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Collegium System or NJAC: Which is more Desirable?

Publications, Research paper

The judiciary is one of the pillars of a successful democracy and for its success, it is also important that the judicial system in a democratic country works smoothly with only the goal of justice. We live in a democratic state where the constitution safeguards the laws and rights of the people, where the rule of law prevails, and guarding these principles needs a judicial system that is free from any pressure and independent. And one of the essentials to achieve these goals is the appointment of well-qualified judges. For a very long time, there has been a controversy over the suitability of the method to be employed for appointing judges. So, in this paper, the analysis has been made of the current method used for judicial appointment which is the collegium system, the history of the evolution of the collegium through the Three Judges Cases, how it is working in today’s time, what are the benefits like the independence of the judiciary, what are the drawbacks of this system which makes it a point of contention. Also, the analysis of the alternative method has been made which is proposed to overcome the drawbacks of the collegium system that is NJAC but got struck down by the Supreme Court on the grounds of unconstitutionality. Is this method more or less desirable than the currently used method? or any other method should be developed that is more ideal and suitable for the appointment of judges. These are some of the issues that can be answered by reading this paper.

Keywords

Separation of powers, Collegium, Nepotism, Veto Power 

Introduction

There are three pillars of democracy: Legislature, executive, and judiciary. This division is based on the system of separation of powers, where each organ is independent and there is separation of powers. In some places, this separation is rigid whereas in some places this separation is flexible. In India the nature of separation of power is flexible. Here in India the executive and legislature are dependent and the judiciary is mostly independent but it follows the practice of judicial activism where it can cross the separating boundaries among the other branches for the sake of justice. Along with all these, one thing that is necessary for democracy is the independence of the judiciary to ensure the rule of law, maintaining checks and balances, protecting fundamental rights, and the balance of the democratic system. One of the essential aspects for the fulfillment of the objectives of the judiciary is the appointment of qualified judges. Currently, the judges at the Supreme Court and High Court are appointed through a collegium system consisting of The Chief Justice of India and the four seniormost judges of the Supreme Court, and at The High Court the Chief Justice of the High Court and four senior judges. The appointment of judges is historically a controversial topic, in which it was debated who has the primacy to appoint the judges- the executive or the judiciary and this debate is still a hot topic. Before the collegium system was established the appointment was purely made according to Article 124(2) which says that the judges shall be appointed by The President in consultation with the judges of The Supreme Court and The High Court. These articles gave primacy to the executive. The collegium system was developed after the three most important cases popularly known as the Three Judges case which we will discuss further.

Research Methodology

This paper is built upon a comprehensive analysis of the pre-existing documents and literature available across various online platforms.

Review of literature

Various writers have critically evaluated the collegium system and the NJAC Act and have given their views regarding the suitability of either of them. Either they have supported the collegium system on the grounds of independence of judiciary and separation of power or they have supported the NJAC as it is giving precision to the executive. These writers have also given their reasons for not supporting the other methods while criticizing the other method of appointing the judges. These authors have also given priority to Article 124 A and emphasized the words used there by the drafters of the constitution where The President has been given priority in appointing the judges along with giving the powers to the Chief Justice and other judges for suggestions. But these words have been interpreted in different ways according to suitability and enacted in a process according to these interpretations like in the Three Judges case and the NJAC Act, 2014.

HISTORY OF EVOLUTION OF APPOINTMENT OF JUDGES 

After the adoption of the constitution, the judges were appointed according to the constitutional law where The President has the power to appoint judges and he appoints the judges in consultation with the Chief justice and the other judges at The High Court and The Supreme Court which means the real power to appoint judges was with the executive and the judiciary had the secondary power of giving suggestions. And as no particular criteria for choosing the judges for an appointment is mentioned in the constitution priority was given to the senior judges. This custom was maintained for years until 1973 when came the drastic event in the custom of appointing judges which created a huge political fight and it can be marked as the starting of the contention between the executive and judiciary for appointing judges. In 1973, A.N Ray was appointed as the chief justice of India superseding the three senior judges this is considered a setback of the independence of the judiciary, and the appointment of A.N Ray as Chief Justice is seen as a politically motivated step that is overstepping the limits of executive and interfering with the functioning of the judiciary. Following this event there is another appointment of the chief justice who is also superseding senior judges. This resulted in clashes between the executive and the judiciary becoming augmented. After this, the petition was filed in 1982 in the Supreme Court of India known as S.P Gupta case or The First Judges case.

