Finally, the curtain is being drawn on the 20-year-old collegium system of appointing the High Court and Supreme Court judges after the Parliament cleared a Constitution Amendment Bill, 2014 that will facilitate setting up of a commission for appointing the judges. The new bill will now make way for the setting up of a National Judicial Appointments Commission (NJAC) to appoint and transfer judges. Witness brings out an in-depth roundup on the contentious issue for its readers
The authority vested in the collegium system was always under debate and faced severe criticism. Except in India, no other democratic country had the system of appointing judges by the judges. Indian judiciary had brought this concept of appointment, brushing aside the legislature, merely on the basis of claiming the ‘judicial independence’.
It started with S.P. Gupta case in 1981 before the Supreme Court of India, where mainly the debate was on the word ‘consultation’ as enumerated in the Constitution of India with regard to the appointment of judges.
The first judges case S.P. Gupta vs President of India and Ors. on 30 December, 1981 was decided by the majority judgment in the bench presided over by P.N. Bhagwati, A.C. Gupta, S.M. Fazal Ali, V.D. Tulzapurkar, D.A. Desai, R.S. Pathak and 13 E.S. Venkataramiah JJ, was about the interpretation of the word ‘consultation’ used in the article 217(1) of the IndianConstitution. However, the correctness of interpretation was doubted in Subhash Sharma’s case. The relevant portion of the majority judgment delivered by Justice P.N. Bhagwati speaking for himself in regard to the expression ‘consultation’ occurring in 217 of the constitution is extracted here below: “Each of the three constitutional functionaries occupies a high constitutional office and Cl. (1) of Art. 217 provides that the appointment of a high court judge shall be made after ‘consultation’ with the functionaries without assigning superiority to the opinion of one over that of another.
It is true that the Chief Justice of India is the head of the Indian judiciary and may be figuratively described as paterfamilias of the brotherhood of judges but the Chief Justice of a high court is also an equally important constitutional functionary and it is not possible to say that so far as the consultative process is concerned, he is in any way less important than the Chief Justice of India. In fact, under the constitutional scheme, the Chief Justice of a high court is not subject to the administrative superintendence of the Chief Justice of India, nor is under the control of supervision of the Chief Justice of India If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect and substance amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the high court and the Governor of the state, which means that the central government must accept his opinion. But it is only consultation and not concurrence of the Chief Justice of India that is provided in Cl.(1) of Art. 217. There must be a collegium to make recommendation to the President in regard to appointment of a Supreme Court or high court judge. The recommending authority should be in consultation with wider interests. If the collegium is composed of persons who are expected to have knowledge of the persons who may be fit for appointment on the Bench and of qualities required for appointment and this last requirement is absolutely essential – it would go a long way towards securing the right kind of judges, who would be truly independent and who would invest the judicial process with significance and meaning for the deprived and exploited sections of humanity.”
It can be inferred from the S.P. Gupta judgement, the consultation doesn’t mean the acceptance of the recommendations of the Chief Justice of India and other judges, and the primacy rests with the executive. Till 1993, the primacy of the executive in appointment of judges continued, which led to more political intervention.However, the scenario changed after the verdict of the Apex Court in Subhesh Sharma v. Union of India, AIR 1991 SC 631and the Supreme Court Advocates-on-Record Assn. v. Union of. India, (1993) 4 SCC 441. The collegium system was preferred and the reconsidered the issue of the primacy of the executive over the Chief Justice of India in appointing the judges to the high court and the Supreme Court. It talked much about the judicial independence.
The Apex Court while reiterating the importance of collegiums had said “The preamble of our Constitution stipulates justice-social, economic and political for all citizens of India. It is too late in the day to dispute the position that justice has to be administered through the courts and such administration would relate to social, economic and political aspects of justice. The judiciary therefore becomes the most prominent and outstanding wing of the Constitutional system for fulfilling the mandate of the Constitution. For its sound functioning, it is, therefore, necessary that there must be an efficient judicial system. For Rule of Law to prevail, judicial independence is of prime necessity.”
In the Advocate on Record case, out of 9 judges, 7 judges consented for the CJI headed collegium system. Till today, the judges are being appointed as per the procedure laid down in that case. The executive was given an option of sending the name back for reconsideration, but CJI’s decision was considered as final.
The recent system of appointment of judges has always been in debate. Lobbying with the collegiums is always main allegation by some. The allegations and debates are always around the fact that appointments are being done merely on the basis of the person’s lobbying, without giving importance to the integrity of the person, knowledge in law and the commitment towards the socio, economic law. The golden words stated in the S.P. Gupta’s case – “Judges should be stern stuff and toughfire, unbending before power, economic or political and they must uphold the core principle of rule of law which says ‘be you ever so high, the law is above you…’” are rarely followed and practiced.
The recent action of the centre sending back the name of Mr Gopal Subramanium, for reconsideration for a appointment as SC judge has again stirred the controversies and debates on the Collegium system. Justice Markandey Katju, a former judge of the Supreme Court of India, who has experienced both the systems of appointment, pre 1993 and post 1993 systems, remarked on the continuation of Madras HC further alerted the centre for reconsidering the idea introducing the Judicial Appointment Commission Bill. The centre under the guidance of the Hon’ble Minister for Law and Justice has recently convened a high level meeting for discussion on scraping the present collegiums system of appointing judges.
