Sudhanva Shetty Shetty
Writer, coffee-addict, likes folk music & long walks in the rain. Firmly believes that there's nothing more important in a democracy than a well-informed electorate.
When talking or reading about the Supreme Court (SC), we frequently come across the term “Supreme Court Collegium”. This system is one of the central tenets of the Indian judiciary today although knowledge regarding it is limited amongst citizens – and contention against it is widespread amongst the political class.
To understand the Collegium, we need to understand the manner in which judges are appointed in India. And then we have to revisit the three SC cases that gave us the Collegium and redefined judicial independence.
The Constitution alludes to the procedure of appointment of judges to the SC and HCs in Article 124 and Article 217 respectively.
These Articles state that judges of the Supreme Court shall be appointed by the President in consultation with the Chief Justice of India (CJI) and other judges of the Supreme Court and the High Courts as the President of India may deem necessary. Furthermore, as per the Constitution, judges of the High Courts are appointed by the President in consultation with the CJI, the Governor of the concerned state, and the Chief Justice of that High Court.
But what does the term “in consultation” actually imply?
The Three Judges Cases were landmark verdicts that sought to answer this question. By doing so, these cases redefined the manner of appointment of judges, judicial independence, and separation of powers between the three branches of government.
The genesis of the Judges Cases begins in 1973 when, by a narrow 7-6 margin, the SC delivered its historic verdict in Kesavananda Bharati v. the State of Kerala. This famous case established the “basic structure doctrine”, which purports that the Constitution has a basic structure of principles and values that cannot be altered by any Act of the legislature of the executive.
The verdict was not well-received by the government of the day, led by Indira Gandhi, which viewed it as a curtailing of its powers.
What followed was a series of unprecedented events: on 26 April 1973, one of the judges who dissented in the Kesavananda Bharati case, Justice Ajit Nath Ray, was promoted to the position of CJI. But Ray was not the senior-most judge: his elevation was made possible by superseding three more senior judges – three judges who had ruled in favour of the basic structure doctrine that the government so despised. This was a blatant attack on judicial independence by the executive, and in retrospect has been rightly regarded as a black day for Indian democracy
Fast-forward to after the days of the Emergency, and the SC is now faced with a crisis surrounding both its independence and the securing of its independence in the long-term. The central question was: who has the final say in the appointment of judges, the government or the Supreme Court?
In the First Judges Case (1981), the apex court held (4-3) that in the appointment of a judge of the Supreme Court or the High Court, the word “consultation” in Article 124(2) and in Article 217(1) of the Constitution does not mean “concurrence”.
In the event of a disagreement, the “ultimate power” would rest with the Union Government and not the CJI, the SC ruled. The First Judges Case, therefore, was an instance where the apex court acted against its own interests.
12 years later, the court would change its stance.
In 1993, hearing petitions regarding court vacancies, the First Judges Case has referred again to a nine-judge Bench. In the Second Judges Case (1993), the court (7-2) overruled the First Judges Case, holding that in the event of conflict between the President and the CJI with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy, but would be determinative in the matter.
In the 1993 verdict, the SC not only regained its powers from the government but also gave itself the upper hand over the other two branches.
The 1993 verdict also gave birth to the Collegium System. This was the collection of the CJI and the two most senior judges of the SC or the HC, depending on the case. What this did was in effect “moderate” the CJI’s powers when it comes to the appointment of judges.
While the court already made it clear that the CJI would have the final say and that the President’s recommendation was non-binding, the court also expanded that appointments would be decided by the CJI and
Finally, in the Third Judges Case (1998), the SC reaffirmed its 1993 judgement and expanded the Collegium to include the CJI and the four most-senior judges of the court after the CJI.
There is a perception that the Collegium system, which finds no mention in the Constitution and is a mechanism put in place by the SC itself, personifies the democratic deficit that plagues the Indian judiciary. The members of the Collegium, whilst signifying the fierce independence of the judiciary, also exemplify the cabal-like behind-the-door dealings of the judicial branch that lacks accountability and public scrutiny.
As such, the lack of transparency has ignited fears of nepotism and elevation of judges based on personal relationships and past favours instead of merit or seniority.
At the same time, despite the opprobrium, there has been no active attempt by the legislature or the executive to find a viable alternative. Therefore, many contend that the judiciary has no choice but to fill the gap left by the other two branches of government. (Whether the judicial activism that this entails is permitted by the Constitution – or if it is healthy for a democracy – is another debate altogether.)
The most pronounced attempt at reforming the Collegium System was probably the National Judicial Appointments Commission (NJAC). The NJAC was a body that would have been comprised of the CJI, two senior judges, the Law Minister and “two eminent personalities” appointed by the Prime Minister, Leader of Opposition and CJI. It was passed by Parliament in 2014 as the 99th Constitutional Amendment Act.
However, ten months after it received the President’s assent, the NJAC was struck down as unconstitutional by the SC by a 4-1 majority (in what is sometimes referred to as the Fourth Judges Case). The SC branded the Commission as an infringement on judicial independence and a violation of the separation of powers. Therefore, the Collegium System was preserved and, as of October 2018, continues to be in place.
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