Ongoing Tussle Between The Executive And The Judiciary
Why in news?
In January 2023 the Union Law Minister Mr Kiren Rijiju has written a letter to the CJI about the amendment in MoP (Memorandum of Procedure). Later he elaborated on this through his tweet. CJI replied and emphasised the independence of the judiciary while addressing an event. The contest for primacy over judicial appointments is now turning out to be an open display of discord between the two Constitutional functionaries, i.e. Executive and Judiciary.
Though this is an old issue and become more apparent when Supreme Court held 99th Constitutional amendment as unconstitutional in 2015. In 2021 the CJI asked government about the uncleared recommendations for the appointment of judges.
This turf war again made the issue of judicial appointment in a burning issue. People, from all fractions of life, whether legal or non-legal, are divided on this issue. So, let’s have a look at various aspects of this system.
Present MoP controversy
In the said letter the law minister cited and express concern about the amendment in MoP (Memorandum of Procedure) for the appointment of judges. He referred a 2018 judgement of five-judge bench of the Supreme Court. This MoP was first framed in 1999, in pursuant of Third Judges case. Thereafter, the appointments were made in consonance with it. In the NJAC judgment, the court observed that the MoP must be revisited to avoid any complications. Subsequently, the government drew up a new draft of the MoP in 2017 and sent it to the Supreme Court. However, the parties have not been able to reach a consensus on the 2017 draft. The law minister, in his tweet, suggested that the letter was an attempt to restructure the existing MoP. Supporters of judicial independence call it an attempt to bring back NJAC without changing the law.
What is the collegium system of appointment of judges?
Þ The Collegium system is a system to appoint judges of the Supreme Court and high courts. In this system, there is a body of judges (collegium) who selects the names for the appointment.
Þ As per Article 124 of the Constitution, the President of India appoints judges recommended by the Collegium. The Collegium recommends the candidate to the Law Minister, who forwards it to the Prime Minister who then advises the President for the final appointment.
Þ If the Collegium resends the same name again then the government has to give its assent to the names.
Þ The number of judges in the collegium is CJI+ 5 senior-most judges for appointment of judges in the Supreme Court and CJI + 3 senior-most judges for appointment of judges in High Courts.
Þ Like the Supreme Court, the high courts, too, have a Collegium, headed by the chief justice of the high court and two senior-most judges as members. The high court Collegium sends its judicial appointments recommendation only to the Supreme Court Collegium.
Þ In case of appointment of chief justice (Supreme Court or High Court) the chief justice does not take part and another senior-most judge discharges duty as collegium member.
Þ The collegium system of appointment of judges is introduced by the Supreme Court in the second judges’ case and elaborated in the third judges’ case.
Þ Presently, the Members of Collegium are:
- 1. Chief Justice Dhananjaya Y. Chandrachud
- 2. Justice Sanjay Kishan Kaul
- 3. Justice K. M. Joseph
- 4. Justice Mukesh Shah
- 5. Justice Ajay Rastogi
- 6. Justice Sanjiv Khanna
Why the collegium system is criticised?
The Collegium System faced a lot of criticism not only from the government but also from civil society due to its Lack of Transparency and Accountability.
The following arguments are given in against this system:
1. This system is not created by the constitution but created by the judiciary itself. The word ‘collegium’ is not mentioned in the Constitution.
2. This system is not transparent. No one can know on what grounds the collegium found more suitable a candidate than another or on what grounds any candidate found not suitable. Well knows advocate Prashant Bhushan says “collegium system is better than govt. appointed judges, but it is non-transparent, non-objective and riddled with nepotism. The grounds of the collegium’s recommendations or discussion in the collegium etc. were secret. The members of the collegium are not accountable to anyone for their recommendations
3. There is no such system in the world where a judge appoints a judge.
4. It is against natural justice.
5. There is not a complete balance in the appointment of judges whether territorial representation or gender equality.
6. There is no question of competency of the judges appointed in this manner but this is a question of principle. There should be any criteria for appointment.
7. Absolute power to any authority is against article 50 of the Constitution which talks about the separation of power. Article 124 talked about the ‘opinion’ of the judiciary, but the judiciary interpreted it as ‘consent’. Therefore, the complete exclusion of the executive in appointment is against the principle of the Constitution. No part of the state can be allowed to violate the principle laid down in the constitution.
