Issues Related to Collegiums System:

 How should the judges be selected to higher judiciary?
Has collegium system of judges' appointment outlived its utility? This question has been bothering not just the top echelons of judiciary in India but the executive too. Though the ‘collegium system’ which appoints judges has been in place for quite some time now, there have been murmurs of dissatisfaction over the practice in different quarters. The collegium system — which is followed in the appointment of judges to the supreme court and the high courts has recently been challenged in the supreme court. The petitioner, Rajasthan-based Suraz India Trust wants the court to declare the system ‘ultra vires’ and ‘unconstitutional’ because the constitution does not mention it anywhere and it has been brought into existence through the judgements of the supreme court. The bench, which heard the matter, referred it to the Chief Justice of India for ‘appropriate direction’ as the petition raised ‘complicated legal issues.’ On its part, the government has said that the matter required ‘reconsideration.’

The appointment of judges to the Supreme Court of India and the High Court has over the years been a subject of intense conflict between the judiciary and the executive.

What are the Constitutional provisions?

Article 124(2) and 217(1) provide procedure for appointment of judges in higher judiciary.

Article 124(2) reads inter alia thus:

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the high courts in the states as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.

Article 217(1) provides that every Judge of a high court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the high court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years.

Article 124(2) talks about two type of consultation. One, being discretionary on the part of the President and the other being mandatory under the provision. Under Article 217(1) the process of ‘consultation’ by the President is mandatory and this clause does not speak of any discretionary consultation.

Introduction to collegiums system

Collegiums System is a system under which appointments and transfers of judges are decided by a forum of the Chief Justice of India and the four senior-most judges of the Supreme Court. It has no place in the Indian Constitution.

The collegium system has its genesis in a series of three judgments that is now clubbed together as the "Three Judges Cases". The S P Gupta case (December 30, 1981) is called the "First Judges Case".

In the S.P. Gupta case (the First Judges’ Case, 1981), the Supreme Court held by a majority that among the opinion of the three constitutional functionaries, the opinion of the Chief Justice of India

did not enjoy primacy over those of the other two in the matter of appointment of judges. This view paid due regard to plain language; ‘consultation’ was not an ambiguous word at all.

The Second Judges’ Case, i.e. Supreme Court Advocates on Record, was decided in October 1993. ‘Consultation’ acquired a meaning.

The judgment stated that the question of primacy of the role of the Chief Justice of India in the context of appointment of judges in the Supreme Court and the High Courts must be considered to achieve the constitutional purpose of selecting the best available for composition of the Supreme Court and the High Courts, so essential to ensure the independence of the judiciary, and thereby, to preserve democracy. A fortiori any construction of the constitutional provisions which conflicts this constitutional purpose or negates the avowed object has to be eschewed, being opposed to the true meaning and spirit of the Constitution and, therefore, an alien concept.’ And so the consultation is with the Chief Justice of India as the head of the Indian judiciary, for the purpose of composition of higher judiciary, has to be distinguished from the colour the same word "consultation" may take in the context of the executive associated in that process to assist in the selection of the best available material.’

Further it is the judges who are best equipped to assess the suitability of lawyers to be on the bench because it is the courts which are the arenas where they perform. In other words, the technical competence of lawyers could best be appraised by judges. The opinion of the Chief Justice of India did not mean the individual opinion of Chief Justice of India, it meant his opinion formed collectively, that is to say, after taking into account the views of his senior colleagues, ‘who are required to be consulted by him for the formation of his opinion.’ This leads to the formation of the ‘collegium’.

In 1998, President K.R. Narayanan issued a presidential reference to the Supreme Court as to what the term “consultation” really means in Articles 124, 217 and 222 (transfer of HC judges) of the Constitution. The question was if the term “consultation” requires consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of the CJI constituted the meaning of the articles. In reply, the Supreme Court laid down nine guidelines for the functioning of the coram for appointments/transfers; this came to be the present form of the collegium.

Besides, a judgment dated October 28, 1998, written by Justice S P Bharucha at the head of the nine-judge bench, used the opportunity to strongly reinforce the concept of “primacy” of the highest judiciary over the executive.

