The appointment of Justice Sanjeev Khanna to the Supreme Court on January 10, 2019 revived the long-drawn controversy around the collegium system used for appointing senior judges. As reported, the elevation of Justice Khanna had surpassed 32 judges who were more senior to him. It is an age-old convention to give priority to senior judges when it comes to the elevation of judges to the Supreme Court. However, there have been certain instances when this convention was defied. The most infamous instance has been the appointment of Justice A.N. Ray as the 14th Chief Justice of India in 1973 which surpassed three senior judges of the Supreme Court. The Second Judges’ case gave birth to the Collegium System in India. The same was attempted to be replaced by the National Judicial Appointments Commission in 2014 but was held to be unconstitutional by the Supreme Court in 2015. This paper aims to analyse the collegium system and primarily focuses on its fallacies. The author concludes the paper with his personal suggestions to improve the transparency of the judicial system in India.
Keywords: Collegium, National Judicial Appointments Commission (NJAC), Judiciary, Female representation, LGBTQ+ representation, accountability.
Since the independence, the appointment of judges to the higher judiciary has been a controversial topic. There have been multiple judgements on the same, the most influential being the Second Judges’ Case where the present Collegium System was introduced in 1993. The collegium includes the five senior-most judges of the Supreme Court who consider the elevation of Chief Justices/Judges of High Court to Supreme Court, the elevation of Judges of High Courts as Chief Justices and elevation of Judges from lower courts. Since then, the Collegium System has received arguments from both sides. An attempt was made by the legislators in 2014 to replace the Collegium System with the National Judicial Appointments Commission (hereinafter NJAC) but it was all in vain; the Supreme Court declared the NJAC as unconstitutional and held the Collegium System to be a part of the basic structure of the Constitution of India. It was believed that after the NJAC judgment, the discussion revolving around the judicial appointment would come to rest but it was only aggravated. Recently, it has been a popular opinion amongst the legal scholars that the way the judiciary operates when it comes to the appointment of judges, is of major concern and it lacks transparency; it gives an upper hand to the judiciary over the executive (President). The Supreme Court has time and again reiterated that the Collegium System protects the ‘independence of the judiciary, however, the author argues to the contrary.
The Supreme Court is considered to be the guardian of the Constitution of India but more recently, it has failed to live up to its duty and expectation of the people of India. The author in this paper seeks to establish that the Collegium System has failed the objective it originally sought to achieve. The author believes that there is an urgent need to reform the system of appointment of judges in the higher judiciary.
The research for this paper has been done very extensively. The author has derived his information from various books, journals, articles, essays, legislations, bill drafts, blogs, and judgements.
The Judicial organ of the state has always played a cardinal role in safeguarding the rights and civil liberties of the citizens. The judges employ their legal grammar on a daily basis to adjudicate cases and it becomes fundamental to question and analyse the appointment of the judges. In a paper titled “THE NJAC JUDGMENT: ESTABLISHING JUDICIAL SUPREMACY” by Surabhi Vats, the author questions the NJAC judgement and unfold its shortcomings. The author delves into the question of how judicial primacy promotes judicial independence and analyses the appointment of Judges with foreign jurisdictions.
The paper by tracing the historical judgments and constitutional debates opens a dialogue about the judicial primacy and basic structure doctrine and questions judicial primacy. The author argues in avoiding a monopoly of any one branch be it the judiciary or the executive. Further, the Constitution does not in any way provide for Judicial supremacy in appoint of Judges and the judgment should not be constitutionally or empirically sustained. Lastly, while comparing the judicial appointments with the foreign jurisdictions like the US, the UK, and Australia, the author argues that no other democracy provides only the sitting judges with the sole power to make judicial appointments.
An Overview of the NJAC Judgement
The 99th Constitutional (Amendment) Act, 2014 introduced Article 124A to the Constitution of India. The provision provided for the institution of a National Judicial Appointments Commission which included the Chief Justice of India as the Chairman of the Commission, two senior judges next to the CJI and the Union Minister of Law and Justice as members of the Commission. It also provided for the nomination of two eminent persons by a committee including the CJI, Prime Minister of India and the leader of the opposition.
It is pertinent to note that the proviso to Article 124A provided for the nomination of females, and people belonging to the SCs, STs, OBCs and minority communities to the NJAC. The proviso also fixed the three years tenure of the eminent persons. Along with that, it prevented renomination of the already appointed eminent persons.
