Is NJAC a silver lining amidst controversy over collegium?

 “Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the chief justice practically a veto upon appointment of judges ….  is a dangerous proposition”- B.R Ambedkar¹

Introduction-

“Our judiciary must both be independent of the executive and must also be competent in itself” these were the words of chief architect of our constitution, B.R. Ambedkar, in the same spirit, each and every member of constituent assembly  had made every possible attempt to create an autonomous justice system as they were well familiar with the fact that the crown jewel of any democratic country like ours is an independent judiciary which implies that the  judiciary should interpret the law and the constitution while being completely free from influence of other branches of government, political parties or public opinion or any partisan. However, for the judiciary to be truly effective the judges must be superefficient, therefore, it becomes imperative to ensure that they are appointed in a fair, impartial and non-biased manner. In India, a continuous tussle has been ongoing between government and judiciary over this matter of judicial appointment since very long time. In the concrete, when it comes to appointments and transfer of judges, all we have is a COLLEGIUM SYTEM which does not get its backing from any constitutional provision or any Act passed by parliament rather it has evolved over time through various judgements of Supreme Court, it is often criticized for being  a closed door system which lacks transparency as under it, appointment of judges is made by judges themselves, in order to have a transparent system an attempt was made to replace it in 2014 by National Judicial Appointments Commission through 99^th Amendment Act but later it was struck down by court on ground of posing a threat to independence of judiciary.

This paper seeks to analyze how efficacious the existing mechanism has been for appointment of judges and what is the proper way-out  to ensure justice inside judiciary  so that credibility  as well as independence of this pious institution can be maintained.

What Is Collegium System?

Article 124 and 217 of our constitution deal with appointment of judges of Supreme Court and high court respectively. These Articles specifically state that president shall appoint judges to Supreme Court and high court after consultation with chief justice of India and other judges. However the constitution does not lay down any process for making these appointments.

In duo course, to ensure  that chief justice of India does not impose his or her individual opinion regarding appointment and with a view to make it collective opinion of entire body, the concept of collegium system was introduced by Justice PN Bhagwati in 1993, and since then, judges in higher judiciary are appointed only through this system. It is a system of appointment & transfer of judges that has evolved through judgments of Supreme Court and not by any Act of parliament not by any constitutional provisional. 

Composition of Collegium System-

1. A Supreme Court collegium comprises four senior most judges of supreme court and it is headed by chief justice of india.
2. A high Court collegium comprises two senior most judges and is headed by chief justice of that high court
3. The names that are recommended by high court collegiums are first approved by chief justice of India and Supreme Court collegiums, and after that, it reaches the government.

 Procedures for Judicial Appointments-

• For chief justice of India:

• The president of India appoints the CJI and the other SC judges.
• The outgoing CJI recommends his successor, in practice it has been strictly by seniority ever since supersession controversy of 1970.
• For supreme court judges:

• The proposal for appointment of other judges of SC is initiated by chief justice of India.
• The CJI consults rest of collegiums members, as well as the senior-most judge of court hailing from the high court to which recommended persons belongs.
• The collegium sends the recommendation to law minister, who forwards it to prime minister to advise the president.
• For chief justice of High Courts:

• The chief justice of high court is appointed as per policy of having chief justices from outside of his or her respective states.
• The collegiums set up for the high court has final say in appointment of chief justice.
• For High Court judges:

• They are recommended by a collegiums comprising CJI and two most senior judges.
• The outgoing chief justice of respective court initiates process of appointment of judges in deliberation with two senior most judges of that court.
• After deliberation, collegiums of High Court recommends name of high court judges, the recommendation is sent to Chief Minister, who advises the Governor to send the proposal to Union Law Minister.

Evolution of collegium system-

Formation of collegiums system owes its origin to three landmark cases known as “three judges case”, detailed description of these cases is given below:

• S.P. Gupta V. Union of India (1981)²:  Also known as “first judges case”, this ruling gave executive primacy over the judiciary in judicial appointments by declaring that “primacy” of the CJI’s recommendation on appointment and transfer can be refused for cogent reasons.

• Supreme Court Advocates-On-Record Association V. Union of India (1993)³: Reversing decision of first judges case, this judgement also known as “Second Judges Case” stated that chief justice of India should be given primacy in appointment of judges. SC held that term “Consultation”given in section 124 of Indian constitution implies “Concurrence” and added that it is not CJI’s individual opinion but an institutional opinion formed in consultation with two senior-most judges in SC leading to formation of collegium system.
• In re; special Reference 1 of 1998 AKA Third Judges Case⁴: SC reiterated supremacy of judiciary over executive in matter of judicial appointment and expanded body of collegium system to a five membered body for supreme court judges and 3 membered body for appointment of High Court judges, even today number of members of collegium are same as given in this case.

Why is there controversy over collegium?

