Abstract
The Indian Constitution is said to be the supreme law of the land, which enshrines the separation of power between the executive, legislature and the judiciary. The constitution of India also gives the judiciary its independence from the other two powers, executive and the legislative. It is hence considered that the judges appointment in the higher judiciary also is part of the independence given to the judiciary, and this appointment of judges is an indispensable, delicate and one of the debating issues at present. From many decades, the collegium system is been followed for the judicial appointments, which is a tradition in the system. Later in 2014, the parliament has introduced the National Judicial Appointment Commission (NJAC) as an alternative for the appointment of judges, which raised many questions for its validity and constitutionality and also said to be affecting the basic structure of constitution. The collegium system is criticized for its autocracy and non-transparency in the appointment of judges, whereas the NJAC is also criticized for the involvement of executive in the judicial appointments which is considered to be a basic feature of the independence of the judiciary. But the NJAC act introduced by the parliament was struck down and declared unconstitutional by the Supreme Court, and now the collegium system is only followed for the judicial appointments of the higher judiciary.
This research gives a general view over the collegium system, its features and its merits and demerits for the appointment of the judges. This research also provides an overview of the NJAC and its constitutional validity for the appointment of the judges. This research provides a scrutiny of the landmark judgements of the supreme court on the validity of the NJAC and the appointment of judges.
KEYWORDS
Judiciary, Appointment of judges, Collegium, National Judicial Appointment Commission, Independence of Judiciary.
INTRODUCTION
In India the judges of the higher judiciary are appointed by the collegium system, which is followed from the period of post-independence. The collegium system basically includes the CJI and other four seniormost judges in the Supreme Court, on whose advice and consultation the president will appoint the judges in Supreme Court and the High Courts. But this system has been criticized for its non-transparency and its autocratic nature in the appointments, as the whole power lies within the supreme court and the Chief Justice of India. Hence, to bring an alternative form the Collegium System for the appointments of the judges the parliament has introduces the National Judicial Appointment Commission through constitutional amendment in 2014, which was introduced in 2015. But the NJAC was challenged in the Supreme court stating it affects the independence of judiciary as the executive is also a part of the NJAC and the independence of judiciary is a basic feature of the of basic structure of the constitution which cannot be amended as decided in the landmark judgment of Kesavananda Bharati v. State of Kerala, 1973 by the supreme court, by its reference the supreme court declared the NJAC as unconstitutional in its judgment of Supreme Court Advocates on Record Association v. Union of India, 2016. Hence, this issue of appointment of judges has always been an area of debate for the law professionals as well outside its realm. Articles 124 and 217 of the Indian Constitution talks about the judicial appointments of the higher judiciary i.e., Supreme Court and High Courts, where the president appoints the judges on the consultation with the Chief Justice of India which is followed ever since India has got its independence and constitution has formed. But after the introduction of the NJAC in 2014, the questions have raised about its constitutionality and its effect on the independence of Judiciary.
To study about the validity of both NJAC and Collegium system in the appointment of the judges there are four judgments which are also called the four judges cases given by the supreme court. These four cases form the basis for the understanding the constitutional validity of the Collegium system as well as the NJAC.
RESEARCH METHODOLOGY
This research has taken the doctrinal type of research, based on the secondary sources. This research is of a descriptive nature and covers all the aspects relating to the comparative analysis of NJAC and Collegium system in India.
REVIEW OF LITERATURE
Judicial Independence and Collegium system in India, Sunita Kaler- The author in this article discusses about the collegium system in India and its working by maintaining the judicial independence. This article also discusses about the NJAC and its validity with referring the four judges cases.[1]
The Debate Around NJAC and Collegium System, Rishika Singh and Akanksha Tiwari- In this article the authors discussed about the NJAC and the collegium system, their provisions in the constitution and also about their functions and procedures.[2]
A Critical Analysis of the Selection and Appointment of the judges of the Higher Judiciary in India with special reference to NJAC and Collegium system, Amrutansu Pattnaik- The author writes a research paper covering all the aspects that are including in the topic in detail, he explains about the collegium system and NJAC with reference to the four judges’ cases.
