Understanding the Appointment of Judges to the Higher Judiciary: From Collegium to NJAC and beyond

By | February 10, 2019
Jurisprudence: Meaning, Importance and Indian Perspective

Introduction

How judges are appointed is a matter of extreme legal importance to a country. This appointment procedure is directly linked to the redressal of the citizens’ grievances; a non-partisan and transparent mechanism ensures speedy, efficient and satisfactory delivery of justice. Beginning with a description of the constitutional procedure for appointment of judges, this article goes on to address the structure followed at present and the controversies related to the same.

Constitutional Procedure: Articles 124 and 217

Under Article 124 of the Constitution of India, ‘every judge of the Supreme Court shall be appointed by the President 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’.[1] In case of the appointment of a judge other than the Chief Justice, the CJI must be consulted. Apart from being a citizen of India, further qualifications include:

(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or

(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or

(c) is, in the opinion of the President, a distinguished jurist[2]

Similarly, for the appointment of judges in the High Court, Article 217 prescribes that every Judge of the High Court shall be appointed by the President 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 concerned.[3] Apart from being a citizen of India, further qualifications include:

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession;[4]

Evolution of the Collegium Model

Despite this clear constitutional mandate, the actual appointment of judges in our country remains a complex procedure. And this complexity arises due to the word ‘consultation’ in the Constitutional articles. There has been a constant tussle between the executive and the judiciary on matters of appointment. As long back as 1958, the 14th Law Commission Report under the chairmanship of India’s first attorney general MC Setalvad, noted that several appointments were made on the basis of ‘political, regional or other grounds’, as a result of which the fittest men were never appointed.[5]

 

Judges

The appointment of judges to the higher judiciary has been a constant source of conflict. Image credit: IndianExpress

Later, a series of three judicial cases popularly referred to as the ‘Three Judges Cases’ helped in the development of the modern collegium system. The first case was SP Gupta v Union of India (1981) which held that ‘consultation’ in the Constitution did not mean ‘concurrence’ and in case of a dispute between the executive and the judiciary, the position of the former shall prevail.[6] After 12 years, in 1993 the Second Judges case ‘Supreme Court Advocates-on-Record Association v Union of India’ overruled the earlier ruling. This decision gave primacy to the final opinion of the Chief Justice and also stated that ‘the process of appointment of judges to the Supreme Court and High Court is an integrated participatory consultative process’. It held that the opinions of two senior-most judges must be taken by the CJI while appointing judges.[7]

Post this decision, the CJI made a few unilateral appointments and the role of the President was reduced to giving mere approvals. Ultimately, in 1998, replying to the presidential reference issued by the then President K.R. Narayanan, the SC laid down the collegium system as followed today. A collegium comprising of four senior-most judges of the Supreme Court, headed by the CJI was to decide on appointments. In case no one from the collegium is to succeed the CJI, then the judge who is to do so must be included in the consultation process.[8]

Criticism of the collegium model

The collegium system has come under a lot of flak over time. Main reasons for the same are lack of transparency and accountability in this mechanism. The consultation is limited to members of the judiciary, and the opinion of the other pillars of democracy is not taken into account. Members of the legislature are elected by direct participation of the people and Members of the executive are nominated by indirect public participation. No such framework exists for the judiciary, and hence the current system has been termed as ‘closed brotherhood’.[9]

In comparison, the US follows a process wherein the judges are appointed by the President in consultation with the Senate.[10] In the UK this is done by the Judicial Appointments Commission (JAC), a body comprising of 15 members, out of which three are from the judicial backgrounds and the remaining are elected through open competition.[11] These systems are far more participatory and popular than the collegium system and the secrets it encompasses.

The collegium system allows for favoritism wherein appointments on grounds of common interests and biases are not a rare phenomenon. Moreover, the process is lengthy and hence does not solve the problem of vacancies in the lower and higher judiciaries. This further aggravates the pendency of cases in the judiciary. Also because the collegium is not answerable, there are cases where merit is not given due importance in the course of appointments. In conclusion, democracy is under peril in such an arrangement.

Introduction and subsequent striking down of the NJAC Act

To modify this trend, the NDA government in 2014, brought about the Ninety-Ninth amendment bill for the introduction of a National Judicial Appointments Commission (NJAC). This bill was passed by both the houses in quick succession and became an act on the 31st of December, 2014. The NJAC was to replace the collegium system of judicial appointments with a more inclusive structure. The commission was to comprise of six members:  the Chief Justice of India as the Chairperson, two other senior most judges of the Supreme Court, the Union Law Minister, and two eminent persons to be nominated by a collegium of the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.[12]

This tale took a major twist when the Supreme Court, in deciding a PIL on the constitutional validity of the Act, struck the Act down and re-enforced the collegium model. The NJAC model was held to be violative of the ‘basic structure’ doctrine as the independence of the judiciary, enshrined under the Basic Structure, would be infringed by the involvement of the Executive. Moreover, the primacy of the Chief Justice’s opinion would be curtailed under this new mechanism.

