Recently 9 judges took the oath of offices as the JUDGES of the Apex Court, i.e. The Supreme Court. This incident once again gave the spark to the heated debate on the system of the appointment of Judges in the Judiciary. There has always been a tussle between the Judiciary and the Parliament and the Executive as to who will have the upper hand in the appointment of the Judges. This issue is crucial for the independent working of the Judiciary, and the Judges are free from all sorts of influences, either from political or non-political organizations, and perform their duties effectively. In 1993, the Supreme Court created a new system known as ‘The Collegium System’ to appoint the Judges in which the Chief Justice of India and senior judges of the Supreme Court make appointments in the Apex Court and the High Courts. In the year 2014, the government came up with the Amendment in the Constitution and passed the bill to change the appointment procedure of the Judges in which a new commission was formed for the appointments. This Amendment was declared unconstitutional by the Supreme Court of India in 2015.
In the Appointment of Judges in the Higher Judiciary, the transfer of judges from one High Court to another is made following Articles 124, 217, and 222 of the Constitution of India. The President makes the appointment of judges in consultation with the Chief Justice and other senior judges. Similarly, the President makes the transfers in consultation with the Chief Justice. These consultations with the Chief Justice are not binding to The President. Not specifically mentioned anywhere, the norm of seniority has always been followed in the appointment and elevation of Judges. However, the controversial selection of Justice A.N. Ray to the post of Chief Justice of India was made, superseding three senior judges.
In 1958, the Law Commission of India argued that this system was not allowing the people with the best talent to come up, and even in some cases, the executive influence was responsible for the appointments of the judges.
First Judges Case 1981
Soon afterward, in the First Judge Case 1981 or S.P. Gupta v. Union of India case, the petitioner argued that the word ‘Consultation’ in the Constitution should be referred to as ‘concurrence’ and the Judiciary should take power in the appointment of the Judges. The Honourable Supreme Court declared that the opinion of the Chief Justice does not have primacy, and the President is not bound to follow it.
Second Judges Case 1993
The First Judges Case was overridden by the Second Judges Case or Advocates-on-Record Association v Union of India 1993, and the verdict stated that the power with the Executive is being misused and the merit is overlooked due to the intervention of the Executive. Moreover, in the judgment, it was held that the viewpoint of the Judiciary was binding, and the Executive could appoint judges only if that conformed with the opinion of the Chief Justice, taking into account the opinions of the Collegium of the senior-most judges of the Supreme Court. This verdict led to the appointment of the Judges by the Collegium system.
In the Third Judges Case 1998, Supreme Court held that the Collegium for appointment of Judges should comprise the Chief Justice and four senior-most judges of the Court.
In 2014, the Parliament amended the Constitution and passed a bill for the Judges’ appointment system. It set up a new commission, National Judicial Appointments Commission or NJAC, consisting of the Chief Justice of India, the two senior-most judges of the Supreme Court after the Chief Justice, the Union Minister of Law and Justice, and two eminent persons to be selected by a committee comprising of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India. At least one of the eminent persons would be a member of the Scheduled Castes/ Scheduled Tribes/ Other Backward Castes/ Religious Minorities or a woman. If two members of the Commission voted against the appointment of a person, the person would not be appointed.
The Amendment and law were challenged in the Supreme Court in Fourth Judges Case and was struck down for violating the basic structure of the Constitution and for the reasons that the new system could have political influence on the appointments, which is not suitable for the functioning of the Judiciary.
Advantages of the Collegium System:
- This system increases secrecy. The system is one of the best-kept secrets in the country. It helps in the proper and effective working of the institution.
- The Collegium separated politics from the Judiciary. Without the government’s influence, the Judges can work without any fear and any favor.
- In the past, the transfer of Judges on political grounds was noticed. Therefore, the Executive’s power can be misused, not allowing the Judiciary to work effectively.
- Moreover, the Collegium better understands the Judge’s requirements than the Executive. The Collegium system ensures that the righteous person gets the position of the Judge.
