The Constitution of India has embodied the principle of separation of powers by creating three important pillars of democracy– executive, legislature and judiciary. An independent judiciary is regarded as sine qua non of a vibrant democratic polity and procedure for concerned judicial appointments requires greater transparency for building public confidence in the judiciary. This article intends to provide insights on existing collegium system and subsequent judicial developments through various judgements. The researcher shall attempt to argue that constitution of an independent commission in place of inefficient collegium system will go a long way in upholding transparency and accountability of such appointments and will be in consonance with principle of check and balances embodied under the Indian constitution.
Analyzing the flaws attached to NJAC judgement, it is also argued that the term “independence of judiciary” needs wider interpretation to include both individual as well as institutional independence under its scope. In the last section, by drawing a comparative analysis of procedure of judicial appointments across different jurisdictions, the author argues that a more independent judicial system with an equally autonomous Judicial Appointments Commission based on models of United Kingdom and South Africa has been a categorical requirement for democratic praxis in India.
Collegium System – History, Status Quo and Alternatives
In the recent years, the judiciary in India has attained an unprecedented significance with its proactive role in the matters of judicial review. But, in the areas of judicial management and appointments process, the current collegium system confers complete autonomy to judicial officers for exercising their own whims and caprices which leads to greater transparency concerns. Prior to 1973, under Article 124 and 217 of Indian constitution, the decision of judicial appointments as well as transfers of judges was left to discretion of the President working solely on aid and advice of Council of Ministers. The President, being a nominal head, had no say in such appointments and the executive wielded the ultimate decision making power. During the 1970s, the government politicized the appointment process by packing the court followed by a series of constitutional challenges to Indira Gandhi government culminating in the emergency period of 1975-77. It lead to serious concerns on the autonomy of judicial appointments which transgressed into a series of judicial pronouncements known as Three Judges Cases.
The constitutional provisions under Article 127, 217 and 222 provided that executive should consult with judges of Supreme Court and similar constitutional functionaries exist at the state level. Various questions regarding the interpretation of terms like “consultation” have found their way to the Apex court from time to time. In “S.P. Gupta v Union of India”, popularly known as First Judges case, the Court was faced with the question of whether the President was bound by advice of Chief Justice of India or not. The Court by majority of 4:1 held that the President was obliged to consult the respective Chief Justice of Supreme Court and concerned High court during appointments and transfers of judges but it was however not binding upon the President. It was severely critiqued by the people from judiciary for restricting its independence in India.
In 1993, similar questions arose for consideration in a PIL for filing up of judicial vacancies before the nine-judge bench of Supreme Court in “Supreme Courts Advocates on Record Association v Union of India”, popularly as Second Judges case. It was alleged that executive was not competent enough for appointment of most qualified judges. Reversing the decision of SP Gupta’s case, the majority opinion ruled that the CJI had primacy over appointment as well transfer of judges of Supreme Court and High Courts and conformity with his opinion is prerequisite for such appointments. It was held that the opinion formed by CJI included his opinion as well as of other two senior most judges collectively. The Court rationed that Article 74(1) has been circumscribed by consultations under Article 124(2) and 217(1) and all needed to be read together using harmonious interpretation.
In 1998, President K.R. Narayan had asked for advisory opinion of the Supreme Court on various issues concerning Second Judges case for bringing more clarity in the interpretation of term “consultation”. The nine judge bench ruled that plurality of opinions of judges was quintessential and collegium system consisting of CJI and four senior most judges should be constituted for recommending appointment as well as transfers of judges to the government. Therefore, since 1998, present collegium system has been followed in India for judicial appointments across the Supreme Court and all High Courts in India. But, like a double edged sword, the collegium system has also suffered from a plethora of limitations with rampant nepotism and personal patronage which require critical evaluation of the existing system.
Ailing Collegium System and Need for an Independent Authority
The collegium system which was professed to keep the judiciary independent from external interference itself suffers from various defects. When senior most judges have the authority to appoint judges from themselves, it hampers the spirit of democracy i.e. will of the people as the whole process lacks transparency and accountability endangering the public confidence. The opaque procedure gives rise to rampant nepotism and personal patronage for mutual exchange of favors inevitably resulting in a judge’s son becoming a judge. There exists no definite structure to check the reasonability of such appointments and no investigation can be conducted in case of its embroilment to public controversies.
In current times, the Indian courts have also shown a steep rise in piling up of the pending cases with the inefficient justice mechanisms and inordinate delays in judicial vacancies. It exists on behalf of collegium system as well as government as they exist at loggerheads in deciding such appointments. It also contributes to rising social costs of welfare mechanisms and according to Economic Survey of 2017-18, the non-trivial costs of such judicial delays have adversely affected the economic development in India. With the introduction of independent authority, the transaction costs associated with procedural delays in vacancies can be eliminated to a greater extent.
