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Judging The Judges' Appointment System At Close Quarters

India that is Bharat witnessed several remarkable milestones in various domain ranging from self-proclaimed immunity from Covid-19 to some impressive successes in health, technology, defense and sport sectors. In addition to this, India also proudly celebrated the "Azadi ka Amrit Mohotsav" in 2022 under the leadership India's Prime Minister Narendra Modi. Therefore, what we can conclude that, 2022 will be remembered by every Indian as to how it pacified every Indian from devastating impact of covid-19 and its long-lasting impacts.

This year will also be remembered in India for burgeoning tussle between "Temporary Executive and Whimsical Judiciary" on the score of Judges' appointment system i.e., "Collegium system".

The roots of term "Collegium System" in India for the appointment of judges can be traced back to dissenting opinion of Justice Bhagwati in "SP GUPTA V UOI" (1981) which is famously known as "First Judges' Case". However, the concept of collegium system saw the light of the day in 1993 when 9 judges bench of Supreme Court in the case of "Supreme Court Advocate on Record Association V Union of India" envisaged this system by interpreting the term "Consultation" enshrined in Article 124 (1) and 222(1) as "Concurrence" of Chief Justice of India.

SP Gupta's case established the primacy of President in the appointment of judges of High Courts and Supreme Court with the majority of 4:3. However judicial independence began to corrode and was at its last legs when the union government led by then congress leader Mrs. Indira Gandhi tried to surpass the seniority norm in appointing judges, especially in the Supreme Court. This happened in 1973 and 1977 under the congress government during Indira's regime. In both the cases, the union government failed to stick to the established convention in appointing the Chief Justice of India.

The act of excessive political intervention of then congress in the matters related to the appointment and transfer of judges led to the second judges' case and Re-Presidential special reference, which ultimately turned the table and established the unquestionable hegemony of Chief Justice of India in the appointment of judges and their transfers from one High Court to the other.

The unquestionable hegemony of Chief Justice of India led to the concept of "Uncle Judge" in the Indian legal System and which ultimately resulted in the public perception of "Judges' appointing Judges".

This entire conundrum is at the bottom of recent tussle between two most important organs of Indian Constitution.

What Holy book i.e., Indian Constitution says- Candidly speaking, our Indian Constitution doesn't see eye to eye to this appointment system i.e., this system is completely alien to our Indian Constitution.

Appointment of judges to the Supreme Court of India and High Courts is provided for in Article 124(2)4 and Article 217(1)5 of the Constitution, respectively. These articles provide that power of appointment for a Supreme Court judge vests with the President, in "Consultation" with the Chief Justice of India.

In the case of appointments at the concerned High Court, it is in consultation with the Governor of the concerned state, Chief Justice of the concerned High Court and also Chief Justice of India. Keeping in mind the vulnerable position of judiciary in the matters of appointments, the Supreme Court delivered two landmark decisions, for clarifying the notion of the consultative process for appointment of judges under Article 217(1) and regarding transfers under Article 222.

The court held judicial independence to be part of the basic structure of the Constitution. Specifically, in S.P. Gupta v. Union of India (The First Judge's Case), the majority held, that "while judicial independence did not require the view of the Chief Justice of India.

In the matter of appointments to be determinative, nonetheless consultation with him would have to be full and effective and his opinion should not ordinarily be departed from". The power of the executive in appointing judges was accordingly curtailed although it continued to have the last word on who would be appointed.

This decision of Supreme Court in Second Judges' case and its subsequent approbation in Re- presidential special reference rubbed the academicians, civil societies and political commentators wrong way. Justice Krishnayyar once said that "The 9 judges bench of Supreme Court in a mighty scissor of power rested authority to appoint or transfer judges from top executive to themselves by a stroke of adjudicatory self-enthronement". He termed collegium as "Fraud on the Constitution".

13 August 2014: Anniversary of one of the most controversial legislations of Indian history- Every Indian who is little bit aware of the things taking place around him indisputably remember this date. After 77 days of taking over the office the Narendra Modi led NDA government tried to make the appointment process of judges "Transparent" by intruding into the "Exclusive Domain" of judges.