Furthermore, the National Judicial Appointments Commission Act was also established “to regulate the procedure to be followed by the National Judicial Appointments Commission for recommending persons for appointment as the Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and for their transfers and for matters connected therewith or incidental thereto.”
In 2015, the validity of the 99th Amendment Act and the NJAC Act was challenged in the Supreme Court of India. The petitioners contended that the NJAC provisions violated the basic structure of the Constitution of India. The Supreme Court gave the judgement in favour of the petitioners and struck down the 99th Amendment Act, 2014. The Hon’ble Supreme Court came to the above conclusion after observing the following:
- There are no criteria based on which the eminent persons will be nominated to the Commission (NJAC). They might lack legal training and therefore, this will create a problem of qualification.
- The involvement of the Union Law Minister leads to a potential conflict of interest as most of the cases of the government are filed in the higher courts. Hence, the presence of the Union Law Minister in the Commission might render the decisions in favour of the government.
- The judicial primacy forms the basic structure of the constitution and therefore, the judiciary should have the upper hand in matters of judicial appointments.
In the author’s opinion, the NJAC judgement is flawed and the observations made by the Hon’ble Supreme Court are highly questionable. In this section of the paper, the author would like to bring to light certain personal observations based on the concerning judgement.
1.Misinterpretation of the term “consultation”
The Constituent Assembly had discussed the draft Article 103, which resembles the present Article 124 of the Indian Constitution. The Supreme Court’s judgement in this matter is majorly based on the Constituent Assembly debates on this provision. The draft provision provided that the President would appoint the Judges to the Supreme Court and High court in “consultation” with the Chief Justice of the Supreme Court of India. During the Assembly debates, many members had sought to amend this provision including B. Pocker, who proposed the CJI’s concurrence in all the appointments, and Professor K.T. Shah, who proposed consultation with the Council of States (Parliament) instead of the judges (this is very similar to the procedure followed in the USA). However, Dr. B.R. Ambedkar rejected the above proposals on the ground that “it was not right to give entire power to the executive and/or the legislature for appointment of judges as it would be against the independence of the judiciary.” He also stated that instead of giving veto power to the Chief Justice, the CJI should be “consulted” in matters of appointment. But the constitutional bench that sat to decide the NJAC matter interpreted the term “consultation” in a manner that meant that the opinion of the CJI would be binding and hence, obligatory on the President, which was completely contrary to what Dr. B.R. Ambedkar meant. In fact, in his dissenting opinion, Justice Chelameswar pointed out this defect but the bench paid no heed.
2.The judges in the NJAC judgment had a conflict of interest
Another important observation is that the judges presiding over the case of Supreme Court Advocates-On-Record Association v. Union of India had a conflict of interest with the matter being decided over in the said case. The matter in question was whether the Ninety-Ninth Amendment Act, 2014 which introduced the National Judicial Appointments Commission for the appointment of judges in the higher judiciary was unconstitutional. In short, the judges had to decide whether the Supreme Court collegium should have the power to appoint judges or the NJAC. Since the judges presiding in the case were someday going to be part of the collegium or were already a part of the collegium at the moment, it would not be wrong to assume that the opinions of the judges were influenced by their personal interests. As a matter of fact, it can be said that any judge of the Supreme Court who would have been allotted to preside over this case would not be unbiased. Hence, the judgement posed a conflict of interest with the personal reservations of the judges of the bench.
3.Diluting the power of the judiciary to appoint judges does not affect the independence of the judiciary
The doctrine of separation of powers was for the first time conceptualised by the famous French philosopher Montesquieu in his book The Spirit of Laws. He believed that every government must have three branches viz., the executive, the legislature, and the judiciary. The Indian Constitution is based on this concept of separation of powers along with a system of checks and balances where each branch of the state keeps a check on the powers of the other. Most importantly, the judiciary was envisioned to be independent of the other two branches. In fact, in the NJAC judgment, the Supreme Court had struck down the Ninety-Ninth Constitutional Amendment on the pretext of preserving this independence of the judiciary. However, the author believes that the term ‘independence of the judiciary’ has been interpreted in a way far away from what it was originally meant to be. The function of the judiciary is to adjudicate matters without any influence from the executive or the legislature. It is the duty of the judiciary to uphold the rule of law. Our constitution also aims at securing an independent judiciary but it does not mean that the opinion of the Chief Justice should be given primacy when it comes to judicial appointment. Unfortunately, the two concepts have been used by the Supreme Court as per its convenience. Even in the NJAC judgment, none of the judges felt the need to address this issue of interpretation. Hence, it’d be wise to say that the independence of the judiciary does not depend on the power of the Chief Justice in matters of appointment; instead, it depends upon how the judiciary is shielded from the influence of the wicked politicians and how the judges guard their judgment from their personal reservations.