8. The appointment process takes a long time since there isn’t a fixed time limit for it.
9. The competency and integrity of judges before the collegiums system was introduced, is unquestionable. Though in 1973 the government had appointed the chief justice of India superseding three judges, but his competency and integrity remain untainted. Though a review of Keshwanand Bharti judgement was done, but judgement was upheld. We got many of our finest judges before the collegium system.
Arguments in support of the collegium system
1. This system is for the protection of judicial independence. Past experience shows the executive has done misuse of power to get a favourable judiciary.
2. The judges are the best person to estimate the competency of judges.
3. The judges appointed through the collegium system are always proved their competency and integrity.
4. The appointment of through the collegium is not so opaque and the collegium scrutinised every candidate very strictly. Even it collects information from government investigation agencies about the candidates.
5. The Supreme Court itself made strict guidelines for the appointment of judges.
6. The collegium system is not against the constitution. Article 124 says that the president will appoint judges with the consultation of the CJI, in the case of the appointment of other judges and any other senior judges in the case of the appointment of the Chief justice of India. Judiciary felt that it is better to take the opinion of more than one person (judges) than one person. Therefore it replaces the consent of judges to a body of 5 judges (from the third judges’ case, before that number was 3 judges). Hence, the judiciary imposed more restrictions to protect its independence. The appointment is still done by the President of India.
Phases of the appointment of judges in higher judiciary/Evolution of the collegium system
The system of appointment has been developed in the following phases:
First phase (1950-1973)
Article 124 of the Constitution only says that President will appoint judges with the opinion of the Chief Justice of India (CJI), in the appointment of other Judges and the other judges from whom he thinks fit to do so.
Before 1973 government appointed the judges on a seniority basis and there was no dispute between the judiciary and executive on this matter. A convention was formed where the senior-most judge of the Supreme Court was to be appointed as the Chief Justice of India.
Second phase (1973-1982)
In 1973, Justice A.N. Ray was appointed as the Chief Justice of India. This violated the convention formed earlier since Justice A.N. Ray superseded three other Supreme Court judges senior to him. The three superseded judges reigned. It was believed that this was a result of the Supreme Court judgement in the Keshwanand Bharti case.
Again in 1977, another chief justice was appointed who superseded his seniors.
There were 56 High Courts judges who were transferred within 21 months. 16 Judges were transferred in a single day. Many jurists called these transfers punitive transfers.
This resulted in a clash between the Executive and the Judiciary. The criteria of seniority are not mentioned in the Constitution. The competency of the appointed judges was not in question. But superseding the other judges gave a message to the public at large that the government wants its favourable judiciary. This was not good for the impartiality and transparency of the independent judiciary. Now the question arose who is the supreme authority to appoint Judges in the Supreme Court and high courts?
Many petitions were filed in different courts related to judicial independence.
First Judges Case, 1982 (S.P. Gupta vs. Union of India, also known as the Judges’ Transfer case) (a 7-judge bench decided by 4:3 majority)
In 1981 then Law Minister P. Shiv Shankar issued a circular regarding the transfer of the additional judges of high courts. This circular was saying that:
1. Additional judges had to give their consent to get an appointment in any other high court. If they deny then they were not eligible for a further appointment as a permanent judge in any other high court.
2. The people who will be appointed in future to the other high courts where he was practising as an advocate, had to give their consent.
There were so many petitions filed before the courts related to this circular and other issues of appointment of judges and additional judges in high courts. Including a petition filed by Mr S.P Gupta. Mr S. P. Gupta was a practising advocate of Allahabad high court. The Supreme Court clubbed the 8 petitions and heard them collectively. The case title was S.P. Gupta Vs. Union of India.
Contentions on behalf of the petitioner:
1. If vacancies are there, then why the appointment of an additional judge instead of a permanent judge?
2. Transfer system of high court judges and high court additional judges needs to be reviewed in light of the constitutional provisions.