While it is very much true that even under the prevalent system, the executive government is not bound to accept the recommendations of the Collegium if there are serious conflicts between its members or if dissent overpowers proposals, as also laid down in Third Judges' case (1998), but if the Collegium itself in unanimity flouts the principles of natural justice or diversity and equitable representation in matters of appointments, the government can only remain a mute spectator.

The first ever views against the collegiums system was expressed by National Commission to Review the Working of Constitution (NCRWC) headed by the former Chief Justice of India (CJI), Justice MN Venkatchaliah in its report (2002) also recommended setting up of NJC headed by CJI for appointment, transfer and dealing with errant judges. This was followed by the Fourth Report (2007) of the Second Administrative Reforms Commission headed by the former Union Law Minister, M Veerappa Moily which suggested the formation of the National Judicial Council proposed to be headed by the Vice-President of India and comprising members from all three pillars of democracy, a practice which is followed in many other democratic countries.

The then 18th Law Commission of India under Justice AR Lakshmanan in its 214th Report (2008) also recommended reconsideration of present process of appointing higher judges. All this apart, even certain Parliamentary Committees , noted jurists, legal intellectuals , representatives of Bar Panels as well as leaders of leading national political parties have been urging vociferously for replacing the prevalent “Collegium” system with a more broad-based and transparent mechanism. What more to say when even renowned legal luminary, Fali S Nariman who appeared on behalf of petitioners in Second Judges' (1993) regretted his victory which ushered in Collegium system in Indian Judiciary.

It is often lamented that India is the only democratic country where only Judges appoint Judges.

In recent public interest litigation, the collegium system was questioned. Refreshingly, the Attorney General (and presumably with the consent of the present government) supported the petitioner, saying that the Second and Third Judges’ Cases require reconsideration. However, the petition was ultimately dismissed with the Supreme Court holding that the present system merited no change.

SC guidelines on Appointments:
1. The term “consultation” with the Chief Justice of India in Articles 124 (2), 217(1) and 222 (1) requires consultation with a plurality of judges in the formation of the opinion of the CJI. The sole, individual opinion of the CJI does not constitute consultation.

2. The CJI can only make a recommendation to appoint a judge of the Supreme Court and to transfer a Chief Justice or puisne judge of a High Court in consultation with the four senior-most judges of the Supreme Court. As far as the High Courts are concerned, the recommendation must be made in consultation with the two senior-most judges of the Supreme Court.

3. Strong cogent reasons do not have to be recorded as justification for a departure from the order of seniority in respect of each senior judge who has been passed over. What has to be recorded is the “positive reason for the recommendation”.

4. The views of the judges consulted should be in writing and should be conveyed to the Government of India by the CJI along with his views to the extent set out in the body of this opinion.

5. The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations.

6. Recommendations by the CJI without [such compliance] are not binding upon the government.

7. The transfer of High Court judges is judicially reviewable only if the CJI took the decision without consulting the other four judges in the Supreme Court collegium, or if the views of the Chief Justices of both High Courts [involved in the transfer] are not obtained.

8. The CJI is not entitled to act solely in his individual capacity, without consultation with other judges of the Supreme Court, in respect of materials and information conveyed by the Government for non-appointment of a judge recommended for appointment.

9. The CJI can consult any of his colleagues on the appointment of a HC judge to the Supreme Court or transfer of a puisne judge. The consultation need not be limited to colleagues who have occupied the office of a judge or Chief Justice of that particular High Court.

Flaws in the collegiums system

The present process adopted by the collegium of judges is beset with its own problem of opacity and non-accountability besides excluding Executive entirely in the collaborative and consultative exercise for appointment of judges to Bench of higher judiciary. Because of its inherent deficiencies in the collegium, as many as approximately 275 posts of judges in various High Courts are lying vacant, which has direct bearing upon justice delivery system and thereby affecting the institutional credibility of judiciary.

The operation of the collegium has marked the complete breakdown of the inter-institutional system envisaged in Article 124 and Article 217. The collegium system enshrines de facto judicial supremacy over appointments. Though the executive must formally confirm the appointment, the role is marginal as its objections can be overridden by the collegium, whose decision is determinative in practice. The constrained role of the executive denudes the possibility of an inter-institutional check and balance on the judiciary and also renders public questioning of the executive in relation to judicial appointments futile as the executive inevitably pleads helplessness.

