This article is written by Kajal Tanwar, student at O.P Jindal Global University.
The Collegium system in India
Supreme Court the court which owns the title of the worlds’ most Powerful Court, has been renowned because of its power and status. During 1990s, Supreme Court has been convened in the primacy of Collegium System for the process of Judicial appointments which has led to the expansion of the Judicial Review Powers. Collegium system is a system which is being followed in India for the appointment of Judges in the courts. This is a system in which beside the Chief Justice of India, four other senior-most judges are present whose work is to appoint the judges of both High Court and Supreme Court. Also, they handle the work which is required in the transfer of Chief Justices and of Judges of High Court and Supreme Court.
In short, their main role is the appointment of Judges in courts. Since according to our Constitution, it can be seen that Constitution sees a difference between the powers these three bodies which are Executive, Legislative and Judiciary, therefore Collegium System was adopted with this intention only that in the matters of Judiciary while appointing the Judges, there is no intrusion from both Executive and Legislative. Doctrine of Separation of Power which was enhanced by Montesquieu with this idea that the three main pillars of the Democracy have their own separate role and powers, though they together make the base of our democracy but they themselves cannot be compared together in terms of their power. Hence, if no intervention would be there then in actual terms Judicial Independence which is the Constitutional Vision as stated in the Constitution of India will be accomplished.
But Political and Judicial history of India clears it that there have always been a struggle and competition between the Executive and Judiciary bodies. They have always been influenced politically which in further destroys the main foundation of revealing the Justice. It is believed that if this Collegium system works efficiently without any influence of politics in the process of appointing and transferring the judges then this will not be less than a miracle because this body comprises the wisest person in it, who are none other than senior-most Judges of Supreme Court and Chief Justice of India.
Constitutionalism is defined as no matter how big or strong any institution is, its powers are always under some check and therefore are limited in some or the other way. Since the appointment and transfer of the Judges is considered as the most important work to be carried out by any of the body then before the demolition of this Collegium System, it is mandatory to be notified earlier in an efficient manner without tempering the Independence of the Judiciary so that later on a decision could be taken in a healthy way to protect the purpose of Democracy. Hence this system has both advantages and disadvantages, advantage is that it enhances the Independence of the Judiciary whereas its disadvantage is that it prevalent of inherent nepotism which is also restated by the Law Commission of India. Sadly, even after such importance and controversy, political threat has always skimmed Judiciary and its independence from other two bodies of Democracy.
During the Emergency time period of India around 1975, large number of transfer of High Court Judges took place but for a reason those transferred judges gave the judgment which was not in favour of the Government which was there at that time.
The first judge case – S.P. Gupta v. Union of India
In this case of S.P. Gupta v Union of India, the matter regarding the appointment of Judges for the second time came in highlights. This case is also known by the name of First Judges Case also. Petitions were filed challenging about the practice of the appointing Additional Judges and for not filling the permanent vacancies. Their main observation was that transfer has to be done seeing the interest of the public, this should not be like a punishment but rather should benefit the person whose transfer is done. But since there was no satisfied judgment which further led to the Second Judges case.
The second judge case – Supreme Court Advocates-on-record Association v. Union of India
In this case main matter which was being raised was that whether the opinion of the Chief Justice of India in regard to the appointment of judges in supreme court and high courts as well as in regards to transfer of high court judges, is entitled to primacy?1 In the petition, it was contented that the executive is not fully able to achieve the target of filling all the vacant judicial vacancies due to which appoint of qualified judges is not seeing possible and they also accentuated on the appointment of judges requires a group consultative in which no constitutional functionary such as executive must be given primacy. In the judgment, it was concluded that CJI has primacy in the matter of appointment of the High Court and the Supreme Court Judges and no appointment could take place under these provisions unless the conformity with the opinion of the CJI is present. Hence this case was an attempt to keep Judiciary and Executive in their own pace and to what role they belong.
Third judge case- re presidential reference
Through this case, judiciary have increased their powers by prohibiting the intervention of Executive in their decisions. The question raised in this case was that whether CJI alone is enough for consultation or do CJI have to consult with other Judges also? It was held that CJI have to consult with other 4 senior-most Judges and this developed the concept of Supreme Court Collegium.
Political influence and the judiciary
Around 1945, the ray that soon India will be independence was rising and therefore, Sapru Committee took a decision that the appointment of the judges of both the courts must be done by the head of the state with the consultation of Chief justice of Supreme Court in the case of appointment in SC and for High Court to consult with Chief justice of respective High Court in which High Court appointment will be done.
