By Mohd. Imran
The Supreme Court has recently struck down the NJAC Act 2014. The present article had however been written when the Supreme Court ruling had still not come. The article assumes significance, as the Supreme Court is inviting suggestions for refining/tweaking the Collegium System. Thus, the article would give the reader an insight as to the suggestions which may be brought before the Supreme Court. The debate therefore, still rages on.
In a democratic nation, where the apex Court is considered as the guardian of the people’s Fundamental Rights, the question of the appointment of the Judges is crucial to the maintenance of independence of the judiciary. If the final power in this respect is left with the executive, then it is possible for the executive to subvert the independence of the judiciary by appointing pliable judges. Similarly, if the judiciary is under the control of the executive, it cannot punish the executive in case it violates the law.
Following the controversies, the NJAC Act, 2014 is passed by the Parliament to abolish the corruption in the matter of appointment of judges in the higher judiciary due to collegium system. The contention of the Government is that nowhere in the world judges appoint judges. Does it mean that no other country has an independent judiciary? Independence of judiciary does not get prejudice if the executive is involved to appoint the judges along with judiciary.
However, the NJAC Act, 2014 itself has come under several criticisms because of inadequacy. There is also a threat to the Independence of Judiciary. The Supreme Court was hearing the petition challenging the constitutional validity of the Act. It should be noted that the appointment of judges by the other judges is not the basic structure of the Constitution.
Introduction
In any country, the judiciary plays an important role of interpreting and applying the law on the subjects of the State. Thus, it is the function of the courts to maintain rule of law in the country and to assure that the government runs according to law.
In a country with a written constitution, courts have the additional function of keeping all authorities within the constitutional framework so that constitutionalism prevails in the country. In India, the Judiciary has a significant function of protecting and enforcing the Fundamental Rights of the people guaranteed to them by the Constitution.
Thus, the Independence of Judiciary is necessary to maintain the rule of law and also for just and fair judicial administration. Before going into the composition, functioning, merits and demerits of the National Judicial Appointment Commission, to be established by the National Judicial Appointment Act, 2014, we should first understand what the collegium system is, and trace the history of judicial appointment in India.
Constitutional Provision of Appointment of Judges in High Courts and the Supreme Court
The appointment of Judges of the Supreme Court and their removal are governed by Article 124 of the Constitution of India. Articles 125 to 129 provide for certain incidental matters. The appointment and removal of the Judges of the High Courts are governed by Article 217. Articles 218 to 221 and 223 to 224(A) provide for certain matters incidental thereto. Article 222 provides for transfer of judges from one High Court to another.
Article 124(2) provides, “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 Courts 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 in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.”
Similarly, Article 217(1) provides, “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.”
Though according to the language used in Articles 124 and 217 the President is required to “consult” legal experts, prior to the decision of the Supreme Court on S.C. Advocate-on-Record Association, it has always been interpreted that the President was not bound to act in accordance with such consultation.
Till 1973, the practice was to appoint the senior-most Judge of the Supreme Court as the Chief Justice of India. This practice has virtually been transformed into a convention and was followed by the executive without any exception. On April 25, 1973, however, the old practice was suddenly broken. Mr. A.N. Ray was appointed as Chief Justice of India superseding three of the senior colleagues, Justice Shelat, Hegde and Grover.
Following the controversies, the meaning of the word ‘consultation’ came for the consideration of the Supreme Court in Sankalchand Sheth’s case. It was held that the word ‘consultation’ meant full and effective consultation. Though ‘consultation’ does not mean concurrence and the President is not bound by it.
In S.P. Gupta v. Union of India, the Supreme Court explained that the meaning of the word ‘consultation’ in Article 124(2) is the same as the meaning of the word ‘consultation’ in Article 212 and Article 222 of the Constitution. The only ground on which the decision of the Government can be challenged is that it is based on mala fide and irrelevant consideration. This means the ultimate power to appoint judges is vested in the executive from whose dominance and subordination it was sought to be protected.
In a historic judgment in S.C. Advocate-on-Record Association v. Union of India, a nine-judge bench of the Supreme Court by a 7-2 majority overruled its earlier judgment in S.P. Gupta v. Union of India and held that, “in the matter of appointment of the Judges of the Supreme Court and the High Court the Chief Justice of India should have primacy”.
