Understanding The Friction Between Executive And Judiciary And Why Collegium Needs More Transparency

The Supreme Court is often in news for the pronouncement of judgment. However, recently, it has been defending itself over the functioning of the collegium system.

The war of words between the Government of India and Supreme Court created more confusion than resolution. In January 2018, four senior-most judges of the apex court held a press conference against the then Chief Justice for allegedly afflicting the office of the highest court and warned that it could destroy democracy. The current tussle between the government and the judiciary over the appointment of judges is deepening, especially after the Union Law Minister’s statement that the collegium system should be rejected.

Ironically, the Supreme Court says that the criticism of the existing system publicly may create confusion and if the government wants to change the system, then the Parliament has the power to amend the Constitution which is subject to judicial review. This article analyses emerging aspects of the collegium system and searches for transparent functioning in the context of a robust judicial system which would be beyond doubt.

The latest debate began on November 25 when Union Law Minister Kiren Rijiju termed the entire process of appointing judges as “alien” to the Constitution as it’s nowhere mentioned in the Constitution. He reminded that the Supreme Court has formed the collegium on the basis of its own understanding and orders of the court.

Speaking at the Times Now Summit, Rijiju said the Constitution of India is a “religious document” for everyone, especially the government. He asked, “You tell me where the collegium system is mentioned in the constitution?”

In response, Justice Sanjay Kishan Kaul objected to Rijiju’s statement, saying, “It may be that you have a complaint against a law, but as long as that law is in force, it should be respected. If today the government is talking about disobeying any law, tomorrow people will question any other law and refuse to accept it…Yes, Parliament has the power to enact laws. The government can ask the Parliament to lay down a new law. Nobody can prohibit it. If you want to bring a new law, and gather consensus, you can always do that. However, then you may have to stand the scrutiny of a challenge…The scheme of the Constitution requires the court to be the final arbiter on the position of law as enacted by the Parliament.”

One should remember that everything is not written even in a written Constitution. Many things may evolve as a part of constitutional development.

India can learn from the appointment of judges in other nations. The Judicial Appointments Commission, an independent organisation in the United Kingdom, is in charge of selecting judges for courts and tribunals. Three of its 15 members come from the community of judges, while the remaining members, including the chairman, are chosen through an open recruitment process. In the United States, the President appoints judges to the federal courts with the Senate’s advice and consent. In South Africa, the Judicial Service Commission advises the President to choose judges.

How did the collegium system evolve?

The debate keeps arising from time to time that in the process of selecting judges in the Supreme Court and High Courts, there is allegedly nepotism, which is called ‘Uncle Culture’ in the Judiciary — people having close relations are likely to be appointed as judges. There are more people whose acquaintances are already in high positions in the judiciary. In such a situation, it is necessary to understand what the collegium system is, how it works, what the government’s objections are regarding it, what kind of system the government wants instead, and what could be the system’s shortcomings preferred by the government.

The collegium of the Supreme Court consists of five senior-most judges including the Chief Justice of India (CJI). They consider the appointment of judges in the Supreme Court or the elevation of judges of the High Court to the Supreme Court and elevation of judges of High Courts as Chief Justices. In case of a difference of opinion, the majority view prevails.

Since the Constitution mandates that consultation with the CJI is necessary for appointments to the Judiciary, the collegium model evolved. Judges in the High Courts are also appointed on the advice of the Collegium, which includes the Chief Justice of the Supreme Court, the Chief Justice of the High Court, and the Governor of the State.
The Collegium is not a very old system and three decisions of the Supreme Court are responsible for its existence, which are known as Judges Case.

The S.P. Gupta v. Union of India (1981) is the first case, which is also known as the Judges Transfer Case. In this case, the Supreme Court said that the Chief Justice should not have a monopoly on the appointment of judges and pointed out that the government should also have a role in this and collegium should be formed. The Court meant consultation with the most senior judges is required.

In the second case, a petition was filed by the Supreme Court Advocates on Record Association (SCARA) in 1993. In this case, the SC overruled the previous verdict. A nine-judge bench said that in the appointment of judges, the opinion of the Chief Justice should be preferred over the opinion of other people.

And then in the third case in 1998, the presidential reference to the Supreme Court was sent questioning the meaning of the consultation in Articles 124, 217, and 222 of the Constitution. The SC said that the CJI will not be the only one as a part of the consultation process. Thus the apex court increased the size of the collegium and made it a group of five judges.

The 2014 NJAC case

The tussle between the government and the judiciary started in 2014 when the Narendra Modi-led government brought the National Judicial Appointments Commission (NJAC) Act by making the 99th amendment to the constitution. This said that the appointment of judges in the Chief Justice and Supreme Court and High Courts would be done under the provisions of the NJAC instead of the collegium. A provision was made to make a commission of six people members:

Chief Justice of India
Union Law Minister
The two senior-most justices of the Supreme Court; and
Two experts

The selection of the two experts was to be done by a three-member panel consisting of the Prime Minister, the Leader of the Opposition, and the Chief Justice of the Supreme Court. A provision was also made that two expert members would be changed every three years.

