By -- Harchand Choudhary1
“Even so, the creed of judicial independence is our constitutional ‘religion’ and, if the executive use Article 222 to imperil this basic tenet, the Court must ‘do or die’” — Justice Krishna Iyer
1. Collegium System:-
Collegium system came into existence through a long judicial activism and judicial process. After the case of 1973 in which A.N. Ray was appointed as chief justice of India superseding three senior colleagues, judicial appointment process always remained in controversy. Collegium system got its final form through various Supreme Court judgments. The first case was S.P. Gupta v. Union of India 1982[2] also known as the judges transfer case, in that case, Supreme Court of India held that power of the appointment of judges of higher judiciary solely and exclusively in the hand of the central government of India. In the second judges case Supreme Court Advocate – on Record Association v. Union of India 1993[3], the Supreme Court overruled the judgment of S.P. Gupta case and held that in the matter of appointment of judges of Supreme Court and High Courts the chief justice of India should have primacy. And in third judges case in Re Presidential Reference 1999[4], the Supreme Court finally evolved the collegium system and held in regard to the appointment of judges to the Supreme Court, chief justice of India should consult a collegium system of four senior-most judges of the Supreme Court.
1.
For the appointment of judges of High Courts, the court held that the collegium should consist of the chief justice of India and two senior most judges of Supreme Court of India. In the regard to the transfer of the judges of High Court in addition to the collegium system of four judges, chief justice of India require consulting chief justice of two High Courts ( one from which judge is being transferred and other receiving him)
2. Weakness of Collegium System:-
Elevation of justice P.D. Dinakran of Karnataka High Court to the Supreme Court of India added fuel to the fire in the weakness of collegium system when it overlooked the chief justices of Bombay, Gujrat, and Uttarakhand High Courts. This incident once again raised the questions against the validity and utility of the present method of selection of judges of the Supreme Court and High Courts by the collegium system.[1]
The method of selecting judges through the collegium system does not find any palace in the constitution of India. The Indian constitution provides power to the president of India to appoint the judges of the Supreme Court and High Courts. But through the judgement, The Supreme Court acquired this power in its hand and started to assess their own merit, ability, and qualification among themselves. And the recommendations for appointment made by collegium will be binding on the government.
Prior to case 1993 second judge case, many ablest judges were appointed with the consultation of government. The emergency case was an exception. There was no any single controversy on those appointments which were done by collegium system. It is difficult to understand what was necessary to overturn the constitutional principles of like collegium system.
The collegium system had neither a secretariat to shoulder its burden nor an intelligence bureau to make appropriate inquiry character and competence for 31 judges of the Supreme Court and other judges of 24 High Courts of India. That is why there is always vacancies in higher judiciary in India. Besides that the collegium system was opaque because the choice of judges came to light only when they forward their name to the government. Collegium system was bound by seniority they do not see the constitutional vision of judges, what their social philosophy is and what is their attitudes toward gender justice. Because of seniority concept collegium overlooked many talented junior judges.
In an interview, former justice Ganguly said that “one thing about collegium system I have a criticism which has completely made the executive subservient to the primacy of the opinion of the judiciary that is not correct, that is not the scheme of the constitution. By a judgement, you cannot rewrite the constitution”.
In the process of the appointment of judges of higher judiciary, there must be elements of democratic accountability. We can not depend on this assumption that judges know best. In the process of appointment of judges, political class must be included otherwise it will be a judicial oligarchy. They are bound by seniority and do not see what is his attitude towards affirmative action. That is why that it is good that collegium system had repealed by Indian parliament and introduced new process National Judicial Appointment Commission 2014.
3. National Judicial Appointment Commission 2014:-
Because of failure of collegium system through opaqueness, corruption, nepotism, lack of transparency and recent revelation by former justice katju and justice Dinakaran cases compelled to the Indian parliament to bring new laws related to appointment in the higher judiciary. Consequently, after getting full majority in general election NDA government passed 99th constitutional amendment in 2014 and added new clauses, Art. 124A,124B, and 124C and got ratification of 16 states to get rid of all problems which were faced in Indian judiciary. So that transparency and impartiality can be maintained in Indian judiciary. Thus Act came into force on 31st dec. 2014.There are following provision of this Act.
