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JUDICIAL APPOINTMENTS – NAVIGATING JUDICIAL AUTONOMY THROUGH EVALUATING COLLEGIUM SYSTEM AND NJAC
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JUDICIAL
APPOINTMENTS – NAVIGATING JUDICIAL AUTONOMY THROUGH EVALUATING COLLEGIUM SYSTEM
AND NJAC
AUTHORED BY - RIDHI SOMANI
LL.M STUDENT 2023-24
GNLU SILVASSA
CAMPUS
ABSTRACT
The glares with which the judges will see will ensure the
foundations of democracy and constitutionalism in the country. If the glares
get tainted with ideological paintings of the political parties then the
constitutional interpretation will also be given meaning within the confines of
the same ideology and thus ensuring judicial independence becomes very
important. In democratic societies, selecting judges is crucial for ensuring
fair justice and safeguarding rights. In India, the collegium system, where senior
judges appoint lower-court judges, has been criticized for its closed room
secrect appointments and lack of accountability. In response, the National
Judicial Appointments Commission (NJAC) was proposed to include government and
legislative officials in the selection process. However, the Supreme Court
struck down the NJAC as unconstitutional, citing threats to judicial
independence. The ongoing debate centres around striking a balance between
judicial independence and accountability in the judge appointment process. The
paper traces the discussions from the constituent assembly debates, to the
supreme court judgements. Critically evaluates the NJAC, and proposes ways of
improving existing collegium system based on the recommendations of the eminent
Jurists.
Keywords – Judicial
Appointments, Collegium System, NJAC, Independence of Judiciary
INTRODUCTION
The appointment of judges is an important aspect of any
democratic society. The role judges play is incidental in upholding the rule of
law and constitutionalism. In a country where the executive enjoys an
uncontrolled power the result is the arbitrary decisions and fragmentation of
the fundamental rights of the individuals. An appropriate system of checks and
balances thus ensures that, the government does not go beyond the powers
prescribe to it within the constitution and does negatively infringe on the
rights of the people. The constitution has embarked this role on the Judiciary
which acts as a WatchGuard against any arbitrary action of the government and
thus in order to fulfil this requirement its essential to maintain the
independence of judiciary. The independence of judiciary can seriously impacted
if the appointment of the Judges are made on the basis of political
considerations rather than the merit seen in the individuals. “In order to
preserve this sanctity of the judiciary and it people trust in it , the Indian
Judiciary and the Ecxceutive have gone through a tussle, where with the interpretive
power vested in the Judiciary the, judiciary passed the the torch of appointing
authority to itself by giving the meaning of the word consultation to mean
concurrence under Article 124(2) in the second judges case. Which was
reaffirmed in third judges case and the collegium system was used as a means to
appoint the judges. However this was not taken well by the Exceutive as the
collegium system was fraught with lack of transparency and issues of
brotherhood and lack of public scrutiny and thus in order to rectify that came
up with a 99th constitutional Amendment and introduced NJAC a
constitutional body responsible for appointing justices. However the ball was
again throw in the supreme court and it re- capitulated its power by setting
itself back on the throne through Supreme
Court Advocates-on-Record Association v. Union of India), which ruled that the
NJAC Act was unconstitutional because it compromised the independence of the
judiciary and went against the division of powers principle, invalidated the
law.”[1] “As new factors emerge, the discussion about how judges are
chosen is changing. Those involved want to find a balance between giving judges
freedom and making sure they are held accountable. The need for a strong and
unbiased way to choose judges is still a top priority for India to maintain the
rule of law and ensure the judiciary works well and represents diverse
interests. This could involve changing the collegium system or looking into
other options.”[2]
“The controversy and importance surrounding judicial
appointments to higher courts stem from the fact that the real political
influence on the judiciary primarily occurs there. These courts hold both the
power and duty to rule on the constitutionality of government actions and
interpret the constitution. Therefore, it is essential that judges in these
courts be unbiased, objective, and free from external pressures or biases that
could compromise their ability to make impartial decisions. The scheme of
appointment of Judges is given under Article 124(2)of the Constitution , the
bare perusal of the Article locates the power to appoint the Judges in the
hands of the executive as it states that the superior court judges will be
appointed by the President on consultation with such Supreme Court Judges and
High Court Judges as deem fit by the President and consultation with the chief
justice of India as the necessary caveat in appointment of all judges except
his appointment. And the Judiciary has been given the consultative role.