All this decision was taken because Dr. Ambedkar thinks that when the power of appointment of Judges is given to the President then there is a chance of getting political influence and hence that’s a completely unbridlemant of power, but on the other side it was also thought that being given all the power only to the Chief Justice of both courts, then it would be prejudice. Hence a final decision both in President and Chief Justice favour was taken which was that President after taking consultation with Chief Justice could go ahead with the appointing of Judges. But still later on committee recommended many more idea to keep judiciary away from political influence, one of the idea by the committee was the Collegial Decision-making process, which was later on adopted by the Judiciary.
Introduction of judicial appointment
Appointment of Judges was always an important question which was to be considered because of its structure related to the Independence of the Judiciary. Many judgments and debate has already been taken on this subject. The importance of the independence of the Judiciary could be highlighted where it basically started from the primacy of executive and judiciary, then later on the National Judicial Appointment Commission (NJAC)in which there were 11 members were there which comprises of Chief Justice of High Courts and few other members of the both Rajya Sabha and Lok Sabha. This commission was set up to help in the process of appointment of Judges. Even after all this Independence of Judiciary is still unsolved. From many years and by many heads of various department, the question of independency of Judiciary, appointment and transfer of Judges have been raised.
Even if we look that the main function of a Judge is to adjudicate, thereafter this whole process is an Administrative Function which in other sense is that judges under the Collegium system has to work more as now they would have double responsibility, one is of the hearing of various cases and give judgment upon that, secondly is that about giving the opinion and recommendations upon the selection of future Judges and the transfer of Judges. They would have an obligation under the Appellate Jurisdiction, Original Jurisdiction and under Advisory Jurisdiction while on the other hand they would be the handling as the member of Legal Aid Services and various another committee which is quite over burden for the Judges. Nepotism on the other side has its own way to crept the process of appointment of Judges, though NJAC (National Judicial Appointment Commission) has helped and has made the whole process of appointing and transfer of Judges a transparent and consultative process.
Judicial appointments and judicial independence in India
An attempt has been made by the framers of the Constitution to completely make judiciary independent of the political influence5. For the betterment of Society and for the Democracy, it is essential to have an independent Judiciary because not only this ensures the rule of law but also ensures the stability of the society. Favourable environment and how much Judiciary is backed up by the opinions of the public is all what matters in the Independence of the Judiciary. With the term independence, it is not only meant that Judiciary should be separable from the other two bodies which are Executive and Legislative but in real terms independence means that without any political influence and based only according to the law, Judges should be able to decide upon the cases and come up to a reasonable judgment.
India being a country where the constitution has been liberalised a lot with the motive that the country should be independent and should act like a democratic country. The makers of the Constitution have this in their mind while drafting the Constitution, that the Basic Fundamental Rights and Independence of Judiciary are the two essentials factors which must be preserved and not enforced from any kind of influence and destruction. Here not only the appointment of Judges but also their tenure, salary should also be kept aside from the interference of Executive. Even Judges should also not be part of any of the part of Executive and Legislative neither they should belong to any political parties and business organisation, in other terms they should be away from involving in any kind of political activities.
From the Indian perspective, Independence of Judiciary and the appointment of Judges are considered as the fundamental features of the Indian Constitution, therefore any amendment which violates these rights are not validated under the Constitution and by the courts as well. Besides just the amendment, if any judicial decision also effects these than even they are not legally acceptable under the eyes of Law. By all these, it clearly highlights that the scope of the Judicial review has be modified in which the requirement of the Locuss standi has merely increased.
Judiciary is considered as the only interpreter for the language of Constitution and is the cause for the Basic structure but beside all this Judiciary must be docile to the whims and fantasies of the Parliament and executive because they are also like a poison to the democracy as in whenever there would be checking of all the process then they would absolutely lead it down. All the three organs which are Executive, Legislative and Judiciary should understand the meaning of spirit of Constitution which was originally coined by Dr. B.R. Ambedkar and by the framers of the Constitution. The day true meaning is understood, is the day when our nation would touch the heights of success and growth. Constitution makers from the very beginning decided they want Judiciary to be excluded from the range of Executive and Legislative.
Involvement of Judges which includes Chief Justice of Supreme Court and other Chief Justices of High Courts should be there in the collegium system for better decision-making process. Though when this system was adopted there were many controversies that whether this could serve the purpose for which this is adopted, which is to maintain the independence of Judiciary. Then in the Second Judges case and Third Judges case has make it clear like water that appointment and transfer of judges are very crucial part and must be handled with utmost care. Hence Independence of Judiciary is the most vital factor to look upon an its occurrence must be done in very sophisticated and efficient manner. Then the beginning and ending point was of the doctrine of separation of powers whose primary objective could be considered as the Independence of Judiciary. Therefore, harmony between the three organs of the government for the growth of the nation is what is required now from the democratic country.
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