3. Advance consent will reduce the value of consent of the chief justice under articles 124 and 227.
Contentions on behalf of the government:
1. The system (not appointing the court where the candidate was practising as an advocate) was required for transparency of the judiciary
2. The petitioners have no locus standi in the case
3. If a judge got transferred to another high court, then a fresh oath will be required and a fresh oath is amount to a fresh appointment and for a fresh appointment, consent is required.
The Supreme Court decided 2 major points in this case:
1. Whether the word “consultation” in the constitutional article 124 mean “concurrence”? The Supreme Court overruled this and denied saying that Consultation does not mean concurrence. The President was not bound to make a decision based on the consultation of the Supreme Court.
2. Can a high court judge be transferred against his/her will? The Supreme Court decided that a High Court Judge can be transferred to any other high court of a state even against his will.
3. All judges agreed that petitioners have locus standi to file the present petition.
4. The validity of the circular was upheld.
Second judges’ case, 1993 (Supreme court advocate on record association V. Union of India (AIR 1994 SC 268) and connected cases) (decided by a 9-judges bench of the Supreme Court)
Contentions on behalf of the petitioners
1. First judges case ignored Article 50 (art 50- Separation of judiciary from executive The State shall take steps to separate the judiciary from the executive in the public services of the State)
2. Court did not interpret the word ‘consultation’ correctly. Latter interpretations may be left valueless to the opinion of CJI
Contentions on behalf of the government
If the opinion of the CJI is given supremacy then Article 124(1) will be useless. This Article not bound the president to accept the opinion of the CJI.
Supreme Court judgement
1. Court overruled its earlier verdict and changed the meaning of consultation to concurrence.
2. The consultation of the CJI becomes binding on the President of India.
3. The court observed that the literal interpretation of the word “opinion” may be harmful to an impartial judiciary therefore this word must be interpreted with flexibility.
4. In this case collegium system has been introduced. Though the word ‘collegium’ was used in the first judges’ case for the first time. However, in the second judges’ case, the court interpreted this system in detail and implemented this.
Third judges case, 1998 (In Re Special Reference 1 of 1998)
Þ In this case, the court elaborated on the collegium system.
Þ In the year 1998, the presidential reference to the Supreme Court was issued questioning the meaning of the word ‘consultation’ in articles 124, 217, and 222 of the Constitution.
Þ The court decided in this case that the chief justice won’t be the only one as a part of the consultation process. Consultation would include a collegium of 4 senior-most judges of the Supreme Court. Even if 2 of the judges are against the opinion, the CJI will not recommend it to the government.
Þ In the verdict, the Supreme Court laid down strict guidelines for the appointment of Judges of the Supreme Court and high courts which is currently known as the Collegium System.
Þ The court held that the Views of the judges consulted should be in writing and should be conveyed to the government of India by CJI.
National Judicial Appointment Commission
In 2014 the parliament passed the National Judicial Appointment Commission Bill, 2014. On 31 December 2014, the President assented to this Bill and then the Bill became Act. This Act scrapped the collegium system of appointment of judges. Accordingly, the 99th Constitution (Amendment) Bill was passed.
Quashing of 99th Constitution Amendment- Supreme Court Advocates-on-record Association & Anr. vs. Union of India (2016) 5 SCC 1, (2016) 2 SCC (LS) 253) (Fourth judges’ case, 2015)
However, on 16 October 2015, the Supreme Court quashed the 99th amendment and NJAC Act by a Majority judgement of 4:1. The court declared that NJAC is interfering with the autonomy of the judiciary by the executive which amounts to tampering with the basic structure of the constitution. But in the same judgement, the Supreme Court acknowledged that the collegium system is lacking transparency and credibility which would be rectified/improved by the judiciary.
The way forward
The Supreme Court even in the Fourth Judges case accepted the discrepancies of the collegium system. Justices A.K. Goel and U.U. Lalit also brought out deficiencies in the system and emphasised the need to improve the appointment process. This prompted the government to once again prepare draft guidelines to supplement the existing MoP, in consonance with the December 2015 verdict. No response on this communication, too, has been received from the Supreme Court.
This situation shows that there is a need of improvement of present system of appointment of judges. Executive and judiciary both getting their power to the Constitution and need to enjoy their power within the constitutional limitations.