The appointment of the Chief Justice of India shall be on the basis of seniority. The selection should be made as a result of a participatory consultative process in which the executive should have the power to act as mere check on exercise of power by the Chief Justice of India.
Loopholes in the Collegium System
It is a fact that collegium system over the years has come under severe criticism on account of opaqueness in the matter of transfer and appointment of judges of higher judiciary.
Besides, the growing corruption and nepotism within the judiciary calls for transparency. It is also criticized that the consultation process followed by collegium system is secretive and unknown to the public, and meritorious candidates are denied an opportunity to serve on the bench for undisclosed reasons.
India is the only constitutional democracy where the Judiciary appoints its own judges. The concern around the current process of appointment is that it possibly lacks accountability, a clear merit-based criteria and diversity in composition. The process is not open to public scrutiny and the norm of seniority has become a proxy criterion for judging merit. Neither the executive nor the legislature has any say in the appointment of the judges.
Justice P. Sathasivam also admitted that there is corruption in the judiciary. Admitting the lacuna in the present system he said that it would be better to improve this system to see that the rotten eggs are removed. He also added that there is no need to change present collegium system.
Former Justice V.N. Khare, former Chief Justice of India, says that there is nothing bad in the existing system (collegium system) but accepts that there is scope for its improvement. However, none of them mentioned how and when the Judiciary is going to abolish the corruption in its own system.
During hearing the petition, the Attorney General even submitted a list of bad appointments to the five-judge Constitutional Bench. Moreover, countering the petitioner’s argument that involvement of executive in the selection of judges would lead to interference in the independence of judiciary, senior advocate T.R. Andhyarujina said, “Nowhere in the world judges appoint judges. Does it mean that no other country has an independent judiciary? Independence of judiciary does not get prejudice if the executive is involved to appoint the judges along with judiciary.”
It should be noted that appointment of the Judges in the Supreme Court and High Courts is not the basic structure of the Indian Constitution, only the independence of Judiciary is. Thus, if any new law is brought by the Government to appoint the judges in higher judiciary, the law should prevail unless it destroys the basic structure of the Constitution.
The worst part of the collegium system is its secrecy, opaqueness and non-participation of the Sovereign, i.e., the people of India. Therefore, the erstwhile collegium system is arbitrary, non-accountable and undemocratic.
The NJAC Act, 2014
Article 124(A) in the Constitution, to replace the method of appointment to the higher judiciary with that of a National Judicial Appointment Commission (NJAC). The Bill was passed with some key amendments in the Lok Sabha on August 13, 2014 and now it has also got the assent of the President of India.
The Commission will now comprise of the Chief Justice of India, two senior-most judges of the Supreme Court, Union Law Minister and two eminent citizens to be nominated by the Chief Justice of India, Prime Minister and Leader of Opposition or Leader of largest opposition party in the Lok Sabha.
The Chief Justice of India will be the chairperson of the Commission. One of the eminent citizens will be nominated from among the SC/ST, OBC, minorities or women.
Procedure for Appointment and Transfer of Judges
The procedure for the appointment of the Chief Justice of India and other judges of the Supreme Court are given under Section 5 of the National Judicial Appointment Commission Act, 2014. As per Section 5(1), the NJAC shall recommend the senior-most Judge of the Supreme Court for the appointment as Chief Justice of India, provided that he is considered fit to hold the office.
Section 5(2) says, the NJAC shall recommend names of persons on the basis of their ability, merit and other criteria specified in the regulations. But the NJAC shall not recommend a person for appointment if any two of its members do not agree to such recommendation.
Section 6(1) of the Act provides that the Commission shall recommend a judge of a High Court to be the Chief Justice of a High Court on the basis of seniority across High Court Judges. The ability, merit and other criteria of suitability as specified in the regulations would also be considered.
The nomination for the appointment of High Court Judges shall be sought from Chief Justice of the concerned High Court. The Commission shall nominate names for appointment of High Court judges and forward such names to the Chief Justice of the concerned High Court for his view.
In both cases, the Chief Justice of the High Court shall consult two senior-most judges of that High Court and any other judges and advocates as specified in the regulations. The NJAC shall also elicit the views of the Governor and Chief Minister of the State before making recommendations.
It should be noted that Commission shall not recommend a person for appointment if any two members of the Commission do not agree to such recommendation. As per Section 9 of the Act, the NJAC is to make recommendations for transfer of Chief Justice of the High Court according to the procedure specified in the regulations.