Independent Judiciary: The Bulwark of Democracy
It is a well-accepted fact that in a democracy like India, an independent judiciary is the foundation of the state. It is the responsibility of the judiciary to uphold the principles of justice, equity, and good conscience. The framers of the Indian Constitution realised the importance of an independent judiciary way before other countries and therefore, based our Indian Constitution on the doctrine of separation of powers. Although there isn’t any specific provision in the constitution that mentions the doctrine of separation of powers, the division of powers of the respective functionaries of the state is evidence of the same. There are various provisions in the Indian Constitution that ensure the independence of the judiciary some of which are discussed below.
Firstly, articles 124 and 217 provide for the security of the term of the Supreme Court and High Court judges respectively. No judge can be removed without instituting an impeachment process in the Parliament of India. Furthermore, the impeachment process is not easy and requires a special majority of two-thirds of the members present and voting in both houses. In fact, in the author’s opinion, the impeachment process of judicial officers is much more difficult and strenuous than amending the constitution.
Secondly, the Constitution ensures that “no person who has held office as a judge of the Supreme Court should be allowed to plead or act in any court in the territory of India.” This prevents the influence of the retired judges on the sitting judges.
Thirdly, Article 125 of the Constitution states that the salaries allowances, privileges, and pensions of the Supreme Court judges are to be determined by the Parliament by enacting laws. To prevent the legislature from overpowering the judges by misusing this power, the proviso to Article 125 bars the Parliament from varying the privileges and allowances to the disadvantage of the judges after their appointment to the office except during a financial emergency.
Fourthly, Article 124(3) describes the qualifications required for the appointment of a Supreme Court judge. Adjudicating matters of such great importance at the national level require certain skills and experience which not everyone poses. This provision sets a certain benchmark for the judges to be appointed. Hence, it ensures the quality of the judges being elevated to the Supreme Court which prevents arbitrariness and biases in judgements. Likewise, Article 217(2) applies to the judges of high courts.
Fallacies of the Collegium System
In this section of the paper, the author seeks to unfold the fallacies of the collegium system. The opinions of the author discussed below find roots in the views of various legal scholars including H.M. Seervai and General Mukul Rohatgi.
1.The Collegium lacks accountability and legitimacy
The collegium system is not transparent and is, therefore, filled with a lot of prejudices. It is a well-preserved system where each member looks out for the other in return for personal favours. After the recent controversies, it seems that the collegium lacks accountability to the people of India. The judges have no responsibility to give a reason behind accepting or rejecting the name of a suitable candidate.
The recommendation made by the Collegium to the President is not made available to the public eye. If the President disagrees with the recommendation of the Collegium headed by the Chief Justice of India, the Collegium will have to reconsider its decision. However, if the Collegium sends the same recommendation again to the President, then the President is left with no choice but to appoint the recommended judges.
Although it has been an unwritten convention to appoint/elevate judges based on seniority, in recent years, the convention has been broken many times without any plausible explanation from the collegium. The primary reason behind this unaccountability is that there are no legislations, rules, or procedures to guide the functioning of the collegium.
The author, therefore, feels that there is an urgent need to legitimize the collegium system where every member is accountable to the people for his/her actions. There is also a need to create a system similar to the checks and balances, so that, the other two branches viz., the executive and the legislature, can keep a check on the administrative functions of the judiciary.
2.The criterion for the appointment of judges is flawed
The entire procedure of appointment of judges is based on one criterion i.e., seniority. The age of the judge has been the deciding factor for his/her appointment since independence. The author argues that this criterion of age should be replaced with the merit and skills of the candidate. No proof suggests that the elder judges are more competent to adjudicate than the younger judges. In fact, what this country needs is to be led by younger judges. It is in the author’s opinion that the elder judges are more susceptible to prejudices and misbeliefs.