Some critics called collegium as secret judicial club, and some questioned it because such an expression was not used in Indian Constitution. However, it was accepted as the SC and several others felt that consulting some more persons is better than depending solely on an individual opinion. It is surprising that collegium is being proposed to be dispensed with instead of introducing transparency in the process besides reforming it. Many think that whether scrapping of the collegium system will bring back the pre-1993 position. The government was weighing its option to replace the existing system with a suitable body. The meeting convened by the centre had reconsidered the Judicial Appointment Commission Bill proposed by the then UPA government and suggested for setting up of Judicial Appointments Commission (JAC). While some suggested that the JAC should be a permanent body with members with fixed tenure, others suggest that it need not be so, as it can be ex officio body as suggested by UPAgovernment .The UPA bill had proposed that the JAC would be headed by the Chief Justice of India and would have two senior judges of the Supreme Court, two eminent persons and the Law Minister as its members.
The Lok Sabha passed the Constitution (99th Amendment) Bill 2014 paving the way to the National Judicial Appointment Commission (NJAC) Bill 2014, which proposes that the Chief Justice of India will head a six-member National Judicial Appointments Commission (NJAC), other members of which would be the law minister, two senior Supreme Court judges and two eminent people. A collegium comprising of the prime minister, the chief justice of India and the leader of the single largest party in the Lok Sabha will select two eminent persons. One eminent person will be nominated from among the Scheduled Castes, Scheduled Tribes, OBCs, minorities or women. The bill also states that the commission will seek the views of the governor and chief minister of the state concerned in writing before appointing or transferring a judge of that high court.
As the Lok Sabha passed the Constitution (99th Amendment) Bill and the National Judicial Appointment Commission (NJAC) Bill 2014, Law and Justice Minister Ravi Shankar Prasad assured the members that the government does not have any intention of interfering in the functioning of the judiciary. However, legal fraternity is not convinced over the assertion. Chief Justice of India R.M. Lodha had already defended the existing mechanism while lashing out at the “unfair” and “misleading campaign” to defame the judiciary and to tarnish its images. Desisting from outright rejection of the NJAC, Supreme Court Bar Association (SCBA) president P.H. Parekh felt there should have been wide ranging consultation and deliberations before thegovernment moved to push out the collegium system.
Noted veteran lawyer Ram Jethmalani even condemned Law and Justice Minister Ravi Shankar Prasad being a member of the NJAC as he may have to practice sometime and hence the government should be represented by either the Prime Minister or the home minister. “Law minister is the most disqualified person to be the member of this commission. He cannot be trusted to have that kind of moral courage,” he told media persons. He also dismissed the government’s proposed commission and wanted that this body should have the power to dismiss judges and accuse the government of “betrayal” on this issue.
Noted lawyer KTS Tulsi said that it has taken 24 years to restore the balance and the issue should not degenerate into a turf war. The question is not who appoints, the matter is about transparency. According to him, “Ultimately, the power of appointment of judges must vest in the Parliament.”
AAP’s activist and lawyer Prashant Bhushan has also voiced against the bill saying it not in the favour of public interest as it gives veto power to government to stop any appointment thereby compromising the independence of judiciary.
Former additional solicitor general and senior counsel Bishwajit Bhattacharyya described it as a retrograde step that will compromise the independence of the judiciary.
Law and Justice Minister, however, tried to allay fears saying that the need for a new law is not the thinking of only our government. It is a collective exercise which has been in the offing for the last 20 years. “A large section of people do not have representation in the judiciary as of now. The process of consultation has been made more meaningful.” Suggesting that the existing collegium system of judges appointing judges had flaws, he said many good judges could not make it to the Supreme Court.
He further said the measures were aimed at ensuring that only meritorious people are selected as judges to the higher judiciary. He also said the new law will provide for wider consultations for appointment of judges to the Supreme Court and High Courts. “We are for maintaining the sanctity of the judiciary… We have said this house respects independence of judiciary. That should be assuring,” he said.
We have to watch and see whether the new NJAC Bill 2014, despite passed by the Parliament amongst all the controversies and discussions, will with stand the judicial scrutiny. The power of independence of judiciary was well established in the landmark judgement in Kesavananda Bharathi case, the Bill, even if it is passed in the parliament, once challenged before the Apex Court, it has to pass the SC test wherein the basic procedure for adopting the constitutional amendment within the basic structure of the doctrine for constitution, as laid down in the Kesvanand Bharathi case.
As per the verdict in that case, the judicial scrutiny is the final for any amendment, if it violates the basic structure of the Constitution.
Need of the hour is that the new NJAC should bring the trust and transparency in the judicial system. The commission should be framed in such a way that both executive and judiciary are equally important. Like in the foreign countries, such as Britain, South Africa all the sections of the society should be representing in the commission and the suggestions rendered by all the representatives should be put for a debate among its members and come to the conclusion to start the process of appointment of judge. Scrutinization of the candidate’s eligibility should be done without influence and there should be transparency in the process of scrutinization.
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