The Bone of contention in this NJAC system was the presence of Union Minister of Law and Justice along with two "Eminent persons". The "Eminent persons" were to be appointed by the CJI, PM and Leader of opposition in the lok sabha.

After several years of intact and unchallenged hegemony, the self-proclaimed "Independent nature" of judiciary was challenged by this act of parliament. The independence of judiciary which is part of basic structure of Indian constitution was again in the blues. It was expected that Supreme Court will try to retaliate and it rightly did so. On 16 October 2015, the 99th Constitutional Amendment act was repudiated by the Supreme Court of India and court termed it "Fraud on the Constitution".

The journey from the Collegium system being called "fraud on the Constitution" to NJAC being termed as "Fraud on the Constitution" is full of chequred career. This decision of constitutional bench of Supreme Court of India is at the bottom of contemporary friction between executive and judiciary.

Ambedkar: An ardent opponent of Collegium System- In recent months especially after the 9 November 2022 the Collegium system has come under fire from the executive and is facing an umpteen number of challenges. When situation is so precarious, India can't afford to forget the views of one, who was crusader of "True and Meaningful Democracy" i.e., Dr. Br Ambedkar.

The Constituent Assembly of India, which enacted and adopted the Constitution, debated the current Article 124 (then Article 103 of the draft Constitution) on 23-24 May 1949. On the first day, B. Pocker Sahib, a lawyer from erstwhile Madras, introduced an amendment to the article, providing that the CJI shall initiate the proposal for the appointment of judges and suggested the substitution of word 'consultation' with 'concurrence'.

Responding to the debates and amendments introduced in Article 124, Ambedkar delivered a lengthy speech. "I find three different proposals. The first proposal is that the judges of the Supreme Court should be appointed with the concurrence of the Chief Justice. There can be no difference of opinion that the judiciary must both be independent of the executive and must also be competent in itself," he said.

While referring to the idea of appointment of the judges 'with the concurrence of CJI', Ambedkar said:
"With regard to the question of the concurrence of the Chief Justice, it seems to me that those who advocate that proposition seem to rely implicitly both on the impartiality of the Chief Justice and the soundness of his judgment. I personally feel no doubt that the Chief Justice is a very eminent person.

But after all the Chief Justice is a man with all the failings, all the sentiments and all the prejudices which we as common people have; and I think, to allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to veto is the President or the Government of the day. I, therefore, think that is also a dangerous proposition."

Collegium System and Concentration of Same gender and of few States in the Supreme Court-Though the lower number of women judges and collegium system can't be absolutely connected with each other, but still collegium system is one of the prime reasons for poor representation of women judges when Country's Prime Minister talks of "Sabka saath, Sabka vIkas".

Women occupy considerable number of posts in the lower judiciary at the district levels but when it comes to the High Courts and Supreme Court, the numbers are really pathetic. In fact, higher judiciary reflects the male-dominated and patriarchal ethos of the society.

India is a very diverse state with plethora of customs, traditions and most significant a land of diverse opinions. The female population of India is around 49%, that's why they are called "Aadhi Abadi" by Prime Minister of India. In this background when we walk on the edges of gender diversity in the "Supreme" courts of India, we can't help but notice that largely it is dominated by the gender alienation and not "Samgra Vikas".

Now, question arises whether the picture was gloomy all along, or has become in modern India. For this question we may visit our "DharmShastras".

In "Brihadaranyaka Upanishad" we can read about the shrewd contentions put forward by "Gargi". We can also find the arguments of "Maitrey" with respect the predicaments of human life. India boasts of having "Draupadi and Sita" and "Jhansi ki Rani" in modern times, means women throughout history have been accorded highest pedestal.

Since Independence of India, Bharat has witnessed only 11 women judges in the "Supreme Court of India", the first of them was "Fatima Bibi" who was sworn on 6 oct 1989.

