(Prashasti Mishra is a Second year student at West Bengal National University of Juridical Sciences, Kolkata)
Featured Illustration – “The Judgement of Solomon” by Giorgione
The independence movement of India was a broad and protracted struggle that led to the culmination of a rights protective constitution with an independent judiciary.[i] The Constitution of our country has provided extraordinary safeguards to the members of the judiciary, so that they are able to discharge their duties without any interference from state polity.[ii]
The framers of our constitution were proponents of the view that independence of judiciary is sacrosanct but they also kept in mind the aspect of competency of the institution. Dr. Ambedkar expressing the objective of the drafting committee to achieve both these goals said that, the house was against the idea of giving absolute power to the executive in the matter of appointment of judges. He stated that even the concurrence of the legislature in the process is undesirable as it might lead to appointment by virtue of political influence.
Additionally, he said that in the quest for independence of the judiciary there was no desire to create an Imperium in Imperio (A sovereignty within a sovereignty).Thereby, he concluded that a middle course be achieved which would ensure the competence as well as independence of the Judiciary.[iii]
This deliberation was encapsulated in the Article 124 and 217 of the Constitution. The said provisions read that the President has the authority to appoint judges under his warrant for the Supreme Court in consultation with the Chief Justice of India (CJI) and for the High court in consultation with the CJI of India and the Chief Justice of the Concerned High court.
This system of appointment has been fraught with controversies for a long time. Due to the executive supremacy, interpretation of ‘consultation’ with the CJI in appointment matters was questioned in the SP Gupta v. Union of India case (1981) [Hereinafter First Judges’ Case] which upheld the executive primacy. However this stance was changed in 1993, with the Supreme Court Advocates-on-Record Association v. Union of India (1993) [Hereinafter the Second judges’ case].In this case the word ‘consultation’ was comprehended to be ‘concurrence’, thereby establishing the judiciary’s primacy in the matters of appointment. This judgement along with In Re Presidential Reference (1999) [Hereinafter Third judges’ Case] brought into existence the present collegium system. The collegium is a coterie of the CJI and four senior most judges of the Supreme Court who have the absolute authority to determine the judicial appointments and transfers.
The collegium system’s prime objective is said to make the Supreme Court’s bench which comprises the best available talent by assessment of worthiness of a candidate by the CJI and senior most judges. The exclusivity of collegium in matters of appointment and transfer of judges has been severely criticised. Time and again it has been stated that the judiciary in quest for independence has foregone its credibility which is of grave importance. There have been allegations that the mystique opaqueness in the working of the collegium has led to appointments on the basis of lobbying, casteism and nepotism.
In response to the various criticisms and with an objective of restoring the institutional balance in the appointment process, the parliament introduced the 99th Constitutional Amendment Act and the National Judicial Appointments Commission Act, 2014 which established the National Judicial Appointment Commission (NJAC).[iv] The NJAC was a 6-member commission with representatives of both the executive and the judiciary. It comprised the CJI, two senior most judges of the Supreme Court, the law minister and two eminent personalities who were to be selected by a committee comprising CJI, Prime Minister and leader of the single largest opposition party.[v]This bipartisan body signified that judges would no longer have the exclusivity in the matter of appointment.[vi]
In 2015, the Supreme Court in Supreme Court Advocates-on-Record Association and others v. Union of India and Others [Hereinafter The 2015 Judgement] struck down this amendment on grounds that this Act violated the judicial independence which is part of the basic structure of the constitution. This judgement upheld the judicial primacy by stating that the initial and ultimate decisions in matters of judicial appointments and transfers are solely in the realm of the judiciary.[vii]
The Supreme Court through this judgement effectively ruled out the option of non-primacy of the judiciary in appointments. In this article I will analyse the court’s stance in this judgement and conclude that its belief that judicial primacy in appointment matters is the sine qua non for independence of the judiciary is flawed. I will also argue that the existing system of collegium has major lapses in its functioning. Conclusively I will put forth the recommendations for adapting to a better and, more transparent system which would uphold the credibility of the judicial institution.
Fallacies in the NJAC Judgement
In the majority opinion of The 2015 Judgement it was held that the NJAC legislation did not provide adequate representation to the judicial component in the Commission, thereby making it incapable to safeguard the judicial primacy in the appointment process, which is a violation of principle of independence of the judiciary. The court held that judicial primacy being integral to judicial independence; it has become part of the basic structure of the constitution. In order to ascertain that the said amendment violates the basic structure the majority judgement took a logical jump from constitutionality of collegium to the unconstitutionality of the 99th amendment without any coherent explanation. Only assertion of the claim of judicial primacy to be part of basic structure as has been done in the judgement is not enough to declare an amendment to be unconstitutional, rather it should have been demonstrated how the said amendment infringes the same.