Despite ruling against the NJAC model, it was a welcome move when the Bench admitted that all was not well with the system, with Justice Kurian Joseph remarking, “… the present collegium system lacks transparency, accountability, and objectivity. The trust deficit has affected the credibility of the collegium system, as sometimes observed by the civic society. Quite often, very serious allegations and many a time not unfounded too, have been raised that its approach has been highly subjective.

Deserving persons have been ignored wholly for subjective reasons, social and other national realities were overlooked, certain appointments were purposely delayed so as either to benefit vested choices or to deny such benefits to the less patronized, selection of patronized or favored persons were made in blatant violation of the guidelines resulting in unmerited, if not, bad appointments…[13]

Towards change

This admission of loopholes by the judiciary was no less than a landmark move. It showed an inclination towards a democratic atmosphere both within and outside the collegium. Giving effect to this impulse to change; soon after, the Constitution Bench asked lawyers involved in the case to propose suggestions on four counts: transparency, eligibility criteria, a Secretariat to assist the collegium and dealing with complaints against persons being considered for appointment.[14]

The participants in the discussion harped on more accountability and increase in receptiveness of the collegium to the opinions of lawyers. Justice Kurian Joseph also made reference to the concepts of ‘glasnost’ (openness) and ‘perestroika’ (listen) to ensure open consultation and wider dissemination of information.[15] This course of action shows a positive acknowledgment of transformation.

One of the most pertinent examples of change in long followed traditions was the introduction of the subject-wise roster system. Last year in January, four senior-most judges of the Supreme Court, Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Joseph held a press conference to tell the nation that ‘things less than desirable’ were happening in the Supreme Court; they had written a letter to the Chief Justice of India, Dipak Misra mainly pertaining to the assignment of matters.[16]

The letter aimed to address the ‘abuse of power of the master of the roster’, that is the power of the Chief Justice of India in referring extremely important matters to benches of his preference. Soon after, in an attempt to address these grievances, the subject-wise roster system was introduced. This clearly lays down which judge will decide on what matters.[17]

Judges

Then CJI Dipak Misra introduced a ‘subject-wise’ roster system, Image Credit: The Hindu

Conclusion

Taking a cue from this, we can conclude that the Supreme Court is not a place insulated from the conflict of power. The acceptance of faults in the collegium system, a major change through the introduction of the ‘subject-wise’ roster system, open challenge by the legal community, media, and the public; all are indications that a movement might be made towards a change in the way judges are appointed to the higher judiciary. Would the collegium system be continued? Or would there be an introduction of application-based nomination to the posts of judges? With a plethora of changes being introduced by the apex court the last year, a change in the appointment mechanism would not be an unexpected move.


By – Tanishka Goswami

National Law University, Delhi


Sources

[1] The Constitution of India 1949, Art. 124(2)

[2] ibid Art 124(3)

[3] The Constitution of India 1949, Art 217(1)

[4] ibid Art 217(2)

[5] KC Sen, “The Law Commission Report”, 11 (1959) EPW 3

[6] SP Gupta v. Union of India 1981 Supp SCC 87

[7] Supreme Court Advocates-on-Record Association v Union of India 1993 4 SCC 441

[8] Special Reference, No. 1 of 1998, 7 SCC 739

[9] “Closed Brotherhood” Vol. 44, No. 12 (2009) EPW 6

[10] “Judgeship Appointments by President” (United States Courts) < https://www.uscourts.gov/judges-judgeships/authorized-judgeships/judgeship-appointments-president> last accessed on 10 January 2019

[11] “Appointments and Diversities” (Courts and Tribunals Judiciary) < https://www.judiciary.uk/about-the-judiciary/judges-career-paths/appointments-diversity/> last accessed on 10 January 2019

[12] Prianka Rao, “Rethinking Judicial Appointments: Collegium v Commission” (PRS India Blog)  <http://www.prsindia.org/theprsblog/rethinking-judicial-appointments-collegium-vs-commission> last accessed on 10 January 2019

[13] Supreme Court Advocates-on-Record Association and Another v Union of India AIR 2015 SC (Supp) 2463

[14] Live Law News Network, “SC initiates steps to improve Collegium System; But Justice Khehar says “no wholesale change” https://www.livelaw.in/sc-initiates-steps-to-improve-collegium-system-but-justice-khehar-says-no-whole-sale-change/> last accessed on 11 January 2019

[15] ibid

[16] Apoorva Mandhani, “Change of Roster in Supreme Court as New Judges Appointed”, < https://www.livelaw.in/change-of-roster-in-supreme-court-as-new-judges-appointed/> last accessed on 11 January 2019

[17]Outlook Web Bureau, “Supreme Court Introduces Subject-Wise Roster System, Which Tells Who Will Hear Which Case” < https://www.outlookindia.com/website/story/supreme-court-introduces-subject-wise-roster-system-which-tells-who-will-hear-wh/307677> last accessed on 11 January 2019


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