Disadvantages of the Collegium System:
- This system does not provide the selection process guidelines, leading to nepotism and favoritism.
- There is a complete lack of accountability on the part of the Judiciary. In no other country where democracy is followed, the Judiciary has its final say in the appointment.
- There has always been a lack of implementation, leading to pendency cases.
- In a democracy, always the principle of check and balances is followed. In India, three organs work independently and check each other’s powers. This collegium system gives immense powers to the Judiciary, which can be misused if not properly checked.
- Collegium is widely considered unconstitutional. According to the Constitution, appointments are by the President in consultation with the Judiciary and not the other way around.
SUGGESTIONS TO IMPROVE THE COLLEGIUM SYSTEM:
- The Judge interested should make a formal application to the Collegium for selection for the higher post.
- All the meetings should be recorded with perfect quality sound. Choices made by the Collegium should reflect that all the procedures are carefully followed.
- All the recordings and documents should be made available to the public on the internet to ensure the system’s transparency from the Collegium Secretariat under the Right to Information Act.
The collegium secretariat members should be given complete protection from the pressures they might face from Judges, Executives, Ministers, etc., to work effectively and without fear. The Collegium Secretariat should help the Collegium by maintaining the records of the candidates who wish to apply for the posts in the higher Judiciary, analyzing and comparing the candidates on various grounds, and their past judgments.
- A complaint mechanism can also be made, which will be attached to the detailed profile of the candidate. It should be taken care that no absurd and baseless allegations are made by an individual or a political party on the grounds of personal interests. Investigations on the complaints should be promoted if there is an actual matter of concern.
- Proper and suitable criteria should be given by the Collegium, which should be made into an act by passing it through the Parliament and the Collegium Secretariat and Ministry of Law and Justice should implement it, which will help the deserving candidates to reach the right place.
- The Collegium must include the present senior judges of the High Court, senior lawyers, Attorney General of India, and Advocate General of states (for HC appointments), creating a more democratic system.
- The chief of the Collegium can propose eligible candidates, to prevent him/her from misusing its power, other members of Collegium must individually scrutinize candidates proposed by him, and their views, either in favor or against, must go on record.
- The income and assets of the High Court and Supreme Court Judges and their close relatives should be appraised by the Comptroller and Auditor General of India (CAG) to ensure that the true accounts and assets are being rendered. If CAG finds that something is wrong, that Judge will not be eligible for any selection until he/she provides a satisfactory answer and the investigation is complete. Moreover, that Judge should be transferred at the earliest to promote an independent inquiry.
- Judges found in misdeeds such as backroom politics or giving favors to influential people should be given strict notices or disqualified for some time or permanently debarred from elevations.
- Any collegium member who shows tendencies of overruling the due process should be barred from taking part in the Collegium.
The demand for an independent judiciary has always existed; it can be throughout legal history. The Constituent Assembly had also appointed an ad hoc committee to suggest the best method for the appointment of Judges. It suggested a panel with some judicial members and some members from the Parliament. This method was not considered, and the assembly discussed the more democratic appointment method.
The 14th Report on the Reform of Judicial Administration:
The Committee on Judicial Accountability, highlighting the need for a national judicial appointments commission, in a statement regarding the proposed elevation of Justice CK Prasad noted, “The Committee strongly feels that responsible members of the bar of the concerned High Courts should be consulted before the collegium makes any recommendation to the Government.”
121st Law Commission Report (1987)
The Commission made references to the Missouri Plan of the U.S.A. It stated the Chief Justice of India with three senior-most judges, the predecessor to the office of Chief Justice of India, three Chief Justices of High Courts according to their seniority, Union Law Minister and Attorney General of India, and an outstanding law academic as a member.
