An Article by Miss. Anita Verma, Advocate, BA, LLM
High Court of Himachal Pradesh at Shimla
The Constitution of India secures independence of judiciary. Independence of judiciary is essential condition for success of Indian democracy. Judicial independence in fact is one of the central components of our democracy. The importance of independence of judiciary is recognizes in India since it is the key factor to maintain rule of law and back constitutional mandate. All develop and under developed countries has realised and accept the importance of Independence of Judiciary. Constitution of India has offered several provisions aiming to safeguard the independence of judiciary. It has also provided a complete procedure to appoint and remove judges. It is worthy to point out here that the Constitution is a fundamental norm of legal system.
In Indian democracy, judiciary plays a significant role to ensure social, economic and political justice. It interprets the law and adjudicates disputes. The framer of Indian Constitution has provided adequate provision for an in dependence and impartiality judiciary. They recognized that judges must be free to perform judicial function and discharging their duties and functions without hindrances. Indian Judiciary in number of cases, itself has laid emphasis on judicial independence and emphases on reducing the role of the executive and the legislature in the matter of appointment of judges.
When issue regarding appointment and transfer of judges come before the court, in S P Gupta case, the court itself had given upper hand to the executive in matter of appointment and transfer of judges. However in subsequent cases, judiciary itself realized that judges must be fairly appointed and transferred and hence subjected the role of the executive in judicial appointment. The collegiums system has been adopted for transfer and appointment of judges of higher judiciary.
Collegiums system in India is the system by which the judges are appointed by the judges only also referred to as “Judges- selecting- Judges”. In the Supreme Court Collegium is headed by the Chief Justice of India and comprises four other senior-most judges of the court. A High Court collegium is led by its Chief Justice and four other senior most judges of that court. Names recommended for appointment by a High Court Collegium reaches the government only after approval by the CJI and the Supreme Court collegium.
Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegiums The Collegium sends the recommendations of the names of lawyers or judges to the Central Government. Similarly, the Central Government also sends some of its proposed names to the Collegium. The Central Government does the fact checking and investigates the names and resends the file to the Collegium. Collegium considers the names or suggestions made by the Central Government and resends the file to the government for final approval. If the Collegium resends the same name again then the government has to give its assent to the names. But time limit is not fixed to reply. This is the reason that appointment of judges takes a long time.
Constitutional provisions and procedure for appointment of Judges:
It is proved fact that only independent and neutral judiciary where judges are fairly and transparently appointed can better protect right of the individuals. The method of appointment of judges to higher judiciary play a vital role in ensure its independence. The Constitution of India prescribes Article 124(1) for the establishment of the Supreme Court and Article 214 High Court in each state or a common High Court for two or more states. Every judge of the Supreme Court shall be appointed y the President by warrant under his hand and seal after the 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. In the case of appointment of judges other than the Chief Justice, the Chief Justice of India always consulted.
Like appointment of Supreme Court judges, every judge of a High Court shall be appointed by the President by warrant under his seal after consultation with the Chief Justice. It should, however, be noted that the power of the President to appoint and transfer of judges of Supreme Court and High Court is purely on formal because in this matter he acts on the advice of the council of minister. There is apprehension that executive may bring politics in the appointment of judges therefore the Indian Constitution does not leave the appointment of judges purely in the hand of the executive. The President, in the appointing other judges of the Supreme Court is bound to consult the Chief Justice of India, he is not bound to consult anyone.
Institution of Collegium system:
Collegium system has evolved through the series of judgment of “ Judges case”. There were three cases namely:
- S. P. Gupta v. Union of India also known as the Judges 1st Transfer case:- in the present case Constitution Bench held that the term “consultation” used in Articles 124 and 217 was not “concurrence” meaning that although the President will consult these functionaries, his decision was not bound to be in concurrence with all of them.
- Supreme Court Advocates-on Record Association vs. Union of India – 1993: a nine-judge Constitution Bench overruled the decision in S P Gupta and devised a specific procedure called ‘Collegium System’ for the appointment and transfer of judges in the higher judiciary. The majority verdict accorded primacy to the CJI in matters of appointment and transfers while also ruling that the term “consultation” would not diminish the primary role of the CJI in judicial appointments. Ushering in the Collegium system, the court said that the recommendation should be made by the CJI in consultation with his two senior-most colleagues, and that such recommendation should normally be given effect to by the executive.
- In re Special Reference 1 of 1998: In 1998, President K R Narayanan issued a Presidential Reference to the Supreme Court over the meaning of the term “consultation” under Article 143 of the Constitution (advisory jurisdiction). The question was whether “consultation” required consultation with a number of judges in forming the CJI’s opinion, or whether the sole opinion of CJI could by itself constitute a “consultation”. In response, the Supreme Court laid down 9 guidelines for the functioning of the Coram for appointments and transfers — this has come to be the present form of the collegium, and has been prevalent ever since. This opinion laid down that the recommendation should be made by the CJI and his four senior most colleagues, instead of two. It also held that Supreme Court judges who hailed from the High Court, for which the proposed name came, should also be consulted. It was also held that even if two judges gave an adverse opinion, the CJI should not send the recommendation to the government.
Points beside the Collegium System
- In spite of being a democracy, the judges appoint judges in India. There is a lack of transparency in the collegiums system. Collegium system is recommending the appointment of the judges without considering the several talented junior judges and advocates. This system could not appoint judges as per the vacancies in the courts due to various reasons.
- In the year 2009, Law Commission of India said that nepotism and personal patronage is prevalent in the functioning of the Collegium System.
- The system of appointment and transfer of judges through collegiums is opaque. The citizens of India have no right to know about the procedure to appoint judges. Collegium System of the country is seen as a closed-door affair without a formal and transparent system. Judges, hopeful of going higher, have to please the members of the collegium. Sometimes, collegium gets hindered, when old rivalries between its members see each other’s favorites getting vetoed. Sometimes collegium meetings become examples of bargaining within the collective, and consensusemerging from a division of the spoils.
So Collegium System is not a healthy practice for a democratic country like India. The Collegium System is not the constitutional system so the central government should make appropriate laws to pull out the Indian Judicial System from the monopoly of some families.
Why collegium system is still working today
A simplistic understanding might make the collegium system look rather opaque, especially because only judiciary has the power to select future judges. However, this is also a way to make judiciary independent of politics. There is a sepration of power between the Executive Legislature and Judiciary. Having been kept outside of the legislature and executive, the system is believed to keep selection of future judges free from outside interference. It upholds the seniority of candidates and is supposed to abide by the principles of separation of powers in the Constitution. With the government’s involvement, many fear the judiciary might have to compromise on its independence.
The system needs to establish a body which is independent and objective in the selection process. The new system should ensure independence, reflect diversity, and reveal proficient competence and integrity. The need of the hour is to resume the existing system through a transparent and participatory procedure, preferably by an independent broad-based constitutional body guaranteeing judicial primacy but not judicial exclusivity. The Constitution of India prescribes the clear cut criteria regarding the appointment and transfer of judges to the higher Judiciary. The executive, legislature and judiciary, all limbs of the state, should participate in appointment wherein through consultative process best suited person can be selected as judges.
Though no cut and dry solution can be offered to secure judicial independence owing to the complexity of the issue of appointment in India nevertheless the suggestions tendered above would be useful to ensure judicial independence to great extent. If the mechanism to appoint judges would be open to public scrutiny, the people of India would have been more faith in judiciary.