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Collegium system & transparency of judicial appointments: a conundrun

Between criticisms of opaque-ness and an absence of transparency to concerns of brazen interference from an Executive that has shown no regard for Constitutional basics even niceties, the Collegium system of appointment of Judges is once again in public debate

Legal Researcher 09 Nov 2022

Rijuji
Image courtesy: The Quint

Recent statements, sharp and strident from India’s minister for Law and Justice, Kiran Rijiju, on the apparent ‘lack of transparency’ within the Collegium system for appointment of judges to Indian courts, has been met with a dignified response from India’s 50th Chief Justice, DY Chandrachud.

Speaking to the Indian Express on the charge of the Collegium working being opaque, Justice Chandrachud said there is a “legitimate… public interest in knowing how judges are appointed” but “we also need to preserve the privacy of the people”, members of the Bar or judges of the High Court “who are under consideration”.  This revived controversy has brought back into focus the debate on appointments to higher judiciary.

In this context, this article tracks the adoption of collegium system in judicial appointments.[1]

Before, any further discussion, it is important to note that one of the fundamental features of the Indian Constitution is the Doctrine of Separation of Powers. French Philosopher Montesquieu said that when the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. This separation of powers between different branches of the government makes sure that there is a system of checks and balances.

In the Indian context, the Supreme Court and High Courts not only interpret the Constitution but also protect the fundamental rights of citizens under Article 32 and Article 226 respectively. The Supreme Court also has original jurisdiction over Centre-State disputes, central government, state -other states, the inter-state disputes under Article 131 of the Indian Constitution. To perform the functions it is empowered to, the Supreme Court needs to be free from any political pressure when it is making any decisions. It requires no explanation that appointment of judges be without any political motivation.

Appointment of Judges.

Article 124(2) of the Indian Constitution states as follows:

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 Court 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]—

a. a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).

And with respect to appointment of the judges to the High Court, Article 217(1) states as follows:

217. Appointment and conditions of the office of a Judge of a High Court

“(1) 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….”

The appointment of judges used to happen with full discretion of the executive until the case of  the Supreme Court Advocates on Record Association vs. Union of India in 1993.  The first case to deal with on the issue of appointment of judges is SP Gupta vs. Union of India.

SP Gupta vs. Union of India[2], 1982

In this case, a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. The state claimed that the information is privileged under Article 74(2) of the constitution, which states that the courts shall not enquire into the correspondence between the council of ministers and the president. One of the petitioners also argued that the consultation meant concurrence of the Chief Justice in the matters of appointment of judges.

The court was to deal with the question to interpret the word ‘consultation’ which the president is supposed to do with the Chief Justice before appointing a judge. The court stated as follows”

"But, while giving the fullest meaning and effect to consultation', it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. "  

The court also stated that the court is not required to abide by the advice from the consultations. The court stated

It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Govt. in defiance of such unanimous opinion, it may become vulnerable to attack on the ground that it is mala fide or leased on irrelevant grounds. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it. We may, however, make it clear that on a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is open, to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional, functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.”

This meant that the control of appointment of judges vested with the executive, virtually. This was not to be changed until eleven years later in 1993 case of SC AOR Association vs. Union of India.

Supreme Court Advocates on Record Association vs. Union of India[3]

In this case, the SC overruled the judgement in SP Gupta vs. Union of India and introduced a specific system to appoint judges rather than affirming the executive discretion as was done in the SP Gupta case.

In this case, firstly, the court noted that primacy should be given to the Chief Justice’s opinion when there is a consultation between the President and the CJI. If there is unanimous decision, there is no need to be considering the CJI’s opinion but if there be a conflict, the judgement said, the most weightage should be given to the CJI’s opinion.

The court also stated that - in exceptional cases alone, for stated strong, cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended individual is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. The opinion of the Chief Justice of India has not mere primacy but is determinative in the matter of transfers of High Court Judges/Chief Justices.

The court also stated that the CJI’s opinion be formed after consultation with the senior judges since power cannot be vested with one man. The court stated

"However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India 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."

The court said that "inter se, seniority amongst Judges in their High Court and their combined seniority on all India basis" should be "kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court". It also said that "the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority" must be duly considered. 

‘Presidential Reference’ for clarification of SC AOR Association vs. Union of India, 1998[4]

In 1998, the President referred to the Supreme Court, using his constitutional powers vested in him under Article 143, for clarification, the SC’s guidelines in the case of SC AOR Association vs. Union of India. The President called for an opinion of the SC on multiple questions on transfer and appointment of judges and the role of CJI in the whole process.

