India and the Collegium System
B.A. L.L.B(Hons.), [2018-23]
Amity University, Kolkata.
The collegium system is a process through which decisions concerning the appointment and transferring of judges in the supreme court or the high courts are taken by a collegium which constituting the Chief Justice of India, four senior-most judges of the supreme court and three members of the concerned High Courts. The collegium is a result of the evaluations of the constitutional provisions by the Supreme Court in the three Judges' case. This was not a product of any Act of the Parliament or the provision(s) of the constitution. The candidature of the judges appointed by the collegium can only be objected to by the government and ask for reasoning concerning the same. Government can also raise objections or set up an inquiry to be conducted when a legal advisor is said to be raised as a judge in a High Court or the Supreme Court. Although, if the same decision is made again, the government is obligated for their appointment as judges.
The Government of India, in the year 2013, passed the Constitution (One Hundred and Fiftieth Amendment) Act, 2013 and the Higher Judiciary Act, 2013 with the object of securing greater participation of the executive in the process of appointments to the higher courts. The Acts, having received presidential assent, have made amendments to Articles 124, 217, and 222 and introduce Article 124A. Both Acts read together, provide for the establishment of a 'Judicial Appointment Panel', which shall recommend appointments of judges to the High Courts and Supreme Court.
CONSTITUTION ON THE APPOINTMENT OF JUDGES
There is, all things considered, no say of the collegium's framework in the first constitution or the ongoing revisions. Be that as it may, the Constitution of India sets out specific rules about the arrangement of the judges in the pre-eminent courts and the high courts. The arrangement of the judges in the High Courts and the Supreme Court is done by the President of India and he is given such powers under Articles 124(2) and 217 of the Constitution of India. The president is simply required to hold discussions with the judges of the Supreme Court and High Court as he/she might consider fundamental.
According to Article 124(2): "Every judge of the Supreme Court shall be appointed by the President by the warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty five years. Provided that in case of appointment of a Judge other than the Chief Justice of India shall always be consulted."
And Article 217 says: "Every Judge of a High Court shall be appointed by the President by the warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court."
THE CONSTITUTION (AMENDMENT) ACT, 2013 AND THE HIGHER JUDICIARY (APPOINTMENTS AND TRANSFERS) ACT, 2013 IS PER THE 'BASIC STRUCTURE' OF THE CONSTITUTION
An amendment can be a long leap for a change, from a slow change realized through judicial interpretation to a quick change before it is too late in the day and before the unamendable Constitution becomes dead word, to be cess if in the wake of a re-examination. The idea upon which a Constitution is based is, one generation may be spurned as old-fashioned in the next generation. The arguments for the aforementioned are enumerated as follows:
The impugned Amendment as per the procedure laid down under Article 368 of the Constitution: Article 368 contains both the power and procedure for amendment of the Constitution of India. The parliament derives its constituent powers from Article 368. Proviso '1's of Article 368 states that:
Power of the Parliament to amend the Constitution and procedure thereof-Notwithstanding anything in this Constitution, Parliament may in the exercise of its constituent power amend by way of addition, variation, or repeal any provision of this Constitution per the procedure laid down in this article.
An amendment to the Constitution in compliance with the procedure prescribed by Article 368 cannot be struck down by the court on the ground that it is a change for the worse. It would tantamount to the court substituting its own opinion for that of the Parliament. To interpret Constitutional law, it is imperative to know the rationale of the Constituent Assembly behind drafting an article.
Hence, the only limitation on the Parliament with regards to its amending powers is that of procedural compliance and no substantive limitation was envisaged. Therefore, it is contended that the Parliament was exercising the powers legally vested in it while introducing this Amendment and Act, it is also under the procedure set out under Article 368, and hence cannot be removed.
