Judges form the nucleus of Judicial System. But what comprises of this nucleus? Judges, and who are they? Human Beings. Does that opens the ground for bias, subjectivity and ideologies? Both yes and no. From annihilation of article 370 to legalisation of same sex marriages, courts decide fate of many. But who decides the judges? Common people don’t, at least not directly. The question has been delved over and over again, but the issue remains as it is. Let’s take a dive deep into the process and find out.
The issue regarding appointments of judges to the Supreme Court and High Courts, and the collegium system has always been a point of tussle between the Judiciary and the Executive. The collegium system in itself does not find a mention in the Constitution of India, rather it has evolved with the help of various judgments given by the Hon’ble Supreme Court over several years. The intricacies of the collegium system are more in the news lately, especially due to criticism[1] by the Law Minister and the Vice President of India.
The collegium system is also considered a closed-door affair. There have been allegations of favoritism and nepotism time and again in the past decades. Some of the reasons can be absence of any firm mechanism to ensure diversity on the Bench. This lack of a pre-defined mechanism, is incapable to solve problems when there is difference of opinion amongst the members of the collegium and the Legislature as well, thus, leading to delay in appointments.
Who has the primacy?
The evolution of the present collegium system is a result of a ping pong game. There has always been resistance as to who gets the final say regarding the power to make appointments to the Supreme Court and the High Courts, should it lie totally with the Centre or the Courts should get an upper hand. Similarly, regarding the transfer of judges between High Courts, should the President get the final authority or should the deciding factor lie with the Chief Justice of India?
In the First Judges Case, 1981[1]– the ball landed in the lap of the Executive as the Supreme Court ruled that the word ‘consultation’ could not mean ‘concurrence’, thus meaning that the Chief Justice of India’s (CJI) opinion was not binding on the President.
In the Second Judges Case, 1993[2] – the Supreme Court overruled its earlier decisions and held that ‘consultation’ meant ‘concurrence’. This means that the advice rendered by the CJI on matters of appointments is binding on the President. Also, in the same case foundation of the ‘collegium’ was also laid.
Then came the Third Judges case, 1998[3], the NJAC (National Judicial Appointment Commission)[4] and finally in the Fourth Judges Case, 2015[5] the Court again ruled that the primacy of the judiciary in Judges’ appointments was embedded in the basic structure of the Constitution and held that the NJAC law gave politicians an equal say in judicial appointments to constitutional courts, hence declaring NJAC unconstitutional.
2. Need for a transparent mechanism?
Our Constitution envisages the independence of Judiciary from the Executive and the Legislature. Hence, privilege cannot be given to any other power except the judiciary regarding the appointments to the Constitutional Courts. However, it does not mean that the present collegium system is entirely infallible. In a seminar[1] former Chief Justice of India, Justice U.U. Lalit while recommending a firm mechanism, extolled the virtues of the present collegium system. In brief, he pointed out that when a Judge is recommended by the Chief Justice of High Court to the collegium, it has already gone through a rigorous process of scrutiny and consultations.
On top of that, the Supreme Court collegium also goes through various background checks which involves a report from the Investigation Agency by the Central Government. After in-depth scrutiny, the names are recommended by the collegium to the Central Government to raise objections, if any, and after the objections are sent by the Central Government, the collegium reconsiders them. If there is reiteration, it requires unanimous opinion of the collegium. After such reiteration, the Government is bound to affirm it. However, he went on say that instead of affirming the appointment, the Government sometimes stonewall such decisions which depicts Executive’s persistent diatribe against the Judiciary.
Even after going through such a rigorous process, the collegium system is still under attack. The main issues of attacks are allegations of nepotism, lack of diversity and delay in filling up vacancies. As was recommended[2] by former Supreme Court Judge, Justice Indira Banerjee, that for determination of ‘distinguished’ a criteria should be laid down in the ‘black and white’.
In 1999, the Union Government framed a Memorandum of Procedure (MoP)[3] for the appointment of Judges and Chief Justices of the High Court and the Supreme Court. While striking down the NJAC, the Supreme Court had acknowledged that the MoP needs ‘fine-tuning’ for increased transparency but the court and the government have failed to reach a consensus since.
