Collegium system & its conundrums

Judicial independence began to corrode when the Union government in power tried to surpass the seniority norm in appointing judges, especially to SC

The tussle between the judiciary and the executive has resurrected the debate on judicial appointments in the country. The heated exchange of views and counter-viewpoints has attracted global attention, especially among legal luminaries. The conflict is not just about the aspects of the method of judges’ appointment, it is more about bringing transparency and accountability to the existing (collegium) system or the proposed system — the National Judicial Appointments Commission (NJAC), which was struck down as unconstitutional by the top court in 2015.

The current collegium system came into existence as a result of judicial pronouncements in the following cases:

S P Gupta case (December 30, 1981) or the First Judges Case — Reiterated the executive’s role in the appointment of judges as envisaged in the Constitution.

Supreme Court Advocates on Record Association versus Union of India or the Second Judges Case (October 6, 1993): Gave primacy to the Chief Justice of India over the President in a departure from democratic norms and reduced the Office of President to an approving authority.

In Special Reference case of 1998 or the Three Judges’ Case (October 28, 1998): Laid down guidelines for the addition of four senior-most judges along with the CJI for appointing judges. This also reinstated the collegium system that was established in the Second Judges’ case.

One of the important reasons given for establishing the collegium is to keep a check on the interference of the legislature or the executive in the functioning of the judiciary and more particularly in appointing judges to the higher judiciary. The premise is that legislature/executive intervention is contrary to judicial independence and the basic structure of the Constitution.

Judicial independence began to corrode when the Union government in power tried to surpass the seniority norm in appointing judges, especially to the Supreme Court. Historically, this happened in 1973 and 1977 under the Congress government during the Indira Gandhi regime. In both cases, the Union government failed to stick to the seniority convention in appointing the Chief Justice of India.

This was where, for the first time in independent India, the rift between the executive and higher judiciary started. Subsequently, political intrusion reached its peak, resulting in the establishment of the collegium system by the top court through jurisprudential governance. This is because the new mechanism or arrangement made by the top court is purely on the basis of the interpretive power of the Constitution. In Supreme Court Advocates-on-Record Association vs Union of India, 2015, Justice Chelameswar noted: “...there is no accountability in this regard. The records are absolutely beyond the reach of any person including the judges of this court who are not lucky enough to become the Chief Justice of India. Such a state of affairs does not either enhance the credibility of the institution or good for the people of this country.”

The institutional decline in terms of erosion of judicial independence and autonomy of the SCI is matching with that of the firm grounding of majoritarian regimes across the world, including India. The libertarian and rights-based approach of the new CJI is critical for democratic governance, and it is timely wherein the judiciary, as an organ of democracy and institutional instrument for delivering justice, is being watched by the citizens of India and global nations. The top court has started listing out long-pending cases such as the abrogation of Article 370, the Citizenship Amendment Act (CAA) and demonetisation, which are politically sensitive matters. The verdicts in these cases have the potential to shape national politics when the general elections of 2024 are approaching.

The National Commission to review the working of the Constitution’s (NCRWC) recommendation to establish a National Judicial Commission with suitable alterations and modifications is worth considering. Most importantly, “it would be worthwhile to have a participatory mode with the participation of both the executive and the judiciary in making such recommendations”. The opinions/views of the executive can be included as a consultative process. Logically, the decisions arrived at by the two organs of the state stand better when compared to only one organ of the state, so as to achieve the principles of good governance with particular reference to democratic representation, legitimacy, transparency and accountability. Judicial accountability is part and parcel of the independence of the judiciary, and the appointment of judges is not an exception to this phenomenon. There is a need to include democratic voices and civil society’s representation in judges’ appointments for better legitimacy, transparency and accountability.

(The writer is PhD Fellow in Political Science, Institute for Social and Economic Change, Bengaluru.)