However, the discussions surrounding the Independence of Judiciary have not
just taken its manoeuvred shape through Supreme Courts Judgements but also has
its roots in the Constituent assembly debates.”[3]
“The tussle to understand where the real power of
appointments should lie whether the executive or the Judiciary can be traced
through the discussion between Poker Sahib and BR. Ambedkar. Poker Sahib
proposed an amendment to enhance the role of the chief justice in appointment
decisions, from a mere advisory capacity to one that requires his approval. He
argued that cases existed where recommendations made by chief justices of high
courts were not forwarded to the Premier but instead were discussed at lower
levels. Poker Sahib sought to ensure that the President not only consulted with
the chief justice on appointments but also obtained his express consent. This
contention was however rejected by BR. Ambedkar on grounds that to give the
power of concurrence to the chief Justice is assuming the fallacy that the
Chief Justice cannot make any wrong decision and placing excessive value on his
soundness of Judgement and impartiality. The chief justice, being human, has
flaws, emotions, and biases like the rest of us. Giving the chief justice the
power to veto appointments effectively transfers this authority to the chief
justice, which is a problematic idea. We are not willing to give this much
power to the President or the current government, so it should not be given to
the chief justice either. This view of Ambedkar was also cited by the counsel
of Union in the Second Judges Case. However, Ambedkar argued against giving the
executive this power, unlike in countries like England and the United States.
Ambedkar emphasized the differences in the Indian political context and
expressed concern that leaving judicial appointments solely in the President's
hands without restrictions could potentially create issues. And therefore a
unique scheme was propounded which required the president to consult the CJI
and other supreme court and High Court Judges, which is reflected under the
language of Article 124 (2) of the Indian Constitution.”[4]
“In
the First Judges case The petitioner argued that
the temporary appointments of additional judges violated Article 224 of the
Constitution and undermined judicial independence. They requested a declaration
that the circular letter regarding these appointments was unconstitutional and
void. Additionally, they sought a writ of mandamus compelling the Central
Government to convert the temporary positions to permanent judgeships in
various High Courts based on the workload and backlogs. It was the first time
the constitutional validity of the appointment of Judges by the Central
Government was challenged claiming such temporary positions will injure the
judicial independence as it will come in the way of the Judges in dispensing
its duty. The discussion circled to the issue that what role does the CJI and
other Judges have during the appointment of the Judges, to which Justice
Bhagwati J clarified that the real power is with the executive and the Justices
are mere constitutional functionaries who should be consulted while making the
appointments of the Judges and consultation does not means concurrence. As if
it would be concurrence then the effect would be give primacy to the views of
the CJI , not just over the executive but also other judges and such a scheme
was not propounded by the Constitution makers. However, this did not give green
flag to the executive to act arbitrarily they have to follow the constitutional
requirement of taking the consultation from the CJI and other judges.[5]
[6]In
the second Judges case the question of consultation was again brought up The 9 judges Bench ruled that opinion of the CJI
should be given prominence and coined the collegium system for the first time,
the composition of such collegium system was still unclear. The Pandian J
Judgement reflecting the majorities view was that They centre around the
superior judiciary's functioning, with the key aims of Reducing the executive branch's excessive
influence in appointing judges and shaping the judiciary's structure. Giving
the Chief Justice of India's opinion greater weight, if not supremacy, in all
judicial matters. Ensuring the judiciary's independence and integrity are
preserved by protecting it from external interference. The majority judgment
also pointed out that primacy should be given to the person whose opinion can
act as an expert opinion and thus clearly giving primacy to the CJIs opinion on
appointments drawing collary to his opinion as that of an experts opinion.This
view was criticised on the ground that collegium system was introduced without
a constitutional amendment , and some called it judicial overreach a step by
the Judiciary to usurp the power of the executive, to bring reign to its own
hat. The union in the judgment also contended that was there really a
requirement of such a power arrangement as the executive have been appointing
the judges with due consultation with only a few exceptional cases where the
consultation was given primacy. [7]
“In the "third judges case" (1998), the Supreme
Court (SC) defined the duties of the collegium and established rules for its
operation. The CJI and the four most senior SC judges would make up the
collegium. Critics have claimed that the collegium system operates in secrecy
because it does not reveal the reasons for decisions or the selection process.
For instance, there have been no recommendations for the SC for the past two
years. Reportedly, this is because Justice R.F. Nariman, a collegium member since
March 2019, insisted on promoting Senior HC Judge Kureshi J first, potentially
due to disagreements among other members. In 2014, Parliament passed the
National Judicial Appointments. Under the Act, the collegium was replaced by a
commission headed by the Chief Justice of India (CJI) that included the two
senior SC judges, the Minister for Law and Justice, and two distinguished
individuals (chosen by the CJI, the Prime Minister, and the Leader of the
Opposition). Its purpose was to involve non-judicial individuals in the
nomination process and to curtail the judiciary's power.