This judgement gave more detailed procedure to the whole appointment process by mandating that the CJI should consult with 4 senior most judges of the Supreme Court while making recommendations to the SC and that the sole individual opinion of the CJI does not constitute consultations within the context of Article 124(2).

The court stated as follows-establishing the collegium system that we see today:

“The Chief Justice of India must 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 puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.”

Another important development that this judgement has brought in is that it mandated that the views of the senior judges who are consulted by the CJI and the views of CJI himself be conveyed to the government in writing and thereafter, the government can appoint them.

An important aspect of this judgement is that it emphasises (does not mandate) a consensus within the collegium system. The court, given that the collegium is consisting of people with different opinions, realised that someday, the CJI might find himself in minority whereas the other senior judges are in majority regarding appointment or non-appointment of a candidate. The court stated as follows on how the collegium should decide on the collective opinion that is to be then sent to the government:

“It is, we think, reasonable to expect that the collegium 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 a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment 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 recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably 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 the collegium 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.”

After the judgement in 1998, the procedure for appointments was clear. In appointments to both the Supreme Court and High Courts –India’s constitutional courts-- the Collegium would be the selecting body and the Government will be the appointing body; the Collegium will have to consider the all India seniority list while appointing judges to the judiciary. The court, as evident from above, emphasised that the Collegium should give an anonymous decision which would mean that the conflict or the reasons for the non-appointment of a candidate, will not be known or disclosed, in general.

Supreme Court Advocates-on-record Association & Anr. vs. Union of India, 2016[5]

It stemmed from a group of petitions challenging the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) along with the National Judicial Appointments Commission Act, 2014 (NJAC Act). These Acts were enacted to replace the Collegium system used for making appointments to the higher judiciary with the National Judicial Appointments Committee (NJAC). The NJAC included the Union Minister for Law and Justice and two eminent persons, besides the Chief Justice of India, and next two senior most judges in the Supreme Court. The Collegium, which the NJAC proposed to replace, included the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court. 

The Supreme Court struck down the amendment to the Constitution down saying that it breaches the Theory of Separation of Powers. The majority opinion of the court held that the involvement of the executive in the appointment of judges impinged upon the primacy and supremacy of the judiciary and violated the principle of separation of powers between the executive and judiciary which formed part of the basic structure of the Constitution. The dissenting judgement by Justice Chelameshwar argued that the independence of the judiciary is not established by merely the primacy of the opinion of the Chief Justice or the Collegium.

Conclusion

The Collegium system could withstand one attempt to dilute it, by the executive, via the NJAC judgement but a better accountable system of appointing judges will not be, arguably a bad thing. Since the power of judiciary resides in the trust of people in the system, a transparent system which checks and balances, with more accountability of those who appoint the judges to appoint judges to the higher judiciary will only make the democracy stronger.

The context and timing of the demand for an NJAC and the track record of the present regime in giving a go-by to all constitutional and parliamentary procedures and principles has invited charges of ‘Parliament is being used to dismantle the Indian Constitution brick by brick.’

Given this conundrum, the appointment of higher court judges and the need for accountability and transparency remains stuck, between a rock and a hard place.


[3] (1993) 4 SCC 441

[4] AIR 1999 SC 1

[5] (2016) 5 SCC 1

 

(The author is a legal researcher currently giving his post graduate examinations)

Collegium system & transparency of judicial appointments: a conundrun

Between criticisms of opaque-ness and an absence of transparency to concerns of brazen interference from an Executive that has shown no regard for Constitutional basics even niceties, the Collegium system of appointment of Judges is once again in public debate

Rijuji
Image courtesy: The Quint

Recent statements, sharp and strident from India’s minister for Law and Justice, Kiran Rijiju, on the apparent ‘lack of transparency’ within the Collegium system for appointment of judges to Indian courts, has been met with a dignified response from India’s 50th Chief Justice, DY Chandrachud.

Speaking to the Indian Express on the charge of the Collegium working being opaque, Justice Chandrachud said there is a “legitimate… public interest in knowing how judges are appointed” but “we also need to preserve the privacy of the people”, members of the Bar or judges of the High Court “who are under consideration”.  This revived controversy has brought back into focus the debate on appointments to higher judiciary.

In this context, this article tracks the adoption of collegium system in judicial appointments.[1]

Before, any further discussion, it is important to note that one of the fundamental features of the Indian Constitution is the Doctrine of Separation of Powers. French Philosopher Montesquieu said that when the legislative and executive powers are united in the same person, or in the same body or magistrates, there can be no liberty. This separation of powers between different branches of the government makes sure that there is a system of checks and balances.