According to a data, in lower courts, around 34% of judges are women, mainly because the method of recruitment is an entrance examination. The higher judiciary cuts a sorry figure in respect of women representation, because the appointment is done by a "Collegium System" usually having dominance of Male judges, therefore the decisions of "A purely MALE body" are bound to reflect biases in its recommendations.

In 2021, an application (M/S PLR Projects Pvt Ltd V Mahanandi Coalfields Ltd) was filed by "SCWLA" in Supreme Court of India, seeking an order issuing directions to take affirmative steps to incorporate more women judges in constitutional courts of India. The matter received commend from every nook and corner of India, even then Chief Justice of India S.A. Bobde said umpteen numbers of favorable statements, one of which arrested the attention of entire India, where he said that "The time has come to have a Woman Chief Justice of India", but unfortunately, he refused to pass any order, in order to maintain "Status quo" as far as appointments of judges are concerned.

However, the presence of a woman judge doesn't guarantee the best and unquestionable administration of justice, as India has witnessed the insane observation of "Justice Pushpa Ganediwala" in words "Skin to Skin touch", but still her presence can definitely carry matters with high hand, when a male judge makes anti-victim observations, which are beside the mark and audaciously grants bail to a rape accused by requesting victim to tie him, Rakhi.

With the Central government notifying the appointment of 2 judges in the Supreme Court of India, the debate on issue of "Equal Representation" has again gained currency. Out of 28 states and 8 UTs in India only 15 states and 1 union territory have their representative in the Supreme Court of India.

A look at the data from 1985 reveals that Delhi, Bombay and Allahabad high courts dominate the selection of judges to the Supreme Court. Presently, the top court has a working strength of 34 judges against the sanctioned strength of 34. Of them, four each belong to Allahabad and Delhi High Court, three each to Bombay, Gujrat and Karnataka, two each to Kerala, Punjab, Tamandu and Rajasthan. There are one each from Madhya Pradesh, Uttarakhand, Himanchal Pradesh, Bihar, Telangana and Assam.

Those who have remained unrepresented in the apex court for a long time are six Northeast states, Odisha, J&K Chhattisgarh, Jharkhand, Sikkim and Goa. Even though these states had judges who could have been elevated, it never happened. Bombay High Court has produced the greatest number of Supreme Court judges till date. It also leads when it comes to Chief Justices of India, with eight out of 50. Calcutta comes next with six, followed by Allahabad with five.

Karnataka High Court has had four judges who have adorned the post of Chief Justice of India. These figures show that how some states have been left behind knowingly or unknowingly. Though there are no specific rules for regional origin, Collegium and the government must uprightly rush from pillar to post to ensure regional balance in the highest court of country, because status quo can't be maintained for no rhyme or reason.

Appointment of Victoria Gowri as "Justice" of madras High Court: The recent controversy attached with Collegium system led by "DY Chandrachud" is its decision of appointing "Mrs. Victoria Gowri" as additional judge of Madras High court. As soon as Centre notified her appointment on 1 February, a ruckus was caused in the country because of her political affiliation with the ruling party of this country. After finding the collegium getting into scrape, CJI orally agreed to form two judges' bench to consider her appointment, but the last attempt to stop her by way of "Judicial Review" of Collegium's decision end in the fiasco, when the plea was candidly rejected by the Supreme court of India.

In the entire history of the Supreme Court, there is only a single precedent of it quashing an appointment of a high court judge (Pre-Collegium Era), after finding that the person recommended was not fit for appointment. That extraordinary action happened in the 1992 case Kumar Padma Prasad vs Union of India and Ors, where the Supreme Court quashed the appointment of one K.N. Srivastava as a judge of the Guwahati high court, before he took oath. This 1992 precedent was cited to challenge the appointment of advocate L Victoria Gowri as a judge of the Madras high court.

Now, what the appointment of Victoria Gowri suggests, is the million-dollar question.

The time when country is witnessing significant burgeoning in the incidents of hate speeches, the appointment of an advocate as judge of madras high court, whose records are at odds with the "Religious Harmony" seems bull in China shop. Apart from questioning the Intention of the government, which notified her appointment and arranged her oath at the drop of hat, in order to avoid any "Against Interim Order" from the Supreme Court, this appointment also epitomizes the opaque and gloomy system of selection of judges.

