One of the fundamental components of India`s democratic system is the judiciary is independent. Independence of the judiciary is one of the basic structure of the Indian Constitution. The rational behind independence of judiciary is that, it is protector of rights of the citizen. Courts are expected to interpret law, maintain rule of law, accordingly protect rights of citizens and further give fair and unbiased judgment without any interference by governmental institutions. Moreover, The independence of the judiciary ensures that the legislatures of the parliament, the states, and the executive are properly entrusted with their respective powers and shall have effective control over government’s arbitrary actions.
For fair function of the courts, Judiciary has been kept outside from purview of governmental pressure.
2. System of Appointment of Judges in India
India follow collegium system to appoint and transfer judges for High Court and Supreme Court. The Collegium system is a body led by the Chief Justice of India that comprises of the four senior most supreme court judges that decides on appointments to the higher courts and judicial transfers.
2.1. Collegium System: Origin
The Constitution of India mandate that, the president of the country appoint the Chief Justice of India and the judges of the Supreme Court were appointed after taking consultation of Chief Justice of India. Article 124 (2)[1] and Article 217[2] deals with appointment of supreme court and High Court Judges. The collegium system is not mentioned in any statutes, it is evolved by judicial activisms. The collegium system established by Four-Judges Case as follows:
2.1.1. S.P Gupta v. Union of India, 1981[3] : (I Judge case)
This case also called as first judge case. In this case, the word “Consultation” were dealt by court in article 124[4] which deals with appointment of supreme court judges. The term consultation means president is not bound by opinion of supreme court, but at the same time president is not expected to ignore the recommendation of the supreme court.
2.1.2. Supreme Court Advocates on Record Association v. Union of India[5] 1993 4 SCC 441 (II Judges Case)
This case also considered as second judge case. The Nine Judge bench again dealt with meaning of term “Consultation” which means Concurrence, which overturn S.P. Gupta Case[6] judgment. Court also stated that Chief Justice of India is at the best position to decide who will be appropriate judge to Supreme court and High courts.
2.1.3. In re: Presidential Reference[7] 1998 7 SCC 739 (III Judge Case).
This case is also considered as three judge case. The presidential reference to the supreme court in Art. 124, 217 of the Indian Constitution issued question again on the word “consultation” in the year 1998. The Chief Justice of India will not be the only person involved in the consultation process. There shall be a collegium made up of four of the supreme court senior most judges. The chief Justice of India cannot make decision if even two of judges disagree. Court further stated that seniority shall be the primary basis for appointment of judges.
3. Collegium System: Criticism
Many critiques of the collegium system have been made. As a result of numerous cases that are pending in High Court and Supreme Court and the time constraints on judges in higher courts, judges must look for cases and find time to sit for judgement. It will be a significant problem for the judges, when they have time to assess the recommendations of judges of higher courts.
Another, criticism came across that is, collegium system is opaque, not transparent process. Seniority considered to be prime basis criteria to decide who will be judge. It can be further examine that, if the language of Article 124 (2) of constitution of India which states that president has to consult only such judges of high court and supreme court that he feels necessary. There are chances of favouritism and nepotism. Because of above mentioned factors collegium system has been criticized and government came with National Judicial Appointment Commission Act, 2014 enacted by the parliament by 99th constitutional Amendment Act, 2014.
4. Constitution of National Judicial Appointment Commission (2014)
Collegium System had been criticized various time. The parliament came with National Judicial Appointments Commission Act, 2014 which constituted National Judicial Appointments Committee. The composition of committee includes chairperson and its members. The chairperson would be chief Justice of India, its members comprises of two supreme court judges, law minister and two eminent persons. These two eminent persons will be appointed by prime minister, leader of opposition in Lok Sabha and Chief Justice of India. It also establish that, among these two eminent persons one person shall belong to schedule caste/schedule tribes/women/OBC category. This act does not provide veto power to chief justice of India. It further stated, while recommending the names of judges if two of the members opposed the names of judges, that name will not be forwarded further.[8]
5. National Judicial Appointments Commission (2014): Objection raised by Supreme court
The legislature came with a legislation National Judicial Appointment Commission Act, 2014 which constituting a commission. This was challenged in the supreme court and various objection were raised as:
- The frequent interaction between the judiciary and executive is not appropriate. Law minister being the member of commission where judges are also there which is not favorable. As most of the cases, the government is the litigant. It could create frequent interaction which violates the Independence of Judiciary which is basic structure[9] of the Indian Constitution.
- No definition of “eminent person” is provided in the National Appointment Commission Act, 2014.
Supreme court found that while enacting National Judicial Appointment Commission Act, 2014 executive taking authority over the judiciary on appointment of judges.
2.1.4. Supreme Court Advocates on Record Association v. Union of India[10] 2016 (5) SCC 1 (IV Judges Case).
In this case, the validity of the 99th constitutional Amendment Act, 2014 along with the National Judicial Appointments Commission Act, 2014 were challenged. The act sought to replace the prevailing collegium system and making appointments of judges to the higher judiciary with constitution of the National Judicial Appointments Committee.
The court struck down the 99th Amendment and National Judicial Appointment Commission Act, 2014 and declare unconstitutional as it violates the basic structure[11] of the Indian Constitution that is Independency of Judiciary. As act held to be unconstitutional, therefore, collegium system again prevailed.
