The system of appointing and transferring judges, known as the collegium system, has evolved through a series of Supreme Court judgments and is not governed by any constitutional provision or law. The collegium system is often referred to as the “Judge-selecting-judge” system. Starting from 1993, the appointment of judges to the higher judiciary in India has been the responsibility of a collegium of judges rather than the executive branch. This decision to establish the collegium system was made through a judicial ruling in 1993[1], which has since been strengthened by two other judicial decisions in 1999[2] and 2015[3]. Article 124(1) of the Constitution provides for the appointment of judges through the recommendation of the Chief Justice of India, while the collegium, consisting of the Chief Justice of India and four other senior judges, is responsible for appointing judges to the Supreme Court and High Court with the approval of the President. The President is required to consult with other judges before making appointments under Articles 124(2) and 217, and the government has a limited role in the collegium’s choices.
The independence of the judiciary is an integral pillar of democracy, ensuring the rule of law and the protection of fundamental rights. In India, the judiciary is regarded as an independent and impartial institution, but the appointment process of judges has been controversial and debated for several years. The appointment of judges is a complex process that involves a series of consultations and recommendations by various authorities. However, this process has often been criticized for being opaque, non-accountable, and subject to executive interference.
To address these concerns, there have been several calls for a reformative approach toward the appointment of judges and ensuring the independence of the judiciary in India. Such an approach would require greater transparency, accountability, and participation from all stakeholders, including the judiciary, the executive, and the public. The adoption of a merit-based selection process, with the inclusion of a diverse pool of candidates, would also ensure the appointment of qualified and competent judges.
In this article, we will explore the current state of the appointment of judges in India, the challenges faced, and the need for a reformative approach. We will also examine the potential benefits of such an approach, including enhanced public trust and confidence in the judiciary, greater efficiency and effectiveness of the justice system, and the protection of the rule of law and fundamental rights.
EVOLUTION OF THE APPOINTMENT OF JUDGES
During the process of drafting the Constitution, numerous suggestions were put forward for how judges should be appointed to the Supreme Court and the High Courts. The framers were concerned that the appointment process should result in the selection of the most qualified candidate while maintaining judicial independence from the other branches of government. Different proposals were considered, including having the President make appointments independently, requiring appointments to be confirmed by one or both Houses of Parliament, forming a panel of members from various branches of government to select judges, or giving the Chief Justice of India the power to veto appointments.[4] However, the final framework that was adopted in the Constitution called for the appointment of Supreme Court judges to be made by the President, with the advice and guidance of the Council of Ministers, and after consulting with the Chief Justice of India. Additionally, the President could seek the opinions of other Supreme Court and High Court judges at his discretion.[5]
The controversy surrounding the appointment of judges has its roots in the case of J. Zafar Imam in 1968, when he was not appointed as the Chief Justice of the Supreme Court despite being the senior-most judge at the time, due to concerns about his physical and mental health. This issue resurfaced in 1973 when Justice A.N. Ray, who was fourth in the order of seniority, was appointed as the Chief Justice of India, resulting in the resignation of three senior judges in protest (Justice Shelatt, Justice Grover, and Justice Hegde). The government cited the 14th Law Commission’s recommendation, which criticized the practice of appointing Chief Justices based solely on seniority, arguing that a Chief Justice should possess both judicial and administrative skills.
In 1976, Justice Beg was appointed as Chief Justice by the Government, bypassing Justice Khanna, who was more senior at the time. Justice Khanna believed that the reason for this appointment was his dissenting opinion in the Habeas Corpus case, as he mentioned in his autobiography. He also noted that he had a premonition that he would never be appointed as Chief Justice, which came true. After Justice Beg retired, the most senior judge, Justice Chandrachud, became Chief Justice and since then, the rule of seniority has been followed for appointing the Chief Justice of India. However, in the case of Union of India vs. Sankalchand Seth in 1977[6], the Supreme Court ruled that the President has the right to differ from the advice given by the consultants when appointing judges. The Constitution of India does not provide a clear provision on whose opinion is to be given priority in the appointment of judges. This issue has been considered by the Supreme Court in several cases after Sankalchand’s case.
THE JUDGE’S CASE WITH INDEPENDENCE OF JUDICIARY AND
SEPARATION OF POWER
The collegium system, which was established through a series of rulings known as the “Judges Cases,”[7] originated from the interpretation of constitutional provisions by the Supreme Court. This system was established as a result of three specific cases.
