Should Govt. have control in the appointment of judges?

KAKALI DAS

A system of Indian judiciary that finds no mention in the Constitution, nor has any associated law!

What is this system that handles the long arm of the law, defer hearings, keep checks and balances in the democracy?

Why are the Govt. and the Supreme Court at odds regarding this system?

yellow and green leafed trees under cloudy sky

The future of democracy may be dependent on this system of Indian Judiciary. The system of appointment and transfer of judges is what keeps judiciary independent. This system is criticised, often labelled undemocratic, and Govt. wants to change it. Here, I am pinpointing about the controversial Collegium System of appointing judges.

Why is the Govt. bothered by the Collegium System as the law minister has openly criticised the Supreme Court?

Why does the Govt. want to scrap the collegium system and implement NJAC?

Is scrapping Collegium and implementing NJAC a plan to capture the judiciary, as claimed by Congress?

If this happens, what is next for Indian Democracy?

If you think about it, judiciary is the most important and powerful pillar of a democracy – let’s quickly discuss all the three pillars of democracy! But, don’t ask about the fourth pillar i.e., media – it doesn’t stand for democracy.

Should Govt. have control in the appointment of judges?

Suppose, there is a triangle – at the bottom is democracy, and at the top is independent judiciary – there is no pressure at this point. On the remaining 2 points are executive and legislative as shown in Fig. 1. And, there is a reason why judiciary is placed at the top – because if executive or legislative, or both are not functioning as expected, then judiciary can balance it out.

For ex – if an MLA’s relative lodges fake complaint against you, then who will save you? It’s the judge who will grant you bail. The court is the one which will examine all the details of the case and give justice. Whether uncle is MLA or Chief Minister, law is the same for everyone.

But, some people say that all the power, today, is ultimately with the judiciary, and that is against the constitution. But the state of opposition and media makes independence of judiciary all the more important, especially when one is in coma and the other is sitting in the lap of the supreme govt.

The debate on judicial independence is not new – when Indira Gandhi imposed emergency, the Supreme Court stood as an onlooker. Every constitution does have some limitations or lacuna, and that is why amendments to constitutions are made from time to time.

Article 124 of the Indian Constitution discusses appointment of Supreme Court judges by the President by warrant under his hand and seal after consultation with such judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for this purpose.

The term “consultation” is the key here – and may be the reason for the conflict, because of the interpretation of this key word that has created ruckus. What if the President does not want to entertain the opinions of the Supreme Court judges? To clarify this, three important judgements at three different points in time were given, as follows: 1^st Judges Case 1981, 2^nd Judges Case 1993, 3^rd Judges Case 1998.

The conclusion that the Supreme Court came with is that the word ‘consultation’ here is meant concurrence. Meaning, the Supreme Court’s opinion on judges’ appointment is binding on President or Govt. The Govt. must approve in any case and this interpretation leads to the birth of the Collegium System (but is it happening?). Not quite – but let us first understand how the collegium system functions and why Govt. does not like it.

How does Collegium System function?

A standard collegium has 5 members – one of which is the CJI and the others are senior most judges of the SC. These members take the decision of appointment or transfer of a judge, but the process is long – recommendation, review and detailed vetting. After this thorough process, names are sent to the law minister.

Law ministry hands over to the Prime Ministe, and ultimately president signs it. If the Govt. does not prefer recommended names, then they can raise objection once and return to the SC. However, if the SC sends back the same names, then Govt. has to approve it.

That is where the issue is, in the recent development between Govt. and Collegium. The Supreme Court sent a proposal for appointment of 18 judges – Govt. returned it on Jan 31. This hasn’t happened for the first time – conflict between Govt. and SC collegium has been happening, and many recommended names are still pending approval.

Experts believe that the Govt. does not want to approve those recommendations who ask too many questions or may create problems for them in the future. Govt. says it is worried about lack of transparency and objectivity in collegium system, and won’t tolerate decisions forced on it.

Law Minister Kiren Rijiju said in a conclave that collegium system is opaque and not held accountable to the public. He was criticised for his remarks – people said that the law minister should not have questioned judicial system. Supreme Court also objected to the minister’s remarks on collegium.

