Judicial Independence and Collegium System

Judicial independence is the cornerstone of the constitutional democracy in India. The State shall take steps to separate the judiciary from the executive in the public services of the State.[1] Judicial Independence means independence of Judiciary from executive and legislative control. In a democratic setup like ours there is distribution of powers between different three organs of the government (legislature, executive and Judiciary). Under the aegis of our constitution judiciary is independent from the control of the executive meaning thereby Judiciary can uphold the justice without acting in hand to hand with executive. The importance of Judicial Independence can be summarized in the words of N A Palkivalva he says and I quote “if the whole chapter of fundamental rights is deleted no much damage

is caused to democracy and civil rights and its effect is not so greater than it would ensure from flagrant erosion of judicial independence.” Let me explain judicial independence with help of an example “if a citizen A is aggrieved by an Act of Parliament say citizenship Amendment Act, 2019, it is impossible to get justice if the judiciary acts in hand to hand with the executive”. The constitutional courts in India have, on the whole, gradually moved away from strict legalism and restraint to judicial activism in the post-Nehru era. In adjudication, the courts have, over time, avoided a consistently strict federalist or statist interpretative position. Its judgments reflect a mixed and often non-partisan appraisal of the union that is sensitive partly to the constitutional text and partly to the changing contexts and times. Indeed, one analyst has argued that in the era following the1989 election and the demise of Congress Party dominance, “the Indian Supreme Court has struggled to develop neutral constitutional rules that prevent the conflation of partisan political motivations with constitutionally valid federal interests.”[2]

In the modern democratic setup strict compartmentalization of powers is not possible but the doctrine of checks and balances has to maintained at any cost because if the checks and balances gets disturbed there is probability that the entire constitutional setup shall fail. Unlike, the American constitution we did not have three fold distribution of powers. In our country we have Minister (part of executive), the member of legislature, so he is acting in dual capacity being a part of executive as Minister and simultaneously the member of popular house as a legislature. Except Article 50 there is no other express provision in the constitution which contains the provision related to independence of judiciary. However, independence of judiciary is imbibed into various provisions of constitution like Articles 124, 217, 125(2), 32, 138, 129, 215. Article 124 and 217 gives judges’ security of tenure and appointment. Article 125(2) Salaries of judges fixed not subject to vote of legislature. Article 138 provides that parliament can extend but cannot curtail the jurisdiction of Supreme Court. Article 32 gives power to the Supreme Court to issue writs on the abridgement of fundamental rights. Article 121 provides that no discussion in legislature on the conduct of any judge. Articles 129 and the 215 gives power to the Supreme Court as well high court respectively to punish any person for its contempt. These provisions envisaged in the constitution gives full and complete independence to the judiciary from the influence of the executive. The apex court in the famous case of S.P Gupta[3] 1981 held that the concept of independence of judiciary is a basic feature of the constitution, a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle, which runs through the entire fabric of the constitution, it is the principle of the rule of law and under the constitution; it is the judiciary which is entrusted with the task of keeping every organ of the state with the units of law and thereby making the rule of law meaningful and effective.

Collegium System

Unlike the British and American Constitution, the Indian Constitution provided for a method of appointment that neither gives the executive absolute authority (which the British model does) nor does it permit the Parliament to have any role in the appointment (American model of appointment) that involves a possibility of subjecting judicial appointments to political pressure. The text of the Constitution postulated a consultative and participatory process which unfortunately has not been adhered to and therefore the inherent check necessary for the maintenance of balance between the institutions exercising the power has been obfuscated. The fallout is that the power to appoint judges has flip-flopped between the executive and the judiciary. In the second judges’ case (1993), this power to appoint judges of the Supreme Court and the High Court’s has come to vest in a collegium of judges and, the executive’s role was effectively obliterated. This is how India became the first and probably the only country where judges acquired democratic political power to appoint judges through judicial interpretation of the constitutional text. The union executive is now bound by the decisions of the collegium, and if it has a view different from that of the collegium, it can send it back to the collegium with the reasons, asking for reconsideration. But if the collegium reaffirms its recommendation then the central government is bound to accept it. Because, no timeline is prescribed during which the President of India needs to sign the warrant of appointment of the judges, the central government delays the judicial appointments taking the advantage of this loophole. Since its conception, the Supreme Court collegium has been functioning in an “opaque” and “non-transparent” manner. Increasingly greater reliance was placed on the principle of qualitative worthiness of a judge as opposed to a more objective parameter. But it never assigned any credible parameters for decrypting one judge more worthy than the other. In absence of any transparency, nobody knows whether collegium undertakes the examination of judgments rendered by those for consideration for either appointment or confirmation. If it takes into account then what is the weightage given to it and whether all judgments are taken into account or recent judgments?