• ‘The NJAC comprises of six members which include Chief Justice of India as Chairman, Union Law Minister, two senior-most Supreme Court judges and two eminent persons.
• The two eminent persons will be selected by a collegium comprising of Prime Minister, Chief Justice of India and leader of the opposition or the leader of the single largest party in the Lok Sabha.
• Besides, one eminent person should belong to the SC, ST, women or minority community, preferably by rotation and will have the tenure of three years.
• The NJAC will recommend to the President for the appointment and transfer of judges of higher judiciary, viz., Supreme Court and High Courts.
• It will also make recommendations for the appointment of Chief Justice of India and Chief Justices of High Courts.
• If two members out of six are not agreed then the proposed name cannot be appointed or promote or transfer and proposal will be automatically canceled.’[5]
New provisions through National Judicial Appointment Commission 2014 tried to bring transparency and equal say to the executive in appointing process of the higher judiciary. It Introduces new separate body which can look after a fair and right process of judicial appointment.
4. Other Nations’ Judicial Appointing Process:-
The United States of America
The power to appoint judges to the US Supreme Court is exercised by the executive branch of government; specifically, by the President of the United States. Presidential appointments to the US Supreme Court must first be confirmed by the US Senate, which is part of the legislative branch of government. In other words, the Senate has the power to reject or block the appointment. Moreover, the confirmation proceedings usually involve a lengthy review process in which the Senate Judiciary Committee is permitted to directly question the President's nominee. Also, there are no special rules for the President to follow in choosing a nominee. The President may appoint any lawyer for whom Senatorial confirmation can be obtained
The Republic of France
As in France the power to make appointments to the nation's highest court, the Court de Cassation, resides within the executive branch of government; specifically, the French President.in France, an independent body oversees the appointment process. This body is referred to as the Conseil Superieur de la Magistrature, which is tasked with reviewing and interviewing potential Court de Cassation appointees, and then making a recommendation to the French President.
The purpose of the Conseil Superieur de la Magistrature is to ensure judicial independence and quality control in the appointment of judges to the nation's courts.
Thus like appointing process of USA and France India also can follow through NJAC because it is not necessary to always follow the seniority junior can be more talented and smart. So that burden of cases which are pending in court can be disposed of as soon as possible. Since justice delay is justice denied.
5. Some weakness of NJAC 2014:-
NJAC 2014 there are two clauses which are questionable and doubtful. First is the composition of NJAC has been left in the parliament and mere parliamentary statute is enough to make more flexible to it then the amendment of the constitution. Second is NJAC 2014 did not clear that how eminent members will be chosen collectively by Prime minister, Chief justice of India and Leader of the largest opposition party. Is it by unanimity or simple consensus. This is yet not clear.
6. Conclusion :-
“I do not think that we should select judges based on a particular philosophy as opposed to temperament, commitment to judicial neutrality and commitment to other more constant values as to which there is general consensus”.- Anthony Kennedy
The independent and transparent judiciary is the sine qua non for a healthy democracy. To maintain accountability and impartiality in the appointment of judiciary NJAC is much better than an opaque collegium system. To make this commission is stronger it is necessary that composition, function and procedure must not be in the hand of parliament. It must be in the permanent part of the constitution which can be amended only by the special majority of parliament with the ratification of the states. So that it cannot be amended easily. And another thing is that no system can be perfect, but can be relatively better. There is always the possibility of drawbacks in any system so to make better to NJAC, it is necessary to implement this system in India.
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1. Student of Bharati Vidyapeeth Deemed University New Law College Pune (India)
2. AIR 1982 SC 149
3. AIR (1993)4 SSC 441
4 AIR 1999 SC 1
5. The National Judicial Appointment Commission Bill, 2014
