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History Of The Collegium System and The National Judicial Appointments Commission And Recent Developments Between The Executive and The Judiciary

On 2nd December 2022, an unexpected bedlam was caused between the Executive and the Judiciary regarding the turning down of the Constitutional Amendment by the Supreme Court in the Fourth Judges Case of 2015. The issue arose when Vice-President Jagdeep Dhankar made his remarks about the warding off of the 99th Constitution Amendment Act by the Supreme Court, in the presence of the Chief Justice of India D.Y. Chandrachud.

Vice-President Dhankar questioned the judiciary's power of completely casting off the provision which was passed unanimously by Lok Sabha, with no dissension, as well as by Rajya Sabha, with just one dissension of Mr. Ram Jethmalani. Jagdeep Dhankar raised the question of the authority of the Judiciary to completely ignore the "will of the people" as reflected by both the houses of the Parliament.

The Judiciary has always been relying upon the basic structure of the Indian Constitution while defending the independence of the Judiciary. On the other hand, the Executive has once again questioned the Judiciary regarding the transparency and relevancy of the existing Collegium System. This has ignited the dispute between the Executive and the Judiciary.

A sudden mention of a seven-year-old verdict by the Vice President raises the signal of some significant developments in the field of Judiciary in the coming times. For a better insight into this issue and to better understand these recent developments, one needs to ponder upon the facts chronicling the history of the National Judicial Appointment Commission (NJAC) and the Collegium System.

The Birth Of The Collegium System

Earlier, the Supreme Court and High Courts judges were appointed by the provisions laid under Article 124 and Article 217 of the Constitution of India. Herein, the President of India appointed the judges of the Supreme Court and the High Courts after the consultation of the judges of the Supreme Court and the High Courts. The Executive, therefore, had a major role to play in the appointment of the judges, whereas, the Judiciary was looked upon as a mere "consulting" body, whose consultation was not compulsory to abide by.

First Judges Case
In the First Judges Case of 1982, a quintessential question about the appointment of judges was raised in the Supreme Court. The substantial question of law was whether it was the Executive or the Judiciary who possess the authority over the appointment and transfer of judges. The seven judges' constitution bench ruled that the Executive has the upper hand in the appointment of the judges.

They emphasized that "consultation" of the Judiciary should not be seen as a "concurrence". However, the bench unanimously agreed that the Executive should pay the rightful and effective heed to the "consultation" made by the Judiciary. In the majority decision of 5:2 of the seven judges' bench, Justice P.N. Bhagwati recommended a collegium to be formed for the recommendation of judges, whereas, Justice R.S. Pathak and Justice V.D. Tulzapurkar collectively agreed that the advice of the Chief Justice of India and the Judiciary should be given primacy.

All in all, highlighting Article 124 and Article 217 of the Indian constitution, the Supreme Court in the case of S.P. Gupta v. Union of India, ruled in the favour of the respondents and opined on the Executive having the ultimate and final say in the appointment of judges.

Second Judges Case
The Second Judges Case of 1993 reversed the judgment passed in the First Judges Case of 1982. The Supreme Court, in this landmark case of Supreme Court Advocates-on-Record Association v. Union of India, introduced the Collegium system.

The nine judges' bench took into consideration the similar question of whether the Executive or the Judiciary would have the final say in the procedure of appointment and transfer of judges and in this historic judgment, the constitution bench reversed the earlier judgment made by the Supreme Court.

The bench ruled that the Judiciary should be independent of the influence of the Executive and gave the decision accentuating that the Chief Justice of India should have the primary role in the process of appointment of judges.

The bench said that the term "consultation" should be understood as "concurrence". As a result of this judgment, the Collegium was formed which then comprised three members, namely, the Chief Justice of India and two senior-most judges of the Supreme Court. This judgement put an end to the Executive's interruption and thus, made the Judiciary independent by marking the beginning of the Collegium System which is still prevalent today.

Third Judges Case
The Third Judges Case, also known as the Presidential Reference Case, of 1998, reinstated the control of the Judiciary over the matter of appointment of judges and also expanded the existing constitution of the Collegium System. Herein, the then President of India, K.R. Narayanan made certain references to the Supreme Court abiding by Article 143 of the Indian Constitution.

The President questioned the Supreme Court if the "consultation" only involved the individual views of the Chief Justice of India and not the plurality of judges in the Supreme Court. This led to an alteration in the earlier composition of the Collegium which was increased from three members to five members, comprising the Chief Justice of India and four senior-most judges of the Supreme Court.

However, the Collegium appointing the judges to the High Courts still had the same composition of three judges. The expansion of the Collegium was done such that it shows the collective decision of the senior-most judges in the procedure of appointment and transfer of judges, rather than signifying individual opinion

Inception Of The National Judicial Appointments Commission (NJAC)

After the "three judges case" and the long going tussle between the Executive and the Judiciary, the Supreme Court created the Collegium System for the appointment and transfer of judges. The Supreme Court in the Second Judges Case, as well as in the Third Judges Case, made it lucid that the Executive cannot have an equal say over an issue that falls in the domain of a different arm of the government, i.e. the Judiciary.