6. New Bill introduced: The National Judicial Commission Bill, 2022
The National Judicial Commission Bill, 2022 was passed by Rajya Sabha of the parliament with various objective.
Objective/ Aim of the Bill:
- Regulates the procedure of selection of judges
The bill aims to regulate the procedure to be followed by the National Judicial Commission for recommending people for appointment as the chief justice of India, other Judges of the Supreme Court, Chief Justices and other judges of High Courts.[12]
- Regulate the transfer and Judicial Standards
It also aims to regulate transfers and to lay down judicial standards and provide for accountability of Judges.[13]
- To establish credibility and accountability of judges
It aims to establish credible and expedient mechanism for investigating into individual complaints for misbehavior or incapacity of a judge of Supreme Court or of a High Court.[14]
- To regulate the procedure for investigation procedure
If any complaint made against the judges, this bill aims to regulate the procedure for such investigation.[15]
- Removal of a Judges
It also proposes for the presentation of an address by parliament to the president in relation to proceedings for removal of a judge.[16]
7. Impact of bill: On collegium system
It can be identify that collegium system has been criticized because of its closed door mechanism. People of country does not know that, how this system works in reality. If the National Judicial Commission Bill, 2022 enact as act, the government may regulate the procedure of appointment, regulate the transfer of judges, regulate the removal of judges which shows that executive is taking control over the appointment of judges and courts will lose their power regarding appointment of high courts and supreme court.
The National Judicial Commission Bill, 2022 if implemented it will have certain effects on collegium system as follows:
- Collegium system will be abolished, Judges are best person to decide who shall be judges of higher courts of India. The judiciary will lose authority over appointment and transfer of judges.
- Rules of commission will be enacted by central government.
By enacting this act, there is both positive and negative impact. Moreover, there is possibility that executive may have control over appointment of judges which violates the principal of Supremacy of judiciary and Independence of Judiciary which is basic structure of Indian Constitution.
8. Critical Analysis
The constitution of India is supreme law of the country. It comprises of certain basic structure principles which shall not be destroyed by the parliament.[17] The separation of power is one of principle of basic structure.[18] The three pillars of government are independent and separate institutions. It has their own powers and responsibilities. None of the institutions are expected to interfere in any of the institution of government. The legislatures are concerned to make law, Executives are concerned to execute the law made by legislature, Judiciary are concerned to interpret the law that is, whether it is in consonance of prevailing law or not. The main purpose of separation of power is to prevent abuse of power by a single person or by any institutions.
When question arises regarding appointment of judges in higher courts by collegium system. Collegium system has been objected on the basis of – close door mechanism, not open to public, etc.
As the Chief Justice of India Mr. D,Y Chandrachud said, “I have to take the system as it is given to us… I am not saying every system is perfect but this is the best system we have developed. The object of this system was to maintain independence, which is a cardinal value. We have to insulate the judiciary from outside influences if the judiciary has to be independent. That is the underlying feature of Collegium.”[19]
The judges observe activities, performances, workings and records of advocates on daily basis therefore, judges will be at good position to select appropriate person and appoint as judge. It could be possible only when there is no influence from outside. As Independence of judiciary is respected, the judiciary also expected to act according to provision provided in the constitution regarding appointment of judges. By this study, it can be found that, there is need of modification in the collegium system which is constitutional valid and equivalent opportunity should be provided to women/SCs/ STs/ OBCs category who are capable of being judges of higher courts. The factors like nepotism, favouritism shall not be promoted.
9. Conclusion
By study, it can be concluded that, the National Judicial Commission Bill, 2022 if enacted as act, it may abolish collegium system and executive control shall be prevailed over appointment of judges which violates the Independence of Judiciary. Further changes should be made within the collegium system itself so that, the loopholes shall be removed. The modification should be in way that, nepotism should be avoided. Judges should act according to the provision mentioned in the constitution. Government may come with new law but the authority of appointment of judges should be vested with judiciary itself.
[1] INDIA CONST. art. 124, cl. 2.
[2] INDIA CONST. art. 217.
[3] S.P Gupta v. Union of India, 1981.
[4] INDIA CONST. art. 124.
[5] Supreme Court Advocates on Record Association v. Union of India 1993 4 SCC 441.
[6] S.P Gupta v. Union of India, 1981.
[7] In re: Presidential Reference 1998 7 SCC 739.
[8] The National Judicial Appointments Commission Act, 2014 & S.6, No. 40 , Act of Parliament, 1949 ( India).
[9] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461.
[10] Supreme Court Advocates on Record Association v. Union of India 2016 (5) SCC 1.
[11] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461.
[12] The National Judicial Commission Bill, 2022. Bill No. LXXXVI of 2022.
[13] Id. at 1.
[14] Id. at 1.
[15] Id. at 1.
[16] Id. at 1.
[17] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461.
[18] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461.
[19] THE HINDU, https://www.thehindu.com/news/national/collegium-is-the-best-system-we-have-developed-says-chief-justice-of-india-chandrachud/article66635107.ece ( last visited March 24, 2023).
Author: Ratnika from Christ Academy Institute of Law, Bengaluru
Juris Centre 