This article has been written by Rohini pursuing a Diploma in M&A, Institutional Finance and Investment Laws (PE and VC transactions) course from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

The question of the appointment of Supreme Court and High Court Judges has become the subject of debate lately. In the year 1993, the Collegium System came into existence as a result of a petition filed by the Supreme Court Advocates on Record Association (SCARA). This case has emphasised Article 50 of the Indian Constitution, which talks about the independence of the judiciary. It is pertinent to mention that this case not only overruled the Supreme Court’s verdict in the S.P.Gupta Case or First Judges Case, but also held the supremacy of the Chief Justice of India (CJI), binding the President to consult the CJI in the appointment of judges.

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Due to the lack of transparency in the collegium system, the need to establish a transparent and accountable commission was strongly felt. This further gave rise to the National Judicial Appointments Commission Bill, 2014, which was introduced in the Lok Sabha on August 11, 2014, by the then Minister of Law and Justice, Mr. Ravi Shankar Prasad, with the intent to replace the current Collegium System. The 99th Constitutional Amendment Act of 2014 paved the way for the establishment of the National Judicial Appointment Commission (NJAC).

Thus, this article provides an overview of the NJAC vis the collegium system in India.

How does the collegium system work in India

The collegium system is a method of appointing judges in India. It is a system in which the Chief Justice of India and four other senior judges of the Supreme Court of India recommend candidates for judicial appointments to the President of India. The president then appoints the judges based on these recommendations.

The collegium system was introduced in 1993, following a decision of the Supreme Court in the case of S.P. Gupta vs. Union of India. This decision held that the Chief Justice of India and his four senior colleagues should have a say in the appointment of judges in order to ensure the independence of the judiciary.

The collegium system has been criticized by some for being opaque and lacking transparency. However, it has also been praised for its role in safeguarding the independence of the judiciary.

Here are some of the key features of the collegium system:

  • The Chief Justice of India and his four senior colleagues constitute the collegium.
  • The collegium recommends candidates for judicial appointments to the President of India.
  • The President appoints the judges based on these recommendations.
  • The collegium is not bound by any fixed criteria in making its recommendations.
  • The collegium’s decisions are final and cannot be challenged in court.

The collegium system has been amended several times since its introduction in 1993. The most recent amendment was made in 2015, which gave the government a say in the appointment of judges. This amendment has been controversial, and its constitutionality is being challenged in court.

The collegium system is an important part of the Indian judicial system. It plays a vital role in ensuring the independence of the judiciary and the quality of judicial appointments.

Collegium vs NJAC

As far as the collegium system is concerned, it can be understood as a forum that consists of the Chief Justice of India and four other senior judges of the Supreme Court. This collegium decides the appointment and transfer of the judges by creating a file of opinions upon the appointment of the recommended person. This recommendation is sent to the Law Minister, who further sends it to the Prime Minister in order to advise the President of India. In the case of the High Court Judges, the recommendation of the Collegium is sent to the Chief Minister, who further sends it to the Governor, ultimately reaching the Union Law Minister.

The term “collegium” is nowhere defined in the Constitution of India; it has evolved over time. In order to understand the Collegium System, it is important to learn about following three cases;

S.P.Gupta Case – (First Judges Case)

This case determined the role of the executive in the appointment of judges in the higher judiciary. The Supreme Court denied the fact that the term “consultation,” as per Article 124 of the Indian Constitution, meant “concurrence.”. Justice P.N. Bhagwati in this case suggested a collegium system with a broader perspective that would involve a wider range of interests for the appointment of judges. However, the Collegium, as contemplated by Justice P.N. Bhagwati, was overlooked, and the Collegium was limited only to the Judges of the Superior Court, thus resulting in “Judges appointing Judges.”. Therefore, this case laid the basis for the formation of a collegium system and further gave rise to the subsequent cases.

Supreme Court Advocates-on-Record Association vs. Union of India (1993) – (Second Judges Case)

This case has played a significant role in the emergence of the collegium system in India. The Supreme Court overruled its verdict passed in the S.P. Gupta Case and held that the term “consultation” in Article 124 of the Constitution of India, now meant “concurrence.”. Giving supremacy to the CJI, this case gave rise to the Collegium System.

Re : Special Reference 1 of 1998 (1998) (Third Judges Case)

This case reaffirmed the verdict passed in the Second Judges Case, thus binding the President on the recommendations made by the collegium. Now, the issue was regarding the meaning of the term “consultation.”  Does the CJI’s sole opinion qualify as “consultation” U/Article 124, 217, and 222 of the Constitution? KR Narayanan, the then President of India, issued a Presidential Reference to the Supreme Court in 1998, questioning the definition of the term “consultation”  under Articles 124, 217, and 222 of the Constitution. This led to the composition of the collegium system, which would consist of the Chief Justice of India and four senior-most judges of the Supreme Court. 

These landmark cases played a significant role in shaping the process of judicial appointments in India. These cases not only established the supremacy and independence of the judiciary but also formed a collegium system, which serves as a fundamental method for appointing judges to the higher judiciary in India.

Rise and fall of NJAC

The National Judicial Appointments Commission Bill, 2014, introduced by the then Minister of Law and Justice, Ravi Shankar Prasad, was passed in Parliament, which proposed the NJAC as a replacement for the existing Collegium System. It was intended to add Article 124A to the Constitution The Collegium System received a lot of criticism for being ambiguous and opaque. Hence, NJAC was established by the 99th Constitutional Amendment Act, 2014.

Composition

The National Judicial Appointments Commission (NJAC) was a proposed constitutional body in India that would have been responsible for the appointment and transfer of judges to the Supreme Court of India and the high courts of the states. It was envisaged as a replacement for the existing collegium system, which is composed of the Chief Justice of India and four senior-most judges of the Supreme Court.

