The Court and the problem with its collegium

Context: The incumbent Chief Justice of India (CJI), Justice U.U. Lalit, had set in motion the procedure contemplated for the collegium of the Supreme Court which is enshrined in the Memorandum of Procedure of 1999.

• He also forwarded the name of Justice D Chandrachud as his successor. This has again put in focus the institution of the ‘collegium’ system that rules the appointments in higher judiciary.

About the collegium system:

• ‘Collegium’ is an in-house mechanism of higher judiciary in India, created for the appointment and transfer of judges, that has evolved through judgments of the Supreme Court (SC), and not by any Act of Parliament or Constitutional provision.

Evolution of the Collegium System:

First Judges Case (1981): It declared that the “primacy” of the Chief Justice of India (CJI)s recommendation on judicial appointments and transfers can be refused for “cogent reasons.”

• The ruling gave the Executive primacy over the Judiciary in judicial appointments for the next 12 years.

Second Judges Case (1993): SC introduced the Collegium system, holding that “consultation” really meant “concurrence”.

• It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the SC.

 Third Judges Case (1998): SC on President’s reference expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues while HC collegium is led by its Chief Justice and four other senior most judges of that court.

• Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.
• Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
• The government’s role is limited to getting an inquiry conducted by the Intelligence Bureau (IB) if a lawyer is to be elevated as a judge in a High Court or the Supreme Court.
• It can also raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

Criticisms of the collegium system:

• Time and again, it has been widely commented that the collegium is an extra-constitutional or non-constitutional body brought in force by judgments of the Supreme Court virtually wresting the power of appointment of judges.
  • The Constitution of India gave the last word to the President of India but mandated consultation with the Court. These judgments give the last word to the Court mandating consultation with the government.
• Not only that, what makes the problem even worse is that there is no seat in the collegium for any non-judge — neither from the executive, the Bar or anywhere else.
  • In other words, there is no one to offer suggestions or raise questions or even to observe what is going on.
• In 2014, Parliament by unanimity backed by State legislatures enacted the National Judicial Appointments Commission (NJAC).
  • it comprised three judges, the Law Minister and two eminent persons to handle the task of appointing judges.
• By a 4:1 majority, the Supreme Court struck that down, setting at naught the entire legislative will of the country which was trying to reverse a constitutional coup.
  • If the Court was concerned about being overruled in appointments, it could have just tinkered with and read down the Act, deleted the second eminent person and thus secured a situation where the judges were in the majority.
• This would have secured judicial primacy, provided for some executive involvement as well as had one person representing a larger public constituency.
  • This has put entire process of judicial appointments under a cloud of secrecy, insularity and opacity.

About NJAC: By the 99th Constitutional Amendment Act, 2014, the National Judicial Commission Act (NJAC) was brought in to replace the collegium system for the appointment of judges. NJAC restored to some extent the executive primacy in judicial appointments, as envisaged by our Constitutional makers.

• NJAC was established to achieve greater transparency and accountability for the appointment of judges.

But it was struck down by the Supreme Court on the grounds that it was against the “Independence of Judiciary” i.e., Principles of Basic Structure since it involved the Political Executive in the appointment of Judges.

Constitutional Provision:

Article 124: Establishment and constitution of Supreme Court:

• “There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.
• Every Judge of the Supreme Court shall be appointed by the President by warrant under his/her hand and seal after consultation with such of the Judges of the Supreme Court and of the High Court in the States as President may deem necessary for the purpose and shall hold office until he attains the age of 65 years.”
• In judicial appointments, it is obligatory for the President to consider the opinion of the Chief Justice of India.

Way Forward:

• In recent times, the Government seems to have given up on pursuing the commission for judicial appointments. It is time to revisit this question and secure a better, broad-based and transparent method of appointing senior judges to the High Courts and the Supreme Court.
• While doing so, we may also ask why there have been no appointments from the category of distinguished jurists which Article 124 of the Constitution contemplates. Appointments to the top court seem to be the preserve of judges from the High Courts with a handful of appointments from the Bar.
• Filling up of vacancies is a continuous and collaborative process involving the executive and the judiciary, so it is time to think of a permanent, independent body to institutionalize the process with adequate safeguards to preserve the judiciary’s independence guaranteeing judicial primacy but not judicial exclusivity.
• The mechanism for judicial appointments and transfer should ensure judicial independence, reflect diversity, demonstrate professional competence and integrity.
• Instead of selecting the number of judges required against a certain number of vacancies, the collegium must provide a panel of possible names to the President to appoint in order of preference and other valid criteria.

Apart from the above suggestions, government may also examine the feasibility of reviving the idea of a National Judicial Oversight Committee (NJOC) that gives executive greater role in ensuring transparency and efficiency in higher judiciary of India.

Source:  The Hindu

Previous Year Questions

Q.1) With reference to Indian Judiciary, consider the following statements.

1. Any retired judge of the Supreme Court of India can be called back to sit by the Chief Justice of India with prior permission of the President of India.
2. A High court in India has the power to review its own judgement as the Supreme Court does.

Which of the statements given above is/are correct?  (2021)

1. 1 only
2. 2 only
3. Both 1 and 2
4. Neither 1 nor 2

Q.2) Consider the following statements:

1. The- motion to impeach a Judge of the Supreme Court of India cannot be rejected by the Speaker of the Lok Sabha as per the Judges (Inquiry) Act, 1968.
2. The Constitution of India defines and gives details of what Constitutes ‘incapacity and proved misbehaviour’ of the Judges of the Supreme Court of India.
3. The details of the process of impeachment of the Judges of the Supreme Court of India are given in the Judges (Inquiry) Act, 1968.
4. If the motion for the impeachment of a Judge is taken up for voting, the law requires the motion to be backed by each House of the Parliament and supported by a majority of total membership of that House and by not less than two-thirds of total members of that House present and voting.

Which of the statements given above is/are correct?  (2019)

1. 1 and 2
2. 3 only
3. 3 and 4 only
4. 1, 3 and 4