The Parliament has wide powers to amend the Constitution: Article 368 gives the Parliament, constituent powers to amend any part and provision of the Constitution, hence, placing any limitation upon this power, is in its very nature unconstitutional. In the landmark judgment of Keshavananda Bharati v. the State of Kerala, Learned Palekar J. observed: 'The pre-eminent object in framing a Constitution is orderly Government. Knowing that no Constitution, however good it may seem to be when it was framed, would be able to bear the strain of unforeseen developments, the framers wisely provide for the alteration of the Constitution in the interests of orderly change. Between these two co-ordinates, namely, the need for orderly Government and the demand for orderly Government and the demands for orderly change, both under the Constitution, the makers of the Constitution provide for its amendment to the wider possible extent.'
Also, the view of the majority in Keshavananda Bharati's case as to the 'Basic Features' is debatable since there is no express limitation upon the amending power conferred by Article 368(1). If it is supposed that there are some implied limitations, it is difficult to appreciate how the Supreme Court, after holding that the Fundamental Rights did not constitute such an inviolable part of the Constitution, could come to the conclusion that judicial review, which is an adjunct of Fundamental Rights, could be so deemed.
Further, if the Preamble itself is amendable, its provisions other than those relating to the basic structure cannot impose any implied limitation on the power of amendment. The argument that the Preamble creates implied limitations on the power of amendment cannot be accepted unless shown that the Parliament, in compliance with the provisions of Article 368, is debarred from amending the Preamble insofar as it relates to matters other than basic structure and removing the supposed limitations which are said to be created by the Preamble.
Thus, it is contended that the scope of the Parliament to amend the Constitution is very wide, and is not subject to any express or implied limitations.
The impugned amendment does not entrench the basic structure of the Constitution: The Supreme Court in Keshavananda Bharati's case, held by the majority, that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. The judiciary, to stay independent, needs to maintain a high standard of legitimacy in its operation. The members of the Constituent Assembly envisioned the judiciary as a bastion of rights and justice. The question was how to render the fortress impenetrable to sapping by private benefits. How was politics to be kept out of the courts? The Assembly's answer was to strengthen the walls of the fortress with constitutional provisions. In this respect, the Union Constitution Committee, on recommendation by the Sapru Report, recommended to the Assembly that justices are appointed by the President in consultation with the CJI and other such Supreme or High Court Justices might be necessary. This provision ultimately became part of the Constitution.
Independence and impartibility of judiciary can only be sub-served by appointing individuals of outstanding legal caliber and impeccable integrity and credibility with correct consideration to the Bench of Higher Judiciary. This is precise, what is sought to be achieved by the Amendment and the Act, thereby strengthening the Independence of the Judiciary and not hampering it. So also, the power of judicial review, which is the heart of 'Independence of Judiciary' and also has been considered and a basic feature of our Constitution is materialized by the way of the Amendment, which is in keeping with the 'Independence of Judiciary'. Hence, it is strongly contended that the Amendment does not abrogate the basic structure of the Constitution.
The impugned Act is not unconstitutional: After the arguments that the Amendment cannot be struck down, it is further argued that the Act, which provides for the composition, functions, and procedure to be followed by the Judicial Appointment Panel cannot be struck down as unconstitutional.
Laws enacted by the Parliament are presumed to be constitutional as they are considered the manifestation of the will of the people. Hence, in the instant case, it must be presumed that the Parliament has exercised its constituent and legislative power for the benefit of the people of India. Also, none of the provisions of the Act are per se unconstitutional as its power derives from the amended Article 124A, which would give it a Constitutional sanctity.
THE EXISTING SYSTEM OF APPOINTMENT OF JUDGES TO THE HIGHER JUDICIARY CONSTITUTES THE DOCTRINE OF SEPARATION OF POWERS, WHICH IS FUNDAMENTAL TO THE CONSTITUTION OF INDIA
In words of Mr. Sachchidananda Sinha, provisional chairman of the Constituent Assembly, on December 09, 1946: "The structure has been erected by architects of consummate skills and infidelity; its foundations are solid; its compartments are beautiful as well as useful; its arrangements are full of wisdom and order, and its defenses are impregnable from without. It has been reared for immortality…" A structure that defines our nation- the Constitution. The Supreme Court of India has been vested with the responsibility to guard this edifice, to safeguard and further the provisions and goals of the Constitution as its rightful custodian. The Court's interpretation has tainted the Constitutional fabric and attacked its basic framework insofar as it upsets the quintessential balance of powers between the executive and judiciary and neglects the essence and rationale of Articles 124, 217, and 222.