The Second Judges’ case on the basis of which the majority has substantiated its holding did not explicitly uphold the primacy of judicial opinion as a base of judicial independence and part of the basic structure of constitution. It only confined itself to the issue related to the deadlock between the constitution’s functionaries, to give in more weightage to the discretion of judiciary and not judicial independence per se. On the issue of primacy being part of basic structure, it was held in M.Nagraj v. Union of India, (2006), that only those principles that have become eminent and gravely fundamental to constitution become part of the basic structure. Justice Kehar in his opinion in the 2015 judgement stated that the collegium is integral part of Article 124, 217and 222, but this does not in any way place this system to be part of the basic structure. There have been no cogent reasons provided by the majority to support its view that the judicial primacy is so inherent that it must be considered to be part of the basic structure.[viii]
The Second Judges’ case suggests nowhere that primacy in judicial matters is the only means to secure the independence of the judiciary. Rather relying upon the Constituent Assembly debates and analysis it can be stated that the judicial primacy is not even considered to be a necessary requirement in our constitution.[ix] The independence of the judiciary also emanates from the security of tenure of the judges of the higher judiciary, prohibition on discussion about conduct of judges in parliament, inability of curtailment of jurisdiction of the Supreme Court by the parliament etc. Therefore, the understanding of judicial independence relying solely on the basis of judicial primacy is not coherent reasoning.[x]
Additionally, the majority judgement based its decision on two flawed assumptions, first, that the nominating committee would appoint politically inclined civil activists in the commission and second, that the law minister, the judges and the eminent people in the panel will vote as separate blocs, with law minister not being impartial in his nominations. These assumptions without any substantiation highlight the shoddy constitutional analysis by the judges and non-utilisation of interpretative options, demonstrating the lack of respect for the parliament and the jurisprudence of the Supreme Court itself.
Lacunae in the Collegium System
The judicial primacy symbolized in the collegium system, in appointment matters is nowhere mentioned in the constitution. It is the result of interpretation by the Supreme Court to eliminate the role of the executive in the process of appointment. The two judgements which established this system have been condemned by eminent jurists, these were held to be tour de force in the name of the independence of the judiciary. In setting up the collegium the judges arrogated themselves with privilege that the Constituent Assembly was against.
Even the argument that the collegium system is the only mechanism which brings forth the best available people to the bench and the executive fails to do so, as it only appoints ciphers to the bench lacks rationality. Belief that judges appointed by the executive are subservient is erroneous as the majority of the judges that were appointed before the collegium system showed a high degree of independence. It can be argued that most distinguished judges of our judiciary have been those who were appointed before the formation of this system.
Under the garb of independence the collegium system has shielded itself with unquestionable powers and has transformed itself into an unaccountable and opaque system which leaves the various stakeholders at the juncture of questioning its credibility.[xi] The present system has led to the creation of a self-perpetuating cycle of privileges.[xii] Harping over exclusivity various appointments are done on grounds of favouritism in closed chambers.[xiii] This development is something akin to Gymkhana club where the existing members of the same background appoint future mates.[xiv] The collegium has also in several instances come under scrutiny over its decision of superseding judges, dubious appointments which signify trade-offs, delay in appointment of judges.[xv] There have been several decisions which were based against the norms laid down by the Second judges’ case thereby making the collegium ignoring its own law.
Due to the lack of any objective criteria for selection there have been instances where the appointments were motivated by the executive influence, discarding the very objective of the formation of the collegium system.[xvi] There is a presence of kinship in the avenues of the courts of the land which signify dominance of family hierarchies in the system. The higher judiciary is highly homogenous in terms of gender, race and caste. The present system also prefers that members of the bar be appointed at a higher level rather than the judges of lower judiciary, which could lead to diversification of the bench.
Over the time, this system of judicial appointment has been severely criticised due to lack of transparency in its functioning, ineffective selection criteria. There is reflection of groupism, lobbying, nepotism and arbitrariness in many of the decisions taken by it. These aspects conclusively state that there is a need for reform in the system to serve its purpose of appointing with utmost credibility and sincerity.
