In 1950, the Indian Constitution was adopted. According to the Indian Constitution, the President had the authority to appoint the Chief Justice of India, as well as any additional justices he felt were necessary for posting in the appropriate position, and the remaining Supreme Court judges before 1973. The National Judicial Appointments Commission (NJAC), a brand-new organisation, was proposed to take over the function of the collegium of appointment Process for the judges to the Supreme Court and High Courts of the Government of India. Before the Indian Parliament passed NJAC, Articles 124 and 217 of the Indian Constitution governed the appointment of judges to the superior courts. The “Collegium” system, which was used in India, permitted only judges to nominate and remove other judges. The term “Judges selecting Judges” was another name for this arrangement. It was developed by the legal system itself to protect its autonomy in appointing judges. The cases that led to the creation of NJAC are covered later in this article.
HISTORY
The system of appointment and transfer of judges by the collegium was formed as a result of several judgements and not just by the legislation of parliament. Three judges’ case is the collective name for the cases. The main question in each of the three cases was whether Article 124 meant what it said it meant when it used the word consultation and whether the consultation was binding on the president.
When the Indian Supreme Court was first established, the executive had the primary power to appoint judges. The Collegium System, which the Supreme Court instituted in 1993, allows the Chief Justice of India and senior Supreme Court judges to appoint new justices to both the Supreme Court and the High Courts[1]. The Constitution was amended by Parliament in 2014, and a bill to alter the appointment process was also passed[2]. The Prime Minister, the Leader of the Opposition in the Lok Sabha, and the Chief Justice of India were to form a committee to choose the members of the new commission, which would include the Chief Justice of India, the two senior-most Supreme Court judges after the Chief Justice of India, the Union Minister of Law and Justice, and two eminent individuals. These distinguished individuals had to include at least one woman and one from a scheduled caste, scheduled tribe, religious minority, or other backward caste.
In the case of Supreme Court Advocates-on-Record Association v. Union of India[3] (also known as “SCAORA/The Second Judge’s Case”), the Supreme Court significantly overturned the First Judges’ Case and fundamentally altered the nature of the appointment process in response to these widely held fears and perceived executive overreach in the appointment process. As a result, the Chief Justice of India and the Supreme Court’s senior-most judges formed the judicial collegium, which serves as the primary body for appointment. The Chief Justice of India, who is the head of the judiciary according to the Constitution, has the primary authority for appointments.
The Supreme Court, however, determined that the new appointment process and the constitutional amendment adopted by the Parliament were unconstitutional in October 2015. The Supreme Court used judicial independence as a major justification for rejecting the proposed commission. If the Minister disagreed with the Chief Justice’s opinions, she could seek the advice of additional judges, discuss those opinions with the Chief Justice, or suggest a different candidate to the Chief Justice to get her opinion. On who to appoint, however, the Minister of Law and Justice would ultimately advise the Prime Minister and, with the Prime Minister’s consent, the President. Thus, the Executive-led Appointment System was used. The collegium system was reinstated by the Court in its place. However, detractors of the collegium system contend that it is undemocratic because the Court never justifies the standards it employs to accept or reject applicants, among other things.
EVOLUTION OF COLLEGIUM SYSTEM IN INDIA
The framers were concerned that the selection procedure should guarantee that the best candidate was appointed to this important constitutional position while at the same time guaranteeing that judicial independence from other branches of government is maintained. They discussed and rejected ideas like having the Chief Justice of India have a veto over judicial appointments, having the President appoint judges on his own initiative without the assistance and counsel of the Council of Ministers, having appointments confirmed by one or both Houses of Parliament, and more.[4] Ultimately, the framework that made it through to the Constitution required the appointment of Supreme Court judges to be made by the President, acting on the aid and advice of the Council of Ministers, in “consultation” with the Chief Justice of India. The President could also consult other Supreme Court and High Court judges as per her discretion[5]
The Collegium System in India is nowhere mentioned in the Constitution and it evolved through the judicial interpretations of these constitutional provisions by the Supreme Court in the landmark case laws which are now collectively called “Four Judges Cases”.