Separation of powers constitutes the basic framework of the Indian Constitution: Article 50 of the Constitution, based on the principle of separation of powers, states that:
Separation of judiciary from the executive- The State shall take steps to separate the judiciary from the executive in the public services of the State.
The Article requires the State to take steps to separate the executive and the judiciary. This means that there shall be a separate judicial service free from the executive. The doctrine of separation of powers is entrenched in our Constitution and forms its basic framework. The doctrine coupled with the principle of 'checks and balances, as adopted from the Constitution of the U.S.A., promote the smooth functioning of our polity and vindicates the ideals propounded by the Constituent Assembly.
The Supreme Court has erroneously interpreted Art. 124(2) and 217 of the Constitution: The legislative intent of the process being collaborative is suggested by the usage of the word 'consultation' in Article 124. The word 'consultation' indicates that the President is not bound by the recommendation and opinion of the CJI or other judges whom he may consult. The last word will thus rest with the Executive, who has the advantage of having the suggestions of those ex-hypothesi competent to speak in the matter.
The Supreme Court, however, in its judgment in Supreme Court Advocates-on-Record Association v. Union of India opined the primacy of the CJI. It was held that the opinion of the CJI means the opinion formed in consultation with a collegium of Judges. It interpreted the word 'consultation' to suggest the existence of a 'collegium' consisting of the CJI and two (2) or four (4) Judges, as the case may be, thereby creating a memorandum of procedure not conceived of by the Constitution. The working of the collegium has led to the judiciary has taken over the function of appointments, originally an executive act.
The Supreme Court's interpretation of the word consultation does not align with the legislative intent of the framers. The term must be understood in its ordinary lexical definition. The presence of the word, shall, in the texts of Articles 124 and 217, suggests such a consultation to be mandatory, however, the only person(s) to be so consulted, as mandated by the Constitution, is the CJI and in case of appointments to any High Court(s) the Governor of that State. The President is at liberty to consult any other judges if he may so deem necessary. The choice of such other judges remains with the President and not the CJI. Therefore, the concept of a collegium is not only unknown to and unconceived by the Constitution, but its structure insofar as the collegium comprising judges chosen by the CJI is also flawed and against the very legit of Articles 124 and 217.
Appointment of judges by a collegium entrenches the balances of power between the executive and judiciary as envisaged by the Constitution: As aforementioned, the system of collegium is foreign to the Constitution. The term 'collegium' has not been used in the Constitution of India by the framers of the Constitution. However, the judiciary through its power of interpretation of the Constitution under Article 141 has expanded the term 'the Chief Justice of India' occurring in articles 124(2), 217(1), and 222(1) to mean a collegium of select judges which was three (3) in the Second Judges (1993) case and further extended to five in the Third Judges case (1998). In effect, the opinion of the CJI means the view of the CJI taken in consultation with four senior-most colleagues.
The Supreme Court by misinterpreting Articles 124 and 217 have trespassed the sphere of executive functioning thereby disturbing the very delicate yet crucial balance of powers between the constitutional functionaries. Separation of powers being a Basic Structure of our Constitution cannot be entrenched upon by the legislature, executive, or the judiciary alike. The Supreme Court has rewritten Articles 124 and 217 to birth a system not envisaged or created by the Constitution. By assuming the power to appoint and subverting executive participation, the judiciary has upset the demarcation between the executive and judicial functioning. It has further acted in complete disregard to the spirit of the Constitution and colored the intent of the drafters by interpreting the provisions in a way inconsistent with the Constitution.
THE JUDICIAL APPOINTMENTS PANEL IS A NECESSITY TO RESTORE THE BALANCE OF POWERS AND HONOUR THE BASIC STRUCTURE DOCTRINE
The framers of our Constitution, taking cognizance of the practices of judicial appointments in Great Britain (by the Crown) and in the United States (by the Senate), chose to give to the Republic of India a middle path, that gave primacy to neither the executive nor the judiciary but contemplated a collaborative exercise. However, the Supreme Court having supplanted the meaning of 'concurrence' to 'consultation', the process of appointment has taken a paradigm shift, into the hands of the judiciary.
