The Collegium Controversy
By: Himadrish Suwan
A Transparent Judicial System, Is the need of hour…..
Collegium System is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place of existence in the Indian Constitution.
The collegium system has its genesis in a series of three judgments that is now clubbed together as the “Three Judges Cases”. The S P Gupta case (December 30, 1981) is called the “First Judges Case”. It declared that the “primacy” of the CJI’s recommendation to the President can be refused for “cogent reasons”. This brought a paradigm shift in favour of the executive having primacy over the judiciary in judicial appointments for the next 12 years.
On October 6, 1993, came a nine-judge bench decision in the Supreme Court Advocates-on Record Association vs Union of India case — the “Second Judges Case”. This was what ushered in the collegium system. The majority verdict written by Justice J S Verma said “justiciability” and “primacy” required that the CJI be given the “primal” role in such appointments. It overturned the S P Gupta judgment, saying “the role of the CJI is primal in nature because this being a topic within the judicial family, the executive cannot have an equal say in the matter. Here the word ‘consultation’ would shrink in a mini form. Should the executive have an equal role and be in divergence of many a proposal, germs of indiscipline would grow in the judiciary.”
The Arguments against the Present system of collegium are-:
The limitation of the collegium’s field of choice to the senior-most judges from the High Court for appointments to the Supreme Court, overlooking several talented junior judges and advocates.
The administrative burden of appointing and transferring judges without a separate secretariat or intelligence-gathering mechanism dedicated to collection of and checking personal and professional backgrounds of prospective appointees;
A closed-door affair without a formal and transparent system;
Mostly seen that Judges in the sense of favourism , relation elevates own members which places a sense of disappointment in the mind of judge aimers;
Due to this the Sense of trust in judiciary has lowered down;
Just days after being allocated the additional charge of Union Ministry of Law & Justice, Kapil Sibal expressed his strong disenchantment with two-decade old Supreme Court devised “Collegium” system of appointing Higher Judges . Mincing no words, he stoutly advocated that there must be a ‘say’ of Political Executive too in the appointment of Judges of the Supreme Court and High Courts.
Close on the heels of Sibal’s comments, countering the same Justice P Sathasivam, who has been recently sworn in as the 40th Chief Justice of India (CJI) strongly defended the continuance of present Collegium system asserting that under this mechanism the judiciary’s role is limited to making recommendations and it is always open for the executive government to seek reconsideration of the same on grounds of cogent and strong reasons. As the final appointment of Higher Judges is made by the President of India, hence ultimately it is an executive act, remarked the new CJI.
Although it is not for the first time that those at helm of affairs of Executive and Judiciary have tend to cross swords over the perplexed issue over making Higher Judicial Appointments. Even predecessors of Sibal have also been mooting the proposal for duly institutionalizing such process by constitution of a body viz. National Judicial Commission(NJC), but the same has hitherto merely remained a “rhetoric” as nothing concrete has ever been attempted, at least, under the incumbent UPA dispensation which is now in the last year of its second innings.
But it may be recalled here that Arun Jaitley, then Union Law Minister under NDA regime in May, 2003 displayed daring by introducing the Constitution (98th Amendment) Bill, 2003 straight thirteen years after a similar Constitution ( 67th Amendment) Bill, 1990 was tabled by his then predecessor, Dinesh Goswami. Unfortunately, on both occasions, the legislations failed to get passed owing to dissolution of respective Lok Sabhas.
“ My 1993 judgment, which holds the field, was very much misunderstood and misused. It was in that context I said the working of the judgment now for some time is raising serious questions, which cannot be called unreasonable. Therefore, some kind of rethink is required. My judgment says the appointment process of High Court and Supreme Court Judges is basically a joint or participatory exercise between the executive and the judiciary, both taking part in it.”
Late Justice JS Verma, former CJI and author of majority judgment in Second Judges case (1993).
Overcoming resistance from the judiciary, a Bill to scrap the collegium system of appointing judges to the Supreme Court and High Courts was introduced in the Rajya Sabha on last Thursday(6th September 2013). At present, judges of the SC as well as HCs are appointed by the collegium system. The Constitution (120th Amendment) Bill, 2013 envisages setting up of the JAC, to be decided by Parliament, that will recommend appointment and transfer of Supreme Court and High Court judges. Currently, the collegium consisting of five top judges of the Supreme Court, headed by the Chief Justice of India, decides the appointment of judges to higher courts.
“Appointment of judges is the role of the executive and not the judiciary. By this amendment, we are not trying to interfere with the judicial processes … We are trying to have a transparent system of appointment and participate with the judiciary to have best judges for a better future,” Law Minister Kapil Sibal said taking part in the debate. It was in 1993 that the judiciary “rewrote the Constitution” when it introduced the collegium system of appointing judges to higher courts, disturbing the delicate balance between the judiciary, the legislature and the executive, he said.
