India is a democratic country which has its own Supreme Legislation named the Constitution of India. Under this Legislation, there is a concept of the independent judiciary which has originated from the Doctrine of Separation of Power. Within the past few months, we have got the news where persons sitting on constitutional posts like the Vice President of India Jagdeep Dhankar and Former Law Minister Kiran Rijiju have raised their issues on the appointment of Judges through the Collegium System. This statement has raised a question mark on the functioning of the Judiciary as well as the interference of the executive and legislative bodies with the Judiciary. In this blog, we will go through the system adopted for the appointment of judges in the Higher Judiciary.
KEYWORDS: NJAC, Collegium System
Independent Judiciary is one of the salient features of the Constitution of India which has originated from the Doctrine of Separation of Power. This doctrine states that the three pillars of our country namely Legislative, Executive and Judiciary will not directly interfere in the functioning of the other bodies and they have been given separate powers and functions. In India, the appointment of Judges in the higher Judiciary is done through the Collegium system which comprises 5 members including the Chief Justice of India and the four other senior-most judges of the Supreme Court who send the names to the Central Government for the purpose of recommendation of Judges who are to be appointed in the Courts. The government of India must look at the recommendation of the Collegium system and later on the President’s assent, the Judges are appointed. In the Year 2014, an amendment was made in the Constitutional Provision under which Art. 124A was inserted and a Commission was made named as National Judicial Appointment Commission which has been given the power for the appointment of Judges recommended through this Commission Only. Later on, several petitions were filed named Third Judge Case where the 5 Judge bench declared this Commission as Unconstitutional in a majority of 4:1.
THE COLLEGIUM SYSTEM
After adopting the Indian Constitution on 26th January 1950, the provision regarding the appointment of Senior Judges was mentioned in it with an aim to keep a free and independent judiciary. It was clear that the President of India will appoint the Chief Justice of India as well as other senior judges after having their consultation with the CJI. Later on, the evolution of this system carried out afterwards happening of some of the events. From 1950 to 1973, the process of appointment was normal and appointments were done through the mutual consensus between the Central Government and the CJI. A convention was made regarding the appointment of senior-most judges by the Supreme Court. Later, in the year 1973, the appointment of A.N. Ray as the CJI violated the convention as his appointment superseded three more senior judges of the SC. Again in the year 1977, the same violation occurs while appointing the CJI which created a clash between the judiciary as well as executive bodies of the country.
In the year 1982, a petition was filed by S.P. Gupta regarding appointment which was also known as First Judge’s Case. In this case, the interpretation of the word ‘Consultation’ was done and it overruled the meaning of the concurrence. The President of India was not bound to make his own choice as per the consult given by the Supreme Court. Under this, it was also held that there might be the transfer of judges within the interstate, even against their will.
Later, in the year 1993 one more petition was filed by SCARA (Supreme Court Advocates on Record Association). The previous decision was upturned or Overruled and it makes a legally binding for the President to Consult the CJI before the appointment of the Judges. This has given rise to the birth of the Collegium System. This Comes to be known as Second Judge’s Case.
Later, in the Year 1998, the presidential reference to the Apex Court as per articles 124, 217 and 22 of the Indian constitution issued questioning once again on the word Consultation. It was laid out that the Consultation process was not only up to CJI but there would be a collegium which also have four senior-most judges of the Apex Court. If there is any disagreement between even any 2 judges then the CJI cannot make any recommendation regarding such an appointment. From this, the appointment of judges takes place till now. This comes to be known as the third Judge Case.
After so much criticism faced by the Collegium System in the appointment of judges, a new bill was introduced known as NJAC to fix those errors. In the year 2014, the Parliament passed these bills under the Law Minister Ravi Shankar Prasad passed the bill and inserted article 124A into the Constitution Provision regarding such appointments. This provision illustrates the appointment of judges of the Apex Court and the High Court. Under this, a commission has been established for these appointments which comprise the CJI, Two Senior Supreme Court Judges, The Union Minister of Law and Justice, two distinguished persons who may be appointed by the Prime minister of India, the Leader of Opposition and the CJI (under which one member belongs to SC/ST/OBC/minority/woman).
Later the NJAC bill was declared unconstitutional by the Supreme Court 5 Judges bench with a complete majority of 4:1. After this we see these types of clashes between the executive and the Judiciary till now.
CRITICISM OF THE COLLEGIUM SYSTEM
From time to time, the current collegium System faced criticism by the Government as well as civil Society on the ground of its accountability, and functioning. Various critiques have been made about it. Some of these grounds are:
Unconstitutional and Autocratic: Due to the lack of any constitutional provision it has been criticised as an unconstitutional process because it has taken its birth only after the interpretation made in article 124.
Undemocratic: It also lacks a democratic process as there is no free and fair election of its appointing members. A free and fair election is one of the features of declaring it to be democratic.
Opaque Procedure: There is not a fixed transparent procedure in the appointment of judges as totally it takes place within a closed boundary wall. Hence, one can criticise it on the same ground.
As we see that there is a question mark raised by various government officials regarding the appointment of Judges within the past few months. Hence a proper system must be made for the appointment of judges which comprises a transparent procedure and an accountable body for their appointment. The question mark that has been rose by way of nepotism, must be solved immediately and an independent judiciary must be given to the People of India. So that the Indian Citizens have their belief over their temple of Justice either it will be High Court and The Supreme Court. These types of objections which are raised must be solved.