From a constitutional perspective, the collegium system has only emerged from varied interpretations in judicial pronouncements and contravenes the provisions of constitution. The literal interpretation of constitutional provisions of Article 124, 217 and 222 provides the President of India the power to appoint judges in consultation with judiciary and not vice-versa. This concept has only evolved from the judiciary for the benefit of judiciary only and, had our constitutional makers found any merits in this system, they would have expressly provided for it in the Constitution itself. B.R. Ambedkar, Chairman of Drafting Committee of Constitution had also expressly warned against the system of judges appointing judges by saying that allowing CJI the veto for appointments and transfer of authority would impair the transparency in judicial appointments process.
In a democratic constitutional system like India, the principle of separation of powers is not strictly adhered to and the concept of check and balances has been put in place. It provides for a balance in powers between different organs of government to eliminate chances of maladministration, nepotism and abuse of power by individual organs. As the judiciary has been embarked with the power of judicial review for striking down unconstitutional laws, it also becomes quintessential that executive has a say in corresponding judicial appointments to bring greater transparency and accountability. Additionally, as the executive and legislature are directly accountable to the public, the intricacies of excessive executive influence on such judicial appointments can be easily put to public scrutiny. Justice M.N. Venkatachalam, who headed the “National Commission to Review the Working of the Constitution”, had also recommended introducing a five-member National Judicial Commission, whereby wide consultative process could be sought for judicial appointments in India. Therefore, replacement of current collegium system with an independent selection commission comprising judicial officers and executive becomes imperative in upholding the spirit of constitutional values in India.
In light of rising transparency concerns against erstwhile collegium system, the government in 2015 gave effect to “Constitutional (99th Amendment Act), 2014” and “National Judicial Appointments Commission Act, 2014” and introduced Article 124A, 124B and 124C and substituted the institutional collegium system of judicial appointments by an independent body referred to as National Judicial Appointments Commission. It consisted of six members- Chief Justice of India (CJI) as ex-officio chairman, two senior most Supreme Court judges after CJI, Union Law Minister and two eminent persons to be selected by committee contemplated under Article 124A(1)(d). Under Article 124B, the NJAC was charged with the responsibility of recommending persons of ability and integrity for appointment of CJI, Chief Justices of High Court as well as recommending transfers of judges from one High Court to another. This amendment brought revolutionary changes to existing procedure of judicial appointments by putting check on inherent defects of collegium system and introducing greater transparency in the whole process.
NJAC Judgement – Judicial Supremacy, Not Independence
However, the Supreme Court of India in 2015 with a majority of 4:1 declared the National Judicial Appointments Commission (NJAC) Act as unconstitutional. The Court held that formation of NJAC by restricting the independence of judiciary violated the “basic structure” doctrine of Indian constitution laid down under landmark judgement of “His Holiness Keshavananda Bharati vs Union of India”. Justice Khehar ruled that NJAC constituted a clear attack on the separation of powers envisaged under Article 50 of the Indian constitution. Justice Kurian Joseph concurring with Justice Madan Lokur and Justice Adarsh Kumar Goel opined that things should not be multiplied unless necessary and ruled for the restoration of the erstwhile collegium system in India. The dissenting opinion of Justice Chelameshwar hold paramount importance in this aspect as it uphold the constitutionality of NJAC and provided deep insights on inefficiencies attached to the current collegium system.
The author in concurrence with Justice Chelameshwar’s opinion argues that this judgement had surpassed the thin line difference between judicial supremacy and judicial independence by restoring the archaic collegium system contrary to the provisions of Indian constitution. Moreover, the creation of NJAC does not invest absolute powers on the President for judicial appointments and transfers. Additionally, the commission ensured that no unworthy candidate was to be selected as expanding the appointment process by including more formal role for Law minister and two eminent persons would certainly help in more diverse and representative judiciary accountable to the people. The switch to NJAC would remarkably improve the quality and merit of judicial appointments as the nepotism and personal patronage in collegium system would stand eliminated.
The constitution of NJAC didn’t violate the basic structure as Article 124 of Indian constitution had conferred primacy on executive rather than judiciary on judicial appointments. The Supreme Court had distorted and departed from the original interpretation and understanding of Article 124 in Second and Third Judges case and similarly, the NJAC judgement uphold the same. The consistent departure of judiciary from interpreting stated constitutional provisions for its own sake poses serious challenges to the spirit of moral values enshrined under the Indian constitution. Mr Verrappa Moily, Chairman of Second Administrative Reforms Commission had also noted that the exclusive power of judiciary in appointment as well as transfers of judges undermines the spirit of democracy and no other country in the world has provided for final say of judiciary in such appointments. It is high time that executive and legislature need to step in for putting check on judicial supremacy by instituting an independent commission for judicial appointments and transfers.
Decoding “Independence of Judiciary”
The judiciary in India has been a consistent watchdog of moral values enshrined under the constitution and its independence from other branches of the government holds paramount importance in dispensing impartial justice in liberal democratic state like India. But, the varied interpretations attached to term of “judicial independence” by different jurists have been a point of contention in a series of judicial pronouncements in India. The term “independence of judiciary” has neither been defined under the Indian constitution nor in the General Clauses Act. Therefore, it becomes necessary to examine its etymological and legal meaning for proper comprehension and understanding of the same. Theoretically, the term provides that courts should not be subjected to the whims and caprices of other organs of government through private or partisan interests. The constitutional ethos of judicial independence cannot be diluted by the undue interference by executive for administration of impartial justice.