The remarks of CJI that "We were not in the know about certain developments concerning advocate Victoria Gowri, when we recommended her for appointment", raise a troubling question regarding the efficacy of the selection process, which takes proud in "Multiple level Consultation" in selecting the "Suitable" persons. A simple search in google and social media had the potential to endowed the collegium with the 5 years old developments, which were surprisingly not known to collegium headed by Chief justice of India.

What add fuel to the flame is the puzzling response of Supreme Court on this matter, firstly CJI in his facing saving exercise, agreed to hear the case, but subsequently bench comprising of Sanjiv Khanna and BR Gavai, who are two future CJI, dismissed the petition with the observation that "We can't visit the decision of Collegium regarding the suitability of any candidate.

If, we observe at the argus eyed, the appointment of Victoria Gowri shows certain continuing structural problems with the appointment system in chapter and verse. The first problem is the opacity, therefore what India needs is a process that can ensure objective evaluation by public of proposed names. What at present in bandwagon is a system which approbates a closed-door consensus and leaves a room for unhealthy compromises.

In other democratic countries like USA, South Africa or Kenya, the candidates' names are known to the rank and file of the country before final appointment, but by contrast in India names see the light of the day after formal declaration of central government. This not only has transparency costs but also endows government with the unofficial pocket veto, as it is in the position to withhold the recommendations made by collegium.

Judicial Review: A fool's errand for recommendations of collegium- The appointment of L Victoria Gowri also raises a question regarding the Judicial Review of administrative act of Supreme Court. Once recommendations are sent to government the only way on the score of which we can challenge the recommendations is judicial review.

The Collegium System recommends the name of the judges in its administrative capacity, therefore obiter dicta of judges that "We can't revisit the recommendations of Collegium" is sufficient to hurt every rank and file of this country who believes in constitution, democratic values and judicial process.

The entire appointment system is mired in controversy. Even if judicial review is permitted, another problem occupies the field. Since the recommendations can be only challenged before the supreme court, it in itself leads to an awkward situation. The decision of Collegium is called in question before junior judges which they find a herculean task to repudiate.

Though it doesn't mean that junior judges can't repudiate the senior one, but still one can candidly see the problems when junior judges are asked to sit in the judgement over their own senior colleagues.

This problem was manifested in this hearing too, when both the judges were showing repeated discomfort. It can't be the case in any democratic country which boasts itself of being "Greatest Democracy of the World'.

Therefore, we can say that present case is the perfect example as how, the opacity in the entire appointment system can benefit the political executive, as they are in the position to influence the materials which can influence the Collegium's decision regarding "Suitability" of any advocate.

All India Judicial Services: A Possible Solution- The concept of "AIJS" owes its origin to the 14th report of the Law Commission of India in 1958. The objective was to create a centralized and constitutional body such as Union Public Service Commission, which will in turn be responsible for the recruitment of judges at the level of additional district judges and District Judges. In 2006, Parliamentary standing committee on "Personnel, Public grievances, Law and Justice" in its 15th report approbated the idea of All India Judicial Services and also proposed a draft bill.

The Supreme Court of India, which is in news for one or the other reasons also commended the idea in "All India Judges' Association V UOI" and asked the central government to form full-proof plan for establishing AIJS. This judgement of Supreme Court of India rubbed some section of the society "Wrong way" as a result of which, Supreme Court in its review judgement, left the central government at liberty to adopt this system of appointment or not.

The need of AIJS apart from being understood in the light of problems with collegium system, can also be understood in the light of several other benefits such as- "Ease of doing business, Judges to Population ratio, Paucity of judges, Representation of Marginalized section of the society, efficient and energetic judiciary and Transparent and complete domination of Opacity.

There has been a fierce criticism of this idea especially because of uncertainty in qualifications, age barriers and Court room experiences on the part of candidates, therefore a structure of AIJS may be suggested, which is as follows.