  1. First Judges case
  • The decision was rendered by a seven-judge bench with a majority of 4:3 on December 18, 1981.
  • In the decision, the supremacy of appointment of judges was given to the President of India according to Article 124 which said that the “Consultation” did not include “Concurrence” and the President can reject the views of the consultees.
  • This decision declares the primacy of the President for the appointment of judges and gives the power to the President to refuse to accept the “Primacy” of recommendations of the Chief Justice on reasonable grounds.
  1. Second Judges case
  • The first Judges case was doubted by a three-judge bench in the case of Subhash Sharma vs Union of India which opined that the first judges case should be considered by a larger bench.
  • Then the Supreme Court of India constituted a nine judge-bench. The question before the bench was whether the chief justice of India has primacy in appointing the judges of the Supreme Court and The High Court.
  • The majority of 7:9 has overruled the first Judges Case on October 6, 1993. In this decision, it was ruled that the appointment of judges would based on the decision of the collegium in which the Chief justice will consult with the two seniormost judges before recommending the name to the President. This decision had given the primacy of appointing judges to the judiciary which is just opposite to the decision of the First Judges case. This case also became a base where the collegium system was established.
  1. Third Judges Case
  • There are some doubts about the interpretations of the second Judges case which had been raised by the Union of India like the power of the President.
  • For this nine-judge bench was constituted which gave its decision on October 28, 1998. In this decision, the collegium system was fully established. The major change was that the Chief Justice of India must consult the four seniormost judges before recommending the name of judges to be appointed at the Supreme Court and The High Court. This decision gives final authority to the Chief Justice of India in appointing the judges at the High Court and the Supreme Court, and the President is Liable to “Concur” to the recommendations of the collegium.

Collegium System

The collegium system is a result of the evolved system through the Three Judges Case of the Supreme Court which we have discussed above. In this system, the CJI (Chief Justice of India) is head of the collegium and it also comprises four seniormost judges of the Supreme Court. At the High Court, the collegium is headed by the Chief Justice and two senior judges. The name recommended by the collegium is sent to the President for final approval, the recommendation of the collegium is binding on the President. The collegium system gives the upper hand to the judiciary in appointing the judges. 

Procedure

  1. For CJI – The President of India appoints the CJI. The outgoing CJI recommends the name of his successor which in practice based on the seniority.
  2. For SC – The process of consultation starts with the CJI then the recommendation is consulted with the other members of the collegium, and the recommendation is also consulted with the seniormost judges of the High court from which the person belongs. The opinions of the consultants must be in writing which will form a file. At last, the names will be sent to the minister of law who will send the recommendations to the President for approval.
  3. For HC Chief Justice – The procedure starts with the outgoing Chief Justice of the High Court who recommends his successor’s name which is consulted with two senior colleagues. Then the recommendation is sent to the Chief Minister, who advises the governor to send the recommendation to the union law minister. And for the appointment of other High Court judges the collegium is formed of the Chief Justice of India and the Governor of concerned states. The Chief justice is appointed following the policy of the Chief justice outside the respective states. The appointment is done following the provision of Article 217(1).

BENEFITS OF COLLEGIUM SYSTEM

  • The Collegium system strengthens the independence of the judiciary. The judiciary is free from the influence of the executive and legislative. There is no interference in the work of the judiciary. With no interference from politics, the work can be conducted freely with no fear.
  • The collegium system makes sure that a qualified and well-deserving person is appointed, as the executive has less knowledge of the qualifications of judges than the Chief justice and judges.
  • Collegium makes sure that the judges work without fear or any political influence as many a time the judges were transferred for political gains this hinders the effective working of the judiciary. In Collegium, there is no judicial interference and the work of the judiciary is not influenced by politics.
  • The collegium system ensures a separation of power in a democracy.

