After the Supreme Court of India came into existence in 1950 and up to 1993, Judges of Higher Judiciary (High Courts and Supreme Court) were selected by the government in consultation with the Chief Justice following which the President of India formally appointed them. In 1993, the Supreme Court of India passed an order unilaterally and constituted the now controversial Collegium System for selection and promotion of Judges by a group of senior Judges.
The Collegium in the Supreme Court was comprised of the Chief Justice of India and four senior-most Judges of the Supreme court. In case of High Court, the Collegium was comprised of Chief Justice of the High Court and two senior-most Judges of the same High Court.
Neither in the Constitution of India any such provision for Collegium System was available, nor the Constitution allowed the Supreme Court to amend the Constitution. Amendment of Constitution was the absolute domain of the Parliament. In other words, the Supreme Court of India, by its order of 1993 establishing the Collegium System, had hijacked the country’s Constitution.
Judges selecting Judges has been a weird system in India and unheard of in any other democratic countries of the world. Moreover, the process of selecting or promoting Judges in Collegium System was found to be highly opaque. No records of the meetings of Collegium were kept. So, nobody knew on what basis or criteria one was selected as Judge or promoted and another was not.
In August 2014, Parliament passed the Constitution (99th Amendment) Act, 2014 along with the National Judicial Appointments Commission (NJAC) Act, 2014, providing for the creation of an independent Commission to appoint/promote Judges to the Supreme Court and High Courts to replace the Collegium System. But in 2015, a Constitutional Bench of the Supreme Court of India declared the NJAC as un-Constitutional and directed for the continuation of Collegium System.
Composition of NJAC was consisted of following members: Chief Justice of India as the ex officio Chairperson, two senior-most Supreme Court Judges, as ex officio members, The Union Minister of Law and Justice as ex officio member, two eminent persons from Civil Society (to be nominated by a Committee consisting of the Chief Justice of India, Prime Minster of India and the Leader of Opposition in the Lok Sabha; one of the eminent persons to be nominated from SC/ST/OBC/minorities or women). The Act empowered any two members of the NJAC to veto a recommendation if they did not agree with it.
Rejection of NJAC by the Supreme Court was mainly based on the argument of the independence of Judiciary. But it was not made clear how NJAC would compromise the independence of Judiciary. The Bench observed that the Judiciary could not risk being caught in a “web of indebtedness” towards the government. But it was not made clear how Judiciary would escape from the “web of indebtedness” towards the members of the Collegium, which could breed nepotism and vested interest in the Judiciary.
The Bench also observed that NJAC “violated the basic structure of the Constitution”, but forgot to see that Collegium System was not even within any structure of the Constitution. It was forced into the Constitution by the Supreme Court without any authority and like an inflamed appendix. Independent Judiciary meant independence in hearing cases and awarding verdicts.
But the Supreme Court Constitutional Bench led by Justice Khehar observed that it was difficult to hold that the wisdom of appointment of Judges could be shared with the political-executive. It was beyond comprehension how the presence of one Minister in six-member Commission could disturb the WISDOM of Brahminical Judiciary. It was as if Minister of Law was some untouchable entity in the holy group Judges. The observation of the Bench that the organic development of Civil Society had not as yet sufficiently evolved, was based on assumption. Such observation humiliated Indian Civil Society and allowed the Judiciary to monopolize the claim of all organic developments.
The assumption of the Supreme Court, under Collegium System, that senior Judges were “Holier Than Thou” was untenable. Judges were also human beings and came from a common society. Unlike government and members of Parliament/Assembly, Judges were not answerable and accountable to the people of India. Judiciary did not have any check, balance and periodic assessment of performance of Judges by the people of India. Judges are dropped from the top and they enjoy immunity throughout their career.
Government never interfered in the trial of any case. So, independence in administrative matters, like selection and promotion of Judges, was beyond the absolute scope of Judiciary. Moreover, if dozens of High Courts and Supreme Court Judges remained busy in administrative works of selection and promotion of Judges, their core duty and responsibility would be diluted leading to more and more backlog of pending cases.
Currently a list of prospective Judges is shuttling between the Supreme Court and Law Ministry. Neither side is budging an inch. Supreme Court wants its absolute control over Collegium System and Central government is determined to play its role as the ruling representative body of the citizens of India. Let us see where the thing goes.