Future of Collegium System: Transforming Judicial Appointments for Transparency, C Raj Kumar- The author in this article explains about the steps that must be taken by the judiciary to reform the collegium system in the appointments of the judges by making it more transparent and efficient.[3]
The Collegium System: The Unveiled Darkness– Here the author discusses about the merits and demerits of the collegium system and also explains about the NJAC.[4]
National Judicial Appointments Commission: An Imperium in Imperio?, Neelakshi Gupta & Debayan Gangopadhyay- In this article the authors discuss about NJAC and its validity, its composition and its functions.[5]
COLLEGIUM SYSTEM AND THE NATIONAL JUDICIAL APPOINTMENT COMMISSSION
COLLEGIUM SYSTEM: Collegium system is not defined any where in the constitution of India nor there a law specified to it. It is a tradition that is followed in the appointment of judges for the higher judiciary from the post-independence period in India. This system is followed but was not know to anyone and this term was first established in the first judges’ case i.e., SP Gupta v. Union of India. But this system was established for the appointments in the second judges’ case i.e., Supreme Court Advocates on Record Association v. Union of India, from then this system has undergone many developments. The collegium system is primarily a judge-based system. Here the President appoints the judges of the higher judiciary i.e., the Supreme Court and the High Courts with consultation of the CJI. The CJI first consults the four other senior most judges of the supreme court and this forms the basically is the gist of the working of the collegium system in India. This system for the appointment of the judges has been evolved by the judgements that were passed by the supreme court and not by any act or law passed by the parliament. The collegium system not only appoints the judges of the higher judiciary but also it looks after the transfer of judges from one high court to another.
In the Indian Constitution, it is mentioned under article 124 clause 2, the appointment of supreme court judges and under article 217 clause 3, the appointment of the judges of the High court. It is mentioned under article 222 of the Indian constitution, the provisions for the transfer of judges from one high court to another.
Composition of the collegium system: At first, the composition of the collegium was the CJI and other three seniormost judges of the supreme court but then it was increased from three to five after the third judges’ case i.e., In Re Special Reference 1 of 1998. This case not only increased the composition but also prescribed the procedure for the judicial appointments in higher judiciary and for the transfer of the judges from one high court to another. Therefore now, the collegium system consists of five members, the CJI and four other seniormost judges of the supreme court. This composition has not changed after the third judges’ case and it is being followed ever since.
Procedure followed by the Collegium system for the appointment of judges: The procedure for the appointment of the judges for the higher judiciary has been prescribed by the third Judges Case i.e., In Re Special Reference 1 of 1998. It also prescribes the procedure for the transfer of judges form one high court to another.
- Appointment of the Supreme Court Judges: The CJI recommends the name for the judicial appointments of supreme court after consultation with the four other seniormost judges of the supreme court. The CJI also consults the senior most judge in the supreme court who is from the same high court form which the present person is being recommended for the appointment. The CJI also consults the chief justice of that particular high court. The appointment is done after the majority opinion and consensus of the collegium.
- Appointment of the High Court Judges: The CJI on consultation with two other senior most judges of the supreme court and also consults the CJ of that particular high court and other senior judges of that high court for the recommendation of a person as high court judge.
- Transfer of judges from one high court to another: Judges of one high court can be transferred to another high court. The CJI after consultation with the other four seniormost judges of the supreme court, the chief justice of the high court from which he/she will be transferred and the chief justice of the high court to which he/she will be transferred.
After the Chief justice of India consults the necessary members for the appointment, he/she will recommend the name to the government of India and the president appoints the judges.
Merits of the collegium system:
- The collegium system excludes the executive and politics out, for the appointment of the judges. Hence it protects the independence of judiciary and separation of powers provided in the constitution.
- The process for the appointment is kept a secret by the collegium to enhance the correctness and the efficiency in the appointments.
- Since the Chief justice of India is the head for the collegium system and also, he/she being an expert in the field can appoint the right person for the position compared to the executive.
Demerits of the collegium system:
- Since the system is in the hands of judiciary itself, there is a lot of space for nepotism for the appointments of the judges.
- Even though secrecy is one of the advantages of the system, it is also a disadvantage too. There is no or negligible transparency in the process of the appointment of the judges.
- This collegium system is not answerable to anyone i.e., neither the legislative nor the executive, which may sometimes result in inefficiency in the appointments of the judges. Which is against the idea of the checks and balance that must be done by the three organs for their efficient working.