Re-evolution of the system
There can be no denial of lacunae in the existing system and the need for the reformation of the ad-hoc opaque method of appointment.[xvii] This system ‘in reality’ is inimical to legitimacy and independence of the judiciary. There is a need for institutional transformation of the collegium system in order to preserve the ideals for which it was constituted. This can be done by instituting a transparent and well-structured method of appointment as the absence of the same is an antithesis of the rule of law and democracy.[xviii] In order to achieve acceptance and legitimacy in the matters of appointment the establishment of well-defined criteria on the basis of age, merit, and seniority along with an evaluation of integrity, judicial reasoning and respect for the egalitarian principles of our constitution should be considered. To ensure fair chance the vacancy criteria can be notified in advance on the websites of higher judiciary and applications on this basis must also be considered for appointment in addition to the recommendations provided by the collegium directly.[xix] There should be an establishment of permanent secretariat and mechanisms to deal with the reports of complaints in the matter of appointment.[xx]
For a fundamental change i.e. the diversification of the bench there is a need to increase consultation with stakeholders beyond the executive and judiciary. The aspect of inclusion of eminent personalities in the process should be considered by making changes to the proposed NJAC, for safeguarding the greater public good. New mechanisms of evaluations or changes can be brought in the subordinate judiciary to make the lower lever judges fit for appointment in the higher courts which would increase the pool of competent judges and increase the level of competition. Thereby selection of the best available minds to the higher courts in true sense. Highlighting the need for judicial primacy, lack of transparency, objective accountability the Collegium system has since long given rise to the trust deficit in the civic society. This has affected the credibility of the institution of judiciary as a whole. There is a need to reform the scenario and build an operating system which works efficiently and in a justified manner. The debate over the power of judicial or executive supremacy should be curtailed and a meritorious system for appointment assuring the principle of judicial independence and accountability to go hand in hand should be brought forth. These steps would truly serve the purpose of protecting the rights of people in the constitutional democracy and upholding the belief of people in the judiciary to be a legitimate custodian of justice and equality.
[i] Granvile AUSTIN, The Indian Constitution: Cornerstone of a Nation (New Delhi :Oxford University Press,1966) at 50-75.
[ii]BN Srikrishna, Judicial Independence in The Oxford Handbook of THE INDIAN CONSTITUTION 388 (1sted., 2016).
[iii] Constituent Assembly Debates, 24th May 1949 (Vol. VIII),258.
[iv] The Constitution (Ninety-Ninth Amendment) Act,2014.
[v] Gautam Bhatia, Is giving judges the final say in judicial appointments the only way of ensuring their independence ? ,October 17, 2015, available at https://scroll.in/article/763132/is-giving-judges-the-final-say-in-judicial-appointments-the-only-way-of-ensuring-their-independence
[vi] Ibid.
[vii] Ibid.
[viii]Ibid.
[ix]Rehan Abeyratne, Upholding Judicial Supremacy in India : The NJAC Judgement in Comparative prospective, 49 The George Washington International Law Review (2017)https://www.gwilr.org/wordpress/wp-content/uploads/2017/05/ILR-Vol-49.3_Rehan-Abeyratne.pdf
[x] Ibid.
[xi]C.Raj Kumar, Transforming Judicial Appointment for Transparency, Economic & Political Weekly, Vol.50, Issue No.48,28 Nov,2015.
[xii] Bhatia, supra note 5.
[xiii] Bhatia, supra note 5.
[xiv] Bhatia, supra note 5.
[xv]M.Katju,One Way to Fix the Collegium is to Televise its Proceedings, November 5,2015, available at,https://thewire.in/law/one-way-to-fix-the-collegium-is-to-televise-its-proceedings
[xvi]Prashant Bhushan Securing Judicial Accountability towards an Independent Commission, Economic & Political Weekly,Vol. 42 ,Issue No. 43,27 Oct,2007.
[xvii]Katju, supra note 15.
[xviii]K.T.Thomas,Collegium System Must be Re-evolved, September 8,2016,available at,
https://www.livelaw.in/collegium-system-must-re-evolved/
[xix]Live Law, Improving Collegium; Suggestions in clude”Written test for elevation to SC”, November 5,2015,available at, https://www.livelaw.in/suggestions-to-improve-collegium-system-begins-it-includes-written-tests-for-elevation-to-sc/
[xx]Kian Ganz, Read Gopal Subramanium’s 7-neo collegium suggestions, Novemebr 5,2015,available at, https://www.legallyindia.com/scoi-reports/read-gopal-subramanium-s-7-neo-collegium-suggestions-read-submission-pinky-anand-arvind-datar
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