             CRITICISM OF THE COLLEGIUM SYSTEM

  • The Collegium system is an evolution of the judiciary by the Three Judges Case to retain the power of judicial appointment with themselves. This makes this system autocratic where “Judges can only appoint Judges”. There is no say of citizens or their representatives in the procedure.
  • The procedure is undemocratic since the judges are not accountable to the people and their representatives.
  • The collegium system is not transparent as there are no selection criteria for judges they are selected based on personal opinion, and there are no written manuals for the functioning or any records of meetings available.
  • This system promotes nepotism as there is a high chance of the appointment of people whose parents or grandparents or any other family members are working or have served in the judiciary. This leads to the ignorance of real talent and prioritizing the no-kids.
  • This system seems to be ineffectual as the vacancies of judges at court are still there and there is no improvement in the real problem of vacancies.
  • The long-run custom of appointing the judges on a seniority basis is ignored in this system and appointment is done on the opinion basis of an individual this can lead to bias.
  • The 214th Law Commission criticizes the collegium on constitutional grounds as there is no “collegium” word in the constitution and this word was first time used by the judiciary itself in the Second Judges Case or S.P. Gupta case. The judgment uses the word in Para 29. The report said that the power of interpretation of the Supreme Court does not include exclusively using a new word, it only means interpreting the existing provisions. If the Supreme Court wanted to establish a system it should have added it to the constitution.
  • The Law Commission of 2009 has also criticized the collegium system on the grounds of Nepotism and personal preference. By giving the judiciary a bigger role in the appointment of judges, there ceases to exist the system of checks and balances.

NATIONAL JUDICIAL APPOINTMENTS COMMISSION(NJAC) 

As the collegium system has its drawbacks the legislative body tried to come up with an alternative so that these drawbacks can be overcome for this they proposed the National Judicial Appointments Commission or NJAC. This NJAC was proposed through a bill called National Judicial Appointments Commissions Bill, 2014 by the then Minister of Law and Justice, Ravi Shankar Prasad. The bill got passed in both the Lok Sabha and the Rajya Sabha and also got the assent of the President. Then the commission was established through the 99th Constitutional Amendment Act which introduced three key Articles – 

  • 124A which establishes the National Judicial Appointment Commissions,
  • 124B gives power to NJAC to appoint judges at the Supreme Court and the High Court, 
  • 124C gives power to the legislature the power to lay down the rules relating to the procedure of appointment or relating to the NJAC.

But the act was struck down by the Five-Judge bench in a 4:1 ratio judgment. This case is popularly known as the FOURTH JUDGES CASE. In this case, the act was repealed on the grounds of “Unconstitutionality” and violating the “Basic Structure of the Constitution”, the bench opined that the judiciary should be kept independent of the executive and the legislature because interference from other branches will lead to influence on the functionality of the judiciary and political pressure on the judges.

COMPOSITION OF THE NJAC

  1. The Chairman – The Chief Justice of India
  2. Two senior- most judges of the Supreme Court
  3. The Minister of Law and Justice
  4. Two eminent persons nominated by a committee consisting of The Prime Minister, the Chief Justice of India, and the Leader of the Opposition, and in case the post is vacant then the foremost leader of the opposition party.

PROCEDURES

  1. For Vacancies
  • In case of any vacancies in the High Court and the Supreme Court, the central government will notify the NJAC.
  • For existing vacancies, the notification will be made to NJAC within thirty days of the commencement of this act.
  • For the vacancies arising out of retirements the reference should be made to NJAC before six months.
  • For the vacancies arising out of the death or resignation the reference should be made within thirty days of happening of the event.
  1. For the Supreme Court
  • For the Chief Justice of India, the NJAC will recommend the senior-most judge of the Supreme Court.
  • For the judges of the Supreme Court, the NJAC will recommend the name based on ability and merit.
  • If any two members of the NJAC disapprove of the recommendation it will not be made.
  1. For the High Court Judges
  • For the Chief Justice of The High Court, the recommendation will be based on the seniority, merit, and competency combined.
  • For the judges of the High Court, the NJAC will recommend some names to the Chief Justice of the concerned High Court and he will consult it with two senior-most judges or some other senior judges or advocates if required. The views of the Chief Minister and the governor of the concerned state will be taken into consideration.
  • Veto power- If any two members of the NJAC disapprove of the recommendation it will not be made.
  1. For the transfer of the Chief justices and the High Court judges the only authorized body will be NJAC.
  2. POWER OF PRESIDENT- the president has the power to ask for reconsideration but if the NJAC makes a concordant decision then the President has to approve it.

