Post recent reports on displeasure expressed by Supreme Court alleging undue delay on the part of Central Government in clearing the appointment of Supreme Court Judges, came the news that centre has affirmed Collegium’s recommendations to appoint five new judges from different Highcourts to the Apex Court. While we witness the ongoing tussel concerning Collegium , here’s everything we need to know about the issue.
Supreme Court’s Collegium System of recommending and appointing Judges in higher judiciary has faced many unfavorable reactions including the law minister and vice president commenting against it. The concept of Collegium is allien to the Indian Constitution, that remains the fact and the recommendation process is often accused of being secretive, opaque and indulging in favouritism. Let’s glance back and look at what led to the implementation of this system?
The Beginning
1973 witnessed controversial out of turn appointment by the government, Justice A N Ray was appointed Chief Justice of India (CJI), superseding three senior judges and then in 1977 Justice M H Beg was appointed CJI superseding Justice H R Khanna who was the senior most.
The upheaval India faced in 1970s left non of the pillars of democracy unaffected. Emergency which spanned from June 25, 1975, to March 21, 1977, disturbed many equilibrium.
With this backdrop, a circular dated 18th March 1981, was issued, by the then Union Law Minister, addressed to Governor and Chief Justices of all States, asking that Additional Judges consent to be transferred to any other High Court, the Additional Judges were asked to list their 3 choices for transfer. This step was looked upon as serious encroachment of Judiciary’s independence.
Although the reason mentioned in the circular for such transfer? was caste and culture integration, but a contrary opinion to such reasoning arose, attributing the hidden motive behind the circular was to ensure recommendation for judges who were friendly to the then Prime Minister Mrs Indira Gandhi.
Decisions That Paved Way For The Collegium
The First Case: S.P. Gupta vs President Of India And Ors. decided on 30 December, 1981(AIR 1982 SC 149) also known as First Judges Case.
The after effect of the Circular was a scenario of mistrust against the Centre, leading to a Writ Petition filed by Iqbal Chagla and others in the High Court of Bombay. The Petitioners in this Writ Petition were Advocates practising in the High Court of Bombay and they challenged the Circular. Thereafter a number of Writ Petitions before different High Courts of the Country were filed assailing the Circular’s Constitutional Validity.
The Writ Petitions filed in different High Courts against the mentioned Circular were transferred to the Supreme Court under Article 139 of the Constitution on the ground that they raised issues of great Constitutional importance affecting the independence of the judiciary. A consolidated judgment addressing the issues of all the Writ Petitions was given in the judgment S.P. Gupta (Supra)
At the center of the issue were Articles 124 (Appointment of Judges to Supreme Court) and 217 (Appointment of Judges to the High Courts)
Supreme Court expressed concern that when it comes to appointment of judges of higher judiciary, according to Clause (2) of Article 124 and Clause (1) of Article 217 of Constitution, the actual power of appointment resided solely and exclusively in the Central Government and that the Chief Justice of the Supreme Court and High Courts have merely consultative role and that such consultations cannot be equated with concurrence.
The judgment suggested a Collegium that would make recommendation to the President in regard to appointment of a Supreme Court or High Court Judge, It added that the recommending authority should be more broad based and there should be consultation with wider interests. Implying that the main power of such recommendations and appointments should vest with the Judiciary itself,
The Second Case: Supreme Court Advocates on Record vs Union of India decided on 6th October 1993, 1993) Supp 2 SCR 659
This was the judgment by which a nine judge Constitution bench actually formulated and brought in the “Collegium System”.
The judgment over-ruled majority view in S.P. Gupta (supra) which gave primacy to the Central Government in the matter of appointment of Judges to the superior courts. The judgment further declared that in appointing Judges to Supreme Court, the process of consultation and appointment under Article 124(2) shall consist of consultation between the Chief Justice of India, two senior-most Judges of the Supreme Court and the senior Supreme Court Judge who comes from the State and
The Process of appointment of Judges to High Courts, under Article 217(1) to begin with the recommendation of the Chief Justice of the High Court. He must ascertain the views of the two senior-most Judges of the High Court and incorporate the same in his recommendation. The Chief Justice of India while examining the recommendation must take into account the views of two senior-most Judges of the Supreme Court and also the opinion of the senior Judge conversant with the affairs of the concerned High Court.
While the First Judges Case S.P. Gupta (supra) recommended “consultation with wider interests”, the second case brought in a collegium system which meant recommendation made by CJI in consultation with two seniormost colleagues and that such recommendation should in general be accepted by the executive. In case of any objection the executive can ask the collegium to reconsider the recommendation, on reconsideration the decision of collegium will be final.
This creation of Collegium System was far from what was envisaged in S P Gupta (supra) case and criticized for being a completely closed door process.
Third Case : In Re Special Reference 1 of 1998
The question in focus in this judgment was whether the size of the collegium that makes the recommendation should be increased? Supreme Court held that the collegium should consist of the Chief Justice of India and the four seniormost puisne Judges of the Supreme Court. Ordinarily, one of the four seniormost puisne Judges of the Supreme Court would succeed the Chief Justice of India, but if the situation should be such that the successor Chief Justice is not one of the four seniormost puisne Judges, he must invariably be made part of the collegium.
The opinion of all members of the collegium in respect of each recommendation should be in writing. The ascertainment of the views of the seniormost Supreme Court Judges who hail from the High Courts from where the persons to be recommended come must also be in writing. These must be conveyed by the Chief Justice of India to the Government of India along with the recommendation.
Fourth Case: Supreme Court Advocates on Record Association & Anr vs Union of India (2016) 5 SCC 1
As criticism and questions built up against Collegium secretive recommendation process, in order to replace the collegium system , claiming a better transparent selection process, in 2014, legislature passed the National Judicial Appointments Commission Act after amending the Constitution (Ninety Ninth Amendment) Act 2014.
National Judicial Appointments Commission(NJAC) was to be the recommending body for appointment of judges in higher Judiciary. NJAC would include Chief Justice of India, two other senior judges of Supreme Court, Union Minister of Law and Justice and two eminent persons nominated by a committee consisting of the Prime Minister , the Chief Justice of India and the Leader of the Opposition.
Soon Petitions were filed in the Supreme Court challenging the validity of the Constitution (Ninety Ninth Amendment) Act 2014 alongwith NJAC Act. The efforts of government went futile. The matter was placed before Five Judge Constitution bench of Supreme Court and by a majority of 4:1 verdict the Supreme Court struck down the 99th Amendment to Constitution and the NJAC Act. The judgment declared the NJAC Act as unconstitutional, thereby again endorsing the validity of the Collegium System.
LAW-IP AND MORE 