“Even so, the creed of judicial independence is our constitutional ‘religion’ and, if the executive use Article 222 to imperil this basic tenet, the Court must ‘do or die’” — Justice Krishna Iyer
The Constituent Assembly did not ensure that special efforts were being taken to lay down guidelines for appointing judges as people who would be able to discharge constitutional obligations from a legal perspective. A commitment to bring about transformation in the society in terms of the Constitution by using by using necessary adjudicative and interpretative skills is called for and is desired. This gives rise to a very basic yet a prominent question, which has baffled political critics, constitutional scholars and socio-legal analysts for decades. “Who will appoint this judiciary?” The jury is still not out on whether this power should be vested in the hands of the judiciary itself or the executive should enjoy a complete or a partial say in it.
Recently, the Rajya Sabha passed the Constitution (99th Amendment) Bill, 2013, which scraps the collegium system of appointments to the higher judiciary and replaces it with a Judicial Appointments Commission (JAC). It has now been referred to the Parliamentary Standing Committee on Law, which has sought the opinion of the general public and the various stakeholders on the provisions of the Bill. The JAC will consist of three Supreme Court judges, the Union Law Minister, the Law Secretary as its Convenor and two “eminent persons” appointed by a body comprising the Prime Minister, the Leader of Opposition and the Chief Justice of India. Termed as an improvement from the collegium system, this amendment seeks to ensure a fine balance between the executive and the judiciary.
The Constitutional Position
According to Article 124 (2) of the Indian Constitution, the President has to consult such of the judges of the Supreme Court and the High Courts as he may deem necessary, before appointing any judge to the Supreme Court. It also requires him to always consult the Chief Justice of India (CJI) in the appointment of a judge other than the CJI. According to the Court’s interpretation of these provisions, the process of appointment of a judge is initiated by the CJI through a collegium consisting of him and four of the seniormost judges of the Court, the recommendation of which, is binding on the President. As far as the constitution of High Courts is concerned, the Constitution, in Article 217 (2) lays down that every judge of a High Court shall be appointed by the President after consultation with the CJI, Governor of the State and in case of appointment of a Judge other than the Chief Justice, the Chief Justice of a concerned High Court. After a series of cases which discussed the process of appointment of judges, known as the Judges Cases, now, the norm is to emphasise on “integrated ‘participatory consultative process’ for selecting the best and most suitable persons available for appointment” in which “all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, sub-serving the constitutional purpose, so that the occasion of primacy does not arise” in the matter of appointment of judges. In case of disagreement between the President and the CJI, the opinion of the latter will prevail. The opinion of the CJI refers to the opinion of a collegium consisting of himself and the two seniormost Judges of the Supreme Court. The process of appointment must be initiated by the Chief Justice of the concerned High Court who must form his opinion about an appointment after ascertaining the views of at least two seniormost judges of the High Court.
In S P Gupta v. Union of India, the First Judges case, the Hon’ble Supreme Court provided a literal meaning to the word ‘consultation’ that appear in the articles 124 and 217 of the Indian Constitution. The Court took the view that the opinion of the CJI is simply consultative and the final decision in the matter of appointment of judges has to be in the hands of the Central Executive. The judgement the this system of executive having a bigger say, came under severe criticism on the ground that such appointments were prone to political influence and hence hampered the independence of the judiciary. A growing demand was made to curb the primacy of the executive in the appointment of the judges. In its 121streport issued in 1987, the Law Commission proposed the setting up of a judicial commission for appointment of judges. The matter was put up for consideration again by a nine judges bench in the Supreme Court Advocates-on-record Association v. Union of India, known as the Second Judges case. This overturned the decision given by the Supreme Court in the First Judges case and gave up literal interpretation of the Articles. A wider meaning of the provisions in both Article 124 and Article 217 was adopted. The word ‘consultation’, now supposed to interpreted broadly, was ascribed the meaning of a “participatory consultative process in which the executive has the power to act as a mere check on the exercise of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to the minimum and any political influence is eliminated.” The Court justified it by holding that “In the choice of a suitable candidate, the CJI should have the greatest weight as he is best suited to know the worth of the appointee.” The opinion of the CJI was decided to be given primacy over the opinion of the President/Executive. In Re Presidential case, known as the Third Judges case, a 9 judges bench was constituted to clarify the Second Judges case. The court held that the opinion of the CJI has to be formed on the basis of consultation with the collegium, comprising of him and the four seniormost Supreme Court judges and the opinion of all members of the collegium in respect of each recommendation should be in writing. The plurality of Judges in the formation of the opinion of the CJI is emphasized as a check against the likelihood of arbitrariness or bias. Thus, by a process of ‘judicial invention’, the ‘collegium system’ of judges came in to existence.