In the Indian context, the Supreme Court and High Courts not only interpret the Constitution but also protect the fundamental rights of citizens under Article 32 and Article 226 respectively. The Supreme Court also has original jurisdiction over Centre-State disputes, central government, state -other states, the inter-state disputes under Article 131 of the Indian Constitution. To perform the functions it is empowered to, the Supreme Court needs to be free from any political pressure when it is making any decisions. It requires no explanation that appointment of judges be without any political motivation.

Appointment of Judges.

Article 124(2) of the Indian Constitution states as follows:

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 Court 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]—

a. a Judge may, by writing under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office in the manner provided in clause (4).

And with respect to appointment of the judges to the High Court, Article 217(1) states as follows:

217. Appointment and conditions of the office of a Judge of a High Court

“(1) 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….”

The appointment of judges used to happen with full discretion of the executive until the case of  the Supreme Court Advocates on Record Association vs. Union of India in 1993.  The first case to deal with on the issue of appointment of judges is SP Gupta vs. Union of India.

SP Gupta vs. Union of India[2], 1982

In this case, a number of petitions involving important constitutional questions regarding the appointment and transfer of judges and the independence of judiciary. One of the issues raised was regarding the validity of Central Government orders on the non-appointment of two judges. To establish this claim, the petitioners sought the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi, and the Chief Justice of India. The state claimed that the information is privileged under Article 74(2) of the constitution, which states that the courts shall not enquire into the correspondence between the council of ministers and the president. One of the petitioners also argued that the consultation meant concurrence of the Chief Justice in the matters of appointment of judges.

The court was to deal with the question to interpret the word ‘consultation’ which the president is supposed to do with the Chief Justice before appointing a judge. The court stated as follows”

"But, while giving the fullest meaning and effect to consultation', it must be borne in mind that it is only consultation which is provided by way of fetter upon the power of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. "  

The court also stated that the court is not required to abide by the advice from the consultations. The court stated

It would therefore be open to the Central Government to override the opinion given by the constitutional functionaries required to be consulted and to arrive at its own decision in regard to the appointment of a Judge in the High Court or the Supreme Court, so long as such decision is based on relevant considerations and is not otherwise mala fide. Even if the opinion given by all the constitutional functionaries consulted by it is identical, the Central Government is not bound to act in accordance with such opinion, though being a unanimous opinion of all the three constitutional functionaries, it would have great weight and if an appointment is made by the Central Govt. in defiance of such unanimous opinion, it may become vulnerable to attack on the ground that it is mala fide or leased on irrelevant grounds. But we do not think that ordinarily the Central Government would make an appointment of a Judge in a High Court if all the three constitutional functionaries have expressed an opinion against it. We may, however, make it clear that on a proper interpretation of Clause (2) of Article 124 and Clause (1) of Article 217, it is open, to the Central Government to take its own decision in regard to appointment or non-appointment of a Judge in a High Court or the Supreme Court after taking into account and giving due weight to the opinions expressed by the constitutional, functionaries required to be consulted under these two Articles and the only ground on which such decision can be assailed is that it is mala fide or based on irrelevant considerations.”

This meant that the control of appointment of judges vested with the executive, virtually. This was not to be changed until eleven years later in 1993 case of SC AOR Association vs. Union of India.

Supreme Court Advocates on Record Association vs. Union of India[3]

In this case, the SC overruled the judgement in SP Gupta vs. Union of India and introduced a specific system to appoint judges rather than affirming the executive discretion as was done in the SP Gupta case.

In this case, firstly, the court noted that primacy should be given to the Chief Justice’s opinion when there is a consultation between the President and the CJI. If there is unanimous decision, there is no need to be considering the CJI’s opinion but if there be a conflict, the judgement said, the most weightage should be given to the CJI’s opinion.

The court also stated that - in exceptional cases alone, for stated strong, cogent reasons, disclosed to the Chief Justice of India, indicating that the recommended individual is not suitable for appointment, that appointment recommended by the Chief Justice of India may not be made. The opinion of the Chief Justice of India has not mere primacy but is determinative in the matter of transfers of High Court Judges/Chief Justices.

The court also stated that the CJI’s opinion be formed after consultation with the senior judges since power cannot be vested with one man. The court stated

"However, it need hardly be stressed that the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India 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."

