By Sanya Darakhshan Kishwar, Central University of Bihar, Gaya.

ANALYSING WHAT COLLEGIUM IS

It is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution. [1]

What does the Constitution actually prescribes?

  1. Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
  2. Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.

The evolution of other systems:

 The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”.[2] The S P Gupta case[3] is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.

How did the judiciary come to get primacy?

 On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association v. Union of India case[4] — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”

How final was this?

 Justice Verma’s majority judgment saw dissent within the bench itself on the individual role of the CJI. In a total of five judgments delivered in the Second Judges case, Justice Verma spoke for only himself and four other judges. Justice Pandian and Justice Kuldip Singh went on to write individual judgments supporting the majority view. But Justice Ahmadi had dissented and Justice Punchhi took the view that the CJI need not restrict himself to just two judges and can consult any number of judges if he wants to, or none at all.

For the next five years, there was confusion on the roles of the CJI and the two judges in judicial appointments and transfers. In many cases, CJIs took unilateral decisions. Besides, the President became only an approver.

How the confusion was curbed?

In 1998, President K. R. Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the corum for appointments/transfers; this came to be the present form of the collegiums.

Besides, a judgment dated October 28, 1998,[5] written by Justice S. P. Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive. This was the “Third Judges Case”.

ARGUMENTS AGAINST THE COLLEGIUM WHICH LED TO PASSING OF CONSTITUTIONAL AMENDMENT BILL

Experts point to systemic errors such as:

* The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;

* A closed-door affair without a formal and transparent system;

* The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.

What moves were taken to correct these?

The Law Commission 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.

NATIONAL JUDICIAL COMMISSION AS A PERFECT PROPOSAL AND ALTERNATIVE

The Constitution (98th Amendment) Bill was introduced in the Lok Sabha by the NDA government in 2003. It provided for the constitution of an NJC to be chaired by the CJI and with two of the 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.It gained pace with the new government and we saw the 124th amendment in the constitution.

The National Judicial Appointments Commission Bill Passed by the Parliament in August 2014 has received the assent from the President of India.

Earlier, 16 states had ratified the 124th amendment to the Constitution, which grants Constitutional status to the National Judicial Appointments Commission, in line with the constitutional requirement.  Article 368 of the Constitution of India mandates that a constitutional amendment bill requires ratification by at least 50 percent of the states, before being presented to the President.

With the assent from President of India, the Collegium system of appointing judges in the higher judiciary also comes to an end as the National Judicial Appointments Commission has been empowered to appoint and transfer judges in the High Courts and the Supreme Court of India.

The National Judicial Appointments Commission will consist of the Chief Justice of India along with two other senior judges of the Supreme Court. In addition, the Union Law Minister along with two eminent personalities will also be part of the Commission.

There are good objections and bad for how the NJAC bills were formulated. The objections include the following:

One, the judiciary was not consulted. The simple counter to this charge is this: when the purpose of the new law is to end something that was never intended in the constitution, and the current CJI has openly defended the collegium system, what is the purpose of consultation? The powers of parliament to legislate and amend the constitution are paramount. The Supreme Court will get its chance to confirm the law’s constitutional validity if it finds any infirmity in it.

Two, the law has been changed with undue haste. This is certainly true. In theory, the government could have gone through an elaborate process of consultation. But the fact is law changes have been suggested for years now. Even the author of the 1993 judgment which created the collegiums, the last CJI JS Verma, admitted that the collegiums system had failed. And it is the government’s job to judge the political climate for what laws will pass and when. The fact that no major political party had serious issues with the NJAC bills shows that the laws have widespread acceptance among legislators.

Three, the NJAC diminishes the judiciary’s role in the appointment of judges. This is not quite true. The new law says that judges will be chosen or transferred by a six-member NJAC. Of the six, three would be the CJI and two senior-most Supreme Court judges, two would be undefined “eminent persons”, and one would be the Law Minister. If two of the members object to a judge’s nomination or elevation, the matter would end there. The two eminent persons are themselves to be nominated by a three-member team – the CJI, the PM and the Leader of the Opposition (or leader of the single largest party in the Lok Sabha).

If half the NJAC members are judges, how is it tantamount to reducing the role of the judiciary in judicial appointments? The two-member veto can, of course, stop the judges from getting their choices in, but the reverse could also be true: two judges, or two politicians, or two eminent persons, or a combination of any two members of NJAC could hold a veto. If relationships in the NJAC are frayed, there could be deadlock, but the fact is no one can shove a judge down anyone’s throat. The judiciary’s role is not diminished; it is being counter-balanced by giving the executive and politicians some say. This was anyway the original intent of article 124 – duly modified to widen the process of selection.

It is worth noting that in the US, judge selection is entirely a political process (existing judges have no say) and in Britain (for England and Wales), the 15-member Judicial Appointments Commission has 15 members, among whom only five are judges. The chairman of the JAC is a lay person, and not a judge.

In contrast, in the Indian NJAC, the CJI is the head. There is no way anyone can say the new law diminishes the judiciary.

Four, it is wrong to give the executive (or politicians) a voice in judicial appointments. As the US and UK examples show, globally it is not judges who appoint judges. Moreover, democracy means laws are made by elected representatives, and not judges. Judges only have to interpret the laws and check if they impinge on the basic freedoms guaranteed by the constitution. In recent years, judges have been foraying into everything, including policy (as in the 2G judgment, when the judges said natural resources can only be sold through auctions), due to the general loss of faith in politicians. But voters elect the same politicians. It cannot be any job of the judiciary to thwart the people’s will. The will of the people means the right to change the laws – as long as they are not in contravention of the basic features of the constitution.

It could be that the composition of the NJAC could be improved, or that some features (like the two-member veto) could be problematic. But we will know this only when the law is implemented – just as we discovered the flaws in the collegium system only after 15-20 years of operation.[6]

CONCLUSION

The NJAC may not be the best thing to happen to judicial appointments, but it is a darn sight better than the opaque collegium system. We can fix the warts once they are visible. Parliament can always fix what is broken, but right now it is the collegium system that is broken. The NJAC won’t break.

[1] http://salamuddinansari.blogspot.in/2013/01/what-is-collegium-system.html

[2] http://salamuddinansari.blogspot.in/2013/01/what-is-collegium-system.html

[3] Bhagwati, P. “S. P. Gupta v. President of India”indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.

[4] Verma (for the majority), J S. “Supreme Court Advocates-on-Record Association v. Union of India”indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.

[5] In re Special Reference 1 of 1998 ;Barucha, S. P. “In re Special Reference 1 of 1998”indiankanoon.org. Indian Kanoon. Retrieved 15 January 2013.

[6] http://www.firstpost.com/politics/judicial-supremacy-versus-parliament-njac-clearly-better-collegium-system-1665749.html