeth 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 whereas, the union minister of law and justice along with two eminent personalities (nominated by the Prime minister, Chief Justice of India and the leader of opposition) will represent the executive. The report from departmentrelated 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. This has created 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. This is despite the fact that 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 does not address the issue on who would have the last word. This is the reason why the existing ‘collegium’ consisting of an odd number (earlier 3 and now 5) of members to avoid the probability of a tie.
The Constitution (one hundred and twentieth amendment) Bill, 2013 substitutesthe ‘consultation’ process mentioned in Articles 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, it 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).
It is alarming because 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 the 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. Firstly, they crystallize the conundrum of the ‘collegium’ and, secondly, they help tackle vacancies which are inextricable linked to the pendency in courts. Finally, they striving to elevate the best possible legal minds and snub elevations by oblique motives. The Bill answers the rhetorical question “who will guard the guardian?” with conviction.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
