This article was written by Abry Sunni Anthraper, a student of Jindal Global Law School.
The world is never free of debates. The idea of any ‘scope for improvement’ always defies the ability of an established system to exist without scrutiny. Whether related to politics, or economies, or law or even age-old traditions of societal structure; this ‘scope’ always agitates the masses and encourages change. While such change has been greatly beneficial in certain situations, there have always been exceptions. Difference of opinions need to reach a common ground before any such change is enacted. Compromises are made, agreements are reached, and only then is a change accomplished.
This paper is a study of the Collegium system of selecting judges. Popularly, this is known as the system of ‘judges selecting judges’. As evident, it is a system whereby the Chief Justice of India (CJI) and four senior-most Supreme Court judges make recommendations for appointments and transfers. The issue in question is the legality and practical reasonability of this system; and whether or not this system helps further the judiciary’s job of providing justice. In order to answer these questions, we shall visit the origin and validity of this system. We shall also look the alternative National Judicial Appointments Commission (NJAC) system; and compare the two while exploring the possibility of a third solution. Another major question that is to be looked at in this paper is how independent the judiciary really needs to be from the executive; and whether keeping the two branches separate is in the best interest of the country.
Of all 195 countries present today, India has the most extensive constitution. The Constitution of India contains 444 articles in 22 parts, 12 schedules and 118 amendments. This constitution ensures no scope for any doubts; and yet the Supreme Court has managed to change the fundamentals. It justifies its actions saying it is protecting the ‘basic structure’ of the Constitution; but in reality it is just accumulating unopposed power. Through the three-judges’ cases, the Supreme Court has indeed repealed the 99th amendment made by the legislation; thereby rejecting the NJAC system.
The alternative to the collegium system was originally Articles 124 (Supreme Court) and 217 (High Court) of the Constitution. With the 99th amendment, a ‘National Judicial Appointment Commission (NJAC)’ was set up which gave some power for the selection of judges to the executive as well. The grounds taken by the Supreme Court for invalidating this amendment was that any mixing of powers would fail the basic structure of the constitution. The judiciary should remain completely free and out of the influence of the executive.
The three judges’ cases referred to before are a series of judgements made by the Supreme Court that have shaped the collegium system to be what it is today. Brought about by S. P. Gupta vs. Union of India, the first case strengthened the executive. It interpreted the word ‘consultation’ in article 124 to not mean ‘concurrence’. Thereby, the executive had the power to make appointments to the Supreme and High Courts. This judgement was then overturned in 1993, in the Supreme Court Advocates-on-Record vs Union of India. Here, the nine judge bench ruled that ‘consultation’ did indeed mean ‘concurrence’ and that the executive could not make any judicial appointments without the consent of the present judiciary. This was achieved with the opinion of the judiciary headed by the CJI opposed to the president as a head of the executive.
The final case of the three judges’ cases was called ‘In the Special Reference’ case. This further strengthened the Judiciary with article 50 of the Indian Constitution being used as a basis. This Article discusses the separation of powers between the Judiciary and the Executive. The Supreme Court used this Article to ensure that there would be no overlap or sharing of powers between the judiciary and executive. As a result, the executive lost all its power with respect to selecting judges to the High and Supreme courts. Doing thus, the judiciary itself separated the powers and ensured a monopoly status for themselves.
This brought about a major debate regarding the validity and the justifiability and constitutionality of this decision. The executive contested for the validity of the NJAC system while the judicial system advocated for the collegium system. The resultant debate continues till today to decide which side is more justified in its claim. If we were to weigh the two perspectives from an academic standpoint, the victor would be the executive. However, from a more practical standpoint, the winner is the judiciary. The purpose of this paper however, is to make an academic study into the validity of such a system. A system, which though on the face of it, prevents the judiciary from being ‘polluted’ by the executive, actually just ensured the freedom of the judiciary from the scrutiny and vigilance of the executive.
The legislature is directly elected by the citizens on India. Also, it is accountable to the judiciary and the executive to an extent. The executive is elected indirectly by various constituencies and from within the legislature. They too are accountable to the judiciary for their policies and actions. Cases between individuals and the State are within the ambit of judicial powers. While these two arms of the government are in a way elected by the citizens and are accountable to the other arms; the judiciary is neither elected nor accountable. This lack of accountability leads to corruption and nepotism. Becoming accountable would enhance the transparency of the judiciary and would serve as a uniform basis for making appointments based on qualifications and not on biases. A certain Justice C S Karnan of the Madras High Court alleged that the collegium system of judges’ selection a “doubtful system that promoted only high caste candidates”. While he doesn’t have any hard evidence backing his claim, the Supreme Court doesn’t have any proof either. What a new system would ensure is that situations such as this don’t arise. As far as nepotism and favoritism goes, Advocate KC Mittal of the Delhi High Court Bar Association says that
“The experiences have shown that those who have God Father in the higher ups make task easy and smooth to push the name(s), even get cleared by the IB (intelligence Bureau) to ultimately make appointment comfortably,”.
