THE COLLEGIUM – TO BEEF OR NOT TO BEEF

SC

So the Supreme Court struck down the constitutional amendment setting up the National Judicial Appointments Commission (NJAC). The collegium system – where a handful of senior most judges of the Supreme Court constitute the said collegium – has been revived and would continue to appoint judges to the superior courts. Hearings would commence shortly in the Supreme Court to consider ways and means of improving the collegium system.

Reading the judgements of the Supreme Court which struck down the constitutional amendment setting up the NJAC and revived the collegium system; certain impressions are hard to resist.

The judges, sensing the importance of the issue and having their name stamped in history, have been prone to be much more lordly than usual; leading to much unnecessary verbiage.

Only one of the judges – Jagdish Singh Khehar, delivering the leading judgement – has attempted to put forth what stood to be the greatest difficulty with the working of NJAC. Even then, his exposition of this greatest difficulty with the working of the NJAC falls short of clearly bringing out the full implications of the same.

The greatest difficulty with the working of NJAC stood to be the matter of the two “eminent” persons as members of NJAC. These eminent persons would have been appointed to NJAC by a panel comprising of the Prime Minister, the Chief Justice of India and the leader of opposition. Where no leader of opposition availed, the leader of the single largest party in the opposition instead would have been the member of this panel appointing the eminent persons to NJAC.

NJAC consisted of six members. Three of them were the senior most judges of the Supreme Court. Fourth was the Law Minister and the other two were the eminent persons. The candidature of any person for appointment as a judge to the superior courts would have been blocked if any two members of the NJAC voted against him or her.

 Now, the panel appointing the two eminent member persons of the NJAC had two politicians and one judge. Using a different terminology; the panel appointing the two eminent member persons of the NJAC consisted, apart from the single judge therein, of the sitting head of the union executive (PM) and a keen or key aspirant to future union executive (Leader of the opposition; or where there is no designated leader of the opposition, then the leader of the single largest party in opposition).

Or in other words, the panel appointing the two eminent member persons of the NJAC was dominated by politicians or by persons having substantial interest in being a part of the union executive and the functioning of the union executive. Given the same, the chances of at least one of the two eminent member persons of the NJAC siding with the Law Minister stood to be real and noteworthy.

Nearly all High Court judges aspire to be elevated to the Supreme Court. Given that the chances of at least one of the two eminent member persons of the NJAC siding with the Law Minister was such as not to be dismissed easily; serving High Court judges would have been extra wary of riling or displeasing the union executive.

Now the union executive is the largest litigant. And government power is what needs so critically to be kept in check as events in Indian history from emergency onwards so clearly demonstrate. Now this extra wariness of the serving High Court judges in displeasing or riling the union executive would have made a big dent in the impartial or independent functioning of the High Court judges so critically required for the welfare of the Indian Republic.

The most damaging impact of the NJAC, therefore, was on the independence of the High Court judges. None of the judgements has brought out this clearly as required. Only one of the judges – Jagdish Singh Khehar, delivering the leading judgement – has attempted to bring out this aspect and though he has devoted considerable lines to it; his exposition has failed to bring out the crux of the matter in such clear exposure as was required.

The collegium system has its drawbacks. But the NJAC was a disaster.

The union executive, by virtue of the NJAC, would have acted greatly on the minds of the serving High Court judges; restricting and restraining them even further from acting against the union executive in their official capacity.

 Judicial activism is necessary for upholding the rule of law where the executive is found to be wanting or lacking for some reason or the other; and rule of law is another basic feature of the Constitution which cannot be detracted from.

Blocking the candidature of activist judges – with whom the executive is far from happy, but who for the public are often a boon – would have been a matter of distinct feasibility on part of the union executive given that all it took was to get one of the eminent member persons to side with the law minister on such blocking. Given the appointment of these two eminent persons to the NJAC by a panel dominated by two politicians or two figures keenly interested in exercising the power of the union executive; such siding of at least one of the two eminent member persons with the Law Minister, as stated, was distinctly and prominently feasible.

And such blocking of candidature of activist judges – a matter of distinct probability and feasibility as above stated – stood to be a considerable threat and attack on independence of judiciary and rule of law, both of which are basic features of the Constitution as long judicially settled and cannot be detracted from by any constitutional amendment such as that setting up the NJAC.

