There is an exchange of words between the Judiciary and the Executive in regard to the Collegium system, NJAC (National Judicial appointments Commission), an institutional process for the appointment and transfer of Supreme Court and High Court judges prevalent in India.
The Supreme Court said that the Collegium system is now a settled principle and also the law of the land.
On the other hand, the newly incumbent Vice President of India Jagdeep Dhankar in his maiden speech in the Rajya Sabha has said that by rejecting the 99th Constitutional Amendment for setting up NJAC, the Court has rejected the public mandate. Heavy and deep words indeed.
Further, the Minister for Law and Justice, by almost settling the dust has made it categorical through the floor of the Parliament that there is no proposal to re-introduce the NJAC Bill in Parliament.
In this context it is relevant, and imperative to study the background, and the evolution of the Collegium system; the proposal of NJAC for the appointment of Supreme Court Judges, and the appointment and transfer of High Court Judges; why is Judiciary apprehensive about NJAC?
It all started in 1973 when the then government under the leadership of Indira Gandhi broke the practice of appointing the seniormost judge of the Supreme Court as the Chief Justice of India. The government justified on the grounds that it is, according to Article 124 of the Constitution, the absolute discretion of the president to exercise the power of appointing the Judges of the Supreme Court.
The issue came up in the case Union 0f India Vs. Sankalchand Sheth, 1977.
The Court said that,
- the word 'Consultation' with regard to the President and CJI in appointment and transfers does not mean 'Concurrence’;
- CJI’s opinion is not binding on the Executive;
- but nonetheless, the executive Could depart from his opinion in exceptional Circumstances and Could well be the subject of Judicial Review.
In the subsequent case of S.P.Gupta Vs. Union 0f India,1981 also known as First Judge Case or Judges Transfer Case 1
The Supreme Court has,
- Unanimously agreed with the meaning of the term 'Consultation' as explained by the majority in Sankalchand's case;
- the only ground on which the decision of the government Could be challenged is that it was based on Mala fide and irrelevant considerations;
- the ultimate power to appoint judges was vested ‘solely and exclusively’ in the Executive.
It took a different turn when in Supreme Court Advocate-on-Record Association Vs. UOI,1993 also called as Second Judge Case or Judges Transfer Case – 2, a 9-Judge Bench by a 7:2 majority overruled its earlier judgments in Sankachand and Ist Judge Transfer case and held,
- Chief Justice of India should have primacy in the appointment of Supreme Court and High Court Judges;
- Views of 2 senior-most judges to be taken into consideration;
- Senior most Judge Of the Supreme Court Should be appointed as CJI.
The court laid down detailed guidelines governing the appointment and transfer of Judges.
Later as a result of a controversy over the recommendation by M.M.Punchi, the then CJI, the President of India raised 9 questions for the Supreme Court's opinion. The Court in response in a 9 Judge bench by majority held that
- In regard to the appointment of judges to the Supreme Court under Article 124(2), the CJI Should Consult "a Collegium of 4 Senior most Judges of Supreme Court" and if "two judges give an adverse opinion the CJI should not send the recommendation to the government;
- the opinion of the Collegium should be sent in writing;
- the recommendation of CJI not consulting other members of Collegium is not binding on the Government;
- in regard to the appointment of High Court judges Collegium should consist of CJI and any two senior-most judges of the Supreme Court;
- in regard to the transfer of High Court Judges, the Collegium of 4 Judges and CJI is required to consult the two High Court Judges, one from which judge is being transferred and the other receiving him;
- the appointment of Judges of the High Court Can be challenged Only on the ground that the Consultation has not been in Conformity with the guidelines of Judge Transfer Case, 1993.
Before going to what the Supreme Court has said in the 4th Judges Transfer Case let's go back a bit on the timeline to understand the background of the National Judicial Appointments Commission.
NATIONAL JUDICIAL APPOINTMENTS COMMISSION
Background
In S.P: Guptha V.U.O.I, 1981, Justice Bhagwati Suggested the appointment
of a Judicial Communion On the lines of the Australian Judicial Commission.
