French political thinker Charles Montesquieu in his theory of separation of power, states that power shall stop power in a system based on the rule of law. It was based on the fact that three organs of a government – legislative, executive and judiciary possess unlimited independent powers. Without any checks and balances, they would transgress each other’s power and would dismantle the very foundation of government based on the rule of law.
Thus, the Indian Constitution adopted a practical approach to limit the power dominance by making the executive part of the legislature. It also provided for the appointment of judges by the President of India, after the consultation with the judges of the Supreme Court and of the High Court, as the President may deem necessary.
But, with subsequent interpretation and judicial cases, the Supreme Court transgressed the power and manufactured a collegium body to appoint itself, which resulted in making the judiciary a self-serving and self-regulatory body. It has also promoted favouritism, nepotism, and cronyism in the judicial system.
For the smooth functioning of a democracy, it is very important that its different organs of administration work in consonance with the doctrine of separation of powers, and at the same time, there must be checks and balances for the given power.
India’s constitutional polity has been effective in controlling the powers of the executive as well as the legislature. The executive is the part of the legislature that has interdependence checks and both are being controlled by the people through the Universal Adult Franchise voting system. But, since the adoption of the constitution, the key points of talk have been the insufficient checks on the functioning and appointments of the judiciary.
Collegium System Affects Functioning of Judiciary
Once again igniting the debate of the collegium system in the judiciary, Union Law and Justice Minister Kiren Rijiju suggested that there is a need to rethink the collegium system to expedite the process of appointment in the higher judiciary.
Speaking at the inauguration of two-day Union of India Counsel (West Zone) Conference on ‘Emerging Legal Issues-2022’ at Udaipur, Rajasthan, the Ministers said that the appointments are pending not due to the law minister but due to the system.
Talking about the future course of action on the collegium system, he further stated that, “the system which is in place is causing trouble and everyone knows it. Further discussion will be held about what and how it has to be done. I put my views in front of everyone where judges, law officers and invitees were there”.
The Union Minister’s statement has once again ignited the debate over the process of appointments of judges in the higher judiciary. Since the adoption of the Constitution, an underlying legal war is being played between executive and judiciary over the appointments of judges.
According to Article 124 (2), every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultationwith 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. Further, the proviso of the Article states that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
For the Appointment of High Court Judges, Article 217 states that 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.
Interpreting the word ‘consultation’ as ‘concurrence’ of the Chief Justice of India, the Court has opined in various cases that Primacy should be given to CJI’s opinion. In a way, the word consultation of the President’s power to appoint judges means the concurrent powers of CJI on the list of appointments. The President would comply with the CJI’s opinion on the appointment of judges.
Furthermore, in the Second Judges’ Case, the Supreme Court stated that the CJI’s position on the nomination of judges will be based on his senior colleagues’ views. Taking the advice of senior colleagues created a Collegium mechanism for recommending the nomination of judges.
In the Third judge’s case, the Supreme Court clarified that the collegium for the appointment of Supreme Court justices should comprise of the CJI and four senior most puisne judges of the Supreme Court. The collegium for High Court justices should be composed of the CJI and two of the SC’s most senior puisne judges.
The Court in its judgment stated that the appointment recommendation made according to the set norms shall be binding upon the President of India. In a way, interpreting the ‘consultation’ powers of the president with CJI was made concurrent and the collegium system was made supreme in the judicial appointments.
Collegium Is Nothing But A Family System
The collegium appointment method, in which judges choose judges, has frequently resulted in the appointment of some near and dear ones. In the judiciary, this collegium structure generated favouritism, nepotism, and cronyism. Judges frequently choose their dear ones from the bar, and the succession cycle operates similarly to a family monarchy system. That is why most of the judges in the Supreme Court and High Courts of the different states are the relatives or family members of their own peers.
The system also had affected the independence and impartial functioning of the judiciary. It is important to understand that the judiciary is the single most powerful body in India. The Supreme Court of India is the final authority when it comes to determining the legal validity of any case, law, regulation, or decision. Their interpretation of the law is binding on every authority, people and organisation.
They are India’s supreme protectors and guardians of the rule of law. The Supreme Court’s legal interpretation shapes India’s social, economic, political, and even diplomatic policy. As a result, it is critical that this prestigious institution works efficiently and fulfills the aspirations of 1.4 billion Indians. Making a democratic constitutional authority into a private limited company is dangerous for the health of the democracy.
National Judicial Appointment Commission Is Cure To Collegium System
Since independence, the self-serving and self-regulating nature has blocked every attempt at judicial reform. The most recent attempt to overhaul the court was the Ninety-Ninth Constitutional Amendment Act of 2014. The Act of 2014, provided for the National Judicial Appointment Commission (NJAC) under Article 124A of the Constitution for the appointments of the judges in the Supreme Court. The amendment effectively stated that all Supreme Court appointments will be based on the NJAC’s recommendation.
The member of NJAC includes:
(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India––Members, ex officio;
(c) the Union Minister in charge of Law and Justice––Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India, and the Leader of Opposition (LoO) in the House of the People ––Members
The involvement of three judges in a six-member commission and two eminent personalities through the committee of PM, CJI, and LoO was, in a way, an effort to bring transparency and checks to the appointment of judges. But, citing Article 50 (Separation of judiciary from executive) of the Indian Constitution and doctrine of Separation of Powers, the Supreme Court, in the Supreme Court Advocate on Record Association vs Union of India case, said that the 99th Constitutional Amendment Act, 2014 “do not provide adequate representation of judiciary to ensure PRIMACY of the judiciary” and termed the amendment is the violation of the ‘basic structure’ of the Constitution. The judgement also reinstated the older collegium system.
In a way, neither the executive nor legislature carry any significant say in the appointment of judges. Judges themselves appoint judges and carry forward the ‘inter-generational’ family business of being judges. The Collegium system’s sent list of judges are binding on the President. In case of any disagreement with the list, the President can’t do anything. These pending appointments delay the process and result in conflict between judiciary and executive.
Kiren Rijiju’s statement that “there is a need to think about the collegium system so that appointments in higher judiciary can be accelerated” is consonant with the same delay. Until and unless, the appointment of judges is not made transparent, the conflict would continue to persist. The separation of powers and the theory of checks and balances runs parallelly in a democratic system. In fact, separation of powers itself subscribes to the checks.
However, the Collegium system, in which judges appoint judges, is a blatant violation of the principle of separation of powers. Unlike legislative and executive members, judicial members are not elected by the general public or by any other organisation.
They are chosen by their own bodies and governed by their own people. As a result, it is critical to create a transparent organisation that, in accordance with constitutional principles, ensures the independence of the court.
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