But in 2015, the NJAC was overturned after a Supreme Court petition. The Court found that the NJAC had infringed the judiciary's independence, invoking it once more. India is still the only constitutional democracy in which the judiciary selects its own judges thanks to the revival of the collegium system.”[8]
Composition – “The
primary concern regarding the National Judicial Appointments Commission (NJAC)
is its composition, particularly the selection process. The proposed
composition includes the Chief Justice of India (CJI), two senior Supreme Court
judges, the Union Law Minister, and two other eminent individuals chosen by a
committee consisting of the CJI, the Prime Minister, and the leader of the
opposition or the largest opposition party in the Lok Sabha. Critics argue that
this structure allows the NJAC to operate in secret and make decisions without
providing any reasons or safeguards to ensure that appointments are based on
merit rather than personal connections. This raises concerns that nepotism and
underhanded dealings could influence the selection process.”[9]
“The
purpose was to unhearl the ‘brotherhood’[10]
of the collegium system , but since there are three posts that could be unions
representatives , the Union law Minister and the two other eminent jurists
appointed by the Prime minister , leader of opposition and CJI , the
composition still does not ensure qualifications based on merit and factors of
political influence can still be very well playing in the appointments of the
Judges which could have a hampering effect on the justice delivered by the
Judges based on the principles of independence of the Judiciary and upholding
constitutionalism.”[11]
In the
realm where maximum litigation is against the actions of the government , as
India has adopted a welfare model , its very important to have independent
judiciary for example what if the factory workers want to raise a writ against
the arbitrary action of the administrative authorities , if the judiciary will
not be independent there is a chance that they will enhance the agenda of the
ruling party , which could be exploitation of workers , more hours of work for
developmental purposes or any corrupt agenda and collusion between the judges
and executive will falsify the promise of the constitution to its people by
failing to uphold the fundamental rights and constitutional guarantees.[12]
“The Supreme Court has expressed concern over the delay in
appointing judges recommended by the Collegium. The Court noted that the
government has selectively approved names suggested by the Collegium, even for
transferring judges from one court to another. The Bench emphasized that the
government should not be worried about where a judge sits, especially after
they have already been appointed. The Court warned that they want to avoid a
situation where the Supreme Court or Collegium makes a decision that the
government may not like.”[13]
“A new weaponised method of not allowing certain judges to be transferred to a
particular state , can be considered as a distasteful political effort by the
executive to control the appointments of the judges. What the executive cannot
do directly they are now trying to do indirectly as by sitting on the
recommendations the candidates that they think can ideologically conflict with
the decisions that they want to be delivered are sat on , so that those
recommendations just suffocate and lose their value, this will negatively
impact young lawyers who will the get demotivated to take up the roles of
judges.”[14]
Collegium system is often criticised for its clear lack of
transparency, Transparency can be increased by making the judicial appointment
process open and clear. The collegium system faced criticism for its lack of
transparency because members outside the collegium had no idea about how the
appointments are being made and their reasons for decisions were not made
public. The collegium system needs to go through an overhaul process to make it
in tune with the democratic values of the Indian constitution.