The Constitution (67th) Amendment Bill
This Amendment to the Constitution provided for creating a body known as the National Judicial Commission regarding the appointment of Supreme Court and High Court judges and the transfer of High Court judges. For appointments to the Supreme Court, the Commission was to consist of the CJI along with 2 senior-most judges of the Supreme Court. With regards to the appointments in the High Courts, the Commission was to consist of the CJI, the Chief Minister (or the Governor in case there exists a proclamation under Article 356), the Chief Justice of that High Court, and one senior-most Judge of the Supreme Court and that of a High Court. Parliament did not pass this bill as there was no scope for the Executive, and there were different bodies for each Court which made the system difficult to manage. Also, giving the task of appointment of Judges is not the complete duty of the Judiciary, as according to the Constitution.
National Commission Review of the Working of the Constitution 2002:
As per the report, it recommended the institutional framework proposed by the 67th Amendment. Constitution (98th Amendment) Bill, 2003 was introduced in the Parliament. This Bill sought to create a National Judicial Commission that would recommend judges to the higher judiciary. Such an institutionalized mechanism would minimize any possibility of disagreement between the Judiciary and the Executive.
National Judicial Appointments Commission:
In the year 2014, the government came up with the Amendment in the Constitution and passed the bill to change the appointment procedure of the Judges in which a new commission was formed for the appointments. This Amendment was declared unconstitutional by the Supreme Court of India in 2015.
Advantages of NJAC:
- NJAC removed that allegation of unconstitutionality, which was due to the less weight of the Executive in the appointment.
- NJAC includes Judges and Union Law Minister and other political bodies giving somewhat more weightage to the Executive, which is generally the case.
- The Judiciary, in this case, would be accountable to some extent to the Executive for the appointments, which will solve the issue of judicial accountability.
NJAC was still not able to serve the purpose over the Collegium System. The issue of transparency was still there. The guidelines and procedure of appointments were still going to be a mystery. In the provisions of the NJAC Act, the words ‘any other suitable criteria’ were enough to afford nepotism and favoritism to the members of the NJAC.
In NJAC, the Executive was given much more power than the Judiciary, which might dilute the independence of the Judiciary and can even harm the basic structure of the Constitution.
Moreover, no specific details were given regarding the inclusion of ’eminent people’, especially regarding their background. In the absence of such criteria, the provision could have been abused by the committee consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice.
SUGGESTIONS FOR NJAC:
The Commission be composed of the following members:
- President of India (Chairperson)
- CJI (Vice-Chairperson)
- Two senior-most puisne judges of the Supreme Court
- Attorney General of India
- Eminent legal jurist nominated by the Prime Minister of India
- Eminent legal jurist nominated by the Leader of Opposition
- This type of body will bring a fine balance between the Executive and the judiciary and Bar and the Bench.
- The Commission may also take statements from the Bar members whom they think can help measure the caliber of the candidates.
- The Commission should try to give decisions based on mutual consensus.
- All the proceedings and communication must be recorded and made available to the public.
The NJAC system could have been better if compared with the Collegium System in terms of Judicial accountability, but there is a very thin line between the dilution of independence of the Judiciary and Judicial accountability.
Comparison with the system followed in other countries:
The other countries use several methods to ensure the independence of their Judiciary.
In France, a constitutional body of Conseil Superieur de la Magistrature makes suggestions to the President for the appointments. The body consists of the President, the Minister of Justice, and 16 members. Out of these 16, only four are prominent public figures. The remaining 12, half of them, 5 sitting judges and 1 public prosecutor, deal with recommendations of sitting judges, and the other half deal with recommendations for public prosecutors. Thus the primacy of the Judiciary in the appointment procedure can be seen.
In Canada, the power of appointing the Judges to the Superior Courts of the provinces/territories, the Federal Court, and the Supreme Court of Canada reside with the Federal Government. The Commissioner for Federal Judicial Affairs administers the advisory committees which represent each province and territory and assess the qualifications of the lawyers who apply for federal judicial appointments. Each committee consists of 7 members representing the bench, the bar, and the general public, and 1 ex-officio non-voting member being either the Commissioner for Federal Judicial Affairs Canada, the Executive Director, Judicial Appointments, or their designate.
Similarly, the provincial and territorial governments appoint Judges to provincial and territorial courts.
