The continued conundrum of collegium systemRecently, three Constitutional authorities, Jagdeep Dhankhar, Vice-President of India and Chairman, Rajya Sabha; Om Birla, Speaker, Lok Sabha; and Kiren Rijiju, Minister of Law and Justice; have continuously been in news for criticising the collegium system of appointment of judges.
While addressing the 83rd All India Presiding Officers Conference in Jaipur, the Vice-President criticised the striking down of the National Judicial Appointments Commission (NJAC) Act in 2015 and raised questions about the landmark Kesavananda Bharati case verdict (1973) stating that it has set a wrong precedent. He also said, “One-upmanship and public posturing from judicial platforms is not good and these institutions must know how to conduct themselves.” He further said, “Parliamentary sovereignty and autonomy cannot be permitted to be qualified or compromised as it is quintessential to the survival of democracy. No institution can wield power or authority to neutralise the mandate of the people. It is the obligation of Parliament and legislatures to protect the sovereignty of the people.”
Presiding over the conference the Lok Sabha Speaker said, "Legislatures in our country have always respected the powers of judiciary. The judiciary is also expected to follow principle of separation and balance of powers conferred by the Constitution. Besides, the Law Minister has constantly been reiterating about the government’s intent to have a greater participation in the selection of judges in High Courts and Supreme Court.”
In a recent letter to the Chief Justice, the Law Minister demanded including a Government nominee in the evaluation committee for recommending candidates to the collegium from where the collegium can select judges to the High Courts and the Supreme Court. The Minister further clarified that his demand is based on the NJAC verdict for restructuring the Memorandum of Procedure of the Collegium system.
To understand the dispute, we need to delve a little deeper. In 1967, while adjudicating a property dispute in Golaknath vs State of Punjab, the Supreme Court had held (by a majority of 6:5) that the Fundamental Rights contained in the Constitution could neither be abrogated nor abridged by Parliament. Further, in the Kesavananda Bharati vs State of Kerala (1973) case where the central issue was again ‘property’, the court upheld the Kerala Land Reforms Act and the petitioner sadly lost the case. However, this case turned out to be a saviour of the Constitution as in this case the SC upheld the power of Parliament to amend the Constitution which very much includes the fundamental rights but it barred to amend or alter the basic structures of the Constitution like federalism and an independent judiciary, etc.
In the context of appointment of judges after the three-judge case, reference is often made to the Memorandum of Procedure (MoP), but what does it mean? It is an agreement between the judiciary and the Government and actually contains a set of guidelines for making appointments to the Supreme Court and High Courts. In fact, the MoP evolved basing upon three SC decisions, the First Judges Case (1981), Second Judges Case (1993), and the Third Judges Case (1998). In 2016, the MoP re-negotiations took place after the Supreme Court struck down the NJAC. The MoP governs the process right from the recommendation of the High Court Collegium to the Centre for the appointment of judges. After the Centre receives recommendations, it solicits the opinion of State Governments and inputs from the Intelligence Bureau (IB) and then the Government forwards the files along with the IB inputs to the Supreme Court Collegium. Afterwards, once the Supreme Court Collegium clears the names, the files are returned to the Central Government, which then either notifies the appointments or sends them back with objections or its views. At such a stage, the Supreme Court Collegium can either seek additional inputs on the Government’s opinion or it can reject or reiterate the proposal. However, if the collegium reiterates its decision, then under the current MoP, the Government is bound to notify the appointments.
Even though there is an MoP in place, the collegium system is often criticised to be opaque and not free from nepotism. Under such circumstances, there is no harm in listening to what the Law Minister said while venting the Government’s desire to be part of the Evaluation Committee for screening of candidates from where the collegium can finally select judges, but the remarks of the Vice-President are too harsh and amount to a confrontation with the judiciary which was both avoidable and unwanted.
India is perhaps the only country where judges select judges through the collegium system. In other parts the world, the selection process is different. For example, the US Constitution provides that the federal judges, including Supreme Court “justices”, are to be nominated by the President and confirmed by the Senate.
There is no doubt about the wisdom of the apex court as regards the basic structure doctrine and the subsequent evolution of the collegium system as a result of the three judges case, but there is no denying in making the collegium system more transparent, accountable and participatory so far as the Government’s minimum role in the Evaluation Committee under the MoP is considered. And the judiciary must not oppose this. After all, Caesar's wife must be above suspicion. This will instil more public trust in the justice delivery system.
(The writer is an Addl. Central Government Standing Counsel and a Distinguished Adjunct Professor of Law and Media Studies, KIIT University. Views are personal)