“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing.”
- Caroline Kennedy
Historically the collegium system has been subject to a significant criticism not only by the members of the ruling party or the executives but also by learned intellectuals. In this article we shall be discussing about the justiciability of the collegium system of India and highlighting arguments for its prevalence in the existing judicial system. The article shall be discussing how subjectiveness of opaqueness of the system is necessary of the preservation of autonomy of the judiciary and shall be proposing a suitable alternative to give a perspective as to mitigate the existing loopholes in the collegium system. Before going into the recent controversy in which it is involved it would be better to know about the Collegium System of India and judicial nomination via the system.
How does the Collegium system of India Works?
Supreme Court
Considering the incumbent Chief Justice of the Supreme Court’s term is nearing its end but hasn’t ended yet, The Cabinet Law and Justice Minister seeks the advice of the outgoing CJI regarding the nomination of the next CJI. Conventionally, the senior most judge of the Supreme court shall be prioritized to be nominated but if doubt seems to exist regarding the eligibility of the senior most judge of the Supreme Court for the position of CJI then then then the outgoing CJI shall consult with other judges regarding the nomination of the next CJI. Then the Cabinet Law Minister sends the recommendation, put up by the CJI to the Prime Minister who shall advise the President on the regarding the nomination[1].
The proposal to nominate a judge of the Supreme Court is initiated by the CJI, upon anticipation of a vacancy in the court, which is put forward to the Cabinet Minister of Law. The CJI’s opinion regarding the nomination of a judge to the apex court shall be formed in consonance with the collegium comprising of four senior-most judges of the Supreme Court. If the new CJI is not a member of the collegium, then he shall be made a part of the collegium. The CJI shall consult the contentions of the senior most judge of the apex court who has served in that High Court from where the nominated judge is coming from. The opinion of each of the member of the collegium and the senior most ex-judge of the high court from where the nominated candidate comes shall be recorded in writing. Finally, upon receiving the recommendation from the CJI, the Cabinet Law Minister sends the recommendation to the Prime Minister who shall further advise the President on the nomination.[2]
High Court
Similarly for high courts the proposal for nominating the chief justice to a high court a proposal is initiated by the CJI[3]. The CJI sends his recommendation for the nomination of a judge in the high court as chief justice of the same after due consultation with the two most senior judges of the supreme court who have served in the concerned high court for determining the eligibility of the high court. Upon receiving the recommendation. The Cabinet Law Minister seeks he opinion of the state government where the concerned high court is based. Then the Minister submits the recommendations and all relevant opinions to the Prime Minister wo advise the President regarding the nomination[4].
Addressing the Law Minister’s statements
Recently the Cabinet Minister of Law and Justice, Kiren Rijiju questioned the constitutional validity of the collegium system by terming the system as “alien” to the constitution.[5] According to him there was no constitutional provision that explicitly prescribed the provisions of the collegium system. He stated that the government through the Union Law Minister merely signed on the recommendation put forth by the CJI after consultation with members of the collegium as if it was just a formality and had no role in the selection of judges to the court. He termed the working of the system as opaque, unaccountable and not transparent as it was solely based on discretion of judges. But isn’t that what segregation of powers and independence of the judiciary means? Members of the ruling party who are frequently accused of voicing objections to the collegium’s operation have consistently referred to it as “opaque.” Is this true, or is it only the ruling party that finds the working to be unclear? Where would the phrase “separation” exist in the exercise of powers if the executives were involved in the nomination or removal of judges?
“Article 50” of the Indian Constitution states that the government shall see to it that judiciary is free from the executives while public functions are being carried out by the government[6]. Separation of power although not explicitly mentioned, but is the present “basic structure of the constitution” which cannot be questioned. If there is role of executives or the government in appointments and transfers of judges, then there would obviously exist a huge scope of misuse of powers in the same. The Government would naturally favour judges who would never question there moves and appoint judges who will deliver judgements in favour of the government. To an extreme possibility there would be no institution in the country to ‘check’ the powers of the other two wings of power and this would naturally give birth to an immense accumulation of power in the hands of the government which would give rise to electoral autocracy. There have been instances in history of Indian governance where the central government has tried to transgress powers beyond its limits and producing a scope of involvement of the executive in the judiciary will be highly lethal to the democratic nature of this country. There is very less scope of opaqueness in the nomination of judges to the SC as a majority of the duly recorded votes among the members of the collegium determines the selection of the candidate to the vote, where the value of the vote of the CJI is equal to the value of the votes of other members of the collegium as laid down by the “SC AOR association vs Union of India 1993” (Second Judges case)[7]. Mr. Rijiju also exclaimed the fact that the judiciary and the executive shall work together for a smoother function of functioning of the state, but one may reasonably argue, that to work in tandem with the judiciary, the executive need not have an active role in the judiciary’s nomination
and transfers; cooperation is very favourable within the existing system as well. As rightfully said by the CJI DY Chandrachud, that “no constitutional machinery is hundred percent effective and judges are faithful soldiers guarding and interpretating the constitution. We need to work within the existing framework of the government until we have an equally competent framework to administer the judiciary”[8].