Elaborating on the meaning and importance of the word 'consultation' it is imperative to mention the recent ruling of the Supreme Court in the State of Gujrat & Anr. v. Gujrat Revenue Tribunal Bar Association & Anr. In light of this understanding, it is difficult to say that the consultation per se in the existing collegium system is a process effective or meaningful. No appointment in the existing system is made in nonconformity with the CJI's opinion. However, if the recommendation is reiterated, the President appoints such a person. Such practice is indicative of the absolute disregard for any consultative and collaborative process. It further jettisons the very purpose and idea of the primacy of neither constitutional functionary as adopted by the framers of our Constitution.
The Supreme Court dismissed the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment which conferred on to give politicians and the public an ultimate opinion in the appointment and transfer of judges to the highest courts. The National Judicial Appointments Commission (NJAC) is a constitutional body propositioned to replace the Collegium system of appointing judges.
The framework was developed through Supreme Court judgments in the Three Judges Cases: S.P. Gupta case (December 30, 1981) or the First Judges Case: It pronounced that the "primacy" of the CJI's recommendation on the judicial appointments and transfers can be denied for "cogent reasons." The decision gave the Executive supremacy over the Judiciary in legal arrangements for the following 12 years.
Supreme Court Advocates on Record Association v. Union of India or the Second Judges Case (October 6, 1993): The majority verdict gave back the CJI's control over the legal arrangements. It says that the CJI's just need to confer two senior-most judges. "The role of the CJI is primal in nature because this being a topic within the judicial family, the Executive cannot have an equal say in the matter," the verdict reasoned. Be that as it may, perplexity prevails as the CJIs begin taking one-sided choices without consulting two partners. The President's powers are limited to just an approver.
In Special Reference instance of 1998 or the Three Judges Case (October 28, 1998): On a reference from the previous President K. R. Narayanan, the Supreme Court sets out that the CJIs ought to counsel with a majority of four senior-most Supreme Court judges to shape his feeling on judicial appointments and transfers.
The Constitution of India, Art. 50, 124(2) and 217;
M. P. Jain, Indian Constitutional Law (6th Edn. 2010, Vol. II);
Keshavananda Bharati v. the State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225;
Dr. Durga Das Basu, 'Introduction to the Constitution', 2012, 20th Edition;
Attorney General v. H.R.H. Prince Ernest Augustus of Hanover, 1975 AC 436; In Re the Berubari Union and Exchange of Enclaves, AIR 1960 SC 845: (1960) 3 SCR 250;
Hamilton, Constitution, and Federalism, 437 (1788);
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Seventeenth edition, 2012;
64th Report, The Judicial Appointments Commission Bill, 2013;
L. Chandra Kumar V. U.O.I, AIR 1997 SC 1125;
Chiranit Lal Chowdhuri v. Union of India, AIR 1951 SC 41;
Nani Palkhivala, We, The People;
Baldev Raj v. State of Punjab & Haryana High Court, AIR 1976 SC 2490, 2493: (1976)4 SCC 201;
Dr. D.D Basu, Commentary on the Constitution of India, 8th ed. Vol. 5;
Union of India v. Sankalchand Himatlal Seth, AIR 1977 SC 2328: (1978) 1 SCR 423: (1977) 4 SCC 193 (paras. 41, 58, BHAGWATI J.);
Report of the National Commission to Review the Working of the Constitution, Vol. I, Ch.7: The Judiciary;
Supreme Court Advocates-on Record (n. 28);
Sixty-Fourth (64th) Report, The Judicial Appointments Commission Bill 2013;
State of Gujrat & Anr. v. Gujrat Revenue Tribunal Bar Association & Anr, JT 2012 (10) SC 422; State of Gujrat &Anr. v. Hon'ble Justice R.A. Mehta (retd.) & Ors. (2013) 3 SCC 1;
Constituent Assembly Debates (n. 23);
The Hindu: NJAC vs collegium: the debate decoded;