This article has been written by Ms. Lavanya, a 1^st year LLB student at Gujarat National Law University.

Introduction-

Union Minister for Law and Justice Kiren Rijiju, had rekindled the discourse about The National Judicial Appointments Commission (NJAC) and The Collegium System by stating that the Collegium system was “opaque” and “needed to be reconsidered.” His sentiment was resonated by Vice President and Rajya Sabha Chairman Jagdeep Dhankar in Parliament where he pointedly commented that it was not too late to reflect on the NJAC. The appointment of judges is a very crucial matter for judicial independence and separation of powers, while administering justice, judges must be free of any direct or indirect influence political or otherwise.

To properly understand this debacle, we need to look at how the Collegium system evolved, the 99^th Amendment Act as well as the subsequent declaration by the Supreme Court that it is unconstitutional. 

Article 124(2) of The Constitution of India-

(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).

THE THREE JUDGES CASES:

1. S.P. Gupta v. The union of India / The First judges case, 1981-

• The Supreme Court held in this case that “consultation” in Article 124(2) of the Constitution of India does not necessarily mean concurrence and it only means an exchange of views. The Supreme Court held that the President was not bound to mandatorily accept the recommendations of judges. It was also held that a High Court Judge could be transferred to any other state’s High Court, even against his will.

2. Supreme Court Advocates-on Record Association v Union of India / SCAORA / The Second judges case, 1983-

• The Supreme Court overruled the S.P. Gupta judgement in this case and changed & interpreted the meaning of the word “consultation” in Article 124(2) of the Constitution of India to that of “concurrence.” Therefore, the President was bound by the advice of CJI for appointment of Supreme Court judges. The CJI also consulted with two of his senior-most judges of the SC for the same, thus creating the Collegium System. This judgement also re-established the convention of appointing the senior-most judge of Supreme Court as the CJI.

3. In re Special Reference 1 / The Third judges case, 1998-

• The main issue that was to be decided here was the meaning of the expression “consultation with the Chief Justice of India/”, mentioned in Article 217(1) and Article 222(1) and whether article 124(2) as interpreted in the said judgment requires the Chief Justice of India to consult only the two senior- most Judges or whether there should be wider consultation according to past practice. It was subsequently held that consultation would be based on a collegium of four senior-most judges of the Supreme Court.  Strict guidelines for appointment of judges to the supreme court and high court were established, which is the current Collegium System.

These cases and Supreme Court opinions developed and strengthened the idea of an independent judiciary by evolving the Collegium System. There is no mention of this system in either the Constitution or the in the subsequent amendments to it.

The National Judicial Appointments Commission (NJAC)-

It was Justice Venkatachaliah Commission which was established by the NDA government in 2000 to study the operation of Indian Constitution which recommended the formation of National judicial Appointments Commission in its report. The NJAC Bill (121^st Amendment Bill) was passed in the Lok Sabha and Rajya Sabha with the intent of scrapping the Collegium System and it received the President’s assent on 31^st December 2014. This brought to action the NJAC Act, 2014 via the 99^th Constitutional Amendment Act. The amendment replaced the Collegium System with the NJAC, accordingly appointment of CJI, Supreme court judges, High Court Chief Justices and High court judges would be done on the recommendation of the NJAC. Nomination of judges must be on the basis of seniority, aptitude, merit and any other qualifications which maybe outlined by the NJAC regulations.  Three new Articles under the NJAC act

1.Article 124 A: which defined what NJAC is composed of-

1. The Chief Justice of India
2. Two Senior-most Judges of the Supreme Court of India
3. The Union Law Minister 
4. Two eminent members which are selected by the Selection Committee

2.Article 124 B: defined the functions of the commission-

Appointment of CJI, SC judges, Hight court chief justices and high court judges as well as transfer of high court judges and chief justice would be done upon recommendation of the NJAC.

3.Article 124 C: defined parliament powers to make laws-

Parliament may regulate the process of appointment of CJI and other SC and high court judges including high court justices by empowering the commission to lay down procedures, rules and regulations for discharge of its functions. 

Appointment of CHIEF JUSTICE OF INDIA (CJI): 1950-1973

Until 1973, an evolved convention of appointing the senior most Supreme Court judge as CJI was followed. However, in 1973, this convention was violated when Justice A.N. Ray was appointed as the CJI of India superseding three senior judges of Supreme Court; Justice Shelat, Justice AN Grover and K.S. Hedge. This was perceived by many as an open attack on the independence of the Judiciary. Its interesting to note that Justice Ray’s appointment as CJI came soon after his dissenting judgment in the Keshavananda Bharti case which gave us the Basic Structure Doctrine, within a matter of two days to be precise. Subsequently once again in 1977, Justice M.H. Beg a junior to Justice H.R. Khanna was appointed as CJI, once again violating the convention of appointing the senior most Supreme Court judge as CJI. It once again becomes important to note that in the five-judge bench Habeas Corpus case four of the judges aligned with the government’s view of suspension of right to life during emergency and only Justice H.R. Khanna dissenting. This resulted in a tussle between the Judiciary and the Executive.

The Supreme Court Advocates on Record Associations and seven other parties filed petitions in the Supreme Court questioning the legality of the NJAC Act on grounds of its violation the principle of judicial independence. The Supreme court in a 4:1 majority in the case of Supreme Court Advocates-on-record Association v. Union of India (2015) declared the NJAC Act unconstitutional and void as it violated the Doctrine of Basic Structure of the Constitution and held that the Collegium system which existed prior to NJAC would be once again operative. The bench of this case consisted Justices; J. Chelameswar(the dissenting judgement was given by him), Kurian Joseph, A.K. Goel and Madan B. Lokur. The bench however also acknowledged that the Collegium System of “judges appointing judges” is far from perfect and its about time now that this old system of appointing judges can be improvised and reformed.

Conclusion-

Under the Collegium System appointment of judges to Supreme Court and High Court is done by the President of India on recommendation of a collegium that consists of the Chief Justice of India along with four other senior most judges. This collegium also deals with transfer of Chief Justices of High Courts and the Judges of the High Court. Our Constitution has adopted the Doctrine of Separation of Powers which has clearly resulted in the three organs of the government i.e., the Executive, Legislative and Judiciary. The Collegium system thus evolved as a system of appointment of Judges so as to honour this doctrine and to not let Executive and or Legislative to interfere with the justice delivery mechanism of our country. This non-interference helps to attain the Constitutional Vision of Judicial Independence as ascertained in our Constitution.

References-

The Constitution of India, 1950.

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