How is the collegium system flawed?
The operation of the collegium has marked the complete breakdown of the inter-institutional system envisaged in Art. 124 and Art. 217. The collegium system enshrines de facto judicial supremacy over appointments. Though the executive must formally confirm the appointment, the role is marginal as its objections can be overridden by the collegium, whose decision is determinative in practice. The constrained role of the executive denudes the possibility of an inter-institutional check and balance on the judiciary and also renders public questioning of the executive in relation to judicial appointments futile as the executive inevitably pleads helplessness.
The collegium system has been criticised on various instances. A prominent one being the case of Delhi High Court Chief Justice AP Shah, who was supposed to be elevated to the Supreme Court. However, the collegium having Chief Justice S H Kapadia on board, rejected his appointment to the Apex Court. Interestingly, a few years back, when both Justice Kapadia and Justice Shah were on the bench of the Bombay High Court, the latter had dissented with the future Chief Justice of India. Another instance of supersession was when Justice Arijit Pasayat, as part of the collegium, had blocked the appointment of Justice A.K.Patnaik, then the Chief Justice of Madhya Pradesh High Court for unknown reason, though Justice Patnaik was a judge of immense repute. In yet another instance, Sikkim High Court Chief Justice Dinakaran was appointed to be elevated to the Supreme Court, only to be later charged guilty of corruption and graft charges. The recent allegations of Gujarat High Court Chief Justice Bhaskar Bhattacharya against former CJI Altamas Kabir have put a huge question mark on the collegium system. Justice Kabir has been alleged of scuttling Justice Bhattacharya’s elevation to the Supreme Court on the ground of malice due to the latter having rejected Justice Kabir’s sister appointment as a Calcutta High Court judge. Lastly, one other major flaw of the collegium system that has been seen over the years is that almost thirty per cent seats in various High Courts of the country remain vacant due to inefficient functioning of the collegium.
Shortcomings of the proposed reforms
Even assuming that the JAC is an answer to all the maladies of the collegium system, there is no certainty that the commission’s membership will always strike a fine balance between the executive and judiciary. The government can subsequently change the JAC’s structure, and decide who gets to appoint Supreme Court or High Court judges. All it needs is a simple majority in Parliament, because the JAC Bill, unlike the Constitution Amendment Bill, would be ordinary law. The new, “improved” system for judicial appointments will be put in place through a constitutional amendment, but the critical components of that system will be fleshed out by normal legislation, subject to the whims and fancies of the executive.
Moreover, sixty three years of constitutional governance has shown that numerous attempts have been made to undermine and subvert the independence of the judiciary and the rule of the law. After the Kesavananda Bharati judgement, the government, departing from earlier conventions, superseded three of the seniormost judges and appointed A.N.Ray as the CJI, who incidentally had decided three important cases in favour of the Central Government. The government stand was to appoint “forward looking” judges who shared its philosophy — a euphemism for compliant judges. After the declaration of Internal Emergency in June 1975, a calibrated, predetermined attack on judicial independence was organised and implemented. Mass transfers of 16 independent High Court judges from their parent High Courts were made. During the Emergency, the Constitution was extensively amended. Judicial review was almost eliminated and a two-third majority of judges was mandated for invalidating legislation. During the Emergency, the Constitution was extensively amended. Judicial review was almost eliminated and a two-third majority of judges was mandated for invalidating legislation. It is a legitimate fear that with the Executive now gaining a considerable say in the appointment process, it might go for a complete overhaul of the judicial system, which will be undesirable in the future scheme of things.
The collegium system has been in force since 1993 and has faced several criticisms and allegations of shortcomings. Reforms are necessary but restoration of a failed system that gives unbridled powers to the executive and poses a threat to the independence of the judiciary and the rule of law is an undesirable method of bringing in reforms. In its Statement of Objects and Reasons, the proposed Bill says, “This would enable equal participation of judiciary and executive, make the system of appointments more accountable, and thereby increase the confidence of the public in these institutions.” While this is very desirable, all attempts to restore the predominant voice of the political class in judicial appointments will amount to subverting the basic structure of the constitution and will be a recipe for disaster. Any such attempt will prove damaging to the long-cherished principle of separation of powers and hence there should be greater debates and discussions in the Parliament and in public forums too in order to ensure a fine checks and balances of powers between the judiciary and the executive, because the non-transparency and eventual failure of the current process of judicial appointments is no excuse to twist it in favour of the executive.