In the eve of the new Chief Justice of India D Y Chandrachud taking over the office on November 9, the Union law and justice Minister Kiren Rijiju was found expressing his displeasure over the collegium system of the judiciary. Speaking at a programme organised by Panchjanya', a weekly magazine published by the RSS, Rijiju not only showed his unhappiness over the system of appointments and transfers of SC and HC judges through collegium, he also said that as per the spirit of the Constitution, executive should be given the responsibilities to appoint judges.
Taking a jibe at the slow pace of the justice delivery system, he said that due to their engagement in the appointment and transfer related matters, their primary job of delivering justice is suffering. Though it is not for the first time that this government is found criticising the collegium system, Rijiju’s attacks just before Justice Chandrachud’s anointment is read otherwise by the political analysts. Justice Chandrachud, known for his liberal visions and progressive verdicts will have a two years’ stint as the CJI that will also pass through the upcoming 2024 Lok Sabha elections.
However, amidst these controversies, it is high time to look back at the nitty-gritty of collegium system, the way it came into being and the efforts being made by this Government to replace it -sometimes through National Judicial Appointment Commission Bill, 2014; in other times through verbal attacks on its constitutional legitimacy.
What is the Collegium System: A Throwback
A collegium is the body of five senior most SC judges who take the decisions regarding appointment and transfers of SC and HC judges. The Collegium however, doesn’t have the constitutional sanction.
According to Article 124 the judicial appointments to the SC must be made by the President of India in consultation with the CJI and other senior judges of both the SC and High Courts. Article 217 however notes that the appointments to the High Courts should be fixed by the President, CJI and the Governor of the concerned state.
The conflict between the executive and the judiciary got bubbled out on the surface in 1981 when the first of the renowned ‘Three Judges Case’ on judicial appointment was heard. In its verdict the SC said that the President can turn down the recommendations of the CJI in the case of judicial appointments if she/he has ‘cogent reasons’ to do so.
While in the first case of 1981 (S P Gupta Vs Union of India), the SC decision tilted the favour toward the executive, in the second case Supreme Court Advocates-on Record Association vs Union of India in 1993, the nine-judge bench of the SC led by Justice JS Verma overturned the judgement. Upholding the ‘primal’ role of the CJI in appointing the judges, the Justice Verma bench said that the executive cannot have equivalent role similar to the CJI in appointments as it could lead to the ’indiscipline’ in judiciary.
This verdict further got its strength from the opinion of the SC in 1998 when it responded to a query evoked by then the President K R Narayanan regarding the collegium system. In this instance, known as the third case in the famous ‘Three Judges Case’ the SC emphasised on the role of Collegium and sealed the fate of Indian Judiciary.
National Judicial Appointment Commission: A Response from Executive
As the Collegium in its two decades’ tenure since 1993 faced several allegations of nepotism and corruptions, plans were being floated to replace the system with the engagement of executive. It was alleged that the collegium had undermined the significance of consulting President and government to such an extent that they eventually became just rubber-stamp authority.
So, National Judicial Appointment Commission (NJAC) was formed through the 99th constitutional amendment of Article 124A in August, 2014 after being passed by both the houses of the parliament. The Government also passed National Judicial Appointments Commissions Act, 2014 to regulate the actions of NJAC. While the President gave his assent on December, 2014, the act came into force in April, 2015. NJAC was enthusiastically ratified by 16 legislative assemblies.
As per the proposals NJAC was about to comprise Chief Justice of India, the two most senior judges of the Supreme Court, the Law Minister, and two ‘eminent persons’. The two eminent persons were proposed to be nominated for three years by a committee consisting of the Chief Justice, the Prime Minister, and the Leader of the Opposition in the Lok Sabha. The eminent persons were not supposed to be considered for re-nomination.
While there was a huge hullabaloo over the political interventions of the executive into the judiciary, NJAC had enough space for the CJI and other two senior judges to veto any appointment if they found it being shoved through their throat. However, to pass any name, the CJI would have needed the support of the other members of the commission.
NJAC ‘Unconstitutional’: Diverse views among Judges
Within hours of the 99th constitutional amendment was passed, several petitions challenging the Act reached Supreme Court. On the very first hearing, the SC denied entertaining the plea terming them ‘premature’ for not having the support of more than 50% states.
Meanwhile as the ratification for 16 states were received along with the President’s assent, the SC started its hearing in January, 2015. In March, it asked the HCs to not entertain the pleas related to NJAC and took over the authority to decide upon the case. In April, the SC sent the laws to a five-judge constitutional bench to examine their constitutional validity.
However, after different roadblocks, recusals and controversies, the SC on October 16 stroke down the two laws related to the formation of NJAC terming it ‘unconstitutional’. It is nevertheless wrong to say that all of the senior Justices were on the same board regarding NJAC.
While former CJI R M Lodha criticised the dissolving of collegium saying it tried to ‘malign the judiciary’, former Justice and then the Chairperson of Press Council of India Markandey Katju termed the collegium system ‘a failure’. Katju also pressed allegations against three former SC judges who allegedly bowed down in front of political power to help a corrupt additional judge in Madras HC.
Kiren Rijiju’s Efforts to Reintroduce NJAC
This long-drawn battle between the executive and judiciary again came to the front last year December, when Union Law Minister Kiren Rijiju speaking on the debate over High Court and Supreme Court Judges (Salaries and Conditions of Service) Amendment Bill, 2021 said that there has been growing demands even among people from Judicary to reintroduce the NAJC.
“There has been a huge support regarding NJAC, so I want to tell the House on record that many retired judges and Supreme Court Bar Association have given me in writing that the present Collegium system of appointment of judges is not correct; not transparent; and not accountable. It does not even justify the slightest intent with which this provision was made in the Constitution,” Rijiju said.
Referring to the issue as a sensitive one the Minister noted, “As I have said before that this is a very sensitive issue, so, I am not saying it as a commitment. But it is my duty to inform this House that such voices are coming, including voices from the judiciary.”
He also made it a point that the appointment procedures of the SC and HC judges are not going smoothly. Ruling out the allegations that the Government was not clearing names, he said, “Some of the allegations are also not correct to say that the government is stopping some of the names recommended by the Collegium. We all have to understand that government cannot just remain a mute spectator or we cannot just sign on any of the names. We have to do due diligence.”
The recent statement of Rijiju thus is nothing new- rather an addition to the ongoing tussle between judiciary and the executive.