There are 24 high courts in the country. Their power to protect fundamental rights or other legal rights under article 226 and 227 of the Constitution of India is more flexible as compared to the power of the Supreme Court under article 32 to protect the same. The great deterrence that NJAC posed to the independence of the serving High Court judges and judicial activism at High Court level was a disaster. Thank God the NJAC has been struck down. Though one would have hoped of the quality of judgements striking it down to have been better. On the reverse side, the single minority judgement upholding the setting up of NJAC is absolutely riddled with flaws of reasoning.

Now the challenge before the Supreme Court is how to improve the functioning of the collegium system.

Now that the constitutional amendment setting up the NJAC has been struck down; the pre-amendment provisions of the Constitution – which had been interpreted earlier by the Supreme Court to give rise to the collegium system – stand revived.

The wordings of these provisions – namely article 124 and 217 of the Constitution of India – had given discretion to the union executive to consult such judges of the Supreme Court and of the high Courts as the union executive considered fit for the purposes of appointment of Supreme Court judges with the rider that the Chief Justice of India was to be necessarily consulted for appointment of judges other than the Chief Justice of India.

Now since only a handful of the senior most judges of the Supreme Court constituted the collegium dealing with the task of appointment of judges; the effect was to nullify the discretion of the union executive to consult such judges of the Supreme Court and of the High Court as the union executive considered fit for the purposes of appointment of a Supreme Court judge.

This nullification posed a substantial challenge to the legality of the collegium system as indeed argued vehemently by the government in the just concluded NJAC cases. The answer to this challenge in the NJAC judgement is far from satisfactory. A feeble answer has been given that the government is still free to consult such judges of the Supreme Court and high Courts as it may consider fit and there is no bar to that. The answer is feeble as such consultation is of no effect given that it is the collegium which matters so far as appointments are concerned. The Supreme Court has to improve the collegium system in a way as to give a worthwhile answer on this issue.

In law, no discretion of the executive or the government is unfettered. This is absolutely settled. This principle could have been utilised by the Supreme Court to lay down that the power of the union executive to consult judges of the High Court or the Supreme Court with respect to appointment of judges had to be exercised reasonably; which then would have given a scope to the Supreme Court to expand the collegium system in such manner as to give a worthwhile answer on this issue.

Where the matter of appointment of a Supreme Court judge is concerned; each High Court can send a nomination for such vacancy through voting by all the judges of a given High Court for the purposes of such nomination with the Chief Justice of such High Court having a casting vote in case of any tie on such nomination.  The totality of such nominations – with the Supreme Court Collegium having the power to add to such nominations – can then be considered by a much expanded collegium of Supreme Court judges. By including all the High Court judges on the issue of selection and appointment of a vacancy in the Supreme Court; it can no longer be said that the provision of consultation of High Court judges has been nullified. And by expanding the Supreme Court collegium to say 50% of the Supreme Court’s strength; the said collegium can be said to represent in a reasonable manner the views of the Supreme Court for the purposes of consultation with respect to appointment of judges to the Supreme Court. Why not including all of the judges of the Supreme Court as members of the collegium is advisable is because to judge the suitability of any serving High Court judge to a vacancy in the Supreme Court requires adequate experience with judgements delivered by High Court judges; which would exclude new and recent appointments to the Supreme Court from being members of the collegium. 50% of the total strength of the Supreme Court would be more in lines with reasonability for the collegium system to represent more adequately the views of the Supreme Court on such matters of appointment.

With respect to appointment of High Court judges; the Collegium has to call in nominations, if not already being done, from the Chief Justice of the concerned High Court – with the Supreme Court Collegium having power to add to such nominations – to make the collegium system more in line with the applicable provisions.

The question of consultation given by the judges on the matter of appointment of judges being binding doesn’t offer much difficulty. Consultations in certain cases are binding. Take the example of medical consultation. Dominant medical opinion given by respected medical practitioners ought to be binding; and is indeed, in practice, invariably binding. In the matters of governance, particularly with respect to the appointment of judges to the superior courts and the critical importance of the same, this ought of consultation to be binding – as given by a suitable collegium of judges – has to be binding.

One aspect which the NJAC judgements have ably answered is to point out that it cannot be said that executive has been side-lined in matters of appointment to superior courts. Intelligence reports – which can have the involvement of both the union and the state executive – plays a material role in the appointment of judges to the superior courts.

So, to reiterate, it is the working of the collegium system which has to be improved if the collegium system has to be within by and large acceptable meaning of the related constitutional provisions. Let’s see what transpires. But in any case, kudos to the Supreme Court for  striking down the NJAC, which was a disaster !!

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