The collegium system is flawed, and the apex court has admitted it. Yet, the court has endorsed the process
On October 16, 2015, a five-judge Constitution Bench of the Supreme Court of India vide a majority vote of four-to-one quashed the 99th Constitution Amendment which established the National Judicial Appointment Commission for the appointment of judges to the apex court and the High Courts. The court also resurrected the collegium system which the NJAC Act had replaced on April 13, 2015.
The judges took umbrage to the NJAC being an onslaught on the independence of the judiciary. Their primary discomfiture was with inclusion of the Law Minister and two eminent persons in a committee of six (the other three being two senior-most judges of SC besides the Chief Justice of India). The Law Ministry being made secretariat of the NJAC, was also a sore point with the Bench.
The majority judges argued that the Law Minister, who represents the Government a litigant in many court cases could influence the selection of judges who have to decide on cases involving it and its agencies. This will make them subservient to the executive, thereby jeopardising the freedom of the judiciary in arriving at decisions. Before jumping the gun, we need to look at relevant provisions in the Constitution.
Under Article 124(2), the President of India appoints judges of the Supreme Court in consultation with the Chief Justice of India, whereas under Article 217, he appoints judges of the High Courts after consulting the State Governor and the Chief Justice of the High Court concerned. Being the head of the state, the President must necessarily take inputs from the Council of Ministers or the executive.
Thus, the Constitution envisages a role (albeit pre-dominant) for the executive in the appointment of judges. It is the prerogative of the President, who takes the final decision by taking into account the recommendation of the country’s Chief Justice. The latter forwards the names, which the former considers and approves. Until 1981, appointments were being made in this manner only.
In 1982, a seven-judge Constitution Bench of the apex court went a step forward giving a free hand to the executive in the appointment of judges arguing that “consultation” with the Chief Justice did not amount to “concurrence” and that the Constitution did not provide for Chief Justice of India’s primacy. In other words, the executive didn’t even have to consult the Chief Justice; it had got absolute powers.
In 1993, a nine-judge Constitution Bench (in the Advocates-on-Records Association case) swung the pendulum to the other extreme. By a majority of seven, it ruled that that the Chief Justice of India would appoint judges in consultation with two senior-most judges of the apex court. In 1998, on a presidential reference, another nine-judge Bench reaffirmed the 1993 verdict and enlarged the court panel from two to four. This has come to be known as the collegium system as we know today.
The pronouncements of 1982 as well as 1993/1998 were out of sync with the basic tenets of the Constitution. While the 1982 verdict gave absolute powers to the executive in the appointment of judges to the exclusion of judiciary, at another extreme, the 1993/1998 judgements gave absolute powers to the judiciary, completely knocking out the executive.
The enactment of the NJAC Act by the Modi Government resurrected the focus on consultation between the two organs, as envisaged in Articles 124(2) and 217. Towards this end, it created an institutional platform (read the NJAC) and nominated the Law Minister to represent the executive. In a committee of six, he is the lone Government member, and it defies logic that he could install a person of his choice. He cannot even veto for which two members are required as per the Act.
In a fast-changing socio-economic scenario, wherein the judges have to deal with issues of public policy and day-to-day governance affecting people’s welfare, the lawmakers had aptly decided to include two ‘eminent’ persons. They are selected by a committee of three, which includes the Chief Justice of India, the Prime Minister and leader of Opposition. Hence, the fear that they could act as a proxy for executive, is baseless. Far from being inconsistent with the basic structure of the Constitution as claimed by the Bench this system would have imparted greater legitimacy and credibility to decisions the NJAC would take.
In short, it is most unlikely that the executive would hijack deliberations leading to the appointment of judges of its choice. The NJAC was the outcome of a marathon exercise that included recommendations of several high-level committees, consultations with legal luminaries, approval by both Houses of Parliament and ratification by 20 State Assemblies.
The judiciary cannot be the sole competent authority to appoint judges. It’s wrong to think that its independence will be compromised if anyone from outside the ‘judges’ club’ is included in the election process; that all other institutions of parliamentary democracy (the executive, Prime Minister, Opposition and legislature) are redundant.
Pertinently, the Bench concedes that there are deficiencies in the collegium system and has called for suggestions from the Government and others to improve it (the issue will be taken up in the next hearing on November 3). However, what it fails to realise is that the collegium system suffers from a structural flaw. It makes the justice delivery dispensation in India vulnerable to what a group of five judges think is in the best interest of the country.
http://www.dailypioneer.com/columnists/oped/njac-was-an-improvement.html