The collegium system has been criticised on various instances. A prominent one being the case of Delhi High Court Chief Justice AP Shah, who was supposed to be elevated to the Supreme Court. However, the collegium having Chief Justice S H Kapadia on board, rejected his appointment to the Apex Court. Interestingly, a few years back, when both Justice Kapadia and Justice Shah were on the bench of the Bombay High Court, the latter had dissented with the future Chief Justice of India. Another instance of supersession was when Justice Arijit Pasayat, as part of the collegium, had blocked the appointment of Justice A.K.Patnaik, then the Chief Justice of Madhya Pradesh High Court for unknown reason, though Justice Patnaik was a judge of immense repute. In yet another instance, Sikkim High Court Chief Justice Dinakaran was appointed to be elevated to the Supreme Court, only to be later charged guilty of corruption and graft charges. The recent allegations of Gujarat High Court Chief Justice Bhaskar Bhattacharya against former CJI Altamas Kabir have put a huge question mark on the collegium system. Justice Kabir has been alleged of scuttling Justice Bhattacharya’s elevation to the Supreme Court on the ground of malice due to the latter having rejected Justice Kabir’s sister appointment as a Calcutta High Court judge. Lastly, one other major flaw of the collegium system that has been seen over the years is that almost thirty per cent seats in various High Courts of the country remain vacant due to inefficient functioning of the collegium.

Steps to make the process transparent

The former CJIs M.N. Venkatachaliah and the late J.S. Verma; the retired Supreme Court judge, Justice Ravindaran, and Professor Madan Gopal expressed concern over the appointments made under the present collegium system. They strongly advocated the setting up of a Judicial Appointments Commission to select eligible and meritorious candidates as High Court judges

The Judicial Appointments Commission Bill, 2013, seeks to reform the appointment of High Court and Supreme Court judges by establishing a Judicial Appointments Commission (JAC). Simultaneously, a constitutional amendment providing for the recommendation of the JAC for appointment of judges to the government is proposed to be made by the Constitution (120th Amendment) Bill, 2013.

The Bill provides for the composition, functions and procedure of the Judicial Appointments Commission. The Commission is sought to be established for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, and Chief Justice and other Judges of High Courts.

The Bill seeks to enable equal participation of Judiciary and Executive, ensure that the appointments to the higher judiciary are more participatory, transparent and objective.

Establishment and composition of Commission

• The Commission shall be chaired by the Chief Justice of India (CJI) and shall comprise of two other senior most Judges of the Supreme Court, the Union Minister for Law and Justice, and two eminent persons to be nominated by the collegium.
• The collegium comprises the Prime Minister, the CJI and Leader of Opposition of the Lok Sabha. The eminent members will retain membership for a three year period and are not eligible for re nomination.
• The Secretary to the Government of India in the Department of Justice shall be the convener of the Commission.

Functions of Commission

• The Commission seeks to perform functions that relate to appointment, transfer and quality of candidates.
• Those include (i) recommending persons for appointment as Chief Justice of India; judges of the Supreme Court, Chief Justices of High Courts and other judges of High Courts; (ii) recommending of transfer of Chief Justices of High Courts and the judges of High Courts, from one High Court to any other High Court; iii) ensuring that the person recommended is of ability, integrity and standing in the legal profession.
• The procedure for recommendation with respect to appointment of High Court Judges includes eliciting views of the Governor, Chief Minister and Chief Justice of High Court of the concerned state, in writing. This shall be in accordance with procedure specified by regulations made by the Commission.

Reference to Commission for filling up of vacancies

• Upon the arising of a vacancy in the High Court and Supreme Court, references to the Commission shall be made by the Central Government.
• Intimation of existing vacancies shall be made within a period of three months from the date of coming into force of this Act.
• In the case of vacancy due to the completion of term, reference shall be made two months prior to the date of occurrence of vacancy.
• In the case of vacancy due to the death, resignation, reference shall be made within a period of two months from the date of occurrence of vacancy.
Procedure for short listing of candidates
• Process for selection shall be initiated by the Convener, by inviting recommendations from the Chief Justices of High Courts, the Central Government and the State Governments, for candidates fulfilling eligibility criteria.
• The Commission may make regulations to specify the procedure for short listing of candidates for considering their appointment as Judges to the High Court and Supreme Court.