The National Judicial Appointment Commission Act 2014
However, it is not that the Collegium system has not been tried to be replaced in the past. In 2014, The Parliament along with the “99th Constitutional Amendment” passed the “National Judicial Appointment Commission Act (2014)” with the intention of providing a better alternative against the collegium system for rejuvenating the appointment mechanism of Supreme and the High Courts in India. According to the Act, “The Central Government may appoint such number of officers and other staff for the fulfilment of tasks of the Commission under this Act in consultation with the Commission.” Clause (3) says “The Secretary to the Government of India in the Department of Justice will serve as the Convenor of the Commission.” It appeared that, the commission’s only members were the executives chosen by the centre. Going through Section 5, 6, 9 and 10 of the acts concludes that the though the appointment and transfer mechanism of the commission was highly similar to that of the collegium but the discretion was completely of the commission’s and hence again this system provided a huge scope of misuse of powers by the Centre thereby undermining the autonomy of the judiciary of the country[9].
Eventually, A five-judge bench of Supreme Court in 2015 ruled out the ‘National Judicial Appointment Commission Act (2014)’ with 4:1 majority declaring that the judiciary would be entangled web of indebtedness towards the executives and that the Act sought to give too many powers to the politicians and conferring them the discretion to appoint judges which was a threat to their autonomy.[10]
This was an effort again to create an alternative outside the scope of the judiciary to reform the judicial appointment mechanism of the country that eventually ended up as a failure.
Proposing a suitable alternative
The executive members of the ruling party have traditionally made the claim that other nations do not have a system like the collegium and that as a result, democracy is not hindered there, with the intention of proving that a democracy can still function successfully in the absence of a collegium system. The author was interested by this to search for alternatives for judicial nominations in democracies that were allegedly operating better than ours. Let’s examine the English system for appointing judges. The “Judicial Appointment Commission,” which consists of 15 members, including the chairman, and is chosen through an open recruitment procedure, is in charge of appointing judges to courts, tribunals, and judicial offices in England and Wales. The judiciary, the legal community, those who hold judicial officer positions but are not attorneys, and members of the general public make up the membership of the Commission. This resulted from the “Constitutional Reform Act of 2005”, which strengthened the judiciary. This was unquestionably a success because it not only chose judges based on merit but also preserved the freedom of the judiciary by not including executives in the decision-making process.
If the Indian government in some point in the future decides to appoint a body for selection and transfer of judges then it shall try to compose the body with judicial officers who are selected on the basis of a free and fair competition, giving a way for merit instead of involving executives and politicians in the body.
Conclusion
French Philosopher Montesquieu said that when there is an accumulation of both powers, executives and judiciary, in a single hand, liberty can never cease to exist. The collegium system has to resist an attempt towards denigrating it’s a power by involving the executive in a administration of the judiciary. It is not to be said that the collegium is a perfect mechanism for nomination and transfer of judges in the country but unless an equally competent judicial institution is invented that ensures limited involvement of the government while ensuring the full independence of the judiciary, the state needs to work and cooperate within the existing framework to ensure delivery of justice in the country. The reformation of the Collegium System shall only be done in accordance with the respected judges of the Supreme court with assistance from the central government that ensures non-interference of executives and politicians while at the same time improvising the selection process by bringing in more transparency and accountability. The author has proposed a suitable alternative by citing the example of England to give a perspective how merit can be prioritized instead of involving executives to introduce accountability and transparency to system.
[1] “Constitution of India,”available at: https://www.constitutionofindia.net/constitution_of_india/the_union/articles/Article%20124 (last visited December 14, 2022).
[2] “Department of Justice | India,”available at: https://doj.gov.in/ (last visited December 13, 2022).
[3] “Memorandum of procedure of appointment of High Court Judges | Department of Justice | India,”available at: https://doj.gov.in/memorandum-of-procedure-of-appointment-of-high-court-judges/ (last visited December 12, 2022).
[4] “Constitution of India,”available at: https://www.constitutionofindia.net/constitution_of_india/the_states/articles/Article%20217 (last visited December 14, 2022).
[5] “rijiju: Collegium system alien to Constitution: Kiren Rijiju – The Economic Times,”available at: https://economictimes.indiatimes.com/news/india/collegium-system-alien-to-constitution-kiren-rijiju/articleshow/95771585.cms (last visited December 12, 2022).
[6] “Constitution of India,”available at: https://www.constitutionofindia.net/constitution_of_india/directive_principles_of_state_policy/articles/Article%2050 (last visited December 13, 2022).
[7] “Search Result,”available at: https://scc-nluo.refread.com/Members/SearchResult.aspx (last visited December 13, 2022).
[8] “Collegium: CJI DY Chandrachud says no institution perfect in Constitutional democracy; judges faithful soldiers who implement Constitution,”available at: ‘https://www.barandbench.com/news/collegium-cji-dy-chandrachud-no-institution-perfect-constitutional-democracy-judges-faithful-soldiers-who-implement-constitution’ (last visited December 13, 2022).
[9] “A2014-40.pdf,.”
[10] “Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1”
Author: Digvijay Khatai
Juris Centre 