The Supreme Court on October 16 quashed two Acts unanimously passed by the Union Parliament and assented to by the President. It declared the law to replace the collegium system in the appointment to higher judiciary as unconstitutional. It also quashed the National Judicial Appointment Commission (NJAC) Act that laid down details of the functioning of the NJAC. The collegium system of the Chief Justice of India and four senior-most Supreme Court Judges recommending appointment and transfer of judges came into existence around 1993 through judgments of the Supreme Court. “Judges selecting Judges” is not expressly provided for in the Constitution, but two Supreme Court judgments of 1990s made the highest judicial forum spelt out the law exclusively for the higher judiciary. The functioning of the collegium system, both at the High Court and the Supreme Court levels, came to be criticised as it created an “imperium in imperio” (empire within an empire) and left appointment and transfer of judges exclusively to the unfettered discretion of the apex court. The system was criticised on the grounds that it created an oligarchic situation and harbingered a “give-and-take” culture. It was also alleged that experience indicated that important persons, politicians, actors, etc., would get greater attention from the court while the common man continued to struggle for the basic rights.
The NJAC was brought in through a Constitutional amendment and a pursuant enactment as a body to replace the collegium system. It was to consist of six persons: the Chief Justice of India, two senior-most Supreme Court Judges, law Minister of India, two “eminent” persons to be nominated for a three-year term by the Chief Justice, the Prime Minister and the leader of Opposition in lok Sabha. It was expected that this should make the selection more broad-based, rational and beyond subjective influences. It was in 2002 that the Justice Venkatachaliah Committee for Constitutional reforms recommended a five-member NJC having primacy of judiciary with the CJI as its Chairman and two senior-most Supreme Court Judges as members. The law Minister and an eminent person were to be the other two members. The committee felt such a step was needed to preserve the independence of judiciary. This was not a unique idea hatched on Indian soil alone. In the United Kingdom, a five-person panel recommends appointments for higher judiciary. These five persons are the Supreme President, his Deputy and one member each appointed by the Judicial Appointments Commission of England, Scotland and Northern Ireland. In the United States, the President nominates and appoints the Federal and the Supreme Court Judges, but the appointment is subject to confirmation (by a rigorous process) by the US Senate. In France, the President receives the proposals from the Higher Council of Magistracy for requisite appointments. In Germany, the appointment in higher judiciary is by election: half the members by Executive and the other half by legislature. In Canada, the Governor in Council appoints the members of higher judiciary. Five members of Parliament (representing the Government and Opposition) review the list of nominees and recommend three names to the Prime Minister, who in turn, forwards the same to the Governor in Council. In South Africa, the President appoints the judges of higher courts in consultation with the Judicial Appointments Commission and the leaders of the parties in the National Assembly. It would thus be seen that judges appointing themselves on the ground of protecting the independence of judiciary is not prevalent in most of the countries.
The Supreme Court of India, however, goes on to hold that involvement of the Executive in the appointment of judges impinges on independence of judiciary which is a part of the basic structure of the Constitution. It violates the principles of separation of power between Executive and Judiciary which is also an ingredient of the basic feature of the Constitution. The apex court said, “At the present juncture, it seems difficult to repose faith and confidence in civil society to play any effective role in that direction. For the simple reason that it is not yet sufficiently motivated nor adequately determined to be in a position to act as a directional deterrent for the political-executive establishment. … It is, therefore, the higher judiciary which is the saviour of the fundamental rights of the citizens of this country. …This would necessarily contemplate the obligation of preserving the rule of law by forestalling the political-executive from transgressing their authority as envisaged in the Constitution.” The court considered the present civil society not competent enough to be a deterrent for any overreach by any of the pillars of governance.
The dissenting judgment of Justice Chelameswar cannot go unnoticed. Even the senior counsel for the petitioner, eminent lawyer Mr Fali Nariman, once called the collegium system “opaque”. But he considered the collegium system a lesser evil than NJAC. There has been candid criticism of the collegium system by former judges of the Supreme Court and High Courts. In this connection, the observations of Justice Ruma Pal had been very revealing, exposing the non-transparent and subjective functioning of the collegium system. Justices Chelameswar, lokur and Joseph have been critical about the way the collegium system is functioning. Justice Kurian Joseph said, “All was and is not well. I agree with Justice Chelameswar that the collegium system lacks transparency, accountability and objectivity. Trust deficit has affected the credibility of the collegiums system… Often, serious allegation … have been raised that its approach has been highly subjective. Deserving persons have been ignored for subjective reasons, social and other national realities were overlooked, certain appointments were delayed either to benefit vested choices or deny such benefits to the less patronised, selection of patronised or favoured persons were made violating guidelines resulting in unmerited, if not, bad appointments, the dictatorial attitude of the collegium affecting the dignity, if not, independence of judges, the court, particularly the SC, often being styled as the court of the collegiums, the looking forward syndrome affecting impartial assessment, have been some of the other allegations. …These allegations call for introspection as to whether the institutional trusteeship has kept up the expectations of the framers of the Constitution… I feel it’s not the trusteeship that failed, but frailties of the trustees and the collaborators which failed the system. It’s a curable situation yet. The collegium system needs to be improved requiring a glasnost and perestroika. Hence, the case needs to be heard further in this regard.”
This demonstrates that while judges want to continue to select and transfer judges through a judge-made law given to themselves, they are also conscious of the serious deficiencies in the working of the judiciary in this exclusive domain.
Justice Chelameswar rightly reminds every one when he says, “Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were opaque, inaccessible to public and history, barring occasional leaks …. The records are beyond the reach of any person, including the judges of this court, who are not lucky enough to become CJI. Such a state of affairs does not neither enhance the credibility of the institution nor is it good for the people.”
The Supreme Court has proposed to hear suggestions for reformation on collegium system onNovember 3. The apex court ought not be silent on any view point in this regard, and if it has the genuine intent of reforming the system for the better, it must give an equally patient hearing, both to the mighty and the meek. In the context of suggestion to be placed before the court for the required purposes, there is an element of concern of all sections of the society. More so, the so-called “civil society”, the competence of which have been seriously doubted in the course of this adjudication.
As of now, the judiciary stands at crossroads. This is a matter of obvious concern for every concerned citizen to participate in the debate on the issues, so as to ensure proper and effective appointment of judges in the higher courts. The voice of the people can never be fully choked.
The Supreme Court admits the necessity of further hearing. The other important issues involved relate to causing improvements in the collegium system. All members of the much-maligned civil society must raise their resolute voice. This is not a matter limited to any particular section of the society and would have an impact on the health of our democratic framework. Surely, this concerns us all!
(The writer, a Senior Advocate, is a former All India Service officer, a former diplomat, a former editor, a former President of Orissa High Court Bar Association and a former Advocate General of Odisha. jayantdas@hotmail.com)