ADVANTAGES

  • NJAC was proposed as an alternative to the collegium system which has many issues. The NJAC ensures transparency in the appointment process of judges.
  • It ends the primacy of the Judiciary and establishes fair participation of the executive in the appointment procedure.
  • NJAC is non-arbitrary as it has the provision of veto where if any two members dis approves the recommendation will not be made.
  •  NJAC will create a system of checks and balances where the problem of nepotism and opaqueness will be rectified.
  • The appointment by the collegium system is sometimes not based on ability or merit but the NJAC ensures that a well-qualified person gets appointed.

      CRITICISM

  • The NJAC Act inserted Article 124C in the Indian constitution which says that the Central government and the commission have the power to lay down rules concerning appointments which gives more power to the Executive in appointing the judges.
  • The judicial independence is an essential factor of a successful democracy. The system of NJAC raises a question on judicial independence as the executive is taking part in the appointment of judges this creates a fear of political influence and it can affect the working of the judiciary.
  • The NJAC act does not provide the criteria for selecting the judges which raises a question of eligibility criteria of appointed judges.
  • The NJAC act includes the word “merit” which is an important factor in selecting the judges for a recommendation but it has not defined the word “merit”. Which can be a subjective matter while selecting.
  • There was no clarity about who should be the eminent person and what is the qualification and criteria for selecting those persons.

       CONCLUSION AND SUGGESTIONS

Here in this paper, we have analysed in detail the Collegium system and the NJAC. Now we know both the methods of appointing the judges, how they work, what are the pros and cons of using these methods. Now the question that was asked in the title of this research paper remains to be answered. As we have seen both methods have their shortcomings which is not desirable for a democratic country like India. We need an ideal method for appointing judges as it is an essential component of a free and independent judiciary. As stated above Judiciary is a pillar of democracy if this pillar gets rusted then it will weaken the strength of the structure of democracy. For an ideal method, a few things should be taken into consideration while establishing a method for appointing the judges-

  • We need a method that is transparent and not locked in the four walls for this the whole procedure of appointment and the opinions of the people consulted should be written and compiled on file which should be open to the public.
  • There should be a proper criterion and qualification for the judges to be appointed that ensures the appointment of deserving judges.
  • The whole power of appointing the judges should not be given to a particular people.
  • The appointees should be made accountable to the people.
  • There should be a check and balance and a balance of power for the method employed for appointment.

  These suggestions can help in formulating a model that solves the issues of the current system of appointment. And as a reader now you have to choose which method is more suitable for appointing judges in our country.

CITATIONS

  1. Indian Const. art.124. cl.2 & 217. Cl. 1
  2. THE HINDU, https://www.thehindu.com/specials/in-depth/njac-vs-collegium-the-debate-decoded/article61470776.ece, (Last Visited Jan. 15, 2024).
  3. DRISHTI IAS, https://www.drishtiias.com/daily-news-analysis/collegium-system-for-the-appointment-of-judges-3, (last visited Jan. 15, 2024).
  4. MANORAMA YEARBOOK, https://www.manoramayearbook.in/current-affairs/india/2023/01/17/first-judges-case-second-judges-case-third-judges-case.html, (Last Visited Jan. 15, 2024).
  5. CAREER RIDE, https://www.careerride.com/view/national-judicial-appointments-commission-njac-pros-and-cons-22170.aspx, (Last Visited Jan. 15, 2024).
  6. LEGAL SERVICE INDIA, https://www.legalserviceindia.com/legal/article-3681-collegium-system-in-india.html, (Last Visited Jan. 15, 2024).
  7. BYJUS,  https://byjus.com/free-ias-prep/collegium-system/, (Last Visited Jan. 15, 2024).

MASHAL SHAIKH

DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY, SONEPAT