Although the Constution Bench of Supreme Court has categorically ruled out any wholesome change in Collegium system, it is open for suggestions to making appointments system transparent. Before getting into changing the system, we need scrutinise the rationale behind striking down of the National Judicial Appointments Commision (NJAC) passed by the Parliament.
Through 99th Constitutional Amendment Act 2014 the provisions of Article 124 have been amended to establish the National Judicial Appointments Commission Act 2014 and the National Judicial Appointments Commission (NJAC) was notified by the central government, validity of the said Act has been challenged before the Supreme Court on various grounds.
- This is likely to be abused or misused as appointment shall be controlled by the executive;
- Not providing any guidelines to determine who would be the “eminent person” gives arbitrary power to the executive;
- Giving Veto power to any two members of the Commission makes it liable to be misused and they can stall any appointment; and
- It would violate the independence of the judiciary.
Former judge of Supreme Court of Bharat, Dr Justice BS Chauhan on October 16, 2015 opined in the session on ‘Debating NJAC’ thus: “Merely because a statutory provision is capable/susceptible of being abused, it cannot be struck down on this ground alone. Constitutional validity of a provision can be challenged only on the ground of want of competence of the legislature and/or the impugned Act violates the fundamental rights conferred by the Part III of the Constitution”. He was addressing these opening remarks in the National Conference on “Development in the Area of Constitution” at 10.00 am and the NJAC decision was pronounced at 10.30 am of the same day. This Conference was organised by the National Judicial Academy, Bhopal which is headed by the Chief Justice of Bharat.
He added “It must be presumed unless the contrary is proved. That administration and application of a particular law would be done “not with an evil eye and unequal hand” by quoting Budhan Chudhary v. State of Bihar AIR 1955 SC 191; A. Thangal Kunju musaliar v. M. Venkatichalam Potti, AIR 1956 SC 246; State of Rajasthan v. Union of India, AIR 1977 SC 1361; Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536; and Sushil Kumar Sharma v. Union of India AIR 2005 SC 3100.
He went again and analysed that “Judicial independence is the very essence and basic structure of the Constitution. Independent, impartial and fearless judiciary is our Constitutional creed. Independence of judiciary constitutes the foundation on which rests the edifice of democratic polity. It is insulated from other wings of the Government so that “judges may act free from any pressure from any one as to how to decide any particular matter”. Independence of judiciary means “freedom from interference and pressure with absolute commitment to the cause of justice and constitutional values”. (Union of India v. Sankal Chand Himatlal Sheth, AIR 1977 SC 2328; S.P. Gupta v. Union of India AIR 1982 SC 149; Union of India. Pratibha Banerjee AIR 1996 SC 603; High Court of Judicature at Bombay v. SHirishkumar Rangrao Patil, AIR 1997 SC 2631; Registrar (Admn.), High Court of Orissa v. Sisir Kanta Satapathy, AIR 1999 SC 3265)
The UN Basic Principles on Independence of Judiciary (1985) provide that individuals selected for judicial office should be of high integrity and ability with appropriate training or qualification of Law. The method of judicial selection has to be safeguard against judicial appointments for improper motive. Such independent and impartial judiciary must be capable of upholding Constitutionalism and Rule of Law in the country. Independence of judiciary means that “Judges may act free from any pressure from any one as to how to decide any particular matter”
The Constitution of Bharat Article 124(2), 127(1) and 222(1) provide for appointment of a Judge of the Supreme Court, and of the High Court as well as for transfer of a High Court Judge to another High Court, The President of Bharat after consultation with such of the Judges of the Supreme Court and of the High Court in the states as the President may deem necessary for the purpose, and in case of the High Court Judge appointment with Governor and the Chief Minister etc, may take appointments. However, the Chief Justice of Bharat shall always be consulted.
Advocate on Record Association v. Union of India AIR 1994, SC 268, and, In re Special Reference AIR 1999 SC1, the larger Benches of the Supreme Court declared the primacy of the collegiums in the matter of appointment of Judges of the Supreme Court and High courts. The said judgements read the word “consultation” for the appointment of judges as ‘concurrence/consent’. Thus the President was bound to consult only five senior most judges of the Supreme court in case of the appointment of the Judge of the Supreme Court and only two for the appointment of the High Court Judge.
The argument was advanced that the interpretation given by these two benches to the provisions of Article 124(2) and 217(1) tantamount to an amendment of the Constitution by way of judicial legislation. The word collegium is not found anywhere in the Constitution. It has taken away a concept of “mutual discussion” and “mutual consensus” between the judiciary and the executive, and thus language used in article 124(2) became redundant in absence of any convention for the President to seek advice only from senior most judges, nor there had been any primacy of such advice (see Suraj India Trust v. Union of India, JT 2011(4), SC149).
Collegiums system while making the appointment for the High Court as well as for the Supreme Court judges who has worked in the concerned High Courts had always been consulted, and if any two of them describe the person concerned as unsuitable, such person was never recommended/appointed. In the 3rd Judges case, Court held:
‘It is, we think, reasonable to expect that the collegiums would make its recommendations based on a consensus. Should that not happen, it must be remembered that no one can be appointed to the Supreme Court unless his appointment is in conformity with the opinion of the Chief Justice of India. The question that remains is: what is the position when the Chief Justice of India is in minority and the majority of the collegiums disfavour the appointment of a particular person? The majority judgement in the Second Judges case has said—that if
‘the final opinion of the Chief Justice of India is contrary to the opinion of the senior Judges consulted by the Chief Justice of India and the senior Judges are of the view that the recommendee is unsuitable for the stated reasons, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible’.
That is delicately put, having regard to the high status of the President, and implies that if the majority of the collegiums is against the appointment of a particular person, that person shall not be appointed and we think that is what must invariable happen. We hasten to add that we cannot easily visualise a contingency of this nature; we have little doubt that if even two of the judges forming collegiums express strong views for good reasons that are adverse to the appointment of a particular person, the Chief Justice of India would not press for such appointment.” This clearly implies that there also existed a veto power in the collegiums system.
As per the provision of striking down the Act the participation of the Chief Justice of Bharat in selection of ‘eminent person’ along with the Prime Minister and the Leader of the Opposition is also a ground of challenge that it would affect institutional integrity of the office of the Chief Justice. Even in the selection of the Director of Central Bureau of Investigation, the Chief Justice of Bharat participates. Without there being any guidelines as what does eminence means it remains doubtful as how to choose ‘eminent person’ and such process cannot be termed to have been made in reasonable manner and may violate a fundamental right of protection against exercise of arbitrary power. Thus there should have been some degree of legislative guidance on what criteria ought to be adopted for measuring eminence.
There had always been allegations and counter-allegations in respect of corruption in judiciary. Even the Judges and the Chief Justices of Bharat have made such statements in public. Magnacarta (1215) itself assured in Article 40 that justice shall not be sold to anyone.
Arun Lakshman (The writer is Editor of