This article is written by Samriddhi Mishra of 2nd semester of National Law University, Odisha, an intern under Legal Vidhiya
Abstract
The judges of the Supreme Court and High Court are appointed by the system evolved by judicial innovation known as collegium, collegium is composed of the CJI and four judges for the Supreme Court, and for High court, the Chief Justice and four seniors most judges of the High court of that High Court. The system was established by the judgement of the Supreme Court in the second judge case. Before that executive with consultation of CJI and other judges appointed judges after that judgement opinion of CJI was considered as opinion of collegium which was binding on executive, thus the role of executive was reduced to mere appointing after that judgement. The constitutionality of the collegium is questionable. The recommendations of the collegium are binding, and the appointment cannot be made without the consent of the collegium. The system is one where judges are appointed by judges. This article seeks to examine the constitutional validity of collegium system. The article focuses on how the system developed and why the system does not have its roots in the constitution of India.
Keywords: Collegium, Appointment of Judges, Second Judge case, consultation, concurrence
INTRODUCTION
“The Constitution (99th Amendment) Act, 2014” and the “National Judicial Appointments Commission Act, 2014 (“NJAC Act”)” were declared unconstitutional by the Supreme Court of India in “Supreme Court Advocates-on-Record Association and others vs. Union of India and others”. The constitutional amendment passed with special majority along with the NJAC act sought to establish the National Judicial Appointments Commission (NJAC) that appointed judges to the Supreme Court and High Courts.[1] This was done after the current system faces number of criticisms like lack transparency and inclusiveness. This was an attempt to establish a new system for selection of judges.
Because one of the characteristics of the “basic structure of the Indian Constitution” is the “independence of the judiciary”, the national judicial appointment commission was not permitted to come into existence by the Indian judiciary.
The judge appointment system, which was formed via judicial innovation in the ‘Trinity of Judge Cases’ but is not specified in the Constitution, won support from the Supreme Court over an amendment that was put up by a clear majority by legislature.
The judiciary is a vital organ of government and is responsible for justice delivery. Judges are an important part of Indian society. The quality of judges and their method of appointment are very important. with the large amount of power that the judiciary holds and the effect it has on the public. The judiciary is a protector of our rights and civil liberties.
The independence of the judiciary and its transparency are important for our democracy and are of public concern. As noted by B.R. Ambedkar, “there can be no difference of opinion that our judiciary must be both independent of the executive and also competent within itself’.
When judges have such an important role in the scheme of Indian democracy, it is important to note that we know their merit and how they are appointed. If the independence of the judiciary is important so is if not equally important is common man’s faith in judiciary and judicial accountability on the part of Indian judiciary. It is important that such a system be democratic, transparent, and inclusive. Such a system should have public confidence and judicial accountability. However, the current collegium system is criticized for being nepotistic, opaque, and based on judicial hegemony.
COLLEGIUM: WHAT, WHEN, WHY, AND HOW
Right now, a collegium selects judges in India. In this system, judges appoint other judges. The Collegium is a body consisting of the Chief Justice of India and four other senior most judges of the Supreme Court. The High Court collegium consists of the Chief Justice and the four most senior judges of that court that sends recommendations to Supreme Court collegium. The Supreme Court collegium selects candidates for appointments to the higher judicial branch. The executive only plays a role in the appointment of judges after the names have already been decided by the judiciary.
This way of appointing judges is a unique feature of the Indian judicial system. In the majority of nations, judges are either elected or chosen by a commission or the executive branch. This system has no mention in the constitution and was not established by an act of parliament but by a series of Supreme Court judgements popularly called Judges’ Cases.
Appointment of judges before collegium
The collegium system finds no mention in the Indian constitution. The Constitution, in Article 124(2), gave the president the power to appoint judges to the Supreme Court after consultation with the judges of the Supreme Court and judges of the High Court who are important from the president’s viewpoint. The Chief Justice is always to be consulted, unless the appointment of the Chief Justice is concerned.[2]
For the appointment of judges to the high court, the president has to consult with the Chief Justice, the Governor of State, and the Chief Justice of the High Court.[3]
Thus, on a plain reading of the provision, the constitution provides for the appointment of judges by the executive after taking the judges’ opinions into consideration.
The constitution was in favour of consultation with judges, but there is no explicit mention of the collegium. The constitution shows regard for the judges, who, by virtue of their experience, are well suited to make recommendations for the judges to be appointed. However, on a plain reading, it is suggested that, though the president has to compulsorily consult the CJI, the final discretion on who is to be appointed as a judge is in the hands of the executive.