The NJAC was proposed in the National Judicial Appointments Commission Bill, 2014, which was introduced in the Lok Sabha, the lower house of the Indian Parliament, on August 13, 2014. The bill was passed by the Lok Sabha on December 13, 2014, but it was not passed by the Rajya Sabha, the upper house of Parliament, before the end of the 16th Lok Sabha.

The NJAC was envisaged to have a total of six members:

  1. The Chief Justice of India (Chairperson)
  2. Two senior-most judges of the Supreme Court
  3. The Law Minister
  4. Two eminent persons, who would be selected by a selection committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of Opposition in the Lok Sabha.

The NJAC would have been responsible for recommending the appointment of judges to the Supreme Court and the high courts, as well as for transferring judges from one high court to another. It would also have been responsible for considering complaints against judges and recommending their removal from office, if necessary.

The NJAC was controversial from the beginning. Critics argued that it would undermine the independence of the judiciary, as it would give the government too much influence over the appointment of judges. Supporters of the NJAC argued that it would make the process of judicial appointments more transparent and accountable, and that it would help to improve the quality of the judiciary.

The NJAC was ultimately struck down by the Supreme Court of India in October 2015, which ruled that it was unconstitutional. The court held that the NJAC violated the basic structure of the Constitution by undermining the independence of the judiciary.

Violation of judicial independence

One of the primary reasons for the Court’s decision was that the NJAC would have undermined the independence of the judiciary. The collegium system, which is composed of senior judges, has been in place for decades and has been credited with maintaining the independence of the judiciary. The NJAC, on the other hand, would have brought in political interference in the appointment of judges, as it included members from the executive and the legislature. This would have compromised the impartiality and objectivity of the judiciary.

Lack of adequate safeguards

The Court also held that the NJAC lacked adequate safeguards to prevent political influence and ensure transparency in the appointment process. The NJAC’s composition was heavily tilted in favour of the government, with the Chief Justice of India being the only representative from the judiciary. This imbalance would have given the government undue influence over judicial appointments. Additionally, the NJAC did not have any mechanism to address complaints of bias or misconduct in the appointment process.

Lack of transparency and accountability

Another major concern raised by the Court was the lack of transparency and accountability in the NJAC. The collegium system, while not perfect, has a well-established process for the appointment of judges. The NJAC, on the other hand, did not have any clear criteria or procedures for the selection of judges. This lack of transparency would have made it difficult to hold the NJAC accountable for its decisions.

Process

The introduction of NJAC was done with a view to bringing transparency and plurality to the process of appointing judges, which was lacking in the Collegium System. Here, with regards to NJAC, the process was a direct recommendation. For instance, the NJAC would directly recommend the senior-most judge of the honourable Supreme Court for the office of Chief Justice of India and, in the case of other judges of the Supreme Court, the NJAC would recommend the names of judges on the basis of their merit and ability. However, this system also included a Veto Power, meaning if any two members of the commission disapprove of any name, NJAC would not recommend that judge.

Struck down

The goal of bringing transparency and accountability to the process of appointing judges was still not achieved by NJAC. Moreover, the involvement of the executive in the process was not favourable for the independence of the judiciary as described in Article 50 of the Constitution of India. The Act violated the Basic Structure Doctrine established in the landmark Kesavananda Bharati case (1973). Hence, the Supreme Court in October 2015 struck down the National Judicial Appointments Commission (NJAC) Act, 2014, considering it unconstitutional. The Act was repealed by a five-judge bench, in a case famously known as the Fourth Judges Case, 2015. They further held that the Collegium System would still be functional for judicial appointments, but there is a need to scrutinise the process of “judges appointing judges.”.  

 Every judge of the bench gave their opinions regarding the decision to strike down the Act. The final outcome is that the judiciary should be kept independent of the legislature and the executive. Justice Khehar questioned the legitimacy of the NJAC Act based on the following points:

The involvement of the legislature and the judiciary in the appointment process might lead to a culture of “reciprocity” of favours between the government and the judiciary. Justice Khehar questioned whether the future judges would be independent-minded if the Union Law Minister was one of the six members of the Commission appointing them. By “reciprocity,” Justice Khehar meant that the judges might feel obligated to favour the political executive who appointed them. He further explained the situation by giving suitable examples. In cases where there is the involvement of any political figure, this might put pressure on the judges and impact the decisions, and this feeling of reciprocity may lead to disastrous consequences. 

Further concerns were raised regarding the veto power of the two eminent personalities. They were worried that there could be abuse of this power and with this, a valid appointment might be brought down. The Act did not provide any solutions for such situations, hence leading to confusion and ambiguity. 

However, on the other hand, Justice Chelameshwar pointed out the merits of the Act and found it to be valid and constitutional. He further supported the involvement of the executive and the law minister in the commission, because, according to him, in a democratic setup, the executive cannot be completely excluded. He supported this by giving the example of the United States of America, where the power to appoint judges is vested in the head of the executive. 

To sum up, it can be said that the Supreme Court struck down the NJAC in 2015 as it stood in violation of the basic structure of the Constitution, bringing down the supremacy of judicial independence, lacking adequate safeguards, and lacking transparency and accountability. The decision reaffirmed the importance of maintaining the independence of the judiciary as a fundamental pillar of India’s democratic framework.

Conclusion

The biggest challenge with respect to the appointment of judges to the higher judiciary is maintaining a balance to let the judiciary function independently while at the same time involving the government in the process. The Collegium System, started in 1993, is still under scrutiny, and the NJAC, introduced 10 years ago, couldn’t solve the problems. So, the challenge with this crucial part of democracy continues. It is thus advisable that proactive steps be taken in this regard by maintaining democratic values and strengthening and restoring trust in the process of judicial appointments.

References

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