Insights into Editorial: Judging the Judge-maker
19 October 2015
Judicial appointments are vital in the running of a constitutional democracy. For long, the executive and legislature have been seeking to have a say in the process of selecting judges.
Pre 1993 –
Till 1993, judges were appointed by the executive in consultation with the judiciary. This was not always transparent. Sometimes, governments indulged in rank favouritism. The judicial voice was often neither dominant nor decisive. This situation prompted Ram Jethmalani to famously remark, “There are two kinds of judges, those who know the law and those who know the law minister.”
Post 1993 –
- In 1993, a quiet declaration of judicial independence occurred. Justice J.S. Verma’s judgment in the Supreme Court Advocates on Record case, gave the Chief Justice and senior judges of the Supreme Court and the High Courts the power of making almost binding recommendations, for future appointments of judges in the constitutional courts.
- According to this judgement, whenever a vacancy arose, it would be filled by someone pre-approved by the judges and the executive could only demur in the appointment if cogent grounds existed. If, despite executive demur, the judges insisted on the appointment, the executive would have to confirm it. Thus, the collegium system was established.
- In 1998, on a presidential reference, the Supreme Court defined the collegium. Under the Collegium system, the Chief Justice of India would consult the four senior most judges of the Supreme Court for Supreme Court appointments and two senior-most judges for high court appointments.
Arguments against the collegium system:
- It is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium.
- This system overlooks several talented junior judges and advocates.
- Sometimes, collegiums gets stymied, when old rivalries between its members see each other’s favourites getting vetoed.
- Sometimes collegium meetings become examples of bargaining within the collective, and consensus emerging from a division of the spoils.
However, the collegium ensures that judges are not beholden to any politician.
What does the Constitution actually prescribe?
- Article 124 deals with the appointment of Supreme Court judges. It says the appointment should be made by the President after consultation with such judges of the High Courts and the Supreme Court as the President may deem necessary. The CJI is to be consulted in all appointments, except his or her own.
- Article 217 deals with the appointment of High Court judges. It says a judge should be appointed by the President after consultation with the CJI and the Governor of the state. The Chief Justice of the High Court concerned too should be consulted.
Parliament of India amended the Constitution and brought about the 99th Amendment to provide for the NJAC after the new government came to power. Subsequent ratification of 20 States was also obtained and it seemed that the collegium was history.
However, soon petitions were filed challenging the constitutional amendment. The Supreme Court also struck down the 99th Amendment recently.
Why it was struck down?
- The court concluded that the NJAC did not provide an adequate representation, to the judicial component and clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary in the matter of selection and appointment of Judges.
- The court also held that “Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC.”
- The clause also impinged upon the principles of “independence of the judiciary”, as well as, “separation of powers”.
- The clause which provided for the inclusion of two “eminent persons” as Members of the NJAC was held ultra vires the provisions of the Constitution, for a variety of reasons.
The supreme court has reinstated the collegium as the clearinghouse of all judicial appointments to the constitutional courts. It has now opted to take the path to reform, rather than change to an altogether new road created by Parliament.