Constitution of India gives high regards to independence of judiciary because
constitution makers were aware that judiciary needs to be independent so that it
does not work as per whims and fancies of the executive. That is why article 50
was inserted in the constitution which says that the state should take measures
to ensure that judiciary is separated from the executive in public services. Now
one question arises how do we ensure independence of judiciary?
Is it through security of tenure, allowances or the appointment and transfer
process. Judges through various judgment tried to ensure that the independence
of judiciary is not compromised because compromising independence of judiciary
means compromising the constitution.
For ex. In Keshavnanda Bharti vs UOI case
supreme court gave the doctrine
of basic structure wherein it is said the basic structure needs to be upheld and
certainly independence of judiciary is part of basic structure and tenure
,allowances and appointment process are its features which ensure the
independence. In the following article we would deal with how the appointment
process of judges ensures the independence along with checking the
constitutionality of the appointment system.
What is collegiums system?
Collegium system is the group of judges who appoint the judges of Supreme Court,
Transfer the judges from one high court to another. It consist of 4 senior most
judges of supreme court and Chief justice of India. Roots of collegiums system
went back to late 1980's when the political situation in India was changing and
transfer of power took place from congress party to janata party during this
time period the extent of influence of executive was so much that when any judge
gave any judgment which was against the government, they were punished for it by
the way of transfer. Also before the emergence of collegium system.
Article 124(2) gave power to the president of India to appoint the judge which
said that as president may deem necessary so it was pleasure of president in the
appointment of judges. President being part of executive use to appoint judge
who reflects the ideas and ideology of the executive. El clasico example of this
is Justice A.N. Ray who was considered as pro government judge who rarely
dissent against the government.
He was appointed as CJI surpassing seniority of other judges it is regarded that
he was made CJI because he delivered judgment in the favour of government in the
case of Keshavnanda Bharti Vs. UOI
,1973 case wherein he said the
parliament has absolute power to amend the constitution. Executive tries to
capture the power of judiciary so that judiciary does not interfere in
functioning of the executive and it can function without unchecked authority.
But on same front judiciary argues that to have healthy democracy they need to
have healthy judicial system and which would be ensured when there is no
interference in the appointment of judicial appointment. But during 1970's
judges were influenced by their connections to political leaders, relatives
which rendered them to deliver judgments in favor of government.
1st Judge Case also known as S.P Gupta vs. UOI, 1981
Prior to this judgment, precedent was that independence of Judges to work does
not mean that they can act arbitrarily but they can function independently from
influence of other constitutional institutions in discharging of their
constitutional duties. But in SP Gupta vs. UOI it was said that under Article
124(2) President can appoint judges after taking consultation with the Chief
Justice of India but president is not bound by the Consultation of the CJI and
primacy was not given to the opinion of judges.
This judgment is important because now executive got supremacy over the judicial
scrutiny, president being part of the executive will work on the advice of
Council of Ministers and appoint those judges who are mirror image of executive.
in this case important portion of judgment was delivered by Justice fazal Ali
and Justice Bhagwati wherein they said that Indian Constitution never did strict
separation of power, so judiciary cannot be completely isolated and allowed to
work without check and that the independence of judiciary need to be confined to
the four walls of the Constitution.
Justice Ali also said that constitution has striked a perfect balance between
the executive and judiciary because if the president misuses his authority,
judicial review can be applied to the decision taken by him/her. Accordingly
this judgment shifted the power more towards executive.
2nd Judge Case also known Supreme Court on record association vs. UOI, 1993
1st judge transfer case affected the judiciary in a wide way, now to mitigate
it's effect onto judiciary, 2nd judge transfer case took place exactly after 12
years of 1st case. Wherein it was said that giving upper hand to executive in
appointment of judges would have negative effect over Judiciary and judicial
Judges in the present case said that primacy should be given to the opinion of
chief justice of India but that opinion is not individual opinion of the CJI but
along with the opinion of senior most judges of the supreme court similar
process for respective High courts this was done to ensure that CJI is not
appointing judges based on their political inclination and ideology.
Thus this led to formation of Collegium system in India which is not formed
initially by the constitution makers but was added by judicial precedent. Apart
from this major part of the judgement which is neglected is that, if the CJI
gave any recommendation regarding appointment of a judge which President deems
not suitable for appointment on the grounds of Positive Material means that
president has to give substantial reasons which are valid to show that the Judge
is incapable for the appointment.
Another situation in which CJI has recommended a person for appointment and the
president has accepted the same but the senior most judges are of the opinion
that concerned judge is not suitable for appointment then that would be
permitted and the concerned judge would not be appointed. So this shows that CJI
is not alone deciding who will become the Judge rather his decision also goes
through the scrutiny by the senior most judges who can independently work
without the pressure of CJI thus leading to effective say of other functionaries
in the same body. Similarly3rd Judge Case case also known as In special
reference ,1998 ,it decided the quorum of the collegium system.
Is Collegium System In Consonance With The Constitution?
Judiciary is the institution to decide whether any law, legislation, acts
brought by parliament are in consonance with the constitution because judiciary
has the power of judicial review through which it can check the
constitutionality of any law , this power has been only given to judiciary and
no other constitutional bodies has the same power as per the Constitution.
But what if any decision or any body has been established by the judiciary, who
will review it whether it is complimentary to the provisions of the constitution
same is the case with collegium system, this body has been established by
judiciary and while establishing it judiciary justified that same that it is in
consonance with the constitution.
But problems exist in the collegium system because still women's representation
is low, judiciary is dominated by the upper caste Hindus , low representation of
minorities in judiciary and the most unsolvable problem of Judges family
member's success ratio of becoming a Judge. But we need a system which is more
of inclusive and diversified.
Judiciary has always persisted that reservation should be there in legislature
to bring SC's AND ST's at par with the General Category of people but when it
comes to judiciary they deny any kind of reservation in judicial system at
higher level by stating that there is no need of it. Now to tackle this
situation parliament at several times brought laws / Amendments to nullify the
effect of Judgements and same happened in the case of appointment process of the
Judges, Parliament in 2014 brought NJAC (National Judicial appointment
Commission) which would have led to end of Collegium System and have led to
establishment of a body where Judges would have a greater say but it would not
be a dominating say.
But it was struck down by judiciary saying the it is in violation of Basic
Structure Doctrine. So it clearly shows that Collegium system would be
constitutional until judiciary want it to be, judiciary requires judicial will
to change the existing system of appointments Otherwise Collegium system would
Award Winning Article Is Written By: Mr.Shivam Singh
Authentication No: JU317832831786-26-0623