In India, the judiciary and the executive are still at odds over the collegium system.
The Collegium method has occasionally come under fire because it is not perfect. It is sometimes referred to as "unconstitutional," and critics charge that it is opaque and tainted by casteism and nepotism.
The judiciary's blatant silence on arbitrary state action and its failure to uphold individuals' rights demonstrate that the collegium system has been ineffectual in preserving the judiciary's independence from the government. To guarantee openness and objectivity in the selection of judges, this system was developed. This method has its benefits and drawbacks and has been the topic of intense arguments and the recent tension between the executive and judicial branches that brought it to light are all topics covered in this article.
The collegium system in India is in charge of selecting new Supreme Court and High Court judges and reassigning judges who have already been appointed. The phrase "Judges Selecting Judges" also applies to this arrangement. This involves the chief justice and four senior-most Supreme Court judges. The most crucial element of judicial independence is the nomination of judges, which guarantees that decisions made by judges are free from any direct or indirect influence from higher entities, whether political or not.
History of Collegium system:
The Collegium system was implemented by the Judicial Proclamation because the Constitution of India does not specifically mention "Collegium," either in its original form or in any subsequent changes, past numerous rulings, not parliamentary legislation, led to the creation of the system of collegium-based judge nomination and transfer. The cases are referred to as the three judges' cases jointly.
The central question in each of the three cases was whether Article 124 meant what it said it meant when it used the phrase "consultation" and whether the consultation had any legal effect on the president.
THREE JUDGES CASE
In S.P. Gupta v. Union of India¹, case. Bhagwati J. supported the opinions of Krishna Iyer J. in Union of India v. Sankalchand Himmatlal Sheth when he explained the definition of the word "consultation" In the Sankalchand Sheth Case, Krishna Iyer, J. stated: "Consultation is different from congruence." We concur with this statement. Although they may consult, they might not agree. This reminds me of the opinions expressed by Canada's Dixon CJ, who stated, "The Prime Minister and the Minister of Justice, who make the final decision on appointment] feel free to consult me. I feel free to give views, which they are free to take or not to take."
Bhagwati J, however, voiced his displeasure with the current "Mode of appointment of judges in India" where "the authority to select judges has exclusively been vested 'in a single individual' (the President) whose choices may be incorrect or inadequate" and "may also sometimes be imperceptibly influenced by extraneous or irrelevant considerations" in the First Judges' Case(S.P. Gupta v. Union of India). In light of this, he recommended that there be a Collegium that would advise the President on the selection of a Supreme Court or High Court Judge. Wider interests should be consulted, and the recommending authority should have a broader base of support.
Second Judges Case:
The nine-judge bench, however, overturned the first judge's case decision in 1993 and decided to give the chief justice of India primacy. In another case, it was determined that "consultation" actually meant "concurrence" and that the institutional position developed in consultation with the two senior-most judges on the Supreme Court, rather than the CJI's personal opinion, was what was meant.
Third Judges case:
A five-judge Supreme Court panel rules in this case that the Chief Justice of India must consult with the four senior-most judges of the Supreme Court before recommending the appointment of a Supreme Court judge and the transfer of a Chief Justice or puisne judge of a High Court. The two senior-most puisne Judges of the Supreme Court must be consulted when making a recommendation for an appointment to the High Court.
Supreme Court Advocates on Record Association v. Union of India, Fourth Judge's Case (2016):
The National Judicial Appointments Commission (NJAC) Act of 2014 and the 99th Constitutional Amendment Act of 2014 were found to be unconstitutional in this case by a majority of 4:1 of the Supreme Court. Justice Chelameswar dissented, saying that "Independence of such fora rests on two integers - Independence of the institution and of individuals who man the institution." Justices Khehar, Lokur, Joseph, and Goel made up the majority of the ruling.
CHALLENGES AND ISSUES
Even the Constituent Assembly rejected the Collegium system three times while establishing the Constitution, with Dr. B. R. Ambedkar, the head of the drafting committee, labelled it "dangerous." In addition to being independent, Ambedkar had stated that the court also needed to be "competitive." According to a study by a private individual, the majority of Supreme Court and High Court justices, respectively, are related to the "higher echelons of the judiciary" and come from upper-class socioeconomic strata. Even though the Constitution's Article 124(3)calls for the nomination of "distinguished jurists" to the courts; it initially appears that judgeship is only reserved for senior judges and well-connected lawyers, with talent frequently being prioritised over personal allegiances.
The main justification for abolishing the NJAC was judicial freedom. The Supreme Court reasoned that the mere existence of Executive officials or appointees would call into question the fundamental principles of judicial independence because the appointments and decisions that would follow would be decided by considering the government's viewpoints. However, as Lord Hewart clarified in The King v. Sussex Justices ex parte McCarthy (1924), "justice must not only be done but must also be seen to be done," the presence of Executive officers/appointees would jeopardise actions. Of course, this would not result in manufactured narratives in all cases.
The independence of the court would be greatly weakened by reciprocity and retaliatory attitudes towards the political authority. The collegium system, which is currently the law of the land, is here to stay unless, of course, the administration decides to file another measure and rush it through Parliament. As of right now, the government's preferred tactic for delaying collegium nominations of judges it does not approve of appears to be purposeful inaction. And without a set deadline for the government to exonerate people suggested by the collegium, the government is free to exploit the loose end of the rope. The composition of the higher court, where women are comparatively underrepresented, is the other area of concern. A collegium is thought to convene behind closed doors and make decisions without the knowledge of the general public.
Additionally, there are no formal minutes of the collegium's meetings. There is no time limit for the process of filling vacancies because it involves both the executive and the judicial branches and is ongoing. Based on seniority, many of them hold their positions for a short period, and these kinds of conventions could impede decision-making.
While much of the criticism levelled at the collegium and the process for choosing judges for constitutional courts is justified, the answer does not rest in myopically turning the responsibility for choosing judges over to the government. Even more so, considering that the government represents about 50% of all claims currently before the courts in the nation, making it the biggest plaintiff there. Even though the Supreme Court ruled that the NJAC bill was "unconstitutional and void" in 2015, the debate over the collegium system has continued to fester and worsen. The government's attempts to take some control over the judiciary's appointment of judges suffered a serious defeat as a result.
Is the judiciary's response adequate to absolve it of all responsibility? I doubt it. Has the government gone sufficiently far to warrant interfering with judicial hiring? Undoubtedly not. The entire country will suffer if the judiciary fails, so we must choose the lesser of two evils. The time has come to think about establishing a permanent, independent agency to institutionalise the process with adequate safeguards to maintain the independence of the judiciary and ensure judicial supremacy.
The judiciary must only be answerable to the law, but it must also avoid developing into a self-sustaining oligarchy. On the other hand, the involvement of Executive officers or appointees in the selection of judges compromises the essential principle of an "independent" judiciary. It is necessary to complete the Memorandum of Procedure (MoP), a document for judge appointments that was jointly drafted by the government and Judiciary in 1999 and reviewed in 2015. The goal of the MoP was to make the judicial nomination process open and sensitive to the demands of the public, but progress remained sluggish for a long time due to disagreements between the Supreme Court and the administration. These kinds of problems demand resolution, and more agreements like the MoP demand consideration, which establish a positive precedent and ensures cooperation.