On October 16, 2015, a five-judge Constitution Bench of the Supreme Court [SC] vide a majority vote of four-to-one quashed the 99th Constitution Amendment which established the National Judicial Appointment Commission [NJAC] for appointment of judges to the apex court and High Courts. The court also resurrected the collegium system which NJAC Act had replaced on April 13, 2015.
Following this, the SC advised the Union government to draft a Memorandum of Procedure [MoP] for appointment of judges.
But, it has been repeatedly turning down suggestions made by latter. Those rejected include (i) government reserving the right to reject names recommended by Collegium if they are not in ‘national interest’ and (ii) recording in writing dissent, if any, expressed by members over any proposal or recommendation, which is not the case at present.
The rejection of these good suggestions reflect an attitude of one-upmanship on the part of the apex court as also its intent to perpetuate the status quo whereby “the proceedings of the Collegium are kept absolutely opaque and inaccessible both to public and history [barring occasional leaks]” to use the words of Justice J Chelameswar who was the lone dissenting judge when a five-judge bench of SC shot down the NJAC Act.
Questioning its decision-making process, particularly the lack of transparency in the appointment and transfer of judges, Justice J Chelameswar even skipped the Collegium meeting on September 1, 2016 [called to discuss the revised MoP]. He has also addressed a letter to the Chief Justice of India [CJI] expressing his unwillingness to attend meetings of the Collegium.
Elucidating on lack of transparency, he has stated that “nothing that’s discussed in Collegium meeting remains on record; that the process is opaque even to members of Collegium themselves”. He has suggested that “the recommendations be sent to him in writing to record his views and return them to the CJI”. His colleague Justice Kurien, who was also on the constitutional bench that struck down the NJAC Act, echoed similar views when he said that “the present Collegium system lacks transparency, accountability and objectivity”.
All of this has not come as a bolt from the blue. The deficiencies of the Collegium system were known ever since it was introduced in 1993 following the decision of a nine-judge Constitution Bench [in Advocates-on-Records Association case] which ruled that that CJI would appoint judges in consultation with two senior-most judges of apex court [in 1998, the court panel was enlarged to four – which came to be known as ‘Collegium’].
These deficiencies were commented upon by legal luminaries and examined at length by several high-level committees. Indeed, complete lack of transparency in working of Collegium and exclusion of the executive from the process of appointment/transfer were the two main grounds for setting up of NJAC. The NJAC was the outcome of a long-drawn exercise that culminated in approval by both Houses of Parliament and ratification by 20 State Assemblies.
Even the 5-judge bench which resurrected the Collegium system admitted that there are deficiencies in it and had called for suggestions from the Government and others to improve it. And, now doing a volte face, the apex court is even rejecting suggestions that are intended to bring about transparency and accountability in its working. It seems to be a case of having the cake and eating it too. This leads us to a question as to why NJAC was shot down?
The 3 judges out of 5 [while justice Chelameswar was lone dissenter, justice Kurien who went along with majority view also had reservations over Collegium] felt this was an onslaught on the independence of the judiciary. Their primary discomfiture was with inclusion of the Law Minister and two eminent persons in a committee of six [the other three being two senior-most judges of SC besides CJI]. The very objection to including a person from the executive was flawed.
Under Article 124(2), the President of India appoints judges of the SC in consultation with the CJI, whereas under Article 217, he appoints judges of the High Courts after consulting the State Governor and the Chief Justice of the High Court concerned. Being the head of the state, the President must necessarily take inputs from the Council of Ministers or the executive.
Thus, the Constitution envisages a role (albeit pre-dominant) for the executive in the appointment of judges. It is the prerogative of the President, who takes the final decision by taking into account the recommendation of the country’s CJI. The latter forwards the names, which the former considers and approves. Until 1981, appointments were being made in this manner only.
In 1982, a seven-judge Constitution Bench went a step forward giving a free hand to the executive arguing that “consultation” with CJI did not amount to “concurrence” and that Constitution did not provide for CJI’s primacy. In other words, the executive didn’t even have to consult the CJI. In 1993/1998, this was overturned by nine-judge Constitution Bench which gave exclusive powers to the Collegium.
The pronouncements of 1982 as well as 1993/1998 were out of sync with the basic tenets of the Constitution. While, the 1982 verdict gave absolute powers to the executive to the exclusion of judiciary, at another extreme, the 1993/1998 judgements gave absolute powers to the judiciary, completely knocking out the executive. The NJAC restored the balance in line with constitutional provisions.
To view the nomination of Law Minister to represent the executive/government as tantamount to the latter usurping the power to appoint and transfer judges is preposterous. In a committee of six, he is the lone government member, and it defies logic that he could install a person of his choice. He cannot even veto a decision for which two members are required as per the NJAC Act.
The judiciary cannot be the sole competent authority to appoint judges. It’s wrong to think that its independence will be compromised if anyone from outside the ‘judges’ club’ is included in the selection process; that all other institutions of parliamentary democracy (the executive, Prime Minister, Opposition and legislature) are redundant.
However, what it fails to realize is that the Collegium system suffers from a structural flaw. It makes the justice delivery dispensation in India vulnerable to what a group of five judges think is in the best interest of the country. The proof of pudding is in eating. Already, a member of this group [read justice Chelameswar] has raised a question mark on its functioning.
There is dire need for taking a re-look at the decision of the 5 judge Constitution Bench; hopefully, the apex court will introspect and ask a larger bench to examine it leading to restoration of NJAC.