The creation of the Collegium was a salient move in making the Judiciary independent. Thereafter, in August 2014, the Parliament passed the 99th Constitution Amendment Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014.

These two acts dealt with amending clause 2 of Article 124 and the formation of the National Judicial Appointments Commission, simultaneously. Both these acts were passed unanimously by Lok Sabha with historically zero abstentions, whereas in Rajya Sabha also, it was passed with a reigning majority with just one dissension. Never in this country, was an act passed with a such high majority of agreement.

The reforms were brought into action because the government believed that the process of judges appointing judges was not maintainable and trustworthy and, therefore, needs to have transparency. The NJAC was constituted for aiding in the process of recommendation of judges and to completely ward off the cloudy questionable collegium system.

The National Judicial Appointments Commission, which replaced the Collegium System in 2014, comprises six members. Those were:
  • The Chief Justice of India, as the ex-officio chairman of the NJAC.
  • The Union Law Minister
  • Two senior-most judges of the Supreme Court, and
  • Two eminent persons provided that one of the eminent persons must belong to the Scheduled Castes, Scheduled Tribes, Other Backward Class, Minorities or Women, which would be selected by a committee composed of the Prime Minister, the Leader of the opposition and the Chief Justice of India
Out of the six members, if any two disapproved of the proposed name, then the NJAC would not recommend the such name to the President, for appointment as a judge. The composition of the members of the NJAC was such that it put forth the opinions of not only the legislative and the judiciary but also the civil society. The diversified composition of the NJAC reflected the motive of making the system of appointment of judges more transparent and open to the general public.

The National Judicial Appointments Commission was the principal body for making recommendations regarding the transfer and appointment of judges in the High Courts and the Supreme Court.

Unconstitutionality Of The NJAC & Re-introduction Of The Collegium System

The five judges' constitution bench of Justice Madan B. Lokur, Justice J.S. Khekar, Justice Adarsh Kumar Goel, Justice Kulian Joseph, and Justice Chelameshwar, struck down the National Judicial Appointments Commission in the landmark case of Supreme Court Advocates-on-Record v. Union of India (also referred to as the Fourth Judges Case) of 2015. The Collegium System of appointment of judges was brought into action once again, but the judges, in their judgement, mentioned that the system of "judges appointing judges" is not accurate and reliable and therefore, needs to be reformed.

The National Judicial Appointments Commission was constituted to make the process of appointment and transfer of judges more refined and transparent. It was made to overcome the shortcomings of the Collegium System.

But in the judgement of this case, the individual reasoning of four out of five judges of the constitutional bench stipulated that the arm of the judiciary should be free from the influences and decisions of the executive as it violates the basic structure of the Constitution. Justice Chelameshwar, however, quoted that:
"The arm of the Judiciary should not be the only constitutional organ capable of protecting people's liberties".

Thus, in the Fourth Judges Case of 2015, the five judges' constitutional bench with a majority of 4:1, declared the National Judicial Appointments Commission (NJAC) Act, 2014 and alterations made to Article 124 through the 99th Constitution Amendment Act, unconstitutional and void and re-introduced the old Collegium System for appointment and transfer of the judges of the High Courts and the Supreme Court.

Recent Developments
A heated debate was caused when Vice-President Jagdeep Dhankar recalled the seven-year-old verdict of the Supreme Court Advocates-on-Record v. Union of India, also known as the Fourth Judges Case of 2015, conveying his discontent over the complete nullification of the acts passed unanimously by both the houses of the Parliament which reflected the "will of the people".

Vice-President Dhankar made these critical statements in the presence of the Chief Justice of India D.Y. Chandrachud and other senior judges of the Supreme Court. This brought the issue of reliability of the current judicial appointment procedure and the NJAC once again to the forefront and has sparked the fumes between the Executive and the Judiciary.

Arguments Of The Judiciary
The Judiciary firmly stands on its opinion stating that as per the judicially evolved doctrine of the basic structure of the Indian Constitution, judicial independence cannot be chased away. This is because the "basic structure of the Constitution" safeguards the separation of powers and allows the non-interference and complete independence of the different organs of the government which makes the Judiciary independent of the Executive's influence.

The Supreme Court readily condemned the Vice President's remarks about the non-reliability of the Collegium System and also cautioned the government against the public functionaries for speaking against the Collegium System in the public. Moreover, the judiciary took a defiant stance against the numerous public speeches made by the Union Law Minister Kiren Rijiju in which he had openly criticized the Collegium System.

The Supreme Court made it clear to the Executive that till the time the government formulates any other law to appoint and transfer the judges of the High Courts and the Supreme Court, the Collegium System will act as the law of the land.