The seven-judge bench that rendered a decision in the First Judges Case, S.P. Gupta v. Union of India, AIR 1982 SC 149, established the collegium system in India[6]. The court examined the rules governing the appointment of judges in this case and made important findings. The court noted that “Chief Justice of India, Chief Justice of the High Court, and such other Judges of the High Courts and of the Supreme Court… are merely constitutional functionaries having a consultative role and the power of appointment resides solely and exclusively in the Central Government” after citing Articles 124(2) and 127(1), which discuss the appointment of judges to the Supreme Court and the High Courts, respectively.[7]
The court ruled that even if these constitutional functionaries’ opinions are identical and unanimous, the Central government is not required to agree with them and is free to disregard them[8]. However, the court in this case believed that the system in place at the time for selecting judges was insufficient. The court suggested that a collegium made up of individuals who are expected to have knowledge of those who may be qualified for appointment to the bench as well as the qualifications necessary for appointment be created to recommend to the President regarding the appointment of judges, which should be based on a broader basis and involve consultation with broader interests.[9]
Bhagwati J, however, voiced his displeasure with the current “mode of appointment of judges in India” where “the authority to select judges has exclusively been vested ‘in a single individual’ (the President) whose choices may be incorrect or inadequate” and “may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations” in the First Judges’ Case.
The nine-judge bench of the Supreme Court overturned the decision of the “First Judges Case” in the case of Supreme Court Advocates on Record Association and Anr. v. Union of India, 1993 Supp (2) SCR 659. In this case, the court emphasised the judiciary’s independence and even made the following statement: “The requirement of prior “consultation” with the superior Judiciary is a logical consequence of having a “independent Judiciary” as a basic feature of the Constitution.” In case of appointment of Supreme Court judges under Article 124, the opinion of the CJI will be collectively the opinion of the “Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State”
The Chief Justice of India’s opinion will take precedence in the appointment of judges, according to the Supreme Court, and no appointment can be made until it is in line with this opinion The court held that the proposal will be made by the CJI and that this recommendation will be binding on the Executive with regard to the transfer of justice/judge under Article 222. Through the “Second Judges Case,” the collegium system for choosing judges was implemented in India.
The Supreme Court strengthened the collegium in the “Third Judges Case” (Special Reference Case 1 of 1998) by adding the Chief Justice of India (CJI), four of the most senior Supreme Court judges, in the event of a Supreme Court judge appointment or transfer, and two of the most senior Supreme Court judges in the event of a High Court judge appointment[10]. It also clarified what consultation meant and ruled that the words “consultation with the Chief Justice of India” in Articles 217(1) and 222(1) of the Indian Constitution require consultation with a majority of judges when the Chief Justice of India formulates an opinion.
The Supreme Court declared the National Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitutional Amendment Act, 2014 to be unconstitutional and void in Advocates on Record Association and Anr. v. Union of India, (2016) 5 SCC 1The NJAC was made up of the Chief Justice of India (as Chairman), the Law and Justice Minister, the two senior-most Supreme Court judges, and two eminent individuals (chosen by a committee made up of the Prime Minister, the Chief Justice of India, and the Leader of the Opposition), who would advise the President on judicial appointments.
For this, the 99th Constitutional Amendment Act, 2014 was introduced which had inserted articles 124A, 124B and 124C in the Constitution of India to provide for the establishment of commission[11], powers of commission[12] and power of parliamen[13]t to regulate the appointments of judges and empower the commission. However, citing the independence of the judiciary, veto powers of these two eminent powers, and other issues with the acts, these acts were held unconstitutional by the Supreme Court and it restored the collegium system for the appointment of judges in India
VALIDITY OF NATIONAL JUDICIAL APPOINTMENT COMMISSION
The Constitution was amended by Parliament in 2014, and legislation was also passed to reform the selection of judges. The National Judicial Appointments Commission was established, and its members include the Chief Justice of India, the two Supreme Court justices who sit next to the Chief Justice, the Union Law Minister, and two eminent individuals who will be chosen by a committee made up of the Prime Minister and the Leader of the Opposition in the Lok Sabha.
