This article is written by Gunjeeta Jangra of 1st Semester of National Law Institute University, Bhopal.
ABSTRACT
The tussle over the collegium system goes on between the judiciary and the executive in India. While the judiciary sees it as the independence and integrity of the judiciary in the country, the executive criticises it that it rejects the idea of check and control in the exercise of power by the judiciary and does not involve the executive in the process of the appointment of judges to the Supreme Court and the High Courts. The concept of the collegium system evolved through the landmark judgments of the Supreme Court in the 1980s. and 90s. regarding judicial appointments in India. The collegium system makes recommendations for the appointment of judges to the Supreme Court and the High Courts who are then appointed by the President of India.[1] This research article discusses the constitutional provisions regarding judicial appointments and the evolution of the collegium system in India with specific reference to the relevant case laws.
Keywords: collegium system, judges case, appointment of judges, constitution, constitution of India, article 124, article 217.
INTRODUCTION
Different countries across the globe follow different mechanisms for the appointment of judges to their courts. For instance, in the United Kingdom, the 15-membered Judicial Appointments Commission (JAC) is the authority which oversees the process of judicial appointments[2] whereas, in the United States, the President appoints the judges to Federal Court, who are assessed by a committee of the American Bar Association and reviewed by the Senate Judiciary Committee and finally consented by the Senate.[3]
In India, the President is the nominating authority that appoints the judges on the recommendation of the collegium. The Collegium System in India finds no mention in the Constitution of India or any other legislation.[4] However, the Hon’ble Supreme Court of India iterated the independence of the judiciary in the country and political influence in the judicial appointments. The supporters of the collegium system favour the mechanism as it ensures independence of the judiciary and, deserving and unbiased appointments of judges in the country. However, critics find it an ineffective mechanism, as according to them, the collegium system lacks transparency and accountability and often, it is accused of nepotism and corruption.
This research article aims to discuss the evolution and constitutionality of the collegium system in India, with specific reference to the case laws. Section II of the article talks about the constitutional framework regarding the appointment of judges in India. Section III of the article refers to the specific case laws, which are commonly called “Judges Cases” and shaped the collegium system in India for the appointment of the Supreme Court and High Court judges. Lastly, Section IV of the article concludes and highlights the criticisms against the collegium system in India.
CONSTITUTIONAL FRAMEWORK FOR APPOINTMENT OF JUDGES IN INDIA
There are provisions in the Constitution of India which provide for the appointment of judges to the Supreme Court and the High Courts in Article 124(2)[5] and Article 217(1)[6] respectively. Article 124(2) talks about the appointment of Supreme Court Judges and states, “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than Chief Justice of India shall always be consulted……”.[7]
Therefore, the power to appoint the Supreme Court Judges (including the Chief Justice of India) vests with the President of India. However, this needs to be done in “consultation” with the Chief Justice of India (CJI) in the case of a Supreme Court judge other than the CJI.
Article 217(1) talks about the appointment of High Court Judges and states, “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the chief Justice, the chief Justice of the High court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty two years……”[8]
Therefore, the judges to the High Courts are appointed by the President upon “consultation” with the Chief Justice of India and the Governor of the relevant state and the Chief Justice of the High Court also, in case of a judge other than the Chief Justice of the High Court. The word “consultation” has been interpreted by the Supreme Court in various case laws (discussed later) which led to the evolution of the Collegium System in India.[9]
EVOLUTION OF THE COLLEGIUM SYSTEM IN INDIA: RELATED CASE LAWS
The Collegium System in India is nowhere mentioned in the Constitution and it evolved through the judicial interpretations of these constitutional provisions by the Supreme Court in the landmark case laws which are now collectively called “Four Judges Cases”.
First Judges Case
In the First Judges Case, S.P. Gupta v. Union of India, AIR 1982 SC 149, the seven-judge bench decided the matter and introduced the concept of the collegium system in India.[10] In this case, the court examined the provisions regarding the appointment of judges and made significant observations. After referring to Article 124(2) and Article 127(1) which talk about the appointment of judges to the Supreme Court and the High Courts respectively, the court observed that “Chief Justice of India, the Chief Justice of the High Court, and such other Judges of the High Courts and of the Supreme Court…. are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government.”[11]. However, such consultation should be full and effective.[12]
The court held that the Central government was not bound to follow and can override the opinion of such constitutional functionaries even if the opinion by them is identical and unanimous.[13] It also held that in case of differences between the opinions in regard to the appointment of a Judge in a High Court, the opinion of any of the constitutional functionaries, cannot be given primacy and it would be on the Central Government to decide whether the appointment should be made or not.[14] And in the case of the Supreme Court judge appointment also, the opinion of the Chief Justice of India (CJI) cannot be given primacy as the provisions include the consultation and not “concurrence”.[15] Ultimately, the decision of the court, in this case, favoured the executive (central government) and the executive remained as the authority with the powers to appoint judges in India.
