In December 2018 the collegium had decided to elevate P. Nandrajog, the Chief Justice of Rajasthan High Court, to the apex court. The December collegium process comprised the same judges as the January one, except for the Justice Madan Lokur who retired later in December, with the addition of Justice Arun Mishra. The December decision was overturned for the given reason that selection of Justice Nandrajog and Justice Rajendra Menon of Delhi High Court was leaked to media.
Some critics have questioned that why a media leak that happened after the selection should result n a overturning of the December decision. Also, the decision to elevate 2 high court judges by the Chief Justice of India Ranjan Gogoi has drawn criticism from 8hthe sitting supreme court judges because their elevation is done superseding 32 judges with greater seniority.
The Collegium process has once again shown that it is opaque, with its members working as if in a cabal. More problematically, the Collegium is not accountable to any other authority. Its present decision to appoint Justice Dinesh Maheshwari and Justice Sanjiv Khanna, by retracting and superseding earlier selections of fine judges in their own right, is especially concerning.
|Constitutional provisions for the appointment of judges:
The constitution of India provides for the following provisions for the appointment of judges:
· Article 124(2) of the Indian Constitution provides that the Judges of the Supreme Court are appointed by the President after consultation with such number of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose.
· Article 217 of the Indian Constitution states that the Judge of a High Court shall be appointed by the President consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court
What is Collegium System?
The Collegium system is one where the Chief Justice of India and a forum of four Senior- most Judges of the Supreme Court recommend appointments and transfer of judges.
How it works?
The Chief justice of the respective High court and two other senior most judges of the court comprise a collegium empowered by the virtue of a 1993 judgment of the supreme court to identify suitable candidates, do due diligence and recommend for appointment as judges of the court. The shortlisted candidates are scrutinized by a collegiums of five seniormost judges of the apex court headed by chief justice if India before being cleared for appointment. The same collegiums of the apex court identified serving judges and chief justice of high courts for elevation to the Supreme Court.
Background : How the collegiums system was established?
The system of appointment and transfer of judges by collegium has evolved through judgments of the Supreme Court, and not by an act of the Parliament, or by a provision of the Constitution, which are famously referred as Three-Judge Case…
In the First Judges Case of 1980, the Supreme Court had declared that there was no need to provide primacy for the opinion of the Chief Justice of India while recommending a candidate to the President.
This judgment was over-ruled in 1993 when the nine-judge bench ruled in favour of granting primacy to the Chief Justice of India in appointing the key members of the top judicial brass. This is referred to as second judge case.
Things were clarified in the third judge case which was the Presidential reference to the Supreme Court on what the term “consultation”, implies which the President was required to do with judges before selecting a judge, referred to in the Constitution. In reply, SC laid down nine guidelines for the functioning of the system.
As a result in the process of appointment of Judges to the High Courts and Supreme Courts, the role of the President is reduced to the ceremonial participant. The attempt by the central government to constitute the National Judicial Appointments Commission through constitutional amendment act as per the recommendation of the Justice MN Venkatachaliah Commission was also quashed by the Supreme Court as unconstitutional.
Problems with Collegium system:
- Lack of transparency:
Collegiums system suffers from certain problems which include lack of transparency as the judges inside the system reveal nothing before the process s completed. Also its biggest loophole is the question regarding its constitutionality. The basic criterion of appointment of judges in this system is the one of the independence of judiciary which is held to be the paramount value. Thus the collegiums system of appointment and transfer is not the most efficient one as it was criticized by Justice J.S.Verma.
- Politicization of judiciary:
Separation of judiciary is the keystone of Indian democracy, and this idea has been emphasized by the constitution makers by including the article 50 (directive principles of state policy) mentioning that The State shall take steps to separate the judiciary from the executive in the public services of the State. But the opaque collegium system is used by the politicians to fulfill their self-interest.
As there is no transparency, appointment on the basis of preferences are also patronized, over deserving candidates and qualifications.
- Absence of Permanent Commission:
Lack of permanent commission has led to inefficiency in appointment process and higher judiciary has huge number of vacant positions. There has been an administrative burden of appointing and transfer of judges as there is no separate secretariat.
Criticism by the 214th law commission:
The 214th constitutional grounds said that the word ‘collegium’ was not used by the constitution originally and the S.P.Gupta case brought about its usage by using it. According to article 74 if the Indian constitution, the president should always act on the aid and advice of the council of ministers. However, the two judges case have held that the consultation with the chief justice of India and two or four judges as the case may be. Thus the cases held that chief justice should consult the collegiums while the constitution says that the chief justice if India and the judges should consult the president.
Various steps taken to reform the collegiums system:
The Supreme Court Collegium, led by Chief Justice of India Dipak Misra, has resolved to post on the court’s website its recommendations on judicial appointments, transfers and elevations for public consumption.
The information posted online will also “indicate” reasons for the recommendation or rejection of a name for judicial appointment, transfer and elevation to High Courts and the Supreme Court.
Why judicial appointment should be the sole responsibility and authority of the Judiciary?
- Firstly to avoid nepotism and favouritism n the appointment of the judges, without any hidden interest.
- Secondly judiciary as an independent body is included in the basic structure of the constitution, and the establishment of NJAC was an encroachment on the independency of the judiciary.
- Thirdly Article 50 of the constitution explicitly demands the separation of powers between the executive, legislature and judiciary.
Measures to bring reform in collegiums system in particular and judiciary overall:
- First, vacancies in the Supreme Court and in the High Court need to be filled up. Most High Courts are functioning with half or one third the sanctioned strength.
- Second, persons of doubtful integrity who might have been appointed by the mistake of the collegium have to be weeded out. This follows logically, as a consequence of the acceptance by the Constitution Bench of the defective functioning of the collegium. But a method has to be found without the process of impeachment, and voluntary retirement could be an option.
- Third, the infrastructure in the courts needs improvement — there will not be enough court halls, chambers, or staff, if all the vacancies are filled.
- Fourth, there needs to be appointment of ad hoc or additional judges to clear pending cases — the reluctance of the collegium to appoint retiring judges as ad hoc judges is baffling.
To allay the fears of intrusion into the independence of judiciary, a three member Permanent Commission to scrutinise the credentials of candidates and recommend names may be constituted. The Commission may consist of three retired Chief Justices of India for appointment of judges to the Supreme Court. Four such similar Commissions may be constituted for the four regions of India with a retired judge of the Supreme Court as a Chair Person and two retired Chief Justices of the High Courts as members.
These Permanent Commissions should also be vested with the power to scrutinise complaints of dishonesty and lack of integrity of judges, to make recommendations to the collegiums to withdraw work from those judges pending impeachment.
The above stated may help in bringing transparency in the system.