All these accusations taint the sanctity and the cleanliness of the judiciary. A valid response to such allegations is severely required by the Courts. A change is much needed. Much discussion is needed on what the change will be; but until now one definite conclusion is that change is necessary. Prashant Bhushan, an eminent lawyer says, “The NJAC is a cure worse than the disease.” How valid his claim may or may not be is open for debate, but every perspective counts. The Ex-CJI says himself says that there is a lot of room for improvement in the collegium system itself.
To conclude the debate regarding the morality of the collegium system, I think attention should be drawn to the obligation that the judiciary has to the people of India. The Justice System of India should be most accountable to the citizens of India. By way of the collegium system, this accountability is missing. Therefore, let us move on to alternatives of the collegium system.
The aforementioned NJAC system was an alternative proposed by the central government as a replacement of the prevailing collegium system within the judiciary with respect to appointment of judges. The NJAC comprises of:
“(a)Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India—Members, ex officio;
(c) the Union Minister in charge of Law and Justice—Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People— Members”
The eminent persons nominated by the committee as per section 124(A)(d) cannot be voted into power again after their brief term of three years.
The way by which judges will be selected via the NJAC is mandated within the sections covered under the National Judicial Appointments Commission Act, 2014. Through the NJAC there would be a considerable increase in the role assumed by the executive in the appointment of judges which can be viewed as a form of intrusion on part of the executive and a violation of Article 50 of the constitution of India.
The NJAC as compared to the collegium system was to give out more transparency. The system has a two-member veto power enabling any two of the consisting members to veto the decision of the rest if the decision stands ill with their ideal pick for a judge.
“The Commission shall not recommend a person for appointment under this section
if any two members of the Commission do not agree for such recommendation.”
The same structure of approval of bills is also enforced through the bill, whereby the President can direct the commission to reconsider their nominations for judges, but once given the improved nominees the president cannot veto their decision for a second time and ask for redressal. Once the nominees have been given to the President for a second time then he must appoint them no questions asked.
“The President shall, on the recommendations made by the Commission, appoint
the Chief Justice of India or a Judge of the Supreme Court or, as the case may be, the
Chief Justice of a High Court or the Judge of a High Court:
Provided that the President may, if considers necessary, require the Commission to
reconsider, either generally or otherwise, the recommendation made by it:
Provided further that if the Commission makes a recommendation after reconsideration
in accordance with the provisions contained in sections 5 or 6, the President shall make the appointment accordingly.”
Section 50 of the Indian Constitution being part of directive principles of state policy cannot be legally enforced. The efforts of the judiciary to be apart from the executive cannot be upheld as a matter of law. In this way the NJAC can be seen as constitutional and not an impeding of the executive into the judiciary. It is a policy that the state must look into but not enforce.
“50. The State shall take steps to separate the Judiciary from the executive in public services of the State”
This section being part of directive principles of state policy cannot be legally enforced. The efforts of the judiciary to be apart from the executive cannot be upheld as a matter of law. In this way the NJAC can be seen as constitutional and not an impeding of the executive into the judiciary. It is a policy that the state must look into but not enforce. Through the three judge’s case the decisions were reached upon by taking article 50 as the main point of strength on the side of the judiciary. In doing such an interpretation of article 50 they ended up with the collegium system of appointment of judges. A state within state. A body within a supreme body, both of which cannot be held accountable. The dearth of transparency means it supports a give and take sort of system. Just having friends in the higher judiciary will work in your favour.
There may also arise the situation where caste-based and religion-based discrimination will happen. Whereby people of certain castes will not be let to go into the higher judiciary as they belong to a caste unfavourable to the Judges in the higher judiciary or the judges present in their own judiciary at a state level. The same is consistent for religions as well.
One of the main points that stands out when considering the already existing collegium system is that it has, in essence, enabled the judiciary to act as a ‘completely’ independent body. The framers of the constitution had never agreed on complete and absolute power to the judiciary in matters of appointment of judges. This picking and choosing method is disastrous as it will devalue the credibility and veracity of the existing method of appointment which is the collegium system.