The Supreme Court in S.P. Gupta v. The Union of India also agreed that the president has the power to appoint judges.
The court ruled in the case that consultation in articles 124 and 217(1) didn’t mean concurrence, and the president is not bound by the advice of the judges.[4]
Establishment of collegium
Idea of collegium
The Bar Council of India’s proposals given during a national lawyer seminar in Ahmedabad on October 17, 1981, are where the concept for the Collegium first emerged. It was suggested at this seminar that a collegium for the appointment of Supreme Court judges be established, consisting of the Chief Justice of India, five senior Supreme Court judges, and two bar representatives from the Supreme Court Bar Association and the Bar Council of India. The President should be bound by the Collegium’s recommendations; however, he would have the option to request reconsideration of particular instances for specified reasons. In the matter of the appointment of judges to the High Court, it was recommended that the Collegium consist of the Chief Justice of the High Court, his two senior-most colleagues, and two leading advocates to be nominated by the Bar Association of the High Court as its representatives.[5]
Later, J. Bhagwati stressed the need for collegium in S.P. Gupta v. UOI, the ‘first judge case’. He agreed that the ultimate authority for the appointment of judges is in the hands of the executive, though the opinion of the judges is of great importance. He stated that the article does not suggest any primacy among the judges consulted by the president. There is no indication to suggest that the opinion of the chief justice is to be given more weight than that of other judges consulted by the president.
He also expressed his dissatisfaction with the prevailing system of appointing judges. He felt that the authority to appoint judges should not rest in the hands of only one individual. He thought that such a crucial appointment should be made with deliberation and that there should be a system of checks and balances. He wrote-
“There must be a Collegium to make recommendation to the President in regard to
appointment of a Supreme Court or High Court Judge. The recommending authority
should be more broad-based, and there should be consultation with wider interests. If the Collegium is 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 and this last requirement is absolutely essential- it would go a long way towards securing the right kind of Judges, who would be truly independent”[6]
Second judge case- the judicial mandate for collegium
The collegium came into existence with the judgement of the Supreme Court in Supreme Court Advocates on Record v. Union of India. In the judgement popularly known as the “second judge case,” the Supreme Court overruled with a majority the judgement in the first judge case.[7]
The nine-judge bench delivered a judgement that created a collegium. The court, in its judgement, declared that the word consultation in articles 124(2) and 217(1) does mean concurrence. [8]
Justice J. S. Verma noted that the opinion of the CJI should be formed after considering the opinions of two of the most senior judges of the Supreme Court. This would ensure that the opinion of the CJI is not only the opinion of a single person but also the opinion of people in the highest offices in the Indian judiciary.
“The Chief Justice of India is expected to take into account the views of his colleagues in the Supreme Court who are likely to be conversant with the affairs of the concerned High Court. The Chief Justice of India may also ascertain the views of one or more senior Judges of that High Court whose opinion, according to the Chief Justice of India, is likely to be significant in the formation of his opinion”[9]
“Plurality of judges in the formation of opinion of the Chief Justice of India .is… . [an]
inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of
any individual. The judicial element being predominant in the case of appointments. . the need for further judicial review, as in other executive actions, is eliminated.”[10]
The judgement changed the meaning of the word consultation to concurrence. As a result of this judgement, the recommendation sent by the collegium became binding on the executive. No judge could be appointed without the consent of the collegium.
The judgement gave primacy to the opinion of CJI as compared to other constitutional functionaries involved in the consultation process.
Third judge case
After the collegium was established after the judgement in second judge case to elaborate more on the system, the then President of India, I.K.R Narayanan, under Article 143- the advisory jurisdiction of supreme court asked for advice of judiciary on nine questions two of which were following
“1) whether the expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India or does the sole individual opinion of the Chief Justice of India constitute consultation within the meaning of the said Articles [and]
3) whether Article 124(2) as interpreted in the said judgement requires the Chief Justice of India to consult only the two seniors most Judges or whether there should be wider consultation according to past practice.”[11]
The bench of 9 judges, headed by Justice Bharucha, delivered a unanimous opinion. He explained that consultation didn’t mean the individual opinion of the CJI.
“The expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and222(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. The sole individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Articles”[12]
This judgement used the word collegium for the first time and asked for the formation of a collegium. Therefore, S. P. Bharucha Jexpressed his opinion to the effect that ‘it is desirable that the Collegium should consist of the Chief Justice of India and the four seniors most puisne Judges of the Supreme Court’[13]
CONSTITUTIONALITY OF COLLEGIUM SYSTEM
The collegium system of appointment of judges is one of the most controversial topics in law at present. As stated above, the present system of collegium was not introduced by the constitution or any act of parliament. It was introduced by a judgement of the Supreme Court in second and third judge cases.
