As the tussle between the Government and the Supreme Court becomes more aggressive, it is important to understand the legal history of the current collegium system, the National Judicial Appointment Commission, and the proposed system of appointment by the Government.
Current context – The Vice President of India, Shri Jagdeep Dhankar and the Law Minister of India, Kiren Rijiju, can be seen throwing attacks on the collegium for being secretive. Many scholars and even ex-judges have sometimes blamed the judge’s appointment system for being affected by nepotism.
Keeping the ongoing controversy in mind, it is important to go into detail about the historical background of the appointments in the Indian judiciary.
Article 124 of the Indian Constitution talks about the establishment and constitution of the Supreme Court of India, and the Judges of the Supreme Court shall be appointed by the President in consultation with the Chief Justice.
Similarly, Article 217 says that – Appointment of High Court judges shall be done by the President of India in consultation with the Chief Justice of India, the State Governor and the Chief Justice of the concerned High Court.
But the appointment of judges in the Supreme Court is not mentioned as an enactment; it is based on the recommendations of the collegium. This structure of recommendation has undergone various changes in the past years.
First Judge’s Case (S P Gupta v. The President of India & Ors., 1983) – The primacy of the recommendation of the judges of the Chief Justice of India can be refused by the executive for reasonable reasons.
Second Judge’s Case (Supreme Court Advocates on Record Association v. Union of India, 1991) – Supreme Court, in this case, introduced the Collegium system and stated that consultation meant concurrence. It is not to be the individual opinion of the Chief Justice but of the two senior judges.
Third Judge’s Case (In re Special Reference 1 of 1998) – The Collegium was expanded to Five judges. Now the consultation was to be done by the five senior judges of the Supreme Court.
So, after the Third Judge’s Case, now the current collegium consists of five senior judges. The recommendation should be in concurrence with the Collegium system. Majorly this is the principle which makes the judiciary independent.
All three organs keep a check on each other; President appointing the Judges is interpreted as the executive’s check on the judiciary. But, practically executive has no role to play in the appointment except to transfer recommendation letters from one department to another, then sending them finally to the Prime Minister and then Prime Minster sending them to the President. At most, the executive can just delay the recommendations for some time.
It is a matter of observation that the judiciary can review every decision of the executive and the legislature, but the executive and legislature have no direct control over the judiciary. Not even a check and balance. So, in other words, the judiciary is superior to the legislature and then the executive. Although Parliament, by a special majority, can impeach a judge, it has never happened to date. So, the question arises whether the judiciary is really independent or not. Independent from itself
It is important to note that in the judiciary, around 38 per cent of the judges have deep family connections in the judiciary or in the Government. The current justices in the Court are related to the previous judges; for example – the current Chief Justice of India is the son of ex-Chief Justice Y. V. Chandrachud; similarly, KM Joseph is the son of ex-Judge, KK Matthew and Justice Sanjeev Khanna is the nephew of Ex Justice HR Khanna. There is an endless list of such cases. Hindustan Times reported that the relatives of at least 37 per cent of judges in the Punjab and Haryana High Court are practising lawyers in the same Court.
We have a very good Bar Association in India, but it has no role to play in the appointments. In the USA, during Judicial appointments, the bar association scrutinises the legal history of all the probable candidates being considered for appointment.
In the present tussle, liberals and Congress leaders can be seen attacking the Government. On normal days the same people can be seen ranting about less number of Dalits, women and religious minorities in the Court. Now, when the present Government comes up with a solution, they can be seen doing their regular work, i.e. attacking the Government. They are the problem creators and not the solution givers.
In 1973, it was Congress Government which tried to bring down the judiciary by appointing Justice A.N. Ray as the Chief Justice. This move superseded the appointments of three senior judges – Justice J. M. Shelat, Justice K. S. Hegde and Justice A. N. Grover. And not only this, during the emergency, 21 judges were transferred for pronouncing judgements against the Government.
According to the report of the Shah Commission, Indira Gandhi herself denied the recommendations given by her own Law Minister, writing – “I do not approve”. Justice Aggarwal of The Delhi High Court was demoted as Sessions Judge for pronouncing a judgement in favour of journalist Kuldip Nayyar. Therefore, it is a well-proven fact that Congress was always after the judiciary and wanted to bend it according to its political agenda.
Now, the then Minister of Law when NJAC was brought, Ravi Shankar Prasad, said in the Parliament that the committee under NJAC will ensure an adequate number of participation of women, Dalits and religious minorities in the Court. Then to counter this, the brainless opposition asked the Government to implement a reservation system in the appointments; Ravi Shankar said that we do not have a reservation system for the appointment of ministers in the cabinet, but we still have to ensure adequate participation. So, it is very clear that the intention to bring a new system of appointments is not politically motivated; rather, it is for the welfare. And now, it is high time that we need an urgent modification in the method of appointments.
In the report of the Parliamentary Standing Committee 21st Report, it was recommended that MPs be allowed to file a complaint against a judge to improve the legislature’s participation in the role of Parliament to impeach a judge. The committee also recommended forming a committee NJC (National Judicial Committee) to investigate the complaints against judges. The committee observed that after the 1993 judgement, the role of the executive had been abolished, as now the President is bound to accept the collegium’s recommendations.
Now the onus is on the readers to form an opinion on whether the judiciary is truly independent.