The court said that "inter se, seniority amongst Judges in their High Court and their combined seniority on all India basis" should be "kept in view and given due weight while making appointments from amongst High Court Judges to the Supreme Court. Unless there be any strong cogent reason to justify a departure, that order of seniority must be maintained between them while making their appointment to the Supreme Court". It also said that "the legitimate expectation of the High Court Judges to be considered for appointment to the Supreme Court, according to their seniority" must be duly considered. 

‘Presidential Reference’ for clarification of SC AOR Association vs. Union of India, 1998[4]

In 1998, the President referred to the Supreme Court, using his constitutional powers vested in him under Article 143, for clarification, the SC’s guidelines in the case of SC AOR Association vs. Union of India. The President called for an opinion of the SC on multiple questions on transfer and appointment of judges and the role of CJI in the whole process.

This judgement gave more detailed procedure to the whole appointment process by mandating that the CJI should consult with 4 senior most judges of the Supreme Court while making recommendations to the SC and that the sole individual opinion of the CJI does not constitute consultations within the context of Article 124(2).

The court stated as follows-establishing the collegium system that we see today:

“The Chief Justice of India must 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 puisne Judges of the Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two senior-most puisne Judges of the Supreme Court.”

Another important development that this judgement has brought in is that it mandated that the views of the senior judges who are consulted by the CJI and the views of CJI himself be conveyed to the government in writing and thereafter, the government can appoint them.

An important aspect of this judgement is that it emphasises (does not mandate) a consensus within the collegium system. The court, given that the collegium is consisting of people with different opinions, realised that someday, the CJI might find himself in minority whereas the other senior judges are in majority regarding appointment or non-appointment of a candidate. The court stated as follows on how the collegium should decide on the collective opinion that is to be then sent to the government:

“It is, we think, reasonable to expect that the collegium 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 a minority and the majority of the collegium disfavour the appointment of a particular person? The majority judgment 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 recommended is unsuitable for stated reason, which are accepted by the President, then the non-appointment of the candidate recommended by the Chief Justice of India would be permissible". This is delicately put, having regard to the high status of the President, and implies that if the majority of the collegium is against the appointment of a particular person, that person shall not be appointed, and we think that this is what must invariably 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 the collegium 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.”

After the judgement in 1998, the procedure for appointments was clear. In appointments to both the Supreme Court and High Courts –India’s constitutional courts-- the Collegium would be the selecting body and the Government will be the appointing body; the Collegium will have to consider the all India seniority list while appointing judges to the judiciary. The court, as evident from above, emphasised that the Collegium should give an anonymous decision which would mean that the conflict or the reasons for the non-appointment of a candidate, will not be known or disclosed, in general.

Supreme Court Advocates-on-record Association & Anr. vs. Union of India, 2016[5]

It stemmed from a group of petitions challenging the validity of the Constitution (Ninety-Ninth Amendment) Act, 2014 (99th Amendment) along with the National Judicial Appointments Commission Act, 2014 (NJAC Act). These Acts were enacted to replace the Collegium system used for making appointments to the higher judiciary with the National Judicial Appointments Committee (NJAC). The NJAC included the Union Minister for Law and Justice and two eminent persons, besides the Chief Justice of India, and next two senior most judges in the Supreme Court. The Collegium, which the NJAC proposed to replace, included the Chief Justice of India and a forum of the four senior-most judges of the Supreme Court. 

The Supreme Court struck down the amendment to the Constitution down saying that it breaches the Theory of Separation of Powers. The majority opinion of the court held that the involvement of the executive in the appointment of judges impinged upon the primacy and supremacy of the judiciary and violated the principle of separation of powers between the executive and judiciary which formed part of the basic structure of the Constitution. The dissenting judgement by Justice Chelameshwar argued that the independence of the judiciary is not established by merely the primacy of the opinion of the Chief Justice or the Collegium.

Conclusion

The Collegium system could withstand one attempt to dilute it, by the executive, via the NJAC judgement but a better accountable system of appointing judges will not be, arguably a bad thing. Since the power of judiciary resides in the trust of people in the system, a transparent system which checks and balances, with more accountability of those who appoint the judges to appoint judges to the higher judiciary will only make the democracy stronger.

The context and timing of the demand for an NJAC and the track record of the present regime in giving a go-by to all constitutional and parliamentary procedures and principles has invited charges of ‘Parliament is being used to dismantle the Indian Constitution brick by brick.’

Given this conundrum, the appointment of higher court judges and the need for accountability and transparency remains stuck, between a rock and a hard place.


[3] (1993) 4 SCC 441

[4] AIR 1999 SC 1

[5] (2016) 5 SCC 1

 

(The author is a legal researcher currently giving his post graduate examinations)

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