The collegium system is neither there in the Constitution nor in law, but by judgments the judges have decided that judges will be appointed by judges. How many countries in the world follow this practice? Probably not more than one or two banana republics
The founding Fathers of our Constitution were wedded to ideals of Freedom and Democracy. They were victim of judicial process during British Raj. Hence consciously they enacted provisions in our Constitution vesting power of appointment of judges to president in Article 124 and 217 to safe guard Judiciary from political interference. While guaranteeing a set of fundamental rights to the citizens they gave the judiciary a role of an umpire to protect freedom and democracy. These constitutional pledges were, however, thrown to winds after 27 years of independence. Such high dream and faith of founding fathers of the constitutions on their successors got a serious beat, when emergency was proclaimed and fundamental rights were suspended and the judicial system was crippled. All the constitutional authorities who had taken oath to save constitution failed to oblige their pledge. Our judiciary failed to protect the citizens during the most trying time of independent India’s History. The political executive which was duty bound to protect freedom and uphold rule of law “Terrorised the citizens resulting in a complete loss of faith of people…” observed Saha Commission which inquired into emergency excesses. In an article on JP Commemoration Volume published on March 18, 1979 Narayan Desai observed “the country then was completely terrorized. The so-called intellectuals had started singing songs in praise of emergency.” Noted jurist M.C. Chagla in another article in the above magazine described JP as savior of democracy as his effort and suffering ultimately paid price. According to him “Our first fight for freedom was led by the Father of Nation Gandhiji. Jayaprakash had led the second fight for freedom and civil liberties.” Charles Ashman says judiciary is the “last arena for survival of democracy.” The country is proud to have been served by many illustrious judges like justice H.R. Khana who resisted abrogation of fundamental rights during emergency at the cost of his office, for which he was superseded and denied elevation to the post of chief justice. The Country is equally indebted to justice V.R. Krishnayer, Justice Chandrachud, Justice Bhagabati for having regretted for failing to defend freedom in emergency. (Rajes Singh, The Pioneer on December 31, 2014). During the debate in the CA on the subject HV Kamath had visualized the judges to be “Model of judicial independence” while Dr. Ambedkar had favoured a balancing process by supporting in favour of a collective exercise involving Judiciary, Executive and President.
The process of appointment of judges is relevant to secure judicial independence and to secure right of citizens. In this back ground, let us examine the constitutional scheme that provides appointment of judges particularly to the Supreme Court and High Courts. The power to make laws regulating judicial appointments flows from Article 124 and 217 as originally enacted. The original constitutional provision has gone under several changes during last 68 years. In 1993 the bench presided by Justice J.S.Verma in the case known as Supreme Court Advocate on record case gave the Chief Justice and two Senior judges primacy in this matter giving rise to concept of collegium. Subsequently demand for review of above ruling was sought in many quarters. In 1998 while reviewing the matter, the Supreme Court concurred the earlier verdict but enlarged the strength of collegiums to four senior judges giving absolute power to judiciary in appointment of judges. However the demand to replace the collegiums system continued to be aired by jurists. NDA—I Government had established a commission headed by former Chief Justice N. Venkatchala to review the working of the Constitution, which also suggested for replacement of collegium system by creating an independent institution like NJAC. Thus the NJAC was outcome of a long exercise of legal debate and the call for change of the present system originated from legal fraternity. In fact NJAC is brain child of jurists.
Accordingly the UPA Government initiated actions and framed a draft law on NJAC but failed to pass it in parliament. In 2014, the NDA Government led by Narendra Modi reenacted NJAC and accompanying constitutional amendment after series of consultations and got it approved by Parliament which was ratified by two third state assemblies. Appointment to the judiciary should be transparent, merit centric and corruption free as society regards judges as incarnation of Lord “Dharma Avatar”. NJAC aimed a good beginning to reform the process of judicial appointments. Its validity was challenged in the Supreme Court where it was struck down by 4:1 majority on October 16, 2015 along with 99th constitutional amendment which was an enabling provision for creation of NJAC. The key rational behind the majority opinion appears to be that independence of judiciary being an essential ingredient of the basic structure of the Constitution, presence of the law minister and two eminent persons in selection process would impede judicial independence. However dissenting the majority view Justice J.Chelameswar who was part of the bench has reportedly observed that primacy of judiciary is “Empirically flawed without any basis either in the constitutional history of nation” concluding “reform that you may preserve”. (The Hindu, October 17, 2015).
