Author: Sankalp Shandilya, II year of B.A.,LL.B. from National Law University and judicial academy, Assam
The Law minister of India Kiran Rijuju in one of his speeches said that the “Collegium system is opaque and the government can’t be silent forever” He also said “Collegium system is alien to the constitution” not only the law minister but many other politicians including citizens are showing concern on collegium system.This article tries to do a historical analysis of the collegium system. This article covers the evolution of the collegium system and the debates going around it.
CONSTITUTION ON APPOINTMENT OF JUDGES
Article 124(2) of the constitution of India reads (2) “Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years.”
Also, article 217 of the constitution of India reads “Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.”
CASE LAWS ON APPOINTMENT OF JUDGES
In S.P. Gupta v. Union of India (UOI) and Ors, 1981 Supp (1) SCC 87 popularly known as the first judge's case in this case supreme court clubbed 8 writ petitions regarding the appointment of the judge under article 139 of the constitution the question was who has power executive or judiciary to appoint judges of Supreme and High Courts and the judge gave excessive powers to the executive for appointment of judges but later this judgement was overturned In second Judges case there was friction on the issue what is the meaning of “consultation” and if the ultimate power of appointment of judges is in the hand of President then after consultancy with the council of minister president may appoint a person who is favoured by the council of ministers or loyal towards council of ministers and this will be a threat to the independence of the judiciary as well as separation of powers.
In The Supreme Court Advocates-on-Record Association (SCARA) Vs Union of India, 1993 also known as a second judges’ case Supreme court overruled the judgement of the S.P Gupta case and formed a collegium system. This collegium system constitutes CJI plus two senior-most judges of the supreme court. In this judgement, it was that the word consultation doesn’t limit the power of CJI in the appointment of judges. Now after this judgement executive doesn’t have any say in the appointment of judges of the Supreme court and High court.
The third judges’ case is not any case but an opinion given by the Supreme court on a question asked by then President K.R Narayanan after this case Supreme court expanded the number of judges from 3 to 5 in the collegium from then the collegium consist of 4 seniormost judges of Supreme court including CJI.
NJAC and the verdict of the Supreme Court
In the winter session of parliament in 2022 Vice President of India said the judgement on NJAC by SupremeCourt was a “glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people”. In 2016 through the 99th amendment of the constitution government introduced a National Judicial Appointment Commission for the appointment of judges of the Supreme Court and High Court but the Supreme Court in Landmark judgement of Supreme Court Advocates-on-record Association & Anr. vs. Union of India (2016) 5 SCC 1 struck down this amendment.
In this judgement, Supreme Court observed that NJAC is a threat to the Independence of the judiciary and also against the Basic Structure doctrine. Chelameswar J. gave a dissenting opinion and claimed thatalthough the independence of the judiciary is the basic structure of theConstitution. With regards to the non-reviewable status of theSecond Judges case and Third Judges case, he states “It appears tohave been a joint venture in the subversion of the law laid down bythe 2nd Judges case and 3rd Judges case by both the executive and thejudiciary which neither party is willing to acknowledge.”
The Way Forward
There is a heated debate going on between the executive and judiciary on the appointment of judges and the collegium system. A big proportion of citizens of this country also believe that the collegium system is not adequate as there is no transparency on the appointment of judges in the Supreme court and High Court. In a democracy, everything should be transparent. There are set guidelines and procedures for appointment on any post but the collegium never reveals on which basis it accepted or rejected the appointment of a particular Judge in the Supreme Court or High Court. There should be transparency regarding this. There are also allegations that due to the collegium system appointment in Higher Judiciary became dynastic as there were and are multiple Judges from the same family. Debate and Discussion area very important fabric of a healthy democracy and Chief Justice of India D.Y Chandrachud also said that “Take criticism of Collegium in a positive light, must improve.” In some foreign nation take for example USA Judges are appointed by President and later confirmed by the Senate. It will be better if by mutual discussion Supreme Court and Government agrees to a common solution to this problem but it is a very tough task as No one wants to limit their power so why Judiciary will accept a proposal or a bill that will limit its power. There is also another side of this debate as in the Majority of cases Union of India is a party. If in the appointment of judiciary absolute power will be given to the government then there are chances that they will appoint those people as Judges who work in favour of the government or who will give judgement according to the wishes of the government. There is a need for a system that ensures the Independence of the Judiciary, Separation of Power and appointment of competent judges without harming the Basic structure of the constitution.