Former Chief Justice of India Justice UU Lalit on being asked if the collegium system required to be changed, answered in a firm negative. Justice Lalit was speaking on ‘Why Study Law: Social Duty and Legal Responsibility’ at the inaugural session of the 12th edition of Think Edu Conclave on Feb 09, 2023, where on a reply to a question if the collegium system should be changed he said– “The simple answer is no.”
However, he was ready to give justifications for his answer but due to time constraints, he had to leave without concluding the same.The debate over the collegium system, which gives primacy to the Judiciary over the Executive as far as the appointment of the judges to the higher judiciary is concerned, has been a regular scenario now where the Executive always question the efficacy and effectiveness of the system and the Judiciary always extend protection to it on the pretext of judicial independence.
History of judicial appointments in India
From the date of Constitutional enforcement till 1973, there was a consensus between the Government of the day and the Chief Justice of India (CJI), where the senior-most judge of the Supreme Court was supposed to be appointed as the CJI.
However, in 1973, A.N. Ray was appointed as the CJI in violation of the convention formed earlier since Justice A.N. Ray superseded three other Supreme Court judges senior to him. Again in 1977, another CJI was appointed by superseding other senior judges. This resulted in a clash between the Judiciary and the Executive.
In SP Gupta case or First Judges Case, 1981, gave primacy to the Executive in the appointment of the judges by declaring that the word ‘consultation’ under Ar.124 of the Constitution of India does not mean ‘concurrence’ that makes the proposal made by the Supreme Court on the appointment of Supreme Court and High Court judges non-binding on the President.
However, in Supreme Court Advocates on Record Association (SCARA) or Second Judges Case, 1993, the Supreme Court overruled its earlier verdict and changed the meaning of consultation to concurrence.
Thus binding the President of India with the consultations of the Chief justice of India. And this gave birth to the collegium system for the appointment of judges in the higher judiciary in India.
In the Third Judges Case, 1998, consolidating its stand on the collegium system, the Supreme Court in a presidential reference to the Supreme Court under Ar.143, questioned the meaning of the word consultation in articles 124, 217, and 222 of the Constitution, reiterated that the Chief Justice of India won’t be the only one as a part of the consultation process.
It is in this 1998 case that Supreme Court provided a proper scheme for the appointment of the Supreme Court and High Court judges and the transfer of High Court judges from one High Court to another.
For the appointment of the Supreme Court judges -consultation would include a collegium of 4 senior-most judges of the Supreme Court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government. For the appointment of the High Court judges –consultation would include a collegium of 2 senior judges of the Supreme Court. For the transfer of the High Court judges – consultation would include a collegium of 4 senior judges of the Supreme Court along with Chief justices of the two High Courts concerned.
Such consolidation of the appointment scheme and assigning primacy to the judiciary in the higher judicial appointments has sidelined or marginalised the Executive from playing any active role in this whole process.
Since then Executive, especially when it enjoys a parliamentary majority every now and then strive to breach into the mantel of the judiciary to gain a place in this scheme that can entail control over the strongest institution in the Indian democratic set up i.e. judiciary.
However, it cannot be an inference that the collegium system is a scheme devoid of any irregularities and limitations. ‘NO’. There are various issues that plagued this self-controlled judicial appointment system –
1. Exclusion of Executive: The complete exclusion of the executive from the judicial appointment process created a system where a few judges appoint the rest in complete secrecy. Also, they are not accountable to any administrative body that may lead to the wrong choice of the candidate while overlooking the right candidate.
2. Chances of Favouritism and Nepotism: The collegium system does not provide any specific criteria for testing the candidate for the post of CJI which it leads to wide scope for nepotism and favouritism. It gives rise to the non-transparency of the judicial system, which is very harmful to the regulation of law and order in the country.
3. Against the Principle of Checks and Balances: The principle of check and balance is violated in this system. In India, the collegium system gives Judiciary immense power, which leaves little room for checks from other organs and poses the risk of misuse.
4. Close-Door Mechanism: Critics have pointed out that this system does not involve any official secretariat. It is seen as a closed-door affair with no public knowledge of how and when a collegium meets, and how it takes its decisions. Also, there are no official minutes of collegium proceedings.
5. Unequal Representation: The other area of concern is the composition of the higher judiciary, women are fairly underrepresented in the higher judiciary. Even many sociologists have articulated that the collegium system is a response against the Mandal Commission to protect the interest of higher castes which dominate the higher judiciary.
The Law Commission of India in its 214th report on ‘Proposal for Reconsideration of Judges cases I, II and III’ recommended two solutions:
To seek a reconsideration of the three judgments before the Supreme Court.
A law to restore the primacy of the Chief Justice of India and the power of the executive to make appointments.
Suggested alternative to the Collegium System
A National Judicial Commission (NJC) remains a most ardent proposal. The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of NJC to be chaired by the CJI along with two senior-most judges of the Supreme Court as its members. The Union Law Minister would be a member along with an eminent citizen to be nominated by the President in consultation with the Prime Minister.
The Commission would decide the appointment and transfer of judges and probe cases of misconduct by judges, including those from the highest judiciary.
However, no consensus could be brought on the NJC and the Bill lapsed on the dissolution of the Lok Sabha and the new Congress-led United Progressive Alliance (UPA) did not bother to bring a fresh Bill to this House.
In 2014, the new Modi Government brought again the Ninety-Ninth Constitutional Amendment Bill to introduce National Judicial Appointment Commission (NJAC), a constitutional body as a replacement for the collegium system. It was unanimously passed by both Houses of Parliament and got a place in the Constitution of India under Ar.124-A.
However, Supreme Court in 2015 via a Constitutional Bench declared the NJAC and Ninety-Ninth Constitutional Amendment Act, 2014 unconstitutional and void. After 7 years from the date of this judgement, the voices against the collegium and in support of NJAC have started to be echoed by the Executive once again. Recently the Union Law Minister Mr Kiren Rijiju and after him the Hon’ble Vice President of India Mr Jagdeep Dhankar held the opaque collegium system responsible for large pendency of cases at the higher judicial level.
Against the Executive, the judiciary is incumbent to defend the collegium as can be an inference from the words of the current CJI Mr D.Y. Chandrachud and the other members of the higher judiciary.
This collegium and NJAC debate has become more like a tom and jerry show, which looks entertaining but at the same time put a heavy mark on the public justice system and gives a chilling effect to the principles of transparency and accountability which is the hallmark of good governance.
In the interest of the society and the effective functioning of the judiciary, a balance between the two has to be maintained where accountability and transparency of the higher judiciary can be maintained without compromising on the independence of the judiciary.