The Law Commission, 1987 Suggested National Judicial Services Commission and it Should have the final say in matters of
- Selection
- Promotion and
- Transfer of Judges
The Law Commission Suggested the Composition of NJSC as
- CJI (head)
- 3 judges of the Supreme Court
- 3 Judges of High Courts.
- Previous Occupants of CJI.
- Attorney General
- Outstanding Legal Academician
- Representative of Ike Ministry of Law and Justice
In 1990 the Bill was introduced in Lok Sabha for setting up of National Judicial Commission
However, the Constitutional Amendment Bill Lapsed consequent to the dissolution of the Lok Sabha
After 24 years the bill was again introduced as the 99th Constitutional Amendment Act, 2014 to provide for the setting up of the National Judicial Appointments Commission by adding Articles 124 (2), 127, and 128 and inserting 124 A, 124B, and 124C.
Article 124A provided for the Nature and Composition of NJAC as,
-CJI-Chairperson, Ex- Officio
- 2 Senior judges of Supreme Court,-Members, Ex- Officio
- Union Minister of Law and Justice-Member, Ex- Officio
- 2 Eminent Persons to be nominated by P.M, CJI and Leader of Opposition, Lok Sabha
Provided that one of the eminent persons Should belong to - SC, ST, OBC, Minorities, or a woman
124 B – Proposed for the functions of NJAC
- TO recommend the appointment of CJI; Judges of Supreme Court and High Courts; Chief Justice of High Courts
- To recommend transfer of Chief Justices of High Courts; Judges of High Courts
Supreme Court Advocates -on -Records Association Vs. Union 0f India, 2015, also known as judges Transfer Case -4, a 5-judge bench with a 4:1 majority has declared the 99th Constitutional -Amendment, 2014, and NJAC Act, 2014 as Unconstitutional and Void broadly on the grounds of breach of Basic Structure of the Constitution
- a threat to the Independence of the Judiciary
- breach of Separation of Powers
The Supreme Court has called the Collegium system to be operative
DISTRUST IN THE EXECUTIVE
It is clear from the above Judges Transfer Cases 2,3 and 4 that the Courts have clung to the Collegium system for appointments and transfer of Judges and the reason given in these judgments is ‘to protect the Independence of Judiciary’
The criticism of Collegium is well discussed and known. So now rather than going into those details we shall analyze what is making the Judiciary stick to the Collegium System in spite of the heavy criticism from across the spectrum.
One reason is the trust deficit. A sense of trust deficit can be seen in the eyes of the Judiciary towards the Executive. And Courts to a large extent, unfortunately, are night. How? We can study as such,
1. Executive excess Control of independent and ought to be autonomous
institutions like CBI, and ED has been a subject of concern for quite a long time. Supreme Court has many times made scathing remarks of CBI turning out to be the 'caged parrot' of the Executive.
2. It went on a different trajectory when the Supreme Court raised serious doubts about the appointment of Election Commissioners. This has only substantiated the allegations of the opposition parties that the ECI is dancing to the tunes of the Government – in light of the postponement of local body elections in Delhi.
3. In fact the Judiciary itself remained no exception to the executive control. This, of course, started from the time of Indira Gandhi when the judges were promoted surpassing the rule of seniority; post-retirement sops, jobs were created for the judges allegedly in return for favorable judgments.
In this context, it is pertinent to recollect what Arun Jaitley once told in Parliament “Pre-retirement judgments are influenced by post-retirement jobs”.
But unfortunately, his own party has created a post-retirement job as a Member of Parliament for the former CJI Ranjan Gogoi. This in fact reflects the present condition of the Executive's undue influence on the Judiciary.
These developments are what make the Judiciary apprehensive about letting loose its control over the appointments and transfer of Judges. NJAC would only create a more discretionary space for the Executive and involve more players in deciding appointments and transfer of Judges. All this according to the Supreme Court would only compromise the basic feature of the constitution - ‘Independence of Judiciary’ and also would hamper the critical tenet of the Constitution, the ‘Separation of Powers’ between Executive and Judiciary enumerated in Article 50.
