Article 124 (2) provides for the process of appointing the Supreme Court judges in succinct words. It states that every judge of the Supreme Court shall be appointed by the President by a warrant under his hand and seal. For the said purposes, the President consults with the Chief Justice of India(CJI) and other judges of both the Supreme Court and High Court as he considers essential.
Article 217(1) of the Indian constitution contains similar provisions for the appointment of High Court judges I.e. appointed by the President by a warrant under his hand and seal.
The appointment procedure seems easy and straightforward on paper but the issue of appointing judges has always been a subject of controversy.
The procedure of appointing the judges of the apex court and the high court is done based on a system that includes the suggestion and concurrence between both the executive and the judiciary. This is called the collegium system.
In the collegium procedure of appointment, the President acquired suggestions from the CJI and for senior judges of the Supreme Court to make appointments, transfers and elevation of judges.
Evolution of the collegium system
The origin of this practice can be traced to the contestations that were witnessed between the judiciary and the executive regarding the appointment of judges to the honourable Supreme Court. Historically, the executive used to solely appoint the judges. The convention was to appoint the senior judge of the Supreme Court as the Chief Justice. This practice was condemned by the 14th law commission as it called for greater participation of the Chief Justice of India in the process.
Later on, the executive started to work in contradiction to this practice as well. For example, in 1973, Justice AN Ray was selected as the CJI even though there were senior judges standing in queue before him to adorn the office of the Chief Justice of India. Likewise in 1976, Justice Beg was appointed as the CJI in place of Justice Khanna.
These patterns drew criticism from several sections of the country and the intentions of the executive superimposing the Judiciary started to surface. These sentiments grew even stronger after the imposition of emergency and the 42nd amendment to the constitution. In the backdrop of this, lies the origin of the method of having a collegium.
The conception of collegium is related to the three judges’ cases.
S.P. Gupta Vs. Union of India (1982) – In this case, the apex court’s verdict was in favour of the executive. It concluded that the authority to appoint judges rests primarily with the government. The viewpoints of the CJI and the Chief Justices of High courts are only ‘consultative’ in nature. Therefore the executive can bypass the opinions of the judges.
This case is popularly known as the First Judges Case.
This set in the debate over the interpretation of the word ‘Consultation’ in the echelons of the judiciary and the executive.
The second judge’s case or the S.C. Advocate on Record Association (SCAORA) vs. The Union of India case of 1993 had 9 judges on the bench. It concluded that CJI has a significant and primary role in the appointment of Supreme Court judges. The court noted that the central government does not have any exclusive power to appoint judges and CJI is better situated to decide on the appropriateness of the candidates for holding the office of the judge if the apex court. A ‘Participatory Consultative process’ in which the executive acts as a mere check on the exercise of the CJI.
The Third Judges case (1999)– in this case, a reference was made by the President under Article 143 to the Supreme Court. The court expressed the idea of having a collegium to deal with the appointment of judges. As per the scheme, the CJI has to consult 4 senior most judges of the Supreme Court and the views of all members should be in writing. If at least 2 judges vote against the appointment of the judge in question, the CJI should not further pursue such an appointment. If the majority is against the appointment, then it is cancelled. Furthermore, the President can send back the colloquium request for reconsideration but, if the same request is sent by the collegium again then the executive is bound to implement it.
Of late the colloquium system has faced several criticisms like
- Opacity in operation- The collegium method used to take place behind the curtains and no transparency was there in place.
- The accusation of nepotism- it is castigated that there are issues of favouritism while appointing judges which further affects the justice delivery principle.
- The executive has condemned that nowhere in the country there is a rule that the brother judges appoint other judges. It leads to a conflict of interest and affects objectivity.
- Politicization is heightened- due to opacity in operations, there are chances that appointments are politically influenced
- Negation of having a body like the National Judicial Appointment Commission (NJAC) – NJAC was constituted by the 99th Constitution amendment to the constitution as a body composed of members from both executive and judiciary to appoint judges. However, it was struck down by the Supreme Court as unconstitutional.
- There is no devoted staff to bring about this task of appointment and hence is burdensome. This might lead to a compromise on the necessary background check of the eligible candidates.
- It often puts the executive and the judiciary at loggerheads. It is not in consonance with the spirit of the Constitution especially, Article 50 which calls for the separation of the Judiciary and the executive.
- Chances of corrupt practices are more due to ambiguity in methods.
However, steps have been taken to ensure more transparency in the operation of the collegium system-
- Both merit and seniority are given import mace while elevating judges to higher courts. The candidates’ profiles are scrutinized and substantial dialogues are conducted. ● The Centre for Research and Planning also assist the collegium by accumulating background details.
- The requirements for contenders were also publicly disclosed recently. ● The judge’s assignments are also scrutinized by a Judgment Evaluation Committee. ● The judiciary has highlighted the main criteria desire for judges. It includes integrity and performance among other parameters.
Possible steps that can be taken to usher in more transparency in appointments to the judiciary
- Justifications for appointments should be disclosed to the public for better accountability. 2. The public should know the details of prospective candidates just like they know the contenders for political representation.
- Views of the public should be incorporated while maintaining a degree of confidentiality. 4. Objective criteria should be listed out to make transfers, appointments and promotions. 5. Harmonius construct among three organs I.e. legislature, executive and judiciary should be there.
- Records of the collegium discussions should be held for securing accountability.
The judiciary holds great importance for securing the principle of fairness and the collegium system should be in tune with the present demands to ensure judicial independence.
