Judicial Appointments- From Confrontation to Consensus

Right from the days of evolving the Bharat’s constitution, the recommendations for appointment of the Supreme Court and High Court judges were being initiated by the CJI after consultation with his senior colleagues. The judges of Supreme Court and High Courts are appointed by the president as per the provisions in articles 124 and 217 of the Bharat’s constitution respectively.  In 1974 in the case of Shamsher Singh vs. State of Punjab it was held that the approval of the CJI was needed for the appointment of judges to High Courts and Supreme Court.  However, in S.P.Gupta vs. President of India and others (1981 known as first judges case) it was ruled that the executive has primacy over judiciary in the appointments and transfers of the judges. It was also held in this case that the recommendation of CJI can be refused only on cogent grounds and the word in the constitution consultation does not mean concurrence.

Birth of Collegium System

In 1993 in the case of Supreme Court Advocates on Record Association vs. Union of India (second judges case) the bench with a majority of 7:2 held that the independence of judiciary is of paramount importance and this case established the collegiums system in Bharat. It may be interesting to note that the word collegium does not find mention anywhere in the Bharat’s Constitution and this is a creation of the Bharat’s judiciary. In 1998 the then president Mr. K.R.Narayanan made a reference to the judiciary on the interpretation of the term consultation as mentioned in the constitution. The SC then gave detailed clarification specifying nine guidelines as under.

  1. The expression “consultation with the Chief justice of India” in Articles 217(1) and 222(1) of the Constitution of Bharat requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole, individual opinion of the Chief Justice of India does not constitute “consultation” within the meaning of the said Articles.
  2. The transfer of puisne Judges is judicially reviewable only to this extent: that the recommendation that has been made by the Chief Justice of India in this behalf has not been made in consultation with the four senior most puisne Judges of the Supreme Court and/or that the views of the Chief Justice of the High Court from which the transfer is to be effected and of the Chief Justice of the High Court to which the transfer is to be effected have not been obtained.
  3. The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior most puisne Judges of the Supreme Court.
  4. The Chief Justice of India is not entitled to act solely in his individual capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by the Government of Bharat for non-appointment of a judge recommended for appointment.
  5. The requirement of consultation by the Chief Justice of India with his colleagues who are likely to be conversant with the affairs of the concerned High Court does not refer only to those Judges who have that High Court as a parent High Court. It does not exclude Judges who have occupied the office of a Judge or Chief Justice of that High Court on transfer.
  6. “Strong cogent reasons” do not have to be recorded as justification for a departure from the order of seniority, in respect of each senior Judge who has been passed over. What has to be recorded is the positive reason for the recommendation.
  7. The views of the Judges consulted should be in writing and should be conveyed to the Government of Bharat by the Chief Justice of India along with his views to the extent set out in the body of this opinion.
  8. The Chief Justice of India is obliged to comply with the norms and the requirement of the consultation process, as aforestated, in making his recommendations to the Government of Bharat.
  9. Recommendations made by the Chief Justice of India without complying with the norms and requirements of the consultation process, as aforestated, are not binding upon the Government of Bharat.

The Aborted NJAC

On 5 September 2013, the Rajya Sabha passed The Constitution(120th Amendment) bill, 2013, that amends articles 124(2) and 217(1) of the Constitution of Bharat, 1950 and establishes the Judicial Appointment Commission, on whose recommendation the President would appoint judges to the higher judiciary. The critical aspect about the new setup that the Government through the amendment seeks to achieve is the composition of the judicial appointment commission, the responsibility of which the amendment bill lays on the hands of the Parliament to regulate by way of Acts, rules, regulations etc. passed through the regular legislative process. The NJAC (National Judicial Appointments Commission) Bill 2014 was introduced and passed in both the houses of parliament with the 99th constitutional amendment act in August, 2014. The president gave his assent to this bill on 31st December, 2014 and this Act was notified by the government on 13th April, 2015.