The concept of judicial independence can be further categorized into individual independence and institutional independence of judicial mechanisms. The former calls for impartial rulings of a judge and provides that only relevant facts and laws pertaining to case should form the basis of decisions contemplated by a judge. On the other hand, the latter advocates for functional independence aspect focusing upon protection of judiciary from external undue influence and threats based on the principle of separation of powers. Even though, the Supreme Court does not define the term “independence of judiciary” in NJAC judgement, it endorses an institutional definition to protect its autonomy from external influence. Therefore, the judgement fails to take into account the personal biases and existing prejudices of judges themselves. On the contrary, the collegium system majorly contributes to limiting the individual independence of judiciary as making judges solely responsible for choosing their successors leads to improper judicial decision making and exchange of partisan favours.
The independence of judiciary is protected under the basic structure doctrine under different facets but it is not drawn from the appointment of judges alone. It is also endangered with the political, communal and philosophical prejudices and externalities faced by the Indian judicial system. With the rise of religion-based political behaviors, the impartial views of judges in deciding a particular rule of law are also negatively impacted. Therefore, an independent commission including the members from legislature and executive will certainly help in building a more open and transparent process for judicial appointments and transfers in India.
Comparative Analysis of Judicial Appointments in Different Jurisdictions
The position of India in the matter of judicial appointments is very unique as in no country across the world, judiciary exercises the exclusive power to have a final say in appointments and transfers of their successors. Through comparative analysis of different mechanisms across the world, the researcher attempts to argue that all mechanisms have their own merits as well as demerits but independent commission system will be the most effective mechanism for judicial appointments in India. However, to ensure effectiveness of this system, the commission needs to be made representative in nature comprising members from all three organs of government, legal professionals and lay persons.
Under the mechanism of appointment by parliamentary approval as applied in United States, the executive selects candidates for judicial offices but only on the approval of the Parliament, they are formally appointed. For instance, the President of United States nominates candidates but appoints them only on the advice and consent of Senate. But this system also suffers from inherent defects as Parliament has no role in initial stages of selection process and it may not be able to control political bargaining and partisan interests of different socio-political groups. Additionally, if any ruling party commands majority in Parliament, the whole process will end up in favoring political patronage of that particular party in judicial appointments. Therefore, India having a multi-party system with perpetual formation of coalition governments does not accumulate this type of model for judicial appointments.
In United Kingdom, known as mother of democracy, an independent commission called as Judicial Appointments Commission (JAC) looks after the process of judicial appointments in courts and tribunals. It consists of 15 members – three from Judges’ Community and rest twelve to be selected through open competition. Moreover, in addition to JAC, separate authority named as “Judicial Appointments Conduct and Ombudsman” looks into the complaints regarding appointments by JAC and related to judicial discipline and conduct. Mandatory representation of layman in the commission enhances its participative character without any kin syndrome or political highhandedness. It also guards inherent vices of Indian collegium system as the President of United Kingdom nominates a senior judge who should not be a Justice of the UK Supreme Court.
Moreover, Argentina also follows a system of appointments through judicial council comprising of thirteen members including judges, lawyers and legal professors. With the recommendation of Council, the President appoints the judges with the confirmation of two-thirds of the Senate. It helps in effective representation of all organs of government to maintain transparency and accountability. In South Africa, the President appoints the judges after consulting a separate “Judicial Service Commission (JSC)” consisting of twenty three members. It involves Judges, Advocates, Legal Professionals, Members from Parliament, and eminent persons nominated by the President. The commission provides a stronger form of scrutiny for prospective candidates and as it is open to public scrutiny; it can help in reducing excessive executive control in such judicial appointments.
As no other country in world confers ultimate powers to judiciary for appointment of judges, the problem seems with the judges selecting themselves only. Based on models adopted by United Kingdom, South Africa and Argentina, it is high time India’s archaic collegium system needs to be substituted with independent Judicial Appointments Commission to eliminate judicial supremacy and upholding the principle of check and balances in Indian legal system.
In a liberal democratic regime like India, the transparency and accountability attached with the procedure of judicial appointments hold paramount importance for strengthening of spirit of democratic principles. Through historical analysis of ailing collegium system and associated judicial rulings, it is concluded that collegium system evolved through departure from original interpretation of Article 124 needs to be replaced with an independent judicial appointments commission for appointments as well as transfer of judges of Supreme Court and High Courts in India. The NJAC judgement which was professed to protect judicial independence has resulted in exclusive judicial supremacy in India and needs to be critically reviewed with holistic understanding of existing constitutional provisions. Comparing the procedure for judicial appointments under different jurisdiction, it is concluded that an independent commission with inclusion of members from all organs of government will prove fruitful for the future of Indian judiciary. The mechanism followed by United Kingdom, Argentina and South Africa provides a noteworthy example of success of commission system and sets a good precedent for India to follow.
BA LLB (Hons.) II Year,
National Law School of India University Bangalore.