A deliberative process; Collegium can’t enjoy absolute power (Opinion)

The appointment of judges to the constitutional courts is a contentious issue. The current process provides that every judge of the constitutional court will be appointed by the President after consultation with the judges of the Supreme Court (SC) and the High Court (HC) in the states till they attain the age of 65.

The opinion of the Chief Justice of India (CJI) is binding on the government. The opinion of the CJI must be formed after due consultation with a collegium of at least four senior-most judges of the SC. Even if two judges give an adverse opinion, then he should not send the recommendation to the government.

Hence, it will be wrong to suggest that the collegium enjoys absolute power in the appointment of judges to the apex court and various HCs, with minimum or no accountability. There is an entire process by way of which names are first sent to the respective HC Collegium, the names are only then forwarded to the SC after due consultations and deliberations by the collegium of the HC(s).

Thereupon, the SC Collegium deliberates, and only when there is a consensus, the name is recommended by the collegium for the appointment. Moreover, one must bear in mind that our constitution provides for the separation of powers between the Legislature, Executive, and Judiciary.

The system also provides for checks and balances on one another and there is no ‘stricto sensu’ separation of power. Hence, it is wrong to say that the entire process is any eyewash and there is no accountability.

To appreciate the current system, it is important to understand the origin of the collegium system. The system originates from the three landmark judgements or famously known as the ‘Three Judges Case’.

First, in S.P. Gupta vs President Of India And Ors AIR 1982 SC 149, the constitutional bench of the SC held that the recommendations of the CJI on judicial appointments will be binding, however, transfers can be refused for “cogent reasons”.

This in many ways gave primacy to the Executive in judicial appointments. Second, where the current system was devolved by the former CJI P.N. Bhagwati in 1993. In SC Advocates-on-Record Association vs Union of India, (1993), nine judges of the apex court reversed their decision of the ‘First Judges Case’ and developed the ‘Collegium system’.

The Court held that the CJI has the primary role in the appointment process of judges and “consultation” implies as “concurrence”. The underlying principle for the evolution of the collegium system was that it reflects the collective opinion of the senior-most judges of the apex court involved in the process of judicial appointment rather than an individual opinion.

In the third case, the apex court reiterated the supremacy of the judiciary over the executive in the course of judicial appointment and expanded the collegium to a five-member panel.

The role of Executive in judicial appointments was further scrutinised and discussed in great detail by the five-judge bench of the SC while adjudicating the vires of the National Judicial Appointment Commission Act (NJAC), 2014.

The SC reiterated the collegium system and struck down the NJAC Act along with the 99th Constitutional Amendment Act in a 4:1 ratio. Interestingly, the apex court discussed the “legitimate power of reciprocity”, i.e., when the recipient feels indebted to the giver, and feels compelled to cancel the debt…often against his/her better judgment.

Noting this, the Court held and endorsed that “the political-executive, as far as possible, should not have a role in the ultimate/final selection and appointment of judges to the higher judiciary. Keeping in mind the enormity of the participation of the political-executive, in actions of judicial adjudication. Reciprocity, and feelings of pay back to the political-executive, would be disastrous to the independence of the judiciary”.

The present collegium system has weathered every storm and stood the test of time over a period of nearly 30 years. Undisputedly, there are cogent reasons for having a minimalistic role of the executive in appointment of judges including, but not limited to, independence of judiciary, nipping the bud of ‘reciprocity’, and efficacy among many others.

That said, the opacity in the appointment process has raised unwarranted suspicion about the entire process. The lack of information in public domain remains a cause of concern and further leads to speculations of nepotism and favouritism, which affects the morale of judicial officers, ultimately rippling down to the litigants.

Transparency and flow of information in public domain will not only end all speculations of nepotism and favouritism, but will further promote a merit-based approach in appointments of judges to the higher courts across the country.

A mechanism for flow of information will also enable and ensure that the right candidate is not overlooked. Adopting new mechanisms, especially with the advent of technology in courts, and bringing in some transparency will help in bolstering the faith in the entire system.

All in all, the current law of the land of appointment of judges is a detailed and tedious process under the supervision of the senior-most judges of the apex court.

The system despite its shortcomings is founded on strong and cogent reasons. Any deviation is disobedience of the law of the land and leads to stagnation. The stagnation in appointments is more detrimental to society at large as vacancies in constitutional courts are rising causing an immense delay in justice dispensation.

(The author is a senior advocate in the Supreme Court)

20221204-095804

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