The present system is often criticized for lack of transparency Justice Ruma Pal described the way the judges are appointed as one of the “”possibly the best kept secret of this country”.[14]
The judgement of the court in the second judge case is a contentious judgement.
The judgement effectively created a system where judges are appointed by judges and the role of the executive is reduced to a minimum, where the constitution explicitly mentions that judges are to be appointed by the chief executive. This method of appointment lowers public confidence in the judiciary.
The interpretation of the word ‘consultation’ as ‘concurrence’ seems to be a rewriting of a constitution by the judges. The text of the constitution does not suggest that consultation means concurrence. The court also held that primacy was to be given to the opinion of the CJI[15]. This in effect gives the Chief Justice enormous power to appoint judges to the highest court of the land, and if he disagrees, there is a possibility that even the most qualified judge won’t be able to serve the apex court of the land. The court ignored both the direct and plain interpretation of the provisions and the what was explicitly stated by the constituent assembly.
The fact that collegium as a system finds no mention in the Constitution of India but was created by the Supreme Court by what seems to be a misinterpretation of Articles 124(2) and 217(1). In his dissenting opinion, Ahmadi J opined that the plain reading of the provisions does not suggest any other meaning of the word consultation. He stated-
“Giving the widest connotation to the word “consultation”, stretching it almost to the breaking point; it is not possible in the Constitutional context with the scheme, to attribute to it the meaning of ‘concurrence”[16]
This interpretation by the court is questionable as it not only assumes the different meaning but also gives way more power to judges, reducing the role of the executive to mere ceremonial, where the plain reading of the text suggests the decisive power is in the hands of the executive. The interpretation of the court is not only different but also contradictory to the position of the constitution as elaborated in the constitution.
The constituent assembly debates also do not suggest that the provision had the meaning interpreted by the court in the second judge case. The present article 124(1) was debated in draft article 103 in the constituent assembly, and article 217 was article 193 in the draft constitution.[17]
There was a proposal to introduce the word ‘concurrence’ so as to make sure that the appointment of judges is free of political influence, but the proposal was rejected. Discussion was held in constituent assembly regarding the extent of role of CJI in appointments. But they do not suggest there was an intention on the part of assembly to give this power to judicial wing oh the government.
B. Pocker Sahib proposed that the selection of judges to be made by the President “after consultation with the concurrence”. This indicates that the use of the word ‘consultation’ in the constitution and rejection of the word ‘concurrence’ was a conscious decision on the part of the constituent assembly.
Explaining the reasoning behind not making consent of CJI Dr. B.R. Ambedkar said-
“With regard to the question of concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgement. I personally feel no doubt that the Chief Justice is a very eminent person. But after all, the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the President or the Government of the day. I therefore, think that is also a dangerous proposition.”[18]
If the very judgement that laid the foundation of the collegium system has the wrong conclusion, attempts to remove the system have failed time and again. The shield that protects this system is “independence of the judiciary”. As stated above, the most recent attempts to remove the collegium were the 99th Amendment to the Constitution and the National Judicial Appointment Commission Act. Both of which were struck down and held unconstitutional by the Supreme Court.
The reasoning behind the judgement is that the “independence of the judiciary” is part of the “basic structure of the constitution.”
The independence of the judiciary is no doubt important, but the system evolved by the Supreme Court has serious questions regarding its constitutional validity and suffers from many drawbacks.
CONCLUSION
The present collegium system was evolved by the trinity of judge cases and not by the constitution or an act of parliament. The collegium system finds no mention in the Indian constitution. The Constitution, in Article 124(2), gave the president the power to appoint judges to the Supreme Court and High court after consultation with the CJI and judges who are important from the president’s viewpoint. The Chief Justice is always to be consulted, unless the appointment of the Chief Justice is concerned.
For the appointment of judges to the high court, the president has to consult with the Chief Justice, the Governor of State, and the Chief Justice of the High Court.
This provision, in plain reading, suggests that the appointment of judges is to be done by the executive after consultation with the judges. This provision was interpreted by the Supreme Court in the Second Judge case, where the majority opinion equated the word consultation with concurrence. The judgement reduced the role of the executive to a minimum. The judgement established the primacy of the CJI among all constitutional functionaries. It established a collegium of CHI, two seniors most judges later replaced by CJI, and four senior-most judges in the third judge case.