THE COLLEGIUM SYSTEM vs. THE JUDICIAL APPOINTMENTS COMMISSION

The collegium system has failed to create an unbiased system for making the appointments of the judges of the Supreme Court and the High Courts and many voices from the legal fraternity have been demanding its replacement. But Charges have already been leveled against the JAC as an attempt to compromise the independence of the Judiciary. It has been said that the cure should not be worse than the disease. It is required that the JAC should not give sweeping powers to the Executive and a balance is maintained. There is a system of checks and balances under which the Constitution functions and it can be maintained only if no organ of the State is vested with an absolute power. 
The collegium system is an undemocratic system under which the prerogative lies with the Judiciary to make the appointments to such a powerful institution. This system is a perfect example of legislation by the Judiciary. Such a system is not followed in any democratic state and is unique to our legal system. It has completely annihilated the Constitution scheme of checks and balances by reducing the role of the Executive to the minimum. 
The JAC, Bill definitely provides a better alternative but a lot of debate and discussion is required to be conducted before it turns into an Act as it concerns a matter of immense importance. There is no clarity as to who will be the ‘two eminent’ persons who are proposed to be the members of the JAC and on what considerations they will be selected. The UPA government’s hurry to pass the bill has raised serious aspersions on the intention of the government. The approach of the government should be more assiduous and responsible. This is not a bill of ordinary importance and concerns the complete overhaul of the process of judicial appointments. It should be passes only after detailed deliberations and debates. The non transparency of the current collegium system should not be made a pretext for giving the Executive sweeping powers in the matter of judicial appointments.

Shortcomings of the proposed reforms

1. The JAC has the Chief Justice of India and two senior most judges. Then there is the Law Minister and two “eminent persons,” bringing the non-judicial component to three out of six members.

• The selection of eminent persons risks the taint of political appointments, given the fact that the selection is made by the Prime Minister and the Leader of the Opposition constituting a total of two, and reducing the judicial component consisting of the Chief Justice to one.

2. The constitutional amendment bill, which provides the constitutional support for the JAC bill, does not incorporate the composition of the JAC.

• The composition of the JAC has to be entrenched in the Constitution itself; otherwise it could be subject to changes by any ordinary law by the government of the day. This is also the view of the standing committee.

3. The JAC is vested with the power to recommend persons for appointment of the Chief Justice of India — which means the rule of seniority has been given the go-by.

• Every eligible senior judge will now face a direct threat to being superseded from being appointed as Chief Justice.

4. To seek the opinion of the government and the Chief Minister of the State in the appointment process again raises the risks of political appointments — which in turn jeopardises independence.

5. Under the JAC bill, the JAC has been entrusted with the formidable task of not only appointing 31 SC judges, but over 800 judges in 24 high courts.

• To be effective, such a commission has to be a full-time institution.

• It is impossible for it to operate part-time with ex-officio judges of the SC, who have full-time court work, and the law minister, who has other duties, in charge.

• In the UK, the judicial appointments commission has 15 commissioners and is a permanent institution working day-to -day with a large secretariat to support it.

6. Under the JAC bill, the JAC would have the onerous task of appointing SC judges as well as the high court.

• As the criteria for selection for SC judges is different from that of high court judges, and considering the importance of SC judges, there should be a separate commission for appointments to the SC, as in the UK.

7. A serious lacuna in the bill is that the selection of judges is to be determined by regulations made by the commission to “shortlist” candidates.

• There is no indication of how candidates will be shortlisted and by whom.

• In the absence of definite objective criteria, the short listing could be highly subjective and even arbitrary. This has also been noted by the standing committee in its report.

• The standing committee has suggested public notifications be issued inviting applications for appointment to the post of judges of the high court, as is the practice in the UK. However, this is unlikely to work well in India.

• Advertising for a judicial post is likely to deter well-qualified candidates from accepting appointments because they will be apprehensive of the impact a rejected application could have on their reputation.