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India’s judiciary has been known for judicial activism with the Supreme Court often deciding to intervene, not just to strike down laws that are held to be unconstitutional, but also in governance, which many believe ought to be the exclusive domain of the executive.
Unfortunately, rampant judicial activism has given rise to an inevitable debate about the balance of powers between the ‘three pillars of democracy’ and then, as a corollary, the question of the manner in which Judges are appointed in the first place. The prevalent ‘Collegium System’ has been severely criticised as being non-transparent and prone to nepotism, with several jurists and respected members of the bar themselves pointing out that in no other large democracy does an institution so powerful, choose its own members.
The Constitution of India provides that Judges of the Supreme Court shall be appointed by the President of India in consultation with the Chief Justice of India, and other Judges of the Supreme Court and the high Courts as the President of India may deem necessary [1]. Judges of the high Court are appointed by the President of India in consultation with the Chief Justice of India, the Governor of the concerned State and the Chief Justice of that high Court.
The word ‘consultation’ is a neutral term that the framers of the Constitution believed would enable the judiciary and executive to form a consensus on the merits of each appointment.
The process of appointment was uncontroversial until three Judges who had pronounced judgments in the Kesavananda Bharati case, which were not looked upon favourably by the government of the day, were superseded by Justice AN Ray in 1973 for the post of the Chief Justice of India — this marked the commencement of a struggle for primacy between the executive and the judiciary which has barely abated over the years.
The appointment of Justice AN Ray as the Chief Justice of India over three of the most senior Judges of the Supreme Court was followed in quick succession by what can only be described as steps to curtail the independence of the judiciary. This included using transfers as a stick to come down heavily on Judges who did not conform to the populist policies of the Government, as well as the practice of appointing additional Judges in an effort to place their decisions under the scanner before they were confirmed.
Matters came to a head when the Union Minister of Law and Justice, in a circular dated 18 March 1981, issued directions which were seen to be executive interference in the appointment and transfer of Judges. The Constitutional validity of the circular was challenged by a series of writ petitions, which also challenged the practice of appointing additional Judges and the transfer of Judges from one state high Court to another. The Supreme Court finally heard these as a batch matter, which came to be known as the First Judges Case [2].
By a majority of 4:3, a seven-Judge constitutional bench in the First Judges Case, held that in the appointment of a Judge of the Supreme Court or the high Court, the word ‘consultation’ in Article 124(2) and in Article 217(1) of the Constitution does not mean ‘concurrence’.
Although there were several extraordinary features of this judgment, and despite the fact that the Supreme Court reiterated that judges may be transferred from one high court to another, not as punishment, but only i, it committed a singular disservice to its own cause for independence by holding that the opf the same is in public interest and only after consultation with the Chief Justice of Indiainion of the Chief Justice of India in judicial appointments would not attain primacy, and his role was merely that of an advisor.
The opportunity to restore the balance came with the Second Judges Case [3]. In the late 1980s, a series of petitions were filed before the Supreme Court, asking for various vacancies of Judges to be filled in the Supreme Court and high courts [4]. The three-Judges bench, while hearing the petitions observed that the First Judges Case, required re-consideration by a larger bench. The Chief Justice constituted a nine-Judge constitutional bench to examine the question of primacy of the Chief Justice of India in the appointment and transfer of Judges of the Supreme Court and high courts.
By a 7:2 majority, the court overruled the First Judges Case, holding that in the event of conflict between the President and the Chief Justice of India with regard to appointments of Judges, it was the Chief Justice of India whose opinion would not only have primacy, but would be determinative in the matter.
Adding checks and balances, the court further held that the powers of the Chief Justice of India would be moderated by a Collegium System, where, for appointments to the Supreme Court and high courts, the Chief Justice of India would decide after ascertaining the opinion of two of the most senior Judges of the Supreme Court. Similarly, for the appointment of high court Judges, the Chief Justice of the high court would make recommendations only after ascertaining the opinion of two of the most senior Judges of the high court.
Therefore, while ensuring that the judiciary had the last word on judicial appointments and transfers, the court sought to blunt criticism by diluting the power of the Chief Justice by making it necessary for him to consult at least two brother Judges.