The First Judges Case
The Supreme Court, in the First Judges Case of 1981[8], made a ruling by a narrow margin of 4-3 that the term “consultation” in Articles 124(2) and 217(1) of the Constitution did not imply “concurrence” in the appointment of judges for the High Court or the Supreme Court. In the event of a disagreement, the final authority rested with the Union Government instead of the Chief Justice of India, as decided by the court. This decision was considered to be an example of the Supreme Court acting against its own interests.
The Second Judges Case
In 1993, the Supreme Court of India was addressing the issue of court vacancies in what came to be known as the Second Judges Case[9]. During these proceedings, the First Judges Case was once again referred to a nine-judge panel. Ultimately, the Second Judges Case overruled the First Judges Case with a 7:2 decision, establishing that in cases where there is a conflict between the President and the Chief Justice of India regarding the appointment of judges, the opinion of the Chief Justice of India would have the final say. This ruling granted the Supreme Court more power and authority over the government and other branches of the Indian political system. The introduction of the Collegium system was another significant outcome of the Second Judges Case, which gave the Chief Justice of India and the two most senior judges in the Supreme Court the authority to appoint Supreme Court judges. The two most senior judges in the respective High Court were given the same authority for appointing judges to that particular court. The court clarified that while the President’s recommendation was not binding, the Chief Justice of India would have the final say in all appointments.
The Third Judges Case
The Supreme Court of India, in 1998[10], issued a response to a legal query on the collegium system that had been raised by the President of India under Article 143 of the Constitution. In reaffirming its 1993 decision, the SC broadened the Collegium’s scope to include the Chief Justice of India and the four most senior judges of the court after the Chief Justice of India, thereby expanding it to a five-member group.
National Judicial Appointment Commission Act, 2014
In 2014, the 99th constitutional amendments act established the National Judicial Appointments Commission, which began operating on April 13th, 2015. The purpose of the commission was to replace the opaque collegium system with a more transparent and accountable mechanism. The commission did not violate the principle of judicial independence, which is based on the separation of powers between different branches of government. Instead, it integrated the judiciary with the executive, creating a more inclusive system. The commission provided a veto for the appointment of eminent persons, making the process non-arbitrary and helping to prevent nepotism and corruption. Unlike the collegium system, which did not always make appointments based on merit, the NJAC would have prioritized merit-based appointments[11]. However, in 2015, the Supreme Court Advocates-on-Record-Association and Ors. Vs Union of India (UOI)[12] case, known as the Fourth Judges Case, struck down the NJAC, upholding the collegium system in a 4:1 majority decision.
The Fourth Judges Case
On October 16th, 2015, the Supreme Court issued a surprising ruling that struck down the 99th amendment and the NJAC Act as unconstitutional and null, restoring the collegium system for appointing judges to the higher judiciary. In a collective order, a constitution bench consisting of Justice Jagdish Singh Khehar, Justice J Chelameswar, Justice Madan B Lokur, Justice Kurian Joseph, and Justice Adarsh Kumar Goel declared that the previous system for appointing judges to the Supreme Court and high courts, as well as transferring Chief Justices and judges of the High Courts, would be reinstated. The 99th amendment and National Judicial Appointments Commission (NJAC) Act had been introduced to replace the 1993 collegium system, which had evolved after the second judge’s case.
The Supreme Court criticized the Commission for encroaching on judicial independence and violating the separation of powers and thus decided to maintain the Collegium System. Nonetheless, the court solicited feedback, including from the public, on how to enhance the collegium system. The suggested improvements were centered on establishing qualifications for appointments, creating a permanent secretariat to assist the collegium in evaluating candidates, increasing transparency in the selection process, and addressing complaints. Other suggestions, such as the transfer of judges, were also considered. Consequently, the court instructed the government and the collegium to collaborate on a memorandum of procedure that incorporates these recommendations.
SUGGESTIONS TO REFORM THE COLLEGIUM SYSTEM
The government and judiciary have been recommended to introduce several significant measures to improve the appointment of judges to the higher judiciary. These measures include creating a clear and transparent zone of consideration, establishing a nomination and interview process, defining appointment criteria, emphasizing seniority, and providing an annual report of candidates considered, interviewed, appointed and rejected. To ensure transparency and accountability, it has been suggested that all future correspondence on the Memorandum of Procedure should be made public. Various high-level commissions have examined the appointment process over the years and have recommended the creation of an independent body to make recommendations for such appointments.