Drawbacks in NJAC Act, 2014
It is true that NJAC is brought due to the defects in collegium system. Though, NJAC itself could not escape criticism. The NJAC Act, which is brought after inserting a new Article (Article 124) to the Indian Constitution, has been criticized on several grounds.
At present, the Supreme Court is examining the constitutionality of NJAC and has refused to accept the demand of the Government that the matter be referred to a larger bench of 11 judges from the existing bench of five judges headed by Justice J.S. Khehar. The court has said the hearing of the case will “continue on merit”.
The preamble of the Act states that it is to provide for the composition of the Judicial Appointment Commission for the purpose of recommending persons for appointment as Chief Justice of India and other Judges of the Supreme Court, Chief Justices and other Judges of High Courts, its functions, procedure to be followed by it and for matters connected therewith or incidental thereto.
The preamble of the Bill is underspecified and does not adequately articulate the motivations and the legislative intent of this major constitutional reform. The object of the legislation should mandate the appointment of competent, independent and impartial judiciary capable of upholding constitutionalism and rule of law in the country, through a process that ensures selection solely on the basis of merit and encourages diversity.
As far as the procedure for discharging its functions is specified in Section 9(1) and (2) of the Act is concerned, it merely says that NJAC has the power to specify, by regulations, the procedure for discharge of its functions. This is highly inadequate. The Act has to clarify the powers of the NJAC in discharging its functions.
Sections 5(2) and 6(3) provide that NJAC shall recommend the names on the basis of merit, ability or any other criteria as may be specified by the regulations. The intention of the legislature is not yet clear, that what will be basis of measuring merit and ability and if there are any other criteria, then, why the legislature did not mention it specifically?
Does Indian legislature have any mechanism to judge the merit and ability of the persons to be appointed as Judges? Notoriously, it is the criteria of “merit” that always kept out underprivileged sections of society, with no godfather, from being appointed to public service.
Moreover, in the absence of any methodology for judging ability and merit, this provision could end up packing the judiciary with “friendly” judges. The involvement of two ‘eminent persons’ is also productive of confusion as there is no definition of who is an eminent person.
Most importantly, Section 5 of the Act states that Commission shall not recommend a person for appointment if any two members of the Commission do not agree for such recommendation. This provision effectively gives the executive a veto over the nomination made by the judiciary.
It should be noted that there is no scope for the appointment of persons of diversity in present Act. The provision of the NJAC Act, 2014 should leave no one in doubt that there is every possibility of the Government appointing friendly judges destroying the Independence of the judiciary.
Hearing the petition, the Apex Court pointed out that the qualification for ‘eminent person’ did not specify whether they should be Indians. “Can a foreigner be appointed as eminent person in NJAC that will appoint the judges of Supreme Court and High Courts?” the Bench asked.
Conclusion
Separation of power among the different organs of the State is a necessity for the smooth functioning of rule of law and constitutionalism. If we see the motive of members of Constituent Assembly they never intended to allow the appointment of judges by the other judges.
In fact, Dr. B.R. Ambedkar refused to give the sole power to appoint a judge in the hand of the Chief Justice of India, though he/she is an eminent person. Till 1993, the executive appointed the judges and no difficulty arose.
But now the political scenario of India has been changed. The collegium system evolved by the Apex Court of India was unique in itself. But with the march of time it has become prey of several defects. Lack of transparency, opaqueness and unknown process for the appointment are the major defects of collegium system.
The NJAC was brought to abolish such defects of collegium system. The NJAC in itself is not adequate to ensure that the persons of merit, ability and diversity will be appointed. On the other hand, there is also a threat to the Independence of judiciary.
As the Government is the biggest litigator in the country, it cannot appoint the judges to hear its own cases. In such a situation the judiciary cannot punish the executive if it violates the law or infringes the Fundamental Rights of the citizens.
Both, the judiciary and the legislature must ensure that there must be co-operative separation of power and not the competitive. Any competition for power among organs of the State can lead to a dilemma. The constitutional law of India is evolving with the passing of time but we cannot have a system of appointment of judges in higher judiciary at the cost of the Independence of judiciary.
The legislature must ensure the Independence of Judiciary by making such amendments in the NJAC Act, 2014.