3. Question of judicial review
By and now, the Supreme Court has held that its administrative functions can be subject to judicial review. But, in the recent Victoria Gowri’s appointment case[1] the Supreme Court rejected the argument that there no question of judicial review over suitability. Granted, suitability may not be open for Judicial Review but it was not a question of suitability only, rather is also a question of accountability and eligibility. It is a matter of a Judge who would be publicly responsible, who will receive his salaries at the public expense, who will even enjoy some facilities after retirement at public expenses. Hence, such decisions of the collegium may be open to judicial review.
Like in the S.R. Bommari v. Union of India (1994 SC) it was held that materials based on which the Emergency is recommended by the President can be presented for Judicial Review. Similarly, the materials based on which the collegium takes a final decision can also be presented for Judicial Review.
Separation of the Judiciary from the Executive and the Legislature is of prima facie importance. The basic structure has been evolved as a thread to keep the powers in check and to ensure Federalism. Role of an independent judiciary cannot be questioned and whenever there have been attempts to harness it anywhere in the world, it has always been questioned by the people of such country. Recent example is the protests in Israel, wherein the Government in the name of reform is attempting to make laws to restrict powers of the Courts, so that they cannot rule against the Legislature and the Executive. Hence, people have taken it to the streets to protect the independence of judiciary.
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3. Things to consider
In order to strengthen the present collegium system, it has to be made more transparent and accountable. This strengthening cannot happen from within the judiciary alone, rather it requires first hand help from the Bar. Afterall, the trend shows that 70% of judges are elevated from the Bar[1].
It is prime duty of a judge to uphold the constitutional values and to ensure that the judges abide by such values. It is important that not only the seniority is checked, but also their basic outlook towards the society, their attitude towards life and their personality are also looked at. This helps to determine the demeanour of the person. This is not possible for the Executive who is sitting, for instance in Delhi and make an appointment for a High Court of Kerala. This is only possible by common help from the State Bar who knows about the demeanour of the advocate, who is to be elevated a High Court Judge, the colleagues who work with him and the Supreme Court Judge who was once part of that State High Court.
The Supreme Court collegium has also taken a recent initiative to cull out information given by the Intelligence Agency and put it in its statement while recommending the name of the Judge for elevation or while denying the recommendation. This will give way to more transparency.
It would be a better idea that, instead of hiding the name, the list is made public so that opinion from colleagues can be taken into account.
The NJAC system can be improved by taking away the focus from consensus and majority votes being given to Supreme Court Judges.
Finally, the independence of the judiciary forms the bedrock of democracy but independence without transparency and accountability slowly turns into tyranny and such a scenario should be avoided at all costs.
Important Links:
[1] Uncle Judge syndrome will remain till Collegium system is there: Kiren Rijiju – India Today
[1] S.P. Gupta v. President of India and Others (1981 SC)
[1]Supreme Court Advocates-on-Record Association and another v. Union of India (1993 SC)
[1] In Re Special Reference 1 of 1998.
[1] The Constitution (99th Amendment) Act, 2014.
[1] Supreme Court Advocates-on-Record Association and another v. Union of India (2015 SC).
[1] LIVE NOW- SESSION 3- CJAR AND LIVELAW SEMINAR- PRINCIPLES AND FRAMEWORK FOR JUDICIAL APPOINTMENTS
[1] Read What Justice Indira Banerjee Said About Reconsidering Collegium Decisions (livelaw.in)
[1] Anna Mathews and others v. Supreme Court of India and Others (2023 LiveLaw (SC) 93)
[1] https://www.livelaw.in/top-stories/principles-and-framework-for-judicial-appointments-221907
About the author …
Priyanka Agarwal is a BBA, LLB graduate and currently pursuing LL.M. She has been a Judicial Aspirant due to which she has knowledge of not only the common subjects like The Constitution of India, CPC, CrPC, IPC but also Commercial Courts Act, Limited Liability Partnership, Sexual Harassment of Women at Workplace and many more.
She has a habit of reading case laws as she finds them helpful in understanding the intricacies of law.
She has worked as a Legal Researcher (Intern) at LexQuest wherein in she published Articles on Contemporary Issues of Law; she also did an Internship under an Advocate of the Supreme Court of India; recently, she worked as a Legal Reporter (Intern) at an online news publishing platform where she published 27 Articles; she has also got a Research Paper published on IJLLR.
She likes to bake and also has a vegetables/fruits terrace garden.
