Note: This is a reader’s blog. The views expressed are the writer’s views and not that of Lawctopus.
By Tushar Mahajan, Jindal Global Law School
“Judicial Appointments have been undermined leaving the executive to appoint Judges not because of excellence but out of influence”- [Arrears Committee report (1989-90)], during a time when the executive appointed Judges]
One of the cardinal principles of the Indian Constitution is the independence of judiciary, independence from the executive and the legislature.
The Supreme Court upholding this fundamental and basic principle has declared the National Judicial Appointments Commission (NJAC) Act and 99th Amendment Act to the constitution, unconstitutional and void as a whole.
The NJAC under Article 124 A of the 99th Amendment Act includes the Chief Justice of India, 2 senior most judges of the Apex Court, The Union Law Minister and 2 eminent persons who have not been defined at all in the amendment.
Composition of Collegium System
The Collegium system on the other hand is not constitutionally provided but consists of the CJI along with 4 senior most Judges of the Apex Court.
NJAC, as it has been said, has a problem with its basic draft leading to the question, should political executives have such an amount of say in judicial appointments as in the composition of NJAC?
Constitutional makers such as Dr. B R. Ambedkar in assembly debates felt apprehensive in appointment of judges by the executive as they believed such appointments might be directed by political pressure and political consideration.
The fact remains that when one of the major litigants of the country is the executive and if the latter only chooses the judiciary, it might lead to a conflict of interest.
Adoption of Collegium System
India adopted the Collegium system post 1993 before which the executive played a big hand in judicial appointments.
I agree, for 46 years after independence, executive appointed judges and it was only in those times that India got judges like Bhagwati, Chandrachud, Krishna Iyer etc.
However, it was also in those times when during 1973 emergency, Indira Gandhi, the then Prime Minister, appointed AN. Ray as the Chief Justice of India, surpassing 3 other senior judges at that time.
It is this minute possibility of influence and political pressure that has no place in the basic functioning of the constitution.
Parliament cannot go against the constitution.
Hence when the Attorney General says that NJAC Act is the collective will of the people proposed unanimously by both the houses of the parliament, even then I say, by no means it can be ultra vires of the provisions of the constitution, latter being the actual will of the people.
Division of Power
Where the CJI’s opinion has some weight in Collegium system, its power is divided as per Article 124 A of the 99th Amendment Act, clearly being in violation to the 2nd and 3rd Judges case which demanded CJI’s primacy.
As Justice Lokur pointed out in his Judgment, “NJAC has abridged the powers of the Chief Justice and he has turned from an institutional head to just an individual figure”.
One consistently raised counter to the Collegium system is that there is no country in the world where Judges appoint Judges.
I believe the notion that Judges appoint Judges is a total misconception.
It is the President with the Council of Ministers who assents to the recommendation of the Chief Justice.
Furthermore, India is a unique Democracy and we cannot and should not adapt everything from the West.
Memorandum of Procedure
Post the 2nd Judges case (30th June, 1999), a Memorandum of Procedure for Appointment of Judges and Chief Justices to Higher Judiciary was drawn by Ministry of Law and Justice.
This memorandum clearly states that the Chief Minister of the state will look into the recommendations of the Chief Justice (and his Collegium) of that particular High Court.
Considerations have also to be sought from the Governor of the state, Union Ministry of Law and Justice, Intelligence Bureau, CJI (and his Collegium), the Prime Minister and then finally by the President.
With such healthy involvement of the executive, how can they articulate that they have no say in judicial appointments?
Whenever legislation is made, it is subject to judicial review if it is contended to be ultra vires of the provisions of the constitution.
The Supreme Court order, in no way, I believe, threatens the parliamentary democracy/ supremacy as there have been numerous laws which have been declared void and unconstitutional by the judiciary, only this time the judiciary was in a position to decide between itself and the executive and it has favoured itself.
Questions have been raised regarding the Collegium system being opaque and the fact that judges get appointed within 4 walls of Collegium without any transparency.
Even the Supreme Court at the end of the NJAC judgment has asked for views to improve the current Collegium system.
It has become a process where recommendations rise from an uncle- son syndrome without any regards to the candidate’s merit.
With a new generation, there should be a new breed of Judges, each chosen upon their merit.
However, a substitute like NJAC with no regards to fundamental principles of the constitution should just not be accepted.
The Judiciary needs to ask themselves what best serves the people of India.
These fallouts of the Collegium system need to be removed from the root.
The system of checks and balances needs to be there but to an amount where it does not intervene in each other’s actions.
But is the debate over or will we have a 5th Judges Case is a question that needs an answer!