Recent weeks have witnessed fierce debates on the role of the judiciary and their alleged interference in the functioning of the legislature and that of the executive. One of the demands by the MPs has been to make the judiciary accountable and to restore the power of appointment of judges to the executive which was usurped by the Supreme Court by a judicial pronouncement in 1993.

Law Minister H R Bhardwaj, while replying to the debate in the Lok Sabha, said that the House is supreme and that the pre-1993 status should be restored. Earlier, the Standing Committee of Parliament attached to the Ministry of Law and Justice in its 21st Report made many recommendations for making the judges of the Supreme Court and High Courts accountable.

But the members of the Committee felt that for this, the system of the appointment of judges to the higher judiciary has to be rectified first. If competent and honest people are appointed judges it will address the problem of accountability, overreach and delay, it felt.

Controversy

The present provision of appointment through the system of collegium has been a subject matter of bitter controversy ever since it was evolved by the Supreme Court. The Committee has recommended that the power of appointment of the judges should be in the hands of the executive as was the position till 1993 when the Supreme Court in Supreme Court Advocates-on-Record (Second Judges’ case) declared the “independence of judiciary” a basic feature of the Constitution, and altered the position snatching this power from the executive.

It invented the system of collegium for these appointments and laid down that the Chief Justice of India (CJI) in consultation with other members of the collegium would make recommendations to the President which will be binding. In 2006, two Parliamentary Committees made the same recommendation to restore the pre-1993 position.

Earlier also, the government generally accepted the recommendations of the CJI with a few exceptions, but as the Supreme Court laid down a new law without any provision for it in the Constitution, the government is peeved and a continuous tussle between the executive and the judiciary has been going on ever since then.

According to the Constitution, the President shall appoint the judges of the Supreme Court in consultation with the CJI and that of the high court in consultation with the CJI, the Governor of the concerned state and the chief justice of the high court in case of the appointment of judges other than the chief justice. But in the Second Judges’ case the SC ruled that “consultation” means “concurrence”, a controversial interpretation to say the least.

But ignoring the intention of the founding fathers, the Supreme Court usurped the power of the appointment of judges in the Second Judges’ case. There was no formal discussion amongst judges which has been recorded in the dissenting judgment of Justice Punchhi.

Mystery

Actually, Justice M M Punchhi was on a three-judge bench along with Justice Ranganath Mishra and Justice Venkatachaliah, which referred Subhash Sharma v Union of India case to a constitution bench of nine judges for deciding two questions, namely, the primacy of the CJI and the justifiability of fixation of judge strength.

The three-judge bench had pronounced that delay in filling up vacancies of judges was the main cause behind judicial delays, and so, the process of appointment of judges should be perfect so that on the retirement of one judge, the vacancy should be filled up the very next day without even a day’s loss of “judge strength”. But overlooking the reference, the nine-judge bench formulated four questions on its own.

It must be remembered that judges who decided the Second Judges’ case were appointed under the previous system by the government. Who is appointed is more important than who appoints. A major criticism against the current system of appointment is that the functioning of the collegium is shrouded in mystery. It is submitted that the Supreme Court has altered the basic structure of the Constitution as there is no concept of collegium in it, and it has been rightly criticised as the most dangerous judgment after the habeas corpus case.