By amending the Constitution in 2014, the Union government made some more important changes. The major change was that the Parliament was given the right to make or modify the rules related to the appointment of Supreme Court and High Court judges in the future. In October 2015, the Supreme Court struck down the NJAC Act, terming it a “violation of the basic structure of the Constitution”.

What was the objection of Supreme Court to the NJAC?

The Supreme Court had said that in appointing judges, the constitution mandates to give preference to the opinion of the judiciary and the Chief Justice, and such government interference is against the basic structure of the constitution.
What has been said about the appointment of judges in the constitution? According to article 124 (2) of the Constitution, every judge of the Supreme Court shall be appointed by the President and they shall appoint judges of the Supreme Court and High Courts only after consulting the senior judges of the Supreme Court and the High Courts.

Article 217 of the Constitution says that the President will decide the appointment of High Court judges in consultation with the Chief Justice of India, the Governor of the State, and the Chief Justice of the High Courts. The court reads the word “consultation” written in the constitution as “consent”, that is, the discussion was considered as the “consent” of the CJI.

The Constitution says that the President will do “consultation” with the Chief Justice and not take consent. But the Supreme Court in its judgment changed the “consultation” to “consent”. Here the question arises whether the Parliament has the final call or the Judiciary in defining the consent and consultation.

The balance and separation of powers

The division of powers between the government and the judiciary is clearly given in the Constitution. The job of the Supreme Court is to protect the Constitution and the fundamental rights of the people. For this, it can also review the decisions of the legislature which according to it are not in accordance with the basic structure of the constitution.

The question also arises that when the judges are appointed by the governments, then to what extent justice can be expected in the cases of public interest challenging the government, and how much can be expected if the elected person of the government wrongs the decision of the government consent? The Constitution is such a document that it should keep evolving. The Supreme Court has a huge responsibility on its shoulders to bring transparency in the selection process of judges.

The Collegium is the right way, but it could not do its work over a period of time. The expectation with which it was formed did not happen. Ever since the Collegium was formed, nothing has been done to bring transparency in appointments and this system.

The legal fraternity has been raising the demand for bringing transparency in the functioning of the judiciary from time to time. After the government interfered in the Judiciary during the Emergency, the Supreme Court judicially interpreted the Constitution and brought the collegium system. In any case, the judges should be kept away from politics. The loyalty of judges should be to the Constitution and not to any individual. If the Executive has the final say in the appointments of judges, it will be dangerous for democracy.

When the NJAC was struck down by the Supreme Court, a bench of judges at that time admitted that there were problems in the existing collegium system and that it needed to be reformed. Former Chief Justice JS Verma, who in 1993 wrote the judgment that created the collegium system, later said he had “changed his mind and veered round to the view that a National Judicial Commission which gives a role to the Executive in the appointment of judges is a better alternative.”

In light of major reservations about the effectiveness of the current system, another former Chief Justice, AM Ahmadi, who had opposed the collegium system by filing a dissenting opinion, supported a return to the pre-collegium procedure.

The question is, what initiative has the Judiciary, which seeks to reform institutions, taken in the last so many years to reform itself:

When a name of a relative, friend, or acquaintance of the person whose name is being discussed in the collegium, the concerned person should not be a part of it because it is clearly a conflict of interest.
There should be a secretariat of the collegium where a record should be kept of what is being discussed in the meetings and on what basis the appointments were made, all these should be known.

In 2016, the Supreme Court asked the Law Ministry to amend the Memorandum of Procedure (MOP), an important part of the collegium system, which is a kind of agreement between the judiciary and the government on the appointment of judges. The Supreme Court asked the Law Ministry to amend the MOP and present it before the Supreme Court. However, there has been no amendment in the MOP. The SC said, “Once the collegium in its wisdom or as you would think in the lack of it had worked out the MOP there is no up and down that is to take place.”

The three pillars of a republic —the Executive, the Legislature, and the Judiciary— work together and independently. Democracy suffers when they clash. A basic psychological understanding of fairness is necessary for the judicial system. Foundation becomes weak if an institution does not hold an Aristotelian conception of the state’s responsibility for the common good. The essential tenet that every organ strives for the greatest good of human was the basis for Montesquieu’s doctrine of the separation of powers. Therefore, the judiciary’s function is distinct from that of the Executive.

The collegium should have a proper, permanent staff that gathers information like judges’ judgements and case records, examines them, and makes psycho-social determinations. The confrontation between the Executive and Judiciary is not good for democracy and rule of law. Moreover, it further jeopardises the smooth and independent functioning of the judiciary. An Independent judiciary is imperative for the sound functioning of judicial administration.

On the other hand, the judiciary must avoid overreaching its jurisdiction and introspect to make itself more accountable and transparent. It is the need of the hour that both the government and the Supreme Court should do something special to make this process transparent, fair, and robust. The system must select the best possible candidates on merit who uphold the constitution and democratic traditions with letter and spirit. Unfortunately, both only want to increase or maintain their respective influence and not create an effective system that ensures things beyond doubt.

(Dr. Surendra Kumar Yadawa is Assistant Professor, IMS Unison University, Dehradun, Uttarakhand. The views expressed are personal to the author.)