Prior to 1993, the power to appoint judges was an exclusive right of just the executive but with consultation from the judiciary. The names of the nominees for judgeship or such recommendations thereto by any Chief Justice of a high court would be checked within a closed framework which was controlled by the executive. It was not bound to any of the suggestions and could take a final decision by itself. This system, though faulty, as compared to the collegium system offered only the same level of free and transparent appointments to the judiciary.
An alternative to both the collegium system and the NJAC system is something that was proposed by the eminent Lawyer Prashant Bhushan in a PIL filed in the Supreme Court, along with the help of Centre for Public Interest Litigation (CPIL). In an interview with the Frontline magazine, Prashant Bhushan proposed a mock model for a body that is a completely independent of the Legislature, the Executive and the Judiciary.
“One model, which we had originally proposed, was that one or two members could be selected by a collegium of all the judges of the Supreme Court, one or two members could be selected by judges of the High Court, one member by the Union Cabinet, one member by a committee consisting of the Speaker, the Vice-President and the Leader of the Opposition, one member by institutions like the Comptroller and Auditor General, the Election Commission, and the National Human Rights Commission. This way, you can have five or seven members selected by different collegiums. After selection, they should be completely independent, unaccountable to the government.”
He had also proposed another model in which the same members mentioned above would select persons into a committee which would then further go on to select the members who would comprise an independent NJAC. The addition of the Law minister is what made the position of the NJAC compromising on the autonomy of the Judiciary. By way of the proposed NJAC, 2014 there would be a great deal of corruption as through this the executive can now have its way in matters of judicial importance. This is not to say that the collegium system is free from fault. Corruption in the collegium system has an equally high chance of being prominent as the system is an unmonitored, unsystematic, give and take model.
The responsibility of selecting many judges in a year to the higher judiciary, if done right, would require a minimum of a thousand candidates to be considered. This would need a full-time body that is dedicated to just this process of appointment of judges. Such a large and important job cannot be done by people already holding office such as the CJI or the law minister who are people who do not have enough time to do justice to this role.
The collegium system is not transparent. Transparency should be looked into for the purpose of not being arbitrary. The least amount of transparency that should be allowed for is that the standards for the selection of judges should be made known to the public. The evaluations for all the aspirants must also be made known so that they may be compared on a standard basis. Once the aspirants have been shortlisted they must be announced before any of them are appointed, this allows for people with relevant information about these judges to come forward with reasons why those people should be or not be on the list. The committee could consist of ex-judges or even laypersons but should be selected by a committee in which both the government and the judiciary have a role to play but neither has a dominant role over the other.
The Constitution of India has given the higher judiciary the power of adjudication of disputes, the power to keep the legislature and the executive in check, to make sure that laws are not broken by the legislature or the executive. As far as the basic structure doctrine established in the Keshavananda Bharti Case is concerned, in our opinion, the judiciary has erred in interpreting the structure as far as the question of judicial appointments are concerned. As a conclusion, we can only be sure that the collegium system is violative and unfair to all the contenders for such appointments. Not only is it bigoted towards the candidates but is also very misguiding for the public. Many wrongful decisions are made and many important factors while making those decisions are ignored. This furthers the gap in relatability between a common man and the Judiciary of India.
The alternative, NJAC, is also not a solution which is acceptable. A division of power must exist alongside the mutual respect and sharing of powers. While this may seem contradictory, it makes sense in most perspectives. Our case today is procuring a system that fulfils this criterion. The NJAC fails it. The collegium system ensures the division of power and the NJAC system ensures the sharing of powers. However, neither system provides for both sides of this coin. The answer lies in the suggestion made my Prashant Bhushan. While the specifics of his plan may not be perfect, they are open to adjustments that would clear all rooms for ambiguity and secrecy. The people of India would be at a much clearer standpoint when they would be allowed to at least witness a justifiable and legal selection procedure.
At the beginning of this paper, I had posed various questions regarding the validity, justifiability, legality, morality and sensibility of the collegium system. Now at the end, it is safe to say that these questions have been answered in full. Growth is instrumental to change. It is this growth that separates a beneficial change from an adverse change. As a young country, India should ensure growth in the correct direction, and the collegium system, is the wrong direction. Born of three misleading judgements, this system only hampers the growth India needs. Changing the collegium structure of judicial appointments would be the first step in rectifying the course of India’s growth.
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- P Gupta v. Union of India, (1981) Supp SCC 87
- Supreme Court Advocates-on-record Association and ors v. Union of India, (1993) 4 SCC 441
- Special Reference No.1 of 1998, (1998) 7 SCC 739
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 Article 124A, Constitution of India
 Article 5 (3) of the NJAC Act, 2014
 Article 7 of the NJAC Act, 2014
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