Counterattacking the arguments put forth by Vice President Jagdeep Dhankar in the Rajya Sabha, the Supreme Court highlighted and cautioned the government to not delay the appointment of the judges. The Supreme Court transfers the blame for increasing pending cases in the courts and the non-filling of the vacant seats, especially in the High Courts, to the government.

As the watchdog of the Judiciary, the Supreme Court complained that the Government has not been clearing the names of the judges even when it was re-iterated by the Collegium. This places the burden of an increasing number of cases on the Judiciary which ultimately results in the pendency of such cases and causes delays in the delivery of justice.

Therefore, opposing the arguments about the non-reliability of the Collegium System, the Supreme Court stands strong on its decision not to allow the Executive to interfere in the process of appointment of judges as this will undermine the basic structure of the Constitution.

According to the Supreme Court, the procedure followed by the Collegium for the appointment of judges is an appropriate one and the turbulences caused in the process of delivery of justice are due to the delays caused by the government's Executive arm.

Furthermore, the Judiciary adds that the government's act of not confirming the list of recommended judges for the appointment is discouraging good lawyers from joining the bench due to which the High Courts and the Supreme Court are finding it extremely difficult to find suitable candidates for filling up the vacant seats.

Arguments Of The Executive
In this heated discourse, the Executive said that ever since its formation, the Collegium System has faced constant criticisms against its functioning. The former Supreme Court judge Justice A.K. Sikri brought forth the fact that India is the only country where judges appoint judges and insist on reconsidering the Collegium System of the appointment of judges. The Union Law Minister Kiren Rijiju in one of his speeches said that the Collegium System limits talent because only those judges are appointed to the bench whom the sitting judges already know which leaves other capable candidates hopeless.

Recently, Vice President Jagdeep Dhankar has also criticized the Supreme Court's decision in the case of Supreme Court Advocates-on-Record v. Union of India (also referred to as the Fourth Judges Case) of 2015. In one of his public speeches, Vice President said that by quashing National Judicial Appointments Commission, the Supreme Court had disregarded the mandate of the people.

The Vice President, then reiterated his remarks in the Rajya Sabha on December 7, 2022, wherein relating to the 99th Constitution Amendment Act and the National Judicial Appointments Commission Act, he accentuated that rarely in the Parliamentary Democracy there had been such massive support to Constitutional Legislation as this one.

He said that this historic Parliamentary mandate was undone by the Supreme Court, finding the same as not aligning with the judicially evolved doctrine of the basic structure of the Constitution. He also said that the Supreme Court's act of turning down the unanimous and duly legitimized constitutional prescription finds no parallel in democratic history. Speaking at the Upper House, Vice President Dhankar stated this as a "glaring instance of severe compromise of parliamentary sovereignty and disregard of the mandate of the people of which this house (Rajya Sabha) and Lok Sabha are the custodians".

The government, while answering to the arguments of vacancy in the court, said that it must not be blamed for vacancies in the High Courts and the Supreme Court because to appoint worthy and qualified judges to the Supreme Court and the High Courts, the government needs time to conduct a background check and sometimes negative practices arise out of the same.

The government also pointed out that many High Courts failed to recommend names to the government for filling up the vacant seats. At present, there is 56% vacancy at the High Courts, wherein the High Court of Chattisgarh, Jharkhand, Meghalaya, Sikkim, and Tripura have not recommended names for existing vacancies for 5 years or more.

Conclusion
The speech made by Vice President Jagdeep Dhankar, in the presence of the Chief Justice of India and several other senior Supreme Court judges, has once again raised the long-forgotten topic of the National Judicial Appointments Commission and has questioned the relevancy of the Collegium System.

The concerned issue in this article highlights the sudden revoking of a seven-year-old verdict by the Vice President, which gives the signal of an attempt by the Executive for a judicial reformation. Recalling the judgement of the Fourth Judges Case, the Vice President has shown his discontent and said that never in the Parliamentary Democracy, a unanimous act passed by both houses of the Parliament, was judicially undone. He said that such an act of the Judiciary shows its disregard towards the mandate of the people, of which the Lok Sabha and the Rajya Sabha are the custodians.

On the other hand, the article also encapsulates the Judiciary bulwarking its stance against the arguments of the Executive by relying upon the doctrine of the basic structure of the Constitution. The Judiciary has instated in many of its judgement wherein it had refrained from interfering in the activities of the Executive, as such an activity would not align with the basic structure of the Constitution.

Respecting and relying upon this judicially evolved basic structure, the Judiciary has earlier termed the concept of the NJAC as unconstitutional and void and it still believes that the arm of the Judiciary should be free from the influence of the Executive.

All in all, this article contains a lucid and thorough analysis of every important past event related to the NJAC, which also encompasses the role played by the "Four judges case" as well as the 99th Constitution Amendment Act, which may hopefully provide the readers with clarity and guide them into developing a discretion over this controversial topic.

Written By:
  1. Neeraj Anand and
  2. Aditya Arun

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