In Nov last year, the SC told the Attorney General of Govt. while hearing contempt petition by advocate association Bengaluru, “I ignore press reports but what he (Rijiju) says; when somebody high enough says ‘let them do it themselves’, (then) we will do it (make appointments) ourselves, if necessary. I am not saying anything else. If we have to, we will take a decision.”

Furthermore, in December 2022, Justice SK Kaul of the Supreme Court also said: “Till the collegium system is there, till it is upheld, we have to enforce it. You want to bring another law, nobody stops you from bringing another law.” Just like Nirmala Aunty says (her classic dialogue) – It is the Kanoon – so everyone must follow law of the land instead of making remarks.

The conflict, again, gained limelight on the first day of winter session in the Parliament, when Vice President Jagdeep Dhankhar reminded judiciary to respect the Laxman rekha. Not just that, Vice President also mentioned NJAC in his speech – repealing NJAC (national judiciary appointment commission) was a move against parliamentary sovereignty.

Transparency or Control? By now, you understand that the Govt. does not like collegium – is it about transparency or about having a say in the appointment of judges? What is the real intention? You judge for yourselves.

Why is the Govt’s affection for NJAC?

Modi Govt. sees it as an alternative to collegium.

In fact, Modi govt. is desperate to implement NJAC as way back in August 2014 – they made a constitutional amendment to make way for the bill soon after coming to power, and the bill passed in both houses of parliament.

But, in Oct 2015, the Supreme Court repealed NJAC, saying it was against basic structure of constitution. That is how NJAC went down, but even today, ministers of Modi govt. keep mentioning about it.

What is NJAC? Is it more transparent and effective?

In 2000, during Atal Bihari Vajpayee tenure, a commission was set up to improve collegium system under Justice Venkatachalia – they suggested formation of NJAC. NJAC is similar to the collegium system – it is also a committee of judges but with one difference – law minister and civil society experts are also included, and that is being objected.

Let’s learn about the structure of NJAC in detail!

NJAC has 3 judges including CJI, and the law minister, and 2 civil society experts, making it a committee of six members. The Supreme Court said that this system is against the basic structure of constitution – Why? Because the basic structure of constitution states a separation of powers and priority to the independence of judiciary. While, NJAC is against the principle of “Separation of powers” and “Independence of judiciary”.

Separation of powers mean that two pillars cannot share one another’s powers, so as to keep checks and balances. And no one can put pressure on decisions of the judiciary ensuring its independence.

In this manner, in NJAC, law minister is directly involved and civil society members will also be chosen by parliament (hence, no separation of powers). Secondly, NJAC also has a problematic provision that even if 2 members reject any proposal then appointment of judge is cancelled. Then, how will an independent, questioning judge ever be appointed if it’s through NJAC? Firstly, the elected law minister is in the panel, and then 2 civil society members – who can also come under pressure by some means, to go one way.

Collegium Vs NJAC

This was collegium versus NJAC – there were good reasons to reject NJAC by the Supreme Court. It’s not like the Collegium System is perfect – its biggest criticism is that it promotes nepotism. Just like star kids are launched in Bollywood, here too a judge tends to launch his son as judge through this system. Allahabad High Court Judge Rang Nath Pandey wrote about this to the PM. Retired justice V. R. Krishna Iyer also said that Collegium has done more harm to judiciary – so there is debate.

Collegium or NJAC – which will impact judiciary more – you can decide. But there are problems, despite collegium. Whether NJAC is passed or not, Govt. found ways to influence collegium system.

Modi govt. has challenged primacy of court for years – as there is no set time frame related to the appointment of judges, so Govt. just sits on the proposal of collegium. For ex. – Amitesh Banerjee, son of justice UC Banerjee isn’t appointed yet (it may be a coincidence that UC Banerjee is the same judge who ruled out conspiracy in Godhra and found it accidental). Another example – John Sathyan, yet to be appointed Madras High Court judge despite many proposals, on the other hand, controversial justice Victoria Gowri got immediate approval.

So, the govt. can sit on appointment proposal by Court – now court has to decide whether Govt. should have full control, or should there be a pre-decided time frame on appointments. Otherwise, at this rate, only Govt. approved will become judges – checks and balances, independence of judiciary will be affected.

What do you say? Should Govt. have controlling role in appointment of judges?

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