Thus, the Second Judges Case, instead of restoring the balance of power between the judiciary and the executive, resulted in the Supreme Court assuming for itself the upper hand in judicial appointments and ushered in the Collegium System to guard against the charge of non-transparency and arbitrariness.
When the executive questioned the recommendation of the Chief Justice of India MM Punchhi to appoint five Judges, the President, in a Special Reference, sought the opinion of the Supreme Court on matters concerning the appointment and transfer of Judges [5]. A nine-Judge bench of the Supreme Court delivered a unanimous opinion and evolved the Collegium System of appointment of Judges to include the Chief Justice and four of the most senior Judges, as against two, mentioned in the Second Judges Case. This came to be popularly known as the Third Judges Case. The Supreme Court categorically held that the expression ‘consultation with the Chief Justice of India’ in Articles 217(1) and 222(1) of the Constitution requires consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India.
It came in 1999, when the Union of India framed a detailed Memorandum of Procedure for the appointment of Judges of the Supreme Court and high courts in consonance with the Second and Third Judges Case.
The Constitution (Ninety-Ninth Amendment) Act, 2014, replaced the Collegium System with the National Judicial Appointments Commission in the context of mounting criticism over lack of transparency and accountability in judicial appointments. It was perceived that collegium consensus was sometimes achieved through a trade-off, resulting in dubious appointments and disastrous consequences for litigants and the credibility of the judicial system [6].
The Ninety-Ninth Constitutional Amendment and the NJAC Act, 2014, which received assent of the President in December 2014, provided that the appointment to higher judiciary would be now by way of a commission comprising of:
The NJAC Act, 2014, provided that if any two persons of the Commission did not agree with a nomination, the NJAC would not recommend such candidate for appointment. Hence, judicial appointments ceased to be the primacy of either the executive or the judiciary and civil society’s participation was now included in the process of appointment.
Within days of the Ninety-Ninth Constitutional amendment and NJAC Act, 2014, coming into force [7], the constitutional validity of both the Ninety-Ninth Constitutional amendment as well as the NJAC Act, 2014, was challenged. A constitutional bench of five Judges with a majority of 4:1 struck down the Ninety-Ninth Constitutional Amendment Act and consequently the NJAC Act, thereby declaring the said amendment as unconstitutional. This has come to be known as the Fourth Judges Case.
The main reasons stated by the Supreme Court in the Fourth Judges Case for striking down the Ninety-Ninth Constitutional Amendment Act (and consequently the NJAC Act, 2014), were as follows:
Though NJAC Act, 2014, was struck down as unconstitutional, the Supreme Court in the course of the hearing, recognised and acknowledged that the Collegium System as it existed, had its own shortcomings. To get its house in order, therefore, the Supreme Court called for suggestions, both from legal fraternity and civil society, to evolve a more transparent and accountable system of judicial appointments, while calling upon the Government of India to finalise the existing MoP by supplementing it in consultation with the Chief Justice of India, who in turn, will take a decision based on the unanimous view of the Collegium comprising the four senior-most puisne Judges of the Supreme Court.
The aftermath of the Fourth Judges Case saw a state of standoff throughout 2016 between the Collegium and the executive in regard to finalising the new MoP. This resulted in several delays in appointments to the higher judiciary despite rising vacancies.
The Central Government circulated a draft MoP that was met with stiff resistance by the Collegium, without whose approval the Chief Justice of India could not assent to the same. However, after having been negotiated several times over, recent reports in 2017 indicate that the stalemate regarding the new MoP has finally been resolved. The Collegium, headed by Chief Justice of India JS Khehar, Justices D Misra, J Chelameswar, R Gogoi, and Madan B Lokur, have reportedly agreed to the incorporation of certain controversial clauses in the MoP, albeit with changes. Some of the resolved issues include a clause that allows the Central Government to reject a candidate’s appointment on grounds of national security, and the setting up of secretariats in the high courts and the Supreme Court to maintain a database of Judges that aid the Collegium in the selection process.
(The author is a partner in the Dispute Resolution Team of Cyril Amarchand Mangaldas; and was originally published on the Cyril Amarchand Mangaldas blog as part of a series entitled ‘Those Were the Days’. He can be tweeted )
(The views expressed here are those of the author. The Quint does not endorse or is responsible for the same.)
(This article was originally published on BloombergQuint)
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