- Seniority & Merit
When considering candidates for promotion to the Supreme Court, seniority, merit, and integrity will be taken into account. The primary focus will be on Chief Justices of the High Courts, with consideration given to their relative seniority.
- Reasons in writing
If a senior Chief Justice is not chosen for promotion to the Supreme Court, it is essential to document the reasons for this decision in writing. This is important to maintain transparency and prevent any appearance of bias or preferential treatment.
- Three-judge quota
The Supreme Court permits the appointment of up to three judges from either the Bar or from experienced jurists who have demonstrated excellence in their profession. Additionally, all Supreme Court judges should be willing to propose individuals for these appointments.
- Committee & Secretariat
The proposal is to establish a committee to aid the Collegium in assessing potential candidates for judicial positions. This committee would consist of two former Supreme Court judges and a distinguished legal professional, jointly nominated by the Chief Justice of India and the government. Additionally, there would be a secretariat responsible for managing a database of judges, organizing Collegium meetings, maintaining records, and receiving recommendations and complaints regarding judges’ appointments.
- National Security
One suggestion is that the Memorandum of Procedure (MoP) for appointing judges should include clauses related to “national security” and “larger public interest” that would give the government the authority to reject any nominee recommended by the Supreme Court collegium. This would effectively grant the government “veto power” over judicial appointments.
- Other issues
Despite the fact that the Right to Information Act granted the status of public authority to the judiciary, the judiciary has obstructed the implementation of the right to information. Specifically, the Supreme Court has consistently contested the directives of the Central Information Commission, which has demanded disclosure of information about judicial appointments and pending verdicts and has denied access to this information. This needs to be disclosed.
CONCLUSION
A reformative approach to the appointment of judges and the independence of the judiciary is crucial for the Indian judicial system to function effectively and uphold justice. The appointment of judges based on merit and transparency rather than political affiliations is necessary to ensure that the judiciary is independent and impartial. Additionally, the establishment of a judicial appointments commission that includes members from various sectors can help promote transparency and prevent any biases in the selection process.
Furthermore, there is a need to improve the functioning of the judiciary, including the reduction of the backlog of cases, enhancing the quality of judgments, and promoting of efficient court procedures. This can be achieved through the implementation of innovative technologies and the appointment of more judges to handle the increasing caseload.
Overall, a reformative approach to the appointment of judges and the independence of the judiciary in India is essential for the judiciary to fulfill its role of upholding the rule of law and protecting the rights of citizens. It is the responsibility of the government, the judiciary, and civil society to work together to ensure that the judiciary functions effectively and independently. By doing so, India can strengthen its democratic institutions and ensure that justice is delivered to all.
[1] Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441: AIR 1994 SC 268 (‘SCORA 1993’).
[2] In re Special Reference No 1 of 1998 (1998) 7 SCC 739: AIR 1999 SC 1.
[3] Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1 (‘SCORA 2015’).
[4] See Constituent Assembly Debates on 24 May 1949 Part I, https://indiankanoon.org/doc/1538555 / (last accessed on March 23, 2023) and Constituent Assembly Debates on 24 May 1949 Part II, https://indiankanoon.org/doc/798115 / (last accessed on March 23, 2023); see also B. Shiva Rao, The Framing of India’s Constitution, 1967, volume 2, pp. 587, 590.
[5] Article 124, Constitution of India.
[6] MANU/SC/0065/1977: (1977) 4 SCC 193.
[7] journal. Lawmantra.co.in/wp-content/uploads/2015/05/181.
[8] S.P. Gupta vs. Union of India (1981) AIR 1982 SC 149.
[9] Supreme Court Advocates – on – Record vs. Union of India, (1993)4 SCC 441, AIR 1994 SC 268.
[10] In Re: Special Reference No. 1 of 1998, MANU/SC/1146/1998 : (1998) 7 SCC 739.
[11] www.thehindu.com/specials/in-depth/nja retrieved on 23.03.2023.
[12] MANU/SC/1183/2015:(2015) 6 SCC 408.
Author: Abhishek Parmar
Juris Centre 