‘…But given the politics of today, I think that it [the collegium system] is perhaps the best system in the circumstances…As Churchill said about democracy, it is perhaps the best option available at present.’
Retd. Just. Rohinton Nariman’s recent statement in support of the collegium system has of course been widely reported. Considering the severe pressures, the collegium, vis-à-vis the judiciary has been through in the recent past, Justice Nariman’s words can possibly be termed as a much needed shot in the arm for the embattled judiciary. Questions have been asked of the collegium system for quite some time now and critics have pointed out severe flaws with the system itself. However, such voices have recently been emboldened at a time when the judiciary and the government seem to be publicly tussling. So much so that the sitting Chief Justice of India, Just. D. Y. Chandrachud had to reassure everyone during a recent conclave interview that ‘Not every system is perfect but this [the collegium system] is the best system we have developed. But the object was to protect the independence of the judiciary, which is a cardinal value. We have to insulate the judiciary from outside influences if the judiciary has to be independent."
Quite possibly, amongst all the constitutional institutions set up, none is more important to protect the democratic structure of our country than the judiciary. A free and fair judiciary, sovereign from legislative and executive constraints is fundamental to our country maintaining its free and democratic principles. However, judicial independence has come under considerable duress during the term of the present government, which has imprudently espoused a mechanism of having greater government participation in the appointments of judges.
It can be safely said that executive excesses itself were a foundational precursor to the judiciary coming up with the collegium system of appointing judges, in an effort to insulate itself from such transgressions. The system came into existence primarily by way of three judgments of the Supreme Court passed in 1981, 1993 and 1998, which collectively came to be known as the Three Judges Case. The collegium system of appointing judges basically mandates that future Judges of various High Courts and the Supreme Court of India are appointed by the President, in concurrent consultation with other sitting Judges of the courts, devoid of any executive or legislative interference.
The current government, for obvious reasons, feels the system needs a radical overhaul and would prefer an alternative system where it gets a substantial say in the appointment of judges. In the recent past, senior government functionaries have battled for significant government intervention in the appointment of judges, perhaps none more strongly than the ex-law minister, Kiren Rijiju, who had termed the collegium system ‘opaque’ and ‘not accountable’. While one can agree with some of his criticism of the collegium system, one cannot help but feel the way it was done, especially by senior functionaries through public forums certainly left a lot to be desired on the part of the government. Subsequently, even the Vice President, bidding adieu to all constitutional precedence and decorum, felt the need to further government interests by publicly vilifying the judiciary and attacking the cardinal basic structure theory. The government sermonizing on the judiciary seemed like a foregone conclusion every time the ex-law minister had to give a public speech. Perhaps, being a party in almost half of all the pending cases in various courts of the country was not a statistic the government wanted to pay much heed to; unsettling and attacking the collegium system seemed like a better way to spend that time instead.
In August 2014, the Parliament had initially passed the National Judicial Appointments Commission Act (NJAC), 2014 (99th Amendment) for providing an independent commission to appoint judges to the constitutional courts in the country. What has clearly irked the present government is that the Supreme Court, in 2015, via a 4:1 decision, struck down the amendment as ‘unconstitutional’, ‘ultra-vires’ and void’. And rightly so, as the NJAC Act brought in more problems than solutions. The independent commission under the NJAC was to constitute the Chief Justice of India, two senior-most judges of the Supreme Court, the Union Minister of Law and Justice, and two other eminent persons of repute from the civil society who were to be further nominated by a committee consisting of the Prime Minister, the Chief Justice of India and the Leader of the Opposition of the Lok Sabha.
The Act left the executive with unprecedented power and unfettered prominence in the appointment of judges, something that was frowned upon by a majority of the members of the Bar and the Bench. The Act also did not have any definitive criteria such as the requirement of special knowledge, for the appointment of the two nominated members, which was clearly a perceived lacuna. What made matters worse was the functioning of the system, where if any two members of the commission did not agree with a recommendation, the same could not be made. That basically meant, members of the executive, such as the nominated members from civil society could essentially veto any recommendation, even if the appointment recommendation was made and agreed upon by the Chief Justice and other Justices of the Supreme Court.
The collegium system though is not without its oft-quoted criticisms, which it has had to field ever since its inception. It has always been a closed-door non-transparent affair, leading to various members of the government terming it unaccountable. The collegium, statistically at least, has majorly preferred to appoint upper-caste judges to constitutional courts. The collegium has also failed to come up with any specific parameters regarding the appointment or elevation of judges to constitutional courts, without which all appointments seem arbitrary. Issues of nepotism and quid pro quo have also been alleged against members of the collegium, and appointments seem to be made not based only on merit. Worse still, the collegium is not a statutorily mandated system, but owes its existence to Supreme Court precedents, giving its inception far lesser authority in the fantastical minds of laymen.
While a lot of the criticism surrounding the collegium and the system of appointing judges to constitutional courts seems fair, the solution does not lie in myopically handing over the task of appointing judges to the government. Moreso, when the government is the largest litigant before courts in the country, accounting for nearly 50% of the cases pending before the courts. However, the chatter about the collegium system has festered and grown ever since the NJAC bill was struck down by the Supreme Court in 2015, describing it as ‘unconstitutional and void’. It marked a significant blow to the government in its attempt to wrest some control in appointing judges away from the judiciary.
It is of course a personal opinion that a streamlined system of appointing judges based on merit and one that does not compromise judicial independence would be a desired outcome of this whole fracas. Only an independent judiciary can possibly act as a countermeasure to legislative and executive whims and fancies. The political rhetoric of continued criticism of the judiciary has somehow abated after the appointment of Arjun Ram Meghwal as the current Law Minister of the country, however, we surely have not seen the back of it yet. As the present law of the land, the collegium system is here to stay, unless of course the government decides to table another bill and bulldoze it through Parliament. As of now, deliberate inaction seems to be the weapon of choice for the government in stalling collegium appointments of judges not looked upon favourably by the government. And without any specific timeline in place for the government to clear names proposed by the collegium, the government has the right to take advantage of the loose end of the rope.
The question is, has the judiciary done enough to absolve itself of all criticism? Possibly not. Has the government done enough to warrant interference in judicial appointments? Absolutely not. We can only choose the lesser of two evils, but one thing is for certain if the judiciary falls, so will the country.
(Tanumoy Majumder is a practising civil lawyer at Delhi High Court. Views expressed are personal.)