-
“A fair
an a transparent process of appointment of judges – the
procedure of appointment should become fair and transparent at all stages, and
the information to some extent should be made public, so that it can go through
the rigours of public scrutiny , this measure will ensure that no appointment
is made in an arbitrary manner. Like all other institutions of the state the
judiciary should also go through the rigours of the test of arbitrariness, this
will provide for the institutional backing of a system of appointments based in
the rule of law.”[15]
-
“Standard
competency requirements for appointment should be evolved – This will
ensure transparency as the appointments will then have to stand the test of
these standards and cannot be on elusive and arbitrary considerations.”[16]
-
“Diverse
appointments should be the top most priority – The
appointments should be made as diverse as possible. Starting from gender
diversity, the System should ensure that women judges are appointed in
proportionate no.s to their male counter parts. It took 37 years to have the
first female supreme court judge, in the discussion made in the parliament, the
ministry of Justice recorded that till 2009 out of 649 judges there are only 51
female judges in the higher courts. So only about 8 percent and thus steps need
to be taken to ensure diversity is reflected in the appointments which can be
achieved through having one female judge in the collegium who will be involved
in making decisions regarding appointments, a fast track of promotions of the
existing judges of the high courts so that they can be considered for promotion
in the Supreme courts. CJI can also set up a gender task force comprising of
female judges, eminent female jurists, female academicians to work on improving
the appointment of female justices. And law schools should also play a role in
encouraging female students to take jobs in the judiciary.”[17]
-
“Developing
methods to settle the Conflict of Interest – A process should be developed to
ensure that when the collegium includes a panel of judges from a particular
high court considering recommendations of the appointment of judges from that
high court, then a situation of conflict could arise , promoting appointments
not on merits but on friendships, comradery, and brotherhood, another possible
conflicting situation can arise when lawyers who are being considered for
promotion had worked in the junior years in the judges chamber.”[18]
-
New
criteria for the selection of the judges - Considering
all of these points there should be a new crieteria or standard should be
evolved for the appointment of judges apart from the ones that have informally
being recognized. Apart from the constitutional requirements, judges for the
Supreme Court are selected based on additional criteria: Age: Candidates must
be at least 55 years old. * Experience: Candidates should be senior judges of a
high court, or more commonly, Chief Justices of high courts, especially in the
past two decades. Diversity:The composition of judges should reflect the
geographic and, to some extent, demographic diversity of India. These criteria
have developed informally over time and exist alongside the formal requirements
outlined in the Constitution.[19]
-
“The
Collegium has never considered appointing an eminent jurist , academician as a
judge, why has this been under utilised as an option despite being
constitutionally recognised option.
-
Formation
of an independent Judicial office Body – the purpose of which would be
to routinely classify the recommendations, various judgements following a
proper established protocol on the basis of which scrutiny of recommendations
should be done for the final perusal of the collegium , the collegium is
overworked and thus cannot dedicate complete time for the this process and this
will be an important step in governance reform of the process of appointment of
Judges and a way forward towards independence.”[20]
CONCLUSION AND INTERNATIONAL VIEW
“The
recurring theme in the process of assigning judges to the higher courts in most
of the countries is not only that the executive is the entity that makes the
appointments, but also that it is heavily involved in the selection process. In
England, the Lord Chancellor serves in three capacities simultaneously, one of
which is cabinet minister in the government; in Canada and New Zealand, the
executive is significant, however in New Zealand, the Attorney General is the
one who submits the recommendation. This is similarly the case in Australia,
where the Attorney General transmits the name following state-level
consultation with other AGs. The senate, which serves as the executive branch,
has an almost unparalleled role in American politics.”[21]
“India is the only country where the appointment of the judges is the
prerogative of the judges itself by the collegium. India unlike the other
countries had followed a different scheme where the appointment was done with a
balance approach by giving the role of consultation under the Article 124(2) to
the CJI and other supreme court and high court judges as the president may deem
fit.”[22]
“However , this approach was challenged and in the second judges case, and the
word consultation was interpreted to mean concurrence. Now this change has
received both criticism and acclaim from the constitutional law experts ,
jurists and international opinions by the various commentators. Seervai, made a
scornful remark that whether Humpty Dumpty can make the word mean so many
different things , whether a man has can be interpreted to mean what a man
thinks he has , according to him this cannot be done. The ursurption of power
against the constitutional meaning of consultation was it justified was scorned
upon by Seervai.”[23]
“The
dissenting judgement of the second judges case, by Ahmadi and Punchi JJ also
noted that there had likely only been three Supreme Court nominations made
without the chief justice's approval—a figure that was not concerning enough to
overrule the opinions of seven judges in the Judges'. The judges also made
comparisons with other countries appointment system have found that executive
played a major role in appointing of Justices and India has a taken a mid route
of allowing consultation with the CJI, so there was involvement of the CJI so
this move of reading concurrence into consultation was not warranted.”[24]
“The inconsistency in the NCRWC report raises important questions regarding
whether the chief justice's concurrence could have been achieved through a
judicial process of interpretation or if a constitutional amendment was
necessary. The NCRWC report highlights the 67th Constitutional Amendment Bill's
proposed amendment to replace the word "consultation" in the
Constitution with the word "concurrence," but it also acknowledges
that the Second Judges' ruling fulfilled the original intent of the Amendment.
