Higher Judiciary Must Reform Now: Collegium System Lacks Transparency, Accountability and Objectivity

The Supreme Court effectively rewrote the Constitution to create a self-serving body, usurping powers from both the Parliament and the executive. In many ways, the enactment of 99th Amendment was indeed at redressing this imbalance; it was Parliament’s effort at salvaging some of its lost space in our Constitutional structure.

Arun Jaitley neatly summed up the whole issue: “A seven-judge majority (with five judges speaking through Justice JS Verma) fundamentally altered the nature of the appointments process in Article 124(2) and Article 217(1) of the Constitution. They held that in the event of disagreement between constituent functionaries involved in appointments of judges, the opinion of the Chief Justice of India would have primacy.”

Though the judgement was hailed as a triumph of judicial independence, former Chief Justice YV Chandrachud’s observations came to be true here. Speaking to Ram Krishna Hegde (‘Judiciary Today: A Plea for Collegium’), Chandrachud said: “The government has a great power of filibustering. I will tell you what happens. I say this man must be appointed Chief Justice. The government has got the power of appointing an acting Chief Justice. The government says, ‘We are not doing anything against you. But you see he deserves to be appointed. Let us consider it…. As I told Ms. Gandhi never overruled me… The government has got every power in its hands. It may not differ with you, but it may not agree with you. So vacancies are kept unfilled.”

This got reflected in the stand-off between the executive and the judiciary when the then Chief Justice, MM Punchhi, strongly insisted on the primacy of the Chief Justice of India which ended up into the Third Judges case and, in the meantime Punchhi’s recommendation got lapsed.

Arun Jaitley, renowned d lawyer and former Law Minister wrote: “In my experience two particular features of operation of collegium systems are pernicious. First, bargains are stuck between members of the Collegium. Often members have their favoured candidates and are willing to accept other members’ candidates if it means one’s own can be appointed or elevated. As a result, merit often ceases to be the single most important criterion. It is replaced by community representation, caste, ideology or plain familiarity.”

He continued, “At the same time, the relevance of seniority in elevations to the Supreme Court appear to be strategic. While often, the lack of seniority is seen as a reason why appointment of a competent judge is kept on hold, in other cases, seniority is seen as a criterion that can be overridden. The non-consideration of the names of justice AP Shah, Chief Justice of the Delhi High Court, and justice AK Patnaik, Chief Justice of Madhya Pradesh High Court, by the collegium despite their seniority in comparison with judges recommended raised considerable doubt as to whether seniority is a criterion or self-serving tool to be used at will.”

Jaitley flagged a couple of incidents of collegium making it a prestige issue and the results of such approaches: “During the time I was Law Minister, a certain candidate was recommended as a judge by the collegium to the Madras High court. The recommendation was returned by the central government because of adverse inputs. Despite such inputs, the recommendation was reiterated. In the second round, President A.P.J. Abdul Kalam returned the recommendation giving detailed reasons. The President was overruled by the collegium and the recommendation was reiterated for a second time. The nominee was appointed as an Additional Judge. His performance as a judge raised many eyebrows confirming the government inputs and the President’s concerns. He was not confirmed as a permanent judge.”

He continued, “In another case, the Central Government raised serious security concerns about a candidate recommended for judgeship in the Jammu and Kashmir High Court. The concern was overruled and he was confirmed as a judge. A series of orders passed by him in a sensitive High Court helped the cause of separatists.”

The Law Commission has been concerned about these issues and suggested the establishment and the composition of the National Judicial Service Commission (NJAC). It further gave justification for each member it wanted to be included: “Unquestionably, the Chief justice of India must be the head of this body and must be designated as Chairman. His pre-eminent position should not be diluted at all. Three senior most judges of the Supreme Court next in rank to the Chief Justice of India, because of their long judicial experience in close proximity to the Bar, should be members of the Commission. The predecessor of the Chairman i.e. the person who has retired as Chief Justice of India to whom the chairman has succeeded will also be a member. He would be an asset to the Chief Justice of India.