NATIONAL JUDICIAL APPOINTMENT COMMISSION: The National Judicial Appointment Commission (NJAC) was introduced by the parliament in 2014 through the Constitutional 99th Amendment Act, 2014. The bill was first introduced and passed in the Lok Sabha and then passed in the Rajya Sabha with the majority in September 2014 and was passed by more than 15 state legislatives and finally got the presidents assent and became an act in December 2014. The NJAC Act was implemented and came into force in April 2015. This was introduced by the parliament to bring an alternative to the current collegium system for the appointment of the judges of the higher judiciary. The executive and the parliament believed that the collegium system for the appointment of the judges had no or negligible transparency and also has lot of scope for nepotism, and with this introduction of the NJAC, the government promised transparency in the appointment of the judges of the higher judiciary.
The NJAC Act has introduced new provisions in the Indian constitution. Articles 124A, 124B and 124C were added to the Indian constitution introducing and describing the NJAC for the appointment of the judges. This Act also bought changes to the Article 217 and 222 which prescribe the appointment of the judges in High courts and transfer of the judges from one high court to another respectively. This act comprises of the appointment of the CJI, other judges of the Supreme Court, appointment of the judges of the High Courts, and the transfer of the judges from one high court to another.
Composition of the NJAC: The NJAC consists of the following members as mentioned in Article 124A of the Indian Constitution.
- The Chief Justice of India, Chairperson- ex office
- Two other seniormost judges of the Supreme court- ex officio members
- The Union Law Minister- ex officio member
- The Prime Minister and the Leader of the Opposition in the Lok Sabha- Members[6]
Hence the NJAC will consist of six members in total with the CJI as the Chairperson, for the appointments of the judges of higher judiciary and the also for the transfer of judges from one high court to another.
Functions of NJAC: The functions of NJAC are mentioned under the article 124B of the Indian Constitution. the NJAC recommends persons for the appointment as CJI , other supreme court judges, high court judges. The commission will also recommend the persons for the transfer from one high court to another. [7]
This Act has also introduced Article 124C in the Indian constitution, which gives the power to the parliament to make laws relating to NJAC at any time. These laws may include the regarding the procedure for the appointment of the judges.[8]
Merits of NJAC:
- There will be more transparency in the appointment of the judges as there is the involvement of the executive.
- Since there is the involvement of the executive in the appointments, the judiciary will become answerable to the other organs for those appointments, which will assure the idea of checks and balances between the organs.
- There will be less delay in the appointments of the judges, because the NJAC not only constitutes the judicial professionals but also the law minister and other public figures.
Demerits of NJAC:
- Since there is the involvement of the executive in the appointments of the judges, it will affect the independence of the judiciary which is the basic feature of the basic structure of the Constitution of India.
- The appointments will be done on the recommendations of all the members of NJAC, which might include persons who do not have knowledge on that field to decide the efficiency of the appointee. Hence, there might be a conflict between the member i.e., the judiciary and the executive regarding the appointment of the judges.
- Even though the NJAC is said to bring transparency in the appointment of the judges, the criteria or the procedure for the same are not prescribed by the Act i.e., the NJAC act failed to provide with the procedure and the criteria for the appointment of the judges.
- The article 124C of the Indian constitution, which gives the power to the parliament to make laws regarding the NJAC and the appointment of the judges, this is a violation of the doctrine of separation powers where the legislative has taken step into the matters of the judiciary.
VALIDITY OF THE COLLEGIUM SYSTEM AND NATIONAL JUDICIAL APPOINTMENT COMMISSION
After understanding about the both collegium system and the NJAC and their aspects, let’s analyse the both about their validity under the constitution by understanding the relating judgements. There are four judgements given by the supreme court regarding the collegium system and NJAC. These cases are called as the four judges’ cases
- S.P. Gupta v. Union of India, 1982.
- Supreme Court Advocates on Record Association v. Union of India, 1993.
- In re Special Reference 1 of 1998.
- Supreme Court Advocates on Record Association v. Union od India, 2016.