Suppose, a law student graduates at the age of 24 years. Now period of 1 year may be considered as cooling period, in which he can register himself with the Bar Council of India. Now if he starts practicing at the age of 25 years, uprightly the court room experience of 5 years will be sufficient to endow a law- graduate with the nitty and gritty of Real-life courts. So, the entrance point in terms of age in the AIJS can be 30 years.

Now, if we suppose that a candidate qualifies at the age of 31 years, after the training of almost of 1 years, at the age of 32 he can be posted in the district as Additional District Judge. After serving 4 years as ADJ, he can be promoted to District Judge at the age of 36. The Appointment to the post of district judge at the age of 35-40 years has been subjected to a brute denigration. If an IAS can become a district magistrate at the age of 28-29, there is no justification of such criticism. Such abomination of newly mooted idea has come from a people, who have an axe to grind, therefore much can't be said on this point.

The service of 6 years at the level of District Judge is more than sufficient and if I call a spade a spade, he at the age of 42 can be very easily promoted to the High Court, without any intervention of an opaque body.

The appointment of a judge, who has come all along, at the age of 42 years in the High court will be sufficient to rejoice the constitutional makers of India, who during their struggles contemplated a country in which equal opportunity is given to everyone irrespective of his caste, income status, religion, region and political affiliation.

According to the National Judicial Data Grid, On 1 February 2023 total 59,87,477 cases are pending in the High Courts, which represents a pathetic condition of our legal system. The decline in pendency is directly proportional to the number of judges and the working hours of the court, since here we are concerned with number of judges, therefore a total service of 13 years can be assigned to a promotee in high court, after which he can be elevated to the Supreme Court at the age of 55 years.

Justice Nageswara Rao in his retirement speech said that "Judges appointed to the Supreme Court usually get a tenure of 4-5 years, but this not enough to understand the working of the top court. "Supreme Court Judges decide the matter of constitutional Importance, but sometimes even during the pendency they face retirement, how this can be done"? "Therefore, government can consider either increasing retirement age or one who has a clear 8-9 years should be brought to the SC".

In one way or the other, even judges feel that there must be a larger tenure of judges in the constitutional courts, therefore a High Court Judge promoting at the age of 55 years to the Supreme Court will serve a noble purpose for this country.

Apart from being criticized for its structure, AIJS has also been abominated for assault on federalism and separation of powers. However, this argument is beside the mark as Article 312(1) of the Indian Constitution empowers the parliament to make laws for the creation of one or more All India Services, including an AIJS, common to the union and states. Another opposition is also based on the constitutional principle of separation of powers.

A central test could give the executive an opportunity to executive to dominate the entire judicial system at the district level and dilute the say of high court judges in the entire process. The counter argument to this "Notion" is that when we say All India Judicial Services, we place it at par with one conducted by Union Public Service Commission which consists of Pre, Mains and Interview.

In State Judicial exam too, the role of High Court judges arises at the interview level only, therefore what AIJS can do is to establish a panel of renewed judges of High Courts for ensuring the free, fair and an independent interview, which is completely free from executive intervention.

The insurmountable number of pending cases, opaque judicial appointment system at higher level calls for a well-organized and systematic recruitment system, that recruits efficient judges in large numbers for speedy dispensation of cases.

AIJS is going through hurdles from the executive block and additionally from high courts, despite the fact that the Supreme Court has requested for AIJS twice. Therefore, AIJS needs to be designed in a way to get rid of its shortcomings and it is able to be a powerful technique to the vacancy in judiciary. Adequate judges may be made to be handiest if they're recruited in huge energy through AIJS much like we see in the case of IAS, IPS, IFS, and different civil offerings.

Hence there needs to be no greater delay. Moreover, after the selection, a judicial provider officer may be furnished with enough education to address the job. A meritocratic judiciary is the want of the hour that is viable with an aggressive recruitment process, because in this pell- mell conundrum, whether government wins or collegium, it is Indian Constitution and Bharat's democracy which is bearing the burnt and finding itself in the red.

Written By: Prateek Upadhyay, who is pursuing B.A.L.LB from National Law University, Lucknow.

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