Three Chief Justices of High Courts, according to their seniority as Chief Justices would be members. Minister of Law and Justice, government of India, would by virtue of his office, would be a member. He represents the highest level, in the executive. The Attorney General of India would be a member by virtue of his office. As the leader of the bar, and not owing his position to any questionable electoral process he can adequately represent the interests of the Bar. An outstanding law academic would also be a member of the Commission. Thus the body will consist of eleven persons which cannot said to be unwieldy looking for the wide ranging functions The composition of the Commission, as recommended herein, gives adequate representation to the Judiciary, the Executives, the Bar and the legal Academics, which are the interests vitally affected by the functions of the Judiciary. The last unrepresented interest is the consumer of the Justice — litigants. It would not be advisable in the present state of affairs to provide any representation to it on the Commission.”

The Law Commission recommended in detail the power and functions of the National Service Judicial Commission.

Now it may be recalled that this report of the Law Commission was submitted to the Government of India in July 1987. It may also be mentioned that this report came fourteen years after the Keshavananda Bharati case and four years after the First Judges Case. Therefore, it can easily be said that members must have taken due care of the basic structure of the Constitution vis-à-vis constitutional amendments that this recommendation required.

In pursuant of the above cited Law Commission report to rectify the defects in the process of the appointment of judges to High Courts and Supreme Court efforts for establishing a judicial commission began. Before the 2014 bill following bills were tried but could not succeed due to some reason or other.

1. First such effort was when the 67th Constitution Amendment Bill was introduced in the Lok Sabha by the Law Minister Dinesh Goswami on 18 August 1990. But the matter could not go far because the then Prime Minister VP Singh had to resign in November 1990.

2. Second such effort was made by the then Law Minister, Ram Jethmalani, in Prime Minister Chandrashekher’s government; Constitutional Amendment Bill No. 54 but it could not even be introduced in any of the two houses because Chandrashekher resigned and the government went due to the withdrawal of the support by the Congress.

3. In 2002, the former Chief Justice MN Venkatachaliah, as Chairman Law Commission, recommended that the NJAC should be brought into effect with the participation of the Executive and the Judiciary into it. This was the third attempt made through the 98thConstitutional Amendment Bill, 2003 (prepared by the then Law Minister, Arun Jaitley, seeking amendment in Articles 124 and 217 of the Constitution to establish the National Judicial Commission. But the Bill lapsed due to the dissolution of the 13thLok Sabha in 2004.

National Judicial Appointment Commission, 2014

In order to overcome the problems of collusiveness and the lack of transparency in the Collegiums, the National Judicial Appointment Commission (NJAC) Bill was passed by the Parliament. It was envisaged that NJAC will be responsible for the appointment of judges to High Courts and the Supreme Court, transfer of judges from one High Court to another and other matters related to the judiciary. The NJAC consisted of six members:

1. Chief Justice of India (Chairperson, ex officio),

2. two other senior judges of the Supreme Court after the Chief Justice of India (ex officio),

3. the Union Minister of Law and Justice (ex-officio), and

4. two eminent persons. Further, the two eminent persons were to be nominated by a committee consisting of the Chief Justice of India, Prime Minister of India, and the Leader of Opposition in the Lok Sabha (or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in Lok Sabha), provided that of the two eminent persons, one person would be from the Scheduled Castes or Scheduled Tribes, or Other Backward Castes (OBC), or minority communities, or a woman. The eminent persons were to be nominated for a period of three years and would not be eligible for re-nomination.

The NJAC Bill became part of the Constitution through the 99th Amendment. It may be pointed out that it was passed by both the houses of the Parliament with an unusual unanimity. It was passed in the Lok Sabha with 369 members voting in favour and none voting against it. In the Rajya Sabha, it was passed by 179 members voting in favour while one member abstained from voting. Thus, not a single vote was cast against the Bill in any of the two Houses.

After it was ratified by 24 states, the bill was given assent by the President of India, Pranab Mukherjee, on 31 December, 2014.

The principal objective of the NJAC was to ensure transparency and equal participation of both the executive and the higher judiciary that could bring in proper checks and balances which was the need of the hour. Desire of the people of India for the last 25 years for greater transparency in the matter of judicial appointments system could not be ignored.