S.P. Gupta v. Union of India,1982 (The First Judges Case)- This judgement was given in 1981 by a seven judge bench of the supreme court. This judgement laid the foundation for the term collegium for the appointment of judges of higher judiciary. It was decided by the court that the President has vast powers regarding the appointment of the judges, also decided that the term “consultation” under the articles 124, 217 and 222 for the judicial appointments of supreme court, judicial appointments of high court and the transfer of judges of judges form one high court to another respectively, does not imply concurrence and President can refuse the views of the consultees. This means the judgement clearly allowed the executive to have powers for the appointment of the judges.[9]
Supreme Court Advocates on Record Association v. Union of India, 1993 (Second Judges case)- It was a nine-judge bench, and the supreme court in this judgement has overruled the previous judgment S.P. Gupta v. Union of India. The court decided that, the word consultation does imply concurrence as mentioned in the article 124 for the appointments. That means the power neither completely vest in the hands of the executive nor the judiciary. Hence it was decided that the consultation and recommendation of the CJI is an essential for the appointments and the CJI must consult other two seniormost judges of the supreme court. This will protect the independence of the judiciary which is a feature of the basic structure of the constitution.[10]
In Re Special Reference 1 of 1998 (Third Judges case)- After the second judges case, it was unclear for the procedure for the appointments and also the powers of the president. Hence this nine judge bench has passed this judgement by answering to all the questions. Here the court prescribed the procedure for the appointments for higher judiciary, it has also increased the members of the collegium from 3 to 5. It was also decided that the president must agree with the recommendations made by the collegium. [11]
Supreme Court Advocates on Record Association v. Union of India, 2016 (Fourth judges case)- The parliament has introduced the NJAC for the appointment of judges as an alternative to the collegium through constitutional amendment. This NJAC Act was challenged in the supreme court for its constitutional validity. The supreme court had declared his unconstitutional and void as this act violates the independence of judiciary which is the basic feature of the basic structure of the constitution, which cannot be amended. It affects the independence of judiciary because the executive has also come into the play of the appointments.[12]
Therefore, till now the collegium system is being followed after the supreme court decided the NJAC as unconstitutional and void.
SUGGESTIONS AND CONCLUSION
In India we follow the collegium system for the appointments of the judges which is said to protect the independence of judiciary. But if we look into the judicial appointments in other countries, then in most of the countries a committee is set up or the executive and the legislative appoint the judges, stating that they have the checks and balances between the organs of the government. For example, in UK there is a Judicial Appointment Commission which has 15members for the appointments, which also includes some executive members. In USA, there is Senate Judicial Committee for the appointments which recommend the names to the president who then appoints. Other countries like Italy, Germany, France, China etc. follow the same method for the appointments of judges i.e., they have the executive and legislative participating and playing a major role in the appointments of the judges. Whereas, countries like Russia follows the collegium system for the appointments where the collegium recommends the names and the president has the discretion to appoint or not. With this we can come to a conclusion that majority of the countries have a system where the executive and the legislative take part and play a major role in appointment of the judges. India is an exception for the appointments of judges, where we follow the collegium system, stating that we assure the idea of separation of powers and protect the basic structure of the constitution.
The current collegium system is fine for the appointment of the judges, but there are definitely some issues that must be addressed in the appointments by the collegium. The collegium system should become more transparent in the appointments, because at present the collegium does nor disclose the basis on which the judge has been appointed. There is a lot of scope for nepotism in collegium system which might fail in appointing the efficient and worthy judges. Even thought the NJAC is invalid and unconstitutional, it can be re established by considering that the executive having say in the appointments, and also by judiciary having the upper hand and also to maintain a balance between the judicial independence and the judicial accountability. This will result in boosting the delay which is currently a big issue in the appointments.
GAURAV ANUMULA
DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR.
[1] Sunita Kaler, Judicial Independence and Collegium system in India, 5 IJRAR 879, (879-882) 2018
[2] Rishika Singh & Akanksha Tiwari, The Debate Around NJAC and Collegium System, 3 SUPREMO AMIKUS, 2018
[3] C Raj Kumar, Future of Collegium System: Transforming Judicial Appointments for Transparency, 50 ECO. & POL. WEEK 31, (31-34) 2015
[4] Collegium System- The Unveiled Darkness, 3 IJARIIE 736, (737-740) 2017
[5] Neelakshi Gupta & Debayan Gangopadhyay, National Judicial Appointments Commission: An Imperium in Imperio? , 2 J. LEGAL STUDIES & RESEARCH 213, (222-223) 2015
[6] INDIAN CONST. art. 124A
[7] INDIAN CONST. art. 124B
[8] INDIAN CONST. art. 124C
[9] S.P. Gupta v. Union of India, AIR 1982 SC 149
[10]Supreme Court Advocates on Record Association v. Union of India, 1993(4) SCC 441
[11] In Re Special Reference 1 of 1998, AIR 1999 SC 1
[12] Supreme Court Advocates on Record Association v. Union of India, 2016(5) SCC 1