It is obvious that interpreting consultation to mean concurrence seems
contradictory if at one point it was thought that a constitutional amendment
was required to replace the phrase consultation with the word concurrence.”[25]
However,
it has also acquired praises despite the arguments by the Critics that the majority decision broadened the meaning of
"consultation." “Yet, given past attempts by Indian executives to
influence the judiciary and Pakistan's successful efforts to control it, as
well as the challenges faced by U.S. Supreme Court judges appointed by the
President with Congressional approval, the Indian Supreme Court's majority
decision in the Advocates on Record case represents a necessary step to ensure
judicial independence and merit-based appointments, setting a positive
precedent.”[26]
“However, in India we have a collegium system of appointment
of Justices, still has not solved all the problems and have plagued the
judicial appointment system with problems of transparency and nepotism and
brotherhood which needs to reformed and thus governance reform in the collegium
system is required , and the selection process to some extent should stand the
test of public scrutiny.”[27]
[1] Chandra, Aparna, et al. “From Executive
Appointment to the Collegium System: The Impact on Diversity in the Indian
Supreme Court.” Verfassung Und Recht in Übersee / Law and Politics in
Africa, Asia and Latin America, vol. 51, no. 3, 2018, pp. 273–89.
[2] KUMAR, ALOK PRASANNA. “Absence of
Diversity in the Higher Judiciary.” Economic and Political Weekly,
vol. 51, no. 8, 2016, pp. 10–11.
[3] Dewan, Nakul. “REVISITING THE APPOINTMENT OF JUDGES: WILL THE
EXECUTIVE INITIATE A CHANGE?” Journal of the Indian Law Institute,
vol. 47, no. 2, 2005, pp. 199–223
[4]
Ibid.
[5] Supra note 1
[6] Sathe, S. P. “Appointment of Judges:
The Issues.” Economic and Political Weekly, vol. 33, no. 32, 1998,
pp. 2155–57.
[7] Ibid.
[8] Dewan, Nakul. “REVISITING THE
APPOINTMENT OF JUDGES: WILL THE EXECUTIVE INITIATE A CHANGE?” Journal
of the Indian Law Institute, vol. 47, no. 2, 2005, pp. 199–223
[9] “No Cure for the Malaise: A Law
Passed in Haste Will Replace the Flawed Judicial Collegium with yet Another
Flawed System.” Economic and Political Weekly, vol. 49, no. 34, 2014,
pp. 7–7
[10] “Closed Brotherhood.” Economic
and Political Weekly, vol. 44, no. 12, 2009, pp. 6–6.
[11] JAISING, INDIRA. “National Judicial
Appointments Commission: A Critique.” Economic and Political Weekly,
vol. 49, no. 35, 2014, pp. 16–19
[12] Ibid.
[13]
Https://Www.Scobserver.in/Journal/Supreme-Court-Pulls-up-Union-Government-for-No-Response-on-Collegium-Recommendations/.
[14] Roy, Radhika. “Sitting over
Judicial Appointments New Weapon in Executive’s Arsenal?: Gopal Subramanium.”
Live Law, Live Law, 25 Nov. 2020,
www.livelaw.in/top-stories/sitting-over-judicial-appointments-new-weapon-in-executives-arsenal-gopal-subramanium-166396.
[15] KUMAR, C. RAJ. “Future of Collegium
System: Transforming Judicial Appointments for Transparency.” Economic
and Political Weekly, vol. 50, no. 48, 2015, pp. 31–34
[16] Ibid.
[17] Valdini, Melody E., and Christopher
Shortell. “Women’s Representation in the Highest Court: A Comparative Analysis
of the Appointment of Female Justices.” Political Research Quarterly,
vol. 69, no. 4, 2016, pp. 865–76.
[18] Supra note 11
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] KUMAR, C. RAJ, and KHAGESH GAUTAM.
“Questions of Constitutionality: The National Judicial Appointments
Commission.” Economic and Political Weekly, vol. 50, no. 26/27,
2015, pp. 42–46.
[23] H. M. Seervai, III Constitutional
Law of India , 4th ed.
[24] Court vs Government: Independence of
the Judiciary Is Not the Issue in the Current Stand-off; It Is Control over
Appointments.” Economic and Political Weekly, vol. 50, no. 43,
2015, pp. 8–8.
[25] Dewan, Nakul. “REVISITING THE
APPOINTMENT OF JUDGES: WILL THE EXECUTIVE INITIATE A CHANGE?” Journal
of the Indian Law Institute, vol. 47, no. 2, 2005, pp. 199–223.
[26] Lord Templeman, "The Supreme
Court and the Constitution , Oxford Handbook, 2015
[27] “For Justice Concerns Us All: We Need a
Public Debate on Guidelines for Appointing Senior Members of the
Judiciary.” Economic and Political Weekly, vol. 48, no. 32, 2013,
pp. 9–9.
Article Information
JUDICIAL APPOINTMENTS – NAVIGATING JUDICIAL AUTONOMY THROUGH EVALUATING COLLEGIUM SYSTEM AND NJAC
Authors: RIDHI SOMANI
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/15
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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