The Unconstitutionality Of The Collegium System

An explanation of why the collegium system of judicial appointments is not valid according to the Constitution.

A historic event came to pass on October the 16^th, 2015, when a 5 judge bench of the Supreme Court struck down as unconstitutional the Constitution (Ninety-Ninth Amendment) Act, 2014 (The Amendment) that was brought in to make way for the National Judicial Appointments Commission Act, 2014 (NJAC) which sought to replace the earlier Collegium system wherein judges appointed judges to the higher judiciary.

The modality of the appointment of judges to the higher judiciary is laid down in Article 124 (Supreme Court) and Article 217 (High Court) of the Constitution of India. As per the provision the appointment of the judges is to be done by the President after consultation with judges of the Supreme Court and of the High Courts in the States. It also explicitly states that in the case of appointment of a judge other than the Chief Justice, the Chief Justice of India (CJI) shall always be consulted.

The Constitution (Ninety-Ninth Amendment) Act, 2014 (The Amendment) essentially modified the provisions to include a body called the NJAC in the decision making process leading to appointments. Consequently, changes were made to Art. 124 and 217 introducing Articles 124A and 217A into the Constitution.

A change which the judiciary saw as being abrogative of the basic structure of the Constitution, a concept formulated by the judiciary in the landmark case of Keshavananda Bharati v. State of Kerala , whereby the Supreme Court held that the Constitution of India had in it certain basic features which when abrogated, changes the basic structure of the Constitution. The rule of law and a secular democratic republic of the government among others are a few examples of such ‘basic features’ which out which the Constitution would lose its true identity and could be transformed into something else entirely, slowly but surely.

In doing so the Supreme Court restricted the power of the Legislature to make amendments to the Constitution, a power it enjoys by virtue of Article 368 of the Constitution subject to procedural requirements laid down therein. Such restriction finds no express mention in the Constitution itself but by way of judicial pronouncement, which has now become engrained in the Constitutional scheme of things.

Over time the appointment procedure has witnessed major changes and has moved from being an executive function discharged by the President as the head of the executive to

Being a judicial function being exercised by the CJI wherein the Presidents role as the head of the Executive has been reduced to being a mere approver.

To fully understand the sequence of legal events which lead to this situational irony one must retrace the roots of the collegium system to a series of judgments by the Supreme Court generally referred to as the 3 Judges Cases.

S.P. Gupta vs. Union of India (1^st Judges Case)

This judgment discusses the scheme of appointments as laid down in the Article 124 of the Constitution and in doing so, observed that the concept of primacy of the CJI in matters of judicial appointment is not really to be found in the Constitution. It further went on to hold that ‘consultation’ as used in Article 124(2) does not mean ‘concurrence’. As a consequence the executive had an upper hand in matters of appointment, a position which had developed to be a convention since the Independence up until the judgment was challenged. This lead to the second judge’s case.

Supreme Court Advocates-on-Record Association vs. Union of India (2^nd Judges Case)

In 1993 a nine-judge Constitution Bench of the Supreme Court overturned the law laid down in SP Gupta’s case to the effect that while appointing judges under Article 124(2), the opinion of the CJI was to be given primacy and that in ‘consultation’ was to be read as ‘concurrence’. Thus the opinion of the Judiciary represented by the CJI in matters of appointments became binding on the Executive headed by the President.

In the Special Reference (3^rd Judges Case)

The above position was further strengthened in the 3^rd judges case, which was actually a Presidential Reference under Article 143 made by K.R. Narayanan, the then President of India rather than being an adjudication between parties as cases generally are. With this opinion the Supreme Court divested the authority of the CJI in recommending candidates for appointment in favour of a collegium of four senior most judges of the Supreme Court. Article 50 which speaks of separation of power between the judiciary and the executive along with the ‘basic feature’ of an independent judiciary were relied on in support of such a stark departure from the express provision of the Article 124(2).

With this the Collegium as we know it today took its final shape and began to appoint judges. It saw more than its share of controversies and severe criticism from various stakeholders ranging from legal luminaries, scholars, lawyers, politicians and even judges themselves!

Late V.R. Krishna Iyer, eminent jurist and a former Judge of the Supreme Court of India summarizes all that is wrong with the Collegium as follows.

