Who should judge the Judges has been under debate for decades and has surfaced as one of the matters of serious concern in recent times. Hence, before appointing a Judge it becomes extremely important to assess his professional competency. The moot point is that whoever does this must consider it with objectivity and only factual proven information should be taken into account. The Constitution of India has set the delivery of justice as the most prominent goal. For the purpose, India’s constitutionalist and enlightened constitution strikes a balance between the supremacy of the institutions and their independence by limiting their roles and defining their domains. This is founded on the principle of separation of powers. At the same time, it also enshrines certain provisions for a horizontal coordination between the authorities and agencies and prevents them from being absolute. Yet, on occasions disagreement or, divergence may lead to a belief that the three pillars of India’s democratic governance are in a sort of dispute. This could be between the Legislature and Judiciary or, between the Executive and Judiciary. However, it needs to made clear that all the three are Constitutional institutions and any dispute would amount to the violation of their constitutional mandate. That’s why the principle of separation of powers is enshrined in the Constitution. It is also pertinent to understand that India being federal in character has an independent judiciary as one of its essential features as exemplified by the provisions in Articles 50, 121, 122 to cite a few. Moreover, the Supreme Court in L. Chandra Kumar v. Union of India AIR 1997 SC 1125 has held that though all judicial powers have been vested in the Constitution, the independence of judiciary is well protected due to its foundation on separation of powers. It is also to be noted here that the independence of judiciary is included in the basic structure of the Constitution. Considering the possibility of the Judiciary being autocratic due to its independence, the framers vested all such judicial powers in the Constitution itself. On the other hand, the provision of judicial review under Article 13(2) and 137 qualifies the powers of both the Legislature and the Executive. Hence, it is evident that despite divergent opinions of the three agencies, possibility of a dispute or conflict does not arise and it should not be perceived like this. However, this divergence may some time assume alarming significance, the one which is probably the most important has been the issue of appointment of Judges of the High Courts and Supreme Court.
Originally, the Constitution of India under Article 124(2) and 217(1) provided for appoint of Judges of the Supreme Court and High Courts respectively by the President under his warrant and seal. Debates over such appointments arose in the late 1970s and were brought to the Supreme Court in S.P. Gupta v. Union of India AIR 1982 SC 149 [First Judge’s Case]. The Court held that the power of appointment resided solely and exclusively in the Central Government and the Judges of the Supreme Court and High Courts have only the consultative role as constitutional functionaries.
However, this decision was overruled by the Supreme Court in the SC Advocates-on-Record Association v. Union of India (1993) 4 SCC 441 [Second Judge’s Case]. The Apex Court held that the selection should be made through a participatory and consultative process in which the Executive should have the power to act merely as a check on the exercise of the powers by the Chief Justice of India to achieve the consultative process. The decision gave birth to the much-talked about the ‘Collegium System.’ The working of the Collegium system was set out in the Third Judge’s Case [In Re. Special Reference 1 of 1998].
The Collegium system is a process through which decisions on appointments and transfers of Judges in the Supreme Court and High Courts are taken by a group collectively. It comprises the Chief Justice of India and four senior most Judges of the Supreme Court (three members of the High Court concerned in the matters related to High Court including the Chief Justice of the High Court). The Supreme Court in the Third Judge’s Case held that the Collegium must take in to account the opinion of the Chief Justice of India which would be entitled to get the maximum weightage. The Executive was completely kept out of the process. The Court also held that the Chief Justice acting on the institutional advice (i.e. of the Collegium) available to him was the surest and the safest bet for preservation of the independence of judiciary.
Over the period, the working of the collegium system was heavily criticised on the notion that it created imperium in imperio (empire within an empire) within the Supreme Court. The allegations were that a Judge in question was given an extended term by the then CJI due to Government pressure which was continued by the subsequent CJIs and finally he was made a permanent Judge. Further, the allegations also included that the candidature of Gopal Subramanian was withdrawn after his name was proposed by the Collegium due to pressures and influence. In this backdrop, the idea to create a separate body was mooted and finally by the Constitution (99th Amendment) Act, 2014 followed by the NJAC Act, 2014 (both came in to force from 13 April 2015), the National Judicial Appointments Commission (NJAC) was set up under a new Article 124-A. It comprised the following:
- CJI- Chairperson (ex-officio)
- Two senior most Judges of the Supreme Court – Members (ex-officio)
- Union Law Minister- Member
- Two eminent persons as members (to be nominated by a committee comprising the CJI, Prime Minister, Leader of Opposition in Lok Sabha or where there is no such Leader of Opposition then the Leader of the largest party in Lok Sabha), provided that of the two eminent persons, one would be from SC or ST or OBC or a woman. The eminent persons shall be nominated for a period of three years and shall, not be eligible for re-nomination.
The Government did claim that the new system of NJAC would ensure a participatory and consultative process in the matters of appointment of Judges, however, on 16 July 2015, while hearing a writ petition, the Supreme Court struck down the NJAC Act, 2014 and declared the 99th Amendment Act, 2014 unconsitutional on the ground that it interfered the independence of judiciary which is a part of the basic structure of the Constitution. The Court also held that it is open to bringing greater transparency in the appointments.
A Memorandum of Procedure (MoP) was to be finalised by the Government and was required to be submitted to the Court. In October 2017 the Court issued notice to the Attorney General of India to explain why the finalisation of the MoP for appointment of Judges continues to linger. To recall here a five-Judge Constitution Bench in December 2015 had asked the Government to draft and finalise the MoP. The Court has said that even though no time limit was fixed for finalisation of the MoP, the issue cannot linger on for an indefinite period. It is important to mention here that six of the 24 High Courts in India have been without regular Chief Justices for months and the Supreme Court has underlined that the arrangement of acting Chief Justices in High Courts should not continue for more than a month. Moreover, as of 1 October 2017, there are 387 vacancies of the total 1079 approved strength of Judges across 24 High Courts which has been a formidable problem in the delivery of justice due to pending cases.
Very recently, the Supreme Court has brushed aside the comments of the Intelligence Bureau (IB) on the professional competence of advocates to be elevated as Judges. The Court has said that the IB has itself qualified its comments that nothing is on record and even then, it is the Collegium which is the best way to choose the advocates for elevation. This is mainly because of the reason that the judiciary is the best judge of competence.
Conclusively, though the divergence in opinion still prevails, one thing is certain that transparency in appointment is the key to strengthening of people’s confidence in the judicial system and delivery of justice. In any case, political persons shall not be included in the process mainly because of a possible conflict of interest. However, the Court must also ensure that the criteria should be based only on objectivity and proven facts. Recently the Supreme Court has uploaded the Collegium Resolutions on the its website which deals with the reasons for recommendation of someone’s name for appointment. It also includes the minutes of the collegium meeting. Definitely, it is an encouraging move by the Court itself in the direction of bringing in transparency in appointments.