Once it became the reality, it was expected that NJAC would usher in a new era in the appointment of judges in the Supreme and High Courts and there shall be enough transparency. But even before the NJAC could start functioning a writ was filed in the Supreme Court against the 99th Amendment. The writ was heard by a bench of five judges headed by Justice JS Khehar. Other judges were J Chelameswar, MB Lokur, Kurian Joseph, and AK Goel. It is an enigma why the five-judge bench did not refer this constitutional issue to a larger bench, at least a larger one than the nine-judge bench in the Second and the Third Judges Case that created the Collegium system.

A request made by the Government of India to refer the matter to a bench larger than the one which heard the Second and Third Judges Cases, as the issue involved the constitutional amendments and the Collegium itself. This request was turned down on 12 May 2015 and the five-judge bench continued to hear the case. By any simple logic one would expect that a tradition of Golak Nath Case followed by Kesavananda Case, both of which dealt with the Constitutional Amendments, would be continued.

The Golak Nath Case was heard by an eleven-judge bench and subsequently Kesavananda Bharati Case by a thirteen-judge bench. But here a constitutional amendment of such a magnitude was heard by just five-judge bench, while the NJAC Act involved all the four cases — Golak Nath, Kehsavananda Bharati, Second Judges and Third Judges Cases. Jurists opine that the NJAC Case should have been heard by the full Constitution Bench, i.e. a bench of thirteen judges.

The five-judge bench continued to hear the case. It was decided on 16 October 2015 by a majority of four versus one. Four judges’ majority struck down the 99th Amendment in the name of judicial primacy in the appointments, judicial independence and the violation of the ‘basic structure’ of the Constitution. It further ordered the continuation of the Collegium system.

Justice Khehar writes: “I have independently arrived at the conclusion, that Clause (c) of Article 124A(1) is ultra-vires of the provisions of the Constitution, because of the inclusion of the Union Minister in-charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of article 124A(1), in my view impinges upon the principles of ‘independence of the judiciary’, as well as ‘separation of powers’. It has also been concluded by me, that Clause (d) of article 124A(1) which provides for the inclusion of two ‘eminent persons’ as members of NJAC is ultra-vires the provisions of the Constitution for a variety of reasons. The same has been held violative of the “basic structure” of the Constitution.”

This judgement invalidating the 99th Amendment has been very heavily criticised, even by former judges of the Supreme Court and the judgement has been perceived more as a political pronouncement than a legal judgement. It has been felt that in the NJAC Case judges have erred on several counts:

1. Neither the constitutional texts nor the Constituent Assembly debates provide any hint, leave alone a provision, for judicial primacy in the appointment of judges, and further,

2. The judgement does not explain how judicial primacy is a part of ‘basic structure’ of the Constitution,

3. The judicial primacy does not explain how this would promote judicial independence?

4. In no other country in the world there is a provision of judges appointing judges.

5. Very surprising that although the Court held that the minister had no veto power, yet his mere presence on the NJAC undermined judicial independence.

Only Justice Chelameswar upheld the 99th Amendment and the validity of NJAC. Former Supreme Court judge KT Thomas writes: “The majority judgment in the NJAC Case administered a warning that even four judges are enough to strike down a law not palatable to the judges of Supreme Court, no matter that such amending law had the backing of the Parliament, was rectified by 20 states, and in essence, was symbolic of the will of the people manifested by their representatives in Parliament…. Interestingly, while striking down the 99th Amendment and nipping the system of judicial appointments that it sought to establish, the bench in the NJAC Case did acknowledge the frailties of the Collegium system.”

The perils highlighted by Justice Joseph are almost a testimonial point to the nadir to which the Collegium system has plummeted over the years. Justice Joseph also acknowledged the fact that the present Collegium system lacks transparency, accountability, and objectivity and very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.

All this is neither good for the judicial process nor for the prestige of honourable courts and the judges. Taking examples from around the world, the Supreme Court must come forward with an acceptable solution. If not the Government of India must implement the NJAC that came into existence due to 99the Amendment to the Constitution of India, rectified by 24 states and given ascent by the President of India on 31 December 2014.

(Part 2 of two-part series)

The writer is a well-known historian. The views expressed in this article are those of the author and do not represent the stand of this publication.

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