However, the court here opined that the then-prevailing system of appointing judges was not adequate. The court recommended that a collegium composed of persons who are expected to have knowledge of the persons, who may be fit for appointment on the Bench and of qualities required for appointment, should be made to recommend the President regarding the appointment of judges, which should be broader based and there should be consultation with wider interests.[16]
Second Judges Case
In the Supreme Court Advocates on Record Association And Anr. v. Union of India, 1993 Supp (2) SCR 659, the nine-judge bench overruled the judgement in the ‘First Judges Case’. The court also emphasised the independence of the judiciary in this case and even observed that “The requirement of prior “consultation” with the superior Judiciary is a logical consequence of having an “independent Judiciary” as basic feature of the Constitution.”[17].
In case of appointment of Supreme Court judges under Article 124, the opinion of the CJI will be collectively the opinion of the “Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State”.[18] In case of appointment of High Court judges under Article 217, the process of appointment will initiate with the recommendation of CJI which incorporates the views of two senior-most Judges of the High Court along with two senior-most Judges of the Supreme Court and also the opinion of the senior Judge conversant with the affairs of the concerned High Court.[19]
The Supreme Court held that the opinion of the Chief Justice of India will hold primacy in the appointments of judges and no appointment can be made until it is in conformity with the opinion of the Chief Justice of India.[20] With regard to the transfer of justice/judge under Article 222, the court held that the proposal will be initiated by the CJI and this recommendation will be binding on the Executive.[21] This was how the collegium system was introduced in India to appoint judges through the ‘Second Judges Case’.
Third Judges Case
In the ‘Third Judges Case’ (Special Reference Case 1 of 1998), the Supreme Court expanded the strength of the collegium which now includes the CJI and four senior most Supreme Court judges in case of a Supreme Court Judge appointment or High Court Justice/Judge transfer and two senior most Supreme Court judges in case of a High Court Judge appointment.[22] It also defined the meaning of consultation and held that “the expression “consultation with the Chief justice of India” in Articles 217(1) and 222(1) of the Constitution of India requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.”[23]
Fourth Judges Case
In the Supreme Court Advocates on Record Association And Anr. v. Union of India, (2016) 5 SCC 1, the Supreme Court held the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission (NJAC) Act, 2014 unconstitutional and void.[24] The NJAC consisted of the Chief Justice of India (as Chairman), two senior most judges of the Supreme Court, the Law and Justice Minister and two eminent persons (selected by a committee which would be composed of the Prime Minister, the Chief Justice of India and the Leader of Opposition) upon which would recommend the President regarding judicial appointments.[25]
For this, the 99th Constitutional Amendment Act, 2014 was introduced which had inserted articles 124A, 124B and 124C in the Constitution of India to provide for the establishment of commission[26], powers of commission[27] and power of parliament to regulate the appointments of judges and empower the commission[28]. However, citing the independence of the judiciary, veto powers of these two eminent powers, and other issues with the acts, these acts were held unconstitutional by the Supreme Court and it restored the collegium system for the appointment of judges in India.[29]
CONCLUSION
As discussed above, according to the constitutional framework, the President of India is the appointing/nominating authority in India when it comes to judicial appointments, but in consultation with the Chief Justice and other judges. The collegium system which recommends to the President of India regarding judicial appointments has no presence in our constitution and completely evolved through the interpretations of the constitutional provisions and guidelines by the Supreme Court. However, the idea of the collegium system is not perfect as it does not guarantee transparency in the appointments of judges and often is accused of favouritism/nepotism as the process is usually kept secret. There is no set of rules or procedures which needs to be followed during making the recommendations of appointments. Further, the collegium system completely excludes the role of the executive in the appointments of judges in India and is not accountable to any other authority. This rejects the idea of “check and control” which ensures that no democratic organ uses its powers excessively. Even the bench in the Fourth Judges Case has held that “judges appointing judges” is not accurate and needs to be reconsidered.[30]
[1] India Today Web Desk, Centre Vs Collegium Row: How the judges are appointed in India, US, UK, and other countries, India Today, available at https://www.indiatoday.in/law/story/centre-vs-collegium-how-judges-are-appointed-in-india-us-uk-and-other-countries-2326456-2023-01-25#, accessed on 02/06/2023.
[2] ibid.
[3] ibid.
[4] ibid.
[5] Article 124(2), The Constitution of India.
[6] Article 217(1), The Constitution of India.
[7] supra note 5.
[8] supra note 6.
[9] Establishment and Constitution of Supreme Court under Article 124 of the Constitution, SCC Online, available at https://www.scconline.com/blog/post/2023/05/01/article-124-of-indian-constitution-legal-research/, accessed on 03/06/2023.
[10] S.P. Gupta v. Union of India, AIR 1982 SC 149.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] ibid.
[16] ibid.
[17] 1993 Supp (2) SCR 659.
[18] ibid.
[19] ibid.
[20] ibid.
[21] ibid.
[22] AIR 1999 SC 1.
[23] ibid.
[24] Mohammad Sahil Khan, National Judicial Appointment Commission (NJAC), ipleaders, available at https://blog.ipleaders.in/national-judicial-appointment-commission-njac/#Why_was_the_NJAC_Act_struck_down, last seen on 04/06/2023.
[25] ibid.
[26] Article 124A, The Constitution of India.
[27] Article 124B, The Constitution of India.
[28] Article 124C, The Constitution of India.
[29] supra note 24.
[30] supra note 24.
1 Comment
Ayush Upadhyay · August 1, 2023 at 8:38 pm
Crisp and informative…..keep going