The verdict has created reactions/opinions from various quarters including media, public leaders, Bar and former Judges. The Indian Express in its editorial described, it ‘unfortunate verdict’. The Pioneer in its editorial on October 19,2015 held the verdict “deeply flawed” and “a blow to judicial reforms”. V Sudhish Pai noted constitutional expert in his article in The Indian Express on November 03,2015 described the verdict “it bristles with baseless assumptions, arrogant assertions and perverted logic.” While Advocate A.M.Singhvi observed “The NJAC should have been given a fair chance”. Former Attorney General Soli Sorabjee’s observed “…striking down the whole act was not warranted” (The Hindu on October 17, 2015). In another article in The Hindu on October 19, 2015 advocate Sanjay Hegede says “the court has now opted to take the path to reform rather than change to an altogether new road created by Parliament”. Uttam Gupta in his article published in The Pioneer on October 30, 2015 says “The collegium system is flawed, and the apex court has admitted it. Yet, the court has endorsed the process”. The former speaker of Lok Sabha and a seasoned advocate Somnath Chateerjee, who is a known critic of BJP-led NDA in his reaction to the verdict published in The Indian Express on October 26, 2015 denounced the collegium system saying “This authority is neither there in the Constitution nor in law, but by judgments they have decided that judges will be appointed by judges. How many countries in the world follow this practice? Probably not more than one or two banana republicsbanana republics. I don’t know. Someone can teach me”. K.T.Thomas former judge of Supreme Court in his article in The Indian Express said “I had been a member of the collegiums at the High Court level and at the Supreme Court level. From the past experience, I would welcome the minimal participation of a member from the executive and also the civil society in the selection process to avert unworthy persons from sliding in”. In a similar article published in “The Hindu” on October 27,2015, AP Shah a former Chief justice, Delhi High Court, and Former Chairman, Law Commission says that collegiums system “lacks transparency, is inherently secretive, and provides for no oversight, due to which there are no checks or balances on the judiciary. Choosing judges based on undisclosed criteria in largely unknown circumstances has led to an increasing democratic deficit.” Justice Prakash further observed that the present selection process depends on the principle “you show me the person; I will show you the rule.”In this background it would be relevant to recall the petition of former law minister Shanti Bhusan to Supreme Court in the year 2010 on corruption in judiciary which dominated media and initiated a public debate. In response to this Justice Krishna Aiyer in an article published in The Hindu on October 21, 2010 classified the allegations as “paramount importance” calling upon both judiciary and executive “To take action or collapse”. Earlier also in another article in the same news paper, he had questioned the concept of judges judging themselves calling upon parliament “to wake up” and implement Glasnost observing that the process of promotion of judges to the Apex court is according to the “fancy of… collegium” adding that “the colleguim is a judicial creation and syndrome of personality cult being beyond accountability”.
In a Parliamentary democracy institutions are governed by firm legislative measures. Hence Legislature is the right forum for discussion and debate in shaping any legal instrument. Whatever an institution be enriched intellectually it cannot take the role of legislature. In a way the supreme court of U.S.A is a political institution. From the manner in which its judges are appointed, but it’s functioning is absolutely non-political. The judges of U.S.A are nominated by President, but their appointments are publicly screened and approved and confirmed by majority of Senate to hold their office “during good behavior”. In France judges are appointed by a very big committee headed by chief justice. In Australia the executive nominates names of judges. So, all most in all democracies executive is not kept aloof from the process of appointment to judiciary.
Judicial independence is not the sole concern of judiciary alone. Public as well as bar are more concerned to judicial independence as they are on the receiving end. Hence challenge to judicial reform must be met by shaping collective wisdom of citizens, bar, government and judiciary. In view of such vivid opinions in the Bar, Bench as well as among citizens, the Law Ministry/Law Commission should interact with Bar Council of India, State Bar Councils and the Supreme Court Bar Association to arrive at consensus in the matter of judicial reform. I was a law teacher for about a decade in a university law college. I am aware of problem of legal education. I firmly believe that a written test on any constitutional subject simply for one hour would eliminate majority of prospective candidates for any legal office. There should be proper evaluation of prospective candidates for any constitutional post to eliminate favour and protect merit. Hence the problems of reform lingering since decades cannot be solved instantly. We are grateful to the Hon’ble Supreme Court for admitting the flaws in the collegium system. We are equally grateful to the Hon’ble Prime minister for having taken up the NJAC Law which created the atmosphere when the urgency and necessity of reform is being emphasised. If NJAC would not have been enacted perhaps the demand for reform would not have gained such momentum. For debating so many viewpoints that have been suggested on the issue, the honorable court “do not have too much time” nor is the same practically possible. As a long term measure a law is needed to authenticate and achieve regularity to the process. Since legislation is the job of parliament, let a draft law on the basis of consensus be prepared by a court appointed committee of legal experts and then sent to government for vetting and consideration by legislature that is parliament.
By Ram Chandra Panda