Allaying the BJP’s fears that passing this Constitution Amendment Bill while sending the main Bill — the Judicial Appointments Commission Bill, 2013, which defines the establishment of the proposed body — to the standing committee for vetting would lead to “a constitutional hiatus,” the Minister said that by the time the standing committee returned the Bill, the Centre would seek ratification of all States on the amendment which would take six to eight months.
However, the BJP was not convinced and denounced the government’s “piecemeal” approach to the issue. Leader of the Opposition Arun Jaitley said the government was unnecessarily hastening the passage of the Bill that was of “extraordinary” importance.
“When we are changing a system, all stakeholders should be allowed to participate in the process. Sending a Bill to the standing committee is part of the legislative process … why deny this privilege of procedure to stakeholders who might come up with better suggestions that could help improve the Bill,” he said, and demanded that both the Bills, after vetted by the standing committee, could be taken up in the winter session.
However, Deputy Chairman P.J. Kurien said the Bill could not be sent back to the Standing Committee until Mr. Sibal withdrew it. He noted that the matter was discussed at the business advisory committee meeting in the morning where the BJP did not ask for sending the Bill to the standing committee. When Mr. Sibal refused to withdraw the Bill, the BJP walked out in protest. The Bill was then put to vote — 131 votes were cast in favour and one against it.
The lone MP who opposed the Bill was Ram Jethmalani. He said: “Both Bills are evil … it will disturb the basic feature of the Constitution. The government was trying to demolish the collegium system and slowly creating a new system that is against the basic nature of the Constitution. I hope people avoid digging grave of the Constitution. The Bill is wholly unconstitutional … It is useless.”
The move to set aside the 1993 Supreme Court judgement, which led to the collegium system, requires amendment to Articles 124, 217, 222 and 213 of the Constitution. Government also proposes to insert a new Article 124A to set up the proposed Commission.
The practice of judges appointing judges started after 1993, replacing the system of the government picking judges for higher judiciary comprising the Supreme Court and High Courts.
Successive CJIs, including the present incumbent Chief Justice of India P Sathasivam have strongly defended the present practice, saying appointments to the higher judiciary are made after “intense deliberations.”
The Supreme Court collegium consists of five top judges of the apex court, headed by the CJI.
It would had been wiser if the Apex Court had itself gone for re-appraisal of its own invented “Collegium” system but unfortunately that hasn’t happened till date, neither administratively nor judicially, although in 2010, a PIL was filed in the Supreme Court seeking review of the same by contending , inter alia , that there is no mention of “Collegium” in our Constitution and the word “consultation” used in Article 124(2) cannot be read as “concurrence”. If the same is still to be granted sanctity, it must be after due Amendment of the Constitution.
Initially, a two-Judge Bench referred the issue to a larger Bench but in January 2013 a Three Judge Bench headed by the then CJI, Justice Altamas Kabir dismissed the same even though the assertions raised by the petitioner were also ostensibly supported by the Attorney General for India. Perhaps the Judiciary does not wish to weaken its paramount role in judicial appointments apprehending that giving in to executive’s demand would make its members subservient to political elite.
Finally, it can be concluded that kick-starting a serious exercise and not mere debate, for envisaging an appropriate roadmap so as to duly institutionalize the selection methodology of higher judiciary brooks no delay although under the garb of the same, the constitutionally mandated doctrine of “Independence of Judiciary” which is also an indispensable part of Basic Structure of our Constitution ought not be compromised or diluted in any way.
The govt, under the collegium system, lost the primacy it enjoyed after the first judges case.
However, the truth is that the judgments laid down a mandatory consultation process between the constitutional authorities, including the Central government which has inputs from various intelligence agencies. The complaint that the Central government is not consulted nor has any say in the matter is misleading and incorrect.
The government is upset because the executive does not now have the primacy it enjoyed earlier. The vigorous judicial scrutiny and oversight of executive misdemeanor’s in the 2G scam and Coalgate litigations (apart from many others) has rattled the executive.
The Judicial Appointments Commission is so structured as to revive the dominant voice of the political class by including the Law Minister, two eminent jurists nominated by the government and the Leader of the Opposition.
The new Commission will ensure the central issue of democratic accountability which the collegium system had subverted. It is completely undemocratic if the selection to such a powerful institution is to be left entirely to a body of men and women concededly learned in the law, but unelected, and in practice virtually irremovable, thanks to a complicated impeachment procedure.
Thus we hope that the Judicial Appointment Bill, get’s nod from the Lok – Sabha . Hope this bill brings reform in the decade old system of judges appointment & make judiciary more transparent than opaque.