The Court found that the representation provided by Article 124A clauses a and b to the National Judicial Appointments Commission’s judicial component is insufficient to maintain the judiciary’s primacy and, as a result, violates the independence of the judiciary, which is a fundamental element of the Constitution. Similar to Article 124A (b), Article 124A (c), and Article 124A (d) are unconstitutional because they include union ministers who are subject to the law, which goes against the Constitution’s fundamental design.
The National Judicial Appointment Commission Act of 2014 and the 99th Constitution Amendment Act of 2014 were both declared to be unconstitutional and void by the Supreme Court. The process for choosing judges for the Supreme Court, High Courts, and Justices of India, as well as for transferring judges, must follow the rules in effect prior to the 99th Amendment. The legality of the amendment was upheld by Justice Chalemeswar in each of the five justices’ separate rulings. The court also denied the respondent’s request for a larger bench to reconsider the Second and Third Judge’s cases [(1993) 4 SCC 441, and (1998) 7 SCC 739, respectively]. The collegium system of judicial nomination and transfer has been reinstated.
CONSTITUTIONAL VALIDITY OF 99TH AMENDMENT
The National Judicial Commission Act (NJAC) was established in 2014 by the 99th Constitutional Amendment Act. Alongside the bill, the National Judicial Appointments Commission (NJAC)-creating Constitutional 121st Amendment Bill, 2014-has also been introduced. The process for recommending candidates for appointment as the Chief Justice of India and other Supreme Court judges, as well as the Chief Justice and other judges of High Courts, is outlined in the Bill.
The 99th Amendment Act changed Article 124(2) and Article 128, respectively.A, B, and C of Article 124 are also introduced. Judges of the Supreme Court are appointed in accordance with Amendment 124(2) by a handwritten and stamped order following the president’s recommendation to the National Commission for Appointment of Judges under Article 124A. Rear Amended, the president is no longer required to consult the Supreme and High Court judges. When a judge other than the Chief Justice of the Supreme Court of India is appointed, an initial reservation is required for consultation with the Chief Justice of the Supreme Court of India.
The Ninety-Ninth Amendment of the Constitution and the National Judicial Appointment Commission (NJAC) was repealed by the Five-member Constitutional Bench (4:1 Special Majority) of the Supreme Court because they contradict the fundamental principles of the Indian Constitution.
CONCLUSION
The collegium system, which makes recommendations to the President of India regarding judicial appointments, has no mention in our constitution and has entirely developed as a result of how the Supreme Court has interpreted the relevant provisions and directives. However, because the process is typically kept secret, the collegium system is frequently accused of favouritism and nepotism and does not guarantee transparency in judge appointments. Making recommendations for appointments does not require adhering to any particular rules or procedures. No single system for choosing judges can be deemed to be the best because all mechanisms for doing so have some strengths and weaknesses. Nevertheless, because it upholds public confidence in the selection process and guarantees judicial independence, the commission system is probably a very effective mechanism for the appointment of judges. In a democracy, the executive branch reports to the legislature, and the legislative branch reports to the people.
According to the constitution, both the legislative and judicial branches answer to the people. Total power is wholly corrupted, as they say. All three must be ensured by with a constitution and mutual control, state institutions behave in a way that is compliant with the law.
[1] Supreme Court Advocates-on Record Association vs Union of India, AIR1994SC268; (1993)4SCC441.
[2] 99th amendment Indian Constitution
[3] (1993) 4 S.C.C. 441.
[4] Constituent Assembly debate 24th may, 1949
[5] Article 124, constitution of India
[6] S.P. Gupta v. Union of India, AIR 1982 SC 149.
[7] IBID
[8] IBID
[9] IBID
[10] AIR 1999 SC 1.
[11] Article 124A, The Constitution of India.
[12] Article 124B, The Constitution of India
[13] Article 124C, The Constitution of India.
Author: Kshiti
Juris Centre 