 Justice J Chelameshwar had rightly opposed the collegium system stating that the need for transparency is more in the case of appointment process as proceedings of collegiums were absolutely opaque and inaccessible both to public and history barring occasional leaks and process of appointment is wholly illogical and inconsistent with theory of democracy and a doctrinal hearsay.⁵ However there are some more issues pertaining to judges appointing judges as mentioned below:

• Favouritsm & Nepotism: collegiums system does not provide any specific criteria for testing the candidate for their respective posts which leads to a wide scope for nepotism and favoritism. An allahabd high court judge Rang Nath Pandey wrote a letter to Prime Minister, averring nepotism and castiesm in appointment of judges. He even raised concern regarding judgment delivered by judges benefiting from nepotism to be arbitrary in nature and alleged that it was unfortunate that basis for appointment of judges was “kept under wraps”.⁶

• Against the Principle of Checks and Balences: in india, three organs work partially independently but they all keep check and balances and control on the exercise of excess power by other organs. However collegiums system gives judiciary absolute power, which leaves no room for check by another organ and poses the risk of misuse of this excessive power as they are not answerable to anybody for selection of any judge, they are all sovereign in this matter which is not a sign of healthy democracy , may be that is why , no democratic country in world other than India has a collegium system for judicial appointment.

• Close- Door Mechanism: This system does not involve any official secretariat. It is a close door affair with no public knowledge of how and when a collegiums meets and how  and on what basis does it arrive at its decisions.
•  Complete Exclusion of Executive: Due to absolute exclusion of executive from judicial appointment, a system has been created where a few judges appoint the rest in complete secrecy at the same time not being accountable to any administrative body.

N.J.A.C; An Attempt To Revamp Appointment System-

To achieve greater transparency and accountability in appointment of judges, an attempt was made in 2014 to replace the collegium system by “National Judicial Appointment Commission” (NJAC) through 99^th Amendment Act o 2014, which was proposed to make appointment of chief justices, Supreme Court judges and high court judges.

Composition:

• The chief justice of India
• 2 senior-most judges of Supreme Court
• The Law Minister of India
• 2 eminent members that are chosen by selection committee comprising Prime Minister, the Chief Justice of India and leader of opposition.

However, in case of Advocates-on-record Association & Anr. V. Union of India⁷ 2015 AKA “ fourth judges case” It was struck down by Supreme Court on the ground that it was against independence of judiciary which is a principle of basic structure since it involved political executive in appointment of judges and presence of political representatives could compromise autonomy of judiciary and result in selection of judges based on political motives consequently  Supreme Court  overturned the 99^th Amendent of constitution and held the NJAC Act, 2014 to be unconstitutional reaffirming the primacy of collegiums system.

The Road Ahead-

After analyzing both NJAC and Collegium system, it is quite evident that neither the NJAC nor the collegium system is accurate; both are critically silent on major points for instance NJAC goes speechless on question of autonomy of judiciary and the opaque collegium system is undeniably against the very idea of democracy, therefore it is high time to consider a permanent and independent body which can ensure judicial independence, reflect diversity, integrity and demonstrate professional competence. 

The NJAC, if amended in proper manner, could be a helping hand, some steps are mentioned below that can be taken to amend NJAC:

• Minister of Law and Justice in the commission appointing judges should be replaced with any bureaucrat or former civil servant.
• Supreme Court needs to lay down certain guidelines for judicial appointment which should be strictly followed.
• All notification should be issued in public domain to make selection process as transparent as it could be.
• Executive interference should only be limited to appointment and should play no role in transfer of judges.

Conclusion–

In my view, we should not let the crisis of credibility persist in an institution like judiciary which is embodiment of justice itself. We all know that transparency increases credibility, therefore, no stone should be left unturned to ensure an accountable, inclusive and consultative appointment process. Dominance of any single organ in appointment of judiciary is dangerous be it legislature, executive or even judiciary itself that is why balance of all three institutions is prerequisite in order to have a thriving democracy. However while ensuring checks and balances, maintenance of judicial independence should always be our foremost goal as all we fear is judicial exclusivity not judicial primacy.

1. Ambedkar was not in favour of “collegiums system’ said dominance of CJI in judges’ appointment is dangerous by Rajat Rajan Singh, published at lawtrend, December5, 2022, retrieved from https://lawtrend.in/ambedkar-not-favoured-collegium-system-said-supremacy-of-cji-is-dangerous ↩︎
2. AIR 1982, SC 149 ↩︎
3. (1993) 4 SCC 441 ↩︎
4. AIR 1999 SC1 ↩︎
5. Collegium system of judges appointment opaque: Justice Chelameswar,published at economictimes.indiatimes.com,October 16, 2015, retrieved from https://m.economictimes.com/news/politics-and-nation/collegium -system-of-judges-appointment-opaque-justice-chelameswar/articleshow/49419256.cms ↩︎
6. Nepotism in the legal system of india ,Lexpeeps, published on September, 2021, retrieved from https://lexpeeps.in/nepotism-in-the-legal-system-of-india/ ↩︎
7. AIR 2015 SC 5457 ↩︎