The Governor in Council appoints all federally appointed judges, this consists of the Governor-General acting on the advice of the Prime Minister for judges of the Supreme Court of Canada and Chief and Associate Chief Justices in the provinces and on the advice of the Minister of Justice for all other superior court judges.
This system is quite representative. It represents the bench, the bar, the members of the government, and even the public. The good thing which the Indian appointment system can adopt is the “Application” method, in which the willing candidate makes a formal application, to the Collegium, for the roles in the higher Judiciary.
Similarly, in the United Kingdom, the Lord Chancellor has to call a commission that consults judges and heads of jurisdiction for appointments to the Supreme Court. Based on the recommendation of the Commission, the Lord Chancellor notifies this selection to the Prime Minister.
In the United States of America, the Constitution provides the procedure for appointing a Justice in only a few words. The “Appointments Clause” (Article II, Section 2, clause 2) states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the Supreme Court.”
Many things have changed over the 2 centuries; still, the basic feature of sharing the power between the President and the Senate remains unchanged. The President nominates the candidate, which is then confirmed by the Senate. After the candidate’s nomination by The President, the nomination is sent to the Senate Judiciary Committee, where the nominee is asked about their law record, if applicable, their stand on other significant issues, even committee tries to unearth all the dark secrets and past indiscretions. These Judges are then appointed for life. This appointment system gives the executive much power, which cannot be used in India as it might have serious repercussions. The Indian appointment system can take on from the US model, is the part and the working of the Senate Judiciary Committee. The members of the executive, members of the ruling party as well as the opposition party, can interview the candidates on their previous judgments and their views on different issues and record these interviews in good quality, which then should be made available to the public to maintain the transparency of the system.
South Africa has an excellent system for appointing Judges in the higher Judiciary. The President appoints the Judges on the advice of the ‘Judicial Service Commission.’ This Commission comprises of the three judicial members who are the Chief Justice, who chairs the Commission; the President of the Supreme Court of Appeal; and one Judge President designated by the Judges President of the provincial High Courts; the Minister of Justice; 4 legal practitioners nominated from within the legal profession; 1 legal academic representing the legal academics of the country; 6 members of the National Assembly, at least 3 of whom must be members of opposition parties; 4 members of the National Council of Provinces and 4 persons designated by the President as head of the national executive. If the vacancy which is to be filled is in a provincial High Court, the Judge President of that High Court and the Premier of that province also sit as members of the JSC.
Similarly, for the members of the Constitutional Court and the President and Deputy-President of the Supreme Court of Appeal, the President of South Africa ‘must appoint the judges of all other courts on the advice of the JSC.’
Candidates who seek a permanent appointment as a Judge submit their application to the JSC. The JSC then shortlists candidates and interviews them. These interviews are held in public; after JSC deliberates, the decisions are taken in private, if the candidate gets a majority of votes in the JSC, the candidate will be nominated, and it will be then sent to the President, who then makes the formal appointments. This system can be used in India and might prove successful as it evenly distributes the power between everything, the Judiciary and the Executive, the bar and the bench, the ruling and the opposition, so that no one has the upper hand in the appointments, which will help in the independent and efficient working of the Judiciary, moreover, it is a transparent system as the interviews are conducted in public which will help in gaining the public confidence.
Judicial independence is crucial. Courts are not political institutions. Judges must be neutral; they should be independent, impartial, and not pressurized by any political or non-political organizations; they should only be loyal to the law and not to anybody. There are certainly issues in the current system. Therefore, it should be improved. Every system has advantages and disadvantages. A better way is to take inspiration from the methods followed in other countries like the system followed in South Africa by establishing a commission and making the appointment system transparent by taking candidates’ interviews in front of the public. For the Judiciary to be independent, the Commission or the Collegium should be representative, which should comprise members of the Executive, legislature, judiciary, and the legal profession and also no wing should have a complete say in the appointment; a balance should be maintained so that the deserving candidates get appointed to the office and perform their duties rightly.
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