“Thus, today we have a curious creation with no backing under the Constitution, except a ruling of the Supreme Court, and that too based on a very thin majority in a single ruling. Today, the collegium on its own makes the selection. There is no structure to hear the public in the process of selection. No principle is laid down, no investigation is made, and a sort of anarchy prevails. In a minimal sense, the selection of judges of the highest court is done in an unprincipled manner, without investigation or study of the class character by the members of the collegium. There has been criticism of the judges so selected, but the collegium is not answerable to anyone.”

On the impact that the adoption of the Collegium system has had on the quality of judges being appointed, T. R. Andhyarujina, a Senior Advocate of the Supreme Court & former Solicitor-General of India remarked as follows

The ablest judges appointed to the Supreme Court were by appointments made prior to the collegium system..

Judges appointing judges in an opaque manner and on various occasions devoid of meritocratic considerations gave rise to a situation rather interestingly termed “Uncle Judges” by the 230^th Law commission of India’s report titled Reforms in the Judiciary – Some Suggestions.

There are occasions, when advocate judges either settle their scores with the advocates, who have practiced with them, or have soft corner for them. In any case, this affects their impartiality and justice is the loser…

These were the issues which needed to be addressed and an alternative to the collegium was conceived in the form of the NJAC which set out to propose a democratic consultative mechanism for nominating candidates for appointment which had the following composition.

•       Chief Justice of India (Chairperson, ex officio)
•       Two other senior judges of the Supreme Court next to the Chief Justice of India – ex officio
•       The Union Minister of Law and Justice, ex-officio
•       Two eminent persons (SC/ST/OBC candidates to be appointed by the CJI, PM and the leader of the single largest party in opposition)

The latest in the long line of judgments on the appointment procedure which struck down the Amendment and the NJAC as being unconstitutional among other issues, objected to the presence of the executive in the process of appointments and indicating that their presence goes against the principle of separation of powers and independence of the judiciary and primacy in matters of appointment.

This was a failed attempt of the Union of India to have the law laid down in the earlier judgments reviewed by the Supreme Court and defend the Amendment and the NJAC.

The Collegium system of appointment of judges stands resurrected and has begun appointing judges in full swing.  With the NJAC now being declared unconstitutional and the government’s reluctance to appeal the judgment or make a comeback with NJAC in a new avatar, collegium appears to be here to stay. The Collegium may have won the battle but the war appears to be long drawn.

The collegium must address the issues of opacity and lack of accountability among many others and the Supreme Court will be hearing suggestions to such effect on the 3^rd November 2015 . In addition to those aforestated, there is one more issue which remains unresolved.  The issue of the constitutionality of the ‘Collegium’.

It is interesting how when reading the Article 124(2) people including legal luminaries often discount the fact that the article read in whole and harmoniously with the judicial pronouncement in this regard leads to a situation which appears to, despite everything, render the collegium unconstitutional.

Article 124(2) is reproduced as follows.

124(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with 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 and shall hold office until he attains the age of sixty five years: Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted:

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office in the manner provided in clause (4)

That there shall be a collegium may well be argued, but that the collegium shall comprise of the CJI and 4 senior most judges of the Supreme Court goes against the express provision governing the same.

The article clearly mentions that

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with 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.

Therefore even on stretching the constitutional scheme of thing to accommodate a Collegium of judges of the Supreme Court as a body charged with the appointment of judges, the membership of such a body must be determined by the President of India (and as per Article 74 by the Council of Ministers with the PM at the head) and not as per the current norm.

References-

[1] http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf

[2] Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225) < http://indiankanoon.org/doc/257876/>

[3] S.P. Gupta vs. Union of India (AIR 1982 SC 149) <http://indiankanoon.org/doc/1294854>

[4] Supreme Court Advocates-on-Record Association vs. Union of India (1993 (4) SCC. 441) < http://indiankanoon.org/doc/753224/ >

[5] In re Special Reference 1 of 1998[4] < http://indiankanoon.org/doc/829952/>

[6] http://www.thehindu.com/opinion/lead/judicial-appointments-disappointments/article3785898.ece.

[7] http://www.thehindu.com/opinion/op-ed/appointment-of-judges-by-collegium-of-judges/article66672.ece.

[8] http://lawcommissionofindia.nic.in/reports/report230.pdf

[9] http://timesofindia.indiatimes.com/india/Government-plays-ball-as-collegium-clears-24-judges/articleshow/49460632.cms

[10] http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444997560.pdf