The collegium system has not been provided in the constitution of India. It is a judicial craft and Supreme Court of India has evolved this procedure for the appointment of Supreme Court and high court judges. The Supreme Court in landmark judgment declared the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act void and unconstitutional. The apex court has upheld the values of constitutionalism and independence of judiciary, which is a part of the “basic structure” of the constitution. In a “collective order” a constitution bench of Justices Khehar Singh, Chelameswar, Madan B Lokur, Kurian Joseph and Adarsh Kumar Goel invalidated the 99th Constitution Amendment and the NJAC Act. The decision of a court was based upon a deeper recognition and understanding of the role of judiciary within the Indian democracy. The decision is most compelling and is an appropriate one for definite reasons.[4] The makers of our Constitution envisaged a judiciary absolutely independent from influences of the legislature and the executive. The Supreme Court carefully examined Article 124(1) of the Constitution, which provided for the NJAC. There have been many decisions in the past, which have reinforced the fact that the independence of judiciary is a basic structure of the Constitution. The Court was convinced that the NJAC with three judges of the Supreme Court and three other members who are not expected to belong to the judiciary are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of judges. The same are accordingly, violative of the principle of ‘independence of judiciary.[5]

There is little doubt that the collegium system for appointing judges to the higher courts in the country has been fraught with significant problems. This landmark judgment has provided an opportunity for the Court to be both self- critical and reflective in addressing the most important challenge of ensuring greater transparency and integrity in the appointment of judges. Transparency can be promoted by making the process of appointment of judges democratic in nature. Complete lack of transparency was one of the significant drawbacks of the collegium system. Nobody outside the system knew as to why some judges were appointed and some others were rejected.

Recently, the Law Minister Kiren Rijiju blames collegiums system for high pendency of cases, judicial vacancies. The law Minister remarked “I don’t want to say much as it may seem like the government interfering in the Judiciary. But the spirit of the constitution says it is the government’s right to appoint judges” After this statement by the law Minister there has been hue and cry that the government is likely to reinstall NJAC system. The law Minister also remarked that collegium system is alien to our constitution and said that there is no express provision in the constitution which provides for the collegiums system.

 In an exclusive interview with the eminent constitutional lawyer Arvind P Datar, senior Advocate, taken by Manu Sebastian, Managing editor of LiveLaw, on the topic of judicial appointments and collegium system.[6] In an interview senior Advocate Arvind Datar says that collegiums system is the best available option for appointment of judges.

Suggestions to reform collegium

To make collegium more democratic the parliament should enact the law which is constitutionally valid for the appointment of judges. The credibility of the judiciary is indeed at stake and it has to get its act together with a view to addressing some of the central questions that all stakeholders in the justice system are asking. What steps will the judiciary take with a view to reforming the existing collegium system? What will the Supreme Court do to ensure that the collegium system is significantly transformed with a view to infusing transparency and procedural fairness in the selection of judges to the High Courts and the Supreme Court? How will the judiciary restore the faith of all actors in the legal system that judicial appointments will take place through a selection process that will withstand legal and constitutional scrutiny? These are questions that ought to be asked by the members of the collegium as much as by other judges of the Supreme Court as they work towards restoring the credibility of the judicial appointments process.

[1]. Article 50 of the constitution of India, 1950

[2].TEWARI, MANISH, and REKHA SAXENA. “The Supreme Court of India: The Rise of Judicial Power and the Protection of Federalism.” Courts in Federal Countries: Federalists or Unitarists?, edited by NICHOLAS ARONEY and JOHN KINCAID, University of Toronto Press, 2017, pp. 223–55. JSTOR, http://www.jstor.org/stable/10.3138/j.ctt1whm97c.12. Accessed 15 Jan. 2023.

[3]. S.P Gupta v. Union of India, 1981 Supp SCC 87

[4]. KUMAR, C. RAJ. “Future of Collegium System: Transforming Judicial Appointments for Transparency.” Economic and Political Weekly, vol. 50, no. 48, 2015, pp. 31–34. JSTOR, http://www.jstor.org/stable/44002895. Accessed 15 Jan. 202

[5]. Ibid

[6]. https://www.livelaw.in/top-stories/collegium-system-necessary-for-an-independent-judiciary-arvind-datar-full-transcript-of-interview-217120

Author: Umar Bashir

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