This judgement is controversial as the interpretation of consultation as concurrence is not indicated by the constitution. The constitution assembly debates show that there was a conscious decision on the part of the constituent assembly to not include the word concurrence in the constitution.
Thus, the collegium system’s constitutionality is questionable. It is important that such important offices like judges of higher judiciary are occupied by most highly qualified people who also have trust of the nation with them. Any doubt on such reputed and respected institution is not healthy for Indian democracy. The judiciary and those who hold offices in judiciary must have faith of people with them for they are guardian of constitution. It is therefore important those who are responsible for protecting the constitution to be appointed by mean which are constitutionally questionable.
[1] Krishnadas Rajagopal,SC Bench strikes down NJAC Act as ‘unconstitutional and void,The Hindu(17/10/2015) available at https://www.thehindu.com/news/national/Supreme-Court-verdict-on-NJAC-and-Collegium-system/article60384480.ece ,last seen on 13/5/2023
[2] Art 124(2), the Constitution of India
[3] Art 217, the Constitution of India
[4] S.P. Gupta v. The Union of India 1993] 4 SCC 441.
[5] M. Ershadul Bari, ‘Collegium System of Appointment of Superior Courts’ Judges Established in India by Way of Judicial Interpretation and the Aftermath: A Critical Study’ 1 Lawasia Journal 1,2 (2013), available at https://heinonline.org/HOL/PrintRequest?collection=journals&handle=hein.journals/lawasiaj2013&div=6&print=section&format=PDFsearchable&submit=Print%2FDownload&id=9 last seen on 13/5/2023
[6] Ibid
[7] Record Association v Union of India [1993] 4 SCC 441
[8] Ibid
[9] Record Association v Union of India [1993] 4 SCC 441,702.
[10]Record Association v Union of India [1993] 4 SCC 441,707-708
[11] M. Ershadul Bari, ‘Collegium System of Appointment of Superior Courts’ Judges Established in India by Way of Judicial Interpretation and the Aftermath: A Critical Study’ 1 Lawasia Journal 1,9 (2013), available at https://heinonline.org/HOL/PrintRequest?collection=journals&handle=hein.journals/lawasiaj2013&div=6&print=section&format=PDFsearchable&submit=Print%2FDownload&id=9 last seen on 13/5/2023
[12] Special Reference to the Supreme Court No. 1 [ 1998] 4 SCC 739,763.
[13] Ibid
[14] Dhananjay Mahapatra, Collegium system: Don’t shoot the messenger, it will hurt the little man’s faith in judiciary, The Economic Times(12/9/2016) available at https://economictimes.indiatimes.com/news/politics-and-nation/collegium-system-dont-shoot-the-messenger-it-will-hurt-the-little-mans-faith-in-judiciary/articleshow/54288239.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
last seen on 13/5/2023
[15] M. Ershadul Bari, ‘Collegium System of Appointment of Superior Courts’ Judges Established in India by Way of Judicial Interpretation and the Aftermath: A Critical Study’ 1 Lawasia Journal 1,5 (2013), available at https://heinonline.org/HOL/PrintRequest?collection=journals&handle=hein.journals/lawasiaj2013&div=6&print=section&format=PDFsearchable&submit=Print%2FDownload&id=9 last seen on 13/5/2023
[16] Adarsh Ramakrishnan & Prakhar Bhardwaj, Need for a National Judicial Commission: The
Struggle for Primacy and Unconstitutionality of the Collegium System, 2 NLIU Law Review ,242,255.(2011) available at https://heinonline.org/HOL/Page?handle=hein.journals/nliu2&div=25&g_sent=1&casa_token=last seen in 13/5/2023
[17] Adarsh Ramakrishnan & Prakhar Bhardwaj, Need for a National Judicial Commission: The
Struggle for Primacy and Unconstitutionality of the Collegium System, 2 NLIU Law Review ,242,245.(2011) available at https://heinonline.org/HOL/Page?handle=hein.journals/nliu2&div=25&g_sent=1&casa_token=last seen in 13/5/2023
[18] Nitin Meshram and Dilip Mandal,Ambedkar rejected collegium system, said CJI supremacy on judges’ appointment is dangerous, The Print (30/11/2022), available at https://theprint.in/opinion/ambedkar-rejected-collegium-system-sc-giving-primacy-to-cji-to-appoint-judges-is-dangerous/1242562/ last seen on13/5/2023