By a majority opinion of 4:1, on 16th October 2015, Supreme Court struck down the constitutional amendment and the NJAC Act restoring the two-decade old collegium system of judges appointing judges in higher judiciary. Supreme Court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering of the basic structure of the constitution where parliament is not empowered to change the basic structure. However Supreme Court has acknowledged that the collegium system of judges appointing judges is lacking transparency and credibility which would be rectified/improved by the Judiciary and left the task of preparing the Memorandum of Procedure (MOP) to the central government.

One of the five-member bench, Justice Jasti Chelameswar, differed from the majority opinion and wrote a strongly-worded dissent against the collegium system that the judgment effectively restored. Chelameswar was the lone judge in the Bench to uphold the validity of the NJAC, arguing that to entirely eliminate the government from the selection process was against the country’s democratic principles. The top five things he said in his note are as under:

1) “Transparency is a vital factor in constitutional governance….Transparency is an aspect of rationality. The need for transparency is more in the case of appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks.”

2) Assumption that “primacy of the judiciary” in the appointment of judges is a basic feature of Constitution “is empirically flawed.”

3) There were cases where the apex court collegium “retraced its steps” after rejecting recommendations of a particular name suggested by the High Court collegium giving scope for a great deal of “speculation”.

There is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this Court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.

4) “To hold that it (government) should be totally excluded from the process of appointing judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy,” he said, adding Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances – a fundamental principle in Constitutional theory.

5) “For all the above mentioned reasons, I would uphold the Amendment. However, in view of the majority decision, I do not see any useful purpose in examining the constitutionality of the Act,” Justice Chalameswer said.

MOP a Tug of war between the Judiciary and the Government

The MOP is yet to be finalized since both the judiciary and the central government are having disagreement on certain important clauses in the draft MOP and both are yet to arrive at consensus. These clauses are –

(i) rejection of a candidate’s selection on the grounds of national security and overriding public interest, which the government wants to keep confidential and share it only with the CJI in view its sensitivity.

(ii) creation of a secretariat for clearing the names for judges, forming a committee of judges who were not part of the collegium to screen complaints against sitting judges.

(iii) having a search and evaluation committee for selecting candidates.

Judiciary is not agreeing to the government’s stand on point (i). Whereas, the judiciary appears not to be in favour of implementing the points (ii) and (iii).  The judiciary feels its supremacy will be undermined by yielding to the government’s stand on these clauses but this will only result in bringing greater transparency and public accountability of the judiciary and avoid occurrence of unpleasant instances like that of four senior most judges of Supreme Court openly airing their views on 12th January, 2018 through a press conference alleging the administration of the apex court was not in order.

Pending of finalization of MOP is also causing delays in the appointment of the judges to Supreme Court and High Courts. As on 1.5.2018 there are 6 Judges vacancies in the Supreme Court as the apex court is functioning with a strength of 25 Judges as against the total strength of 31. There are 239 vacancies in 24 High Courts for the permanent Judges posts and 174 vacancies for the additional Judges posts that are yet to be filled up and 8 High Courts are functioning with acting chief Judges.

While one agrees there is a need to bring in greater transparency in the present collegium system there has to be consistency and greater objectivity in the process of appointment of the judges which is possible only when the judiciary and the government come to a consensus. Though the three organs of the government- executive, legislature and judiciary function independently there has to be cohesiveness in their functioning and this is possible only through collaboration but not by confrontation. Let us hope the draft MOP will be finalized shortly to put an end to the confrontation between the judiciary and the executive and will lead to greater transparency, consistency and objectivity in the appointment of the judges to Supreme Court and High Courts in Bharat.

Referenes-

http://www.lawyersclubindia.com/articles/The-Collegium-system-Pros-and-Cons-8427.asp

http://www.business-standard.com/article/current-affairs/njac-judgment-5-things-justice-jasti-chelameswar-said-in-his-dissent-115101700188_1.html_

http://doj.gov.in/appointment-of-judges/vacancy-positions

http://www.livelaw.in/breaking-sc-issues-guidelines-to-improve-the-collegium/


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About the Author

B.N.V. Parthasarathi
Ex Senior Banker, Management and Financial Consultant, Visiting faculty at premier B Schools and Universities. E mail- [email protected]