Furthermore, if the criteria for the appointment of judges is replaced with merit and skills, it will bring stability to the judicial system. The current system, which is based on the criterion of age, is very unstable and unpredictable. Frequent changes in the personnel create uncertainty and, at some point, affects adjudication of justice. No wonder, in just 74 years of independence, India has seen more than forty-five Chief Justices of India. Therefore, the very foundation of a democratic nation i.e., the rule of law is severely affected by this practice.
3.The judiciary lacks female and LGBTQ+ community representation
Diversity has always been an important and integral issue in determining the credibility of any system. In the last 74 years of independence, the Supreme Court of India has seen only eight female judges, Justice Fathima Beevi being the first one in 1989, and zero female chief justices. Interestingly, proviso to Article 124A provided for the nomination of women to the NJAC, however, the Supreme Court declared the Ninety-Ninth Amendment Act, which inserted Article 124A, as unconstitutional.
Likewise, the Supreme Court has not seen any member of the LGBTQ+ community being elevated or appointed as the judge of the Supreme Court of India. In 2018, Joyita Mondal from West Bengal became the first transwoman judge but that too of a Lok Adalat.
It would be unfair not to mention the instance of Senior Advocate Saurabh Kirpal who has been recommended to be elevated to the Delhi High Court as a judge. The recommendation was made in 2017 but it received backlash from the central government because Advocate Kirpal has a male partner who is also a foreigner. Many voices were raised, both from the inside and outside the judiciary, against the homophobic and discriminatory behaviour of the central government. Following this, in 2020, the then Chief Justice of India S.A. Bobde again recommended the elevation of Advocate Kirpal but the approval on the same is yet to be given by the central government.
Therefore, in the author’s opinion, there is a need of the hour to formulate a system that encourages more females and LGBTQ+ community members to be a part of the judiciary. Additionally, the members of the judiciary need to be sensitized over this matter so that the people from these unrepresented/less represented communities feel safe and respected.
Making the Judiciary more Transparent: A step Ahead
From the above discussion, it is now clear to us that the collegium system has many faults which need to be rectified. It is not transparent and lacks accountability. The author would, therefore, like to suggest the following changes to reform the judicial appointment procedure in India.
Firstly, the NJAC system should be adopted and the collegium system should be done away with. It seems that the inclusion of the Union Law Minister in the NJAC and the involvement of the Prime Minister in the appointment of the two eminent persons to the NJAC would promote interference of the legislature in the judiciary and would, therefore, violate the principle of an independent judiciary. However, the author argues to the contrary. Even if the elected government would have tried to influence the appointment procedure of judges, it would not have been possible to do so because the NJAC had a fair share of representation from all the three branches of the state viz., the judiciary, the executive, and the legislature. Therefore, in the author’s opinion, the NJAC was a well sought system to ensure accountability in the appointment procedure.
Secondly, if the NJAC system is to be adopted then the proviso to Article 124-A should be amended. Proviso to Article 124-A provides for the nomination of females and people belonging to the SCs, STs, OBCs and minority communities. However, the provision has failed to recognise the exclusion of the LGBTQ+ community from the list of exceptions. It is now high time that this country not only acknowledges the rights of this community by giving judgements but also adapting them in our Constitution. The LGBTQ+ community in our country is one of the most discriminated and disadvantaged community. Therefore, the said provision should be amended to ensure participation of this community too.
Thirdly, the explicit mention of seniority as the criterion for the selection of judges needs to be done away with. Even young judges are capable enough to perform judicial functions. The selection of judges should be based on the criteria of merit and skills of the candidate. The age factor also reduces the tenure of judges when they get elevated to the Supreme Court. This leads to frequent changes in the personnel and hence, removing the age criterion would make the judiciary more stable.
Fourthly, the judicial appointments should go through a proper screening process involving various stages. The appointment commission should come up with a uniform process to select suitable candidates. This would ensure quality judges throughout the nation.
Fifthly, the entire appointment procedure should be made public, unlike the present collegium system. Every major decision of the commission should be available to the public. The commission should be brought under the purview of the Right to Information Act. This would ensure the legitimacy of the procedure and would increase public confidence in the judiciary.
It has now become clear that why the current collegium system of appointing judges needs an amendment. With the above-mentioned suggestions, the author feels that the judiciary can be made more transparent and legitimate. After all, the judiciary is the bulwark of every democracy.
Nilay Kumar, Symbiosis Law School, NOIDA